ay

 

Cornell Law School Library
east
iN
A

TREATISE

ON THE

LAW OF CONTRACTS

BY

SAMUEL S. HOLLINGSWORTH, ESQ.,

Pair etincabaset
LATB PROFESSOR OF THE LAW OF CONTRACTS AND CORPORATIONS,

AND PLEADING AT Law,
IN THE UNIVERSITY OF PENNSYLVANIA.

PREPARED FOR THE PRESS

BY

RANDOLPH SAILER, ESQ,,

OF THE PHILADELPHIA Bak.

PHILADELPHIA:

REES WELSH & CO.
1896.
Entered according to Act of Congress, in the year 1896,
By REES WELSH & COMPANY,

in the Office of the Librarian of Congress, at Washington, D. C.

AVIL PRINTING COMPANY,
3941 Market Street, Philadelphia.
PREFATORY NOTE.

The present work is printed from the original manu-
script of the late Professor Samuel S. Hollingsworth, by
authority of his executrix. In preparing it for pub-
lication every effort has been made to preserve the
exact form and arrangement of the author, and while
some additions have been made, they have been intro-
duced in accordance with the general scheme of the
work, to complete the subject as originally outlined, or
as a result of recent legislation affecting this branch of
the law. The work has -been brought down to date by
a general reference to the recently decided cases through-
out this country and England, but beyond these neces-
sary changes it is published as originally planned
and written.

The editor gladly accepts this opportunity of acknowl-
edging the assistance of Frank E. Schermerhorn and
G. Herbert Jenkins, Esqrs., of the Philadelphia Bar,
in preparing the work for the press, a service as gracious
as it was helpful. R. 8.

Gai
TABLE OF CONTENTS.

 

PART I.
PAGE.
THE FORMATION OF A CONTRACT .......2--. Wy ee delete + 3
CHAPTER I.
Agreement, proposal and acceptance... ..... a8 ee eke: 5
CHAPTER II.
Capacity of parties . 1 we ee ee eee eee Wie LO
I. Legal or professional status... 1... ee ee ee ee 16
Sa Uifanicy 6 dies 84 Ge a ws ee eR BOB a IS se TF
Who may avoid the voidable acts of an infant ...... 24
Consequences of avoidance ........... cee 25
Contracts absolutely binding ...........+.. 26
Contracts absolutely void . 2 2 2-1 1. wee ee ee 35
3. Idiocy, lunacy and drunkenness ..........0+6+.. 39
Contracts of lunatic voidable not void ..... oy ewe 42
4. Married women . «2... 2. eee eee eee eee 47
As to their equitable estates. 2. 2... eee ee 48
When they may sue for services .....-+..... 49
May contract, when husband civilly dead ........ 50
Feme sole traders may contract by custom of London . . 50
Statutory exceptions to inability to contract ....... 51
Contracts between husband and wife .......... 60
5: AQCICY wee eee ee Be we ee ww soe es. &
By consideration executed on request . ........ 67
By acceptance of executed consideration ........ 69
By mutual promises to pay and todo work ....... 73
6. Corporations . 2. 2... te ew $e eee we 81
Can act only through agent... ...---..-2., 83
Restrictions placed on corporation by power creating it. . 89

(v)
TABLE OF CONTENTS.

CHAPTER IIL

PAGE.
POV OF CONTPAES oe eR RR! EH HR we 8 gr
I. Contracts underseal .. ......-. Hee WE ee 92
Characteristics of contracts under seal... - 2 +e ee 95
When such contracts are essential. .......-0.-.- 98
II. Simple contracts 2. 6 1 1 ee ee ee ee es 100
Statute of Frauds. . 2 1 ww et ee ee th tt 101
Seventeenth Section of Statute of Frands ........ 109
1. Acceptance and receipt .. 1... ++. ee eee 112
2. Partpayment .. 1. ee ee ee ee te eens 115,
3. Memorandum of bargain. . 2... . 0 eee +. 116
4. Consideration ..... Te ties as eh od Ses et) te IIg
Effect of non-compliance... 1... + ee eee be oe AE:
CHAPTER IV.
CONSIDEV ANON: horas 6 ae eh HS ROE BO Gs 123
I, Consideration necessary in simple contracts ...-...-.. 123
II, Adequacy will not be inquiredinto ........-.-204. 124
‘Various forms of consideration .. 2.2. ee ee ee . 126
Motive distinguished ........+.-.. OS ei tai 132
Effect of impossibility and vagueness .....----.. 135
III. Consideration may be executory or executed, but must not be
PASE as i arse eae ee Sy ig tae ee Re Sal ay Gg 138
CHAPTER V.
Reality of consent. 2... co ee ee es ea ee eS he 142
I. Mistaké: 3.5 2s A Gee BRS A SE RR wa! ws 142

Mistake inoperative to affect liability of party doing an act. 143
In general,.a mistake will not alter existing rights .... 144

Mistake of law and fact... 2... - ew ae «1 ee + 146
Mistake as excluding true consent. . .......-4.- 147

As to nature of transaction. ........+-+.4.- 147

As to contracting party... . 2... 2 eee eee I5I

As to subject matter of contract... ......... 152

II Misrepresentation . 2... 6... ee eee ee ee eee 157
WATTATEY: e460 8 a). de, ep 0 RE ean ely doe BO ga 161
Condition coy wie ae te eh Se ae ee es a ee goa 163

Special cases of misrepresentation. ..........-. 166.

I. Marine insurance ..........+050200. 167

2. Fireinsurance. . . 2... 0 eee ee ee ee 167

3. Suretyship .......-.. Pie e Pe Sarat. Aa oe 170

4, Sales ofan ys) e549 ai ee al ap ee ae aw 171

5. Family settlements ............804 172

6. Pattnerships 4 AG ie 6 ke See RES 172

TID, Fraud 2 2 gi ew eB we ea ww o Bae gs We Seer ee 175
Essential features . ....... BE tee ae ean ih 175

A false representation ....... Be seh feh es as aaa 176

Made intentionally or recklessly ..... «+... 180
TABLE OF CONTENTS. vii
PAGE
III. Fraud—Continued.

Essential features
With intent that it be acted upon by the injured party . 181
By party tocontract .........02. 8 2 eae 182
Which actually deceives ......... phish) Se? ABZ
Rescission . 2... ee ee 183
SE We DUT CCS ie’ crt aos Wa cat $03 sncigne beaches gentgesen aha ea steatace, Be sce 188
V. Undueinfluence....... 2 Ree ee eS we we we ~ 196
Parent andchild...... ee be ee we 204
Husband and wife ........ a. Gove lb Ge ee 205
Doctor and patient ........ ei de wwe « . 206
Lawyer andclient .......... 6 a Sear OFZ
Confessor and' penitent ...........-6+.. 208
Guardian and ward. 2. 1. De ee ee ee 208
Trustee and cestui gue trust... . 1.4... + 209°

CHAPTER VI

Legality of object... 2. 1. Bridge a 19 i Se. ih “Saree ea . . 221

I. Classification of illegal cprsements: eS Ge Be ce eS 221
A. Agreements contrary to positivelaw. .....+..+.. 222
I. By statutory prohibition .........-. & aw 222
2. Independent of statute... ........20 004 232
B. Agreements contrary togood morals. .......... 240
C. Agreements contrary to public policy al A aceite « 241
I. Which prejudice the state in its relation to Toren
POWELS” oh Bee Soa ee Se ee ae ae Ge 243,
2. Which prejudice the state in its internal relations. . . 244
Affecting public service... ....... oe ee 244
Tending to pervert the course of justice ...... 246
Touching duties of individuals ...... . - 249
3. Because unduly limiting rights of individual action . 250
‘II. The effect of illegality in an agreement ........... 256
1. Where the contract is divisible ........... - . 256
2, Where the contract isindivisible .-.......... 258
3. Where the immediate object is illegal . . . 2... 0 259
4. Where intention is to further illegal purpose ..... +. 259
5. Where unlawful purpose is known to but one of the parties 263,
6. Securities for the payment of money due upon an illegal
CONCEAGCE 256 wig ane GIS Ap ce Rese Fee epee se ay ad ae 264
7. Money or property paid under an unlawful agreement can-
not be recovered back. ...... foe es oe. 265
CHAPTER VII.

Impossible agreements and agreements of wpa obligation 270
Impossible agreements .. 2... 1.2. te tee eee eee 270
Agreements of imperfect obligation ......-...-. ee he 272

I. Where remedy is lost. ...... Beanie Aes ee a we 272
2. Where conditions creating remedy are unperformed .. . 275
3. Where all remedy is taken away. ..... BE Sa as eee 280
viii TABLE OF CONTENTS.

PART II.
PAGE.
Tur OPERATION OF CONTRACTS ... 2. ...2 84 a seh Ge 287
CHAPTER VIII.

Limits of contractual obligation... 6 6. ee eee ee tw ne 288
General rule as to privity of contract. ......+. oe eee 288
Rights cannot be acquired by third party. ..... bog) ie eed 290

CHAPTER IX.

Assignment of contracts by actof the parties. . 6+ 6. ee ees 295
Liabilities cannot be assigned ...- 1... 2. ee ee ee ee 295
Assignability of benefits... 2... eee ee eee eee . . 296

Atcommonlaw ... .....+.-. Se Be eae 296

Tnvequity: 6.4 awa WE ae HR SS te a ae 298

By: statute. cs ae ase bw de as ROR ey we tte ee, + 306
CHAPTER X

Negotiable Instruments . 6 6 ow ee ee + + 309
Bills of exchange and promissory notes .......+...+5 + 310
Acceptance... 0. 08 eee ew ee 317
Transfer of billsand notes ......-...05520-00058 325
Endorsement. .- 2... ee eee ee eee Eade us Ses 330
Transfer by delivery .. 2... . ee eee ee ee + 336
Walle i) Sie dias) op gee ee a ee Se Se Baers le te ee oo. 345
Notice Sc a0 Gera Be eb we Se a Bee EE ee eR 352
Presentment: 2.06.6 4 46S OS SR we a a W Re ae 357
PrOtest rg cise SOR ee eae he Goda? ae a epee ee ee ey era ag 366
Notice of dishonor... 2... 2. ee ee eee et en 368
Billsof lading? 2.064 Ge ew eee 375

CHAPTER XI.
Assignment of rights and liabilities of a contract by the operation of

COUP 2a. a. ya as eb tal cre OY SS wy a aes: SS ok. BG 391

I. Assignment of interestsinland ..............4.4 391

The rights attached toa demise . ‘ eee Sse 391

Covenants relating to land, not between landlord and tenant . 397

II. Assignment by marriage and death. ....... wea Se AEE
PART III.

INTERPRETATION OF CONTRACTS © 0. ee 413
CHAPTER XII.

Interpretation of contracts ©... 6 ee ee 413

Rules of evidence... 6 we we ee ee ee 414
TABLE OF CONTENTS. ix

Interpretation of contracts—Continued.

PAGE
Proof of the document .......... ay Riise: bat ee ee 416
Evidence of factof agreement. .............00-% 417
Evidence as to terms of contract... 2... 0. ee ee 419
a. Supplementary and collateral terms. . .. 1... 419
6. Explanation of terms ..............004 421
c. Terms annexed by proof of usage... ....--2--: 424
ad. Parol evidence admissible to prove mistake ....... 425
‘Rules of construction... 2... ee ee ee 425
Time of essence of contract... 2.2. - ee ee 427
Penalty and liquidated damages distinguished ......... 427
PART IV
DISCHARGE OF CONTRACT ..........020008 ee ee es 429
CHAPTER XIII.
Discharge of contract by agreement... 2... eee ww ee 430
Ty Waiver mw Bee ee aR a ae a RS 430
TI Novation eho e, wie Pati 2d aS 433
III. By provision in the contract aye (2 Bas HP) gah sa dese hcp tos ae 438
CHAPTER XIV.
Discharge of contract by performance... 0-60 ee ee ees 445
Performance must be in accordance with termsof contract. . . . 445
Place of performance... . 2... ee ee eee eee 449
Time of performance. ............+e880. 452
As to quantity in performance. .........-2...5 456
Payment... 2... ee ee ee ee eee See AS gp Se Ge ee ES as 460
TendeP ice) gh. be ee yy Ws oe ee OG see 7. 465
CHAPTER XV.
Discharge of contract by breach. 2. 6 ee 467
I. Renunciation . ene omy tai Se! coe Se am Soy ae yi OS Lge ie) aa ig ea Ms 471
2. Impossibility created by ct of one of the parties... .... 481
3. Failure of performance... . 2... 2... ee eee eee 488
Absolute promises... 6-1. fw ee ee et ee 490
Divisible performance... . 6.6... ee ee ee 493
Subsidiary promises... 2... 1. eee ee ee ee 508
Conditional promises... 6. 1 1. ee ee ee 511
I. Concurrent conditions .......+6-++542+-. 515
2. Failure of consideration ...... ea ee ee 518
3. Conditions precedent. ...........0.6..- 523
Remedies for breach. .......-++6. gor Gao ed grants 526
Damages: oii. ee bi we a aa ew 528

Specific performance ..... re ee eee ee 536
x TABLE OF CONTENTS.

Discharge of contract by breach—Continued.
Discharge of a right of action arising from a breach of contract. . . 537

I. By agreement... 1... 5 ee ee eee weno + 538
a Release... 2. e+... ee eee Wards Aa ana & 538
6. Accord and satisfaction. . .......+-+200- 542
2. Byjudgment....... “a BROW Woe a We ae ee » 546
3. By lapse of time... ....--. + ee we wee wf 556

CHAPTER XVI.
Discharge of contracts by impossibility of performance. .... ++ 559:

1. By impossibility in law... . 1. ee ee ee ee ee 565.
2. By destruction of subject matter... 2.2. +6 e e+ eee + 569:
3. By incapacity for personal service. ..- 1.2. eee eee 572

CHAPTER XVII.

Discharge of contract by operation of law... 1... eee eee e 575.
We BY AMOR OL ahi ier ae Sect Soe PRE ey ee See awh toe ge *. 575
2. By alteration or loss of a written instrument. ........ 577

3. By bankruptcy. ..... we ES al BS Se Fee aL A wi eee 57%
TABLE OF CASES.

The citation, ‘‘ Rul. Cas.,”? throughout this work, refers to Campbell’s Ruling
Cases, with American notes, by Irving Browne.

A.

PAGE.
Abbott v. Davidson, 25 Atl. 839. 302
Ackroyd v. Smith, 10 C. B. 164 . 411

Adams Express Co. v. Jackson,
92 Tenn. 326. ... . 441
Adams v. Bell, 8 Atl. 664... . 25
v. Grey, 154 Pa. St. 258. . 54, 57
v, Vindsell.. sss www ee 14

Adetiwelder’s Est., 5 Northamp. 41 58
Agerst v. Jenkins, 16 Eq. 275 . . 240
Agnew v. Dumas, 64 Vt. 147 113
Aiman z. Stout, 6 Wright 114. . 39
ne v. Harness, (1895) 1 Q.

B30 ork He A. a 248
Alberts’ Ree es v. Ziegler’s
Executors, 26 Pa. St. 50 539
Alderson v. Maddison, 5 Ex. D.293 166
Aldrich v, Carpenter, 160 Mass.
TOG ees 2s I05
Slemacder v. Donohoe, 143 N.Y.
203 ak ek we Be HOY @ 185
v. Hoffman, 5 W. & S. 382 - 447
v. Miller, 4 Harris 214... . 67

v. Thomas, 16 Q. B. 333 . 312, 315
Alfred Shrimpton & Sons v. Dwor-

sky, 21 N. Y. Sup. 461 . IIo

Algeo v. Algeo, 10 S. & R. 235 . 485

Alger v. Thacher, 19 Pick. 51. . 252

Allen v. Bennett, 3 Taunton 169. 120

v. Berryhill, 27 Ia.557 - + 41
v. Brooks, 88 Wis. 265 ee 277
v. Drake, 109 Mo. 626 205
v. Hammond, 11 Peters 63 153,
v. Kirivan, 159 Pa. St. 612 . 15
v. Lardner, 78 Hun. 603 .. 31
v. McCullough, g9 Ala. 612. 73
v. Snyder, 100 Mich. 290 . . 209
v, Thurber, 149 Mass. 271. . 544

Allis v. Billings, 6 Metcalf 415” . 40

Allison v. McLean, 48 Mich. ay 533
Alliston : Washtenaw, 62 N. W.

Sag ti oe eee ae Ee 334

Allore v. Pewell, 94 U. S. 506. . 211

semi a Ramsay, 6 Wharton

Sa ee 122, 451

Am. Oak eater Co. v. Porter,

62 N. W. 658... ...

Am, Tel. Co. v. Colson, L. R. 6

Exch. 108 ..... 3

 

PAGE.
Ames z, Dasa 4 Pa. Dist. R.

Amort v. Christofferson. .... 104
a v. Babcock, 63 Conn.
TOO! Fa 8 cy Se ae ass 5 SOY 277
v. Moore, 145 Ill.61 ... 433.
v. Pac. Ins. Co., L.R.7C.B.
OSs es ae toe fee Uae hd as 174.

uv. St. A ouis Board, 122Mo.61 12

Andrews v. Dyer, 81 Me. 104 . . 421

v. Franklin, 1 Strange 24. . 314
Angell v. Duke, L. R. 10 Q. B.174 421
Angle vw. Rwy., 151 U.S. 1... 290:
Angus z. Clifford, (1800) 2 Cbs 449 158.
Ansell v. Baker, 15 Q. B » 576

Antietam Paper Co. vu. Chronicle
Co., 115 N.C. 143... «83

Appeal of Bredin, 92 Pa. St. 241. 226-
of Forest Oil Company, e a/.,

118 Pa. St. 138. .... 466.

of Hay, 152 Pa. St. 384. . . 467

of Phila., 86 Pa. 182 . .. . 308

of Philler, 161 Pa. St. 157 - go-

of Ritter, 161 Pa. St. 79. . . 274
Appleby vz. pommeen, L.R.9 CP.

158. oh ea a vesde eae) s 15.
Arkansas Smelting Co. v. Belden

Mining Co., 127 U.S. 379 295.
Armiston Trust Co. 2. Stickney,

I9So0.63..-...+-6 314.
saa Delamize rSm. L. Cas.

Ba ots gece rey 73

Armstoig. v. " Helfrich, 34 Neb. :

RD VEts tay Sy wie “fet deee ie 184.

v. ep L. R.7Q. B. 598 - 78, 79°

v. Toler, 11 Wheat. 258 . 262, 265
‘1 Arnold wv. Arnold, 14 Ch. D. 270. 145.
uv. Dresser, 8 Allen, 435. . . 360°

v. Richmond Iron Works, 1
Gray 434... ++. - 41

Ashbury Carriage Co. v. Riche,
L.R.7 AL. 667. . . 89, 293

Ashford v. Prewitt, 14 S0. 663. . 94
Ashley v. Dixon, 48 N.Y. 430. . 290+
v. Jennings, 48 Mo. App. 142 147

14 | Ashmead v. Reynolds,127 Ind. 441 39;

(xi)
xii
PAGE.
Aspden v. Seddon, L. R. 10 Ch.
App. 394 «+ 426
Asphodel, The, 53 Fed. 835. 375

Atchison etc.. Ry. Co. v. Dill ‘4

BOW. 20 «6 «he ee 193
Atkins v, Randolph, 31 Vt. 226 . 82
Atkinson v. Denby. ...... 268
Atlas Nat. Bank v. y Hohn, 71 Fed.

489 6 ee we Be ws 752
Atlee v. Hackhouse 3M. & W.

O38 o ise ale oe eae ae 192
Att’y-Gen’l v. Gt. E. Ry. Co., 77

Ch.D.50r ...... 87

v. Sitwell, 1 Y.& C. 559 . . 425
Atwell v. jenna; 4oN. E.178 . 42
Audenreid’s App., 89 Pa. St. 114 207
Auditor v. Bal ard, 9 Bush. 572. I1
Augusta T. & G. R. Co. v. Kittell,

52 Fed. 63....... 84
Anitenan & Co. v. Withrow, 48
Ill, App. 492. . .. . . 185

Aultman & Taylor Co. v. Smith,

52 Mo. App. 351. . . 237
Austrian v. Springer, ae Mich. 343 117
Avery v. Bowden, 5 KE. & B. 714. 478

v. Stewart, 2 Con. 69... 364
Avery’s Trustees v. Avery, 90 Ky.

613s ww ee 209
Avil Min. os v. Humble, 153 U.

S540... «2a. 467

Awde v. Dixon, 6 “Exchequer 869 356

Aycock v. Braun, 66 Tex. 201. . 245
B.
Babcock v. Camp, 12 Ohio mr . . 551

Babsell vw. St. L. A. & T. Ry. Co.,

4 Tex. Civ. App. 580 . . 515
Bach vw, Tuck, 126 N. ¥: 53... . 184
Bache v. Phillips, 155 Pa. 103 377

Bacon v. Proctor, (N. Y. ome Pl.)

33 N. - S. 995, 13. Misc.

Rep.I ... s+ +e > 431
Badische ‘Rnilin Fabrik etc. v.
Schott, (1892) 3 Ch.

Q4} os Be Ss 254, 256

Baeder v. Barton, 11 W. N. C. 165 135

Baer’s App., 127 Pa. 360 . . . . 421

Baer v. Bonynge, 72 Hun. 133. . 76

Bagby v. Walker, 78 Md. 239. . III

Bailey v. Austrian, 19 Minn. 535. 13

v. Bidwell, 13 M. & W. 73 . 342

v. De Crespigny L. R. 4 Q.
B. 18... 565

118

v. eee ane ‘9 EB. ¢. L. 'R,

aa

657 Ay Ge Yee Ca Se ah Bh 15

 

TABLE OF CASES.

PAGE.
Baker vu. Cartright, 10 C. B. N.S.
TOA. og hoe es HSS Se 175
v. Holt, 56 Kan. 100 . 9
v. Morton, 12 Wall. 150 I9gt

Bald Eagle Vy. R. R. v. Nittany
Vy. R. R., 171 Pa. 284 . 403
Baldy v. Stratton, 11 Pa. St. 316 240
Baldwell v. Howell, 30 Atl. 423. 69
Baldwin v. Golde, 88 Hun. 115. . 42
v. Hutchinson, 8 Ind. App. 454 190

v. Sullivan etc. Co., 65 Hun.

625) a Sow ae ea 193
Balfour v. Davis, 14 Or. 47 . . . 313
Ballard v. Burton, 64 Vt. 387 . . 124

v. Carmichael, 18S. W. 734. 83
Ballou v. Earle, 17 R. I. 441 ..
Ballentine v. Robinson, 48 Pa. St.

LD eos GO eae, th, ks BO GTS.
Balue v. Taylor, 136 Ind. 368 . . 185
Banbury wv. Lisset, 2 Strange 1211° 323
Bancroft v. Scribner, 72 Fed. 988 528
B.& P. Ry. Co. wv. Baptist Church,
108 U. §: 317 3 6 6 sa
Bank v. Anglin, 6 Wash. 403 . . 313
of Salina v. Babcock, 21 Wen-
dell4g99 ..-.---. 345

v. Balliet, 8 W. & S. 318 . .

v. Beebe, 53 Vt. 177 3
Banks v. Combs, 7 Barr 543 . . 69
Bank v. Dreydoppel, 26 W. N. C.

QAO ees 335
v. Frage, 36 N. E 378... 312
v. Hubbard, 62 Fed. 112. . 76
v. Johnson, 11 Southern 690. 351
v. Huston... 1... we 545
v. Miller, 106 N.C. 347... 5
v. Miller, 43 Neb. 791 . - 365
v. Newton, 6 Kulp (Pa.) 193. 520
v. Legrand, 103 Pa. St. 309 . 237
v. Stanley, 46 Mo. App. 440. 354
v. Strauss, 137 N. Y. 148 . 21
v. ae Mfg. Co., 52 Fed.

eh Top din Mee Sate Coven eke I
Bank of "eolanbin v. Hagner, 1 ae
Peters 455 ...-- +s 492
vw Patterson, 7 Cranch 299 100

Bank of Comtinenes v. Fugua, 28
Pac. 291. : 313
Bank of Washington. v Triplett
& Neale, 1 Peters 25 . . 357

’ Barbour v. Barbour, 49 N. J. Eq.

AZ oe kas ae 240, 279
Barham v. Bell, 12 N. C. 131. 2 78

Barker v. Dinsmore, 72 Pa. St.427 152
v. Lichtenberger, 41 Neb. 751 350
Barkworth v. Young, 4 Drewery I 280

Barlow v. Bishop, I East, 432. . 343
Barnard v. Gantz, 140 N. Y. 249. 198
v. Reynolds, 49 Ill. App. 596 237

v, Simonds, Rolle’s Abd. 26 . 125
TABLE OF CASES.

PAGE.
Barnes v. Smith, 159 Mass. 344 . 232
v. Toye, 13Q.B.D. 410... 29
Barnett v. Glutting, 3 Ind. App.
AUB eek eae ae eae
Barney Dumping Boat Co. z. Ins.
Co., 67 Fed. 341... . 5
Barrett z. Buckston, Aiken 167 . 47

v. Geisinger, 148 Ill. 98. 2
Bartholomey v. Leech, 7 Watts i
A 72e es aha SA ee vg ak dee 238
Barr v. Meyers, 3 W. & S. 295. . 449
Bartlett v. Wells, rot E.C. 1. R
836 . ee ae ee 35
Barton v. American Nat. Bk., 29
SoWE IO a es eee 334
v. Hunter, 59 Mo. App. 610. 542
v. Patents Co., 68 Law T.
B57 eit oe aan oe i - 528
v. Spinning, 8 Wash. 458. . 7
Barwick v. Bank, L. R. 2 Exch.
259.6 ew be RS HS 85
Bascom = Cannon, 158 Pa. St.
Bh RES ae ky Qe 436
Basket Pr ‘Boas, 115 N.C. 448. 245
Batdorf v. Albert, '59 Pa. St. 59. I01
Bates v. Hewitt, Campbell’s Rul.
Cas., Vol. VI, p. 817 166, 167
v. Howard, 105 Cal.173. . - 455
v. Sabin, 64 Vt. 511 be 105
Bateson : Gosling, L. R. 7 C. P.
td “ahah Be Ae 237

Bauck z. Peat, 146 Pa. St.444 . 57

Baumann v. De Logerot, 74 Hun.

G4O. gy nd oe ds oh es 226
v. Manistee Lumber Co., 94
Mich. 363 ......'- 104

Baumgardner wv. Reeves, 35 Pa. s 360
eee ey Bennett, 3 Q. B.

Baxter v. > Bari of Portsmouth, ee
& GotdO ses ae ws Be 45
‘Bayard v. Shunk, 1 W. & S. 92. 464
Bayley v. Manchester R. R. Co. is
LR.7C.P.415 ... 84
Bayles v. Dinely, 3 M. & S. 477. 20

B-B-C Co. v. Boutell, 45 Minn. 21 go |

Beachy v. Brown, E. B. & E. 796. 175
Beadle v. Seat, 15 So. 243... . 276
Beal v. Brown, 13 Allen 114... 276
v. Chase, 31 Mich. 499 . . . 255
Beall v, Dushane, 149 Pa. St. 439 579
Bean v. Brookmire, 2 Dillon 108. 268
v. Stoneman, 104 Cal. 49 . . 403
Beardsley v. Baldwin, 2 Strange
TI§Es 6 a ee . . 312
v. Hotchkiss, 96 N. Y. 201 | 22, 24
Bear’s Adm. v. Bear, 9 Casey 525. 52
Beatie v. Coal Co., 56 Mo. App. 221 560
Beatman v. Midwater Ry. Co., L.
R. 1 C. P. 499

 

xiii

; PAGE,
Beaumont v. Reeves, 8Q. B. 483. 285
Beck v. Haas, 111 Mo. 264 272

& Pauli Co. v. Colorado Mill-
ing Co., 52 Fed. 700, 3 C.
C. A. 248, 10 U. S. App.

BOR OS eae ae 4 a eG 456
Co. : Colorado Co., 52 Fed.
Rep. 700. ....... 427
Beckwith v. Talbot, 95 U.S. 289. 117
Bedell v. Wilder, 65 Vt. 406. 153
Bedford v. The British Museum,
2M.&K.552..... 408.
Bedier v. Reaume, 95 Mich. 518. 186.

Beebe v. Board Sullivan Co., 64

Hun. 377 a a ee a 244
Beer v. Landman, 30 S. W. 64 264
Behl vw. Schnett, 88 Wis. 471 190

Behn v. Burness, 3 B. & S. 751
- 157, 164, 510
Beindorff v. Kaufman, 41 Neb. 824 189
Beitman v. Steiner, 98 Ala. 241 . 258
Belknap uv. Stewart, 56 N. W. 881 65
Bell v. Campbell, 123 Mo. I . 202, 268
v. Smith, 83 Hun. 438 ... 40

Bellemire v. Bank of U. S. 9 4 Whar-

ton 105. ..... 367
Bement & Sons v. Dow, 66 Fed.

TS) sri aie 8S 179, 186.

ms 137

Bender v. Been, 78 Iowa 283 .
Bendix v, Wakeman, 12 M. & W.
O7e he an Boa era a 50.
Bennett vz. Davis, 6 Cowen 393 - 36
v, Hull, 10 Johnson 364 . IIo-
v%. Young, 18 Pa. 261... . 367
pees i Harris, 46 Mo. App.
Mea TIAy eras. eee 19
Bensell “chaneetior, 5 Whar.
, 379 39
Bensinger v. “Wren, 100 Pa, St.
234

327
444.

BOO) sings Gt Ea ae oats
Benson v. Abbott, 22 S.-E. 127 .
v. Shotwell, 103 Cal. 163. .
Benz v. Langan, 5 Northampton
Pa.) 139) toe @ sas 335
Beran v. Tradesmen’s Bank, 137
N. Y. 450
Berger v. Clark, 29 P. F.S. 340. 52
Berkmeyer v. Kellerman, 32 Oh.
St. 239
Bernardin v. Municipality of Lord
Dufferin, 19 Can. S. C
Re 580s. ie ei Ges a

Y. Sup. 904
Beverly v. Blackwood, 102 Cal.

83) Gk ya Ow a
xiv

PAGE,
Bexar Bldg. & Loan Ass’n v, New-
man, 25S. W. 461 . . . 105
Beymer v. Bonsall, 79 Pa. St. aa

69, 78
Beyson v. Cook, 10 Ch. App. Cas.
ee re 213, 216

391
Bibb uv. Allen, 149 U. S. 481. .
68, I19, 231

Bice v. Bldg. Co., 96 Mich, 24. . 105
Bick v. Seal, 45 Mo. App. 475. . 258
Bickerton e Burrell, 5 M. & S. a
Biddison v. P jehinsois, 50 Ill. App.

TGS: 2a Hi he eB Bb anes cane 452
Bigbie v. Phosphate etc. Co., oe

R. 10Q. B. 491. . 232
Bill v. Bament, 9 M. & W. 36. + II7
Billings’ App., 106 Pa. 558 . 165, 412
Bing v. Willey, 23 Atl. 440 . . . 264

Bird v. Brown, 4 Exch. (W. H.
&G.) 789... 2. ee 71

Birkmeyer v. Darnell, Salkeld 27
103, 104, 106

Bixley v. Linah, 4 Harris (Pa.)

BATS th he cee dah oh 549
Black v, Reno, 59 Fed. 917 . . . 351
Blackenhagen v. Blundell, 2 B.

SAG AIT 2. oe ae 316
Blackstone v. Standard Ins. Co.,

74 Mich. 592. ..... 169
Blade v. Noland, 12 Wend. (N.

Wi) 993 see ee ee «57D
Blades v. Free, 9 B..& C. 167 . . 75 |
Blagborne v. Hunger, 1o1 Mich.

eo ORO: ik gs ay 431, 444
Blair v. Mathiott Admr., 46 Pa.

262: dele dh Aa Tea en oS ue 304
Blake v. Cole, 22 Pick. 97... 108
Blank v. Nohl, 112 Mo. 159. . . 240
Blenkinsop v. Clayton, 7 Taun-

tom, 597 2% e ees 116
Blewitt v. Boorum, 142 N. Y. 357. 419
Bliven v. Robinson, 83 Hun. 208. 176

Bloom v. Hazzard, 104 Cal. 310 . 7, 246
Bloomer - Bernstein, I,. R. 9. C.
Pi 588.2 6 se a 508
uv Nolan, 36 Neb. 51. . 25
Bloxam v. Sanders, 4 B. & C. 94t 512
Blymire v. Boistle, 6 Watts 182’,
132, 292
Board of Education v. Dpetnes
24 Atl. 922... 302
Board of Renville Co. v Gray, 63
NN. Wo 635 6 bse as 235
Boehmer v. Foval, 55 Ill. App.
Mics Geek Go, fasta he 246, 258
Bolingbroke v. Local Board, L.R.
9C.P.575.-..+.55 84
Bolton v. Carlisle, 2 H. Bl. 263 . 577
v. Salmon, (1891) 2 Ch. 48 . 235

 

TABLE OF CASES.

PAGE.
Bolton’s Est., 144C. C. R. 575... 58
Bond v. Aitkin, 6 W. & S. 165 . 464

v. Bunting, 78 Pa. St. 210 . 56
Boone wv. Eyre, 1 H. Bl. 273, note
@ . 447, 493, 495, 496, 497, 511
Booth w. Haydens & Willard, 125
ING M595. 8 oe Sook ae 88

QTO yk ak: Wi deen By aces
Bordman v. Cutter, 128 Mass, 388 III
Borland v. Guffey, 1 Gr. C. 394. II, 15
Borough of Millerstown v. Fred-

erick, 114 Pa. St. 435. . 259
Boscher v. Richmond etc. Co., 89

Va. 455 2. - 2 eee 173
Boston Ice Co. v. Beret 123 Mass.

DBI se SR eae ea a oe 152
Bouchard v. Dias, 3 Denio 238. . 551
Boulton v. Jones, 2H. & N. 564. 151
Bourlier Bus. v. Macaulay, 91 Ky.

T35 see te ee es 290
Bovard v. Kettering, 101 Pa. St.

TOE), (pe cag hecven 1 - 54
Bowe v. Ellis, 22 N. Y. Sup. "369 114
Bowen v. Hall, 6Q. B. D. 333. 290

uv Hughes, 5 Wash. 442 . . 205
Bower v. Fenn, 90 Pa. St. 359. . 179
Bowman v. Metzger, 39 Pac.3 . 354

Dairy Co. v. Mooney, 41 Mo.
App. 665. ....... 88

Bowry v. Bennett, 1 Camp. 348 . 260
Bowser v. Bowser, 26 Pa. St. 74 . 245
Boyd v. Boyd, 66 'Pa. St. 283... 198

v. Mangles, 3 Exch. (W. H.

& G.) 387 2. eee 303

v. Wilson, 83 Pa. St. 319 . . 162
Boydell . Drummond, 11 Bast

ee ee ee 117

Boyson Z ition, 98 Cal. 578 . . 290
Bradford v. Williams, L. R. 7

Exch. 259....... 50¢

Bradley v. Irish, 42 Ill. App. 85 . 189

Bradshaw z. Combs, To2 Ill. 428. 419

v. Van Winkle, 32 N. E. 877 35
Brady v. Smith, 28 N. Y. Sup. 776. 7
Bragg v. Danielson, ues Mass, 195 533
Brainard v. N. Y. R. R., 25 N. Y

496 ea a se 326
Bramberry’s Est., 156 Pa, St. 628 55
Brand v. Lock, 48 Ill App. 390 231
Branthwait v. Cornwallis, Cro.

Car, as « 576

71 eee faa PV “8

Bray vz. oomee s Conn. 456. . 436
Breckenridge’s Heirs 7. Ormsby,

J. Marshall 208. . . 24
Bredin v. Dubarry,14S.&R.27. 69
TABLE OF CASES.

PAGE.
Breinig v. Metzler, 23 Pa. St. 156 66
Brewster v, Kitchell, Lord Ray-

mond 318 . . . . . 400, 56
Brezer v. Wightman, 7 W. &S. ae
264s Se se 333, 334

Bridgman v. Green, 2 Ves. Sr 627 219
Brighton v. Lake Shore & M.S.
R. Co., 61 N. W. 550. .

a 578
British Wagon Co. v. Lee, 5 QO. B.

og, We TAQ a baci ee we 295
Brittain v. Loyd, 14 M. & W. 762 139
Brogden v. Ry. Co., 2 App. Cas.
pus eal ay cay see ve ee

rolasky v. » 55 Mo. , 196 76
Brockhousen v. Bowes, Il. ¢
App. 98........ 276
Brocklesby v. Bldg. Soc., (1893) 3
Che “T3808. ne ea is
Bromage v. Lloyd, 1 Exch. 32°
Brooks v. Bank, 23 W. N.C. 502. 53
v. Cooper, 50 N. J. Eq. 761.
v. Martin, 2 Wall. 70... .
Brotherton v. Reynolds, 164 Pa.
St. 134 °° *
Bronson v. Herbert, 95 Mich. 478 15
Brown v. Bank, 137 Ind. 655. .
. Bennett, 75 Pa. St. 420. 140, 284
. Brokstover, 31N. E. 17. .
. Burbank, 64 Cal. g9 ...
. Caldwell, 10 S.& Rimy. 24
Duncan, Io B. & C. 93. . 227
Harper, 681. T. 488... 20
Harper, 3 Rept’s585.. . 24
Kling, ror Cal. 295 . . 254, 257
National Bank, 31 S.W. 285 104
Pierce, 7 Wall. 205 . 189
. Pollard, 89 Va. 696... . 277
. Royal Ins. Co., 6 Camp-
bell’s Rul. Cas. 597. . . 559
v. Latham, 18S. EH. 423. . . 133
‘Browne v. Bigne, 21 Or. 260. . . 249
Brownfield v. Johnson, 128 Pa. St.
254.2 we ee s+ + 459
Browning v. Armstrong,9 Phila. 59 361
v. Home Ins, Co., 71 N. Y.508 168
Brownlee v. Lowe, 117 Ind. 420. 137
Bruce v. Warwick, 6 Taunton
TIS jo cas oe ee Oy BH
Brunner’s App., 47 Pa. St. 67. . 55
Brunswick v. Dunning, 7 Mass.447 82
Brunswick Gas Light Co. v. United
Gas Co., 85 Me. 532. . 89
Bryans v. Nix, 4 M. & W. 775 « 376
‘Bryant v. Oudrak, 87 Hun. 477. 5
uv. Peck & Whipple Co., 154

seeserssegsegs

Mass. 460 .. .... 189
B. S. Green Co. uv. Blodgett, 55
Ill. App. 556. .... go, 100

‘Buckeye Marble etc. Co. wu
Harvey, 20S. W. 427. . 89

 

XV

PAGE,
Buckle v. Probasco, 58 Mo. App.
AQ Ge Bice ae dome ee 74
Buckley v. Collier, 1 Sid. 114. . 50
Budd wv. Rutherford, 4 Ind. App.

386 2. 1 ee ww we 246
Budgett wv. Binnington, (1891) 1

O: Be 35 eg a ca we ee 559
Buffalo Press Club v. Green, 86

Hun. 20..... +. 246
Building & Loan Ass’n v, Adams,

31 Atl 280...... 25, 35
Building Ass’n v. Sendmeyer, 14

Wright67.......
Building Soc. v. Smithson, (1893)

ECE ia ariel en Ban os 95
Bulkley v. Devine, 127 Ill. 406. 422
Bullitt v. Farrar, 42 Minn. 8- 180
Burck v. Taylor, 152 U.S. 634. . 300
Burger v. Roelsch, 77 Hun. 44. . 222
Burges v. Wickham, 3 B. & S. 664

Side certs Chis” Tens Seoation ‘416, 422
Burghardt v. Hall, 4M. & W. 727 29
Burghart v. Angerstein, 6 Car. &

P

5 JOO) es ge HS es 28, 29
Burbank v. Dennis, tor Cal. go . 173
Burk v. Allen, 26N.H. 106... 42
v. Noble, 48 Pa. St. 168. . . 541
Burke v. Bours, 92 Cal. 108 . . . 238
v. Taylor, 94 Ala. 530... . 211
Burkholder v. Plank, 69 Pa. St.
ee ee 97

4 34
Burnap v. Sharpsteen, 149 Ill. 225 94
Burney’s Heirs v. Ludeling, 47 La.
Ann, 9356 64. Se 244, 245
Burnham v. Heselton, 84 Me. 578 249
v. Kidwell, 113 Ill. 425... 40
Burr v. Kase, 168 Pa. St. 81. . . 578
Burt v. Mason, 97 Mich. 127. . 176
Burton v. Willin, 6 Houston 522. 306
Bury v. Hartman, 4S. & R. 175. 307
v. Young, 98 Cal. 446... . 94
Bush vz. Breinig, 113 Pa. St. 310. 47
Bussard v. Levering, 6 Wheaton
TOO ie ae Si ae eo he 363
Bussman v. Ganster, 72 Pa. St. 285 564
Bute v. Thompson, 13 M. & W.
BF os a a ae ae 271°

528
298

Butterfield vw. Byron, 153 Mass.
SIZ © we ee ee 569

Bwlch-y-plwm Mining Co. wv.
Baynes, Ll. R. 2 Exch. 324 185

Byers v. N.C. & St. L. Ry. Co.,

5 94 Tenn. 345... +... 431
Byington v. Simpson, 134 Mass.
I6Q: @ & We wos we: we 4 421
xvi
PAGE,
Byrne v. Tienhoven, L. R. 5 C. P.
D. 344... © © + © - 13, 14

c.

Cadwallader v. West, 48 Mo. 483 206
Cage v. Action, Lord Raymond P
BOG: fue Mesa at ae hs 0
Caldwell” 2. School Dist., 55 Fed.
372 75 136
Calley v. Loomas, 56 Mo. App. 322 576
Callisher v. ees: L. R.
Q.-B.. 452. 0. 2 es
Camerot, v Tompkins, 72 Hun.

LUG ae we eee 118
Camidge v. Allenby, 6 B. & C. 373 336

Campbell’s Estate, 7 Barr 100. . 433
Campbell v. Cook, 92 Mich. 626. 455
v. Floyd, 153 Pa. St. 84 . 237
v. Holt, 115 U.S. 620. 558

v. Jones, 6 Term Reports, 570

: 493, 494
v, Rankin, 99 U. S. 261...

554
Campe v. Horne, 158 Pa. St.508. 57
Canal Co. v. Ray, 1or U. S. 522. 443
v. Vallette, 21 How. 414 - 89
Canary v. Russell, 30 N. Y.S. 122 537

Candor & Henderson’s App., 3
: Casey lI9....... 96
Canham z. Barry, 15 C.B.619. . 567
Canna v. Bryce, 3 B. & Ad. 179. 260
Cannel v. Buckle, 2 P. Wm. 243. 60
Carey v. Courtney, 103 Mass. 316 312

v. Des Moines etc. Co., 47 N.
W. 882 . 89

Carlill v, Smoke Ball Co., " (1893)
1Q.B.256 ..-... II
Carll v. Snyder, 26 Atl.977. . . 255

Carlon v. Kenealy, 12 M. & W.
139 ¢-% 3 8 RR a aS 314

Carlton v. Hulett, 49 Minn. 308 .
183, 185

Carpenter v. Bank of Republic,
1o6 Pa,t7o... ++... 351
Carr v, Fevre, 27 Pa. 413. . 326
Vv. ‘Lowry’s Admr., 27 Pa. 257 403,
Carrick v. Mincke, 1 Mo. App. 67 118
Carrier v. Sears, 4 Allen 336 42
‘Carrol v. Nixon, 4 W. & S. 517 . 138
Carroll v. Sweet, 30 N. Y. S. 204 365
Carrow uv. Headley, 155 Pa. St.96 576
Carter v. Beckwith, 128 N.Y. 312 45
v. Moulton, 51 Kan. 9 94

uv. Phillips, 144 Mass. 100. . 5
v. Silber, (1892) 2 Ch. 278 . = 21

a West, 93 Ky. 211 198
Casborne v, Dutton, Selwins N. :
Ph B20 ie i. A, Se ees 3II

Case v. Cushman, 1 Pa. St. 241 . 273
v. Green, 5 Watts 262 448

 

TABLE OF CASES.

PAGE..

Case v. Morris, 31 Pa, 100.
Casey v. Miller, 32 Pac. 139. . .
v. Stewart, (1892) 1 Ch. 115.
v. Stewart, 30 N. Y. S. 808 .

- 365,

105.
139
334.

Cassidy v. McKensie, 4 W. & S. «

282
Castle v. Noyes, 14 N. Y¥. 329 .
Castlegate S. S. Co. v. Dempsey,
(1892) 1 Q. B. (C. A.) 854
Cathcart s Robinson, 5 Peters
264) os a eS
Caton v. Caton, L. R. 2 E. & I.
App. 127
v, Caton, 1 Ch. App. Cas. 137
Cayuga, The, 59 Fed. 483. .
Ceedar v. Lumber Co., 86 Mich.

SATS Goi Noy ay oh ante ic
Central R. R. of Venezuela v.
Kisch, L. R. 2H. L. 99
Central ao Co. wv. Pullman Bo a5
9 U.S. 24
Chamberlain v Willianison, 2M.
&S.4088......--.
Chambers v. Baldwin, 91 Ky. 121
v, Calhoun, 6 Harris 13 .
v. Chambers, 38 N. E. 334
v. Jaynes, 4 Barr 39 tion
v. Kerr, 24 S.W. 1118 . . .
Champion v. Gordon, 20 Pa. 474
Chande zw. Shepard, 122 N. Y. 397
Chandler v. Hollingsworth, 17 Am.
L, Reg. N.S.319. .
Chandelor v. Lopus, 1 Sm. aL) Cas,
TOS se cuensa var wee see ce 158,
oa v.Glove’s Adm., 32 Pa.
t. 5
v. Sanger, 114 Mass. 364 . .
Chanter - ee 4M. &W.
Chapin Z "Snafer, 49 N. Y. 407 .
ehepues 7 Cottreil, 34 L. J. a

252 ‘:
Charles v. Hastedt, 26 Atl. 564 .
v. Scott, 1S. & R. 294...
Charter Gas Engine Co. v. Char-
ter, 47 Ill. App. 36...
Chase v. Boughton, 93 Mich. 285
v, Fitz, 132 Mass. 359.
Chatham Furnace Co. 7. Moffatt,
147 Mass. 403 . . 160,
Cheek v. Roper, 5 Espinasse 175
Cheever v. R. R., 72 Hun. 380
v. Schall, 87 ‘Hun. Boi send
Cherry z. Heming, 4 Exch. 631 :
v. Herring, 28 Am. L. Reg.
N.S. 99 eas eaitek eat Few gale
Y. 382

ee ee ee ww

75:
551

559:
212:
121

278.
431

3 16.
30
95

88
160
412:

180.
358

» 356
TABLE OF CASES.

PAGE.
Chester v, Taylor, 4 Q. B. 309. . 266
Chesterfield v. Jannsen, 1 Toe
; in Eq. SAL ke ee 8 216, 218
Chicago v, Light & Power Co.,
55 Ill. App. 429... . 87
v. Shelden, 9 Wall. 50 . . . 145
v. Tilley, 103 U.S. 146. . . 483
M. & St. P. Ry. Co. vw Ry.
Co., 61 Fed. 993. . 252, 266
&G. E.R. R. wv. Dane, 43 N.
We 240M te
& A. R. Co. v. Jones, 53 Ill.
‘ App. 431. .---.... 7
Chipley v, Atkinson, 23 Fla. 206 290
Chopin v. Dobson, 78 N. Y. 74 . 419
Christie v, Peart, 7M. & W. 490 324
Church z. Proctor,66 Fed. 240 . 226, 266
City Bank v, Dill, 60 N. W. 767 . 355
Carpet Beating Works v.Jones,

128

36 Pac. 841... 2... 257

of Los Angeles v. Bank, 100
Cal. 18 2... ‘ 266

of Orlando wv. Gooding, 34
Fla. 244 ......2.06. 577
Clapp v. Cedar Co., 5 Iowa 15 326
Clarke v. Cock, 4 East. 57 . 318

v. Dickson, E. B. & E. 148 . 185
Clark v. Coffin Co., 125 Ind. 277 . 422

v. Collier, r10 Cal. 256 . . . 569
v. Cummings, 84 Tex. 610. . 235
v. Evans, 66 Fed. 263... . 354
v. House, 61 Hun. 624 . 2 237°
v. Martin, 49 Pa. 299 - =. . 407
v. National Benefit Co., 67

Fed. 222. .......
. Pearson, 53 Ill. App. 310 . 7
Russel, 3 Watts 213. 129, 131
. Wheeling Steel Works, 53
Fed. 4
Clay v. Yates, 1 Hurl. & N. 73
Clemans v. Sup. Assembly etc.,
131 N. Y. 48

gage

299

204. eens el ee ETB 454
Clifford v. Watts, L. R. 5 C. P. 577 271
Clifton v. Jackson Iron Co., 74

Mich. 183 .....-: 575
Clinan v. Cooke, Camphell’s Rul.

Cas., Vol. VI, pp: 721, 733 - 536
Clippinger v. Hepbaugh, 5 W. &

S. 315 245
Clodfelter v. Cox, 1 Sneed 330 . 300
Close v. Zell, 141 Pa. St. 390, 106, 576
Clough v. London etc. Ry. Co.,

« L. R.7 Exch. 26... 184
Clow v. Coal Co., 98 Pa. St. 432. 237

B

 

xvii

PAGE.

Cochran v. Pew, 159 Pa. St. 184. 146

v. Stewart, 59 N. W. 543. . 93

Coco v. Gumbel, 47 La. Ann. 966 329

Coe v. East & W.R. Co., 52 Fed.

BOL ak ee Soe de

v. Tough, 116 N. Y. 273 3

Coffer v. Ottman, 63 Hun. 502. . 74
Coggs v. Bernard, 1 Sm. L. C. 422

440, 441

Colbert v.Shepherd, 89 Va. 401. 238

Colby v. Dearborn, 59 N. H. 326. 417

Cole v. Hughes, 54 N. VY. 444. . 402
v. Northwestern Bank, L. R.
1oC. P. 354... 2.4. 388

v. Obrien, 34 Neb. 68... . 80
Colehan v. Cooke, 2 Strange 1217 315
Coleman v. Applegarth, 68 Md. 21

13, 427
v. Coleman, 19 Pa. 100. 395, 403
v. Smith, 26 Pa. 255 .... 368

Coles v. Edwards, 61 N.W. 940. 7
vl. E. & St. L. R. Co., 41

Ill. App. 607. . . 149

Collen v. Wright, 7. E. & B. 601 = 75

Collin’s App., 107 Pa. 590. . . 299

v, Blantern, 1 Sm. L. Cas. 753

97, 225, 226

v. Martin, 2 Espinasse 520 . 342

Colt v. Machen, 2 Johnson 160 . 440

v. Root, 17 Mass. 229. . . 105
Columbia etc. Co. v. Haldeman,

7 W.&S. 233. .... 224

Colyer v. Hyden, 94 Ky. 18 .. 94
Combination Steel & Iron Co. vz.
St. Paul City Ry. Co., 47

Minn. 207

Commercial Bank of T. v. Jones,

I Reports 367 .....

Nat. Bank v. Wheelock, 40

N. E. 636
Com’r. of Montgomery Co. wv

Clark, 94 U. S. 278 . . . 354

Com. v. Hagan, 103 Mass. 71 . . 256

v. Emigrant Bank, 9 Mass. 12 577

v. Lane, 113 Mass. 458°. . . 240

Conduitt v. Ross, 102 Ind. 166 . 402
Conflaus Quarry Co. uv. Parker,

461

236
188

ee ee ee .

Vis Rei 3 Co Pods sees 579
Conlan v. Roemer, 52 N. J. L. 53 179
Conly v. Coffin, 115 N. C. 563. . 179
Connelly v. McKean, 64 Pa. 113. 324
Conn. Mut. Ins. Co. v. Shaeffer,

94 U.S. 457... eee 230
Connor zv. Black, 119 Mo. 126. . 232

Consolidated Coal Co. v, Smelt-

ing Co., 53 Ill. App. 565. 530
Cook v. Shipman, 24 Ill. 614 . . 226
Cooke wv, Oxley, 3 T. R. 653. . 7, 13
Cooley v. Lobdell, 82 Hun. 98. . 119
Coolidge v. Payson, 2 Wheaton 66 319
xviii

PAGE,
Coon & Neil v. Reed, 79 Pa. 240°. 302
Cooper v. Kane, 19 Wend. 386 . 424

v. Lansing Wheel Co., 94
Mich, 272 3 6 sss as 12
v. Monroe, 77 Hun. I. . 277

v. Phibbs, L. R. 2H. UL. 149 .
146, 154
v. Rankin, 5 Binney 613 .. 73
v. Reilly, 63 N. W. 885. 210

Co. wv. Quintrell, 91 Tenn. 693 89

Cort v. The Ambergate 'Railway
Company, 17 Ad. & E.,

N.S. 79 E.C. U. R. 127.

Copley v. Machine Co.,2 Wood 494 86

Corbet v. Evans, 25 Pa. St. 310 . 549
Corn v. a las (1893) 1 Q. B.
selene aay, etna 18
Cornish HA Gaydane 99 Ala. 620.
433, 436
Corpe v. Overton, 10 pee I2I . 25
Corrigan v. Pironi, 48 N.J. Eq.
607 + 198, 208
Cort v. The Araesgate Railway
Co., 17 Q. B. . . . 481
Cortland Wagon Co. v. cee 82
EQGH.173 ee we 77

Cory v. Gertcken, 2 Madd.4o. . 34
v. Patton, Ll. R. 7 Q. B. 304.
Cosner v. Crum, 21 S. E. 739 =~ 93
Cotheal v. Talmage, 9 N. Y. 551.
Council v. Moyamensing, 2 Pa,
St. 224
Coursin v. Ledlie’s Admr’s, 31
Pa. 506
Courtney v. Williams, 3 Hare 539. 273
Courturier v. Hastie, 9 Exch. Io2 271

v, Hastie, 5H. lL. C.673 «153
Coverdale v. Eastwood, L. R. 15
H@e lat a 6% 5 165
Cowen a oe L. R. 2 Exch,
ens fee vate 263,
Cowie z. “Rtinling, 6B. & B. 333. 316
Cox v. Grubb, 47 Kan. 435 . . - 246
uv Henry, 32 Pa. St. 18 . . . 576
v. Highley, 100 Pa. St. 249 . 180

v. McGowan, 21S. E. 108. . 24

v. Troy, 5 B. & Ald. 474 - 324
Cozart v. Herndon, 114.N. C. 252 7, 13
Craft v. Fleming, 46 Pa. 140 - 330
Craig v. Mo., 4 Peters 410 . . . 225
Crane v. Powell, L. R. 4 C. P. 123 117
Crawford v. Scovell, 94 Pa. St. 48 41
Cream City Glass Co. v. Fried-

lander, 84 Wis.53 .....- 76
Crears v. Hunter, 19 Q. B. Div. 341 131
Cribbs v. Sowle, 87 Mich. 340. . 190
Cripps v. Hartnoll, 2 Best & Smith

697
Cromwali” i Co. of Sac, 94 U.S.
BST aus Ges iy Row ek 549, 555

 

TABLE OF ‘CASES.

PAGE.
Cronin v. Tebo, 24 N. V. S. 644. 515
Crooks v. Nippolt, 44 Minn. 239. 184
Crosby wv. D. & H. Canal Co.. 141

N. Y. 589 5
Hardwood Co. v. Tester, ‘63 N.
Wis TOS ieses gee eh aes I16

Cross v. O’Donnell, 44 N. Y. 661 115
Crossley. v. Maycock, L. R. 18

Eq. 0... 1. ees 9
Croswell v. Labree, 81 Me. 44. . 578
Crouch v. Credit Foncier, L. R.

8Q.B.380....... 302
Crow v. Carter, 31 N. E.937 .. 15

' Crowder v. Keys, gt Ga. 180 . . 105

Croyle v.,Moses, 90 Pa. St. 250 . 177
Cuddee v. Rutter, 6 Campbell's

Rul. Cas, 640 ......- 536

Cuff v. Penn, 1M. &S., 21... 444

Culton v. Gilchrist, 61 N. W. 384 9
Cumber v. Wayne, 1 Sm. L, Cas.
GAB Sse a es ic 438,

_ 462, 463, 542, 545, 546, 633
Cummings v Boyd, 83 Pa. 372 . 351
v. Cass, 52N.J.L.77.... 179

v. Gaun, 52 Pa. St. 484... II

v. Glass, 162 Pa. St. 241 94

v. Ince, 11 Q. B. 112 189

v. Klopp, 5 W.&S. 511 . . 70
Cundy wv. Lindsay, 3 App. Ca. 459 151
Cunliffe v, Harrison, 3 Exch. 903 456
Cunningham v. Springs Co., 63

Hun. 439 ......, 84
Cunningham’s Admrs. v. Smith,

70 Pa. St. 450 230
Curlee v, Reiger, 45 Ill. App. 544 431
Currie v. Misa, L. R. 10 Exch.

D5 3.5 fee Ske uae cates oe 123, 346
Currier : Lockwood, 4o Conn.

“479
v. Plow Co., 55 Ill. App. 82.
20, 25
Curtin v. Patton, 11 S. & R. 305.

20, 34
Curtis v, es etc Co., Iog N.

"483, 518
C.R.I. & P. R. Co. vw. Un. Pac.
Ry. Co., 47 Fed. 15...
C. & A. RR. Co. z, May’s Land-
ing etc. Co.,7 Atl. 523 . 89

D.
Dakin v. Rumsey, 62 N. W. 990. 210
Dalby v. Ius. Co., 15 C. B. 386 . 230
Dalzell v. Fahy’s Watch Case Ce.,
138. N. Y. 285 .. 1... 469
TABLE OF CASES.

PAGE.
D’Anas v. Keyser, 2 Casey 249. .

455, 456

Dando’s App., 94 Pa. St. 76. . “ 56

Daniels v. Newton, 114 Mass, 530 472

Daniels’ Exr. v. Wharton, go Va.

a ta we a ee

GR R. 587 ee ee eet
Danville Bridge Co. v. Pomroy,
15 Pa. St. 151. - 446, 495
Darlington’s App., 30 W. N. C. 15
198, 205, 219
Dausch v, Crane, 109 Mo. 323. . I91
Davey v. Turner, 1 Dall. 11... 48
Davidson v. Burke, 143 Ill. 139 . 432
ee . Cooper, 13 M. & W.
ge oka) ele BL as ae ae 577
v Litle, 22 Pa. St. 245.
210, 213, 218
v. Von Lingen, 113 U.S. 40. 164
Davidson’s App., 95 Pa. St. 394 . 60
Davie v. Mining Co. » 93 Mich. 491 6
Davies v. Lowen, 64 Law T. 655 .

245, 256
v. Racer, 72 Hun. 43... . 254
Davis v. Brown, 94 U. S. 423. . 555

uv. on ee (Iowa) 61 N. Ww.

Gch sat ati sah lees ered 8 578
v. Clarke, 6Q. B. 16). . . . 317
v. Davis, 93 Ala.173..- . 75

v. Easeman, 1 Allen 422 114

vu. Garr, 2 Selden 124 . . 316

v. Jones’ Adm., 94 Ky. 320 . 251

uv. Keale, 61 N. W. 508 . «94

v. Wane, I0 N.H.156.... = 75

v. Noll, 17S.E. 791 . - - + 355

v. Patrick, 141 U. S. 479 . . 105

v. R. R. Co., 131 Mass. 258. 89
v. Rockingham Investment

Co., 15S. BE. 547-- + +» 90

v. Stuard, 99 Pa. St. 295. . 188
Davison v. Von Lingen, 113 U. S.

AO ee ee BS 427

Dawes v. Peck,8 T. R. 3 II5
Dawkins v. Sippivion: 6 Ind.

lQQ)s 6-55 Ba we eS II

Dawsen v. Hall, 2 Mich. 390 -. 94

Dawson v. Collis, Io C. B. 823. 510
Day wv. Ft. Scott etc. Co., 153 Ill.

203 4 ne Bee ee 179

Dean v. Brooks, 88 Wis. 667 179

v. Chandler, 44 Mo. App. 338 307

v. Emerson, 102 Mass. 480. 257
Debenham v. Mellon, L.R. 6 App.

Cas:24. 6.3 ee se 64, 74, 75

v. Ox, I Ves. Sr. 276 . 251

De Bolle v. Ins. Co., 4 Whart. 67 71
De Bussche wv. Alt, L. R. 8 Ch.Div.

286 6 ws be ee Bs
Decan v. Shipper,35 Pa, St.239.152, 385

 

xix
PAGE.

De Hoghton wv. Money, L. R. 2
Ch. App. 164..... 249
Deischer v. Price, 148 Ill. 383. . 149

Del. Div. Canal Co. v. Comm., 60

Pa. St. 367. .....4- 86
D.L. & W.R. Co. vw Thayer, 41
Ill, App. 192. .
De Long z. Schroeder, 45 Ill. “App.
BBG Same Ser ew) we aes 352
Delp v. Bartholomay Brew’g. Co.;,
T23 Pa AD oe eo yy coke ser 88 293
De Nicholls v. Saunders, L. R. 5
C.P.589.--....: 397
Densmore Oil Co. v. Densmore, 64
Pa, Sti4gics = 2 ae s 173

Dent v. Bennett, 4 M. & C. 269. 206
v. N. A. St. Co., 49 N. Y.390 10
Denton v. Gt. N. W. Ry. Co., 5 E.

&B.860........ II
Depeau v. Waddington, 6 Whar-
ton 21I9....... + 350

Desilver’s Est., 5 Rawle1tlr... 40
Destra v. Kestner, 147 Pa. St. 566 186
Deusen v. Sweet, 51 N. Y. 378. 41
Dewey v. Allgire, 37 Neb. 6... 41
‘v. Dupuy, 2 W. & S. 553 . 395
v. School Distr., 43 Mich. 480 574

Dexter v. Hall, 15 Wall, 9..- 41
Dey z. Prentiss, 35 N. Y.S. 563 . 403
Deyoe v. Ewen, 70 Hun. 545. . 245

v. Woodworth, 144 N. Y. 448 245

De Yonge v. Hunt, 61 N. W.341 9

Diamond Match Co. v. Roeber,

106 N. Y.473 .....

Dickinson v. Calahan’s Admrs., 19

Pa, 227 412

v. Dodds, L..R. 2 Ch. D. 463 13

v. Marsh, 57 Mo. App. 566. 318
Dickson v. Eicvaioe Co., 44 a

256

4.0. Be 44a ene ae ae ” 306
Dickson’s Admr. v. Luman, 93
Key, G14. Goce ee
ware v, Thomas, 97 Pa. St.
278 0g ay ge
Diehl v. Fowler, 30 S. W. "1086 - 94
Dilk v. Keighley, 2 Espinasse 480 20
Diller v. Eee 52 Pa. St.
HOS ae te one 209
Dilley v. Glover, 3 Jurist N. S.
637. + 333
Dillinger’s App., 35 Pa. St. 357 . 241
Dilworth v. Bradner, 85 Pa. St.
BOBS ky ie se 5
Dininedk” v. Ballets L. R. 2 Ch.
App 20s eh a woe we 8
Dingley v. Oler, 11 Fed. Rep.
372, 117 U. 8.490 . 472
Dinwiddie 2. Smith, 4o N. E. 748 94

159
174
x=

PAGE.
Dionne 2 ee 49 IIL.

Go wat ie - 246
365 * 465, 466
v. rust Co., 115 N. C. 274 . 186
Dixon Woods Co. v. Phillips Glass
Co., 169 Pa. St. 167 - 528
Dobbin v. Cordiner, 28 Am. L. R.
O54. Soe se ae ek Bee NG 60
Dodge v. Knowles, 114 U. S. 430 49
Dodson v. Taylor, 28 Atl. 316 . 370
Doe v. Roberts, 16 M. & W.778. 37
, D'Olier v. The Bank, 4 Law Gaz.
66, 1 Chester Co. Rep.

373 + 543
Dolliver v. Dolliver, 94 Cal. 642. 205
Dolph v. Hand, 156 Pa. St. 91 . 20, 24
Donaldson v, Farwell, 93 U. S.

GFE. a) Be a eae ae ae eae
Donohue v. Bank Note Co., 37

Ill. App. 552. -.-..
Donovan v. Ward, (Mich.) 59 N.

177

W. 254
Doran v. Smith, 17 Am. L,. Reg.

Ni. ped 6 6 ehaen as 34
Dorrance v. Scott, 3 Whart. 309. 48
Dorsey Mach. Co. z. McCaffrey,

38 N. E.208...... 84

Dotterer v. Freeman, 88 Ga. 479. 185

Doty v. Crawford, 39S. C.1 . . 466
Dougherty v. Bash, 167 Pa. St.

420. aR bk a 104

v. Seymour, 16 Colo. a + + 240

v. Stone, 66 Hun. 498 . 104

Douglas v. West, 31 N. E. 403 - 94

Dowden z. Cryder, 55 N. J. L.
BIG staat ies sg ev ates 68

Dowes v. Nat. Bank of Milwau-
kee, 91 U.S. 618... 2. - 383

Downer v. Thompson, 2 Hill 136,
6Hill208 ....... 457
Downing v. Funk, 5 Rawle 68 129
v. Stone, 47 Mo. App. 144. 25
Dows v. Glaspel, 60 N. W. 60. . 232

v, Green, 24 N. Y. 638 seh 1 OTT.
‘vy, Perring, 16 N. ¥. 328 . . 376
_ v.-Rush, 28 Barbour 157 . . 376
Doyle v. eeu Church, 133 N. ‘
Wiech ate ot 19

Drake v. _ Basha, 1M. & W.
ee ee ee 579
Drake v. sSeebold, 81 Hun. 178 252

Dresser v. Rwy. Construction Co.,
93 U.S. 92

Drew v. Keufer, 30 N. Y. S. 733. 90
v. Nunn, 4Q.B.D.661. —.. 5
Drummond v. Crane, 159 Mass.
STF koa see, ge vas Meo ae oS
Dubuque Nat. Bank v. Weed, 57
Fed. 513... 6 6 4 - . 576

 

TABLE OF CASES.

7 PAGE.
Duchess of Kingston’s Case, 2 Sm.
De Ce O83 ogg a je ieee
Ducker v. Whitson, 112 N.C. 44 40
Duff v. Wilson, 69 Pa. 316. . . . 393
Duffy v. Ins. Co. 8W.&S. 413 60
Duncan Z Hartman, 149 Pa. St.

114
vw. N. Y. Mut. Ins. Co., 138 N.
* Y. 88 .
v. Scott, I Campbell I0oo ..
Duncan’s App., 43 Pa. St. 67 . .
Dunne ee Herrick, 37 Ill. App.
TSO) eo oh oe ee
Dunlop v. Higgins, 1H. L. C. 381 14
Dunmore v. Alexander, 9 Shaw &
Dun.Ig0 .......
Dupee wv. Blake, 148 Ill. 453 235, a6
Durham Land etc. Co. v. Guthrie,
22S. E. 952... . 120, 276
Durnford uv. Messiter, 5 M. & S.
6

AAG oS ee ed gt Re 288
Durkee v. Moses, 23 Atl. 793 . - 260
Durrell v. Evans, 1 H. & C. 174. 121
Dutton’ v. Pool, 2 Lev. 210 . . . 132
Dwight vz. Badgley, 75 Hun. 174. 232

Dye v. Va. Ry. Co., 20D. C. 63. 74

Dyer v. Burn, 3 B. &C. 423 115
E.
Eagan v. Call, 34 Pa. St. 236 . . 162
Earl of Aylesford v. Morris, 8 Ch.
App. Cas. 484 . 213, 216
East Anglian Ry. Co. uv. R. R. Co.,
BT CiB. 975 ae es 87

Easton v. Driscoll, 27 Atl. 445. . 94

v Worthington, 5S. & R. 130, 144
Eastwood v. Kenyon, 11 A. & E.

446 . ae 133, 139, 285

Edan v. Dudfield, I ‘O.B - 302 . ee II4

Eden v. Chaffee, 160 Mass. 225 . 106
Edgell v. oo 6 Wharton

Rigas) nage meisae es hi 22
Hagerton ° oer Brownlow, 4 H. ’
Arn ee 241

Edwards v. ieee Society, 1
3 Be-D: 58° se we es 417
v Barnes, 55 Ill. App. 38 . . 69

v. Carson Water Co., 21 Nev.
469 .....4.- - 90
v. Carter, (1894) A. C. 360° . 21
v. Carter, I Repts. 48... . 24

v. Midland Ry. Co., 6Q. B.D.
287! pe hm ee 84

Egerton v. Matthews, 6 East 307 120
Egger v. Nesbit, 122 Mo. 667 8, 15:
Eggleston v. Rumble, 66 Hun. 627 231
Ehrich v, Buchi, 27 N. Y.S. 247 64
Kichbaum z. Irons, 6W. &S.67 80
Hichelberger v. Morris, 6 Watts 42 236
TABLE OF CASES.

PAGE.

Elberts v. Elberts, 55 Pa. St. 110 208
Elder _ aaron 18 Colo.

a Sy ahaa eeetel Vaan ee AS 41

Eldridge : > Hake 59 Mo. App. 84 235
Eliason v. Henshaw, 4 Wheat. 225

13, I

ee Force, 29 N. J. Eq. ie

LLP eed eaar ee meadiae 577

Elkin v, Nnblin, I5I Pa. St. 491 106

Ellen v. Topp, 6 Exch. 424. . . 510

Ellerman v. Chicago Ry. & Stock-

yard Co., 49 N. J. Eq. 217

88, 254

Elliott v. Horn, ro Ala. 348... 32
Ellis v. Barker, L. R. 7 Ch. Ap.

Cas, I04: eee se ow - 202

Elmore v. Stone, 1 Taunton 458 .
Ely v. Assurance Co., 1 Ex. D(C.
DS) SS )c. 3 ar eh he 293
Emerson v. Heelas, 2 Taunton 28 121
Emery v. Cobbey, 27 Neb. 621 . 10, 14
Pari e Tottenham, 8 Exch.
SA. a at 6 we a 329
Enders v. Enders, 164 Pa. St. 266 250
England v. Davidson, 11 A. & E.
S56 a we ple ee es 139
Englebert v. Pritchett, 26 ren
Rep. Ann.177 . 23
v. Troxell, 40 Neb. 195
24, 25, 31
Enterprise Land Co. uv. Betz, 34
W.N.C. 284 ..... 277
Ernst wv. Crosby, 140 N. Y. 364 . 240
Ernst & Godshalk v. Steckman,
_ 74 Pas <A ic 5 we) sy ae «99 Ca 315
Erskine v. Adeane, 8 Ch. App.
756 - + 107, 419
Erwin v. Myers, 46 Pa. St. 96. . 172
Eton v. Hill, 50N. H. 235. 34
Etting v. Schuylkill Bank, 2 Pa.

115

BOG) eo howe ew he 373
Evans v. Dravo, 24 Pa. St. 62. . 224
v. Evans, 20S. W. 605 . . . 240

v. Gulf Rwy. Co., 28 S. W.
(Tex.)903....... 293
v. Hoare, (1892) 1 Q. B. 593. 121
v. Morgan, 69 Miss. 328. . . 25
v. Roberts, 5 B. & C. 829 . 108
Evan’s App., 51 Conn. 435. . 146
Everhart vz. Searle, 71 Pa. St. 256 238

Everson v. International Granite
Co., 65 Vt. 658. . 2. 152

Ewell v. Pitman, 27S. W. 870. . 580

Exchange Bank v. Habhare, 62

Fed. 112. ...-. 319
uv. Rice, 107 Mass. 37 . 292
v. Third Nat. Bank, 112 U. S.
200. sk a He ee BS 288
Exchange Bldg. & Ins. Co. w.
Bayless, 21S. HE. 271 . . 237

 

xxi

PAGE.
Lx parte Bank of England, (1895)
EGE. 37 es ee 49
Baxter, (1892) 2Q.B.478.. 7
ieee 4 De Gex J. & S.

55
Exposito v. Bowden, 7 E. & B.
G2 5, , igs ee? Bc 16, 243

peer v. Reynolds, 4 Burrows

2OJOR ea ay ge te 260
Fairbanks v. Snow, 145 Mass. 153,

18, 37

Fairchild v. King, 102 Cal. 320 . "288
Fairhurst v. Loan Ass’n, 9 Exch.

422 33

Fairlee v. Herring, 3 Bingham 625 321
Fairlie v. Denton & Barker, 8 B.

& C. 395 296
Fairplay ‘Towaship v. O'Neal, 127

) Ge a eh 6

Faith v. Yocum, 51 Ill. App. 620 108

Falkner v. Lowe, 2 Exch. 595. 270
Fanning v. Gregoire etc., 16 How.

BOA ea ohne War lee ge oh 100
Farina v. Horne, 16 M. & W. 11g 114
Farley vw. Parker. 6 Or. I05 . . . 41
Farmers’ Loan & Trust Co. v. R.
R. Co., 67 Fed. 49 . . . 83
v. Toledo ‘ete. Co. » 54 Fed.
83

759 :
Vv. Wilson, 139 N. 'y. 284 ee 75
Fathergill v. Walton, 8 Taunton

BBA gown HOR we . 498
Faull v. Tinsman, 36 Pa. 108 . . 304
Fawcett v. Powell, 43 Neb. 437 . 341
Fearnley v. DeMainville, 39 Pac.

DB es ek wk Se ies) Ae ee 224
Fegley v. McDonald, 89 Pa. St.

128 . 237
Felthouse v. Bindley, WIC BN.

S. 869 .....-.-. II, 13
Fennell v. Guffey, 139 Pa. 341. . "304
Ferguson v. Harris, 39 S. C.'323 . 133

v. Rafferty, 128 Pa. 337. . - 42

Fetrow v. Wiseman, 40 Ind. 148 22
Fitch v. Jones, 85 E.C. L. R. 239. 231
Field v. Small, 17 Colo. 386... 68
Cordage Co. v. Nat'l Cordage
Co., 6 Oh. Cir. Ct. 615 . 255
Fieseler v. Stage, 86 Hun. 595 . 176, 182
Fifth Ave. Bank v. Company, 63
Hun. 629
Filson’s Trustees v, Himes, 5 Barr
452 ~ . . 245, 258
Findon wv. Parker, 11M. & W. 675 248
Finegan v. Theisen, 92 Mich. 173 208
Finlay v. Chirney, 20 Q. B. D.
(C. A)495 2 6 ne @ es
xxii

PAGE,
Finlay v. Leary, 87 Hun. 8. 207
Finney v. Apgard, 31 N. J. i. 277 «XII
Fire Ins. Co, wv. Clarke, 1 Tex.

Civ. App. 238 ..... 94
Fireworks Co. 2. Polites, 130 Pa.
St. 536. 512

53
First Natt Bank v. "Buckhannon
Bank, 31 Atl. 302 . - 365
5 Chalmers, 144 N. Y. 432 . 104
Nelson, 16 So. 707. . . - 351
. N.Y. & H.R.R., 85 Hun.

eee

160
v. Rowley, 61 N. W. (Iowa)

195 293
Schmidt, 40 Pac. 479 « ae 384
Security Bank, 63 N

BOA oo bf pce eae 403
First Nat. Bank of Cameron z,.
Stanley, 46 Mo. App. 440 354
Fisher v. Adams, 63 Fed. 674. . 84

8 ea Re

vw.
uw.

v. Bridges, 2E.& B. 118 . . 264
v. Fisher, 8 Ind. App. 665. . 231
v. Lee, 63 N. W. 442 . 238
v. Leslie, 1 Espinasse 426. . 311
v. Mowbray, 8 East 330 . . 20
v. Newark City Ice Co., 62
Fed. 569... - 534
v. Seltzer, 23 Pa. St. 308 . . II, 13
u ‘Warrall, 5 W.&S. 478. 179
Fisk v. Reser, 19 Colo. 88. . . . 105
Fitch v. Iron Nat. Bank, 145 N.
Vi AOS ewe al a as 461
v. Sutton, 5 East 230 . 137
Fitler v. Morris, 6 Wharton 405. 366

Fitzgerald ae Co. v. Fitzgerald,

137 U.S. 98
Fitzhugh vz. Deere fieak Land

Co., 81 Tex. 306 . . 89
Fitzpatrick v. Hugend. 4 Pa. Dist.
Re BOS ct mr we ae ek. I2I

v. McAndrews, 12 Pa. Co. C.
R. 353, 2 Pa. Dist. 713 . 234, 235

Flagg v. School District, 58 N. W.
ASQ so & eo ee
Fleckner os Bank of U. S, 8
Wheat. 338 ......
Fleet v. Murton, L. R. 7 Q.B.126 77
Flegal v. Hoover, 156 Pa. St. 276 431

Fleming v. Ramsey, 10 Wright

252
Flemming v. Beck, 48 Pa. St. 309
Sa ha Be 530, 532
Flesh v. Lindsay, 115 Mo. 1.
Flight v. Booth, Campbell’s Rul.
Cas., Vol. VI, p. 746; 1
Bing. 370 ie wee 157, 171
v. Reed, 1 H.& C. 703 . . . 283
Flomerfelt v. Hume, 31 S. W. 679 15
Flood v. Jackson, 2 Q. B.(C. A.)
27 +e 6 6 290

es ee ee

 

. TABLE OF CASES.

PAGE,

Florida : Passa, 44 Mo. App.
eee 180

Cent. “RP. R. Co. v. State, 31
Pla. 4B2 oa. we se we oe 245,
Flower v. London & N. W. Ry.,
(1894)2Q.B.65.... 18
Flynn v. Allen, 57 Pa. St. 482 + « 340
v. Dougherty, gt Cal. 669. . III
Foakes uv. Beer, 9 App. Cas. 605. 126
Foerster v. Squier, 19 N. Y. Sup.

6

307
Fogle v. Brubaker, 122 Pa. St.7.
Foley v. Platt, 63 N. W. 520...
Follett v. Moore, 4 Exch, (W. H.
& G.) 416
Folsom z. Ballou ae Co., 160
Mass. 561 . 461
Fonda v. Van Horne, ‘13 Wendell
G3 gece ee by as ae ad
Fonseca v. Cunard S.S. Co., 153
_ Mass. 553 9
Fontaine v. Baxley, 90 Ga. 416 . 14
Foote v. Hambrick, 70 Miss. 51. 578
Ford v. Cotesworth, L. R. 4 Q.
BT 2G ng. eis ts a aes
v. Harrington, L. R. 5 C. P.
282
v. Williams, 21 Howard 287. 71
Foreign Credit Co. v. Arduin, L.
R.5E.& lL App.64.. I5
Forman v. ey 24.N. Y. Sup.

QUT vie csc cos 5c 4 ala as 47
Forney v. Benedict, 5 Pa. St. 225 273
Forrester v. Flores, 64 Cal. 24. . 277
Fort Edward v. Fish, 86 Hun. 548 13
Forth v. Stanton, 1 Wm. Saunder’s

Rep. 280 2.8 ee 4 103, 104
Fortunato v. Patton, 25 N. Y.S.
333; 41 N. KE. 522... . 302

Fort Wayne Elec. Light Co. 2.
Miller, 131 Ind. 499 . . 452
Ft. Worth City Co. v. Smith Bridge
Co., 151 U.S. 294... 87
Foss v. Cummings, 749 Tl. 353, . 252
Foster v. Dawber, 6 Exch. 839
; wo 538, 539
v. et L. R.4 Cc. P.

v. Jack, 4 Watts 334 . . 17
Foulkes v. Hughes, 3 Ss 682 24.
Fowler v. Fowler, 4 De. G. & J.

250 2 ee ee as 425

v. Hollins, o. R. 7Q.B.€:&. 143
Fowler Elevator Co. vw. Cottrell,

38 Neb. 512 ...... 118
Fox v, Boston R., 148 Mass. 220 530

v. Mackreth, 1 L. Cas. in Eq. 238
Frame v. Coal Co. -» 97 Pa. St. 309 «78
Frankland v. Johnson, a Ill. 520 80:
Franklin v. Marsh, 6 N. H. 364. 311
TABLE OF CASES.

; PAGE,
Frazier v. D’Invilliers, 2 Pa. St.
200) ee RE ee 8 340
Freeth v, Burr, L. R. 9 C. P. 208
502, 504
Freiler v, Kear, 126 Pa. St. 470
53, 61
French v. Reed, 6 Binney 308. . 68
v. Turner, 15 Ind. 59. . 333
Freyman v. Knecht, 76 Pa, St. 141
163, 510
Friedman v. Hirsch, 63 Hun. 630 210
Friend v. Miller, 52 Kan. 139. 246
uv. Porter, 50 Mo. App. 89. . 232
Frith v. Lawrence, I Paige 434. 13
Frost v. Knight, L. R. 7 Exch. 114 472
Fryer v. Rishell, 84 Pa. St. 521 56, 59
Fuller v. Hope, 163 Pa. St. 62. . at
v. Roberts, 17 So. 359. . .
Fullmer v. Poust, 155 Pa. on 275 Be
Fulton v. Andrew, LR.7 HL,
472 :
v. Hood, 34 Pa. St. 365...
Funk v. Turnpike Co., 13 Pa. Co.
Ct. R. 385
Furniture Co. v. Warsaw Town-
ship Sch. Dist., 158 Pa.
St.35 2. fw a Hw
Furst v. Tweed, 61 N. W. 857. . 7
Furze v. Sharwood, 2Ad.& E., N.
S. 388 . .

174
244

v. Akinsville Pressed-
eee Co., 57 Mo. App.

Gabriel

BAG eae 8) Gale OS yb 61
Galbraith v. Lee 59 N.

W. 338 - . 211

Galey v. Mellon, 172 Pa. St. ‘443 « 295
Gallaghes v. Sharpless, 134 Pa. St.

ae ee ee ee 494

134
v. St. Batrick’s Church, 63 N.
W. 864 235
Gallespie v. Mather, 10 Pa. St. 28 314
Gambo v. Sunderland’s Est., 10I
Mich, 35.
Gamewell Tel. Co. v. Crane, 160
Mass. 50 254, 257
Ganson v. Madigan, 15 Wis. 144 422
Gardels v. Kloke, 36 Neb. 493. - 120
Gare v. Gibson, 13 M. & W. 623. 47
Gardner z. Buckbee, 3 Cow. 127. 551
v. Crenshaw, 122 Mo.79 .. 14
v. Joy, 9 Metcalf 177 . III
Garrard v. Haddan, 67 Pa. St. 82 345
Gates v. Dundon, 18 N. Y. Sup.
- 193, 195
236

149 5
Gaussen v. U. -- 97 U. s. 584

 

xxili

PAGE,

Geier v. Shade, 109 Pa. St. 180 . 247
Geipel v. Smith, L. R. 7 Q. B.
AOA oi en we eg mee
Geismer v. Lake Shore & M.S.
Ry., 102 N. Y. 563 .
George v. Hoskins, 30 S. W.. 406
Gerard v. La Coste, 1 Dallas 194
Gerli v. Poidebard Silk Mfg. Co.,

559
106

325

31 Atl. gor. i Iai
German Loan Soc. v. De Lash-

mutt, 67 Fed. 399 41
Germantown Brew. Co. v. Booth,

162 Pa. St. Ioo. . . . 264
Gervais v. Edwards, 6 Campbell’s

Rul. Cas. 647 Svea tah ate 537
Geyer v. Snyder, 140 N. V. 394 . 220
Ghegan v. Young, 23 Pa. St. 18 . 396

Gibbons vz. Proctor, 64 L. T. 594 II
Gibbs wv. oe Gas Co.,

130 U.S. 397... 2... 256
Gibson v. Canes 8M. & W.
BOTS eh aes ae er 384
v. Hutchins, 21 S. E. 250. . 355
v, Oliver, 158 Pa. St. 277. . 528

v. Soper, 6 Gray 279... . 4I

Gifford v. Hardell, 88 Wis. 538 . 365:
Gilkeson-Sloss Com. Co. v. Bond,

44 La. Ann. 841 «6. 249
Gill vw. Cubitt, 3 B. & C. 466 . 342

v. Johnstown Lumber Co.,
I5r Pa. St. 534....-. 507
Gilman v. Lockwood, 4 Wall. 409 a
Gilson v. Spear, 38 Vt. 311
Glass v. Murphy, 4 Ind. App. 530 Ze
Works v. Barnes & Co., 86
Hun. 374 9
Glasspool v. Young, 9 B. & C. 696 143
Glaze v. ee Ins. Co., 87 Mich.

oe eee ae 94

Gleason v. rider, 14 Pa. CC.R.
OIDs rae oad ene sy a A ds 350
v. Fitzgerald, 63 N. W. 512 . 106

Glidden z. Strupler, 52 Pa. St. 400 60
Glover v. Tousley, ior Mich. 229 5
Goddard v. Binney, 115 Mass. 450 III

v. O’Brien, 9 Q. B. Div. 37 . 137

v. R.R., 57 Me. 202... . 86
Godsall e _ Bolders, 2 Sm. L. Cas,

oe ay el . 229

Goettel : Tee 117 Pa. St. 298 . 155

Goetz v. Goldbaum, 37 Pac. 646. 69
Golding v. Golding, 82 Ky. 51 205
Gompers v. Rochester, 56 Pa. St. :

254
338

194 .
Gompertz v. Bartlett, 75 E. C. ta
. 8

49 :
Gonzalia v. Bartelsman, 143 Ill.
634 Rees - . 238

Good v, Cheeseman, 2 B. & Ad.
325
xxiv

PAGE.
Good vz. Elliott, 3 T. R. 693. 229

Goode v. Harrison, 5 B. & Ald.

159
Gooden v. Ray, 85 Iowa592. .
Goodfellows v. Campbell, 17 R. 4
cies SERA pests che soe biel 128

2gI

prac dents ls: ce: BE a 105
Vv Cohen, 132 N. Y. 205 . 105
v. Shipley, 63 N. W. 412... 64

Goodrich v. Cushman, 34 Neb. 460 240
v. Lathrop, 94 Cal. 56 . 185
v. Tenney, 144 Ill. 422. 232, 266
Goodwin v. Holbrook, 4 Wend.
80 en wee Vole a 8 ‘Oo
Gordon v. Bulkeley, 14 S. & R.
GOT hi es Roe A 73
v. Butler, 105 U. S. 553. 175
uv Gordon, 56 N. H. 170 137
v. Gordon, 3 Swanson 400 . 172
v. Preston, I Watts 385... 88
v, San Diego, 1or Cal, 522 100
v. Third Nat. Bank, 144 U. S.
Bon PR Hae See cee San ay 237
Goree v. Clements, 94 Ala. 337 . 201

Gorham’s Admr. v. Meacham’s
Admr. 63 Vt. 231... 5
Gorrell v. Home Ins. Co., 63 Fed.

371
Goss v, Peters, 98 Mich. 112 . . 89
Gotcher v. Halffner, 107 Mo. 270 182
Gould v. Emerson, 160 Mass. 438
v. Evansville & C. R. Co., 91
U. S. 526
v. Sternberg, 128 Ill. 510. .
Goulding v. Hammond, 54 a

639) ae ee I, naa

rr

Graff v. Callen: 158 Pa. St. 380 74
Grafton ki Cummings, 99 U.S.
Graham i ; Cudhan, 43, N. Y. 573 209
v. Johnson, L. R. 8 Eq. 36.

130, 306
v. McReynolds, go Tenn. 673 249

v. Pancoast, 30 Pa. St. 2 i
9, 179, 212

Grant v. E. & W. R. Co., a Fed.
569 . 83

v. Hunt, 50 E. Cc. oe ba 44 324
v. Shaw, 16 Mass. 341. 324
v, Vaughan, 3 Burrows 1516 . 325

Graves v. Johnson, 156 Mass. 211 259
Gray v. Worst, (Mo.) 31 S. W.

oer aa 455
Great Northern R. Rv. Witham,

L.R.gC. P.16.., . 127

 

TABLE OF CASES.

PAGE.
Green v. Batson, 71 Wis. 54... 421
v. Cole, 24 S. W. 1058... 14
v. Cresswell, 10 A. & E. 453. 106
v. Green, 69 N.Y. 553... 22
v. Hadfield, 89 Wis. 138. . 105
v. No. Buffalo Township, 56

Pa. St. TIO. cv 8 a ee 148
Greene v. Paul, 155 Pa. St. 126. 436
Greenfield’s Est., 14 Pa. St. 489 :
148, 207
Greenfield’s Est., 24 Pa. St. 240 208
Greenhill v. Ins. Co., 3 Rept’s 74 24
Greenough v. Greenough, I Jones
489 ...-+:-.- - 416
Greenwood v. Law, 55 N. ¥ L. ‘168 IIo
v. Sutcliffe, (1892)1 Ch.1. . 466

Greer v. Nutt, 54 Mo. App. 4. . 245
Gregor z. Hyde, 62 Fed. 107. . 188
Gregory wv. Lee, 64 Conn. 407.

18, 25, 28
Greite v. Hendricks, 71 Hun.7. 299

Grenville Co. v. Planter’s Co. 70
Miss. 669 .......
Greve v. Aftna Live Stock Ins.
Co., 81 Hun. 28... . 247
Grey v. Gooper, 3 Douglass 65 . 330
Griffin v. Piper, 55 Ill. App. 213. 252
vee ae Gebbie, 126 Pa. St.

Gulewoal Vv “Blane, 11C. B. 526 231

Gross uv. Leber, 47 Pa. St. 520. . 154
Guardians of Lichfield, 1 H. & N.
SBA cece Soe se ve LB ee ta 336

Guernsey v. Wood, 130 Mass. 503 579

Guptell v. Horne, 63 Me. a 327
Gurney v. Womersley, 82 E. C. L.

R. 132... 337
Gurney et. al. v.Behrend, 3 EB. &

By 622.6 6 «5 5 386
Guthing v. Lynn, 2 B. & Ad. 232

6, 15

Guthrie v. Anderson, 47 Kan. 383 277

uv. Ker, 4 Norris 303... . .- 132

v Murphy, 4 Watts 80... 29

Geyer v. Harrison, 103 Pa. St. 473 55
Gwynne v. Heaton, I Bro. C. C. 9 215

H.
Hadley z. pes 9 Ex. (26

Eng. L. & E.) 398 . 529, 532
Haenni v. Bieisch, 146 Ill. 262. 94

Hagey v. Hill, 75 Pa. St. 108 . 237
Haigh vz. Brooks, Io A. & E. 309. 124
Haines : oo (Cal.) 40 Pac.

sy tr es ah 436

Halberstadt v. Bannan, 149 Pa,

Sts. §L vo ae « ee aA 421
Haldane vz. On: 8 Exch. 687 445
Hale v. Garrish, 8 N. H. 374 . 22
TABLE OF CASES.

PAGE.

‘Hale v. Hale, 90 Va. 728 . . . . 118
v. Spaulding, 145 Mass. 482. 538
Hall v, Otterson, 28 Atl. 907 205
v Cazenove, 4 East 477. . . 270

. Cordell, 142 U.S. 116 . . 319

. Crowley, 5 Allen 304 - 428

. Hall, 41S. C. 163 . . . . 198

. Jones, 21 Md. 439 .... 24
Rupley, Io Barr 231 - 487
Wright, 96 E. C. L. R.
746 579, aie
Hallett v. Hallett, 34 N. E.740 . 67
Hallowell Nat. Bank z. Marston,
85 Me. 488. ...... 374
Hamer v. Sidway, 124 N. Y. 538
6, 124
Hamilton v. Armstrong, 21 S. W.
1124, 120 Mo. 597 94, 209
v Soporte Co., (1894) 3
Ch. 589 ....-..
. Gray, 31 Atl. 315 ;
. Hector, L. R. 13 Eq. 511. 250
. Lockhart, 158 Pa. St. 452. 190
. Lycoming etc. Ins. Co., 5
Barr. 339 ..... 14, Ioo
. Spottiswoode, 4 Exch. 200 311
. Watson, 12 Clark & Fin.

eeeeers

249

eicias

ee

109
-Hamlin v. Abell, 120 Mo. 188. . 77
Hammersley v. Baron de Biel, 12

C. & F. 45
Hammett v. Trueworthy, 51 Mo.

App. 281 ....... 374
Hammond v. Hopping, 13 Wend.

505 - » 228
Hanauer v. Doane, 12 Wall. 342 . 261
Hand v. Clearfield Coal Co., 143

Pa. St. 403 go
Handley v. ‘Tibbetts, 17S. W. 166 313
‘Hanehlan v. Felchlin, * 57. Mo.

App. 602! 2 Se wae x 47

BOS! ee ee ee a 351
Hannen v. Ewalt, 18 Pa. St.9. - 397
Hansard v. Robinson, 7B&C

QA eo ese aes tee ten Meet ca 579
Hanson v. Tarbox, 47 Minn. 433. 461

Hapgood v. Shaw, 105 Mass. 276 515
Harbert v. Miller, 4 W.N. C. 325 56
Hardin v. Boyd, 113 U. S. 756. . 272
Hardwick v. Pollock, 3 Pa. Dist.
R. 245 IOI, 421
Hardy Implement Co. wv. Iron
Works, 31S. W. 599 . . 299
Hardy v. Waters, 38 Me. 450 . . 38
Hargrovev. Adcock, 111N. C.166 121
Harmon vz. Clayton, 51 Iowa 36. 69
v. Harmon, 51 Fed. 113. . 42, 575
Hart v. Alexander, 2M.&W. 484
436, 438

7 o © ww we

21, 22.

 

XXV
PAGE.
Hart v. British Ins. Co., 80 Cal.
AAO 8 a 167
uv, Miles, 93 E.C. L. R. 371-131
v. Mills, 15 M. & W. 85 456
Hartford Fire Ins. Co. v. Ry. Co.,
62 Fed.gog ...... 259
Hartley v. Wilkinson, 4M. &S.
Do oyu seu gence: ov an See a 312
Hartshorn v. Hartshorn, (N. H.)
2g Atl. 406....... 461
Hartwell v. Young, 67 Hun. 472. 276
Harriman, The, 9 Wall. 161. . . 560
Harrington v. Bronson, 161 Pa,
St.296 2... 1... 74
v. Fall River Iron Works Co.,
11g Mass. 82...... 573

Harris v. Clark, 62 N. W. 854. . 131
v. Liggett, 1W. & S. 301 . 468, 485
v. Seymour, L. R. 1 C. P. 518 235
v. Tyson, 24 Pa. St. 349. . 178
v. Wall., 1 Exch.122.... 24
& Adams v. Quine, L. R. 4

O: Bs 653 eo e. 8 5
Harrisburg Balt Crab v. Athletic

Ass’n, 8 Pa, C. C. R. 337
Harrison v. Mora, 150 Pa. St. 481

v. Ruscoe, 15 M. & W. a3 a SO 7E
Harrop v. Fisher, 10 C. B. N.S.

196 3% 2 o.4 3 ae ws 327
Harseim v. Cohen, 25 S. W.977 34
Harvey wv. Ashley, 3 Atkyns607. 21

v. Facey, I Reports 428 - 5, 13
Hass v. Myers, 111 Ill. q2t 2...) 13
Hatch v. Hatch, 9 Ves. 292 . . . 204
Hatzfield v. Gulden, 7 Watts 152 245
oe v. Burnham, 59 Conn.

DUP sae io ote Sete lad 108, 277,
Havana Press Drill Co. v. Ashurst,

148 Tl. 115

Havens v. Am. F. Ins. Co., 39 N.

274

537
377

E. 40 9
Hawkins v. Cardy, 1 Lord Ray-
mond 360 3
: v. McGroarty, 110 Mo. 546 . 69
Hawkin’s App., 8 Casey 263 . . 208
Hawley v. Coal Co., 48 Kan. 593
Hayden Milling Co. v. Lewis, 32
Pac. 263. .....6-5 357
Haydon v. Williams, 7 Bing. 163
Hayes v. Doylan, 141 Ill. goo. . 94
v. Nice, 100 Mass. 327... 275
v. O’Brien, 149 Ill. 403... 15
v. Orr, 47 Fed. 286. .... 436
Haynes v, Sinnott, 160 Pa. St. 180
Hays v. Leonard, 155 Pa. St.474 55
Hayward v. Brunswick Society, 8

Q. B. D.403...... * 405
Hayward v. Tilson, 75 Me... . 290
Hazelbacker v. Reeves, 9 Pa. St.

258 vo le eee ae 273
xXvi

PAGE.
sean : wae 55 N. J. L.

Heald 2. Kenworthy, “To Exch.
(H.&G.)759..... 79
Hearn v. Kiehl, 2 Wright 147. . 137
Heath v. Coreth, 32S. W. (Tex.) 56 293
v. Doyle, 27 Atl. 333... . 273
v. West, 8 Foster 108. . . . 26

Heather v. Webb, 2C.P.D. 1. 580
Hedricks v. Whitecotton, 1 Mo.
App. Rep. 268 . . - 579

Hegemen v. Moon, 131 N. Y. 462 105
Hegler v. Faulkner, 153 U.S. 109 24
Heintz v. Pratt, 54111. App. 616. 543
Heisen v. Heisen, 145 Ill. 658. . 442
Helfensteine’s Est., 77 Pa. St. 328 13
Hellman v. Schwartz, 44 Ill. App.
84. . _ ot. + 437
Helms Peas 4 Tex. Civ. App.
9 136
Hemphill v Holford, 88 Mich. 293 208
v. McClimans, 12 Harris 367
uN 134, 284

Henderson v. Botts, 56 Mo. App.
TAT) tg 8\ cape ey re og ws 78
Henderson v. Cass Co., 107 Mo. 50 466
v. Lauck, 21 Pa. ’St. 359. . 517
Hendrick v. Lindsay, 93 U.S. 143 291

Henninger v. Heald, 29 Atl. 190. 185
Henthorn v. Fraser, (1892) 2 Ch.
Le are 14
Hentz v. Miner, 64 Hun. 636 . . 231
Herman v. Jeuchner, 15 Q. B. Dp,
56D a ae we es - . 269
Hermann v. U. S., 66 Fed. 721 - 455
Hern v. Kiehl, 38 "Pa. St. I47- +» 545
Herrick v. Newell, 49 Minn. 198 276
Herschfield vw. Ry. Co., 2Q. B.
DIV Ts, ac aaa St 2 179

Hess’ Estate, 150 Pa. St. 346 123
Hewlett v. Spring Co., 84 Hun.248 182
Hewson Oe Paxson, 36 Leg. Int.
OD teat son Pte gl oe ie Gp
Heysham v. Dettree, 89 Pa. St.
BOO secs ens 196
Hibblewhite v. McMorine, 6 M. &
W. 200

: 74°
Hick v. Tweedy, 63 LawJ. 765 . 77

Hickett v. Dixon, 26 S. W. 263 24
Hieskell v. Bank, 89 Pa. St. 159 377, 383
Higgins v. Landsigh, 154 Ill. 30% 355

uv. Lessigs, 49 Il. ALP. 459. 6

v. Senior, 8M. & W. 834. . 118
Higgin’s Case, 6 Co. Rep. 45 b. 576
Hight v, Ripley, 19 Me. 137. . . IIo
Hill v. Sughrue, 15 M. & W. 252 562

v. Miller, 50 Kan. 659 - . 204

vw Spear, 50 N. H. 253. . . 261

v. Taylor, 28S. W. 599. . . 25

 

TABLE OF CASES.

PAGE.

Hill v. Wilson, 8 Ch. Ap. 888 . . 150
Hills v. Evans, 31 L. J. Ch. 457. 425
v. Snell, 104 Mass. 173 150

Hilton v. Eckersley, 6E.&B.47 252
Himrod v. Bolton, 44 Ill. App. 516 306
Hind v. Holdship, 2 Watts 104. 126, 292
Hinely v. Margarity, 3 Barr. 428. 22
Hinsdale v. Miles, 5 Conn. 531 . 360
Hinton v. Greenleaf, 113 N. C.6 237
Hirth v. Graham, 50 Oh. St. 57 . 108
Hitchcock v. Coker, 6 Ad. & E.
438 we ee ee eee 255
Hoare vw. Rennie, 5 H. & N. 19
- - 497; 498, 500, 502, 503, 507
Hobbs vw. McLean, 117 U.S. 567 . 300
v. Whip Co., 158 Mass. 194 . Io
Hochster wv. De La Tour, 2 E. &
B. 678, 22 Ll. J. (Q. B.)
455 +e ee 471, por 475
Hocker v. Jamison, 2 W. & S. 438 329
Beene v. poe 158 Pa. St.

107 - + + + 471, 525
Hodges v. Cook, 93 Mich. 577. 205
v. Steward, 1 Salkeld 125 . 325

Hodgson Vv. Temple, 5 Taunton ‘181 260
Hodson v. Eugene Glass Co., 40
ING Hs OFT so. Ge Gee
Hofflin v. Moss, 67 Fed. 440
Hoffman z. Bloomsburg &S.R.
Co., 157 Pa. St. 174 14, 452, 526
Hogg v. Longstreth, 97 Pa. St. 255 I40 -
Holbrook wv, Ins. Co., 86 Iowa 255 455
Holden v. Banes, 140 Pa. St. 63. 59
Holeman v. Johnson, 1 Cowper

341
232

265

341
Holliday v. Atkinson, 5 B. & C.
501 3
Holly Mfg. Co. v. New Chester

Water Co., 48 Fed. 879 . 290
Holme v. Brunskill, 3 Q. B.D.
495 8 Ge SE 233
Holmes v. Bailey, 92 Pa. St. 57 . 380
v. Bank, 87 Pa. St. 525 . . . 380
v. Bell, 3 M.&G. 213 .. 576
ae Marshall, 10 H. L. C.
Se oe Rue obs fortes. & 298
Holt z. Crees, 73 Pa. St. 198 223
v. Holt, 57 Mo. App. 272 . . 108

v. Ward, 2 Strainge 937. . 25
Honck v. Muller, 7Q. B.D. 92.
Honeyman v. Marryatt, 6H. 1,

15
Hooper v. Williams, 2 Exch. 18. 316
Hopkins v. Cockerell, 2 Gratt. 88 272
v. O’Kane, 36 W. N.C. 475. 231
Horback v, Reeside, 6 Whart. 47 314
Horne v. The Midland Railway
Co, L.R.8C. P. 131. 530.
Horner v. Thwing, 3 Pick. 492. 33
Horsfall v, Thomas, 1 H. & C. 90 182
TABLE OF CASES.

PAGE.

Horstmeyer vz. 5 Connon 56 Mo.
PP-1I5. 6 oi es
Horton v. McKee, 68 Fed. 404
Hosler v. Hursh, 151 Pa. St. 415.
Hosli v. Yokel, 57 Mo. App. 622.
Hotchkiss v. Wooden Ware Co.,
53 Fed. 1018...
Hotel Co. v. Montefiore, L. R. I
Exch. Iog .
Houck v. Smith, 46 Ii. App. 64.
Houldsworth v. Bank, 5 BEE
Gas: 317 6 ee ws
Houlton v. Dunn, 61 N. W. 898 .

v. Manteuffel, 53 N. W. 541.

Housatonic Nat. Bank v. Foster,
32 N. ¥.S. 1031... .
House v, Adams, 48 Pa. 261. . .

v. Alexander, 105 Ind. 109 .
Houser v. Lamont, 55 Pa. St. 311
Howard vz. Daly, 61 N. Y. 362.

v. Mfg. Co., 139 U. S. 338 .
Howell v. Graff, 25 Neb. 130 . .
Howland v. Carson, 15 Pa. 453 .-
Howley v. Knight, 14 0. B. 240.
Hoy v. Grenoble, 34 Pa. St. 9.

v. Holt, 91 Pa, St. 88...
Hoyle v. Hoyle, (1893) I Ch. 99 -
Hoyt v. McLagan, 87 Iowa 746 .
Hubback wv. Ross, 96 Cal. 426 . .
Hubbard v. Cummings, I Me. 11

v. Greeley, 84 Me. 304
Hubbard v. Mosely, 11 Gray 170.
Huckenstein v. Kelly & Jones Co.,

I52 Pa. St. 631.
Huddell & Seitzinger, ex parte R.
D. Wood & Co. 8 W.N.
C. 407.
Hudson v. White, 17 R. I. 519 .
Hughes v. Large, 2 Pa. St. 103 .
Hugnenin v. Basely, 14 Ves. 273 .
Hulse v. Bonsack Machine Co., 65
Fed. 864
Humble v. Hunter, 64 H. C. L. R.

v. Miitenell, A. &E. 46.

Humboldt Min. Co. v. Am. Co. as
62 Fed. 356
Humfrey v. Dale, 7 E. & G. a
E.C. L. R.) 266. .
Hunt v. Conrad, 47 Minn. 557 .

v. Gray, 35 N. J. L. 227.

v. Hunt, 94 Ga. 257 .

vy. Hunt, 4 De Gex F. & J.

BB a bs eee ae

y. Rousmaniere’s Adm., I

Peters I. - . . ess

Huntly v. Huntly, L. R. 8 Q. B.
TTD ob. Ses! ca. a va ees a

Hunter v. Land, 81 Pa. St. 296.
v. Moul, 98 Pa. St.13 .. -

- 536

544
108

84

12
55

183

245
20

128
366
31
276
14
534
75
319
83
534
- 564

94

26
94

315
433

349
276

+ 335

200

254

78
III

89

77
307

. 578
190

241
146
248

536
462

 

XXVii

PAGE,

Hunter v. Nolf, 71 Pa. St. 282. . 245,
v. Walters, 7 Ch. 75 150.

Huntingdon v. Saunders, 64 Fed.
476 579:
Hurd v, Curtis, 19 Pickering 459 . 402
v. Doty, 86 Wis.1 .. 2... 267
Hutchinson v, Boggs, 28 Pa. St. 294 265
v. Bowker, 5 M. & W. 535 - 8,9

v. Hutchinson oe 61 N.
W606 a ee ww 461

TOO. sires Gs ab santo sig es ce ek
v. Warren, 1 M. & W. 466 .
Hyde v. Wrench, 3 Beavan 334. 8

I.

Ice Ass’n v. Andrews, 24 N.Y. S.
611, 71 Hun. 74 .. 467

Imp. Loan Co. v. Stone, (1892) QO.
Be509 «45 Fae aes 43

Ind. Cabinet Co. v. Hermann, 7
Ind. App. 462...

Ind. Mfg. Co. v. Haye 155 Pa.
St. 160 Io.

Ind. Nat. Gas Co. z.  Kibby, 135
Ind. 357

Industrial Trust Co. v. Weakley,
15 So. 854

Ingham v, Primrose, 7 C. B. N. S.
82

365.

oe ee ee

Inman v. Johnston, 25 N. Y. Sup.
IlIq4. .
In ve Agra & Masterman’s Bank,
L. R. 2 Ch. ok — a 305
Andrew’s App., L. R. 8 Q. B.
153 249
Brown, 2 Story Rep. 502 « 364
Butterfield, 146 N. Y. 78 . . 133
ic ari Estate, 7 Barr obi )

105,

aoe
R. Te sion eee ad ve " 279
Dunlevy’s Estate, 10 Pa. C.

CLR. 454 5
Empress Engineering Co., L.

R. 16 Ch. D. 125. . . 72, 293
Goddard’s Est., 29 Atl. 634 . I40
Hartranft’s Est., 153 Pa. St.

530
Hatton, 7 Ch. App. Cases 723 544
Hodson’s Settlement, 8 Rept’s

B46 2 ke ‘ 24
Jones Est., 24 N. Y.S. 706 . 60
James’ Est., 28 N.Y. S. 992 133
ee 70 Law T. (N: S.)

a in eg ST Oe ee Ue 459
Lealav, 6 Benedict 175 326
Ledrick’s Est., 68 Hun. 396. 95
Lum Lin Ying, 59 Fed. 682. 240
xxviii

PAGE.
Jn ve Mosser’s Est., 161 Pa. St. 469 73
Murray’s Est., 2 Pa. Dist.
GBT oo HL 249
Printing & Numerical etc. Co.

v. Sampson, 19 Eq. 465. 250
Rohrbacker’s Est., 12 Pa. Co.
Ct. Rigg8 2. sw we 212

Sanborn, 148 U.S. 222... 6
Seymour, 83 Mich. 496 . - . 90
Soltykoff, (1891) 1Q. B. 413. 31
Souder’s Est., 169 Pa. St. 239 aus
Starr,56 Fed. 142 .....
St. Mary’s Church, 7S. & R.

GLF ies eb) ba a
Universal Non-Tariff Fire Ins. a

L. R. 19 Eq. 485 167
bia Trust, 2 De G. oT &S.

365 299
Ins. Co. v. Grant, 4 Exch. Div. 216 14

v. Leslie, 47 Oh. St. 4og  . . 168
v McCain, 96U.S.84... 75
v. Morse, 20 Wall. 445 « « 247

v. Quinlan, 53 Mo. App. 357. 7
International Bank v. Vankirk, 39

Ill. App. 23... 264
Investment es v. Harris, 40 N.
1072 25
Ionides v. Ins. Cay. Ly R.6 2. B.
6746 Be Ce ew oe 280
v. Pender, 9 Q. B. 5, 167
Iron City Nat. Bank a 3 McCord,
139 Pa.52....... 313
Irvin v. Irvin, 32 Atl. 445 . . 226, 240
v. Irvin, 142 Pa. 272... . 421

Irvine v. Irvine, 9 Wall. 617 . 20, 22, 24
' v, Watson & Sons, 5 Q. B. D.

102 Gos Ana awe we 79

Irwin v. Miller, 110 U. S. 499 . 229, 231

Isham v. Therasson, 30 Atl. 969. 15

J.
Jackson v. Hudson; 2 Campbell

BAP 6 ea ab ek ww 318

v. Jackson, 30 Atl. 752... 240
v. Lynn, 62 N. W. 704. . .
v. Poe i Lord Raymond

& SoMa hee annem te 324

vw oe 28N.Y¥. Sup. 147. 5

v. Rowley, 88 Iowa 184... 94

v, Tatebo, 3 Wash. 456. . . 198

Jaffray v. Davis, 124 N. Y. 164
137, 164, 538
Jamieson v. Ind. Nat. Gas. Co.,
w28Ind.555.-...-.- 565
Jaros Underwear Co. v. Fleece
Co., 65 Fed. Rep. 424. . 551
Jefford’s Admrs. v. Ringgold, 6
Ala. 5. 24
Jenkins v. Collard, 145 U.S. 546 95

 

TABLE OF CASES.

PAGE.
Jenkins v. White, 147 Pa. St. 303 374

v. Wilkinson, 113 N.C. 532. 327
Jenness v. Mt. Hope Iron Co. 53
Mei :20) he ee en 15
Jennings v. Dunham, 1 Mo. App.
DOS gn ee kee ay Seok 116

v. Rundall, 8 Term Rep. 335 33
Jermyn v. Mofitt, 25 Smith Pe, 308
Jervis v. Berridge, L. R. 8 Ch,

App. C
Jessop z. Ivory, 355 Pa. St.71. . 421
ager a Cent. Ry., 43 Fed.

qemclew ee v. De Forest, 80

Hun. 376 .....-. I
Jewett Pub. %, v. Butler, 159
Mass. 517 -.-..... 232
Johanson z. Bretcnads, 154 U.
pr O25 ie kates eR a 179
Johnson 2 Armstrong, 83 Tex.
éMembaroer 198. W. (Ark.)
920) ff. ee a as 290
v. Collins, 1 East 98 . . . . 319
v. Fessler, 7 Watts 48... 6
v. Gallagher, 3 De Gex, Fisher
& Jones 494......-. 49
v. Hulings, 103 Pa. St. 498 . 225
v. Hunt, 81 Ky. 322... . 251
uv. Life Ins. Co., 56 an 365 25
v. Lines, 6 W. &'S. 8 . . 28, 30
v. Merritt, 50 Minn. a3 » + 455
v. Meyers, 54 Fed. 417, 4 C.
GA 309. os a Se 455
Johnson Co. v, Wharton, 152 U.
Si 252 6 6 aw 551
Johnstone v. Mappin, 60L. J. Ch.
BAT? ds ce set ance Bees eS 107
v. Marks, 19 Q. B. D. 509. . 29

v. Milling, L. R. 16Q. B. 460 473
v. R.& D. R. Co., 178. E. 512 148
Jolly v. Rees, 15 C. B. N.S. 628 65
Jonassohn v. Young, 4 B. & S. 295 500
Jones v. Ashburnham, 4 East 463 128
v. Bacon, 145 N. Y. 446. . . 106
v. Bldg. Assn, 94 Pa. St. 215 182
v. Burden, 56. Mo. App. ne 341
e Daniel, 8 Reports 579 . 9
v. Edney, 3, Campbell 285 , » 71
v. Green, 31 S. W. 1087. . 108

v. Gordon, L. R. 2 App. Cas.

OIG) 6b earch oe se ee 352
uv, Jones, 6 M. & W. 84. . . 277
v, Just, L. R.3 Q. B. 197 . . 519
v. Lowery Bkg. Co., 16 So. 11 302
v. Merionetat ire Bldg. Soc.,

(1891) 2 Ch. 587 . . 246
v. Shuey, (Cal.) 15 So. O45 . 466
v. Stanley, 76 N. C. 355 . . 290
vw U.S.,96 U.S. 24. 1. . 525
TABLE OF CASES.

PAGE.

Jones v, oo I Paine’s C. C.
Suits Bode Bodies Sos ts 295
Jordan a Stott, 12 W. N. C. 150
189, 202
Jorden v. Norten, 4 M. & W. Tee 7

Joseph v. Smith, 39 Neb. 258. « « 105
Jonna Kingsford, 13 C. B. N.

Se AAT: Sie we ae we we 520
Joy uv. Metcalf, 161 Mass. 514. 249

Joyce z. Swann, 17C. B. N.S. 84 15
Judd w. Harrington, 139 N. Y. 105 252
v. Weber, 55 Conn. 267 . 180
Judson v, Corcoran, 17 Howard 612 300
Judy wv. Sas 48 Oh, oe
ee ee eee 140
Julian wv. aes 2Wils.9. . 323
Junction R. R. wv. Cleaneay, 13
Ind. 161. .......
Juniata cies Hale; 168. & R.
- + + 365, 375
Justice é eos 2 Exch. 595. - 5
Justice v. Tallman, 86 Pa. St. 147

K.

326

292

Kadish v. Garden City Ass’n, 151

Dy S38 5 oe a 8 89
Kahn v. Pickard, 5 W. N.C. 537 59
Kain v. Bare, 4 Ind, App. 440. . 225
Kane v. Fisher, 2 Watts 246. . . 555

Karcher v. Green, 8 Houst. 163. 36.

Kase uv. Getchell, 21 Pa. St. 503 .
Kealis v. Lyon, 4 Ch. 218. . .
Keane zw. Boycott, 2 H. Blk. 511
20, 124
Keates . ae Cadogan, 10 C. B.

367
407

aches Si daee ten 8B cee 177
Keeler v, easier 53 Pa. St. 567. 254
Keen v. Coalman, 3 Wr. 299. . 34, 48

Keener v. Zartman, 144 Pa. St. 179 274
Keep & Hale v. Goodrich, 12

Johnson 397 ...... 127
Keiper v. Miller, 68 Fed. 627. . 249
Keir v. Leeman, 6Q. B. 21 . . . 246
Keith v. onsite, 3 Tex. Civ.

App. 391. ....0-205 246

PP. 3'
Kellar e “Brlderman, Ir Mich.

oe os 6
Keller 7 Sacre 46 Pa, St. 135 492
Kelley z. Greenough, 9 Wash. 659 319

Kelley v. Post, 37 Ill. App. 396 . 236
Kellogg v. Kellogg, 40 Pac. 358. 205
Kelly v. Kelly, 86 Wis. 170 . 249
v. Solari, 9 M. & W. 54. 147
Kelly’s App., Io8 Pa. St. 29. . . 213

Kelner v. Baxter, L. R. 2 C. P.
T7As se isa 28 I, 80, 293

Kelsey v. Hobby & Bond, 16
Peters 269....... 188

Kemble v. Farren, 6 Bingham141 428

 

XX1X

PAGE,

Kempner v, Cohn, 47 Ark. 519 . 13.
Kendall v. Hamilton, 4 App. Cas,

504) uaa Pe ee a 78
Kendrick v. Visage, 88 Ga. 275 . 433
Kennedy wv. Baker, 159 Pa. St
TAG i og sah te ee 20, 24, 26.
v. Brown, 13 C. B. N. S.

O77) os) wa BR ha S 17, 281
v. Gramling, 33 S. C.. 367. . 9:
v. Hudkins, 4oN. FE. 52... 24
v. Panama etc. Co., L. R. 2

QO. Bi 586) gk ee we 152:
v. Siemens, 120 Mo.73.. . 15.

Kennett v. Chambers, 14 How. 38 244
Kenwood Bridge Co. v. Dunder-
dale, 50 Ill. ae 581 528, 560-

Keppell z. Bailey, 2M. &K. 517. 400.
Kern v. Kern, 26 Atl. 837. 47
Kerr v. City of Corry, 105 Pa, St.

282 .. go
Kidd v. Boone, L. R. 12 Eq. “89 . 576-
Kidder v. Kidder, 33 Pa. St. 268 .
431, 538-
Kiehne v. Wessell, 53 Mo. App.
6

ae ee eae 42:
Kilduffe a Maitland, 12 Pa. C. C.

OZ) gi. Ferg ig ates ay 146.
Kimball, Ree 3 Wallace 37. 461
Kimberly v.Jennings ..... 537
Kimble v. Keene. ....... 537
Kincade v. Cunningham, 118 Pa.

St, 5§0ls «2 ee sa 61
Kincaid v. Kincaid, 85 Hun. 141 24
Kinder v. Brink, 82 Ill. 376... 14
King v. Box, 6 Taunton 325 . . 316.

v. D. M. & N. Ry. Co., 63 N.

W.II05. . 1... eee 137

v. Faist, 161 Mass. 449 ... . 436:
v. Gillette, 7M. & W.55. . 431
v. Holmes, 11 Pa. St. 456 . . 361
v. Hurley, 85 Me. 525. . . . 370:
v. Spaeth, 25 Atl. 257... . 155,
v. Stewart, 66 Law T. 339. . 147
v. Thompson, 87 Pa. St. 365. 51

Kingsley v. Davis, 104 Mass. 178. 78.
Kingston v. Long, Bayley on Bills
6

TG> a)! re ih aa lee Ges 312
Kinyon v. Kinyon, 72 Hun. 452. 299:
Kirkpatrick z. ee 28 N.

Y. Sup. 93 74
Kirschner v. Kirschner, 113 Mo.

290...--- 210:
Kirwan v. Byrne, 29 So. “287 ; 8

Kithcart v. Larimore, 34 Neb. 273 201
Kittel v. Stueve, 31 N.Y. Sup. 821 120
Klein v, Tuhey,(Ind.) 40 N. E. 144 455

Klieforth v. Slate, 88 Wis. 163. 454
Kline uv. Jacobs, 68 Pa. St. 57 . 393

v. Kline, 57 Pa. St. 120. . . 62
Kluse v. Sparks, 36 N. E. 914. . 108,
xxx

PAGE.
Knappen v. Freeman, 47 Minn.

AGQY i se 6% 184
Kneedler’s App., 92 Pa. St. 428. 42
Knight v. Hawkins, 93 Ga. 709. 237

v. Mann, 118 Mass. 143 . . I13
Knorr v, Bates, 33 N. Y. Sup. 691 247

Knott wv, Tidyman, 86 Wis. 164. 355
Knox v. Flack, 10 Harris 337... 37
Kooker z. Williams, 51 Leg. Int.

QIQ se tS eke eS 55

Kountz v. Kennedy, 63 Pa. St. 187 578
Kramer v. McDowell, 8 W. & S.

DBS esl ilo. cia WEE ee, Ba 370

v. Winslow, 154 Pa. St. 637. 238

Krieger v. Smith, 33 Pac. 937. . 63
Kriz v. Rad Pokrok, 46 Til. App.

AIS oes ea: ae Nis 237
wie Piteairn, Ior Pa. St.

JAE, ics tere Steyn abe aaa 80
Krombhare v. Griffiths, I51 Pa. St

ee a a + + 209

Kuhn’s Est, 163 Pa. St. 438 - 299

Kyle wv. Kavanagh, 103 Mass. 356 155

Kyte v. Kyte, 8 Kulp. 1. . 94
K. X. uv. A. Y., 34 W. N. ‘c
Y TAS ake ae Be ec ae ea ee as 132
L.
LaBlanche v. London N. W. R.
R. Co., C. P. D. 286. 12
Lacey v. Getman, IIg N.Y. I09. 412
Lachman vz, Irish, 72 Hun. 491. 104

La Campania de Navegacion z.
Light Co., 146 U. S. 483. 69
Lacy v. Pixler, 120 Mo. 383. . 23, 25
Ladies’ Aid Soc., 4o P. L. J. 10s . 58
Laidlaw. v. Organ, 2 Wheaton 178 177
Lainson v. Tremor, 1 A. & E. 214 95

Lakeman v. Pollard, 43 Me. 463. 574
Lalfield v. Manrow, 13 Pa. Co. Ct.
R.497.-.-..-. cae

AL 14 . ear ee 165
Lambert z. Oaks, I Ld. Raymond

WAI ai ie ee eg ae oN ae
Lamberton z. Dunham, 165 Pa. St.

I2Q 22 2 3 4 158
Lamborn a Co. Com., 97 U. S.181 147
Lamar wv. Craddock, 37 Pac. 950. = 5
Lampleigh 2, Braithwait, Hobart

165) 8 6 sie a 138, 139, 140
Lancaster v. Dolan, I Rawle 231 = 49
Lancaster Bank wv. Taylor, 100

Mass: 18.0 ag ode ee ws 8 328
Lanahan v. Heaver, 29 Atl. 1036 oa
Landa vu. Obert, 5 Tex. Civ. App.

620 es eta a ake 192
Land Co. v. Sandford, 24 S. W.
BOT ise eo WS arta aah nis vet Sony z9 23

 

TABLE OF CASES.

PAGE.
Landell v. Hamilton, 34 Atl. 663 403
Landon v. Brown, 160 Pa. St. 538 94
v. Hutton, 50 N. J. Eq. 500 . 431
Lane v. Corr, 156 Pa. St. 238 . . 80
Llanelly Ry. & Dock Co. v. Lon-
don & N. W. Ry. Co., L.
RK. 7 E. & I. App. 550 . - 556
Lanford v. Mut. Acc. Assn., 86
Hun. 380 247
Lang v. — Ry. Co., 154 Pa. St.
44.
181

AD tea ois, 54. BEN Ge see a
Taiesdee v. Levy, 2 M. & W.

260
428

519

Langton v, Hu ‘hes, 1M. &S. 593
Lansing v. Dodd, 45 N. J. L. 525
Lantern Co. w. Stiles Co: » 135 N.
Y.209.........
Larmon v. Knight, 140 Ill. 232 .
La Ron z. Gilkeson, 4 Pa. St. 375 46
La Rue v. Groezinger, 84 Cal. 281
Lauman v, Leb. Val. R. R. Co.,
30 Pa. St. 42 83, 88

Laurence v. Fussell, 77 Pa. St.
460 . 332

Lawrence v. McArter, Io Oh. St.
37 . . 18, 137
vw ail reakee etc. Co., 54 N.

v. on 1 % & W. R. Co., 84
Wis. 427
v. Porter, 63 Fed. 62 .
Lawson v. Lovejoy, 8 Me. 405. 23
Lazzarone v. Oishei, 21 N. Y.
Sup. 267. ......
Leach v. Leach, 65 Wis. 284 é
League v. Warring & Co., 85 Pa.
- St. 244:
Leahey v. Witte, 123 Mo. 207.
Leaming v. Wise, 73 Pa. St. 173 .
Leask v. Scott Bros., 2 Q. B. Div.
376 131, 384
Leather Goth Co. v. Larsont, L. ~
R. 9 Eq. 354......- 253,
Leavitt v. Stems: 55 lll. App. 416 419
Lebanon lace v. Mangan, 28 Pa.
DEAS os sey sae 311

187

S..17
Lee v. Griffith, 1 Best & Smith
272 . Ifo
v. Jones, 17 C, B. N. s. 482 . 17G
v. Muggeridge, 5 Taunton 36 133
Leeds Bank v. Walker, 11 QO. B
DBA ag aunts eh he 577
Lehr v. Beaver,8 W.& S. 102. . 63
Leidy v. Tammany, 9 Watts 353 334
Le Lievere v. Gould, (1893) 1 Q.
B. 491 .
Hemiouete v. Lange, 12 Ch. D.
75
TABLE OF CASES.

PAGE.
Le hi ps Le Fevre, 4S. & R.
Le Ray det Chaumnak v, Forsythe, ba
2P. & W. 507 3
Leroux v. Brown, 12C. B. 801 . 121, 275
Leskie v. Haseltine, 155 Pa. ot
a aah en es ee 12

29 APG Been etl ehh aon 20

PT es dk an cteh yaeh te as 6g 26
Levens v. Baines 21 Or. 333... 3 267
Levering v. Highee, 2 Md. Ch.
Dees. 88) 3.2 kk as 24
- Leveroos v. Reis, 52 Minn. 259 . 264
Leverson v. Lane, 13 C. B. N.S.
278 ly is ee 356
Levey v. N. ¥.C. & H.R. R,,
24N. Y. Sup.124 ... 12
Levey v. Green, 8 E. & B. 575 - 456
Lewis, v. Brookdale Land Co.,124
Mo. 673 183
Browning, 130 Mass. 173. 14
Gollner, 129 N. Y. 227. . 254
Gompertz, 6 M. & W. 400 368
Lumber etc. Co., 156 Pa.
Sty 217) we bw ea
Nicholson, 18 Q. B. (83 E.
“Cys Re) 503 aos ge 8 80
v. Yagel, 28 N. Y.
; Hun. 337 ..++.. 467
Lewis, Est., 156 Pa. St. 337... 50
Lichtenfels v. The Enos B. Phil-
lips, 53 Fed. 153 . . . . 466
Lickbarrow v. Mason, 2 Sm. L.
Cas. (9th ed.) as 152, 384
Life. a re v. Cory; 135 N.

104

s

Liggett 2 *emithh, 3 Watts 331
447, 494
v. Myers Tobac. Co. v. Col-
, lier, 56 N. W. 417.
Lightner v. ‘Will, 2W.&S. 141.
Lilly v. Person, 168 Pa. St. 219 .
Lincoln v. Buckmaster, 32 Vt.
652

113
363
578

App. 1 (6 eee hs
Lind v, Linhardt, 29S. W. 1025 198,205
ean v. Simpson, 45 Ill. App.

Sah aah deer 8 106

Linneman v. Moross, 98 Mich.
Sp hoot see 292

Lippincott uv. Leeds, 27 P. F.S.
5, see oy ast cae tee a 52, 55

422
Little wv. Slackford, Moody &
Malcolm, 171 - - 311
Liversidge v. Broadbent, 4 H. &

N. 60
Livingston v. Cox, 6 Barr. 360. . 32

L. & S. W. Rwy. v. Gomm, L. R.

 

xxxi
PAGE.

Livingstone v. Livingstone, 2
Johnson’s Ch. 537... 63
Lloyd v. Fulton, 91 U. 8. 479. . 107
v. Hollenback, 98 Mich. 203. 279

v. Sigourney, 5 Bingham,
di de hs oa wach, wa Sad 355

525
L. N. A. etc. Ry. Co. v. Herr, 135
Ind. 591. ..-..--. 39
Lobdell v. Hopkins, 5 Cowen 516 450
Lockhart v. Bonsall, 77 Pa. St. 53 458
London Joint Stock,Co. v. Mayor,
EGP. Dsl «ye sas 84
Lonergan v. Buford, 145 U.S. 581 193
Long v. Caffrey, 93 Pa. St. 526°. 514
v. ear IW. &s.
ee cee 393
vw Miller, 4 c P, D.456. .. 417
vw Thayer, 150 U.S. 520 .. 75
Longnecker vy. Shields, 1°Colo.

App. 264........ 263
Los Angeles Nat. Bank v. Wal-

lace, 36 Pac. 197 . . - + 374
Lothian v. Lothian, 88 Ia.396. . 15
Lovelock v. Franklyn, 8 Ad. &

Eng N.S: 370 a we ae 482
Loveren v. Loveren, 39 Pac. 801 . 240
Lovering v. Buck Mountain Coal

Co., 54 Pa. St. 291 . . . 570
Lowber v. Bangs, 2 Wall. 728. . 524
Lowe v. Hamilton, 132 Ind. 406. 106

v. Peers, 4 Burrows 22. 251
v. Springs Co., 47 Mo. App.

ADO shed ay de Oe v9 77
Lowey v. Granite etc. Ass'n, 28

N. Y.S. 560. ...-- 223
Lucesco Oil Company v. Brewer,

66 Pa. St. 351 .....- 505
Ludlow v. Hardy, 38 Mich. 690. 284

Ludwig’s App., Iot Pa. St. 501 . 61

Luken’s App. 143 Pa. St. 346 . . 136
Luker v, Dennis, L. R. 7 Ch. D.

BD os dogs as an tae Be ey a age 404
Lumber Co. v. Cain, 70 Miss. 628 I00
Lumley v. Gye, 2 E. & B. 216. . 289

v. Wagner, I DeG., M. & G.

604. we 4 os Bw He 537

Lumsden’s Case, L. R. 1 Ch. 31 . 21, 22

Lungerhousen v. Crittenden, 61
N. W.270...++--. 7

Lunn v. Clark, 56 Minn. 278 . 245
Turch v. Holder, 27 Atl. 81... 185
Lutton v. Grey, 9 Reports 168. . 106
Lyle v. Shay, 165 Pa. St. 637 . . 185
vy, Wilson, 23 W. N. C. 309 . . 518

Lyndon Mill Co. v. Lyndon Inst.,

63 Vt. 58t «2k 6 wee go
Lyon v. Hussey, 82 Hun. 15 . 246, 249
Lyons v. Divelbis, 22 Pa. St. 186 339

20 Ch. D. 362 406
xxxii

M.

PAGE.
coe y cola 29 S. W.

SAE a Bea bob eo oe 97

Mackinley : v. McGrefor, 3 Whart.

269) fos) sow ea Ra a 264
Maclary v. Turner, 9 Houst. 281 115
Macknet vw. Macknet, 29 N. J. 54 146
Macomber v. Macomber, (R. I.)

BY Ath: 753 5) die se 461
Mactier’s Admrs. wv. Fritte, 6
Wend. I03....... 14

Magee es peas Ins. Co., 92
dat ween a ee 8 170
Maher v. Neue Co., 86 Wis. 530 433
Mahoney v. Kent, 28 N.Y. Suz up.
TQ: os ty ek Wt Gy es 77
v. Rector, 47 La. Ann. 1064.
Makin v. Watkinson, lL. R. 6

Exch.25... - 513

Mallan v. May, 11 M. & W. 655. 254
Mallory’s Admr. v. Mallory’s

Admr., 17S. W. 737 . . 107

Malone z. Ice Co., 88 Wis. 542 . 105

v, Keener, 44 Pa. St. 107 . . 105
ear ees . Co., 157 Pa. St.

Byler are Seen ome oe, IOI

Matitgeut ‘Scott ISid. 109... 65

v. Scott, 2Sm. 1. Cas. 456 . 46

Manchester Pipe Co. v. Moore, 104

N. Y.680 ....... 422
Mandeville v. Welch, 5 Wheaton

277 308

Maness v. Henry, 96 Ala. 454. 431, 432

Mangles v. Dixon, 3 H. L. C. 735 303
Mann v. Edinburgh etc. Co.,(1893)

As'Ci99 ¢ o-e me a 9
Manning v. Perkins, 85 Me. 172 249
v. Riley, 52 N. a Eq. 39 . . 107

Mantz v. Maguire, 62 Mo. App.
236

23 9
Marbury wv. Sand Co., 62 Fed. 335 88
Market Co. v. Kelly, 113 U. . x99 130

U. gl Orleans, 47 La. A
ee oe 560
Mark’s Hom v. Russell, 4o Pa.
' St. 372
Marsh v. Hutchinson, 2 B. &P.
232 ..
v. Rouse, 44 N. 'Y. 643...
Marlin % Kosmyroski, 27 S.

455

1042
Marquis of Bute v. Thompson, 13
M. & W. 487. ..... 562
Marriott v. Hampton, 2 Sm. L.

Cas. 421... 6 ee ee 195

 

TABLE OF CASES.

PAGE..
Marsden v. Moore & Day, 4H. &

N.500......6+--. 491
Marshall vw B. & O. R. R., 16

How. 3144 ...... 245,

Vv Cece. 52 Ill. App. 42. 365

v. Green, 1C. P. D. 35. . . 108.

v. Rutton,8T.R.545 ... 47

Marston v. Allen, 8 M. & W. 494 329.
v. Bigelow, 150 Mass. 45 . 291
v. Singapore Rattan Co., 39
NE 1 185;

Martin v. oo ay Pa, St. ‘459
IOI, 416
v. Chauntry, 2 Strange 1271. 312
v. Fitzgibbon, 17 Ch. D. 454 = 49.

Martin v. Murphy, 129 Ind. 464. 255

Martinez v. Moll, 46 Fed. 724. 210.

Marx v. Drefus, 26 8.W. 232. 4. 351

v. McGlynn, 88 N. Y. 357. . 208.
Mascolo v. Montesanto, 61 Conn.

SO, di sae Re are a ne 188.

Mason v. Barff, 2 B. & Ald. 26 . 322

uw Douglass, 6 Ind. App. 558 461

v. Eldred, 6 Wall. 231 547
v, Frick, 105 Pa. St. 162 . . go
v. Wright, 13 Metcalf 306. . 31
Massey v. Wallace, 32 S. C. 149. 240
Master v. Miller, 2H. Bl. 140. . 577

Masterton v. The Mayor of Brook-
lyn, 7 Hill 62 a
Masury wv. Southworth, 9 Ohio St.
340 94-
Mathonican ». Scott, a Tex. 396 76:
Matthew v. Baxter, L. R. 6 Exch.
re ee . 47
Matthews v. McStea, o1 U. S. 7. 17
v. Sharp 99 Pa. St. 560 » 428.
Mattise v. Ice Co., 46 La. Ann.

1535 ied
Mattlage v. Lewi, 26 N. Y.S. 7. 147
Mattock v. Kinglake, to Ad. &

E. 50 . 491
Mawson v. Blane, ‘to Exch. 206 24
May v. Chapman & Gurney, 16

M. & W. 355 .. - ay
Mayer v. Old, 57 Mo. App. 639.
Mayo vw. Knowlton, 134.N. Y. 250 see
Mayor of Kidderminster v. Hard-

wick, L. R. Exch. 13. . 100
Mayor of Ludlow z. Carlton, 6 M.

& W. 815. 100
McArthur v,. Neies Printing Co., 8

48 Minn. 319. ..... 69
McBrayer v. Cohen, 92 Ky. 479. 121
McCahill v. McCahill, 32 N. Y.

Sup. 836. ....... 276

McCalla v. Mtge. Co., 90 Ga. 113 69
McCallum v. Driggs, 17 So. 407. 334
McCandless, v. Allegheny Co.,

152 Pa, St. 139. . . . 11, 246
TABLE OF CASES.

PAGE.
McCarty v. Brackenridge, 1 Tex.
Civ. App. 170... .. 6
v. Murray, 3 Grey 108 ... 24
v. Roots, 21 Howard 432 . . 349

McClair v. Wilson, 18 Colo. 82 189, 196
McClanahan v, Williams, 136 Ind.

BOies el ae) he ga
McCleary v. Barcalow, 6 Oh. Cir.

Ct. 481 ‘ 47
McClintock’s App. 71 Pa. St. 365 108
McClure v. Times Pub. Co., 169

Pa. St. 213. ...... 15
McClurg v. Terry, 21N. J. Eq. 225 6

McClurg’s App., 58 Pa. St. 51 . 255
McComb v. Barcelona Ass? n, 31
N. E 613 .. 88
McCombs z. wIcKsnnen; 2W.&
S. 216. . 435
McCormack v. Littler, 85 Til. 62. 46
v. Dalton, 53 Kan. 146 . . . 195
v. Trotter, 10 S. & R. 94 . . 312
McCoy’s Est., 29 W. N. C. 412. 53
McCully v. Kaiser’s Exrs., 158 Pa.
Oty 213, we ave eR 104
McDaniel v. Uatae, 45 Ill. App.
D5 Ee ae ale cece ede 465
McDermott v. Jones, 2 Wall. 1 562

McDonald v. Longbottom, 1 E. &
E.977 - +e:

v. Minnick, 147 Ill. 651
McEwen v. Shannon, 64 Vt. 583
McGrath wv. Geyner, 77 Md.

331, . 466, 508
sacier _ Bailey, 146 Pa. St. :
57

McGruder 7 v. Bank of Washington,
9 Wheaton 66 .....
McHugh zw. Schuylkill, 67 Pa. St.

422

94
265

61

B01 as sk ow ee 73
MclIlquham v. Taylor, 8 Rep. 740 559
McIntosh v. Battell, 68 Hun. 216 69
McIntyre v. Kennedy, 29 Pa. St.

448 463, 464
McKanna v. Merry, 61 Ill. 177. . 28
McKinney & Heller v. Brights, 16

Pa. St. 399 . 357
McKinzie v. Stretch, 63 ‘TH “App.

18.

McLaughlin z. Hess, "164 Pa. ‘St.

5IO ea ee Me. —¥. HOF
McMahon v. Sloan, 12 Pa. St. 229 386
McMasters v. Reed, 1 Gr. Cases ‘

BOs a Ge Abe Be ee 7
McNab : McNab & Harlan ate,

Co., 62 Hun. 18 ; 9
McNabb v. Clipp, 5 Ind. APD. 204 105
McNeal v. McNeal, 34 W. N. C.

259 2. a ale eS a 54, 56
McNish z. Pe 95 Pa. St.

483...

c

XXXiit

PAGE.
McNutt v. Loney, 153 Pa. St. 281 139;
McParland v. Larkin, 155 Ill. 84. 210:
McPherson v. Cox, 96 U.S. 404. 108
McPhillips v. Jones, 73 Hun. 516 334
Mead v. Young, 4 Term Rep. 28. 343
Mechanics’ Bank v, sea 86

Mich. 632. . 356:

v. Houston, Ww. N.C 389 137

v. Straiton, 3 Keyes 31. . 325

eas uv Watrous, 7 Hilltio. 25
MeGrath z. Cannon, 57 N. W.

(Minn.) 150... .e 490

v. Gilmore, 10 Wash. 339. 576

Mehlhop v. Rae, 57 N. W. 650 . 21

Mellen vz. Whippie, I Gray 317. 292
Mentz v. Armenia Ins. Co., 79 Pa.

StA78- ee we 247

Merchant v. Cook, 21D. C. 145. 189
Merchant’s Nat. Bank vy. Arm-

strong, 65 Fed. 932. .... 84

v. Light Co., 159 Mass. 505 . 90
Merchants Bank ‘2. Meyer, 56

Ark. 490)¢ 2 5 4 ewe 80
Mercy Steel & Iron Company zw.

Naylor,9Q. B.D... . 503
Meredith v. Haines, 14 W.N. C.

BOA Ig a oss Pray 147

Merrill v. Packer, 80 Ia. 542 136

Merritt v. Bissell, 84 Hun. 194 69
Merz v. Interior etc. Co., 34 N. Y.

$. 215. 83
Metcalf v. Richordeoi, 73 B, Gy

Re TOU ke ee we es 369
M. E. Church v, Jaques, 3 John-
son’sCh.77 ......
Methoen v. Staten Island etc. Co.,

66 Fed. 113 .....--. 298

Mette v. Feltgen, 148 Ill. 357 . 20, 23

Metzgar v. Metzgar, 1 Rawle 227 304

Meux v. Gt. East. Ry. Co., (1895)
BO 387 ec ee ae ek

Mexican Int. Banking Co. »v.
Lichtenstein, 37 Pac. 574 267

M’Farson’s App., 11 Pa. St. 503. 120
Michelstetter v. Weiner, 82 Wis.
208 2-8 Se ae A) bos 116
Michener v. Springfield etc. Co.,
4oN.E.679...... 236

7
Mickiey 2 a piockslres, Io Pa, Co.
Ri BAe es esa oS 104
Middleborough v. Rochester, 12
Mass. 363 ....... 46
Middlefield z. Burch Mills Co.,
160 Mass. 267 . . . 402, 403
Middleton v. Griffith, 31 Atl. 405 329
Midland G. W. R. R. of Ireland z.

Johnson, 6 H. L. 798 . 144
Midland Nat. Bank uv. Rwy.,
Mo. App. 417 ..... 380

 

Miers v. Brown, 11 M. & W. 372. 565
XXXIV

PAGE.

Mighell v. Dougherty, 86 Iowa 480 111
Milbank v. De Riesthal, 31 N. Y.

S. 522 go

v. Welch, 74 Hun. 497... 83

Milbery v. Stover, 75 Me. 69. . . 578
Miles v. Caldwell, 2 Wall. 35 . . 555
v. New Zealand Alford Est.,

32 Ch. Div. 266 é 130
Millard v. Morse, 32 Pa. St. 506 . 449
Miller v, Ammon, 145 U.S. 421. 259

v, Austin, 13 Howard 218. . 311

v. Benjamin, 21 N. Y. S. 1116 507
v. Bomberger, 76 Pa. St. 78 . 304
v. Herschberg, 37 Pac. 85. . 268
v. Houston City Ry. Co., 55
Fed. 366. .....-¢. 266

v. Lorentz, 39 W. Va. I60. 277
v. Lumber Co., 98 Mich. 163
188, 194
v. McKenzie, 95 N. Y.575 . 14
v. Meers, 155 Ill. 284... . 94
v. Miller, 68 Pa. St. 486. . . I92
v. Ruble, 11 Out. 395. . . . 93
uv. Sears, gt Cal. 282 - e+ 94
v. Stewart, 9 Wheaton 680 . 235
Miller v. Weeks, 22 Pa. St. 89. . 316

Milliken v. Warner, 62 Conn. 51 105
Mills v. Auriol, 1 Sm. L. C. 1267 397
v. Dunham, (1891) I Ch. 576 254
Millward v. Littlewood, 5 Exch.
ia 271
Milnes v. Dawson, 5 Exch. 948 . 330
Milne’s App., 99 Pa. St. 483- - 273
Miner v. Tilley, 54 Mo. App. 627 455
Ming v. Woolfolk, 116 U.S. 599 182
Mining Co. v. Briscoe, 47 Fed. 276 94
v. Jones; 108 Pa. St. 55 521
Minnick v. Huff, 41 Neb. 516 . . 106
Minn. & St. L. R. Co. z. Rolling
Mill, 119 U.S.149... 8
Minor z. Sharon, 112 Mass. 477. 177
Minshull v. Oakes, 2 H. & N. 793 392
Mirabeta v. Imperial Bank, L. R.

3 Ex.D.164...... 382
Miskey’s App., 107 Pa. St. 611. 205
Miss. C. R. R. v. Southern R. R.

Ass'n, 8 Phila. I07 . . . 293
Mo. Pac. Ry. Co. wv. Sidell, 67

Fed. 464 3. 3. du ee Bs
Miss. S. S. Co. wv. Swift, 86 Me.

248 . 13
Mitchell vz. Abbott, 86 Me. 338 12

v. Beck, 88 Mich, BAZ se a a FT
v Kingman, 5 Pick. 431. . 39

v. Railton, 45 Mo. App. 273 78
v. Reynolds, 1 Sm. L. Cas. ~
ADT. hee a ie a ae BE 254, 255

Mixer v. Howarth, 21 Pick. 205. I11
M. K. & T. Ry. Co. v. Faulkner,
31S. W.543...... fore)

 

TABLE OF CASES.

PAGE.
Moenich v, Fenestre, 61 Law J.

Ch. 737
Moeser vz. Schneider, 158 Pa. St.

412 298, 318
Mohney v. Evans, 1 P. F. S. 80 30, 31
Mohr v. Miesen, 49 N. W. 862. 232
Moline etc. Co. v. Lynch, 82 Hun.

173 77
Molton v. Camroux, 4. Exch. 17 43
Monroe Cattle Co. v. Becker, es

Us Se APs ade ee as

. 350 a BPR Boss 7
ener s Sayre, Ioo Cal. 182 237
v. Schenck, 82 Hun. 24 » 334
v.U. S., 15 Wall. 395... 243
wy Water Works, 77 Ala. 248 Io
Mooney wv. Lloyd, 5S. & R. 412. 17
Moore zv. Chenault, 29 S. W. 140 I20

v. Copley, 165 Pa. St. 294. . 64
v. Cornell, 18 P. F.S. 323... 52
v. Hershey, 90 Pa St 196. . 45
v. Metropolitan R. R. Co., L.
R.8Q.B.36...... 4.
Moore v. Norman, 52 Minn. 83 . 466

v. Powell, 6 Tex. Civ. App.

AB ceocseasenha, She « . . 120, 276
v. Redding, 69 Miss. Sar - . 136
v. Smith, 61 N. W. 538. 306
v Weber, 71 Pa. St. 429 393

Moreland vz. Houghton, 94 Mich.
548 eee ee

Morley v. Lake Shore Ry. Co., 146
UB SEIG2. So -Se oe aa ee

Morley z. eae, (1893) 1 Ch.

736 202
Morgan 2. Birnie, "9 Bing. 672. « 513
v. Griffith, a R.9 Exch. 70 107
Vv. McKee, 77 Pa. St. 228 . . 586

v. Park Nat. Bank, 44 Ill.
App. 582. ....... 129
v. Perkins, 94 Ga. 353 455

Morill v. Nightingale, 93 Cal. 452
Morison v. Thompson, L. R. 9 Q.

Be A80le 53 8 es we ge 2239
Moritz v. Melhorn, I Harris 310. 7
vee - Cook, L. R. 6 Equity

246

404

452 ee ora ee 188, 190
Morris v. Gaines, 82 Tex. 255 . 105

v. Hunt, 1 Chitty 544... . 281
v Wedge Co., 69 Fed. 131 . 84
Morrison v. Kendal; 6 Ind. She

212° Gwe ke we 8
v. Marine Ins. Co., i R. 8 ave
Exch. 197... 167
v. Wells, 48 Kan. 494 - ¢ . 456
Morris Run Coal Co. v. Coal Co. a5
68 Pa. St.173 ..... 252
TABLE OF CASES.

PAGE,

Morrissey v. Broomal, 37 Neb. 766 231

Morse wv, Crate, 43 Tl. App. 513 +140
v. Woodworth, 155 Mass.

233. 5. a eek. eae 188, 190
Mortimer v. Shortall, 2 Dr. &

Wear. 363. «= 6 @ kos

Moses v. Loomis, 55 Ill. App. 342

v. Macfarlane, 2 Burrows 1009 195

v. Nat. Bank, 149 U. S. 298. 120

Moss v. Averill, Io N. Y. 449 . . 90

v. Cohen, 32 N. Y. Sup. 1078 245

425
442

Mott v. Mott, 49 N. J. Eq. 192. . 179
v. Oppenheimer, 135 N. Y.
Ty antics Buses’ or abies 402
Motz v. Mitchell, 91 Pa. St. 114. 192
Moulor v. Am. Life Ins. Co., 111
U.S. 335 2 ws 8 - 169
Mountjoy v. Metzger, 12 Law
Reg. N.S. 442. .... 473
Mountstephen v. Lakeman, L. R.
7Q.B.196....... 104
Moxley vz. N. J. & N. Y.R.R,,
66 Hun. 632 . . . 398
Moxon v. Payne, L. R. 8 Ch.
App-886  ..... 219

Mtge. Co. v. Wright, ror Ala. 658 24
Mudsill Mining Co. v. Watrous,

61 Fed. 163 ...... 179
Mulhall v. Quinn, I Gray 107. . 307
Muir v. Schenck, 3 Hill 228 + 300
Mullison’s Est., 18 P. F. S. 212 . 306
Mundy v. Stevens, 61 Fed. 77. . 295

Munk v. Weidner, 29 S. W. 409 .
22, 277
Murray v. Keyes, 35 Pa. St. 384. 52
v. Kimball Co., 37 N. E. 736 94
v. Lardner, 2 Wallacet1o. 326
Musick v. Dodson, 22 Am. L. Reg.

Ni3Se 622 oe Be ie 284
Mustard v. Woblford, 15 Grattan
29. 8 sk as 5 aks 9 2K
Muston v. Gladwin, 6 A. & E.,
N. S. 945 ea os » 442
Muzzarelli v. Hulshizer, 163 Pa.
SEC6AS es xsl e de Gna ahs 407
Myer v. Sharp, 5 Taunton 74 . . 380
Myers v. Dean, 32 N. Y. S. 237 . 139
v. Knabe, 51 Kan. 720... 43
Myers Tailoring Co. v. Keeley, 58
Mo. App. 491... - - 80
Mygatt v. Tarbell, 85 Wis. 457 . 8, 129
N.
Nace v. Boyer, 6 Casey 99 a2 39
Nalle v. R. R. Co., 88 Va. 948. . 185

Narcross v. James, 140 Mass. 188 409
Nash v. Meggett, 89 Wis. 486. . 461
Nat’l Bank v. Ashmead, 33 Fla.

AIG 2 ww ee ew ee 95

 

xXxXxXV

PAGE.
Nat’l Bank v. Graham, 100 U. S.
O90! ae es st cee ee Ge ve 86
v. Hall, lor U.S. 43 ....
v. Union Ins. Co., 88 Cal. 497
v, Waterman’s Est., 134 Ill.
AOL. ye ws poe S95
Nat. Bkg. Co. v. Bk. of Erie, 63
Pa. St. 4o. 364
380

9
169

Nat. Bank of Phoenixville v. P. &
R. R., 163 Pa. St. 46 . .

Nat’l Cordage Co. uv. Pearson
Cordage Co., 55 Fed. 812 99

Nat’l Distilling Co. v. Cream City

etc. Co., 86 Wis. 352 . . 252
Nat. Revere Bank uv. Morse, 40
N. FE. 180 .... + + 351
Nat. State Bank v. Linderman,
161 Pa. St.199...-.. 318
Naumberg v. Young, 44 N. J. L.
Toe BOS oe seat wees A 421
Nave v. Wilson, 38 N. E. 876 . . 264
N.C. & St. L. R. Co. v. U. S.,
113U.S. 261 ..... 549
Neagle v. Kelly, 146 Ill. 460 105

Neal v. Berry, 86 Me. 193... . 20
v. Bleckley, 36S. C. 468  . 95
Neal’s Exrs. v. Gilmore, 29 P. F.
Sm. 421
Nearen v. Bakewell, 110 Mo. 645
Neill v. Shamburg, 158 Pa. St.
BOB, sii ogi ae es 178, 210
Neininger v. State, 50 Oh. St. 394 146

125
183

Nellis v. Clark, 20 Wend. 24 . . 226
Nelson v. Guffy, 37 Pa. L. J. 65. 579
v. Mfg. Co., 96 Ala. 515 2.76
Nesbit v. Turner, 7 Kulp 41. . . 235

Nestor v. Brew. Co., 161 Pa. St.
ge Pah teats 5 . + 252

Nevada Bank v. Portland Nat.
. Bank, 59 Fed. 338 . I21

Nevill v. Ins. Co., (1895) 2 Q. B.
6 86

15 he Sty Sah as
Newberry v. Slafter, 98 Mich. 468 78
Newbold wv. Boraef, 155 Pa. St. 227
New Century Soc., 9 Pa. C.C. R.

355
New Eng. Loan Co. uv. Spitler,
54 Kan. 560
Newman v. Curiel, 75 Hun. 31
Newport v. Smith, 63 N. W. 734 80
Newson v. Thornton, 6 East 17 .
Newton v. Emerson, 66 Tex. 142 93
Niagara Falls Brew. Co. v. Wall.
98 Mich. 158... ..-.-
Niagara Fire Ins. Co, v. Fidelity
Ins. Co., 123 Pa. St. 516
Nichol wv. Bestwick, 28 L. J. Exch.
Ange ees
Nichols v. Commercial Bank, 55
Mo. App. 81. ...-.5-.
Xxxvi
PAGE,
Nichols v. Godts, 20 Ex. I91 . . 520
v. McCarthy, 53 Conn. 299 . 209

Nicols v. oe Bank, 55 Mo. App.

de fendi visa) ash 104
Nielson i Laittin, 66 Hun. 636 . 205
Nilles v. Welsh, 56 N. W. 657. . 7
Nims v. Mt. Hermon School, 160
Mass.179 ...... 84
Noble v. Ames Manufacturing Co.,
112 Mass. 492 ..... 528

v. Kreuzcamp, 111 Pa. St. 68 54

v. Ward, Ll. R. 2 Exch. 135. 444
Nordenfelt v. Maxim-N. Guns
etc. Co., (1894) App. Cas.

BOS ek eae ie eek 254, 255
Norfolk Ry. wv. McNamara, 3

Exch. 628 .......

Norman wv. Ga. Loan Co., 92 Ga.

395 8 aoe ge 40
Norrington v. Wright, 115 U, &

wo8 .. .. 427, 459, 507
North z. "Wakefield. 13 Ad. & E.

N. S. (66 E. C.L. R.) 536 541
Northampton Bank v. Balliet, 8

W.&S. 31... 305
North Side Ry. Co. v. Worthing-
ton, 30S. W. 1055 .  . 89

Norton v. Simonds, 124 Mass. 19 444
Nonnemacher v. Nonnemacher,

159 Pa, St. 634 . 47

Noyes v. Barnard, 63 Fed. (Cc. G

A.) 782 528

Nuding v. Urich, 169 Pa. St. 289 53
Nugent a Smith, IL, R.1C. P. D.

Seca wate yeh fe seh 23, 440

Vv Wolfe, Irr Pa. St. 476 . . 106

Nunez v. Dautel, 19 Wallace 560 315
Nunnelly v. So. Iron Co., 94 Tenn.

397
N. W. Mut. F. Ins. Co. v. Blank-
enship, 94 Ind. 535. - 44
N. Y. C. & H. R. R. Co. v. Davis,
86 Hun.86....... 76
N. Y. Life Ins. Co. v. Statham, 93
U.S. 24
N. Y. oe een v. French, 31 W.

243

2S Bey cae, aan 139
N. Y. ed Ss S. Co. v. Harbison,
16 Fed. 688 ...... 80
oO.

Oakdale Mfg. Co. v. Garst, 28 Atl.
973 255

Oakes v.' Water Co., 143 N. Y. 430 252

Oaks v, Cattaraugus Water Co.,

21N. ¥.S8. 851 .... 89
Ocean Bank v. Williams, 102
Mass. 141 ...-.--. 360

O’Donnell v. Leeman, 43 Me. 158 417

 

TABLE OF CASES.

PAGE.

Odum vz. Railroad Co., 94 Ala. o 466.
oo v. = Vane, t R.2Q.B

8

Be Sey Sa) co a ae

277
Ogg v. Shater, L. R,1C. P.D. 47 381
Oil Co. v. Lead Co., 4 Dillon 431 14
O’Keeson v. Barclay, 2P& W
OAT ak ae gieg ak gag 129, 131
Olcott v. Int. & G. N. R. Co., 28
S$. W. 728 266.
Oldshaw v. King, 2H. & N. 517 129
Oliver v. Gilmore, 52 Fed. 562. aa) 264
Olwer v. Woodroffe, 4 M. & W.
650.) atk Sa be eS 20
Olsen v. Sharpless, 53 Minn, 91. II7
v. Scott, I Col. App. 94. 182
O'Neill v. Nolan, 66 Hun. 631. . 4o
Oregon Steam Nav. Co. v. Winsor,
20 Wall. 64..... 255, 257
Ore Mining & Milling Co. v. Kai-
ser, 35 Pac. 677 .
Ormerod v. Dearman, Ioo Pa. ‘St.

561
Seon Bolingbroke,L. R. 2
. Cas, 81

Orr & ae ‘v. Bornstein, 23

W.N. C. 356. - 50
Ortman v. Weaver, II Fed. 358 . 13
Oullahan v. Baldwin, too Cal. 648 7

“Owen v. Homan, 3 Mac. & G. 407 575

v. Long, 112 Mass. 403... 20
v. Smith, 91 Ga. 564. . 210
Oxford v. Berrelle, 20 W. R. 116 130
v. Crow, (1893) 3 Ch. 535. - I00

P.
Page v. Krekey, 137 N. Y.307- 577
a. Norfolk, 70 L. T. 781

‘ I
Pain v. Sample, 158 Pa. St. 428. oe
Paisley v. Freeman, 2 Sm. L. Cas.
75 - 158
Palmer v. Courtney, 32 Neb. 773 330
v. Temple,g A. & E. 508. . 513
Paradine v. Jane, Aleyn 26 . . 559, 564
Park uv. Kleeber, 1 Wright 251 52
Parker v. Donaldson, 2W. &S.9 77
v. Kellogg, 32 N. E. 1038. . 361
v. Russell, 133 Mass. 74. . . 481
v. State, (Tex.) 29 S. W. 480 455
v. Tainter, 123 Mass. 185. 277
Parmalee v, Associated Physicians
etc. 32 N. ¥.S. 149. i
Parsons fe Pane 56 Minn.
186
Patent ice ‘Co. v. Moore, 75 Cal.
205

- 428
TABLE OF CASES.

PAGE.
Patrick v. Bowman, 149 U. S. 411
13, 14, 77
v, Smith, 165 Pa. St. 526. 56, 58
Patterson v, Neuer, 165 Pa, St. 66 274
v. Poindexter, 6 W. & S. 227 311
Pattison v. Luckley, L.R. 10 Exch.

B30 oh Lk we Ae gt, Ww 577
Pattison’s App., 61 Pa, St. 294. 108
Paul v. Stackhouse, 2 Wright 302 134
Pawling v. Pawlin ™B» 86 Hun. 502 277
Payne v. Cave, 3 R. 148... II

v. Newby, a Ill. App, T4t . I5
Peabody wv. Nicklin, 8 Wash. 660 95
vw. Norfolk... ..- 2... 537
Peacock v. Binder, 31 Atl. 215 . 20, 22
Peak v. Gurney, L. R.6 H. L. 377. 176
Pearce v. Brooks, L. R. 1 Exch.
215 as ee ye

v, Buell, 22 Or.29..... 182
Peck z. Gurney, L. R. 6H. L. 377 181

v. Harris, 57 Mo. App. 467 . 139
‘Peebles v. Patapsco etc. Co.; 77.

N. C. 233 85

Peek v. Derry, 37 Ch. D. 541 . 158, 160

Peigh v. Hoffman, 34 N. KE. 32. 351

Pellizzarro v, Reppert, 83 Iowa 497 210
Pellman v. Hart, 1 Pa. St. 263. . 206
Peltz v. Hichel, 62 Mo. I7I .. . 257
Penny v. Innes, ICG. M. &R. 439 333
tina ass oo v. Dolan, 6 Ind.

Pa. R. R. . Stern & Spiegel, 119
Pa, St. 24 . 3
Pennypacker wv. Jones, 106 Pa. 237 428
Penrose v. Curren, 3 Rawle 351. 33
People’s Bank v. Johnson, 20 Can.

S.C. R. 541 246
Perkins v. Butler Co., 62 N.W.
308) fe ey ee 299

v. Hintihedon, 64 Hun. 635 76
v. Westcoat, 33 Pac. 139 . . 6
Perls v. Saalfield, (1892) 2Ch.149 254
Perrine v. Jermyn, 163 Pa. St. 497 75

Perry v. Dicken, 105 Pa. St. 83 .
207, 249

uv. ae Hope Iron Co., 15 R.
80

Ti 380." ae os es 14

Vv. Water Works Co., 67 Hun.
456 46 sale eles go
Perryman z. Pope, 94 Ga. eee 196

Peter v. Compton, 1 Sm. L. Cas.
OBA ad ai He te 109
Peters v. Flemming, 6 M. & W. 43 30
Peters v. Grim, 149 Pa. St. 163 224
vy. Guinn, 1 Ad. Rep. 720. . 232
o. Westborough, 19 Pick. 364 108
Peterson v. Fleming, 6M. & W.
Als cae 6 woh ee 8 27

 

Xxxvii

PAGE.
Peto v. Reynolds, 9 Exch. 410. . 315
Petrie v. Clark, 11S. & R. 377. 347
v Williams, 68 Hun. 589 . 23, 25
Pettiborie v, Moore, 75 Hun. 461
13, 15, 120
Phelan v. Moss, 67 ve ie 59...
44, 341, 344, 354
Phila. Ball Club v. Hallman 8 Pa.
C.C. Rep. 57 ....-.
Phila, W. & B. R. Co. v. Cowell,
4 Casey 329 -- +... 69
v. Quigley, 21 How. 202 . . 86
Phillips v. Bastolli; 2B. & C. 511 113
v. Foxhall, L. R. 7 Q. B. 666 170

v. Hatch, 1 Dillon 572 . 16, 17

v. Henry, 160 Pa. St. 24 196

v. Lloyd, 25 Atl. 909. . . . 31

Philpot v. Jones, 2 A. & E. 24. . 283

Phipps wv. Jones, 8 Harris 260 . . 13
Pheenix Life Ins. Co. v. Raddin,

120 U.S. 183. ..... 169

Pickard v. Sears, 6A. & E. 469 . 442

Pickler v. The State, 18 Ind. 266 37

Pierce v. Feagans, 39 Fed. 587. 555
v. Seymour, 52 Wis. 272 553

v. Struthers, 27 Pa. St. 249 .
358, 363
Pigot’s Case, 11 Co. Rep. 27b. . 577

Pillans v. Van Microp, 3 Burrows
1664. ~ «4 123, 318
Pine v. Wood, 145 Mass. 559 - - 31
Pinnell’s Case, 5 Coke 117. . . 126
Piso Co., 15 Pa. C. C. Rep. 348 . 58
Pittsburg Min. Co. v. Spooner, 74

Wis. 307... .. 173
Pittsburg Ry. v. Hallowell, 65
Ind. 188. ......., 559
Placer Min. Co. v. Schreiner, 14
Mont. 121 ....... 454
Placquemines T. F. Co. v. Buck,
52N.J. Eq. 219... . 173

Planche v. Colburn, 8 Bing. 14
470, 481, 483
Polhell v. Walter, 3 B. & Ad. 113 180
Pollard v. Reardon, 65 Fed. 848. 380
v. Vinton, 105 U. S. 7 385
Pooley v. Goodwin, 4 A. & E. 94 341
Pope v. Hauke, 155 Ill. 617 . 231, 232
v. Porter, 102 N. Y. 366. 507
Pope Mfg. Co. z. Gormully, ad
U.S. 224. 252
Pordage uv. Cole, I Saunders 320
488, 491, 493, 502, 519
Port Carbon Iron Co. v. Groves, 68
Pa. St. 14 156, 163
Porter v. Day, 44 Ill. App. 256 . 77
v. Talcott, 1 Cowen 359-383 465
Potter v. Tubb, 1 Chitty Jr. 430 . 343
v. Carpenter, 76 N. Y. 157 . 7
Potter Gas Co., 15 C. C. Rep. 347 58
XXXVIii

PAGE.

Potts v. Bell, 8T. R. 548... . 242
v. Whitehead, 23 N. J. Eq. 572 8
Pottsville Mut. Ins. Co. v. Horan,
39 Pa. St. 438
Poulton v. Lattimore, 9 B. & C.

259 521
Poussard v. Spiers, L. R. t Q. B.

D. 410. 509
Powder River Live, Stock Co. 2

Lamb, 38 Neb. 339 . . 108, 112

Powell v. Moussier, 1 Atkins 611 320
. v, Railroad Co., 12 Ore. 488. 569
Powies v. Innes, 11 M. & W. 10. 296
Pratt v. Langdon, 97 Mass. 97 - . 4I7
v. Miller, 109 Mo. 78. 110
zy. Oshkosh Match Co, ny i)
Wis. 406. ....... 89
Presbey v. Thomas, 1 App. D. C.
TT ee ie ee 6 359
Preston v. Luck, 27 Ch. D. 497. 145
v. Finney, 2 W. & S. 53. . 447
Prevot v. Abbott, 5 Taunton 786 - 326
Prewett v. Trimble, 92 Ky. 176. 179
Price v. Easton, 4 B. & Ad. 433. 290
v. Farman, 27 Vt. 268 » 25
v. Green, 16 M. & W. 346. 257
v. Moore, 158 Mass. 524. . . 69

v. Moulton, 10 C. B. 574 575, 576
v. Sanders, 60 Ind. 315 .. 30
Price’s App., 54 Pa. St. 472
Prichards v. Ins. Co. N.
Yeates 458 .
Printing and Numerical Reg. Co.
v. Sampson, 19 Eq. 462.
Pritchard v. Norton, 106 U. S. 124 122
Provident Society v. Edmonds, 3t
S. W. 168. .
Pugh v. Moore, 44 La. Ann. 209 « 77
Pulbrook v. Lawes, 1 Q. B. D. 284 276
Pumell’s Case, 5 Co. Rep. 117...
Pursifull v. Assignee, 30 S. W. 203 237

A., 3

Putnam v. Grace, 161 Mass. 237 8
Pym v. Campbell, 6 E. & B. 370. 418
Pyroleum Appliance Co. v. Hard-
ware Co., 32 Atl. 458. . 176
Q.
Quaintenance v. Goodrow, 41 Pac.

. WG de eta ek Yo Re ok a 374
Quirk v, Muller, 14 Mont. 467. . 246
R.

Raby wv. Reeves, 16 S. E. 760 . . 398
Raffles v. Wichelhaus, 2 H. & C,
dias fae far os tes oak Ok de 154
Rafolovitz v. Tobacco Co., 73 Hun
BF ee ek ce oy ene 7
Ragnet v. Roe, 7 Oh. St. 70. . . 264

 

TABLE OF CASES.

PAGE.
Rahters v. Bank, 92 Pa. St. 392
224, 227
Railroad Co. v. Bank, 102 U. S. 14 349
v. Christy, 79 Pa. St. 54... 72
v Coombe, 3 Ex. Ch. 565. . 22
v. Transportation Co., 83 Pa.
St 160) sie es ioe
Railway Co. v. Racer, 1o Ind. App.
re 15

303
Ralston v. Aultman, Miller & Co.,
(Tex.) 26 S. W. 746 . 431, 464

Ramsey Ns Warner, 97 Mass. 8. 272
Rand v. Dovey, 83 Pa. St. 280. . 329
Randal v. Tatum, 98 Cal. 390. . 466
Randall v. Howard, 2 Black 585 . 233

Rankin . Woodworth, 2 Watts
ESQ. eo BP ae oe eee

Rann wv. Hughs, 7 T. R. 50
100, 102, 123
Rapps v. Gottlieb, 142 N. Y. 164 186
Rau v. Von Zedlitz, 132 Mass. 164 203

Ravens v. Nau, 110 Mo. 416 205
Rathbun v. Thurston Co., 8 Wash.

DOB soins gla OP apieia) va 483
Rayiiond o Middleton, 29 Pa. St.

BQO ics hea eh ee an VS Oe, a 325
Rayner z. Grote, 15 M. & W. 359 80
Rea v. Bishop, 41 Neb. 202... 43
Rea’s App., 13 W.N.C. 546... 247

Read v. Adams, 6S. & R. 356. .
Real Estate Saving Inst. v. Linder,

357

74 Pa. St. 371 147
Rector Provision Co. vz. Sauer,

69 Miss. 235. . . I17
Redgrave v. Hurd, 20 Ch. D.r 165
Reece wv. Kyle, 49 Oh. St. 475. 249
Reed v. Breden, 61 Pa. St. 460 427

v. Hurley, 7Pa.C.C. Rep. 125 53

v. Klaus, 152 Pa. St. 341 . . 78
v. Segard, 3 Exch. R. 636. . 67
v. Marshall, go Pa. St.345 . 273
v. Reed, 49 Oh. St. 654 . . . 240
vw pee Bank, 130 Mass.
Brie ee eee aga ds 86
uw Stouffer, 14 Pa. C. C. R.
BOS ob ash aac “ia ooo eh os 57, 58
Rees v. Berrington, 2 L. Cas. in
q-I14099........ 237
v. Jutte, 156 Pa. St. 56. 104
Reeves v. Corning, 51 Fed. re 179
Regina v. Great N. of a
Co.,9 A. & BF. 315... 84
Dv Lord, 12 C. B, (6a B cL.
RV 758-5 cs She ek 20
Reid v. Morrison, 2 W. & S. 401 360
Reinhart v. Gregg, 8 Wash. I91. II5

Reisinger v. Magee, 158 Pa. St.
280

he 22355 a ae la Sse ca
TABLE OF CASES.

PAGE.

Repplier v. Jacobs, 149 Pa. St. 167 224

Rescorla v. Thomas, 3 2 B. 234. 139
Reuss v. Cvipaiee L. Rt —

117

Soe eee ” 268
Reynolds v. Empire Lumber Co., 5

85 Hun.-470 . 543

v. Robinson, 110 N. ie 654 . - 419

Rhino v. Emery, 65 Fed. 826 210

Rice v. Fidelity Co., 1 Lack. Leg.

Reg. 11l. 2 2. ee 76

uv. Gibbs, 33 Neb. 460 . 212

v. Stearns, 3 Mass. 225 . . 30
Richards v. Institute, 154 Pa. st.

OP air gs te ek 84

44
v. Pitts, 124 Mo. 602 .. . 209
Richardson v. Barnes, 4 Exch. 128 446

v. Jackson, 8 M, & W. 298 . 466
v. Monroe, 52 N. W. 339. . 354
v. Moyer, 155 Pa. St. 174 . . 436
v. Nathan, 167 Pa. St. 513, . 380
v. Richardson, 148 Ill. 563 107
v. Roantree, (1894) A.C. 217. 9
v. Williamson, L. R. 6 Q. B.
DIO ete en Ye Ea a 80
Riche v. Ashbury etc. Co., L. R.
9 Exch. 224 ...... 87
Richelieu Wine Co. z. Balad;
43 Ill. App. 257 48
Richie v. Atkinson, 10 East 295. 496
Richmond & D. R. Co. v. Walker,
92 Ga. 485 Bs hd 431
v. White. 88 Ga. 805 . . . . 441
Ridley v. Taylor, 13 Hast 175 . . 357
Riegel v. Am. Life Ins. Co., 140
Pa. St.193 . - 153
Rigdon v. Walcott, 141 Il. 649 . 185
279

Riggles v. Erney, 154 U. S. 244.
Right v. Bucknell, 2 B. & Ad.°
Istana RAS GP 95

rs id low agp cen, of 534
Ring v. Devlin, 68 Wis. 384... II
Ripley v. McClure, 4 Exch. 345. 480
Risley v. Gray, 32 me 884... 355
Rison v. Newberry, 90 Va. 513 - 178
Risse v. Hopkin’s Mill Co., 4o

Pac.904... 2. 2+: 234
Ritter v. Devine, 80 Hun, 303. 182
Ritter’s App., 23 Pa. St.95 . . . 273
Ritzman v. Spencer, 5 Dist. Rep.

(Pa.) 224... + eee 398

Rixey v. Pearre, 15 S. E. 498 313
Roach v. Quick, 9 Wendell 238 . 32
Roberge v. Waine, 144 N. Y. 709

279, 536
Roberts v. Beatty, 2 Pa. St. 71 . 450
v. Bemen’s etc Co., 111 N.

GiB? arson he Be BS 83

 

XxXxix

PAGE,

Roberts v. Smith, 4 H. & N. 315 15
v. Summit Park Co., 72 Hun.

A583 8 2 8 Hw we 8 108
Robertson v. Kensington, 4 Taun-

ton 30. .....-+8-. 355.

v. Reiter, 56 N. W. 877. . . 355

v. Tapley, 48 Mo. App. 239- 9
Robinson v. Baird, 165 Pa. St.

SOS) ciovay ee ay . 513

v. Brown, 4 Blackford 128° 325

v. Coulter, go Tenn. pe ? 20
v. Davison, L. R. 6 Exch.

309 bone se 572, 573

v. Estes, 53 Mo. App. 582 ‘ 5

v. Harman, 1 Exch. 850 528, 529

v. Hyer, 17 So. (Fla.) 745. . 419

v. Yarrow, 7 Taunton 455. . 343
Robson v. Logging Co., 61 Fed.

893 ge Ma Ne th 7
v. Miss. River Logging Co.,

71 Fed. 893 562
Robson & Sharp v. Drummond,

2B. & Ad. 303 289, 295

Roby v. Carter, 25S. W. 725. . 245

v..Colehour, 135 Ill. 300 207

v. Colehour, 146 U. S. 153. . 580
Rochester Lantern Co. v. Stiles

Co., 135 N. Y. 209 . 295
Rockford Watch Co. v. Manifold,

36 Neb. 801 : 238

Rodick v. Hutchins, 95 U.S. 213 194

Rodliff v. Dallinger, 141 Mass. 1. I51

Rodman v. Tahlheimer, 75 ‘Pa.
St. 232 177
Rogers v. Blackwell, 49 "Mich.

192 . 41
v. Bollinger, 59 ‘Ark. 12. 95
v. Davidson, 142 Pa. St. 436. 565
v. Maddocks, (1892) 3 Ch.

BAG i hin » « 254, 257
v. Rogers, 139 Mass. 440 . . 436
v. Shaw, 59 Cal. 260 . 578
v. Spence, 13 M. & W. 571 . 579

Roll v. Davison, 165 Pa. St. 392 . 52, 64
Romaine v. Beacon Lithographic

ae eo Pl. N. Y.) 34

VS. 12403 ce 2

Roop’ a 132 Pa, St. 496 . 53, a
Roosevelt v. Improvement Co.

33 N. ¥.S.536..... 84
Root v, Strange, 28 N. Y.S. 273. 49
Rorebeck v. Van Eaton, 57 N. W.

OO4) se. ody es eis st Fa
Rosen v. Rose, 34 N. Y. Sup. 467
Rosenberger v. Jones, 118 Mo. 559
ee Erlicher, 154 Pa. St.

239
277
277

es

BO8 col geyetek. Gece a 351
Rositer v. Rositer, "8 Wendell 494. 317
xl TABLE OF CASES.

PAGE.

Ross v. Fort Wayne, 64 Fed. 1006 249
Rothenbarger v. Rothenbarger,

1710. E46 % ea ae 204
Roundtree v. Smith, 108 U.S. 268 232
Rouse v. Bradford Banking Co.,

6 Reports 349 -- ee. 237
Roussillon v. Roussillon, 12 Ch.

B88 a ght ie Ae 255

scutes v. Grant, 4 Bing. 653. 13°

ee Vv Wilson, 6H. & B.
Bites nth nal tel dee 409
Rowe v. Hier, 13 C. B. 249. . - 373
Royal Ins. Co. v. Beatty, 119 Pa.
StuG 2s a4 2 fe % 3 14

Royer v. Ake, 3 P. & W. 461 . . 4I0
Rucker v. Harrington, 52 Mo. .

_ App. 481... ...-. 443
Rugin v. Sabin, 53 Fed. 415... 186
Russell v. Place, 94 U. S. 606 . . 551

v. Reed, 36 Minn. 376. . . . 578

vw Stewart, 44Vt.I170... II

Ryan v. Growney, 28S. W. 189 . 35
v. Mutual Tontine Ass’n,

(1893) 1 Ch. 126... . 536

uv. Price, 17 So. 734. .... 201

v. Ulmer, 108 Pa. St. 332. 162, 520
Ryder v. Wombwell, L. R. 3 Exch.

90% ava a a ee BR a 27, 30

eens s Manrow, 165 Pa. St.
Boe ce Weis 128

Salinas a ‘stinman, 66 Fed. 677
146, 245
Salisbury v. Bank, 37 Neb. 872 . 334
Salmon Falls Mfg. Co. v. God-
dard, 14 How. 446...

Salter v. Berk, 20 Wendell 205

Sand v. Church, 70 Hun. 483 . .
Sanders v. Bagwell, 37S. C. 145. 234
v. Carter, 17 S. E. 345 . 136
v. Fruit Co., 144 N.Y. 209. 13
Sandifer v. Lynn, 52 Mo. App. 553 67

San Gabriel Land & Water Co. v.
Dennis, (Cal.) 34 Pac 441 454
Sargent v. Southgate, 5 Pick. 312 335
Saunders v. Marr, 1H. Blk. 75 . 36
v. Richard, 16 So. 679 209
Savage v. Everman, 70 Pa. St. 315 543

v. Lichlyter, 59 Ark. I...

Savannah Bank v. Hoskins, ror

120
364
249

Mass: 370 . 2 6 sk ww 6 329
Savings Bank v. Burns, 102 Cal.
AIG ia Boe 264
Sawyer v. Brossart, 67 1a.678.. 13
v. Lufkin, 56 Me. 308... 45
Sayers v. Collier, 28 Ch. D. to3 . 408
Scanlan v. Cobb, 85 Ill. 296. . . 41

Schaeffer v. Hoffman, 113 Pa. St. 1 274

 

PAGE.
Schafer v. Farmers Bank, 59 Pa.

SET4Ae es ek ae we 8 334
Schankel v. Moffatt, 53 Ill. App.

382 . . 240, 262
Scheftel v. Hayes, "58 Fed. 457 186:
Scheaffer v. Fowler, 111 Pa. St.

AGE sa we ee ee BHO!
Scheuber v. Simmons, 22 S. W. 672 302
Schimmelpennich v. Bayard, 1

Peters 264 . . 318
Schmaling v. Thomlinson, 6 Taun-
ton 147 288

Schmaltz v. Avery, 16 Q. B 655. 80
Schmidt v. City, 4o Pac. 790 . . 513
v. Ittman, 46 La. Ann. 888 . 43
pemeaee v. Rometsch, 38 Pac.
School Heratees v. Bennett, 3
Dutcher (N. J.) 513 . 563
Schorestone v. Iselin, 69 Hun. 250 13
Schriner v. Peters, 39 Ill. App.309 445

189

Schroeder vw. Loeber, 75 Md. 195. 276
Schubart v. Gas & Coke Co., 41
Ill. App. 1... 4... 182
Schuylkill =o v. Copley, 67 Pa.
SE, 396 3S seve ds se 148
Schuyler v. Sion, 48 Kan. 282. 137
Scott wv. Avery,5 H.L. C. 811. . 247

v. Brown, Ala. 17 So. 731. . 24
v. Brown, (1892) 2 Q. B. 724 232
uv. Fisher, 110 N.C. 311. . . 237
v. Glenn, 98 Cal. 168 . . . . 120
wv. Kittanning Coal Company,
89 Pa. St. 231... . 505
v. Scruggs, 60 Fed. 721. .. 237
Scudder vw. Bank, 91 U.S. 406. 319
v, Carter, 43 Til. App. 252. 106

Seabag v. Abitbol, 4M. & S. 462 323
Searcey v. Hunter, 81 Tex. 644. 20
Seaton vz. Benedict, 5 Bing. 28. 65
Seaver v. Phelps, 11 Pick. 304. . 44
Sebastian May Co. v. Codd, .77

Md. 293 ...... 461, 463
Second Nat. Bank v. Morgan, 165
Pa. St. 199 - 341, 352, 354

Seigworth v. Leffel, 76 Pa. St. 476 522

Semmes v. Hartford Ins. Co., 13
Wall. 158 . .

Sewell v. Burdick, L. R. 10 App.

567
377

QFE sae ae aS
Seymour v. Cemetery Ass’n, 19 N.
WS. Ore x x ace eS
Shackamaxon Bank v. Vard, 47
Leg. Int. 200; 150 Pa. St.
$51 << 4 be 292,
Shackelford v. Clarke, 43 Ill. App.
O18) ee ena we he
Shackell v. Rosier, 2 Bing. 438 .
Shadwell v. Shadwell, 9 C. B.N.S.
159 123, 124, 137

> 235
365
258
TABLE OF CASES.

PAGE.

Sharman v. Brandt, L. R. 6 Q. B.
720. . « 118, 121
v Sharman, 67 ‘Law T. 834 . 279
‘Sharp v. Taylor, 2 Ph. Ch. 801. 267
v, Waterhouse, 7 E. & B. 816 398
Sharpless v. Mayor, 9 Harris 165 82
Shaub vw. Lancaster, 156 Pa. St.362 12

Shaul v. Rinker, 38 N. E. 593 - 25
Shaver v. Pennsylvania Co., 71
Hed. O30 iz sai ot ak 544

Shaw v. Bank, tor U. S. 557. 387, 389

v. Hapgood, 105 Mass. 276. 515
v. Turnpike Co., 2 P. & W.
454 . . . 164, 447, 456
Sheanon v. Pac. Mut. Ins. Co. ., 83
Wiss 507 es eee sk 67
Sheffield Ry. Co. v. Gordon, 151
Us Se 285 a Ss es cake 510
Sheldon v. Benham, 4 Hill 129. 370
v. Davidson, 85 Wis. 138. . 182
v. Haxtun, 91 N. Y. 124. 284
v. Pruessner, 52 Kan. 579. 264
Shelley’s Case, 1 Rep. 98. . . . 567

Shenandoah Nat. Bk. v. Marsh,
56N.W.458..-.-.. 313

Shepherd v. Busch, 154 Pa. St.
149s os A64

v. Harrison, L. R. 4 Q. 'B. 196;
5 E. & I. App. 116 . 380, 451
Sheppard v. Pressey, 32 N. H. 55 113

_ Sherley v. Peehl, 54 N. W. 267 . 15
ne v Kittsmiller, 178. &

392
‘Shesler v. Vandike, 92 Pa. St.447 73
Shiells v. Blackburne, 1 H. Blk.

158
Shinn v. Bodine, 60 Pa. St. 182 . 507
Shipley v. Bunn, 28 S. W. 754 . 20, 23
Shively v. Black, 45 Pa. St. 345. 120
Shoemaker v. Mechanics Bank,

59 Pa. St. 79. . “2 « 370
Shoninger zv. Beabady, 59 Conn.

88

5
Short v. Stone, 8 Ad. & E., N.S.
(55 B.C. L. R.) 358 - - 482
Shreve wv. Brereton, 51 Pa. St.175 428
Shrimpton & Sons v. Warmack,
(Miss.) 16 So. 494 - 457
Shropshire v. Burns, 46 Ala. 108 24
‘Shuey’s ha v. U.S., 92 U.S.
aa ee me SS II, 13
‘Sidney Horiture Co. v. Warsaw
Dist., 130 Pa. St. 76 . . 421
Sidwell v. Evans, I Pa. St. 385 . 129
Sieger v. Second Nat. Bank, 132

Pa. St. 307... - ee; 374
Sikes v. Bedon, 11 Ch. D. 170. . 267
Siler v. Gray, 86 N. C. 566 . . . 412

 

xli

PAGE.

Silliman v. U. S., 101 U. S. 465 . 196

- Simms v, Rickets, 35 Ind. 181 . 63

Simpson z,. Crippen, L. R.8 Q.B.
EA ie ak ns, eas ie 50I, 503, 505
Sims v. Everhardt, 102 U.S. 300 9.23,
v. Landray, (1894) 2 Ch, 318 121
Sinclair v. Healy, 4o Pa. St. 417. 186
Sinclair v. Hicks, 21 S. E. 395 . 7
Singer v. Paap 51 Mo. App.

Sivers v. ee 97 Cal. 518.
Skinner v. Machine Co., 140 N.
OTF oie ea Sp saw 8
Slade v. Mutrie, 156 Mass. 19. .
Slater Woolen Co, v. Lamb, 143
Mass. 420 .
Slauson 7 Schwabacher, 4 Wash.

+ 2 ee

Small v. Eirgood, i Lack. Leg. N.

167 277
v, Small, ‘129 Pa. St. 366; “24

W.N. CG. 452% 5 6 % 5 53, 62

v. Williams, 87 Ga. 681. .
Smallwood v. Vernon, 1 Strange
478 + 332
Smith v. Abbot, 2 Strange 1152 . 324
v. Arthur, 110 N. C. 400 . 95, 277
v. Bank of New South Wales
L.R.4P.C. App. 194 .

359

v. Black, 9S. & R. 142... 548
v. Chadwichs L. R. 20 Ch. D.

Shoe wwe, Se ae 183
v. Clarke Peake 225... . 329
v. Cranford, 84 Hun. 318. . 542
uv. Cuddy, 96 Mich. 562. . . 204
v. Delaney, 64 Conn. 264 . . 265
v. Evans, 36S. C.69.... II5
v. Grey, 21 8. E. 200. . . . 24
v. Hay, 152 Pa. St. 377. . . 467
v. Hogeland, 78 Pa. St. 252 . 347
Vv,

Hughes, L. R. 6 Q. B. 597.
156, 177, 415

. Kay, 7H. L. C. 750 . .
197, 202, 210
. King, (1892) 2Q. B. 543 . 31, 38
. Land etc. Corporation, 28
Che Di Fie se bse oe

2

ee

v. Lennon, 131 N.Y. 560. . 96
v. Leopold, 51 Minn. 455 . . 238
v. Lightner, 26S. W. 779. . 15
v. Martin Heater Co., 19 N.
VoIS: 285 6 ree Gen an 88
v. Niagara F. Ins. Co., 60 Vt.
682-60 Fe & Bs 168
v. Nicolls, 5 Bing. N.C. 208. 548
v. Nightingale, 2 Starke 330. 314
v, Northrup, 80 Hun. 65 120
v. Pickering, Peake 50 . 327
xlii
PAGE,
Smith wv. Pierce, 65 Vt. 200 . 279
v. Prickett, 98 Ala. 649 . 276
v. Sherman, 4 Cushing 408 . 307
v. Smith, 134 N. Y. 62 182
v, Smith, Murphy & Co., 21

Pas. Sti 367 «on aw a es 177

v. Snowden, 27S. W. 855. . 211
v. Thompson, 94 Mich. 381 . 307
v. Tripp, 14R.I. 112... . 285
v. Tyler, 57 Mo. App. 668. . 238
v. Weston, 88 Hun. 25 354
v, Whildin, Io Barr39 . . . 136
v. Williamson, 8 Utah 219 . 47
v. Wilson, 3 B. & Ad. 728. . 425
v. Wilson, 8 East 438 . . 496, 497
Smith Organ Co. 2. Abbott, II

Pa. C.C. Rep. 319 - 560

Smithmeyer v. U.S.,147U.S.342 6
Smout v. berry, 1oM. & W.1 . 75, 80
Snell v. Ins. Co., 98 U.S. 85 146
Snyder v. Church, 70 Hun. 428 . 249
v. Noble, 94 Pa. St. 286. . . 59
v. Riley, 6 Pa. St. 164 - 335
v. State, 40 Pac. 441 - 236
Socialistic Pub. Ass’n uv. Hoff-
mann, 33 N. Y. Sup. 695 234
Societé Anonyme wv. Mining Co.,
9 Utah 483
Solarte v. Palmer, 2 Clark & Fin.93 363
Solly v. Forbs, 2 Brod. & Bing. 38 541
Sornborger v. Lanford, 34 Neb. 498 194
South of Ireland Col. Co. v. Wad-
dle, L. R.3 C. P. 463. . 98
So. Pac. R. Co. uv. Allen, 40 Pac.

YD as see ioe ow Oe
So. Pac. Co. v. U. S., 28 Ct. Cl. 77 252
So. Ry. Co. v. Highland, 98 Ala.
GOO: fae we oe
So. Yorkshire Ry. Co. v. G. N.
Ry. Co., 9 Ex. Ch. 55 . 87
Soutier v. Kellerman, 18 Mo. 509 425
Spain v. Hamilton’s Adms., 1
Wallace 604
Spalding v. Ewing, 1 Ad. R 775
v. Ewing, 149 Pa. St. 375.
Spann v. Cochran, 62 Tex. 240 .
Sparks vz. Pittsburg Co., 159 Pa.
St. 295 . 8
Sparman v. Kein, "83 N. Y. 245. 21
Sparrows v. Caruthers, IT. R.6 50
Spaulding v. Andrews, 48 Par St.

300
225
245
105

ELD. see wh 9558) toh a ha eo tee 318
Spear v. Bach, 82 Wis. 192. . =112
Spearman vw. Texarkana, 58 Ark.

BABI scx em a ee Ta a 266
Spence v. Geilfuss, 89 Wis. 499 - 178

v. Wilmington Cotton Mills,
115 N. C. 210 . 89
Spencer v. Haug, 45 Minn. 231 ‘
v. Harding, L.R.5C. P. 561 12

 

TABLE OF CASES.

PAGE,
Spencer’s Case, 5 Cooke 16... 319
"393; 394; 397, 398, 399, 507
Sperry v. Horr, 32 Iowa 134. . 313
Spiller v. Paris Skating Rink, 7
Chy .D, 368 «es we wos 8 293,
Spring Co. v. Knowlton, 103 U.S.
AO ae se
Springfield Ins. Co. v. Hull, 37 N.
BeTTi6.. we ew ae 190, 246
Spurgeon v. Swain, 41 N. E. 397 318
Stack v. Cavanaugh, 30 Atl. 350 25, 34
Stall v. Meek,.7oPa. St. 181 . . 6,
St. Andrew’s Lutheran Church’s

App., 67 Pa. St. 512 . 407
Stanton v. Embery, 93 U. S.548. 555
vw N. Y. & E. Ry. Co., 59

Cons 292: ees ewe
Stapleton v. Louisville Bkg. ae
23S. E. 81 2
Stark v. a ier 2 Peck ‘(as
26 68, 518

7 a
Starr v. Galgate Ship Co., 68 Fed.
234 . 68

State v. Cheaney, 52 Mo. App. 258 236
v. Clark, 3 Harrington 557 . 17

uv Collier, 72 Mo.13... . 246
v. Harris, 121 Mo. 445 . . . 455
v. Sheehan, 55 Mo. App. 66. 455
State v. Smith, 9 Houst. 143 - 235
State se v. McCoy, 69 Pa. St.
BOK Baste Gn 45, 47
State Nat. Bank v. Bennett, 36 N.
6 Sec serraes pate ee 352
State a Bank v. Shaffer, 9 Neb.
- 578
St. Clair v. ‘Perrine, 75 Ill. 366 128
Steele v. Lord, 70 N. Y. 280 - 579

Steer wv. Farrell, 14S. &R.379 - 49
Steffen v. Smith, 159 Pa. St. 207
53) 55) 57
Steman Baker & Co. v. Harrison
& Hooper, 42 Pa. St. 49 319
Stensgaard v. Smith, 43 Minn. 11 5
Stephens v. Dickson, 24 Pa. St.
TAS is Bena es ene 366, 371
Stephenson v. Cady, 117 Mass. 6 508
v. Line, 7 Oh. Cir. Ct. R. 147 140
Stern v. Meyer, 29 N. Y. S. 34 . 580
Sterrett v. Tel. Co., 18 W. N. C.
Tiss ae ee TR Ray ee 263
Steude v. Fisher, 50 Ill. App. 374 274
Stevens v. Coon, 1 Pinney 357. 136
v. King, 84 Me. 291 . 94
a a Ins. Co., 81 Wis.
v. eee 63 N. W. 655.
v. Rinehart, 72 Pa. St. 434 . 94
Stevenson z. Burgin, 49 Pa. St. 36 457
v, Crapnell, 114 Ill 19...

94
v. McLean, 5 Q. B. 346 . . 13, 14
TABLE OF CASES.

PAGE,

Stewart v. Allison, 6S. & R. 324 360
Stewart Paper Mfg. Co. v. Rau, 92
Ga. 511 "+s 46I

GAB ie dG he Se A ks
Stickler v. Giles, 37 Pac. 293 . .
Stiff v. Fisher, 2 Tex Civ. App.

646

_Stilk v. Myrick, 2 Camp. 317. .
Stix v. Raulston, 88 Ga. 743...
St. J. & Marsh Co. wv. Cornwell,

52 Kan. 712
St. Louis Elec. Light etc. Co. v.

Edison etc. Co., 64 Fed.

007 6 se HER eG » 239
St. L.&S. F.R. Co. uv. Kirkpat-

rick, 52 Kan. 104... . 90

v. Ryan, 19S. W. 839 ... 84
St. Mary’s Church, 7S. & R. 617. 82
Stocks v. Dobson, 4 De G. Mc.

N.&G.tr 2... .. 300
Stockwell vy. Baird, 31 Atl. 811 II5
Stoever v. Weir, 10 S. & R. 25 149

Stokes v. Mackay, 64 Hun. 639 . 68
v. Pease, 29 N. ¥.S. 430 . . 49

v. Stokes, 26 N. Y. S. 1025 . 490
Stoolfoos v. Jenkins, 12 S. & R.
400 .. . 34

Storer v. Logan, 9 Mass. 55. . - 320
Straight v. Wight, 63 N. W. 105. 120
Strauss v. Ins. Co., 5 Oh. St. 60. 88
v. Trotter, (N. Y. Com. Pl.)
26 N. Y. Sup. 20, 6 Misc.

Rep. 77... ee a 4464,
Streaper v. Fisher, 1 Rawle 154. 4II
Streeper v. Williams, 48 Pa. St.

ASO Gs ok. by aes ok, hae 428
Strickland v. Turner, 7 Exch. 208 154
Stickler v. Giles, 9 Wash. 147. . 7
Stringer v. Stringer, 93 Ga. 320 . 277
Strong v. Marcy, 33 Kan. 109 . 291

v. Sheffield, 144 N. Y. 392
124, 136
Stroud v. Water Co., 56 N. J. Law
B22. 6 ee he RR
Struthers v. Kendall & Son, 41
Pa. St. 214 . . 346, 363
Stuckert v. Anderson, 3 Wharton
T1630 ee ea we 361, 363
Stults v. Silva, 119 Mass. 139 . . 315
Sturbridge v. Franklin, 160 Mass.

TQ? seine ee eb
Suffell v. Bank of England, L. R.

9 Q. B. D. 555
Sullivan v. Flinn, 20 D.C. 396. 44
Sun. Mut. Ins. Co. uv, Ocean Ins.

Co., 107 U. S. 485 . . . 167
Suse v. Pompe, 98 E. C. L. R. 537 335

579

 

xliii
PAGE.

Sussex Bank v, Baldim, 2 Harrison
AST eee eRe ews 359

Sussex Peerage Case, 11 Cl. & F.
TAS eo yh we 1222
Sutherland v. Briggs, 6 Camp-
bell’s Rul. Cas., 721, 733 536
v. Rieve, 151 Ill. 384 . . . . 306
Swain wv. Schieffelin, 134 N. Y. 471 534
v, Seamens, 9 Wall. 254. . . 444
Swan v. No. British Australasian
Co., 7H. & N. 603... 149
Swansey v. Parker, 50 Pa. St. 441 339
Sweeney v. Thickstun, 77 Pa. St.
131

G20) you, Rosh ae ve ds 108
Swift v. Tyson, 16 Peters1. . 346, 348
Swift Co. v. U. S., 111 U.S. 22 . 192
Swope w Bier, 1o Ind. App. 613. 543
Synge v. Synge, (1894) I Q. B.

466 OW ; . 136
T.

Tabor v. Miles, 38 Pac. 64 .
Tailby v. Official Receiver, 13

App. Ca. 543
Talbot v. Stemmon’s Exrs, 89 Ky.

222 124
Tallman v. Coffin, 4 Comstock 134 395
Tams v. Lewis, 42 Pa. St. 402. . 555
Tanquary v. Walker, 47 Ill. App.

Sr Uiuesrien ase fete Sar innit cts 104

334
298

II5
201

Tate v. Williamson, 1 Eq. 528. .
Tayloe v. Fire Ins. Co., 9 Howard

ae ee Gl eHake 13
I5

v. Caldwell, 3 B. & S. 826,

6 Campb. Rul. Cas. 597

. 559, 569
uv. Gitt, Io Pa. 428... 306
v. Longworth, 14 Peters 172. 525
v. Meads, 4 De G. J. & Sm.

507. ob oe eet eg 49
v., Short, 107 Mo. 384 186
v. Smith, 61 L. J. Q. B. 331. 113

v. Smith, (1893) 2 Q. B. 65. 117
Teal v. Bilby, 123 U. S. 572 . 436, 437
Teitig v. Boesman, 12 Mont. 404. 100
Telfener v. Russ, 60 Fed. 228 436
Temperton v. Russell, 1 Q. B. (C.

AL) FT ce ks 290
Temple wv. Boker, 125 Pa. St. 634 334
Templeman v. Gibbs, 86 Tex. 358 III
Temple Nat. Bank v. Warner, 31

S. W. 239 .... =. . 186
xliv

PAGE.

Tenant v. Elliott, 1B. & P.3. . 266
alas v. pect 40 Ill. App.

429
Terwilliger v. deivitige 27 N.
Ve Si 284 cee es ao 8 579
‘Tel. Co. v. Tel. Co., 51 Fed. 49. 78
‘Tewksbury v. Howard, 37 N. E.

B55. ate i fay We eee Seed II9
‘Thacker v. Hardy, 4 Q. B. D. 685 231
Thamling v. Duffey, 37 Pac. 363 . 341
Thayer v. Daniels, 113 Mass, 129. 300
‘The Bank of Harrisburg v. Huston,

11 W.N. C. 389 . + 542
‘The Cayuga, 59 Fed. 483 . . . . 431
‘The Harriman, 9 Wallace 161. . 135
‘Theis v. Byers, 1 Q. B. D. 244. 559

Theyken v. ve Mach. Co., 109
Pa. St: 05) 3% ee es 306
‘Thomas v. ‘Goole 58 B.&C. 728.
v, Hayward, L. R. 4 Exch.
BIT oa) a a
vw. R.R.Co., of U.S. 71... 87
v. Shoemaker, 6 W. & S. I79 455
‘Thompson v. Davenport, 9 B. 5
Oy a a a 6, 79
Thompson, Houston Co. v. Capital
Electric Co., 56 Fed. 849 327
Thompson z. Marshall, 5° Mo.

App. 145. - se 25
v. Sloan, 23 Wend. aa . 312
v. Smith, 96 Mich. 258. . . 95
v. Water & Sewer Co., 68

MisSs:423. cx i we we

v. Poor, 67 Hun. 653. . 107
Thormaehlen v. Kaeppel, 89 Wis.
378 . s+ 23
‘Thorn v. Pinkham, ‘84 Me. 103. 237
eae 2 Morrison, 25 Pa. St.
Thorne - faa 24 N. Y. "Sup.
694, 4 Misc. Rep. 436 456, 525
Thorton ms Dick, 4 Espinasse
a ee ae 324
v. Ingsworth, 2 B. & C. 824 20
‘Thorp v. Thorp, 12 Modern 455 . 490
‘Thorpe v. Connelly, 48 Mo. App.

Or aie: Sgt nat cak Gg Say 29
Thursby v. Plant, 1 Saunders 230 392
‘Thurston v. Arnold, 43 Iowa 43

421, 427
Tibbits v. Rock Island Rwy. Co.,

49 Ill. App. 567 - 375

' Tichnor v. Hart, 52 Minn. 407. . II
‘Tingley v. Bellingham etc. Co., 5

Wash. 644....... 121

v. Boom Co., 4 Wash. 644. . 88

v. Fairhaven Land Co., 9

Wash. 34 436

 

TABLE OF CASES.

PAGE,

Tobey v. Lenning, 14 Pa. St. 483 370
Tod uv. - Un. Land Co., 57 Fed.
Todd z. Lederach, 4 Pa, Dist. R,

7B. sey ay se le Sas eh 578

Tode wv. Gross, 127 N. Y. 480 . . 254

Tolhurst v. Powers, 133 N. Y. 460 193

Tompkins v. Compton, 93 Ga. 520 258
Tompkinson v. Muzzy, 2 Wash.

616 ane wo ++ 205
Toms v. Owen, 52 Fed. 4r7. -. O94
Tornado, The, 108 U. S. 342... 571
Torrens _ ee 74 Pa. St.
Be! aut & 293
Touche y Metropolitan Co., 6 Ch,
Toe co. slen fie soe Cigd lotr dee oa 293
Towne v. Davis, 22 Atl. 450. 116
Townsend v, Auld 28 N. Y. S.
746; 31 N. Y.S. 29. . . 370
v. Jemison, 9 How. ar - 274
Tozer v. O’Gorman, 61 N. W. 895 268
Tracy v. Talmage, 14 N. Y. 162. 261

Traders Nat. Bank v. Parker, 130

 

Ne Ye4T§ sos wee 8 es 129
Trainer v. Trumbull, 141 Mass.

527° 5 A we ee Ree 18, 28
Traver, v. I Sid. 57 es + 125
Trevor v. Wood, 36 N. VY. 307. . 14
Trist v. Child, 21 Wall. 441. . . 245
Trogman z. Littlefield, 18 N. Y.

Sup. 583..... e 207
Troy Co. v. Logan, 96 Ala.619 . 7

Trueblood v. Trueblood, 8Ind. 195 37
Trueman v. Loder, 11 A. & E.178 119
Trustee v. Thatcher, 87 N. Y. 311 409
Trustees of Dartmouth College z.
Woodward, 4 Wheat. 518 81
Tucker v. Moreland, ro Peters 67 32
v. Roach, 38 N. E. 822 . . . 202
Tulk v. Moxhay, 2 Ph. 774. 404
Tullis v. Jackson, (1892) 3 Ch. ‘441 ag
Turner v. Brooks, 21 S. W. 404 .
v. Collins, 7 Ch. App. 239 i
v. Warren, 160 Pa. St. 336. 60, 94
Tufts v. Weinfeld, 88 Wis. 647 . 534
Tweddle v. Atkinson, 1 B. & S. 393 291

Tyler v. Hall, 106 Mo. 313... 94
uv. Young, 30 Pa. St. 143 . . 332
Uz.

Uhlig v. Barnum, 43 Neb. 584. . 576
Ulrich v. Hower, 156 Pa. St. 414 318
Underhill v. Land etc. Co., 93 Cal.
BOO 2 ae we +
Union Bank v. Hyde, 6 Wheaton
B72: iets ae. el od 366
v. Shea, 58 N. W.985 ...- 319
Union Pac. Ry. Co. vw Chicago

etc. Co., 51 Fed. 309 . . 212
TABLE OF CASES.

PAGE,
Union v. Johnston, 63 N. W. 144 380
Union Trust Co. v. McClellan, 21
S. Be 1025 ek ee
United States v. Bank of Metropo-
lis, 15 Peters 377. . . 343
v. Behan, 110 U. S. 338 . 483, 534
v, Grossmayer, 9 Wall.72. . 16
v. Huckabee, 16 Wall. 414 I9QI
v. Owens, 2 Peters 527 . 223
v. Trans. Mo. Ass’n, 58 Fed.
BS oe we ie - 241, 252
Bank v. Ewing, 131 N. Y.
506 .. + 351
v. Smith, 11 Wheaton, 171 . 362
U. S. Nat. Bank v. First Nat.
Bank, 64 Fed. 985
U. S. Chem. Co. v. Provident
Chem. Co., 64 Fed. 946.
Universal Stock "Exchange v.
Stevens, 66 Law T. 612. 231
Unruh v. Lukens, 166 Pa. St. 324 206
Upton w. Tribilcock, 91 U.S. 45. 180
Urban v. Grimes, 2 Gr. Cases 96. 23
Laila - Whitelegg, 55 J. P.

254
Ueertichte v. McGreal, 1 App. B.
C3506 a5 el oe ee 25

U. S.

354

252

Vv.

Vadakin v. Soper, 2 Am. L. C. 163 293
Valentine v. Canali, 24 Q. B. D.

166 se ae See ee 35
Van Brunt v. Day, 81 N. Y. 251. 421
Van Buskirk‘v. Ins. Co., 14 Conn.

I4I .
Van Dusen z. King, 64N. W.9.
Van Dyke v. Wilder, 66 Vt. 579 .
Van Haagen’s Estate, 141 Pa. St.

DTA eco: Seas Vy As 464
Van Horn v. Dick, 151 Pa. St. 341 237
Van Patten v. Beals, 461a.62.. 44
Van Schaick “ Bhone Buren, 70

Hun. 5
Van eee vw Miz. Co., 142 U.S.

ae a
543

435

433
547

Van Bickle v. O’Heran, 50 N. J.
Eq. 173
Vanuxem z. Burr, 151 Mass. 386 .
Venezuela Rwy. Co. v. Kisch,
6 Campbell’s Rul. Cas.

173
273

PRO y coca es dy ee US Caw shy San
Verrie v. Guillon, 97 Pa. St. 63 .
Vicars v. Wilcox, 2 Sm. L. Cas.

SL jee ek at BS 533
Vickers v.Chicago, B.& Ll. R. Co.,

71 Fed. 139 » 2. 544
Viley v. Pettit, 29 S. W. 3 38. 139
Visalia Gas & ‘Light Co. uv. Sims,

104 Cal. 326...... 89

 

xiv
PAGE,
Voege v. Ronalds, 83 Hun. 114. 444
Vogel v. Ripper, 34 Ill. 100 . 578

Von Storch v, Griffin, 77 Pa. St.
504 175
Vulcan Powder Co. v Hercules P.

Co., 96 Cal, 510. . 222
W.

Wabash Western Ry. v. Brow, 65
Fed. :Q40) 5-22 ele ss) cca 431

Wachsmuth v. Nat. Bank,96 sana
B26 ce es 84.
Wade vz. Creighton, 36 Pac. 289 . 334
v. Kalbfleisch, 58 N. Y. 282. 412

v, Simmeon, 52 E. C. L. R.
BAG ser i i oe oe Le deo 130

Waesche’ s Est. ; 166 Pa, St. 204. 64
Wargar.v. Bowley, 62 N. W. 293 249
Waggoner v. Cox, 40 Oh. St. 539. 428
Wagner v. Crook, 167 Pa. 259. . 365
v. Kingsley, 27 N. Y. S. 1124 528
Wagoner v. Watts, 44 N. J. L. 126 73
Wain v. Warlters, 5 East Io . 119, 120:
Wait v. Baker, 2 Exch.1. . .. 451
v. Pomeroy, 20 Mich. 425. . 344
Wake v. Harrop, 6H. & N. 768. 421
Walker v. Cosgrain, 101 Mich. 604 179
v. Cronin, 107 Mass. 555. . 290
v. Davis, 1 Gray 506... . 35

v. France, 112 Pa, St. 203. . 421
v. Hatry, 152 Pa. St. 1... 462
v. McDonald, 2 Exch. 527 331
v. Nussey, 16 M. & W. 302. II6
v. Sampson, 7 W. & S. 88 . 29, 66
v. Walker’s Exrs., 9 Wall. 743 241

Wall v. Ry. Co., 86 Wis. 48. . . 279
Wallace v. Sisson, 33 Pac. 496.» 5

Walls v. Bailey, 49 N. Y. 464. . 425
Walmesley v. Cooper,11 Ad. &
DIOL ose or yeh] cy eho Sy Bc oS ” 540
Walmsley vz. Darragh, 33 N.Y.
Sup. 274... -. 42

Walsh v. Young, 110 Mass. 396 - 25
Walstrom v. Hopkins, 103 Pa. St.
ug. . . » 436, 437
Walter v. Jones, 148 Pa. St. 580 . 54
Walters v. Western & A. R. Co. 63

Fed.391......--. 380
Walter A. Wood Co. v. Oliver, 61
Ni Wi i5O7 sa: eos. see tase 237

Walton v. Gaines, 94 Tenn. 420. 24
v. Waterhouse, 2 Wm. Saund.

421, @ 565 570
Waples v. Hastings, 3 Harrington
ABO se Hh ew 36:

Ward v. Anderson, 111 N. C. 115 24

v. Hobbs, 3Q. B. D. 150 . . 176
v. Morrison, 25 Vt. 593. - . 300
v. Vance, 93 Pa. St. 499 . 571
xlvi

PAGE.

Warden v. Jones, 23 Beadan 487 .
Warlow a Harrison, 1 E. & FE,

Warnick: o ® Sroshalez, 3 Gr. Cas-
es 234
Warnock v. Davis, 104 U. S. 775 .
Warren v. Burt, 58 Fed. Io1
v. Richie, 30 8. W. 1023
ene Vv Senn, 31
. W. 88

Washington A. & G. Steam
Packet Co. v. Sickles, 24
How. 333, also 5 Wall.
580 552;
Sisdeeles Mills Mfg. ‘Co. v.
Ins. Co., 125 Mass. 503 .
Washington Turnpike Vv. Shore?
Pa. Dist. R. 639 .
Waterman vz. Resseter, 45. Tl.
App. 155... - (105,
Water Works Co. z. Lumber Co.,
85 Iowa 112 ;
Watson : penn 11C. B.N.S.

ee ee ew ee

Ye
Waugh wv. Beck, 114 Pa. St. 422.
261,
v. Morris, L. R. 8 Q. B. 202 .
Wayman v. Jones, 58 Mo. App.
ce ee ee ee ee
Weal v. King, 12 East 534 os
Weaver v. Burr, 31 W. Va. 736 .
D Farrington, 27 N.Y. S.
Lge 6b e ew ee
v. Weaver, 1 Northampton
Co. Rep. (Pa.) 373. -
Webb v. B. & ELS. R. Co., 7
Md.92 ...
v. Mears, 45 Pa. 222 Ga
Webber v. Indiana Nat. Bank, 49
Ill. App. 336
Webber v. Quaw, 46 Wis. 118.
Weber Co. v. C. St. P. M. & O.
R. Co., 60 N. W. 637. .
Weber’s Est., 25 W. N. C. 220
Webster v. Trust Co., 145 N. Y.
275
v. McGinnes, 5 Binney 235 .
Weeks v. Esler, 68 Hun. 518 . .
v. Tybold, Rolle’s Abd. p.6.
are v. Keene, I cae

280

II

Io4
230

2 + 239

183
24

100
71
76
14

186

263,
259

237
15
351

- 580

IIl

 

TABLE OF CASES.

PAGE.
Weimer v. Worth Pome, 104
Pa. St. 320.

; 137
Weis v. Ahrenbeck, 5 Tex. "Civ.

App. 542
Weld v. Barker, 153 Pa. St. 465 452, ace
Vv. Beings Bank, 158 Mass.

6 Giger ma le Be ay 466

Wellers aoe. Io3, Pa. St. 594° 148
Wells v. Alexandre, 130 N. Y.

GA ie hie ar Aer chs, Beat 2 13

v, Calnan, 107 Mass. 514 . . 572

v. Cook, 16 Oh. St. 67 182

v. Graham, 4 B. & P. I40. 35
v. The Mayor etc. of Kings-
ton-upon-Hull, L. R. to

Cs Be 4O2 te ip Beso xs 99
Welsh v. Heim Brewing Ca, 47

Mo. App. 608 69

vw Huckestein, 152 Pa. St. 27 425
v. Kline, 157 Pa, St. 428 54
Wendstrom etc. Co. v. Pumell,

75 Md. 113. sus 382
Wennall v. Adney, 3 B. & P. 247 134
Werner v. Rawson, 89 Ga. 619 148
Wesner v. Stein, 97 Pa. St. 322 . 274
West v. West, 29S. W. 242. . 146
Western Ave. Bldg. Ass’n v. Wal-

ters, 7 Oh. Cir. Ct. R.

208 eg dee ae geet 189
Western Saving Fund v. Phila-

delphia, 7 Casey 185 . . 82
Western Union Tel. Co. v. Allen,

66 Miss. 549 ...... 180

v. Ry. Co., 3 McCrary, 130 . 258

Western Wagon Co. v. West, 1

Cheo7t «aw. % 298
Westfield v. Dill, 12 Pa. C. C. R. 30 147
Westman v. ‘Krumweide, 30

Minn. 313 . 419
West. Pub. House v. Rock, 84

Iowa IolI ....... 70
West Republic etc. Co. v. Jones,

Io8 Pa. St.55 ...-.. 163
West St. Louis Bank v. Shaunee
Co. Bank, 95 U.S.557.. . 357
Wetherill z. Langston, IW. H.

& G. 634. 540
Whaley v. Neill, 44 Mo. ‘App. 316 354
Wheaton v. East, 5 Yeager 62 24
Wheeler v. Barr, 7 Ind. App. 381 73

v, Barr, 34 N. KE. 591... . 68
v. Britton, 63 Hun. 628 . 459
v. Smith, 9 Howard 55 . 211
v. Walton & Whann Co., 64

Bed. 6645 4.4 2 ss «5 299
Wheeler & Wilson Mfg. Co. wv.

Jacobs, 21 N. Y. S. t00.

25, 33

Wheelton uv. Hardisty, 8 E. & B.
232

ee eee we ww
TABLE OF CASES.

PAGE.

EE Forster, 14 C. B. N.

Oh vat araphtentee oak Ae Me 328

Whitaker vy. Burrows, 71 Hun.
BIB ee ae es es 276
uv. Eastwick, 75 Pa. St. 229 . 156
White v. Bigelow, 154 Mass. 593 . 107
v. Bluett, 2 E.C. L. R. 301: 136
vw Cuyler, 6T. R. 176 - 576
v. Heyhnan, 34 Pa. St. 142 . 194
v. Mooers, 86 Me. 62. . . . 536

vw. N. Y. & N. E. R. Co., 156
Mass, 181 . . - 95
v. Pollock, 117 Mo. 467 . ». 94
v. Proctor, 4 Taunton 209. . 121

UY — Dist., 159 Pa. St.
staan’ (amie ae eas 10

While z. Vt. & Mass. R. R. Co., 8

21 How. 575 ..-... 326
White v. White, 18 So. 3 120

White’s bea v onal, 39 Pa,
TO7e ogee hae ee 308
Whitehall v. Wilson, 3 Penrose &
Watts 405 .......
Whitehead v. Walker, 9 M. & W.
506 2-4 as , BO Sh 335
White Water Canal Co. v. Vallette,
21 How. 424 .....-.
Whiting v. Equitable Life Assur-
ance Soc., 60 Fed. 197. 461
Whitla v. Moore, 164 Pa. St. 451, 456
Whitlinger v. Jack, 16 Pa. C.C.R.

TTD) ee Se! Boe cee Ss 58
Whitman vz. Uae 31 N. "y,
Sup. I009 . » 77

Whitney v. Dutch, 14 Mass. 457. 38
v. Wyman, Ior U.S. 392. 72, 76
Whitney Arms Co. wv. Barlow, 63
N. Y.

” 205
313

54
Whittle v. Bank, 26 S. W. 1106.
Wieman v. Anderson, 42 Pa. St.
BIE ogo g er Se 54
Wiffen v. Roberts, 1 Espinasse 261 363
Wigglesworth S Dallison, 1 Sm.
UC. 9
Wightman v. Wightman, 4 John-
son’s Ch. 343
Wilber v. N. ¥. Elec. Co., 58 N.
Y. Sup. 539 --.-
Wilde v. Sheridan, 21 L. J. Rep.
260

424

Wilde vw. Wilde, 37 Neb. 891 . 240
Wilder v. Piggott, 22 Ch. Div. 263 24
Wildes v. Dudlow, L. R. 19 Eq.
198 2.) Sy @ Gee 106
Wiley v. Brundred, 158 Pa. St. 579 173
Wilhelm v. Caul, 2W. & S. 26 . 447
Wilkin Mfg. Co. vy. Land Lumber
Co., 94 Mich. 158... 5,9

 

xlvii

PAGE.
Wilkinson v. Colley, 164 Pa. St.
3 537
v. Coverdale, 1 Espinasse 75. 68
Willard v. Nelson, 35 Neb. 651 . 149
Williams z. Bailey, U.R.1 HL,

200 4b ae Bs 189, 202, 246
v. Carwardine, 4 B. & Ad.

O27 eho Geechee we Il
v. Germaine, 7B. & C. 468 . 318
v. Hardie, 85 Tex. 499 ... 95
v. Ingersoll, 89 N. Y. 508. . 300
v. Lane, 87 Wis. 152 - 455
v. Latham, 113 Mo 165... 94
v. Montgomery, 68 Hun. 416 254
v. Moor, 11 M. & W. 255 . 20, 21
v. Morris, 95 U. S. 444 . . - 279
v, Short, 155 Pa. St. 480 . . 304
Vv Smith, 2B. & Ald. 496. . 371
v. Smith, 2 Hill 301. . . 345, 351
v. Watts, 1 Campbell 552 . . 330

v. Williams, 148 Ill. 426 . . 94
Williamson v. Cline, 20S. E. 917 96

v. Watts, 1 Campbell 552 . 20, 343
Willis v. Lockett, 26S.W. 419 . 95
Wills v. Carpenter, 75 Md. 80. . 6
Wilmington Trans. Co. v. O'Neil,

98 Cal. 654. ....-. 569
Wilson v. Carpenter’s Adm., 21
SOAS oy es ae blag fa 183
uv. Lyle, 23 W. N. C. 309 . . 468
v, Mechanics Bank, 45 Pa.
SE 404s sgn Gat db 355
v. Tucker, I0 R. 1.578 . . 417

v. Tumman, 6M. & G. 236. 70

v. Vass, 54 Mo. App. 221 . . 106
Wilson’s App., 99 Pa. St. 545 . . 200
Wilt v. Welsh, 6 Watts9 .. = 34
a . Express Co., 64 Vt.

I dei dott os has A 74
Winchester & P. R. Co. v. UL. S.,

27 Ct. Cl. 404. os se es 12
Winkler v. Winkler, 26S. W. 893 211
Winner v. Lippincott Inv. Co., 28

S. W. (Mo.) 998 .  . . +292
Winterbottom wv. Williams, 152

WN, B34) ke he ek 94
Wire & Cable Co. v. Baltimore, 66

Fed. TAG. se se ai ae es 534
Wirebach’s Sey v. Bank, 97 Pa,

Ste $43) - kl ce a ee es 44
Wodock z. PR opiieon: 148 Pa. St.

sy Bas ke esa 1h 576

503 :
Wolf v. Arminus Mine Co., 27 N.
Y.S. 642 .. . 89

Wolff v. Dorsey, 38 Ill. App. 305 313
Wood v. Boynton, 64 Wis. 265 156
v. Corcoran, 1 Allen 405 105
v, Lambert, 85 Iowa 580 202

v. Losey, 22 Am. L. Reg. N.
S. 605 24 a 6 wr . 28
xlviii

PAGE.
Wood vw. Moriarty, 15 R. I. 518 . 419
v. Neeld, 44 Pa. St. 86 .  . 370

Woodbury Granite Co. v. Mulli-
ken, 66.Vt.455...-.-. 84

saa v. Hamilton, 39 N. E.
Pee ker ee 259, 265

Woodham v. Edwardes, 5 Ad. &
a G7Thne sas se 6 com sana a 334

Wood Mining Co. v. Gaertner, 55
Mich. 453

Wood River Bank v. First Nat.
Bk., 55 N. W. 239 . . . 366
Woods v. North, 84 Pa. St. 4o7 . 312

Woodsen v. Owens, 12 ponuiers
207 . . . 351
Woolf z. Ropes 5 Hill 458 . 105

Woollam v. Hearn, 2 L. Cas. in
Eq. 1032.
Woollums v. Horsley, 93 Ky. 582
Work’s App., 59 Pa. St. 444. .
Worrall’s App., 110 Pa. St. 349 .
Worrell’s Accounts, 5 W. &S. 112
Worth wv. Patton, 5 ‘Ind. App. 272
Worthington vz. ‘Major, 94 Mich.

325
Wrench Co. v. Amstutz, 50 Ob, ‘St.

484 .
Wright v. Hart’s Admr., 44 Pa.
St. 454
v. Pipe Line Co., ror Pa. St
BOM sis iar ay BE os ah Ser 89
Wyckoff v. Ferree, 168 Pa. St. 261 101
Wyman v. Moore, 77 Pac. 230.
Wynne vz. Raikes, 5 East 514.

 

TABLE OF CASES.

X.

PAGE.
Xenos v. Wickham, L. R. 2H. L.
296; 2H. & I. Ap. 296.

8, 9, 15, 94

Vi
Yale Gas Stove Co. vw. Wilcox, 64

Conn. IoL. . . 173
Yaler v. Dark, 17 N. Y.S. 179. 351
Yaw v. Kerr, 47 Pa. St. 333 . 141, 274
Yockey v. Norn, tot Mich. 193. 449

Young v. Otto, 59 N. W. — - 40
Young - Semmes a 145 N

ee ee is "279

Young ee A ik 41 Ill. App. 28. I90
Z.

Zachry v. Nolan, 66 Fed. 467. . 276

Zech’s Estate, 7” ve, 15 Pa. Co. Ct.
i R. 622; 4 Pa. Dist. R. 250 454
Zimmerman 2 Anderson, 67 Pa.
St. 4 pinch cibeeacevar. pall

v. Bitner, 28 Atl. 820.

Zimmer v. N. V. C. & H.R. R.
137N. Y. 460 9
Zimmerman v. Rote, 75 Pa. St. 188 344.

Zouche v. Parsons, 3 Burrows 180
23, 31, 36

Zuch & Henry v. McClure & Com-
pany, 98 Pa. St. 541. - 479
Zurn v. Noedel, 113 Pa. St. 336. 54
HOLLINGSWORTH ON CONTRACTS.

()
A

TREATISE

ON THE

LAW OF CONTRACTS.

PART I.
THE FORMATION OF A CONTRACT.

The effort to define the nature and source of the con-
tractual obligation has resulted in many theories, each
of which, from its particular point of view, may suffice
to explain the content of this body of the law, but no
one of which can be said to express more than a half
truth. Doubtless it is true at present, that agreement
forms the basis of the obligation, but since this agree-
ment may be implied by law in certain cases, it hardly
can be material whether in theory such agreement must
rest actually in the wills of both parties or finds its
basis in the phenomena from which such agreement
ordinarily would be inferred. Without attempting to
theorize, then, the inquiry into the formation of a con-
tract will seek to discover those rules which in practice
determine the existence of a valid contract, ever bearing

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4 LAW OF CONTRACTS.

in mind, that if not defined, the law of contract may
be described ‘“‘as the endeavor of the State, a more or
less imperfect one by the nature of the case, to establish
a positive sanction for the. expectation of good faith
which has grown up in the mutual dealings of men of
average right-mindedness.”’ *

The questions which naturally present themselves in
such an inquiry are: What constitutes a contract?
Who may enter into it? What form may it take?
What consideration will support it? Is the expressed
consent a real consent? and is the agreement entered
into a legal one? - :

In answering these questions, in the order presented,
the subjects to be treated are: (1) Agreement, Proposal
and Acceptance; (2) The Capacity of Parties, and therein
of Legal and Professional Status, Infants, Lunatics and
Drunkards, Married Women, Agents and Corporations; (3)
The Form of Contract; (4) Consideration; (5) The Reality
of Consent, and therein of Mistake, Misrepresentation,
Fraud, Duress and Undue Influence; (6) Legality of
Agreement; to which will be added a discussion. of
agreements to do an impossible thing. and agreements of
Imperfect Obligation. .

1 Pollock on Contracts, preface to fourth edition. For a criticism of some of

the theories of the contractual obligation see Part I., introduction to the first
edition of Anson on Contracts.
CHAPTER I.

AGREEMENT, PROPOSAL AND ACCEPTANCE.

“Every agreement or promise enforceable at law is a
coutract.”’

‘““An agreement is an act in the law whereby two or
more persons declare their consent, as to any act or thing
to be done, or foreborne, by some or one of those persons,
for the use of the others or other of them.”

‘Such a declaration may consist of, (a2) The concur-
rence of the parties, in a spoken or written form of words,
as expressing their common intention, or (4) A proposal
made by some or one of them and accepted by the others
or other of them.

‘““The declaration by any person of his intention to do,
or forbear from anything, at the request, or for the use of
another, is called a promise.”

1. There must be at least two parties to an agreement.”

2. There must be a consent, the meeting of two
minds in one and the same intention. As expressed in
note to Jordan wv. Norton,? “It takes two to make a con-
tract, and they must be of agreeing minds.’

1 Pollock on Contracts, * pp. rand 2. For collected definitions of a contract,
see Justice v. Lang, 42 N. Y. 493.

_? Falukner v. Lowe, 2 Exch. (Wesley, Hurlstone & Gordon) 595; Gorham’s
Admr. v. Meacham’s Admr., 63 Vt. 231; Hoyle vw. Hoyle (1893), 1 Ch. 99.

3 Shirley’s Leading Cases, * p. 5.

‘Wilkin Mfg. Co. v. Land Lumber Co., 94 Mich. 158; Harvey v. Facey, 1
Reports, 428, (1893) App. Cas. 552; Robinson v. Estes, 53 Mo. App. 582; Jack-
son v. Rode (Com. Pl. N. Y.), 28 N. Y. Sup. 147, 7 Misc. Rep. 680; ‘Crosby vz.
D. & H. Canal Co., 141 N. Y. 589; Glover v. Tousley, tor Mich. 229; Lamar

Elevator Co. v. Craddock, 37 Pac. 950; Bryant v. Oudrak, 87 Hun. 477. See Wals
lace v. Sisson, 33 Pac. 496; Stensgaard v. Smith, 43 Minn. 11.

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6 LAW OF CONTRACTS.

3. The thing as to which there is a consent must be
“an act in the law.”* By this is meant an assumption
of legal rights and duties. ‘An obligation must be
created which can be dealt with by the Courts. It must
be something of a money value.”? When a person asks
another to drive or take a-walk, and that other consents,
there is no contract, because there is no intention to
create an obligation. Contra in case of a “ cabby.” :

A mere statement in conversation of an intention
will not constitute a promise. In Weeks wv. Tybold,? the
defendant told the plaintiff that he would give one hun-
dred pounds to him who would marry his daughter, with
his consent. The plaintiff married the daughter with his
consent, and brought an action for the hundred pounds,
but failed to recover, it being held that it was unreason-
able that a man “should be bound by general words
spoken to excite suitors.”* An offer made and accepted
in jest is not binding.’

An agreement must be one not only intended to
affect legal relations, but it must be capable of affecting
them. ‘Thus where the purchaser of a horse promised that
“if the horse was lucky to him, he would give five
pounds more, or the buying of another horse,” it was
held to be too loose a promise'to be enforced.° Soa promise

1 Pollock on Contracts, *3; Fairplay School Township v. O’Neal,] 127
Ind. 95.

Anson on Contracts, p. 3. See Hamer v. Sidway, 124 N. Y. 538, that
the parties may fix a value to that which is not reducible to a monetary
valuation.

5 Rolle’s Abridgement, p. 6. :

“A mere voluntary statement or declaration of intention is not a contract.
Smithmeyer v. U. S., 147 U. S. 342; Zz ve Sanborn, 148 U.S. 222; McCarty vz.
Brackenridge, 1 Tex. Civ. App. 170; Perkins v. Westcoat, 33 Pac. 139.

5 McClurg v. Terry, 21 N. J., Eq. 225 (a mock marriage); Keller v. Halder-
man, 11 Mich. 248; Higgins v. Lessig, 49 Ill. App. 459. But see McKinzie v.
Stretch, 53 Ill. App. 184.

6 Guthing v. Lynn, 2 B. & Ad. 232. For other contracts void because of un-
certainty see Johnston v. Fessler, 7 Watts (Pa.) 48; Davie v. Mining Co., 93
Mich. 491; Wills v. Carpenter, 75 Md. 80; Van Schaick v. Van Buren, 70 Hun,
AGREEMENT, PROPOSAL AND ACCEPTANCE. 7

to pay for services what the promisor should deem right,
is held not enforcible.* In Potter v. Carpenter,’? where
parties had rendered legitimate services to each other
which were not intended to be brought into any account
between them and charged for, they could not subse-
quently sue each other for the value of those services. The
promise of roo acres of ground was held to be too vague.

4. The consequences of consent must affect the
parties themselves. The verdict of a jury, although it
is an agreement of twelve men, is not a contract, because
it does not affect the relation of the twelve men
among themselves; and so of the judgment of a Court,
consisting of the several judges ;* or the agreement of
several trustees in the exercise of a power; or of the
board of directors of a corporation, because no obligation
is created from any one or more of the agreeing parties
to the other or others of the agreeing parties.

5. Both parties to the agreement must be bound.s The
exception to this rule is the case of a grant under seal.

575; Rafolovitz v. Tobacco Co., 73 Hun. 87; ex parte Baxter, (1892) 2Q. B. 478;
Clark v. Pearson, 53 Ill. App. 310; Barton v. Spinning, 8 Wash. 458; Stickler v.
Giles, 9 Wash. 147; Sinclair v. Hicks, 21 S. E. 395; Furst v. Tweed, 61 N. W. 857.
For agreements held sufficiently definite see Troy Fertilizer Co. v. Logan, 96
Ala. 619; Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Indianapolis Cabinet Co.
v. Hermann, 7 Ind. App. 462; Caldwell v. School District, 55 Fed. 372; Wrench
Co. v. Amstutz, 50 Ohio, 484; Brady v. Smith, 28 N. Y. Sup. 776, 8 Misc. Rep.
465;.Cole v. Edwards, 61 N. W. 940; Lungerhousen w, Crittenden, 61 N. W. 270.

1 Taylor v. Brewer, 1 M. & S. 290.

246N. VY. 157.

* Sherman v. Kittsmiller, 17S. & R. (Pa) 45-48.

4 Morley v. Lake Shore Ry. Co., 146 U.S. 162.

5 Jordan v. Norten, 4 M. & W. 161; Bloom v. Hazzard, 104 Cal. 310; Nunnelly
v. Southern Iron Co., 94 Tenn. 397; Moritz v. Melhorn, 1 Harris, 331; Cooke v7
Oxley, 3 T. R. 653; Cozart v. Herndon, 114 N. C. 252; Harvey uv. Facey, 1 Re-
ports 428, (1893) App. Cas. 252; Oullahan v. Baldwin, 100 Cal. 648. Rafolovitz
v. American Tobacco Co., 73 Hun. 87; Nilles v. Welsh, (Iowa), 56 N. W. 657;
Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Ins. Co. v, Quinlan, 53 Mo. App.
357; Robson v. Logging Co., 61 Fed. R, 893; Southern Pac. R. Co. v. Allen,
40 Pac. 752; Chicago & A. R. Co. wv. Jones, 53 Ill. App. 431; Ames w. Pierson,
4 Pa. Dist. R. 392.
sl. LAW OF CONTRACTS.

The leading case is that of Xenos v. Wickham,’ in whicha
policy of marine insurance, “signed, sealed and delivered”
by the defendants, was never accepted by the plaintiff, the
insured, but remained in the defendant’s office. It was held
by the House of Lords that the insured was entitled to
the benefit of the policy. The case is well worth reading.

An agreement to do an illegal or impossible thing
does not make a contract, because no one is bound to
do an illegal or impossible act. A promise to do a
thing on an executed consideration is not a contract,
unless the thing done or foreborne was by the request
of the promisor, because there is nothing binding on the
promisee. Where an act is done for the benefit of an-
other, without his request, as there is nothing which
bound the man doing the act, there is nothing to bind
the man for whose benefit it was done to compensate
him. ‘This matter will be more freely discussed under
the head of consideration.

Besides the exceptions already referred to, there is an
apparent exception to this rule in the case of contracts
in which infants, married women and lunatics are parties,
which will be noticed later.

6. Consent must be as to the same thing.

“There must be a proposal squarely assented to:”?
otherwise, there is no meeting of two minds in the same
intention. If the offer is accepted with a qualification it
amounts to a rejection of the offer and a making of a
new offer by the offeree. 3

1L. R. 2H. I. 296.

2? Wharton on Contracts, ¢ 4.

4Hyde v. Wrench, 3 Beavan 334; Potts v. Whitehead, 23 N. J. Eq. 572;
Slaymaker v. Irwin, 4 Wharton (Pa.), 369; Minneapolis & St. Louis R. Co. wv.
Columbus Rolling Mill, 119 U. S. 149; Hutchinson v. Bovker, 5 M. & W. 535;
Goulding v. Hanemond, 4 Cire. Ct. App. 533; 54 Fed. R. 639; Egger v. Nesbit,
122 Mo. 667; Mygatt v. Tarbell, 85 Wis. 457; Sparks v. Pittsburg Co., 159 Pa.

St. 295, 34 W. N. C. 27; Putnam v. Grace, 161 Mass. 237; Kirwan v, Byrne,
(Com. Pl. N. Y.) 29 S. 287, 9 Misc Rep. 76; Turner v. Brooks, 21 S. W. 404;
AGREEMENT, PROPOSAL AND ACCEPTANCE. ‘9

- In Hutchinson v. Bowker, an offer to sell good barley
was held not to have been accepted, where the party to
whom it was made replied: ‘ We accept your offer, ex-
pecting you to give us fie barley,” there being a rec-
ognized difference in the market between ‘“ good” and
“fine” barley.’ 2

7. There are two ways of declaring consent in the law
already stated.

One by the concurrence of the parties, in a spoken or
written form of words, and the other by a proposal made
by one and accepted by the other.

The first form is the usual one, in cases where con-
tracts are reduced to writing, and signed at the time,
by both parties, and in such cases the question whether
the parties have actually contracted seldom can arise.
It does sometimes occur, however, as in the case of a
deed where there has been no actual delivery. See
Xenos v. Wickham. ’

This mode of declaring consent is distinguished by
Pollock’ from a proposal and acceptance. Other writers
on contracts, notably Wharton and Anson, treat all con-
tracts as in effect amounting to an offer accepted.‘

\

Robertson v. Tapley, 48 Mo. App. 239; Wilkin Mfg. Co. v. Lumber Co., 94
Mich. 158; Glass Works v. Barnes & Co., 86 Hun. 374; Havens v. Ins. Co., 39
N. E. 40; Weber Co. v. C. St. P. M. & O. R. Co.,60 N. W. 637; DeYonge v.
Hunt, 61 N. W. 341; Crossley v. Maycock, L. R. 18 Eq. 180; Jones v. Daniel, 8
Reports 579; (1894) 2 Ch. 332. But a request by lessee, when lease was made,
for permission to add a cook-room to the farm-house, is not a condition which
must be accepted by PIff. before the contract of lease would be, complete.
Culton v. Gilchrist, 61 N. W. 384. See also Kennedy wv. Gramling, 33 S. C. 367;
Baker v. Holt, 56 Kan. 100. To what extent the conditions accompanying a
printed R. R. ticket are accepted by the passenger, see Richardson v. Roan-
tree, (1894) A. C. 217; 63 L. J. Q. B. 283; Fonseca v. Cunard S. S. Co., 153
Mass. 553; Ballon v. Earle, 17 R. I. 441; Zimmer v. N. Y.C. & H.R. R., 137
N. Y. 460.

15M. & W. 535; and see National Bank v. Hall, ror U. S. 43.

22 Eng. & Ir. App. 296.

3% p. 6.

4Wharton, 2 8.
10 LAW OF CONTRACTS.

Whether a concurrence, in a written or spoken expres-
sion of intention, can be reduced to the form of a proposal
and acceptance, is not of any great importance, for, even
if all contracts may be so resolved, most of the questions
which are connected with proposal and acceptance cannot
arise when the contract is reduced to writing, and signed
at the time by both parties.

A proposal and acceptance may be either expressed or
implied. Expressed when conveyed by words, implied
when conveyed by conduct.’ A familiar instance of the
latter occurs every day when a man gets into a street
car. It amounts to a proposal to pay the fare if he
is carried to any point on the line where he desires to
get out. The proposal is accepted by carrying him there,
and the contract is completely performed by his paying
his fare, and being carried to the point where he desires
to get out. There has been nothing expressed on either
side.

An implied consent must be distinguished from an
“implied contract.” Implied contracts,’ as they are called,
are in reality no contracts at all. They have been
styled guasz contracts, and they arise in this way.
Where certain duties are annexed by law, to certain
relations not contractual and then enforced by a fictitious
contract implied by law. This class of guasz contracts
will be discussed separately from contracts proper and
need not be dwelt upon here.

An offer and an acceptance must each be communicated.
Acquiescence in an offer cannot be presumed from silence
where the offer is not communicated. In Taylor »v.

1That silence may amount to acceptance, see Emery v. Cobbey, 27 Neb. 621.
See Brodgen v. Metropolitan Ry. Co., 2 App. Cas. 666.

2 As to what constitutes an implied contract, see Indiana Mfg. Co. v. Hayes,
155 Pa. St. 160; Dent v. N. A. St. Co., 49 N. Y. 390; Hobbs v. Massasoit Whip
Co., 158 Mass. 194; and Anson on Contracts, 8th ed., p. 27, n. 1. See Mont-
gomery v. Montgomery Water Works, 77 Ala. 248.
AGREEMENT, PROPOSAL AND ACCEPTANCE. 11

Laird,’ the plaintiff who had been engaged to command
the defendant’s ship, threw up his command in the
course of the expedition, but helped to work the vessel
home, and then claimed reward for services thus ren-
dered. It was held that he could not recover because
the defendant had had no opportunity to refuse the
services. The plaintiff’s offer was never communicated.’

So a mere mental conception of an offer will not make
a contract.?

An offer need not be made to an ascertained person,
but must be accepted by an ascertained person before
there is a contract. The instances of this are:

(a2) Auction sales.‘

(6) Offer of reward.5

As to whether the service must have been performed
after knowledge of the offer of a reward, see cases pro
and con in Addison on Contracts.° And the offer when ©
made by advertisement may be withdrawn in the same
way.’.

(c) Advertisements in railroad time tables.

In Denton wv. Great N. W. R. Co.,° the railroad was
held responsible for taking off a train which it had

1 Cited Anson, * p. 15.

2 See also Tichnor v. Hart, 52 Minn. 407.

3 Felthouse v. Bindley, 11 C. B. N. S. 869; Borland v. Guffey, 1 Gr. C. 394;
Brogden v. Metropolitan R. Co., L. R. 2 App. Cases 66 (read Lord Blackburn’s
opinion). ;

4Warlow v Harrison, 1 E. & E. 295-309; Fisher v. Seltzer, 23 Pa. St. 308.
(It is doubtful in these cases whether the offer is made to the auctioneer.) See
Payne v, Cave, 3 T. R. 148.

5 Williams vw. Carwardine, 4 B. & Ad, 621 (read this case); Carlill v. Smoke
Ball Co., 4 Reports 176, (1893) 1 Q. B. 256; Cummings v. Gann, 52 Pa. St. 484.

6* page 24 (Wood & Abbott’s note), See also Dawkins v. Sappington, 26
Ind. 199; Auditor v. Ballard, 9 Bush. (Ky.) 572; Russell v. Stewart, 44 Vt. 170;
Gibbons wv. Proctor, 64 L. T. 594; and on the question of the character of the
service, Ring v. Devlin, 68 Wis. 384; McCandless v. Allegheny etc. Co., 152 Pa.
St. 139.

7 Shuey’s Executors v. U. S., 92 U. S. 73 (hard case).

85 E. & B. 860.
12 LAW OF CONTRACTS.

advertised in its time table. In Le Blanche v. London
N. W. R. R. Co.,’ the railroad was held not liable for
delay in arriving at a given point, the time table
stating that ‘they would use all practicable -means to be
punctual.”

(7) Offers generally to the public,? such as open
letters of credit. Another instance is an offer to receive
subscriptions to the stock of a company on paying of
instalments. Anybody on paying in an instalment has a
right to be registered as a subscriber.

In regard to the contracts thus formed, two things are
to be noted.

First, There must be something done by the person
accepting the offer,—this is really a conditional contract.

Second, General offers must be distinguished from
representations inviting bids. ¢

In Spencer v. Harding ;5 the defendant sent out a
circular saying: “We are instructed to offer to the
wholesale trade, by tender, the stock in trade of A.,
amounting, etc. . . . and which will be sold at a discount
in one lot, payment to be made in cash. ‘The tenders
and offers will be received at our office.” It was held
that this did not make a contract binding the proposer
to accept the highest bid to the. stock.

An offer may be determined :

(a) By lapse of a specified time. °

(4) By lapse of a reasonable time for accepting.’

1¢. P. D. 286.

2 Winchester & P. R. Co. uv. U. S., 27 Ct. Cl. 494.

3 In re Agra & Masterman’s Bank, L. R. 2 Chancery Appeals 391.

4See the case of Spencer v. Harding, L. R. 5 C. P. 561; Leskie v. Haseltine,
155 Pa. St. 98. See also Levey v. N. Y. Central & H. R. R. Co., 24 N. Y. Sup.
124; Anderson v. St. Louis Board etc. of Public Schools, 122 Mo. 61,

6L. R.5C. P. 561.

®Cooper v. Lansing Wheel Co., 94 Mich. 272.

THotel Co. v. Montefiore, L. R. 1 Exch. 109; Mitchell v. Abbott, 86 Me. 338;
Shaub wv, City of Lancaster, 156 Pa. St. 362.
AGREEMENT, PROPOSAL AND ACCEPTANCE. 13

(c) By failure to comply with the conditions of offer
as to mode of acceptance. '

In Ortman v. Weaver an offer to sell was made, ‘answer
to be made by wagon by which it was sent. The answer
was sent by mail. It was held that the proposer was not
bound.’ Generally, however, where the condition attached
to the offer describes the mode in which a refusal of an
acceptance must be made, a failure to refuse in the
way prescribed does not make a binding contract.

(2) By death of either party before acceptance.*

(e) By revocation before acceptance. 5

The revocation of an offer must be communicated oe
acceptance.° An offer by advertisement may be withdrawn,
though notice of the withdrawal does not reach the
acceptor. The communication may be by conduct.’

An offer accepted makes a contract. The acceptance
must be communicated* and from the moment of com-

1Eliason v. Henshaw, 4 Wheaton 225; Hass v. Myers, 111 Ill. 421; Sawyer v.
Brossart, 67 Iowa 678. :

2 Ortman v. Weaver, 11 Fed. 358; Goulding v. Hamimond, 4 Circ. Ct. App. 533,’
54 Fed. 639; Schorestone v. Iselin, 69 Hun. 250. See also Village of Fort
Edward v. Fish, 86 Hun. 548.

3 Felthouse v. Bindley, 11 C. B. N. S. 869. :

‘Frith v. Lawrence, I Paige, 434-442; Helfensteine’s Estate, 77 Pa. St. 328;
Phipps v. Jones, 8 Harris 260.

5 Routledge v. Grant, 4 Bingham 653 (cited in 4 Shirley’s Leading Cases);
Fisher v. Seltzer, 11 Harris 308. And see Coleman zv. Applegarth, 68 Md. 21;
Kempner v. Cohn, 47 Ark. 519.

6 Byrne v. Tienhoven, L. R. 5 C. P. D. 344 (1880); Brogden v, R. R. Co., L.
R. 2 Appeal Cases, 666; Pettibone v. Moore, 75 Hun. 461; Tayloe v. Fire Ins.
Co., 9 Howard 390; Patrick v. Bowman, 149 U. S. 411. But see Shuey vz.
United States, 92 U. S. 73.

7 Dickinson v. Dodds, L. R. 2 Ch. D. 463 (1876); Stevenson v. McLean, 5 Q.
B. D. 346; Cooke v. Oxley, 3 T. R. 653. (Compare the remarks of James, L. J.,
with Byrne v. Tienhoven, L. R. 5 C. P. D. 344; and Anson on Contracts, 30
and 31.) Pollock on Contracts * p. 228.

8Cozart v Herndon, 114 N. C. 252. Where a more formal contract is to be
entered into, it is a question of intention whether the original agreement is
binding, Miss. etc. S. Co. v. Swift, 86 Me. 248; Sanders v. Potteitzer Bros. Fruit
Co., 144 N. Y. 209; Page v. Norfolk, 70 L. T. 781. Whether an agreement to
buy all that may be wanted is an offer or a contract see Wells v. Alexandre, 130
N. Y. 642; Bailey v. Austrian, 19 Minn. 535; also Harvey v. Facey (1893), A. C. 552.
14 LAW OF CONTRACTS.

munication the acceptance is irrevocable, but it cannot be
presumed from silence unless there was a duty to speak.’
The acceptance may be communicated by conduct, as
by performance of candidates elected to office,” or ac-
ceptance of consideration offered.

When the contract is by spoken words or conduct, it
is a question of proof when the acceptance was com-
municated. When the contract is by correspondence,
the rule is that the mailing of the acceptance
makes the communication complete, and the contract is
irrevocable..

The result is not affected by the mailing of a letter
withdrawing the offer before the mailing of the acceptance,
even though the letter of acceptance is never received.t
But the offer may make acceptance conditional on its
receipt by person offering.» The same rule holds good
of acceptance by telegram.°

1 Royal Ins. Co. v. Beatty, 119 Pa. St. 6; Miller v. McKenzie, 95 N. Y. 575;
Emery v. Cobbey, 27 Neb. 621.

? Kinder v. Brink, 82 Ill. 376. See also Hoffman v. Bloomsburg & S. R. Co.,
157 Pa. St. 174, 33 W. N. C. 60; Watters v. Glendenning, 87 Wis. 250; Fontaine
v. Baxley, 90 Ga. 416; Green v. Cole, 24 S. W. 1058; Gardner v. Crenshaw, 122
Mo. 79.

3 Adams v. Lindsell, 1 B. & Ald. 681; Hamilton v. Lycoming Ins. Co., 5 Pa. St.
339; Insurance Co. v. Grant, 4 Exch. Div. 216; Henthorn v. Fraser (1892), 2
Ch. 27; Dunlop v. Higgins, 1 H. L. C. 381; American Telegraph Co. v. Colson,
L. R. 6 Exch. 108; contra, Langdell, 993. See English and Am. Notes to
Adams z, Lindsell, Rul. Cas., Vol. VI., pp. 88 and 89; also Household, etc., Co.
v. Grant, 4 Ex. D. 236; Mactier’s Admrs. v. Fritte, 6 Wend. 103; Patrick v.
Bowman, 149 W. S. 411. That the acceptance may be withdrawn before or at
receipt of acceptance, see Dunmore v. Alexander, 9 Shaw & Dun, 190; and see
Story on Contracts, 3 198. /

‘Byrne uv. Tienhoven, L. R. 5 C. P. D. 344; Stevenson v. McLean, 5 Q. B.
346; Household Insurance Co. v. Grant, 4 Exch. D. 216; Henthorn v. Fraser,
(1892) 2 Ch. 27; Patrick v. Bowman, 149 U. S. 411; Howard v. Daly, 61 N. Y,
362. But see Lewis v. Browning, 130 Mass. 173; Sherwin v. Cash-Register Co.,
38 Pac. 392.

5 Household Insurance Co. v. Grant, 4 Exch. D. 223; Leake, p. 39; Pollock,
p. 17. . ;

6 Oil Co. v. Lead Co., 4 Dillon, 431; Trevor v. Wood, 36 N. Y. 307; Perry v.
Mt. Hope Iron Co., 15 R. I. 380.
AGREEMENT, PROPOSAL AND ACCEPTANCE. 15

The acceptance must be absolute.’

An acceptance must be certain.”

Where acceptance is by conduct, it must be unam-
biguous.3

A voluntary deed is an exception to the ordinary rule
that communication of an acceptance of an offer is neces-
sary in order to make a contract. It is binding without
a communication of its acceptance,‘ but it may be rejected
by the payee. This is only an’ apparent exception, for
the terms being settled, the policy is only their embodi-
ment, and is not like an accepted offer.

1 The following cases are instances of insufficient acceptance: Honeyman v.
Marryatt, 6H. L. C. 112; Appleby v. Johnson, L. R. 9 C. P. 158; Borland v.
Guffey, 1 Gr. C. 394; Eliason wv. Henshaw, 4 Wheaton, 225. Also Payne w.
Newby, 49 Ill. App. 141; Smith v. Lightner (Tex.), 26 S. W. 779; McClure
v. Times Publishing Co., 169 Pa. St. 213; Ames uv. Peirson, 4 Pa. Distr. R. 392;
Egger v. Nesbit, 122 Mo. 667; Bronson v. Herbert, 95 Mich. 478; Flomerfelt z.
Hume, 31 S. W. 679; Havens v. Am. F. Ins. Co., 39 N. E. Rep. 40. Instances
of sufficient acceptance are found in Joyce v. Swann, 17 C. B. N.S. 84; Foreign
Credit Co. v. Arduin, L. R. 5 E. & I. App. 64; Baines v. Woodfall, 6 C. B.N.S.
657; Pettibone v. Moore, 75 Hun. 461; Isham v. Therasson, 30 Atl. 969; Law-
rence v. Milwaukee, L. 'S. & W. R..Co., 54 N. W. 797; Sherley v. Peehl, 54
N. W. 267; Societé Anonyme v. Mining and Milling Co., 9 Utah, 483; P., C. C.
& St. L. R. Co. vw Racer, 10 Ind. App. 303. See also Union Nat. Bank ».
Miller, 106 N. C. 347; Jenness v. Mt. Hope Iron Co, 53 Me. 20; Allen zw.
Kirivan, 159 Pa. St. 612; Weaver v. Burr, 31 W. Va. 736. As to the signing of
contracts, see Crow v. Carter, 31 N. E. 937; Kennedy v. Siemers, 120 Mo. 73;
Indianapolis Natural Gas Co. v. Kibby, 135 Ind. 357; M. & D. Steamship Co.
86 Me. 248.

2 Guthing v. Lynn, 2 B. & Ad. 232; Taylor v. Brewer, 1 M. & S. 290; Roberts
v, Smith, 4 H. & N. 315; Lothian v. Lothian, 88 Iowa 396; Barney Dump-
ing Boat Co. v. Insurance Co., 67 Fed. 341, 14 Circ. Ct. App. 408.

3 Warner v. Willington, 3 Drew. 523.

*Xenos v, Wickham, 2 E. & I. App. 296; Hayes v. O’Brien, 149 Ill. 403.

56 Xenos vw. Wickham, supra, p. 312.
CHAPTER II.

CAPACITY OF PARTIES.

The presumption is that all persons have capacity
sufficient to make a contract.’

Where such capacity does not exist it must be shown.
This capacity may be affected,

1. By legal or professional status.

2. By minority—infancy.

3. By lunacy.

4. By drunkenness.

5. By marriage.

6. By agency.

7. By being incorporated.’

I. LEGAL OR PROFESSIONAL STATUS.

Aliens have the same power to make contracts that citi-
' zens have,? but in most of the States there is a limitation on
the amount of real estate which they can hold.*’ In Penn-
sylvania, by the Act of May 1, 1861,5 they are allowed
to hold not exceeding 5000 acres in real estate and
$20,000 net annual income.
Alien enemies, however, can make no contracts, ex-
cept by license of the government. The contracts made
by them at common Jaw are void.®

11 Chitty, 186.

2 Anson on Contracts, * p. 104; Pollock on Contracts, * p. 150.

3 Except that he cannot acquire property in a British ship, an alien has the
contractual capacity of a natural-born British subject. Anson on Contracts,
8th ed., p. 129. See also Stimson, Am. Stat. Law, ¢3 102, 5286, 6010-19; U.
S. Rev. Stat., ¢ 4131, and index title ‘‘ Aliens.’’

“ 4Stimson, Am. Stat. Law, 33 102, 1104 and 6013.

5P. L. 433.

6 Exposito v. Bowden, 7 E. & B. 762; U. S. v. Grossmayer, 9 Wall. 72; Phil-
ips v. Hatch, 1 Dillon 572.

(16)
CAPACITY OF PARTIES. 17

A promissory note given by a woman in Iowa to a
man in Texas, during the war, was held void,’ and a
partnership between a man in New York and another
one in Louisiana was dissolved by the war, though in
this particular case the draft was accepted before the
war and bound all the members of the firm.”

Neither a physician or barrister could sue for services
though rendered on request at common law.

This was never the case in this country so far as
physicians are concerned. It was decided, however, in
1819, in the case of Mooney wv. Lloyd,‘ that a gentle-
man of the bar could not maintain action for services
against his client. Eleven years afterward, however,
in Gray v. Brackenridge,’ this case was overruled and
was followed by the case of Foster v. Jack,° where the
reasons for overruling Mooney wv. Lloyd were elabor-
ately set forth by Gibson, C. J., and in Balsbaugh »w.
Frazer.’ Chief Justice Black sums up in a series of
propositions the law relating to the right of a member
of the bar to recover compensation from his client for
services.

2. INFANCY.

By the English common law, a person under twenty-one
years of age is incapable of binding himself or herself
absolutely or irrevocably by contract.’ (A person is of
age the day before twenty-one.)?

1 Philips v. Hatch, 1 Dillon 572.

2 Matthews v. McStea, gt U. S. 7.

3 Kennedy v. Broun, 13 C. B. N. S. 677 (1863), and note as to barristers, 2
Chitty, 835, and cases there cited, as to physicians.

+5. S.&R. (Pa.) 412.

5 Penna. Rep. 75.

6 4 Watts (Pa.) 334.

77 Harris (Pa.) 95.

81 Wharton on Contracts, ¢ 29.

® State v. Clark, 3 Harrington 557.

2
18 LAW OF CONTRACTS.

The period of twenty-one years is, of course, an arbi-
trary period, and might have been any other number of
years, as it is, as a matter of fact, in some of the conti-
nental countries.’ :

There is a good deal of confusion in the cases in
regard to the nature of a contract entered into by an
infant. Under the early English and American cases,
it was said that the contracts of infants were of three kinds.

First, those clearly for his benefit, such as contracts
made for necessaries, which were said to be binding like
any contract made by two persons of full age.

Secondly, those which were clearly against the interest
of the infant ;? these were said to be void, and there was
a third or intermediate class which constituted the bulk
of all contracts made by infants, which might or might
not be to his advantage, and were voidable; that is to.
say, when the infant came of age he might either affirm
or disaffirm these contracts.3

The later rule, however, and the rule which seems
supported by the weight of authorities, and certainly
one much more sound upon the grounds of reason, is
that all contracts of an infant are voidable, except

First, the implied contract for necessaries, which is
binding,* and

Secondly, the warrant of attorney, and perhaps some
other powers of attorney, of an infant which is void.

4 Metcalf on Contracts, p. 37. The age of majority for women is fixed at
eighteen in some States, Stimson, Am. St. Law, 3 6601.

2 See Flower v. London & N. W. Ry., 9 Reports 494, (1894) 2 Q. B. 65; Corn
v. Matthews, (1893) 1 Q. B. 310; 68 L. T. 480; Clements v. L. & N. W. R. Co.,
(1894) 3 Q. B. 482.

3 The early cases in which this division has been held are cited in note to
Tucker v, Moreland, 1 Am. Leading Cas. 299, and see Anson on Contracts, Sth
ed., p. 131, n. 2.

4 See, however, Gregory v. Lee, 64 Conn. 407; Trainer v. Trumbull, 141 Mass.
527.

5 Lawrence v. McArter, 10 Oh. St. 37; Fairbanks uv. Snow, - Mass. 153.
CAPACITY OF PARTIES. 19

In most of the cases which were relied upon in sup-
port of the old rule, that a contract clearly against the
interest of an infant is void, it will be found upon
examination that the actual point decided does not
support the rule. Mr. Pollock says:* “ When we look
at the decisions, they appear to establish in the case
now in question, only that the contract cannot be en-
forced against the infant, or some other collateral
point equally consistent: with it being only voidable,
except when they show distinctly that the contract is
voidable and not void,” and he examines a number of these
cases.

The old rule is clearly expressed in Addison on
Contracts,” as follows :

“Tt has been laid down that certain contracts can
under no circumstances be enforced against an infant
during his minority.

“Thus, no penal obligations entered into by infants are
enforceable, as it is not necessary for them, nor can it
be for their benefit and advantage, to subject themselves
toa penalty. All deeds, also, and covenants, feoffments,
grants, releases, confirmations, cognovites, or other writing
under seal made by infants, are, as a general rule (subject
to some few exceptions presently noticed), not binding ;
and an infant cannot be sued on his covenant to serve
contained in an indenture of apprenticeship executed by
him; nor on a bill of exchange accepted by him, although
the bill may have been accepted on account of necessaries
furnished to such infant; noron acontract of suretyship ;
nor for a breach of warranty made by him on the sale of
a horse; nor is he bound by an agreement to refer dis-
putes to arbitration; nor by the recitals in any deed
executed by him during his infancy.

1 Pollock on Contracts, * p. 54.
Pp. 121, 122.
20 LAW OF CONTRACTS.

“Tf the infant has induced another party to contract
with him by falsely representing that he is of age, he is
nevertheless not precluded from setting up his infancy as
an answer to any action founded on such contract.

“Contracts also entered into by infants in the exercise
of a trade cannot be enforced against them; for the law
does not consider it necessary or beneficial for infants to
embark in trade and hazard their fortunes in commercial
speculations. An action, consequently, cannot be main-
tained against an infant who carries on trade for work
done for him, or for the rent of houses and buildings
hired by him in the course of the trade, although he gains
his living thereby. An agreement with an infant work-
man which binds him to serve during a certain term, but
leaves the master free to stop his wages whenever he
chooses, is not beneficial to the infant.’’*

The following contracts of infants, once held to be void,
are now held to be voidable: The negotiable note of an
infant,” trading contracts,’ deeds conveying an interest in
land,‘ contract of hire,> account stated,°® surety of endorser,”

\The cases cited in support of the foregoing quotation are Dilk v. Keighley,
2 Espinasse, 480; Baylis v. Dinely, 3 M. & S. 477; Oliver v. Woodroffe, 4 M-
& W. 650; Fisher v. Mowbray, 8 Kast, 330; Williamson v. Watts, 1 Campbell,
552; Regina v. Lord, 12 C. B. (64 E. C. L. R.) 758; to which may be added
Keane v. Boycott, 2 Henry Blackstone, 511; Thornton v. Illingsworth, 2 B. &
C. 824.

2 Hessner v. Steiner, 5 W. & S. (Pa.) 476; Curry v. Plow Co., 55 Ill. App. 82;
Neal v. Berry, 86 Me. 193; Peacock v. Binder (N. J.), 31 Atl. 215; Houlton v.
Manteuffel (Minn.), 53 N. W. 541.

3 Bruce v. Warwick, 6 Taunton 118,

‘Shipley v. Bunn (Mo.), 28 S. W. 754; Marlin v, Kosmyroski (Tex.), 27 S.
W. 1042; Kennedy v. Baker, 159 Pa. St. 146; Mette v. Feltgen, 148 Ill. 357;
Irvine v. Irvine, 9 Wall. 617; Dolph v. Hand, 156 Pa. St. 91; Searcey v, Hunter,
81 Tex. 644; and see Robinson v. Coulter, go Tenn. 705.

5Leslie v. Fitzpatrick, 3 Q. B. D. 229. See Brown v. Harper, 68 L. T.
488.

6 Williams v. Moor, 11 M. & W. 255.

7 Owen v. Long, 112 Mass. 403; Curtin v. Patton, 11 S. & R. (Pa.) 305.
CAPACITY OF PARTIES. 21

marriage settlement (after the marriage was binding),'
arbitration.”

While the Courts do not deny that when the contract is
clearly against interest it is void, yet they hold in all
these cases that it cannot be said as matter of law
that the contract is against interest and, therefore, the
infant can elect to affirm or disaffirm the contract. So
a contract of partnership is voidable* Transfers of
shares to infants are voidable, not void.‘

This review of the cases shows that the general rule is
as stated by Baron Parke in Williams v. Moor,5 “that a
party may, after he attains the age of twenty-one years,
ratify and so make himself liable on contracts entered
into during his infancy.”

Contracts of infants being voidable, except as before
stated, in order to make them binding the disability
of the infants must be waived.© Some contracts, how-
ever, are binding unless there is a positive dis-
affrmance of the contract; others are not binding
unless there is a positive waiver of the disability of
infants. The line which divides these cases is not very
clearly drawn. ,

Of the cases in which it has been held that there must
be a positive disafirmance—an actual disclaimer, in order

‘Harvey v. Ashley, 3 Atkyns 607; Edwards v. Carter, 1 Reports, 218 (1894),
App. Cases, 360; Carter v. Silber (1892), 2 Ch. (C. A.) 278.

2 Morse on Arbitration, p. 4, and cases there cited.

3 Lindley on Partnership, * p. 74; Sparman v. Kein, 83 N. Y. 245. See, also,
Mehlhop v. Rae (Iowa), 57 N. W. 650; Continental Nat. Bank v. Strauss, 137
N. Y. 148, 553.

4Lumsden’s Case, L. R. 1 Ch. 31, and see note to Tucker v. Moreland, t Am.
L,. Cas, 299. Also, Hamilton v. V.-S. Electrical Engineering Co. (1894) 3 Ch.
589. .

S11 M. & W. 255. For. a comprehensive collection of cases on the subject, see
Rul. Cas., Vol. VI, pp. 43, 48 and 53.

® Where the contract is ratified, after the person has: come of age, it..cannot
afterward be repudiated: Curry v. Plow Co., 55. Ill. App. 82.
22 LAW OF CONTRACTS.

that the contract may not be binding, the instance usually.
given is that of an infant’s deed of land.'’ The same rule
has been laid down as to subscription for stock.’

It is also laid down by Wharton,’ that contracts that
have been executed by the other party are binding on an
infant, unless he disaffirms them. ‘This is probably cor-
rect as a practical result, but the real reason is that the
retention of the consideration by the infant after majority
is, in the absence of any other evidence, conclusive evi-
dence as to his affirmance of the contract, unless there is
a disclaimer.

So in the case of a partnership, on the infant’s obtaining
his majority he is liable for losses accruing afterward,
because the original contract was a continuing one, and
in order to put an end to it notice must be given.* There
is some doubt in regard to his liability for contracts
before his majority.

The same rule applies in the case of allotment of shares
in a company.°

The general rule in this country is that in all ex-
ecutory contracts there must be an affirmance by express
promise, or by positive acts, which are as perfect evi-
dence of ratification as an express promise.

The ratification must be after majority and promise
must be made to the other party.’ For instance the

lIrvine v. Irvine, 9 Wall. 617. See, also, Munk v. Weidner (Tex. ), 29 S. W.
409.

®R. R. Co. v. Coombe, 3 Exch. 565; but see note to Dublin & Wiklon Rwy.
v. Black, 16 Law & Equity, 556-558; and also Lumsden’s Case, L. R. 4 Ch. 41,
and Hamilton v, V-S. Electrical Engineering Co. (1894), 3 Ch. 589.

3 Wharton on Contracts, ¢ 50.

4 Goode v. Harrison, 5'B. & Ald. 159.

§ See Ewell on Contracts, p. 169, and Parsons on Contracts, 3 136.

5Tumsden’s Case, supra.

7Chandler v. Glove’s Adm., 32 Pa. St. 509; Hale uv. Garrish, 8 N. H. 374;
Hinely v. Margarity, 3 Barr (Pa.) 428; Fetrow v. Wiseman, 4oInd. 148; Beardsley
v. Hotchkiss, 96 N. Y. 201; Savage v. Lichlyter, 59 Ark. 1; Peacock 7. Binder
(N. J.), 31 Atl. 215. See, however, Green v. Green, 69 N. Y. 553.
CAPACITY OF PARTIES. - 23

purchase of a chattel is ratified by an unequivocal act
of ownership after majority, as the sale of oxen for
which infant had given his note."

In regard to the time at which the contract of an
infant may be. avoided, the following rule is laid down
in Reeve’s Domestic Relations.’

“Tt is a universal rule that all executory contracts
which are voidable on the ground of infancy, may be
avoided during infancy as well as afterward, as where
a man promises to pay, etc. So too, in all contracts
respecting property which are executed by delivery of
some article, or payment of money, may be rescinded
by the owner both before and after he comes of age.
But conveyance of real property by feoffment, or delivery
of deed which comes in lieu of payment, or by any
other conveyance of such property in fee for life or for
years, cannot be avoided before the infant comes of
age,” 4

Disaffirmance of a deed must be in a reasonable time
after the infant reaches his majority,’ but whether this
means any time short of the period constituting a
power under the Statute of Limitations, is a vexed
question.®

A less time than the limitation of the statute where
it would be unequitable, as where an infant stands by
and sees improvements made, will be a ratification.’

1 Lawson uv. Lovejoy, 8 Me. 405.

2 Page 320.

3 Petrie v. Williams, 68 Hun. 589.

‘Shipley v. Bunn (Mo.), 28 S. W. 754; Chapin zw. Shafer, 49 N. Y. 407;
Zouche v. Parsons, 3 Burrows 1796.

5 Lacy v. Pixler, 120 Mo. 383; Englebert v. Pritchett, 26 Lawyer’s Rep. An-
notated 177.

See Anson on Contracts, 8th ed., p. 132.

7See note to Strafford v. Roof, Ewell’s LI. Cas. on Infancy; Coverture and
Idiocy, p. 96. As to what constitutes ratification of a deed by an infant, see

Sims v. Everhardt, 102 U. S. 300; Urban uw. Grimes, 2 Gr. Cases, 96; Mette v.
Feltgen, 148 Ill. 357; Land Co. vw. Sandford, 24 S. W. 587; Thormaehlen 2,
24 LAW OF CONTRACTS.

In regard to the confirmation of deeds of real estate,
the rule is that any act of the infant after he comes of
age from which his assent may be inferred will ratify
the deed. A new deed is not necessary, except (proba-
bly) to disaffirm.’

Both affirmance and disaffirmance relate back to the
time of making the contract.’

As to who may avoid the vordable acts of an infant.

While he is alive nobody but himself can elect to avoid
his contract. It is purely a personal privilege to this
extent.?

After his death it may be avoided by his executors,
or administrators, or by his heirs or privies in blood,
but not by his privies in estate or law.‘

The party with whom the infant contracts is bounds

Kaeppel, 89 Wis. 378; Donovan v. Ward (Mich.), 59 N. W. 254; Englebert v.
Troxell (Neb.), 58 N. W. 852; Dolph v. Hand, 156 Pa. St. 91; Hegler v. Faulk-
ner, 153 U. S. 109; Hicatt v. Dixon (Tex.), 26 S. W. 263; Scott v. Brown (Ala.),
17 So. 731; Terrell v. Weymouth (Fla.), 13 So. 429.

‘Wheaton v. East, 5 Yerger 62; Irvine v. Irvine, supra; also Kennedy v.
Baker, 159 Pa. St. 146; Mortgage Co. v. Wright, 101 Ala, 658; Foulkes z.
Hughes, 3 Reports 682, 69 Law T. 183; Cox v. McGowan (N. C.), 21 S. E. 108;
Kincaid v. Kincaid, 85 Hun. 141; Smith v. Gray (N. C.), 21 S. E. 200; Whitte-
more v. Cope (Utah), 40 Pac. 256; Edwards v, Carter, 1 Reports 218; (1893) App.
Cas. 360; Ward v. Anderson, 111 N.C. 115. But see as to disability of cover-
ture, Walton v. Gaines, 94 Tenn. 420; also McClanahan v. Williams, 136 Ind.
30; Kennedy v. Hudkins (Ind.), 40 N. E. 52; Wilder v. Piggott, 22 Ch. Div.
263; Greenhill v. Ins. Co., 3 Reports 674; Jz ve Hodson’s Settlement, 8 Reports
346, (1894) 2 Ch. 421.

21 Mustard v. Wohlford, 15 Grattan 329; Hall v. Jones, 21 Md. 439. See also
Brown v. Harper, 3 Reports 585, 68 Law T. 488; Harris v. Wall, 1 Exch. 122;
Mawson v. Blane, 10 Exch. 206; /z ve Hodson’s Settlement, supra.

3Keans v. Boycott, 2 H. Blackstone 511; McCarty v. Murray, 3 Gray 578;
Beardsley v. Hotchkiss, 96 N. Y. 201; see also Ewell on Contracts, p. go.

‘Jefford’s Admrs. v. Ringgold, 6 Ala. 549; Shropshire v. Burns, 46 Ala. 108;
Breckenridge’s Heirs v. Ormsby, 1 J. J. Marshall 248; Levering v. Highee, 2
Md. Ch. Dec. 88; Walton v. Gaines, 94 Tenn. 420.

5 Bruce v. Warwick, 6 Taunton 118; Brown v. Caldwell, 10S. & R. (Pa.) 114;
also Washington v. Washington (Tex. ), 31 S. W. 88; Chambers v, Ker (tex. ),
24S, W. 1118.
CAPACITY OF PARTIES. 25

And this is so even in the case of a marriage con-
tract.”

The consequence of avoidance by an infant.

Where the contract is executory on both sides, that is
where the infant has promised something and the person
with whom he has contracted has promised something,
and neither party has yet done anything, the Se
simply leaves the contract void.

Where the contract has been executed on the wit of
the infant only, he can upon a rescission of the contract,
recover back whatever consideration he has given. If it
is property, property; if services, services. ’

Where the contract has been executed on the part of
the person with whom the infant contracted, by his giving
to the infant whatever the consideration was, the infant,
if what he received is still retained by him, is bound
to return it upon the rescission of the contract; but if
he has not got it any longer, has used it, or spent it,
or given it away, then he still has the right to rescind
the contract notwithstanding he is unable to place the
other party in the position in which he had stood before
he entered into the contract.’

'Holt v. Ward, 2 Strainge 937. See also Hill v. Taylor (Mo.), 28
S. W. 599. i

2Corpe v. Overton, 10 Bing. 121; Medbury v. Watrous, 7 Hill 110; Johnson v.
Life Insurance Co., 56 Minn. 365; Thompson v. Marshall, 50 Mo. App. 145;
Downing v. Stone, 47 Mo. App. 144; Stack v. Cavanaugh (N. H.), 30 Atl. 350.

‘3Price v. Farman, 27 Vt. 268; Walsh v. Young, 110 Mass. 396; Ewell on
Contracts, 123. See also Bloomer v. Nolan, 36 Neb. 51; Englebert v. Troxell, 40
Neb. 195; Lacy v. Pixler, 120 Mo. 383; Gregory v. Lee, 64 Conn. 407; Johnson
v. Life Ins. Co., 56 Minn. 365; Building & Loan Ass’n v. Adams (N. J. Ch.), 31
Atl. 280; Curry v. Plow Co., 55 Ill. App. 82; Investment Co. v. Harris (Ind.), 40
N. E. 1072; Shaul v. Rinker (Ind.), 38 N. E. 593; Petrie v. Williams, 68 Hun.
589; Downing v. Stone, 47 Mo. App. 144; Evans v. Morgan, 69 Miss. 328;
Utermehle v. McGreal, 1 App. D. C. 359; contra: Adams v. Bell, 8 Atl. 664;
Wheeler, & Wilson Mfg. Co. u Jacobs, 21:N. Y. Sup. 1006, 2 Misc. Rep. 236.
As to premiums paid for entering partnerships, see Parsons on Partnership,
3 137; and as to rights of creditors, Lindley on Partnership, * p. 75, N
26 LAW OF CONTRACTS.

There is some conflict among the cases on this point,
however, some of them holding that the infant is bound
to put the other party in the position in which he stood at
the time the contract was entered into, and this doctrine
has been enunciated more frequently in cases where the
contract has been executed on both sides; and there it
has been held that the infant could not recover back
what he had given the other party unless he restored
what he had received, but the weight of authority,
certainly in this country, is in favor of the doctrine that
the infant can recover back what he gave without giving
what he received, if he has not got it to give.’

As a consequence of the rule that if an infant has
retained what he received, he must restore it upon 2
rescission or else he cannot recover what he gave, we
have the rule that a rescission where the contract is
not a severable one, must be in toto; as for instance
where an infant purchases land and gives a purchase
money mortgage, he cannot disaffirm the mortgage and
keep the land.’

The whole subject is regulated by Act of 1874 in
England. *

Contracts which are absolutely binding upon an infant
ave these:

(1) Certain contracts which are clearly for his benefit
or advantage, and chief among these is the contract for
necessaries.

(2) Contracts to do those things which the law would
compel the infant to do, and

(3) The third is a consequence of the contract of
marriage, and not a direct contract of the infant himself.

1 Am. Notes Rul. Cas., Vol. VI., p. 53.

2? Hubbard v. Cummings, 1 Me. 11; Heath v. West, 8 Foster (N. H.) 108;
Kennedy wv. Baker, 159 Pa. St. 146.

3See Pollock on Contracts, * p. 60.
CAPACITY OF PARTIES. 8

It is the liability for the debts of his wife, contracted
before marriage.

An infant is liable for the value of necessaries fur-—
nished him upon an implied contract to pay what the
necessaries are worth.

‘“An infant may bind himself for necessaries, meate,
drinke, apparel, necessary physicke, and such other
necessaries, and likewise for good teaching or instruc-
tion whereby he may profit himself afterward. ‘
Generally whatever. an infant is bound fo do by law
the same shall bind him, albeit he do it without
suit at law. But of this common learning this little shall
suffice.” *

In Peterson v. Flemming,’ Baron Parke says: “It is
perfectly clear that from the earliest time down to the
present, the word ‘necessaries’ was not confined in its
strict sense to such articles as are necessary to the
support of life, but extend to articles fit to maintain the
particular person in the state, station and degree of life
in which he is.” In this case, pins, a ring, a watch, and
other like articles were held to be necessary for an under-
graduate at Cambridge.

In Ryder v. Wombwell,3 studs worth twenty-five pounds,
and an antique goblet worth fifteen pounds, were held
not necessary for a younger son of a Yorkshire baron,
with an allowance of 500 pounds a year.

But a servant’s livery, a volunteer’s uniform, horse
exercise, and decent burial have been held necessary,
while a valuable chronometer, cigars, tobacco and dinners
out of college have been held not to be necessaries.‘

1Co, Lit. 172 a.

276M & W. 41.

31... R. 4 Exch. 32.

4 See Shirley’s Leading Cases in Com. Law, p. 69, e¢ seg. (p. 171 B. L. B. Ed.).
Also Anson on Contracts, 8th ed,, p. 140, 0. 2, for a collection of the Am.
cases.
28 LAW OF CONTRACTS.

' The rule on this subject is very well explained by
Chief Justice Gibson, in Johnson w Lines.’ In this
case the account amounted to more than $1000, com-
prising charges for many articles which might be
ranked as necessaries when supplied with reason, but
not at the rate of twelve coats, seventeen vests, and
twenty-three pairs of pantaloons in the space of fifteen
months and twenty-one days; to say nothing of three
bowie knives, sixteen penknives, eight whips, ten whip-
lashes, thirty-nine handkerchiefs, and five canes, with
kid gloves, four caps, chip hats, and fancy bag to match.
The judge quoted the opinion of Baron Alderson, in
Burghart v. Angerstein,’ where he says: “If a minor is
supplied, no matter from what quarter, with mnecessa-
ries suitable to his estate and degree, a tradesman cannot
recover for any other supply made to the minor just
after.” And the reason for itis a plain one. “The rule
of law is, that no one may deal with a minor; the excep-
tion to it is, that a stranger may supply him with
necessaries proper for him, in default of supply by
anyone else, but his interference with what is properly
the guardian’s business must rest on an actual neces-
sity, of which he must judge, in a measure, at his
peril.”

What are necessaries is a question of common sense
under all circumstances of the case, taking into consid-
eration the station and circumstances of the infant, and
the character and the quantity of the goods supplied
him.*

16W. &&. (Pa.) 80.

2 6 Car, & P. 700.

3 See also Trainer v. Trumbull, 141 Mass. 527; McKanna v, Merry, 61 Ill. 177;
and Gregory v. Lee, 64 Conn. 407.

4 See the case of Wood v. Losey, 22 Amer. Law Reg. N. S. 605, and note, in
regard to what are ‘‘ necessaries ’’ for‘an infant.
CAPACITY OF PARTIES. 29

An infant cannot bind himself for necessaries where
his wants are supplied by his parent or guardian, or,
in fact, by any one.’

Burghart v. Angerstein? was an action by a tailor to
recover 840 pounds from a cornet of the First Life
Guards, for clothes, the most of which were delivered
to him between October 1829, and July 1830. In the
bill there were charges for nineteen coats, inclusive of a
military dress, forty-five waistcoats, thirty-eight pairs of
trousers; ‘and there were included in the bill cashmere
shawl waistcoats at eleven guineas each, and a black
velvet dressing gown and a racing jacket. Several tailors
were called to prove that they had supplied the de-
fendant with various articles of clothing during this
period. The judge charged the jury in this case,
that if the infant was already supplied with clothes
that the other clothes furnished by the plaintiff were
unnecessary.

Money lent cannot be recovered as necessaries; but if
laid out in necessaries, it can be recovered under prin-
ciples of equity. Walker v. Sampson’ was a case of pay-
ments made to a wife living apart from her husband.

In Johnstone v. Marks,‘ following Barnes v. Toye,’ it
was held that evidence could be given on the question
of necessaries to show that the infant had already been
supplied by others. The same rule was laid down by
Chief Justice Gibson more than forty years before in
Johnson wv. Lines.

In Burghart v. Hall,° it was decided that it was no
answer to a replication of necessaries, to show that the

1 Guthrie v. Murphy, 4 Watts (Pa.) 80; Thorp v. Connelly, 48 Mo. App. 59.
26Car. & P. 600.

87 W. & S. (Pa.) 88.

*19 Q. B. D. 509.

513 QO. B. D. 410.

64M. & W. 727.
30 LAW OF CONTRACTS.

infant had sufficient income to supply himself with neces-
saries. |

An infant is responsible for necessaries furnished his
wife and children."

It is said that what are necessaries is a mixed question
of law and fact,’ and the difficult practical question has
always been to draw the line between what is proper for
the judge to decide, and what is proper to leave to the
jury, and the rule is stated to be? that it is a question
for a Court whether there is any frvzma facie necessity
for the articles, and this having been decided in the
affirmative by the Court, then it is a question for the
jury to say, under all the circumstances of that par-
ticular case, whether the articles were necessary. But
even where the articles are of a kind called necessaries,
yet, if they are furnished in too great quantity, they
cease to be necessaries as to the excess.

In anote by Hare and Wallace, to Peters v. Flemming,‘
the rule is stated thus: “The rule appears to be that,
if the articles are of such a nature that they cannot be
necessaries to any one, or cannot be necessary to the
infant’s degree or position, they are to be rejected by the
Court; but if the articles are of a kind to be suitable,
under certain circumstances, to one in the infant’s situa-
tion, the question of necessaries is for the jury.’

In McKanna vw. Merry,° it was decided by the Court
that the traveling expenses of an infant to California
were not necessaries. .

1 Chapple v. Cooper, 13 M. & W. 252; Price v. Sanders, 60 Ind. 315.

? Pollock on Contracts, *p. 68.

3 Pollock on Contracts, *p. 71. See also Anson on Contracts, 8th ed., p. 141,
6 M. & W. 43.

5 See, generally, Johnson v. Lines, 6 W. & S. (Pa.) 80; Mohney w. Evans, 1
Smith (Pa.) 80; Peters v, Flemming, 6 M. & W. 43; Ryder v. Wombwell, L. R,

3 Exch. go, ands. c., lL. R. 4 Exch. 32.
661 Ill. 177.
CAPACITY OF PARTIES. 31

Expenditures upon an infant’s real estate are not
necessaries at law,’ nor is he liable on contracts growing
out of trade in which he is engaged.’

House v, Alexander,’ decided that a horse purchased
by an infant who was engaged in farming was not a
necessary; but in Mohney wv. Evans,‘ it was left to the
jury to say whether or not a yoke of oxen bought by a
minor to work on a farm was a necessary.

The liability of an infant for necessaries is on an
implied contract. He is not liable on an expressed con-
tract fixing the price.

Whether or not, where an expressed contract has been
made, and suit brought upon the instrument, the plain-
tiff can recover to the extent of the value of the neces-
Saries, is a question on which the cases are conflicting.

A contract to do that which he might be compelled to
do, when made by an infant, is binding upon him.°

Zouche wv. Parsons was the case of an infant mortgagee
in whom the title was vested, who, upon the payment of
the mortgage debt to the person entitled to receive it, made
a reconveyance of the land and the Court held that as this
was an act which by law he could be compelled to per-
form, his voluntary performance of it, though during his
minority, would bind him and he could not afterward
disaffiirm it.

1Horstmeyer v. Connors, 56 Mo. App. 115; Allen vw. Lardner, 78 Hun. 603;
Phillips v. Lloyd (R. I.), 25 Atl. 909.

2Mason v. Wright, 13 Metcalf, 306; Pine v. Wood, 145 Mass. 559; Englebert
v. Troxell, 4o Neb. 195.

3 105 Ind. 109.

41 Smith (Pa.) 80.

5 See notes to Pollock on Contracts, 3d Am. Ed, p. 73; Ewell’s Leading Cases
on Infancy, p. 62, and Mr. Wallace’s note to Tucker v. Moreland, 1st Am. L.
Cas. *p. 244; and on the subject generally, Ewell’s L. Cas. on Infancy, pp. 61-75.
See, however, / re Soltykoff (1891) 1 Q. B. 413; Smith v. King (1892) 2 Q. B.
543. ‘

6 Zouche v. Parsons, 3 Burrows, I8o1.
32 LAW OF CONTRACTS.

This principle was approved of in Tucker v. Moreland,’
and in Elliott v. Horn,? in which case a father had vested
land in the name of his son for the purpose of defrauding
creditors, and afterward sold the land; the son while a
minor conveyed the land under his father’s instructions
to the purchaser, it was held that this was binding and
the infant could not disaffirm it after he came of age.

An infant husband is liable, also, for the ante-nuptial
debts of his wife.3

“An infant is not liable for a wrong arising out of, or
immediately connected with, his contract, such as a
fraudulent representation at the time of making the con-
tract that he was of full age. But an infant who has
represented himself of full age is bound by payment made,
or acts done at his request, and on the faith of such repre-
sentation and is liable to restore any advantage he has
obtained by such representation to the person from whom
he has obtained it.” ¢

Under the old style of pleading, where there had been
a breach of a contract, the party injured might waive the
contract and bring action in tort for a breach of the duty
arising under the contract. But in all such cases “ the
form of the action cannot alter the nature of the’ transac-
tion.” > And the same judge added, “Though the non-
performance of that which was originally contract may be
made the subject of an action of tort, the foundation of
that action must still be in contract,” and in Livingston
v. Cox,® Judge Bell says: “‘ The weight of authority has
put it beyond question that though the action may be in
form as for a tort, yet if the subject of it be based on

1 Yo Peters, 67.

2 10 Ala. 348.

3Roach v. Quick, 9 Wensell, 238; but see Act of April 11, 1848 (P. L. 536).
4 Pollock on Torts, *p. 52.

5 Sir James Mansfield in Weal v. King, 12 East. 534.

66 Barr (Pa.) 360.
CAPACITY OF PARTIES. 33

contract, the suit will be attended by all the incidents of
an action ex contractu, and this whether the defaulting
party be an infant or an adult.”

As expressed by Baron Parke in Fairhurst v. Liverpool
Adelphi Loan Association,’ ‘‘ You cannot convert a con-
tract into a tort to enable you to sue an infant.”

In Jennings v. Rundall,? the plaintiff declared that at
the defendant’s request, he had delivered a mare to the
defendant to be moderately ridden, and the defendant .
wrongfully and injuriously rode the said mare a much
longer journey, whereby she was much injured. In this
case there was the plea of infancy and a demurrer to the
plea, and the plea was held good.

In Homer v. Thwing,? an infant was held liable in am
action of trover for the conversion of a horse, where the
horse had been let to drive to one place and the infant
had driven it to another. But in Penrose wv. Curren,*
under precisely the same state of facts where an infant:
had hired a horse to go to Germantown, and instead of
that went to Chester, and drove the horse so hard that he
killed him, it was held that his infancy was a good
answer to the action.

In Gilson v. Spear,> it was held that an infant was not
liable in an action ex de/zcto, where on the sale of a horse
he had fraudulently concealed the unsoundness of the
horse and affirmed that he was sound, although he was
not sound, and the infant knew it.

The same rule, that is, that the infant could not be
held liable in an action of tort, was laid down in Wilt wz.

19 Exch. 422. For a discussion of the growth of action of assumpsit, see
Hare on Contracts, pp. 119-135. As to replevin for goods detained in violation
of the terms of a conditional sale, see Wheeler & Wilson Mfg. Co. v. Jacobs |
(Com. Pl. N. Y.), 21 N. Y. Sup. 1006, 2 Miss. Rep. 236.

28 Term Rep. 335.

33 Pickering (Mass.) 492.

43 Rawle (Pa.) 351.

638 Vt. 311.

3
34 LAW OF CONTRACTS.

Welsh,’ which was another case of a horse being hired to
go to one place and being driven to another, by which it
was injured; and there is a very elaborate discussion of
the subject by Chief Justice Gibson.

Whether in a particular case, the infant can be held
liable on tort or not, depends upon whether a liability can
be made out without taking notice of the contract.

The rule is very well explained by Mr. Bennett in a
_ note to Doran v. Smith,? where he says: “Perhaps the
rule may be safely stated thus: when the tort of an infant
is of such a nature that an action of contract, as well as
tort, would lie therefor against an adu/¢, the infant cannot
be held liable either in trover or on the case, since he
would not be on the contract; but when the tort is such that
trover or trespass only, and not an action of contract, would
lie against an adult, the infant may be charged in tort, as it
becomes a pure and absolute tort, and nothing more or less.’

There is more dispute in the cases where it is attempted
to extend the rule to cases where a contract has been
brought about by the fraudulent representation of the
infant, the most common being that of false representa-
tion in regard to his age.

The weight of authority is that even in such a case,
the infant cannot be held liable in an action of tort, any
more than he could upon an action of contract.*

But while an infant cannot be held responsible, either
in contract or tort, for a fraudulent representation whereby

16 Watts (Pa.) 9. Contra, see Burnard v. Higgis, 14 C. B.N.S. (10 E. C.
L. R.) 45; Harseim v. Cohen (Tex.), 25 S. W. 977; and Stoolfoos v. Jenkins, 12
S. & R. (Pa.) 400, where it is doubted whether there may not be some cases of
fraud so gross as to make the act of the infant binding.

717 Am. L. Reg., N. S., pp. 44-47.

3For an interesting review of the cases, see Eton v. Hill, 50 N. H. 235; see
also Stack v. Cavanaugh (N. H.), 30 Atl. 350.

4See cases already cited, also Curtin v. Patton, 11 S. & R. (Pa.) 310; Keen
v. Coalman, 3 Wright (Pa.) 299; Pollock on Contracts, * pp. 52 and 76, and
notes. See particularly Cory v. Gertcken, 2 Madd. 4o.
CAPACITY OF PARTIES. 35

the contract was induced, yet he will not be allowed to
retain property so obtained, and he cannot hold others
liable for what they do on the faith of his statement.’

In Lempriere v. Lange,’ the defendant, an infant, had
obtained a lease from the plaintiff by falsely representing
himself as of fullage. The plaintiff filed a bill to have
the lease cancelled and the furniture delivered up to him,
and also to recover payment for use and occupation. The
Court decided that the lease might be cancelled and the
furniture given up, but he could not recover for use and
occupation.?

Bartlett v. Wells,‘ was an action to recover the value of
goods sold and delivered to an infant. ‘The plea was that
the infant was a minor. A replication set up that the
plaintiff was induced to enter into the contract without
knowing that the defendant was an infant. The infant
had falsely represented himself to be of age. It was held
that the action could not be maintained.

Contracts of an infant absolutely vord.

“The only act which an infant is under legal incapacity
to perform is the appointment of an attorney, and, in fact,
an agent of any kind.” ®

The rule as broadly laid down by Mr. Wallace has not
been universally followed by the Courts. Mr. Ewell
says:’ “On principle it would seem that the power of

1In some States, misrepresentation of his true age, by an infant, estops him
from denying his contract. Stimson, Am. Stat. Law, ¢ 6602.

212 Ch. D. 675.

See, however, Valentine v. Canali, 24 Q. B. D. 166.

‘tor EK. C. L. R. 836.

5 Wells v. Graham, 4 B. & P. 140; Walker v. Davis, 1 Gray (Mass.) 506.
Contra, Building & Loan Ass’n v, Adams (N. J. Ch.), 31 Atl. 280. As to estoppel
to allege infancy in other forms of actions, see Ryan v. Growney (Mo.), 28 S. W.
189; Bradshaw v. Van Winkle (Ind.), 32 N. E. 877; Charles v. Hastedt (N. J.
Ch.), 26 Atl. 564.

6 Note to Tucker v. Moreland, 1 Am. L. Cas., p. 287.

TLeading cases on Infancy, etc., p. 45.
36 LAW OF CONTRACTS. '

attorney of an infant stands on the same basis with any
other act of the infant, and should be considered voidable,
not void; and this opinion would seem to be warranted by
the exception admitted to exist. At all events the doctrine
should probably be confined to powers of attorney under
seal, and not extended any further.”

The reason given for the rule by Mr. Wallace is that
inasmuch as an infant’s acts are voidable, except in those
cases where they are binding, an authority given an agent
must be void because if ratified at all it must be ratified
altogether, and if this result were allowed those things
which he might not want to ratify would also be confirmed,
and in this way he would be bound without intending so
to be.

Judge Story, in his work on Agency,’ says that “an
infant may authorize another person to do any act which
is for his benefit; but cannot authorize him to do an act
which is for his prejudice,” and cites the exception to the
general rule which is noticed by Mr. Wallace, that an
infant may appoint an attorney to receive seisin, citing
the case of Zouch v. Parsons,” as authority.

The exception certainly shows that the rule was not a
universal one at common law, and the cases cited both by
Mr. Wallace and by Ewell, lay down the rule in certain
cases of agency and repudiate it in others.

Saunders wv. Marr,? decided in 1788, held that a warrant’
of attorney given by an infant partner under which a’
judgment was entered against him, was absolutely void,
and was followed by Bennett wv. Davis,‘ and Waples v,
Hastings.®

1Story on Agency, 3 6.

2 Supra.

31 H. Blackstone, 75.

46 Cowen, 393-

53 Harrington, 430; see also Karcher v. Green (Del.), 8 Houst. 163.
CAPACITY OF PARTIES. 37

Knox v. Flack,' established that the warrant of attorney
of an infant to confess a judgment is void. In a pro-
ceeding very similar, in Indiana, in the case of Pickler v.
The State,’ the warrant of attorney of an infant was also
held void. In this State the statute provided that in a
proceeding for the maintenance of a child, an admission
of a proper provision for its maintenance should be a bar
to the suit and all other suits on the same cause. The
admission in the case was made before the Court by an
attorney, by virtue of a warrant executed by an infant,
and it was held that it was void.

In Trueblood v. Trueblood, a father executed a title
bond whereby he obligated himself to cause a piece of land
belonging to his son to be conveyed to the obligee on the
bond after his son came of age. ‘The bond was signed by
the father and purported to be only his bond, but the
son’s name was also attached to it. It was held that the
bond was void. In this case the instrument under seal
was executed by virtue of parol authority and might
have been held void upon that ground. In giving its
decision the Court cites the case of Doe v. Roberts,‘
where Baron Parke says: “If an infant appoints a
person to make a lease it does not bind the infant, neither
does his ratification bind him.” And in Lawrence ».
McArter,3 the power of attorney of an infant to sell his
lands, under which a sale was had, was held to be absolutely
void.®

In Fonda v. Van Horne,’ it was held that where an
infant sells personal property through an agent, which

+10 Harris (Pa.) 337.

218 Ind. 266.

58 Ind. 195.

416 M. & W. 778.

5 to Oh. St. 37.

6 See also Fairbanks v. Snow, 145 Mass. 153.
713 Wendell, 631.
38 LAW OF CONTRACTS.

was delivered by the agent, the transaction was abso-
lutely void unless the infant delivers it himself. The
doctrine of this case is disapproved of by Mr. Wallace
in his note to Tucker v. Moreland.

In Whitney v. Dutch," an adult member of a firm,
where there was an infant partner, made a promissory
note which the infant after he came of age acknowledged
to -be due, and promised to procure the money and send
it to the plantiff.? It was held that this note bound the
infant, although it had not been made by him, but made
by his partner.

Chief Justice Parker says in the course of his decision,
“Perhaps it cannot be contended against the current of
authorities, that an act done by another for an infant
which must necessarily be done by letter of attorney,
under seal, is not absolutely void; although no satisfac-
tory reason can be assigned for such a position. But as
this is a point of strict law somewhat incongruous with
the general rules affecting the contract of infants, it is
not necessary nor reasonable to draw inferences which
may be repugnant to the principle of justice which ought
to regulate contracts between man and man.”

Hardy v. Waters,’ applied the rule in Whitney v.
Dutch as to the indorsement of a promissory note of
an infant who gave another parol] authority to sign his
name; but this case was decided because Whitney v.
Dutch was a controlling authority, Maine having been a
part of Massachusetts at the time Whitney v. Dutch was
decided.

With such a difference as exists in the cases, we are
not justified, perhaps, in going further than to say that
the only contract of an infant which appears to be clearly

"14 Mass. 457.
2 See Smith v. King (1892), 2 Q. B. 543. |
338 Me. 450.
CAPACITY OF PARTIES. 39

void, is a contract made by virtue of a power of a letter
of attorney given by him under seal."

3. Ipiocy, Lunacy AND DRUNKENNESS.

A person on compos mentis is: (1) An idiot or natural
fool that had no understanding from his nativity; (2) A
lunatic, or one who has lost his reason by disease, grief,
or other accident; (3) One who becomes xox compos by
his own act, as a drunkard. ”

A lunatic may prove his lunacy in defence to an action
brought against him upon a contract made while he
is a lunatic. Mitchell v. Kingman,? was an action of
assumpsit upon a promissory note. Thedefendant pleaded
the general issue, and upon the trial offered to prove his
lunacy at the time of the making of the note. The
evidence was rejected and a new trial was granted for error
in rejecting the evidence. The Court below followed
Beverley’s case, * where lunacy was not allowed to be set
up by the lunatic, the reasons being given: First, that
a man is not allowed to stultify himself; and second,
because when he recovers his memory he cannot know
what he did when he was zon compos ments.

Bensell v. Chancellor’ follows the decision in Massa-
chusetts, and contains the criticism of the rule laid down
in Beverly’s case.

In Graham v. Pancoast,® Nace v. Boyer,’ and Aiman uw.
Stout,’ the degree of mental incapacity which will prevent

1See Notes to Warwick v. Bruce, Rul. Cas., Vol. VI., pp. 50 and 54, and
Anson on Contracts, 8th ed., p. 131, n. 2.

2 Chitty on Contracts, 187-192.

35 Pickering (Mass.) 431. See L. N. A.& C. Ry. Co.v, Herr, 135 Ind. 591;
Ashmead v. Reynolds, 127 Ind. 441.

+4 Coke, 123; and see Pollock on Contracts, * 89,

55 Wharton 370.

66 Casey (Pa.) 89.

TId., 99.

86 Wright (Pa.) 114.
40 LAW OF CONTRACTS.

a Court of Equity from rescinding a contract is discussed,
and the conclusion is reached that in the absence of
fraud or undue influence, mere weakness or feebleness
of understanding is not sufficient to set aside an executed
contract."

The deed of an idiot, or a lunatic, or a drunken person
is voidable, not void. In Allis uv. Billings,*a man had
made a deed conveying land and received from time to
time payments on account of the purchase money, though
not the whole of the purchase money. He then brought:
a suit to set aside the conveyance on the ground that
he was insane at the time he made it. The judge
instructed the jury that if he was insane the deed was
absolutely void and that the receipt of the money after-
ward, even though at a time when the plaintiff was sane,
would not bea ratification of the conveyance because it
‘was incapable of ratification, and this was assigned for and
held error. ;

The law is laid down the other way, however, in
Desilver’s Estate,* where it was decided that though a
deed of bargain and sale of a lunatic was not absolutely
void, seizin remained in the lunatic so as to effect an
escheat to the Commonwealth upon a failure of heirs.
- Burnham vw. Kidwell‘ decided that the deed of an idiot
was void under a statute, though the Court said it would
be void independent of the statute, and it was held at the
same time that the idiot could not recover the property
without returning the price which he had received for it,
which would seem to be inconsistent with his conveyance
being absolutely void. .

10’Neill v. Nolan, 66 Hun. 631; Ducker v. Whitson, 112 N. C. 44; Young v.
Otto (Mirin.), 59 N. W. 199; Norman v. Georgia Loan Co., 92 Ga. 295; Bell v.
Smith, 83 Hun. 438.

26 Metcalf 415.

85 Rawle (Pa.) 111.

4113 Ill. 425.
CAPACITY OF PARTIES. 4I

In Gibson v. Soper,’ it was held that the lunatic might
recover the land which he had conveyed without returning
the purchase money.

In Scanlan v. Cobb,’ it was said, however, that the con-
veyance of a lunatic would not be set aside unless the
consideration was returned.

In Crawford wv. Scovell,? it was held that the deed of a
lunatic might be set aside by himself without returning
the consideration where there was no evidence of ratifica-
tion after he was restored to reason, or, if there was proof
that the consideration was retained, justice could be done
by a conditional verdict.

Deusen v. Sweet,‘ decides that the deed of an insane
person is absolutely void, not voidable.s

The weight of authority, however, seems to be in the
‘United States that the deed of an insane person is
voidable, not void.®

The letter of attorney, however, under seal of a luna-
tic, like that of an infant, is absolutely void.’

The voidable deed of a lunatic may be ratified,
just like the voidable deed of an infant, by an ex-
pressed ratification after he beeomes sane, or by acts
which are inconsistent with any intention other than to
ratify.®

16 Gray (Mass.) 279.

285 Ill. 296. See also Dewey uv. Allgire, 37 Neb. 6.

594 Pa. St. 48.

451 N. Y. 378.

5 And see Elder v. Schumacher, 18 Colo. 433; German Loan Society v. De
Lashmutt (Circe. Ct.), 67 Fed. 399; New England Loan Co. v. Spitler, 54 Kan.
560, For an able presentation of this view, see dissenting opinion of Judge
Cole in Allen v. Berryhill, 27 Ia., 557. That a bona fide purchaser from the
grantee takes no title under the deed of an insane grantor, see German etc.
Soc. v. De Lashmutt, supra.

6 See Am. notes to Molton v. Camroux, Rul, Cas., Vol. VI., p. 76; Dexter v.
Hall, 15 Wall. 9; Farley v. Parker, 6 Ore. 105; Rogers uv. Blackwell, 49
Mich.. 192. :

™ Dexter v. Hall, 15 Wall. 9.
$ Arnold wv, Richmond Iron Works, 1 Gray (Mass.) 434.
42 LAW OF CONTRACTS.

The case of Kneedler’s Appeal,’ where the Court re-
fused to open a judgment entered on the warrant of
attorney accompanying a bond and mortgage to secure
the payment of a loan of money, given by an insane
person, while apparently an exception to this general
rule, is not in reality, because the Court places the deci-
sion upon the ground that it was an appeal to an equitable
jurisdiction of the Court, and that had the suit been
brought to recover the loan, there would have been no
defence and, therefore, there was no reason for opening
the judgment.

Contracts of an insane person are voidable, not vord.’

Carrier v. Sears,? was an action by the endorsee of a
promissory note against the maker and the defendant
offered to prove that the plaintiff procured the endorse-
ment from the payee by undue influence, at a time
the payee was of unsound mind and incapable of a valid
endorsement, and the evidence was rejected, it was held,
properly, because the contract was a voidable contract,
if the payee was insane, and being voidable and not
void, could only be avoided by the insane person and
not by the person with whom he had contracted.‘

In Burk v. Allen,> the opposite rule was laid down.
This case, however, in deciding that the defence of insanity
of the payee could be set up in a suit against the maker
by the endorsee, affirmed the general doctrine of the
voidability of contracts made by lunatics, and bases the
decision in the particular case partly on the ground that
if that defence could not be set up, then in an action by

192 Pa, St. 428.

? Under what conditions the contracts of a lunatic are binding or voidable,
see Anson on Contracts, 8th ed., p. 147, n. 1, and Rul, Cas,, Vol. VL, p. 74.

34 Allen (Mass.) 336.

‘Harmon v, Harmon (Circ. Ct.), 51 Fed. 113; Atwell v. Jenkins (Mass.), 40
N. E. 178. See also Walmsley v. Darragh, 33 N. Y. Sup. 274, 12 Misc. Rep.
199; Baldwin v. Golde, 88 Hun. 115; Kiehne v. Wessell, 53 Mo. App. 667. |

526 N. H. 106.
CAPACITY OF PARTIES. ae

the endorser against the maker it could not be set up
as a reason why the note should be paid to him instead
of to his endorsee, and so in effect, the right which the
lunatic had to avoid the contract would be taken away
from him.’

There is this peculiarity about the executed contracts
of lunatics which distinguishes the rule of law with
respect to them from that in regard to the executed con-
tracts of infants: While an infant was bound to return
the consideration which he had received, if he had it, yet
if he did not have it, he could still revoke the contract
and recover what he had given, the law is different with
respect to lunatics. The rule is that if they contract
with parties who are ignorant of the fact of their lunacy,
and if the bargain is a fair one, and they are not able to
return the consideration they received, then the contract
is binding on the lunatic.

The leading case is the case of Molton v. Camroux.?
Here a lunatic purchased certain annuities for life, from
a society ‘which had no knowledge at the time of the
purchase that he was of unsound mind. The transaction
was bona fide and fair. Held: that after the death of the
lunatic his personal relatives could not recover back the
premiums paid for the annuities. The decision was given
by Chief Baron Pollock after an elaborate argument, and
at the conclusion he states: ‘ We think, however, that
we may safely conclude that when a person apparently of
sound mind, and not known to be otherwise, enters into
a contract for the purchase of property which is fair and
bona fide, and which is executed and completed and the
property, the subject matter of the contract, has been

1 See also Schmidt v. Ittman, 46 La. Ann. 888.

2 2 Exch. 487, affirmed in 4 Exch. 17. See also Imperial Loan Co. v. Stone
(1892), 1 Q. B. 599; Myers v. Knabe, 51 Kan. 720; Weis v. Ahrenbeck, 5 Tex.

Civ. App. 542; Rul. Cas., Vol. VI., pp. 74, 75. Contra, Rea v. Bishop,
41 Neb. 202.
44 LAW OF CONTRACTS.

paid for and fully enjoyed and cannot be restored so as
to put the parties in s/atu guo, such contract cannot after-
ward be set aside, either by the alleged lunatic, or those
who represent him.”

This is the law of Pennsylvania. In the case of Wire-
bach’s Executors v. First National Bank of Easton,’ it
was decided that the lunacy of an accommodation endor-
ser at the time of endorsing was a good defence in an
action on a note by the endorsee against the endorser,
the accommodation endorser having received no consider-
ation or benefit for the transaction.

In Seaver v. Phelps,? the Supreme Court of Massa-
chusetts laid down a different rule. In that case trover
was brought to recover a promissory note, pledged by
the plaintiff to the defendant, upon the ground that the
plaintiff was insane at the time he made the pledge.
The Court refused to charge that even if the jury did
' believe that the plaintiff was insane, yet he could not
recover if the defendant had no knowledge of it and
practiced no fraud on him, and this judgment was
affirmed, the Court saying: ‘‘’ The fairness of the defend-
ant’s conduct cannot supply the want of the plaintiff’s
capacity.”

This case has been followed in a number of cases in
this country.2 In Northwestern Mutual Fire Insurance
Company v. Blankenship, in a suit on a mortgage given
by a husband and wife, they both being dead, the wife’s
heirs set up the defence of insanity when the mortgage
was executed, which insanity continued until the wife’s
death. The answer was the wife was apparently sane
when the mortgage was executed, and the mortgagee did

197 Pa. St. 543, in which the earlier cases are reviewed, and the rule laid
‘down substantially as stated.

211 Pickering (Mass.) 304.

3 Northwestern: Mut. F. Ins. Co. v. Blankenship, 94 Ind. 535; Van Patten v.
Beals, 46 Ia. 62; Sullivan v. Flinn, 20 D. C. 296.
CAPACITY OF PARTIES. 45

not know that she was insane, and the mortgage was
taken in good faith to secure a loan to the husband.
Held that the answer was not sufficient, and the rule
laid down in Seaver v. Phelps was applied in a modified
form. Consideration did not go to the lunatic.

Lincoln v. Buckmaster,’ held that one who contracts
with a lunatic in good faith, not knowing him to be a
lunatic, cannot recover for services rendered, if, as a
matter of fact, they prove of no benefit to the lunatic.

In State Bank wv. McCoy,? the maker of a note, who
was so drunk when he executed it that he did not know
what he was doing, was held liable on it at the suit of a
bank which had purchased it from the payee, in ignor-
ance of the drunkenness of the maker, though the maker
had received no consideration. ‘The decision in this case
is put upon the necessity of protecting the negotiability
of commercial paper, but it appears to be absolutely
inconsistent with the case of Moore vw. Hershey,’ where
the rule was laid down and applied that the principle
that the consideration of a negotiable note cannot be
inquired into in the case of a holder for value, does not
apply to the case of such paper made by a lunatic. Now,
unless there is a difference between such paper when made
by a man so drunk that he does not know when he makes
it and when made by a lunatic, these cases are difficult to
reconcile.

A lunatic is liable for necessaries. In Baxter v. The
Earl of Portsmouth,’ the Earl of Portsmouth hired horses
and carriages from the plaintiff at various times between
1813 and 1823. It was proved that they were fitting to
his station in life, and that the plaintiff did not know

132 Vt. 652; Van Patten zw. Beals, 46 Ia. 62.

269 Pa. St. 204.

390 Pa, St. 196.
4Sawyer v. Lufkin, 56 Me. 308, Ard sez Carter v. Beckwith, 128 N. Y. 312.

55 B. & C. 140.
46 LAW OF CONTRACTS.

that he was of unsound mind. ‘The plaintiff recovered
upon the ground that they were necessaries.

In McCormack v. Littler,’ a lunatic bought a reaper
and mower, and gave a note for it on which judgment
was obtained, and when execution issued he filed a bill
in equity by his next friend to have the execution stayed.
The Court below granted the injunction and was reversed,
the Court above holding that the contract was binding on
the lunatic on two grounds. First, because there was no
evidence that the plaintiff knew at the time the contract
was made that the defendant was a lunatic; that the con-
tract was a fair one and had been carried out, and that
the reaper had been used for some time; and second, that
the lunatic being a farmer, a reaper and mower was a
necessity for him.

In La Rou v. Gilkyson,’ board and wash for a lunatic
were held to be necessaries for which he was bound.

The marriage of persons, one of whom is insane at
the time of the marriage, is void not voidable.? But a
marriage contract of an idiot is said to be binding in
Manby zw. Scott,* and formerly the marriage of a lunatic
was held valid. It would seem, however, that it is not so
absolutely void as to be incapable of being rendered valid,
by acts of the insane party recognizing its validity after
his restoration to sanity.®

In Browning wv. Reane,’ there is a _ discussion
as to how much sanity is required to make a valid
marriage, and the conclusion is reached that it takes

185 Ill. 62.

» 4 Barr (Pa.) 375.
3 Middleborough v. Rochester, 12 Mass. 363; Wightman v. Wightman, 4
Johnson’s Ch. 343.

*2 Smith’s L. Cas., * p. 456.

5 Bishop on Marriage and Divorce, 3 125, and cases cited, supra,
6 Bishop on Marriage and Divorce, 2 139.

72 Phillemore, 69.
CAPACITY OF PARTIES. 47

about as much sense as it does to make any other con-
tract.’

The law in regard to drunkards is substantially the
same as it is in respect to lunatics and idiots; a contract
entered into by a drunkard is voidable, not void.?

In Gare v. Gibson the action was against the endorsee
and the endorser of a promissory note, and drunkenness
was allowed to be a defence between the parties, In
Bank v. McCoy, this rule was admitted to be sound
between the parties but the Court refused to apply it
where suit was brought by an innocent holder.

4. CONTRACTS OF MARRIED WoMEN.

At common law a married woman was incapable of
making a contract at all. ‘Two doctrines are given: one,
merger of the wife’s legal entity in her husband, the
other incapacity by being sub potestate viri,*? but if the
latter, why could not the wife convey by the husband
joining? Her contract was void.

Marshall v. Rutton,* was an action for goods sold and
delivered to the defendant, a married woman. Plea,
Coverture, Replication, that defendant was living
apart from her husband under articles of separation,
securing to her a comfortable maintenance during the
joint lives of husband and wife, which had been duly
paid. Rejoinder: That articles of separation were only
for so long a time as defendant should suffer her husband

1See also Nonnemacher v. Nonnemacher, 159 Pa. St. 634; Forman v. Forman,
24 N. Y. Sup. 917; Kern v, Kern (N. J.), 26 Atl. 837; McCleary vw, Barcalow, 6
Ohio Circ. Ct. R. 481.

? Gare. v. Gibson, 13 M. & W. 623; Matthew v. Baxter, L. R. 6 Exch. 132;
Bush v. Breinig, 113 Pa. St. 310; Barrett v. Buckston, Aiken 167; State Bank
v. McCoy, 69 Pa. St. 204; Smith v. Williamson, 8 Utah 219. But see Hanehlan
vw. Felchlin, 57 Mo. App. 602.

5 Ewell, p. 279..

*8T. R. 545; Flesh wv. Lindsay, 115 Mo. 1.
48 LAW OF CONTRACTS.

to live apart from her, and the defendant should main-
tain a chaste and becoming cenduct and support her
two daughters without other charge to her husband,
concluding with a traverse of the maintenance being for
their joint lives. After oyer of thé articles plaintiff
demurred. Judgment for defendant.

In Thorndell v. Morrison,’ the deed of a married woman
whose husband had deserted her was held void. In Dor-
rance v. Scott,’ it was held that the bond of a married
woman, though her husband joined in it, is absolutely
void ; that a judgment entered under a warrant of attorney
issued by wife and husband is void; and a judgment on a
set fa.

Keen v. Coleman,? held the judgment bond of a married
woman void, though she had represented herself to be a
widow.

At common law the only mode by which a married
woman could convey her property was by joining with
her husband in levying a fine. By statute, in England,
a deed with a separate acknowledgment by the wife was
given the same effect as a fine In Pennsylvania the
same result was reached by usage, but was afterward pro-
vided for by statute.5

The exceptions to this general incapacity of a married
woman to contract were:

I. In the case of her equitable estate.

At common law the husband had an estate by courtesy
in the wife’s inheritable real estate; he had the power to

125 Pa. St. 326.

23 Wharton 309. In Illinois, where goods were sold and consigned to the
husband, the wife has no authority to deliver the goods to the consignor. Riche-
lieu Wine Co. v. Ragland, 43 Ill. App. 257.

33 Wright (Pa.) 299.

4 Williams on Real Property, * pp. 231, 232.

5 See Act of 24th Feb., 1770, ¢ 2,1 Sm. L, 307, P. D. 567, P. L. 22; Davey vu
Turner, I Dall, 11.
CAPACITY OF PARTIES. 49

alien her chattels real; her personal property was his and
her choses in action he could take by reducing them to
possession in her life or by administration after her death.
Equity followed the law.‘ Her property was secured to
her by putting it in trust. This was called a trust for
the separate use of a married woman. When property
was thus held in trust, the married woman had the
same power over it as if she were single.* Having the
same power over her separate estate as if she were sole,
the married woman was bound by her contracts made
with reference to, and upon the faith of these estates.3
While she had this power, she did acquire ‘“‘a sort of
equitable status or capacity to contract debts ” with respect
to her separate estate in possession or to be acquired.
This is the English rule, but in this country the
decisions are not uniform. While some of the States
follow the English rule, others, and among them Pennsyl-
vania, hold that a /eme covert has no powers over her
separate estate except those given by the settlement.

2. Whena married woman has supplted the consideration
by giving her services or separate property, she may
sue onan express promise made to her by a stranger,
not when made by her husband.

The husband may also sue alone, or both may join.
The joinder of the husband is only pleadable in abate-

1 Bispham on Equity, p. 96.

2 Taylor v. Meads, 4 De G. J. & Sm. 597.

8Johnson v. Gallagher, 3 De Gex, Fisher & Jones, 494; Dodge v. Knowles, 114
U. S. 430.

4See Martin wv. Fitzgibbon, 17 Ch. D. 454; Campbell’s Rul. Cas., Vol. VI., p. 56.
And pp. 67 ef seg. for a consideration of the Married Woman’s Property Act,
45 & 46 Vict. C. 75, and the amendment act, 56 & 57 Vict. C. 63 and the de-
cisions thereunder; also Anson on Contracts, eighth ed., pp. 151-155.

5M. E. Church v. Jaques, 3 Johnson’s Chancery 77. The leading case in
Penna. is Lancaster v. Dolan, 1 Rawle 231. The cases are collected in Bispham
on Equity, 3 103 and notes.

6 Steer v. Farrell, 14 S. & R. (Pa.) 379; Leake on Contracts, p. 560; Root v.
Strange, 28 N. Y. S. 273; Stokes v. Pease, 29 N. Y. S. 430.

4
50 LAW OF CONTRACTS.

ment ;' but the husband must sue alone on an zmplied
contract.? The reason the husband may sue alone on an ex-
press contract is because what is due the wife is a chose
zn action and may be reduced into possession by the
husband suing alone. The reason the husband must
sue alone on an implied contract, is because the wife’s
services and property belong to him, and if made the
consideration from which a promise is implied, the
promise implied must be one to Azm and not to her.
The Act of April 3, 1872,3 gives the wife her earnings
after she has complied with the provisions of the Act.*

3. When the husband ts “ ctutliter mortuus” the wefe' can
contract.5

The fiction of law which makes the husband civilly
dead, puts the wife in the same position as if he was
actually dead.6 The husband is “civiliter mortuus ” when
he is outlawed or under conviction for a felony; or for-
merly from being “ professed in religion.”

4. By the custom of London, a married woman trading

zn that cety may be charged as a“ feme sole” upon
contracts concerning her trade.*

In Pennsylvania this subject is regulated by statute.
By Act of February 22, 1718,’ the privilege of trading as a

1 Bendix v. Wakeman, 12M. & W. 97.

2 Buckley v. Collier, 1 Sid. 114.

3P L,. 35, P. D. 1156.

4See Orr & Lindsley v. Bornstein, 23 W.N. C. 356. As to Act June 3, 1889,
see Lewis’ estate, 156 Pa. St. 337.

5 Sparrows v. Carruthers, 1 T. R. 6. See Stimson, Am. Stat. Law, 32 2513,
6353-

6 Per Lord Eldon, C. J., in Marsh v. Hutchinson, 2 B. & P. 232.

7 Anson on Contracts, p. 117, note.

8Leake on Contracts, p. 563. See Stimson, Am. Stat. Law, ¢3 6520-23, for
statutes relating to trading Contracts, by married women. ;

§z Sm. 99, P. D. 801.
CAPACITY OF PARTIES. 51

Jeme sole was given to wives of mariners and others going
to sea and leaving their wives at shop-keeping, or
working for their livelihood.

The privileges of this Act were extended by Act of
May 4, 1855,’ to wives whose husbands from drunken-
ness, profligacy, or other cause neglected to provide for
them; and to wives deserted by their husbands. It has
been held that where the husband neglects from sick-
ness to provide for his wife, who is in business for her-
self, the wife is not entitled to the privileges of the
Act.*. The Court held that the neglect must be willful.

5. Lxceptions enacted by statute

By Act of April 11, 1848,* it was provided in Section 8:
“Tn all cases where debts may be contracted for neces-
saries for the support and maintenance of the family
of any married woman, it shall be lawful for the creditor,
in such case, to institute suit against the husband and
wife for the price of such necessaries, and after obtain-
ing judgment, have an execution against the husband
alone; and if no property of the said husband be found,
the officer executing the said writ shall so return, and
thereupon an alias execution may be issued, and may
be levied upon and satisfied out of the separate property
of the wife, secured to her under the provisions of the
first section of this Act. Provided that judgment shall
not be rendered against the wife, in such joint action,
unless it shall have been proved that the debt sued for
in such action was contracted by the wife, or incurred

IP, L. 430, P. D. 1153 and 8o1.

? King uv. Thompson, 87 Pa. St. 365.

5Stimson Am. Stat. Law, 33 6420-22, 6450-60; I Parsons on Contracts, 8th ed.

Pp. 371-82; 2 Bishop on Married Women, 22 588-829. For a statement of the
New York law, see Professor Huffcut’s notes to Anson on Contracts, 8th ed.,

Pp. 153, 154.
4P. L. 536.
52 LAW OF CONTRACTS.

for articles necessary for the support of the family of
said husband and wife.”

It has been decided that in construing this section
of the Act, that the debt must be contracted by her and
for necessaries for the family.’ If the suit is on a joint
contract by husband and wife she will not be liable.’
The construction put upon the Act generally is that
it was not intended to give the wife power to contract
generally, but merely to contract to the extent necessary
for her protection in the particulars where such power
is given, and these grants of power have been construed
strictly.3

The same Act (1848) in its sixth section provided that
the property of a married woman should belong to her
as fully after marriage as before; that the husband should
not convey or encumber it without the wife’s written
consent duly acknowledged, and that nothing in the Act
should be construed to relieve the wife from liability
for debts contracted by her. Yet the construction placed
upon this section has only been extended to making
her liable for repairs necessary for her separate estate.‘
Where a husband had advanced money to his wife for
the repair of her property, it was held he could not recover.®
The Act of 1848 “did not confer upon the wife any
power or capacity which she did not possess before,
except that of making a will, of binding her estate by
a contract for necessaries, or, perhaps, though this for
one I doubt, a contract for the repair or improvement
of her real estate.’’°

1 Murray v. Keyes, 35 Pa. St. 384; Roll v. Davidson, 165 Pa. St. 392.

2Parke uv. Kleeber, 1 Wright (Pa.) 251.

3 Berger v. Clark, 29 Sm. 340.

‘Lippincott v. Leeds, 27 P. F. Sm. (Pa.) 422.

5 Bear’s Administrators v. Bear, 9 Casey (Pa.) 525.

6 Sharswood, J., in Moore v. Cornell, 18 P. F. Sm. (Pa.) 323. The doubt was
resolved against Judge Sharswood in Lippincott v. Seeds, supra, he being still
a member of the Court and not dissenting.
CAPACITY OF PARTIES. 53

There have been a number of Acts conferring powers
on a feme covert to make various kinds of engagements,
such as to sell stock, to transfer loans, to draw checks,
to contract for the purchase of sewing machines, etc."

The right of a married woman to contract was made
the subject of legislation in the Act of June 3, 1887."
This Act provides: “That marriage shall impose no
disability on a married woman as to acquisition, owner-
ship, control, or disposition of property in trade or
business in which she may engage, or for the use and
improvement of her separate estate, or her right and
power to make contracts of any kind.”

It has been held under this Act that a wife cannot
sue her husband for money had and received. But in

_Freiler v. Kear,* it was held that a wife with her hus-
band joining could sue a firm, of which her husband
was a member, provided the husband does not object.

Roop’s Appeal,> decided that a married woman has
power to contract under the Act of 1887, for three
purposes, viz: (1) Where she engages in trade or
business; (2) In the management of her separate
estate, and (3) For necessaries, and no more. And
Steffen v. Smith® added that the Act must be interpreted
liberally and full effect given to the words “ That

hereafter marriage shall not be held to impose any

1See Husbands on Married Women and Trusts; Endlich & Richards on
Rights of Married Women, appendix.

2P. L. 332.

3Small v. Small, 129 Pa. St. 366, andsee Endlich & Richards on Rights and
Liabilities of Married Women in Pennsylvania, p. 294, e¢ seg. See Stimson,
Am. Stat. Law, 33 6453-6454 for States in which contracts between husband and
wife are permitted. See Nuding v. Urich, 169 Pa. St. 289.

4126 Pa. St. 470. But 22, Act of 1887, applies only to actions of tort and
contract, and in partition proceedings the husband must be joined: McCoy's Ss
Estate, 29 W. N. C. 412.

547 Leg. Int. 176; 132 Pa. St. 496. See Reed v. Hurley, 7 C. C. Rep. (Pa.)
125; Brooks v. Bank, 23 W. N. C. 502.

6 159 Pa. St. 207.
54 LAW OF CONTRACTS.

disability on or incapacity in a married woman as to her
right and power to make contracts of any kind, and to
give obligations binding herself therefore; but every
married woman shall have the same right to acquire
property, real and personal, in the same manner as if
she were a feme sole.” *

In regard to contracts relating to trade or business,
while the Act removes any disability arising from cover-
ture, it does not confer upon a married woman any right
not theretofore existing to enter into any trade or business.”

When the Act of 1887 was passed a wife was com-
petent to conduct business: (1) At common law under
a deed of settlement.* (2) Under the Act of 1848, with
her husband’s consent where her separate property was
of a character to require mercantile dealings for its use.‘
But the cases, however, in reality only decided that where
a married woman, whose separate property consists of
stock in trade, has dealt with it, has sold it and invested
the money in other property, that in such a case the
creditors of the husband cannot reach the property of
the wife. (3) Under the Act of 1872, where she had
filed a petition according to the provisions of that Act,
expressing her intentions to claim the benefits of the
Act. (4) Under the Acts in regard to feme sole traders.
Whether a married woman can enter into a contract of
partnership, under the Act of 1887, with a stranger, or,
with her husband, has not yet been decided.®

1See Adams v. Grey, 154 Pa. St. 258. The general effects of the Act of 1887
on the wife’s power to contract are summarized in Endlich & Richards’ Rights
and Liabilities of Married Women, p. 126. A judgment confessed bya married
woman is now prima facie valid. McNeal v. McNeal, 34 W. N. C. 259.

2 However, see Walter vw. Jones, 148 Pa. St. 589.

3 Noble v. Kreuzcamp, 111 Pa. St. 68.

4Wieman v. Anderson, 42 Pa. St. 311; Welsh v. Kline, 57 Pa. St. 428.

5 Bovard v. Kettering, tor Pa. St. 181;'Zurn v. Noedel, 113 Pa. St. 336.

6 For a discussion of the subject, see Rights and Liabilities of Married Women,
Endlich & Richards, 3@ 111 to 116 inclusive.
CAPACITY OF PARTIES. 55

So far as the wife’s power to contract for necessaries
is concerned, the Act of 1887 does not seem to much
alter the Act of 1848, though her liability under the Act
of 1887 is a primary liability instead of, as under the
Act of 1848, a secondary liability.’

In regard to contracts for the use, enjoyment and
improvement of her separate estate by a married woman,
the Act of 1887 has gone a little in advance of the Act
of 1848. Under the Act of 1848 it was held? that while
there was no express power given a married woman to
make contracts for the improvement of her separate
property, yet the right given her “to own, use and
enjoy,” carried with it the right to contract for the
necessary improvements. ‘That necessity had to be
established like any other fact before her power to’
contract came into existence. The Act of 1887, expressly
confers upon her the right to make contracts for the
improvement of her separate estate? Whether the ex-
pression of the right to contract for improvement really
confers upon her any greater power of contracting than
she had under the Act of 1848, is doubtful. It, how-
ever, confers upon her the power of giving an obliga-
tion binding herself for the payment of debts contracted
for the improvement of her separate property, a power
which she did not possess under the Act of 1848.
And she may now buy real estate and give obligations
binding herself for the payment of the purchase money.>

1 Weber’s Estate, 25 W. N. C. 220; Kooker v. Williams, 51 Leg. Int. 219. See
Houck v. Smith, 46 Ill. App. 64.

2See Lippincott v. Leeds, 77 Pa. St. 420; and Guyer v. Harrison, 103 Pa. St.
473-

8This Act has not made useless a separate use trust to protect a married.
woman from the importunities of her husband. Hays v. Leonard, 155 Pa. St.
474. Nor has it abolished estates by entireties. Bramberry’s Estate, 156
Pa, St. 628.

4Brunner’s App., 47 Pa. St. 67.

5 Steffen v. Smith, 159 Pa. St. 207.
56 LAW OF CONTRACTS.

The Third Section of the Act of 1887 gives toa married
woman the right to make a lease of her property, make
assignments, transfers and sales of her separate personal
property, and to make notes, bills, drafts, bonds, or obli-
gations of any kind, and to appoint attorneys; and it pro-
vided that her husband need not be a party to any of these
acts. Prior to this Act it had been held that a lease by a
married woman was not valid unless her husband joined
in it and it was separately acknowledged. The joinder
of a husband in a lease is no longer necessary, under
the Act of 1887. Probably as the provision of a
separate acknowledgment was a mode of protecting the
wife where she joined with her husband in a lease,
such acknowledgment will no longer be necessary
under the Act of 1887, where his joinder has ceased to be
necessary.

Prior to the Act of 1887, a wife might dispose of her
choses in action by way of pledging them or assigning
them without having the instrument acknowledged, if her
husband joined with her.? As the Act of 1887 provided
that the husband need no longer be a party, a wife will
therefore be able to assign her choses in action by an
ordinary assignment executed by her alone without any
acknowledgment.

Notes, bonds, drafts and obligations which a wife is
authorized to make by the Act of 1887, would seem to be
confined to cases where they are given in connection with
those matters as to which she has, under that Act, the
power to make contracts, and this grant of authority does
not seem to be intended to give her a right generally to
make notes, bonds, etc., as though she were a feme sole#

1See Roop’s Appeal, 25 W. N. C. 380; Harbert v. Miller, 4 W. N. C. 325.
2Bond wv. Bunting, 78 Pa. St. 210; Fryer v. Rishell, 84 Pa. St. 521; Dando’s
Appeal, 94 Pa. St. 76.

3See McNeal v. McNeal, 161 Pa. St. 109; Patrick v. Smith, 165 Pa. St.
526. ‘
CAPACITY OF PARTIES. 57

Under this Act a wife can appoint an attorney or agent,’
and that agent may be her husband. While theseseveral
powers of contracting are given to a married woman
under the Act of 1887, the question whether any of them
can be exercised or not, unless she is a possessor of sepa-
rate property, is one of some difficulty.

The question is discussed in Endlich & Richards, on
Married Women,’ and the result is summed up as follows:
“Summing up the effect of all these considerations, it is
probably accurate to say, that, while all the liabilities
which the Act of 1887 permits:a married woman to incur
are to be regarded as essentially personal liabilities, as
distinguished from mere liabilities in respect to property,
yet the power given to a married woman by the Act to
incur personal liabilities is not absolute or unlimited, or
altogether irrespective of her ownership of property or of
business interests; and that, consequently, in order to be
empowered to render herself liable upon any contract,
except for necessaries, it is essential that she either have
an antecedent separate estate to which the contract must
bear some relation, or be engaged in some trade or
business of her own, dona fide and under proper authority,
the earnings or profits of which shall enure to her use
and to her separate property and in relation to which the
contract must be made.” 3

The Act of June 8, 1893, which formally repealed the
Act of 1887, in reality “ re-enacted and enlarged it.”> In
Reed vw. Stouffer,’ Stewart, P. J., says: “The Act of June
8, 1893, resulted inevitably from the Act of 1887, June 3,

1Bauck v. Swan, 146 Pa. St. 444.

* 44 236-248.

8This reasoning was confirmed in Roop’s Appeal, supra. However, see
Adams v. Grey, 154 Pa. St. 258; Campe v. Horne, 158 Pa. St. 508; Steffen v.
Smith, 159 Pa. St. 207.

*P. L. 344, Brightly’s Purdon’s Digest, 1299; Pepper & Lewis’ Digest, 2887.

6 Curry v. Phillips, 14 Pa. C. C. R. 479.

6 Td. 505.
58 LAW OF CONTRACTS.

P. L. 332, and its conservative interpretation. A very
brief experience under the restricted operation of the
latter Act was sufficient to demonstrate that, with few
exceptions, all the restraints and disabilities, imposed by
the common law could be dispensed with, without in the
least disturbing the husband’s proper headship in the
family relation.” ‘The first section of the Act of June 8,
1893, provides that married women may acquire and dis:
pose of property of any description to the same extent
and in the same manner as an unmarried person, but that
she may not mortgage or convey her real property with-
out the joinder of her husband.’. The second section of
the Act empowers her to make all contracts, in writing or
otherwise, in the enjoyment of the rights and powers con-
ferred by the first section, with the proviso that she may
not become accommodation endorser, surety, nor guarantor
for another, nor make or acknowledge any instrument
mortgaging or conveying her real property, unless her
husband join in such mortgage or conveyance.

Under this Act the following decisions have been ren-
dered. A married woman is still incompetent to become
one of the five incorporators of a corporation of the second
class ;? she cannot by contract release her right to her
widow’s exemption, after the death of her husband ;3 it
has been held that in order to decree a specific perform-
ance of a contract of sale of real property, executed by
a married woman, such contract must be acknowledged
by her;* she cannot become accommodation endorser.

1Separate acknowledgment by the wife is no longer necessary. Reed v.
Stouffer, 14 C. C. Rep. 505.

?Potter Gas Co., 15 C. C. Rep. 347; Piso Company, Ib. 348; New Century
Club Soc., 9 C. C. Rep. 355. See, however, First Ind. Ladies’ Aid Soc., 40
P.L. J. 105.

8 Adenwelder’s Est., 5 Northamp. 41; 1 Sup, Ct. 345.

4Whitlinger v. Jack, 16 C. C. Rep. 112.

5 Patrick v. Smith, 165 Pa. St. 526; Bolton’s Est., 14 C. C. Rep. 575.
CAPACITY OF PARTIES. 59

The contracts of a married woman, while void against
her, are valid on her behalf. Where she had performed
the contract on her part, she alone could set up her
disability." Coverture is a personal disability and the
wife alone can set it up.’

This is an old rule? One of the earliest cases is
Brashford v. Buckingham,‘ where a wife had cured a
wound for ten pounds which the patient refused to pay.
In a suit on the contract she and her husband recovered.®
This case goes rather on the theory that the husband
adopts the wife’s acts, though the joinder of the wife is
not consistent with such a theory. In some cases, by a
kind of estoppel, a married woman has been held liable
on her contract, when she has received the consideration
to a limited extent, that is to say, to the extent of enforc-
ing her contractual liability, zo¢ against herself personally,
but against the property, as part payment for which she
contracted the obligation.

The purchase money obligation of a married woman is
binding to this extent: It may be enforced against the
land purchased, no matter in what shape the obligation
may be, whether a note, a bond with warranty to confess
judgment, or a mortgage. Snyder v. Noble® was an action
of debt brought on the bond of a wife. It was held that
no personal obligation was created, there was only a right
which could be enforced, not against her, but against the
land; and in Fryer wv. Kishell,’ this doctrine was applied
where the husband and wife had assigned their right to

1 Kahn v, Pickard,'5 W.N. C. 537:

2 Holden wv. Banes, 140 Pa. St. 63.

3Asto when the husband a/oze must sue, and when both, see sub-head 2,
Supra,

*Cro. Jac. 77; Id. 203.

5Smith on Contracts, *p. 296, n. h., for collected cases.

694 Pa. St. 286.

784 Pa. St. 521.
‘60 LAW OF CONTRACTS.

the purchase money of lands due under articles of sale
made without an acknowledgment. This doctrine is not
pushed so far as to allow a married woman to transfer her
title to real estate by estoppel, but she must comply with
the statutory mode of transfer. A parol agreement not
to claim dower against a mortgagee is not binding.’
Where a married woman conveyed lands without com-
plying with the statute and received part of the purchase
money the conveyance was held void, because an estoppel
could have no more force than a deed, and the deed of a feme
covert, except in compliance with the statute, is a nullity.’

Contracts between the husband and wife.

Contracts between the husband and the wife, when
made before marriage, or made after marriage, are void at
law. If made before marriage they are extinguished by
the marriage, and if made after marriage they are a
nullity, because a person cannot contract with himself.
However, if the contract is made before marriage, and to
be performed after the marriage is ended, then, while it is
suspended during marriage, it can be enforced afterward.’

Cage v. Action,* was the case of a bond given by a man
to his wife to secure the payment of money, in case she
married and survived him. Duffy v. The Insurance Com-
“pany,> was a case of a post-nuptial agreement between a
husband and wife which, however, was sustained upon
equitable principles. In Cannel v. Buckle,® where a
woman before marriage gave a bond to her husband that
she would convey certain land to him, then married him

1 Davidson’s App., 95 Pa. St. 394.

2Glidden v. Strupler, 52 Pa. St. 400. See Dobbin v. Cordiner, 28 Am. L. R.
654, and note.

5 See Jn re Jones Estate, 24 N. Y. S. 706; Turner v. Warren, 160 Pa, St. 336.

4Lord Raymond, 575.

58 .W. & S. (Pa.), 413.

$2 P. Wm. 243.
CAPACITY OF PARTIES. 6r

and died. It was held that the agreement could be
enforced against their heirs. In Ludwig’s Appeal,’ an
agreement before marriage, between a wealthy widower
of fifty-seven years of age and a poor widow of sixty-
three years of age, that in consideration of comfortable
support during her life and at her death a decent Christian
burial she would relinquish all rights in his estate, was
enforced, and she was refused a widow’s claim for three
hundred dollars.

In Kincade v. Cunningham,’ a man had given a woman
whom he was about to marry, and whom he afterward did
marry, a note for five thousand dollars secured by a bond
and mortgage, in consideration of her marrying him, and
judgment had been obtained on the bond. It was
held that the wife might issue sc fain her own name
against her husband, directly, to revive the judgment,
notwithstanding the fact that he set up in an affidavit in
defence that she had made his life miserable and had.
afterward left him, the Court saying that such a defence,
if a defence at all, must be made before the original judg-
ment was obtained, and that in any event the amount of
felicity enjoyed by the husband had nothing to do with.
the obligation of the bond.

In Freiler v. Kear,3 the wife was allowed to sue her
husband and his partner, the husband being joined as a
co-plaintiff and making no defence, and it was held that
the partner could not set up the coverture of the wife.
This case was since the Act of 1887, and the opinion is:
based upon the theory that a husband may confess a
judgment to his wife directly, and that it will be sus-
tained in equity as in effect a settlement upon her. So-
in Gackenbach v. Brouse,‘ a parol ante-nuptial settlement.

trot Pa. St. 535.
7118 Pa. St. 501.

324 W. N.C. 195.

44 W. &S. (Pa.) 546.
62 LAW OF CONTRACTS.

between husband and wife, whereby he allowed her to
retain her chattels, was sustained as an equitable settle-
ment.

But in support of such contracts between husband
and wife the Courts require that there should have been
the greatest good faith, wberrima fides, between the
parties.

In Kline v. Kline," Judge Sharswood says: “‘ There is
perhaps no relation in life in which more unbounded
confidence is reposed than in that existing between
parties who are betrothed to each other. Especially does
the woman place the most implicit trust in the truth and
affection of him in whose keeping she is about to deposit
the happiness of her future life. From him she has no
secrets; she believes he has none from her. To consider
such persons as in the same category with buyers and
sellers, and to say that they are dealing at arm’s length,
we think is a mistake. Surely when a man and woman
are on the eve of marriage, and it is proposed between
them, as in this instance, to enter into an ante-nuptial
contract upon the subject of ‘the enjoyment and disposi-
tion of their respective estates,’ it is the duty of each to
be frank and unreserved in the disclosure of all circum-
stances materially bearing on the contemplated arrange-
ment.”

Under the Act of 1887 there is no extinguishment
of a contract right existing at the time of marriage
between husband and wife, because that Act Provides that
she is to use and dispose of property in possession
and expectancy.’

In addition to the cases already cited, I may add,
in reference to post-nuptial contracts: Livingstone z.

157 Pa. St. 120.

* As to whether it can be sued on, see Small v. Small, 24 W. N. C. 452; End-
lich & Richards on Married Women, 3 343.
CAPACITY OF PARTIES. 63

Livingstone,’ where a husband agreed with his wife that
he would purchase a lot in her name and build a house
thereon, and that she should repay him by selling a piece
of property which belonged to her. The husband pur-
chased the lot and built the house, and the wife died
before having sold the property, it was held that a con-
veyance might be decreed against the infant heirs, and
that the husband should be reimbursed according to agree-
ment out of the proceeds of the sale.

In Lehr wv. Beaver,? there had been a sale by the
husband and wife of the wife’s land, and then a subse-
quent separation between them, and it was held that
an agreement, that a portion of the unpaid purchase
money should be paid to an attorney in trust for the
wife, would be enforced and the husband could not
recover on an action for money had and received,
although the wife had failed to perform her part of
the contract, though he might have an action for breach
of contract.3

The remaining sub-divisions of contracts affected by
marriage embraces the cases where the husband is liable
upon a contract made by the wife, and the general
principle which controls these cases is this:

“The husband ts not liable on the wife's contracts
except where the wife ts the agent of the husband.”

This agency may arise out of his direct, authorization,
or subsequent ratification of her act, or it may arise by
implication from his conduct, or it may arise by operation
of law. In the first two instances his assent must be
shown, either expressed or implied.

19 Johnson’s Ch. 537.

28 W. & S. (Pa.) 102.

3 See also the case of Simms v. Rickets, 35 Ind. 181, for a careful opinion in
regard to the law upon conveyances between husband and wife.

+Webster'v. McGinnes, 5 Binney 235. See Krieger v. Smith, 33 Pac. (Mont.)

937.
64 LAW OF CONTRACTS.

Instances of implied consent may be seen in Mackinley
v. McGrefor, ' where the husband allowed the wife to carry
on business; and in Stall wv. Meek,’ where a husband on
going away directed a balance due him to be paid over
to his wife, and that was held to clothe her with
authority as his agent over that balance. These cases
of implied assent, as well as those where the assent is
directly expressed, whether authorizing the act or ratifying
the act of the wife, are like any other contracts executed
by an agent, and the principles applicable to them are
those which will be discussed when the question of forma-
tion of contracts by an agent is considered:

There is, however, another class of cases in which a
husband is held liable upon a contract made by his wife.
These cases arise upon an assent implied in law, where
agency either expressed or implied cannot be shown or
is actually disproved.

This liability of the Husband for contracts made by
his wife exists in the case of necessaries furnished the
wife for herself or for the family,* and it is to be
distinguished from the liability which ordinarily exists,
where the wife contracts debts for the ordinary expenses
of the household. In the latter case the liability is
really a question of agency, either by the direct or implied
assent of the husband, and might exist as to a house-
keeper or any other person, and does not arise from the
marriage relation.‘

The liability which arises without, or against the
consent of the husband, only arises from necessity where

13 Wharton 269.

2”70 Pa, St. 181.

3 Ehrich v. Buchi, 27 N. Y. S. 247; Sturbridge v. Franklin, 160 Mass. 149.

‘Debenham v. Mellon, L. R. 6 App. Cas. pp. 24-33. That the husband is still
liable for necessaries for his wife and family despite the recent Acts of Assembly,
see Moore v. Copley, 165 Pa. St. 294; Roll v. Davison, Ib. 392; Waesche's
Est., 166 Pa. St. 204. However, see Goodman zu. Shipley, 63 N. W. Rep. (Mich.)
412.
CAPACITY OF PARTIES. 65

the husband fails to provide for the wife and is, therefore,
one which he cannot rid himself of, whether they are
living together or living separate without any fault on
her part, and whether he gives notice or does not give
notice that he will not be liable for debts contracted by
her:’

The leading case on this subject in England is
Manby v. Scott,? in which Scott’s wife left him and
stayed away twelve years and then came back and he
would not receive her nor allow her anything for her
maintenance, and forbid the plaintiff trusting her. Not-
withstanding, the plaintiff sold her goods fitting her
condition in life and then sued the husband. It was held '
that he could not recover.

In Seaton v. Benedict,’ Mrs. Benedict was the extray-
agant wife of a London lawyer. She became indebted to
a haberdasher for gloves, ribbons, laces and other articles
and the tradesman sued her husband. It was admitted
that the things sold her were necessaries, but it was
also proved that the husband had always furnished the
wife with necessary apparel and knew nothing about these
purchases. The plaintiff failed to recover, Best, C. J.
saying: “It may be hard on a fashionable milliner that
she is precluded from supplying to a lady without
previously inquiring into her authority. The Court,
however, cannot enter’ into these little delicacies but
must lay down a rule that will protect a husband from
the extravagance of his wife.”

In Jolly wv. Rees, Mr. Rees, a country gentleman, told
his wife that he was not going to pay for any more milli-
nery goods she saw fit to purchase on credit for herself

1See Belknap v. Stewart, 56 N. W. (Neb.) 881.
21 Sid. Iog.
35 Bingham 28.
415 C.B.N.S. 628.
5
66 LAW OF CONTRACTS.

and daughters, that they could do well enough on the
allowance which he made them. Nevertheless the lady
ordered quite a substantial bill from the plaintiffs, which
being sent to her husband he declined to pay. The
tradesman had not known that Mr. Rees had expressly
forbidden his wife to incur surreptitious debts, and the
goods were necessary. It was held that the plaintiff could
not recover, and the decision was subsequently approved
in the case of Debenham wv. Mellon, before referred to.

Now as to all these cases, it will be observed, that either
the wife was already sufficiently supplied, so that the con-
dition of xecesszty, on account of which the law would
charge the husband, did not exist, or else, as in the first
case, she had voluntarily left her husband.

In Walker v. Simpson,’ in a suit on a sere faccas on
a mortgage, the plaintiff disputed certain credits endorsed
on the bond accompanying the mortgage. These credits
were receipts of interest signed by the plaintiff’s wife.
It was held that had the defendant shown that the
money receipted for by the wife had been used for the
purchase of necessaries for the wife’s support, and that
she had been abandoned without cause by her husband,
the credits might have been allowed, not otherwise.

In Breinig v. Metzler’ it was said in an action on goods
sold and delivered to the wife, for which suit was brought
against the husband where the wife was living apart
from the husband, that to justify a recovery, it was
necessary to show: (1) That the goods were delivered ;
(2) That they were necessary, and (3) That the wife had
separated from the husband for good cause.3

The best illustration of the doctrine that there is a
liability of the husband for contracts entered into by his

17 W. &S. (Pa.) 83
2 23 Pa. St. 156.
3See notes to Manby zw. Scott, 2 Sm. L. Cas. 348.
CAPACITY OF PARTIES. 67

wife, apart from agency expressed or implied, is the
liability of a lunatic for necessaries supplied to his wife.
This liability is said to exist in Reed v. Legard’ and in
_ Alexander v. Miller,’ the Court says that “an expressed
or implied authority is the test by which all ¢ases must
be determined in regard to the husband’s liability for
engagements made by the wife. For a married woman
cannot make any contract binding her husband, except
by his express or implied authority,” and then the
Court adds, “It is, however, said that there are excep-
tions to this rule on the principle of necessity and in-
stances of lunacy.”

This liability after all, however, is not a contractual
liability, because the husband does not make the con-
tract and the wife is not his agent, and therefore, there
can be no contract between the party furnishing the
necessaries and the husband. It is a liability guasz con-
tractual and enforced by an action of assumpsit.

5. AGENCY.

The general subject of agency will be discussed only
as it affects the power of parties to contract. Ordinarily
any one may be an agent but no one can appoint an agent
unless capable of entering into contracts. Agency may
arise in three ways:

Zz. From a consideration executed on request.

Where a person is requested to do some act for an-
other‘ no legal relations are created until the service is

16 Exch. R. (W. H. & G.) 636. See also Hallett v. Hallett, 34 N. E. (Ind.
App.) 740.

*4 Harris (Pa.) 214.

3See Anson on Contracts, Part VI, Agency, and Pollock on Contracts, * pp.
94-109.

4Sandifer v. Lynn, 52 Mo. App. 553; Anson on Contracts, * p. 331. As to im-
plied agency, see Sheanon v. Pacific Mut. Life Ins. Co., 83 Wisc. 507.
68 LAW OF CONTRACTS.

begun, when the agent becomes liable for misperformance
and the principal for indemnity for any loss, risk or
expense which the agent may have incurred in per-
forming the service.

In Shiells v. Blackburne* the defendant, a general
merchant, undertook without pay to enter at the custom
house a parcel of goods belonging to the plaintiff together
with a parcel of his own. He made one entry for both
parcels and gave a wrong name for the articles. Owing
to the mistake the goods were seized. The defendant
was held not liable because not guilty of fraud nor gross
negligence. The Court said, “If a clerk in the custom
house had undertaken the service he would have been
liable because his situation implied a knowledge of how
to make the entry, not so of a general merchant.”? In
Wilkinson v. Coverdale,3 a person who had offered to
procure insurance for the plaintiff and had done it so

negligently that the plaintiff lost the benefit of the in-

surance, was held liable.*

“Ratification isan adoption of a contract made on our
behalf by some one we did not authorize, which relates
back to the execution of the contract and renders it oblig-
atory from the outset.”5 Full knowledge of the circum-
stances is necessary to ‘valid ratification.© It may be
express or by conduct, so that a clear manifestation to

11H. Blackstone, 158 (1789); see Bibb v. Allen, 149 U. S. 481.

2In Wheeler v. Barr (Ind.), 34 N. E. 591, it was held that the payee of anote
is not charged with notice of the forgery where he requests the maker to
get acertain person as surety thereon and the signature obtained proves to be
false.

31 Espinasse 75.

4See also, upon the same point on insurance, French v. Reed, 6 Binney
(Pa.) 308.

5 Hare on Contracts, 272.

®Starr & Co. vu. Galgate Ship Co., 68 Fed. 234; Dowden wv. Cryder 55 N.
J. Law 329; Stokes v. Mackay, 64 Hun. 639; Field v. Small, 17 Colo,
386; Duncan wv. Hartman, 149 Pa. St. 114; Shoninger v. Peabody, 59 Conn.
588.

fe,
CAPACITY OF PARTIES. 69

adopt the agent’s act is shown.’ In some cases silence is
enough, as where an attorney fora special purpose goes
beyond the line of his employment without objection ;? or
where the special circumstances make silence evidence of
agreement. And when a principal does not promptly
repudiate the act of an agent in excess of his authority
he is bound.‘

2. By the acceptance of an executed consideration.

This is illustrated in the case of ratification of a con-
tract made without authority by one holding himself
out as an agent.

In case of a ratification “the agent must contract as
agent for a principal in existence and in contemplation
at the time, and for such things as the principal may
lawfully do.” 5

(2) He must contract as agent. If he contracts without
naming his principal, the other party may hold the agent.
Beymer v. Bonsall,° decides that a suit against an agent
contracting in his own name is no bar to another suit
against the principal.

(4) The agent must act for a principal in contem-
plation. In other words, the act done by the agent

1If a deed is executed without authority it can only be ratified by a sealed
instrument, McCalla v. Land Mortgage Co., 90 Ga. 113. See also Hawkins
v. McGroarty, 110 Mo. 546; Goetz v. Goldbaum (Cal. ), 37 Pac. 646.

2 Banks v. Combs, 7 Barr 543.

3P, W. & B. R. Co. v. Cowell, 4 Casey 329.

4 Bredin v. Dubarry, 14 S. & R. 27; La Compania de Navegacion v. Light and
Power Co., 146 U. S. 483; Welsh v. Heim Brewing Co., 47 Mo. App. 608, 639;
Harmon v. Clayton, 51 Iowa 36; Baldwin v. Howell (N. J.), 30 Atl. 423; Mayer
v. Old, 57 Mo. App. 639; Merritt v. Bissell, 84 Hun. 194. As to insufficient
ratification see McIntosh v. Battell, 68 Hun. 216; Edwards v. Barnes, 55 III.
App. 38; Price v. Moore, 158 Mass. 524; St. John & Marsh Co. uv. Cornwell, 52
Kan. 712.

5 Anson on Contracts, 8th ed., p. 405; McArthur v. Times Printing Co., 48
Minn. 319; Mann v. ae ia &c. Co.,: (1893) A. C. 79.

8 79 Pa, St. 298.
70 LAW OF CONTRACTS.

must have been done on behalf of the person who rati-
fies. One of the leading cases on this subject is Wilson
v. Tumman,’ in which the plaintiffs took possession of the
goods in question under a deed of assignment from one
New, to whom the goods had previously belonged.
After they had taken possession, the goods were seized
and taken away under some process directed to the sheriff
in respect of a debt due from New to the defendant in a
proceeding in which defendants were not actors. The
defendant did not authorize the seizure before or at the
time it was made, but after the seizure he claimed the
goods. An action of trespass de bonis asportatzs was
brought against the defendant, to which he pleaded not
guilty. On the trial of the case the judge instructed
the jury that the subsequent ratification by the defend-
ant of an act not done for him or authorized by him
at the time, did not make him liable and this ruling
was upheld, Chief Justice Tindal saying: “That an act
done for another, by a person not assuming to act for
himself, though without any precedent authority what-
ever, becomes the act of the principal, if subsequently
ratified by him, is the known and well established rule of
law. But when the sheriff, acting under a valid writ by
the command of the Court and as the servant of the
Court, seizes the wrong person’s goods, a subsequent
declaration by the plaintiff in the original action, rati-
fying and approving the action cannot. ... . . alter
the character of the original taking, and make it a
wrongful taking by the plaintiff in the original action.”

In Cummings v. Klopp,’ it was decided that the plain-
tiff could not sue on a promise made to a constable to
pay the plaintiff’s debt, at the end of three months, and

16M. & G. 236 (1843); see Western Pub. House v. District Township of Rock,
84 Iowa Iot.
25 W. & S. 511.
CAPACITY OF PARTIES. ° 71

costs (which had been paid by the plaintiff), for which
the constable had levied. In Watson v. Swann,” the
plaintiff had given instructions to an insurance broker
to effect on open policy for five thousand pounds sub-
ject to declaration thereafter. The broker was unable
to do so and he therefore declared a cargo of the de-
fendant’s on the back of the general policy which he
had effected for himself, upon any kind of merchandise
as interest might appear. This policy had not been
obtained for the plaintiff, and at the time when it was
obtained the plaintiff had not employed the broker. A
loss occurred and the plaintiff sued the insurance com-
pany, and it was held he could not recover.*

(c) But the agent need not profess to be acting for
any one,> except where the act is a wrongful act. In
such case the agent must profess to be acting for the
person ratifying and the ratifying must take place at
atime when lawful if the original act were then done
by the ratifying party.‘

(qd) The principal must have been in existence actu-
ally, or in contemplation of law at the time of the act
done. Kelner v. Baxter,’ decided in 1866, is the leading
case on this subject. The plaintiff was a wine merchant
and entered into a contract of sale with A., B. and C, to
sell them a stock of wine which he had for nine thousand
pounds, which they agreed to purchase for that price on
behalf of a hotel company, limited, which had not obtained
its charter at the time of the contract. The goods were
subsequently handed over to the hotel company and con-
sumed by it in the business of the hotel. The action of

4'r1C.B. N.S. 356.

2 Same point decided in De Bolle v. the Pennsylvania Insurance Co., 4 Whar-
ton 67. :

3 Ford v. Williams, 21 Howard 287.

‘Bird v. Brown, 4 Exch, (W. H. & G.) 789.

5,R.2C.P. 174. —
72 LAW OF CONTRACTS.

A., B. and C. was subsequently ratified by the directors of
the company, and after action brought, by the company
itself. It was contended that A., B. and C., who signed
the contract, were personally liable, and that their act could
not be ratified by a subsequently created company, and it
was so held.

A different result, however, has been reached in equity,
and the rule there is thus stated /z ve Empress Engineer-
ing Company:' “That a Company cannot ratify a con-
tract made on its behalf before it came into existence—
cannot ratify a nullity. The only thing that results
from what is called ratification or adoption of such a
contract is not the ratification or adoption of a contract
qua contract, but the creation of an equitable liability
depending upon equitable grounds. It is inequitable for
aman not to pay for the services of which he has taken
the benefit.”

Substantially the same principle is recognized in Bell’s
Gap Railroad Company wv. Christy,? where it was said:
““We do not desire to controvert the principle established
in England and to some extent recognized in this country,
that when the projectors of a company enter into a con-
tract in behalf of a body not existing at the time, but to be
called into existence afterward, then if the body for
whom the projectors assumed to act does come into exist-
ence it cannot take the benefit of the contract without
performing that part of it which the projectors undertook
that it should perform.”

The contract in Whitney v. Wyman,’ made between the
plaintiff, a manufacturer of machinery for making fruit
baskets, and the defendants, signing themselves as the
Prudential Committee Grand Haven Fruit. Basket

'T,, R. 16 Ch. D. 125.
279 Pa. St. 54.
3ior U. S. 392.
CAPACITY OF PARTIES. 73

Company, made before the company was fully organized
and ratified and adopted by the company after it was fully
organized, was held not to bind the defendants as indi-
viduals. In this case, however, the corporation had been
completely organized, and the ground upon which it was
sought to hold the defendants personally was that at the
time they wrote the letter ordering the machinery, the
certificate of organization had not been recorded, which
under the law had to be recorded before the company could
commence business.

(e) The agent must contract for such things as the
principal can lawfully do. An illegal or void contract
cannot be ratified.

In McHugh wv. County of Schuylkill," it was held
that a forged bond could not be ratified. The same
point was decided as to a forged endorsement in Shesler vz.
Vandike.”

3. The relatzon of principal and agent may be created by
mutual promises, to employ and pay on the one side,
and to do the work required on the other side.

The authority given to an agent requires no special
form, except that where the act to be done requires a seal,
the authority should be under seal.t In this connection
it may be of interest to refer to the decisions in regard
to blank powers of attorney under seal, for instance, for
transfer of certificates of stock. The English Courts held

: 167 Pa. St. 391. See also Allen v. McCullough, 99 Ala. 612; Macfarland v.
Heim (Mo.), 29 S. W. 1030.

‘292 Pa. St. 447. See generally on the subject of ratification, Note to Armory
v. Delamire, 1 Smith’s Leading Cases, * pp. 379, 380 and 381. See also Wheeler
v. Barr, 7 Ind. App. 381. :

. §Moreland v. Houghton, 94 Mich. 548; Zz re Mosser’s Estate, 161 Pa. St. 469.
As to Ky. Statute, see Dickson’s Adm’r. v. Luman, 93 Ky. 614.

‘Cooper v. Rankin, 5 Binney 613; Gordon v. Bulkeley, 14 S. & R. 331. See,
however, Wagoner v. Watts, 44 N. J. L. 126.
74 LAW OF CONTRACTS.

them void.‘ The cases in this country are conflicting.
In this State such a blank power is good.”

The authority of an agent may often be inferred from
the conduct and relations of the parties. In the case of
master and servant, where the master has allowed the
servant to buy goods for him continually on credit, this
amounts to an implied authority to the servant to bind
him for such goods, the rule being “that the authority
of a servant is co-extensive with his usual employment
and the scope of his authority is to be measured by
the extent of his employment.” * Lord Holt said+ “If a
master trust a servant to buy on tick and then gives him
money to buy for cash, and the servant again buys on
tick, keeping the money, the master is liable. And the
same is true of the authority of the wife to bind the
husband for household supplies, her position as house-
keeper justifying the belief that her husband has clothed
her with such authority.” >

In partnership each partner is a general agent fs the
other for the necessary conduct of the business, and this
authority arises from the relationship.

The revocation of an agent’s authority may be

1. By agreement,

2. By change of status.

1. When by agreement it may be expressed by conduct,
or it may be by notice, as being part of the original

1 Hibblewhité v. M’Morine, 6 M. & W. 200, overruling Texeira v. Evans.

2 Building and Saving Fund Association v. Sendmeyer, 14 Wright 67. See
Lewis on Stock and Securities, Chap. III.

3Smith on Master and Servant, * p. 276. See also Winchell v. Express Co.,
64 Vt. 15; Barnett v. Glutting, 3 Ind. App. 415.

4 Anon, Shower, 95.

5 Debenham v. Mellon, 6 App. Cases 24-33; see also Buckle v. Probasco, 58
Mo. App. 49; Kirkpatrick v. Livingston, 28 N. Y. Sup. 93, 7 Misc. Rep. 571;
Dye v. Virginia Midland Ry. Co., 20 D. C. 63; Coffer v. Ottman, 63 Hun. 502;
Brocklesby v. Building Society, 2 Reports, 594, (1893) 3 Ch. 130; Harrington
v. Bronson, 161 Pa, St. 296; Graff v. Callahan, 158 Pa, St. 380.
CAPACITY OF PARTIES 75

contract that it may be so terminated. When by notice, the
agency does not terminate till the notice is made known
to the agent, nor as to third parties, till it becomes known.
to them.’

2. By change of status.

It is doubtful whether insanity annuis authority given
while the principal was sane, until notice is given. In
Drew v. Nunn,’ it was held that until notice the lunatic’s.
estate was liable.’

The death of the principal revokes the agency without
notice, and neither the estate of the principal nor the
agent is liable for contracts made thereafter before the
death is known. The agent is not liable, as having
contracted for a non-existing principal, as in Kelner v.
Baxter,’ for the agent had received authority; nor is he
liable on warrant of authority, as in Collen v. Wright,°
for he had authority; nor is the estate of the decedent
liable.’

In Pennsylvania it is held, however, that the acts of an
agent done after the death of a principal, of which both
parties were ignorant, bind the principal’s estate and the
other party.®

The rights and liabilities of principal and agent zz/er se.
I have nothing to do with at this time.

1Debenham v. Mellon, 6 App. Cases, 24; same case, 5 Q. B. D. 394; Insur-
ance Co. v. McCain, 96 U. S. 84; Perrine v. Jermyn, 163 Pa. St. 497. See
Howell v. Graff, 25 Neb. 130.

240. B. D. 661.

3 Davis v. Lane, 10 N. H. 156.

4Smout v. Iberry, 10 M. & W. 1; Farmers Loan and Trust Co. v. Wilson,
139 N. Y. 284; Davis v. Davis, 93 Ala. 173; Nat. Bank v, Waterman’s Estate,.
134 Ill. 461; Long v. Thayer, 150 U. S. 520.

6T,. R. 2, C. P. 184.

67K, & B. 601.

7 Blades v. Free, 9 B. & C. 167.

8 Cassiday v. McKensie, 4 W. & S. 282, and see an article in 19 Am. Law Reg.
4o1 (July, 1880) commenting on this last decision.
76 : LAW OF CONTRACTS.

I shall now consider: The rights and liabilities of the
parties to a contract, where made by an agent, and I shall
follow Mr. Pollock’s division of the subject.’

1. Agent having authority (at the time or by ratifica-
tion) to bind his principal.

(4) Known to be an agent,

(2) for a principal named,

(6) for a principal not named.
(B) Not known to be an agent.

2. One holding himself out as an agent, but wot having

authority to bind his alleged principal. _
(A) When the alleged principal is named.
(2) who might be bound but does not in fact
authorize the contract,
(4) who in law cannot be bound.
(2B) When the alleged principal is not named.

1. Where the agent has authority to bind his principal,
it is a question of intention whether credit was given to
the principal or agent, or both, and the answer to this
question determines whether the agent, the principal, or
both, are liable upon and entitled to enforce the contract.’

(A) When an agent is known to be an agent, a con-
tract is made with his principal.

(2) When the principal is named frvzma face, he alone,
not the agent, can sue and be sued on the contract.3

(6) When the principal is not named, both the prin-
cipal and the agent are prima facie liable,‘ because credit

1 Pollock, * page 96.

2 Pollock, *p. 97.

3 Whitney v. Wyman, for U. S. 392; Baer v. Bonynge, 72 Hun. 33. See
Mathonican v. Scott, 87 Tex. 396.

* Cream City Glass Co. v. Friedlander, 84 Wis. 53; Thompson v. Davenport, 9 B.
‘ & C. 78; and see note to this casein 2 Sm. 1. C., * pp. 419-426. See Exchange
Bank v, Hubbard, 62 Fed. 112. That the undisclosed principal is liable, see Rice
uv, Fidelity and Casualty Co. (Pa. Com. Pl.) 1 Lack. Leg. Ny. 111; Brolaski v. Aal,
55 Mo. App. 196; N. Y. Cent. & H. R. R. Co. uv. Davis, 86 Hun. 86; Watteau v.
Fenwick, 5 Reports, 143, (1893) 1 Q. B. 346; Perkins v. Huntingdon, 64 Hun. 635.
CAPACITY OF PARTIES. , 77

will not be presumed to have extended to any unknown
principal, but in such case when the principal sues,
the defendant cannot set off a debt due him from the
agent, because he was known to be an agent.’

If, however, it appears from the circumstances of the
transaction, or from the writing itself,;when the contract
is in writing, that it was not the intention at the time
the contract was made, then the agent is not liable.”
The liability of the agent, where his principal is not
disclosed, arises from an inference of fact, viz.: that the
other contracting party did not intend to give credit to
an unknown principal, and this inference of fact may be
overthrown by an inference to be drawn from other facts.

In Fleet v. Murton,? the defendants were fruit brokers
in London, and sold plaintiff’s raisins, giving a contract
note saying, ‘““We have this day sold for your account
to our principal.” They were held liable under a custom,
which was proved, that under such a contract the broker
was liable, but Lord Blackburn said that, apart from the
custom, they would not have been liable.

Where the agent is not prima face liable, he may
become liable by agreement,* as by expressly making
himself liable, and such a liability will, as has been
seen, be ordinarily inferred from the agent’s contracting
in his own name without qualification ; 5 or by usage local,
as in the case of Humfrey uv. Dale e¢ a/;° .or generally

1 Parker v. Donaldson, 2 W. & S. 9.

2 Johnson v. Armstrong, 83 Tex. 325; Anson on Contracts, 8th ed., p. 423.

3, R.7Q. B. 126.

4 Lowe v. Electric Springs Co., 47 Mo. App. 426.

5Pollock * page 98. See also Hamlin v. Abell, 120 Mo. 188; Patrick v.
Bowman, 149 U. S. 411; Porter v. Day, 44 Ill. App. 256; Whitman v. Johnson
(N. Y. Com. P1.), 31 N. Y. Sup. 1009, 10 Misc. Rep. 729; Mahoney v. Kent (N.
Y. Com. Pl.), 28 N. ¥. Sup. 19, 7 Misc. Rep. 726; Pugh v. Moore, 44 La. Ann.
209; Mitchell v. Beck, 88 Mich. 342; Hick v. Tweedy, 63 Law J. 765; Cortland
Wagon Co. v. Lynch, 82 Hun. 173; Moline, Milburn & Stoddard Co. v. Lynch,

82 Hun. 173; Montagu v. Forwood, 4 Reports, 579, (1893) 2 Q. B. 350.
67 B. & G. (go E. C. L. R.) 266.
78 LAW OF CONTRACTS.

as in the case of a foreign principal;' and on the other
hand, an agent who would ordinarily be liable, may
provide against such a result by the terms of the contract
itself.”

(B) Where the agent is not known to be an agent,
both the principal and the agent are entitled and liable
on the contract. The principal, however, is not liable
when the agent contracts in such terms as import that
he is the real principal. In Humble v. Hunter,* where
a son acting for his mother, contracted in his own name
as owner, it was held that the mother could not be sued.
‘Or where the character of the contract forbids the substi-
tution of an unknown principal, as in partnership.

Again, if the other party to the contract, after having
‘discovered that there is an undisclosed principal and who
he is, elects to select either one as the party liable, he
‘cannot afterward pursue the other.° But in Pennsy]l-
vania the rule is otherwise.’ And if the principal sue
he must take the position of the agent, had the agent
sued. Any set off against the agent is good against him.°

On the other hand, it is a right of the other contracting
party to hold the principal liable subject to this limitation :
that between the time of the contract and the time of the

1 Armstrong v. Stokes, L. R. 7 Q. B. 598.

? For instances of what will amount to such a provision see cases collected in
Evans on Agency, * p. 232 e¢ seg.

3 Story on Agency, 3 266; Beymer v. Bonsall, 79 Pa. St. 298; Reed v. Klaus,
152 Pa. St. 341; Barham v. Bell, 112 N. C. 131; Interstate Telegraph Co. v. B. &
‘O. Tel. Co., 51 Fed. 49. But see contra as to principal being entitled where
agent is not known to be such, D. L. & W. R. Co. v. Thayer, 41 Ill. App. 192;

Mitchell v. Railton, 45 Mo. App. 273.

* Pollock * page 100.

564E.C. L. R. (12 A. & E.) 310. See also Pain v. Sample, 158 Pa. St. 428;
Newberry v. Slafter, 98 Mich. 468.

6Kendall v. Hamilton, 4 App. Cases 504; Kingsley v. Davis, 104 Mass.
178,

7 Beymer v. Bonsall, 79 Pa. St. 298. ;

8 Frame v. William Penn Coal Co., 97 Pa. St. 309; Henderson vw. Botts, 56 Mo.
App. 141.
CAPACITY OF PARTIES. 79

claim made against the principal, the state of accounts
between the principal and agent shall not have been so
altered that the principal will be prejudiced if the action
is allowed to lie against him.

The rule was thus laid down in Thompson zw.
Davenport.’ Later in Heald v. Kenworthy,’ the rule as
thus laid down was restricted in the judgment given by
Baron Parke to the cases where in the meantime the
principal had been misled by the action of the other
pasty to the contract so that the principal would still
be liable to suit under this interpretation of the rule,
notwithstanding the alteration of accounts between him-
self and the agent to his prejudice, provided it had not
been brought about by the act or failure to act of the
other party to the contract. However, in Armstrong v.
Stokes,? the rule as originally laid down in Thompson
v. Davenport was followed, but in Irvine v. Watson &
Sons,* and on appeal, this qualification was made upon
the rule: That where the agent was known to be an
agent, acting for a principal who was not known, in
such case the right of the other party to sue the
principal remains, unless the nature of the contract
between the agent and the other party is such as to
preclude the idea of any credit having been given to
the unknown principal.

(II) Where the person holding himself out as agent
is without authority to bind his alleged principal. In
this class of cases the principal is not bound, except
where he ratifies.’ So far as the liability of the professed
agent is concerned this will be considered under the
classification already given.

19B. &C. 78.

*ro Exch. (H. & G.) 759.

LR. 7 Q. B. 599-610.
*5Q. B. D. 102.
5 Bensberg v. Harris, 46 Mo. App. 404.
80 LAW OF CONTRACTS.

(A) Cases where a principal is named.

The liability of the agent is different when the princi-.
pal named might be responsible, and where he could not.
be bound in law. In the first case, when the principal
named might have legally contracted, the agent cannot
sue on the contract,’ unless after part performance with
knowledge of the character of the professing agent, as in
Rayner v. Grote? The professed agent is not liable on
the contract ;* but he is liable on an implied warrant that.
he had authority.‘

In Collen v. Wright ef a/.5 an agent who honestly
supposed he had authority, but had none, was held liable
as on a promise and warrant that he had authority. This
case was followed in Richardson v. Williamson,°® in an
action for deceit.

When the principal could not be legally bound, then,
as the contract is not capable of ratification, the agent is.
directly liable on the contract as a principal.’ In Ejich-
baum wv. Irons,® the members of a committee appointed
by a political meeting to providea free dinner for the party
were held liable for the bill.

(2) The rule is the same where the principal is not.
named, the agent is then directly liable,? and may sue in
his own name.”

1 Kroeger v. Pitcairn, ror Pa. St. 311; Bickerton v. Burrell, 5 M. & S. 383.
215 M. & W. 359.
3 Lewis v. Nicholson, 18 Q. B. (83 E. C. L. R.) 503.

4 Frankland v. Johnson, 147 Ill. 520; Cole v. Obrien, 34 Neb. 68.

54 BK. & B. 301. See also Myers Tailoring Co. vw. Keeley, 58 Mo. App. 491;
Lane v. Corr, 156 Pa, St. 250; Newport v. Smith (Minn.), 63 N. W. 734.

6L, R.6Q. B. 276.

T Kilner v. Baxter, L. R. 2, C. P. 174; N. Y. & Charleston S. S. Co. v. Harbi-:
son, 16 Fed. Rep. 688; Smout v. Ilbery, 10 M. & W.1. See Merchants &
Planters Bank v. Meyer, 56 Ark. 499. 7

86 W. & S. (Pa.) 67.

® Pollock, * page Io9.

10Schmaltz v Avery, 16 Q. B. 655.
CAPACITY OF PARTIES. 81

The liability of third parties to agents in cases of con-
tract is summed up in Story on Agency,’ as follows:

“And, first, in relation to the right of agents against
third persons, founded upon contracts made by them.
These rights, being in derogation of the general doctrine
already stated, apply only to special and particular cases.
They are all resolvable into the following classes: First,
where the contract is made in writing expressly with the
agent, and imports to be a contract personally with him,
although he may be known to act as an agent. Secondly,
where the agent is the only known or ostensible principal,
and, therefore is, in contemplation of law, the real con-
tracting party. Thirdly, where by the usage of trade, or
the general course of business, the agent is authorized
to act as the owner, or as a principal contracting party,
although his character as an agent is known. Fourthly,
where the agent has made a contract, in the subject-
matter of which he has a special interest or property,
whether he professed at the time to be acting for himself,
or not. In all these cases, the agent acquires personal
rights, and may maintain an action upon the contract, in
his own name, without any distinction, whether his prin-:
cipal is or is not entitled also to similar rights and
remedies on the same contract.”

6. CORPORATIONS.

A Corporation is an artificial being existing only in
contemplation of. law. It is distinct from its members.”
Corporations have been divided into sole and aggregate,
and into public and private.

A corporation sole is one consisting of a single person,
as a bishop or a parish priest in England, or the

*@ 393-

2 See definition in Trustees of Dartmouth College v. Woodward, 4 Wheat. 518;
and Pollock on Contracts, *p. 111.

6
82 ‘ LAW OF CONTRACTS.

|
Chamberlain of the City of London. Ford v. Harring-
ton,’ is an illustration of a corporation sole and aggregate.
In this country a person seized of parsonage lands to
hold to himself and successor in the same office in right
of the parish has been held a corporation sole.’

An aggregate corporation consists of more than one
person united in one society and continued by a succes-
sion of members. Of this kind are the mayor and
commonalty of a city and ordinary trading corporations.3
Public corporations are not voluntary associations.
‘There is no contractual relation between the members.
They are merely governmental institutions for the ad-
ministration of public affairs, such as States, counties,
cities. Private corporations are formed by voluntary agree-
ment of its members, such as railroads, banks, insurance
companies, and trading and manufacturing corporations.

The main distinction between a public and private
corporation is that the legislature has the exclusive and
unrestrained control over the former and not over the latter.
Corporations for public charity if supported by private
benefaction are private corporations.t Where, however,
a power to contract is given to a public corporation:
either expressly or by implication, the legislature has no
more control over the exercise of such power than it has
in the case of a private corporation.5

‘It is said that corporations are created by the legis-
lature. This is accurate when speaking of public corpor-
ations. The consent of the members of such a corpor-
ation is not necessary for its constitution. But in the

1L. R.5C. P. 282.

2 Brunswick v. Dunning, 7 Mass. 447.

» Angell & Ames on Corporations, 3 29.

4St. Mary’s Church, 7 S. & R. 617; Western Saving Fund z. City of Phila-
delphia, 7 Casey 185.

® Atkins v. Town of Randolph, 31 Vt. 226; Sharpless v. Mayor, 9 Harris 165.

6 Dillon on Municipal Corporations, 2 29.
CAPACITY OF PARTIES. 83

case of a private corporation, not only the act of the
legislature, but the consent of its members is necessary
in order to constitute a corporation.’””

The charter of a corporation is the law conferring a
franchise of acting in a corporate capacity, and it con-
tains the agreement between the parties and the defini-
tion of the object or objects of the corporation.’

In discussing the contracts of corporations, I shall
confine myself to corporations aggregate, because there
are scarcely any corporations sole in this country (and
it is doubtful whether a corporation sole can enter into
a contract so as to entitle its successors, except by statutory
authority, or as an incident to an interest in land).3

“The capacities of corporations are limited: (1) By
natural possibility, z. e. by the fact that they are artificial
and not natural persons. (2) By legal possibility, z. ¢. by
the restrictions which the power creating a corporation
may impose on the legal existence and action of its
creature.” +

I. The most striking natural disabslity under whith a
corporation rests ts tts tncapacety to act except through
an agent.

Things of a strictly personal nature it cannot do nor
be responsible for, such as acts that involve personal
‘immorality. A corporation cannot be guilty of treason,

1Lauman wv. Lebanon Val. R. R., 6 Casey 42.

«1 Morawetz on Private Corporations, 3 316.

3See Howley v. Knight, 14 Q. B. 240; Pollock on Contracts, * p. 113 and note.

4 Pollock on Contracts, * p.114. Where particular limitations are imposed by
statute, they must be complied with or the contract is invalid. Curtis v,
Piedmont ete. Co., 109 N. C. gor, and 113 N. C. 417; Roberts v. Demens Wood
Working Co., 111 N. C. 432; Milbank v. Welch, 74 Hun. 497; 26 N. Y. S. 705;
Merz v. Interior Conduit & Insulation Co., 34 N. Y. S. 215. To what extent
substantial, though not literal compliance, will suffice, see Ballard v. Carmichael,
18 S.‘W. 734; Farmer’s Loan & Trust Co. v. Toledo etc. Co., 54 Fed. 759; Grant
v. BE. & W. R. Co., 54 Fed. 569; Antietam Paper Co. v. Chronicle Pub. Co., 115
N.C. 143; Farmer’s Loan & Trust Co. v. Ry. Co., 67 Fed. 49.
84 LAW OF CONTRACTS.

felony or perjury. In Regina v. The Great N. of E.
R. R. Co." however, it was held that a corporation
could be indicted for a misfeasance in cutting through a
highway, but in London Joint Stock Company v. Mayor
of London,’ it was held that a corporation was not subject
to the jurisdiction of a customary Court whose process is
exclusively personal. This was a case of foreign attach-
ment. A corporation cannot make a contract of marriage.

On the other hand corporations are responsible, like
any other principal, for the acts of their agents acting
within what is, or what they allow to appear to be, the
scope of their authority.3

In Bayley v. Manchester, etc. R. R. Co.,4 and in
Moore v. Metropolitan R. R. Co.,5 actions for assault
against a railway company; in Bolingbroke v. Swindon
Local Board,° an action for trespass against a sewage
company for entering upon the defendant’s land; and
in Edwards v. Midland Railway Company,’ an action
for malicious prosecution against a railway company were
sustained. So also a corporation may be liable in action of
deceit for the fraudulent act of its agent.®

19 A. & E. (58 BE. C. L. R.) 315.

21C. P. D.1.

3 Menx v, Great Eastern Ry. Co., (1895) A. C. 387. See, however, Morris v.
Griffith & Wedge Co., 69 Fed. Rep. 131. Cunningham v. Massena Springs &
Ft. C. R. Co., 63 Hun. 439; 18 N. Y. S. 600; St. L. & S. F. Ry. Co. vw. Ryan, 19
S. W. 839; Fifth Ave. Bank v. Forty-second St. & G. S. F. R. Co. 63 Hun. 629; .
Richards v. Farmer & Mechanic Inst., 154 Pa. St. 449; Augusta T. & G. R.
Co. v. Kittel, 52 Fed. Rep. 63; Hotchkiss v, Samuel Cupples Wooden Ware Co.,
53 Fed. Rep. 1018 (for fraudulently marking articles ‘‘ patented ,). Nims v. Mt.
Hermon Boys’ School, 160 Mass. 177 (when act is ultra vires). Wachsmuth v.
Merchants Nat. Bank, 96 Mich. 426 (even when malice must be proved).
Woodbury Granite Co. v. Mulliken, 66 Vt. 465.

*L. R.7C. P. 4t5.

51, R. 8Q, B. 36.

6], R. 9 C. P. 575.

76 Q. B. D. 287.

8See Fisher v. Adams, 63 Fed. Rep. 674; Roosevelt v. Land & River Imp.

Co., 33 N. ¥. S. 536. See also Merchants Nat. Bank v. Armstrong, 65 Fed.
Rep. 932; Dorsey Mach. Co. v. McCaffrey, 38 N. E. 208.
CAPACITY OF PARTIES. 85

In Barwick v. Bank,’ Mr. Justice Willes said: ‘“ But
with respect to the question, whether a principal is
answerable for the act of his agent in the course of
his master’s business and for his master’s benefit,
no sensible distinction can be drawn between the
case of fraud and the case of any other wrong. The
general rule is, that the master is answerable for
every such wrong of the servant or agent as is com-
mitted in the course of the service and for the master’s
benefit, though no express command or privity of the
master be proved. That principle is acted upon every
day in running down cases. It has been applied also to
direct trespass to goods, as in the case of holding the
owners of ships liable for the act of masters abroad,
improperly selling the cargo. It has been held applicable
to actions of false imprisonment, in cases where officers
of railway companies, intrusted with the execution of
bye-laws relating to imprisonment, and intending to act
in the course of their duty, improperly imprison persons
who are supposed to come within the terms of the bye-
laws. It has been acted upon where persons employed
by the owners of boats to navigate them and to take
fares, having committed an infringement of a ferry, or
such like wrong. In all these cases it may be said, as
it was said here, that the master has not authorized the
act. It is true he had not authorized the particular
act, but he has put the agent in his place to do that
class of acts, and he must be answerable for the manner
in which the agent has conducted himself in doing the
business which it was the act of his master to place
him in.”

The same point is decided in Peebles v. Patapsco Guano
Company.‘ “A corporation is liable for its malicious or

11, R. 2 Exch. 259.
4977 N. C. 233.
86 LAW OF CONTRACTS.

negligent torts, however foreign they may be to the object
of its creation or beyond its powers. It may be sued for
assault and battery, for fraud and deceit, for false impris-
onment, for nuisance, and for libel.” *

2. Restrictions placed on a corporation by the power
creating tt.

There are two views of the way in which the charter
of a corporation should be construed. They are expressed
as follows by Mr. Pollock :? “ A corporation is an artificial
creature of the law, and has no existence except for the
purposes for which it was created. No act exceeding the
limits of those purposes can be the act of the corporation,
and no one can be authorized to bind the corporation. to
do such an act. In each particular case, therefore, the
question is: Was the corporation empowered to bind itself
to this transaction? A corporation once duly constituted
has all such powers and capacities of a natural person as
in the nature of things can be exercised by an artificial
person. Transactions entered into with apparent authority
in the name of the corporation are presumably valid and
binding, and are invalid only if it can be shown that the
legislature has expressly or by necessary implication
deprived the corporation of the power it naturally would
have had of entering into them. ‘The question is there-
fore: Was the corporation forbidden to bind itself to this
transaction? As Lord Justice Lindley puts it, the differ-
ence is ‘as to whether the act of incorporation is to be

1Nat. Bank v. Graham, I00 U. S. 699. For instance of a negligent tort, see
Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Mattise
v. Consumers’ Ice Mfg. Co., 46 La. Ann. 1535; of malicious tort, see Copley v.
Sewing Machine Co., 2 Wood 494, and of assault and battery, see Goddard z.
R. R. Co., 57 Maine 202; of nuisance, the Delaware Division Canal Company
v. The Commonwealth, 60 Pa. St. 367; of a libel, P,. W. & B. R. R. Co. wm
Quigley, 2t Howard 202; see also Nevill v. Ins. Co., Ltd., (1895) 2 Q. B. 156; of

malicious prosecution, Reed v. Saving Bank, 130 Mass. 443.
2 Pollock on Contracts,* 119, and cases there cited.
.

CAPACITY OF PARTIES. 87

regarded as conferring unlimited powers except where the
contrary has been shown; or whether alleged corporate
powers are not rather to be denied unless they can be
shown to have been conferred either expressly or by neces-
sary implication.’ ”

The first view, the doctrine of “ special capacities,” as it is
called, was the earlier view in England, and was estab-
lished by the case of East Anglian Railway Co. v. Eastern.
Counties Railway Co.’ In Attorney General v. Great.
Eastern Railway Company,” however, Lord Bromwell said
the last cited case had been wrongly decided. He argued
it and it had been decided against him.

The English cases holding to the view of “ general.
capacities” are South Yorkshire Railway & River Div.
Company v. G. N. Railway Company,’ the opinion be-
ing by Baron Parke; and Riche v. Ashbury Railway
Carriage Company,‘ the last cited case going to the
House of Lords.5 It established this qualification to
the doctrine of “general capacities,” z.¢., that in con~
struing a charter, whatever is not granted is prohibited.

In the United States, the rule is as expressed by
Chancellor Kent :° “The modern doctrine is to consider
corporations as having such powers as are specifically
granted by the Act of incorporation, or as are neces-
sary: for the purpose of carrying into effect the powers
expressly granted, and as not having any other.”

The cases in this country are not in harmony
on the question of ‘general and special capacity ” of

411 C. B. (73 E. C. . R.) 775.

211 Ch. D. 501.

39 Exch. 55.

4L. R. 9 Exch. 224.

5, R. 7 E. & I. App., 653.

62 Kent 298; McMastors v. Reed, 1 Gr. Cases 36; Thomas v. R. R. Co., ror
U. S. 71; I Morawetz on Private Corporations, 3316, note 2, for a collection of
the American cases. See also Ft. Worth City Co. v. Smith Bridge Co., 151 U.
S. 294; City of Chicago v. Mutual Elec. Light and Power Co., 55 Ill. App. 429.
88 LAW OF CONTRACTS.

corporations.’ The strongest case in favor of the “ special
capacity ” doctrine is Strauss v. The Insurance Company,’
which held that an insurance company having received
a note by indorsement from the other party in the ex-
ecution of an unauthorized contract, could not recover
against the maker, the indorsement having no more
effect than if made to a dead man.

The weight of authority is against this view, and in
harmony with the doctrine that powers not granted nor
necessary to the exercise of those granted are pro-
hibited, and being not denied but prohibited, if exer-
cised, the effect of the act is to be treated like any
other act done by any one, which is prohibited by
statute. Acts forbidden, whether by the charter or be-
cause no power to do them is granted, are voidable, at
least while executory.*| But, where the act is one not
within the powers of the agent doing it, it may be
ratified, in some cases by a majority, in other cases, by
all the stockholders.’ Where the act involves a change
in the purpose of the corporation it requires the consent
of all the stockholders as well as that of the legis-
lature.°

1They are collected in McWald’s note to the Am. ed. of Pollock on Contracts,
*p, 126, note m.

25 Oh. St. 60.

3 See cases in preceding note; though the opposite view is stated in 2 Mora-
wetz on Private Corporations, 3 689, e¢ seg. See also Ellerman v. Chicago etc.
Co., 23 Atl. 287; Seymour v. Spring Forest Cemetery Ass’n, (Sup.) 19 N.
Y. S. 94; Thompson v. Natchez Water and Sewer Co., 68 Miss. 423; Coe v. East
& W. R. Co. of Ala., 52 Fed. 531; Marbury wv. Ky. Union Sand Co., 62 Fed. 335.

4 Bowman Dairy Co. v. Mooney, 41 Mo. App. 665.

5 Gordon v. Preston, 1 Watts(Pa.) 385; Jz ve St. Mary’s Church, 7S. & R.,
(Pa.) 517, but only when the act is within the power of the corporation.
See also Booth v. Haydens & Willard, 125 N. Y. 75; Jesup z. Ill. Cent. R. Co.,
43 Fed. 483; Underhill v. Land, Bldg. and Imp. Co., 93 Cal. 300; McComb
v. Barcelona Apartment Ass’n, 31 N. E. 613; Tingley v. Bellingham Bay
Boom Co., 4 Wash. St. 644. See Smith v. Martin Anti-Fire Car Heater Co., 19
N. Y. S. 285; Charter Gas Engine Co. v. Charter, 47 Ill. App. 36.

6Tauman v. Lebanon Val. R. Co., 30 Pa. St. 42.
CAPACITY OF PARTIES. 89

Contracts which a corporation has no authority to
make, as long as they are executory can be restrained."
They are not binding. But as this rule is founded on
public policy, the contract is not necessarily absolutely
void in all cases. For instance the invalidity of such
a contract can be cured by a subsequent act of the
legislature.’

After an authorized contract has been performed on
either side, want of corporate power will not be a
defence to an action brought for refusal by other party
to perform the contract.2 Where an act is declared to
be void by the Act creating the corporation, or by
general law, under no circumstances can it bind the
corporation.*

1 And see Wolf v. Arminus Copper Mine Co., 27 N. Y. S. 642; Greenville etc.
Co. v. Planters etc. Co., 70 Miss. 669. :

2Canal Company v. Vallette, 21 Howard 414.

3 Whitney Arms Co. v. Barlow, 63 N. Y. 68; R. R. Co. wv. Transportation Co.,
83 Pa. St. 160. In the first of these cases the party contracting with the corpora-
tion, and in the second the corporation itself, tried unsuccessfully to set up the
defence of want of corporate authority. See also Wright v. Pipe Line Co., Io1
Pa. St. 204; Davis v. R. R. Co., 131 Mass, 258; C. & A. R. R. uv. May’s Landing
etc. Co., 7 Atl. 523; Central Transportation Co. v. Pullman Palace Car Co.,
139 U. S. 24; Brunswick Gas Light Co. v. United Gas etc. Co., 85 Me. 532,
Slater Woolen Co. v. Lamb, 143 Mass. 420, Tod v. Ky. Un. Land Co., 57 Fed.
47; Gorrell v. Home Life Ins. Co., 63 Fed. 371; Mo. Pac. Ry. Co. uw.
Sidell, 67 Fed. 464; Kadish wv. Garden City Ass’n, 151 Ill. 531. When a
stockholder has enjoyed the profits of the act of the corporation he is estopped
from proceeding against the officers on the ground that such acts were wltva vires,
McNab v. McNab & Harlan Mfg. Co., 62 Hun. 18. But contracts entered into
before incorporation, must be shown to have been ratified to be binding. Carey
v. Des Moines etc. Co., 47 N. W. 882; Oaks v. Cattaraugus Water Co., 21 N. VY.
S. 851; 66 Hun. 634; Copper Co. v. Quintrell, 91 Tenn. 693; Pratt v. Oshkosh
Match Co., 89 Wis. 406; Oaks v. Cattaraugus Water Co., 143 N. Y. 430. See,
however, Wilber v. N. Y. Elec. Construction Co., 58 N. Y. Super. 539; Stanton
uv. N. VY. & E. Ry. Co., 59 Conn. 272; Humboldt Min. Co. vw. Am. etc. Co., 62
Fed. 356.

4 Ashbury Railway Carriage Co. v. Riche, 7H. L. 653; Fitzhugh v. Franco-
Texan Land Co., 81: Tex. 306; Buckeye Marble & Freestone Co. v. Harvey, 20
S. W. 427; Goss v. Peters, 98 Mich. 112; Visalia Gas & Elec. Light Co. v. Sims,
104 Cal. 326; North Side Ry Co. v. Worthington, 30 S. W. 1055; Spence v.
Wilmington Cotton Mills, 115 N. C. 210
90 LAW OF CONTRACTS.

Subject to the limitations of its capacity, a corporation
can contract, and unless restricted in the manner of
making a contract, just as an individual can, within the
scope of its powers.’ While in this country negotiable
instruments, whether made or indorsed by a corporation,
are no exception to the rule.’

The rule is so applied to a private corporation in Mason v.
Frick,3 and to a Municipal Corporation in Kerr v. City of
Corry.* But a note under seal of a corporation is not negoti-
able.5 Yet the rule is otherwise in England. There a cor-
poration cannot be bound by negotiable instruments,
unless the negotiation of such instruments is one of the
objects of its incorporation, or unless its agent is expressly
authorized by its charter.®

1 White Water Canal Co. uv. Vallette, 2r Howard 424. To what extent the by-.
laws of a corporation must be complied with in order that its contracts will be
binding, see Beach on Private.Corporations 3 322, and Lumley on By-laws.
But generally it must be shown that the officer contracting had authority,
Lyndon Mill Co. v. Lyndon etc. Inst., 63 Vt. 581; National Cordage Co. »v..
Pearson Cordage Co., 55 Fed. 812. See also Parmelee zw Associated
Physicians & Surgeons, 32 N. Y. S. 149. Generally, also, the power to hire
servants will be presumed, Hand v. Clearfield Con. Coal Co., 143 Pa. St. 403;
Ceedar v. Lumber Co., 86 Mich. 541; Ore Mining & Milling Co. v. Kaiser, 35
Pac. 677, (even when in fraud of the corp.); see M. K. & T. Ry. Co. v,
Faulkner, 31 S. W. 543. See also, C. R. I. & P. R. Co. v. Un. Pac. Ry. Co., 47
Fed. 15; that general officers may bind corporation for counsel fees, see
St. L. & S. F. R. Co. v. Kirkpatrick, 52 Kan. 104; Drew uv Keufer, 30 N. Y. S.
733; and for advertising charges B. S. Green Co. wv. Blodgett, 55 Ill. App. 556.

2Moss uv. Averill, 10 N. Y. 449-457; Fitzgerald & Mallory Const. Co. v.
Fitzgerald, 137 U. S. 98; Merchants Nat’l Bank v. Citizens Gas Light Co., 159
Mass. 505; Milbank v. De Riesthal, 31 N. Y. S. 522. But it must be shown that
the negotiable instrument is properly the act of the corporation, B-B-C Co. v.
Boutell, 45 Minn. 21; Jz re Seymour, 83 Mich. 496; Davis v. Rockingham Invest-
ment Co., 15 S. E. 547; Perry v. Council Bluffs City Water Works Co., 67 Hun.
456; Edwards v. Carson Water Co., 21 Nev. 469; Appeal of Philler, 161 Pa. St.
157.

3105 Pa, St. 162.

4105 Pa. St. 282.

5 See Daniel on Negotiable Instruments, 3 321 and Wood’s Byles on Bills and.
Notes, * p. 70. See also Mackay v. St. Mary’s Church, 15 R. I. 121; Weeks v.
Esler, 68 Hun. (N. Y.) 518.

§ Pollock on Contracts, * p. 130; Beatman v. Mid Water Railway Co., L. R. r
C. P. 499; Morawetz on Private Corporations, 3 352, and note.
CHAPTER III.

FORM OF CONTRACTS.

Under the Roman law and the early English law the
validity of a contract depended generally upon its form.
If it did not comply with certain forms it was not binding.
While this was the general rule there were classes of
contracts which formed exceptions to it which were known
as informal contracts. I do not propose to give any sketch
of either the formal or informal contract of the Roman or
early English law.'

Pollock sums up his account of the form of contracts as
follows: “The foregoing sketch has shown how in the
ancient view no contract was good (as indeed no act in
the law was) unless it brought itself within some favored
class, by satisfying particular conditions of form, or of
evidence, or both. The modern view, to which the law
of England has now long come round, is the reverse;
namely, that no contract need be in any particular form
unless it belongs to some class in which a particular
form is specially required.’” Judge Hare, in his Lectures
on Contracts, states the modern English law thus: ‘“‘ The
common law recognizes two types of contracts: the parol
contract and the agreement under seal or covenant; the
latter deriving its validity from the sealing and delivery,

1An account of early law on this subject will be found in Hare on Contracts,
first nine chapters, and in the same author’s first four lectures on contracts;
also in Pollock on Contracts, * pp. 132 to 145, with references to the authori-
ties. This topic is so closely interwoven with the history of the growth of the
doctrine of consideration that the discussion of one subject involves that of

the other.
2 Pollock on Contracts, * p. 145.

(91)
92 LAW OF CONTRACTS.

which like the formal question and response of the Roman
law, imply deliberation and assent, while the obligation
depends in the former case on what is done or promised on
the faith of the assurance held out by the promisor.”* The
latter seems to be the more accurate statement of the
law.

I. Contracts UNDER SEAL.

The formal contract at common law is the contract
under seal. This contract derives its validity from
the fact that the parties have signified their mutual
assent by a writing sealed and delivered, and from noth-
ing else. Aside from certain so-called contracts of
record, this is the only contract which (apart from statu-
tory regulation) derives its force from its form.

Contracts of record include judgments, recognizance,
Statutes merchant and staple, and recognizance in the
nature of statute staple.» These contracts derive their
force from being founded upon the authority and having
the sanction of a Court of Record.’

A judgment is defined by Blackstone to be the sentence
of the law, pronounced by the Court, upon the matter
contained in the record. Whether it is a contract or not
is a matter of grave doubt.* The general characteristics
of a judgment are, First, it cannot be disputed and is
proved by the production of the record; Secondly, what-
ever may have been the cause of action in the suit in
which the judgment is entered, when judgment is entered
all the rights on which that action is founded are merged
in the judgment, and, Thirdly, you can either issue

1See also Judge Hare’s opinion in Shackamann Bank v. Yard, 47 Legal Int.
200 (May, 1890).

? Anson on Contracts, * p. 44.

3Coke on Litt., 260 a.

4It is asserted and denied with equal confidence in a number of cases that are
collected in Freeman on Judgments, 2 4.
FORM OF CONTRACTS. 93.

execution directly upon the judgment, or bring an action
of debt upon it.’

A recognizance is an obligation of Record which is.
entered into before some Court of Record, or magistrate
duly authorized, with condition to do some particular act.”
It differs from an ordinary bond, which is an instrument
under seal whereby a man pledges himself to pay a certain
sum of money at a certain time, in that it is an acknowl-
edgment that he is already in debt, generally, in England,.
to the crown, and in this country to the commonwealth.
“It, lacks that element of a contract which requires two
parties. In so far as they are contracts, recognizances are
contracts with a sovereign power, which theoretically,
according to the principles of jurisprudence, a subject
can not make. Statutes merchant and staple, and
recognizances in the nature of statute staple, were
securities for money, entered into before some magistrate
and created a species of defeasible estate in the debtor’s.
land.?

The contract under seal called a deed or specialty,
Blackstone defines to be a “‘ writing sealed and delivered
by the parties.’”* It need not be signed at common law.
In Pennsylvania it has been held to be necessary, wher-
ever the Statute of Frauds applies to deeds, that it must
be signed. It must be sealed, and at common law a scroll
was not enough. Contra, by common law of Pennsylvania.®
It must be delivered, either by words without any actual
transmission of the deed, or by act without words. It

1 Anson on Contracts, 8th ed., p. 57.

22 Blackstone, p. 341.

32 Blackstone, p. 161.

42 Blackstone, p. 295.

5Miller v. Ruble, 11 Out. 395. See also Newton v. Emerson, 66 Tex..
142.
: ale on Contracts, *p. 6, note 2, by Mr. Rawle. See also Cochran vw.
Stewart, (Minn.) 59 N. W. 543; Cosner v. Crum, (W. Va.) 21S. E. 739.
94 LAW OF CONTRACTS.

may be made to the party or to another for the party.’ It
is a question of: intention purely.

In Xenos v. Wickham,’ there was a policy of insurance,
not actually delivered, but cancelled upon the order of an
unauthorized agent of the insured. Held a valid contract,
delivery being a question of intention. For what acts
will be evidence of such an intention on the part of the
grantor, and where the.grantee will be presumed to have
accepted, see valuable note of Mr. Rawle in Smith on
Contracts, p. 7, note 1.3

A deed may be delivered to a third person to be deliv-
ered to the person for whose benefit it is made on some
condition. Such a deed is called an escrow, and when
delivered on the happening of the condition takes effect as
of the date of: the first delivery to the holder in escrow.
A deed delivered to the grantee could never be an
escrow, because this would be to contradict the terms of
the instrument.‘

1 Williams v, Latham, 113 Mo. 165; Douglas v. West, 31 N. E. 403; Haenni
v. Bleisch, 146 Ill. 262; Colyer v, Hyden, 94 Ky. 180; White v. Pollock, 117 Mo.
467; Dinwiddie v. Smith, go N. E. 748; Miller v. Meers, 155 Ill. 284; Diehl v.
Fowler, (Tex.) 30 S. W. 1086.

22 EK. & I. Appeals, 296.

3 See also Hayes v. Boylan, 141 Ill. 400; Tyler v. Hall, 106 Mo. 313; Glaze v.
Fire Ins. Co., 87 Mich. 349; Toms v. Owen, 52 Fed. 417; Hamilton v. Arm-
strong, 21S, W. 1124; Stevens v. King, 84 Me. 291; Kyte v. Kyte (Pa. Com.
Pl.), 8 Kulp 1; Winterbottom v. Williams, 152 Ill. 334, Cummings v. Glass,
162 Pa. St. 241; Turner v. Warren, 160 Pa. St. 336; 34 W. N. C. 245; Mc-
Donald v. Minnick, 147 Ill. 651; Williams v. Williams, 148 Ill. 426; Bettinger
v. Van Alstyne, 29 N. Y. Sup. 904.

4See note to Cherry v. Herring, 28 Am. Law Reg. N.S. 99.- Also Fire Ins.
Co. v. Clarke, 1 Tex. Civ. App. 238; Hubbard v. Greeley, 84 Me. 340; Carter
v. Moulton, 51 Kan. 9; Stevenson v. Crapnell, 114 Ill. 19; Ashford v. Prewitt,
14 So. 663. See also Dawsen v. Hall, 2 Mich. 390; and the case of Stephens v.
Rinehart, 72 Pa. St. 434, as to escrows and future deliveries. In general as
to escrows see also Hoyt v. McLagan, 87 Iowa 746; Jackson v. Rowley, 88
Iowa 184; Bury v. Young, 98 Cal. 446; Hubback zw, Ross, 96 Cal. 426; Miller
v. Sears, 91 Cal. 282; Mining Co. uv. Briscoe, 47 Fed. 276; Easton v. Driscoll, 27
Atl. 445; Murray v. Kimball Co., 37 N. E. 736; Burnap v. Sharpsteen, 149 III. ,
225; Landon vw. Brown, 160 Pa. St. 538; Webster v. Trust Co., 145 N. Y. 275; 80
Hun. 420; Davis v. Kneale, 61 N. W. 508; Jackson v. Lynn, (Iowa) 62 N. W. 704.
FORM OF CONTRACTS. 95

Charactertstics of a contract under seal.

1. Some recitals in a deed estop the parties thereto from
denying their truth. ‘An estoppel by matter of deed
may be defined to be a preclusion against the competent
parties to a valid sealed instrument, and their privies, to
deny its force and effect by any evidence of inferior
solemnity.”* Without going into the subject of estoppel
too largely, the rule may be stated thus: Particular
recitals, especially where intended to be an agreement
between the parties, are conclusive evidence of the mat-
ters stated in action concerning the direct purpose of
the deed. General recitals do not estop. Lainson v.
Tremer,’ is an instance of a particular recital. In this
case an obliger in a bond in which it was recited that the
rent received in an indenture of lease between plaintiff’s
testator and the defendant, was a sum greater than the real
rent received was held to be estopped by the recital.
Right v. Bucknell,* is an instance of a general recital in
a deed which was held not to work an estoppel. This
recital was that the defendant or his grantor was “ legally
or equitably ” seized of the premises. It was not certain
enough.5

2. In the absence of an intent to the contrary, a
simple contract merges into the same contract under
seal, but it is a question of intention. In Charles v.
Scott,® it was held that a merger did not take place, it

1 Biglow on Estoppel, 239.

771A. & E. 214.

3 For other particular recitals see Jenkins v. Collard, 145 U.S. 546; White v.
N. VY. & N. E. R. Co., 156 Mass. 181; Life Ins. Co. v. Corey, 135 N. Y. 326;
Williams v. Hardie, 85 Tex. 499; Neal v. Bleckley, 36 S. C. 468; Zn ve Ledrich’s
Estate, 68 Hun. 396; Thompson v. Smith, 96 Mich. 258; Willis v. Lockett, 26
S. W. 419; Peabody v. Nicklin, 8 Wash. 660; National Bank v. Ashmead, 33
Fla, 416; Rogers v. Bollinger, 59 Ark. 12.

42 B. & Ad. 73.

5 For other examples see Smith v. Arthur, 110N. C. 400; Terhune v, Matson,
40 Ill. App. 296; Building Society v. Smithson, (1893) 1 Ch. 1

61S. & R. 294.
96 LAW OF CONTRACTS.

being the intention that the sealed contract should be
collateral’ security for the performance of the simple
contract. *

3. A right of action arising out of a simple contract.
is barred in six years; where the contract is under seal
it is barred in twenty years in England, and in this
country there is a presumption of payment after that
time.

4. A gratuitous parol promise is not binding. Such
a promise under seal is binding. While this rule
is recognized, at the same time it is generally held
that a “want of consideration,” z. ¢, a want (mean-
ing an absence) of the consideration expressed and
intended, that is, a failure of conszderation, may be shown
in defence to an action on a sealed instrument, and at
first glance it is a little dificult to understand how the
two propositions can be true at the same time. I think
the matter, however, is very clearly explained by Chief
Justice Lewis in Candor & Henderson’s Appeal.’ This.
was a case where a father gave a bond for $2000 to a
friend in trust for his daughter, payable ten years after
date, or at his death if that should sooner occur. He
afterward made a will in which he gave to his daughter
one-half of his estate in lieu of the bond which he had
given in trust for her. The guardian of the child refused
to accept the bequest under the will of the testator, and
claimed to have the amount of the bond paid to him.
The executors paid the amount of the bond, and in their
account filed claimed credit for the payment, which was
excepted to, and the Court surcharged the executors for
making the payment. The case went to the Supreme
Court and was reversed, the Chief Justice saying:

1 See also Smith v. Lennon, 131 N. Y. 560; Williamson vz, Cline (W. Va.), 20
S. E. 917.
23 Casey 119,
FORM OF CONTRACTS. 97

“Tt (the bond) is under seal, and is found expressly to
be a ‘voluntary’ bond. ‘The seal imports a consideration,
and creates a legal obligation. Ina ‘voluntary’ bond no
consideration is contracted for or expected. The absence
of one is therefore no ground for equitable relief from a
contract conceded to be good at law, without it. To say
that the ‘want of consideration’ is a defence against a
bond is to express, in language not remarkable for preci-
sion, nothing more than the familiar principle that where
the obligor fails to receive the consideration contracted
for, and on the faith of which he entered into the con-
tract, he is not bound to pay his bond. This principle
has no application whatever to the case before us, because
no consideration was contracted for or expected. A vol-
untary bond, it is true, must be postponed until credztors
are paid; but itis always good against the party himself,
and against hezrs, legatees, and others who stand in no
higher equity: 2 Williams on Executors, 871; 3 P. Wms,
223; 3 Mylne & K. 769. In this respect a szmple con-
tract differs from a specialty. In the one case the party
is not bound without a consideration: 5 T.R.8. In the
other no consideration is necessary if none was contracted
for: 17 John. Rep. 301.” This case is approved by
Sharswood, J., in Burkholder v. Plank,’ and the same
doctrine is announced in Mack & Person’s Appeal,’ in an
opinion by Judge Sharswood.

The explanation is really found in the distinction
between want of consideration and failure of considera-
tion, and is very well explained in Judge Hare’s note
to Collins v. Blantern.2 Where he says: “Although a
failure of consideration is a sufficient answer to a suit
brought on a sealed instrument, on the principles of

169 Pa. St. 225.

2 68 Pa. St. 231.

31 Smith’s Leading Cases, 8th ed., p 749.
7
98 LAW OF CONTRACTS.

equity as now adopted by the statute or common law
in most of the States of the Union yet a want of consid-
eration is not, because the seal imports a consideration, or,
more properly speaking, renders a consideration super-
fluous and binds the parties by force of natural pre-
sumption that an instrument executed with so much
deliberation and solemnity is founded upon some suff-
cient cause: Walker v. Walker, 13 Ird. 335; Wing
. uv. Chase, 35 Me. 260. Hence the reason why equity
forbids a recovery on a specialty, when the consideration
fails is not because a consideration is essential to
such an instrument, but because the parties are shown
to have contracted on that basis, and the failure of
the end involves that of the means: Yard wv. Patton,
13 Pa. St. 285. Chancery, therefore, will not interpose.
to restrain a suit on a bond or covenant, on proof that
it was given without a consideration, nor unless it is
shown that the instrument was executed on the faith of
some promise or stipulation, that has not been fulfilled:
Kennedy v. Howell, 20 Conn. 349; Candor & Hender-
son’s Appeal, 27 Pa. St. 119.”

When vt 1s essential to employ a contract* under seal.

At common law there are two cases where it is essential
to employ a contract under seal. (I) In the case just
spoken of, of a gratuitous promise, such a promise not
being valid unless under seal. (II) Corporations aggre-
gate could only contract under seal. There are a good
many exceptions to this rule arising: (1) Where a
contract under seal would defeat the very object of
the corporation, as in the case of trading corporations, and
(2) In cases where it would be extremely inconvenient.

An instance of the first kind is the case of South of
Ireland Colliery Company v. Waddle* where it was held

1U,R.3C. P. 463.
FORM OF CONTRACTS. 99

that a contract made by a trading corporation for the
erection of a pumping engine and machinery was
binding, though not under seal, the Court saying:
“That the exception to the general rule, that contracts
of corporations must be under seal are not limited to
matters of frequent occurrence, and small importance,
but apply to all contracts of trading corporations entered
into for the purposes for which they are incorporated.”
In Wells v. The Mayor, Alderman and Burgesses of
Kingston-upon-Hull,’ is an illustration of the second class
of exceptions, that where a great inconvenience would be
caused by requiring a seal, a seal will not be required.
In this case a municipal corporation which owned a dock
had made a contract with the plaintiff to allow him to
use the dock, upon compliance with certain regulations.
The defendants refused to let a vessel of the plaintiff’s
in and he brought a suit for breach of contract. It was
not under seal and it was held that the plaintiff could
recover on the ground that it would cause great incon-
venience if every time a vessel was to be docked there
was to be a sealed contract. Lord Coleridge, C. J.,
referring to certain previous cases, says: ‘The principle
laid down is that wherever to hold the rule applicable
would occasion very great inconvenience or tend to defeat
the very object for which the corporation was created,
the exception has prevailed ; hence the retainer by parol
of an inferior servant, the doing of acts very frequently
recurring or too insignificant to be worth the trouble of
affixing the common seal, are established exceptions.”
The rule in this country as stated by the Supreme
Court of the United States is as follows: “It would
seem to be a sound rule of law, that where a corporation
is acting within the scope of the legitimate purposes
of its institution, all parol contracts made by its authorized
1L. R. 10 C. P. 402.
100 LAW OF CONTRACTS.

agents, are express promises of the corporation; and
all duties imposed upon them by law, and all benefits
conferred at their request, raise implied promises, for
the enforcement of which an action may well lie.” *

See also, Hamilton v. Lycoming Mutual Insurance
Company,’ where it was held that an insurance company
was bound, although the contract was not executed under
the seal of the corporation. And the appointment by a
corporation of an agent, officer or attorney, need not be
under seal.2 The rule, however, seems to be otherwise
in England The rule regarding municipal corpora-
tions is the same in this country, their contracts are
valid without a seal.s In England, however, the rule is
the other way. °

II. StmpLE ConrTrRActTs.

Simple contracts, as distinguished from formal con-
tracts, are contracts which require a consideration in
order to be valid. They are often styled parol contracts.
They may be verbally made, with certain exceptions,
and outside of these exceptions have the same effect.
whether made verbally or in writing.

Skynner, Chief Baron, in Rann.v. Hughs,’ says: “ All
contracts are, by the law of England, distinguished into

‘1 Bank of Columbia v. Patterson, 7 Cranch 299-306.

*5 Barr. 339; and Water Works Co. v. Lumber Co., 85 Iowa 112; Lumber
Co. v. Cain, 70 Miss. 628; Teitig v. Boesman, 12 Mont. 404; B. S. Green Co. w..
Blodgett, 55 Ill. App. 556.

3Fleckner v. Bank of the United States, 8 Wheaton 338.

‘Pollock on Contracts, * pp. 153 and 154, and cases there cited.

5 Fanning v. Gregoire and Bogg, 16 Howard 524; Gordon v. San Diego, ror
Cal. 522. The rule is the same in Canada as in the United States. See Ber-.
nardin v. Municipality of Lord Dufferin, 19 Can. S. C. R. 581.

§ Mayor of Ludlow v. Charlton, 6 M. & W. 815; Mayor of Kidderminster v,
Hardwick, L. R. 9 Exch. 13; Oxford v. Crow, 8 Reports, 279, (1893) 3 Ch. 535.
For a list of the American cases, see note to Mayor of Ludlow z, Charlton, above.
cited.

™7 T.R. 50.
- FORM OF CONTRACTS. 101

agreements by specialty and agreements by parol; nor
is there any third class as some of the counsel have
endeavored to maintain, as contracts in writing. “‘ Jf they
be merely written and not specialties, they are parol and a
consideration must be proved.”*

There is a difference between written and verbal con-
tracts in the mode of proof. Written contracts cannot
be contradicted or varied by verbal testimony. ‘This is
a rule of evidence.”

There are, however, certain simple contracts which,
either at common law or by statute, are required to be in
writing. At common law a bill of exchange is required
to be in writing. -The chief statutory requirements in
regard to the form of simple contracts are those of the
Statute of Frauds.

STATUTE OF FRAUDS.

The Statute of Frauds in England was passed in the
twenty-ninth year of Charles II. (1677). The sections
which relate chiefly to contracts are the fourth section
aud the seventeenth section.

Fourth section of the statute of frauds.

The fourth section provided that no action shall be
brought, in the cases specified in the section, “unless the
agreement upon which such action shall be brought, or
some memorandum or note thereof, shall be in writing
and signed by the party to be charged therewith, or some

1See also Whitehall v. Wilson, 3 Penrose & Watts 405.

2 As to its application in cases of contract, see Smith on Contracts, pp. 34-64,
and Martin v. Berens; 67 Pa. St. 459; Malone v. P. & R. R. Co., 157 Pa. St. 430,
33 W. N.C. 373; Hardwick v. Pollock (Pa. Com. Pl.), 3 Pa. Distr. Rep. 245;
Wyckoff v. Ferree, 168 Pa. St. 261; and for exceptions as to receipt, Batdorf v.
Albert; 59 Pa. St. 59. See generally Lewis’ ‘‘Greenleaf on Evidence,”
Vol. I, p. 413.
102 LAW OF CONTRACTS.

other person thereunto by him lawfully authorized.”
The cases specified are :

1. Any special promise by an executor or administrator,
“to answer damages out of his own estate.”

2. Any special promise ‘“‘to answer for the debt, default
or miscarriage of another person.”

3. Any agreement made upon consideration of marriage.

4. Any contract or sale of lands, tenements or heredita-
ments, or any interest in or concerning them.

5. Any agreement that is not to be performed within
the space of one year from the making thereof.

A portion of this fourth section is in force in Pennsyl-
vania. It is the first section of the Act of the 26th of
April, 1855,’ and is as follows: ‘No action shall be
brought whereby to charge any executor or administrator,
upon any promise to answer damages out of his own
estate, or whereby to charge the defendant, upon any
special promise, to answer for the debt or default of
another, unless the agreement upon which such action
shall be brought, or some memorandum or note thereof
shall be in writing and signed by the party to be charged
therewith, or some person by him authorized.” It will be
observed that the Pennsylvania Act only covers the cases,
first, of promise by the executor or administrator to
answer damages out of his own estate and, second, to
answer for the debt or default of another.

I. In regard to the first class of cases mentioned, special
promises by an executor or administrator to answer damages
out of his own estate, there is nothing special to be said,
except that it was in a case arising under this section,
Rann v. Hughs,’ that the rule which applies to all cases
within the statutes was laid down, to wit: “That a con-
sideration is just as necessary in the case where the

IP. L. 308.
27 I. R. 350.
FORM OF CONTRACTS. 103

statute provides that no action shall be brought unless
the agreement is in writing, as in the case where a writing
is not necessary.” ‘The matter is very clearly explained in
note 2, to Forth v. Stanton,’ which is as follows: ‘It
appears from this case that before the Statute of Frauds,
29 Car. II c. 3, a promise by an executor or administrator,
would not make him personally liable, unless a sufficient
consideration was stated. Soit is since the statute, though
such promise be in writing. For the statute has made no
alteration in the mode of pleading, and consequently it
does not appear upon the declaration, whether there was
a promise in writing or not. It is a matter of evidence
only; 2 Salk. 519 Anon. 3 Burr. 1890; Williams w.
Leper, per Yates Justice. It is necessary, therefore, that
a sufficient consideration should be alleged in declaration
since the statute, as it was before. The common law
requires, that there should be a sufficient consideration to
support the promise, and the statute adds a still further
requisite, namely, that the promise should be in writing.”

2. The second class of cases within the fourth section
of the statute are “ promises to answer for the debt, default
or miscarriage of another.” There are several points to
be borne in mind with reference to this class of cases.

(2) A promise is not within the statute unless there is
a debt or default of a third person, for which that third
person continues liable. A promise to become liable inde-
pendently of any one else is not within the statute, and
need not be in writing. In Birkmyer wv. Darnell’ the
plaintiff had delivered a horse to A, and the defendant
had promised that A would redeliver him safely. This
was held a collateral undertaking on which the defendant
was not liable, not being in writing, because the man to
whom the horse was delivered was liable in detinue for

17 Wm. Saunder’s Reports, 211.
2Salkeld, 27; same case, with notes, 1 Smith’s Leading Cases, * p. 326.
104 LAW OF CONTRACTS.

the horse if he did not return it." “If two come toa shop,
aud one buys, and the other, to gain him credit, promises
the seller, Jf he dow t pay you, I will, this is a collateral
undertaking and void without writing by the Statute of
Frauds. But if he says, Let him have the goods, I will
see you paid, this is an undertaking as if for himself,
and he shall be intended to be the very buyer and the
other to act as his servant.”? In Mountstephen v. Lake-
man ? the plaintiff had been employed to construct a main
sewer, and the local board who employed him notified the
property owners along the line of the sewer, that if they
did not make connections with the sewer within a certain
time, that the board would do it for them at their expense.
As the plaintiff was about taking away his tools, carts
and horses, the defendant, one of the property owners,
asked him why he could not make the connection. The
plaintiff said he could if the defendant or the board would
see him paid, whereupon the defendant replied: “Go on
and do the work, I will see you paid.” It was held
that the jury might infer that this contract was an
original contract, and that therefore the defendant was
liable, though it was not in writing. So in Warnick
v. Grosholtz,* where a man employed a contractor to do
some work for him and the contractor had employed
some painters to do some painting and the painters

1See Rees v. Jutte, 153 Pa. St. 56; Dougherty v. Stone, 66 Hun. 498; Baumann
v. Manistee Lumber Co., 94 Mich. 363; Tanquary v. Walker, 47 Ill. App. 451;
Lachman ?. Irish, 72 Hun. 491; Nichols v. Commercial Bank, 55 Mo. App. 81;
Dougherty v. Bash, 167 Pa. St. 429; Brown v. National Bank (Tex.), 31 S.
W. 285.

*Birkmyer v. Darnell, Salkeld, 27. See also note 2 to Forth v. Stanton, 1
William Saunders 211. Also McCully v. Kaiser’s Executors, 158 Pa. St. 213;
Cheever v. Schall, 87 Hun. 32.

3L. R. 7. Q. B. 196. See also Amort v. Christofferson (Minn.), 59 N. W. 304;
Lewis v. Lumber & Mfg. Co., 156 Pa. St. 217; First Nat. Bank v. Chalmers, 144
N. Y. 432; Mickley wv. Stocksleger, 10 Pa. Co. Ct. R. 345; /z re Dunlevy’s Estate,
Io Pa. Ct. R. 454.

43 Gr. Cases 234.
FORM OF CONTRACTS. 105

refused to go on, and the owner said to one of the
plaintiffs, “Go on with the work, I have security for
the building and will see it paid.” It was left to the
jury whether this was a direct promise or a collateral
undertaking. The jury found it a direct promise and
the defendant was held liable.'

(6) The promise must not be for the debt of the prom-
isor. In Malone v. Keener? certain contractors for build-
ing a railroad, on settlement with the sub-contractor for
work he had done, gave a note of the company which
had been given them for building the road, and verbally
agreed that if it was not paid, they would pay it. It
was held that this verbal promise was binding, not being
within the statute.

(c) The promise must be to the original creditor to
whom the original debtor is answerable, and if to the
debtor is not within the statute.

(zd) The debt must not be extinguished by the promisor
undertaking to be responsible for it.‘

A promise to pay a debt if debtor taken on a «a. sa.
is discharged with plaintiff’s consent is not within the
statute. In Wood w. Corcoran’ the plaintiff released his

1Crowder v. Keys, 91 Ga. 180; McNabb w. Clipp, 5 Ind. App. 204; Malone z.
Knickerbocker Ice Co., 88 Wis. 542; Milliken v. Warner, 62 Conn, 51; Hazeltine
v. Wilson, 55 N. J. Law 250; Inman z. Johnston, 25 N. Y. Sup. 1114, 6 Misc.
Rep. 26.

244 Pa. St. 107. See Green v. Hadfield, 89 Wis. 138;, Fisk v. Reser, 19 Colo.
88; Joseph v. Smith, 39 Neb. 259; Aldrich v. Carpenter, 160 Mass. 166; Bates v.
Sabin, 64 Vt. 511; Bice v. Building Co., 96 Mich. 24; Hegeman v. Moon, 131
N. Y. 462; Davis v. Patrick, 141 U. S. 479; Goodman wv. Cohen, 132 N. Y. 205;
Casey v. Miller, (Idaho) 32 Pac. 139; Waterman v. Resseter, 45 Ill. App. 155;
Spann v. Cochran, 62 Tex. 240; Morris v. Gaines, 82 Tex. 255.

3Colt v. Root, 17 Mass. 229; Eastwood v. Kenyon, 11 A. & E. 446; Woolf z.
Koppel, 5 Hill 458 (to same effect). See also Bexar Building and Loan Ass’n v.
Newman (Tex.), 25 S. W. 461; Neagle v. Kelly, 146 Ill. 460; Lowe v, Hamilton,
132 Ind. 406; Scudder v. Carter, 43 Ill. App. 252.

4Goodman wv, Chase, 1 B. & Ald. 297.

61 Allen 405.
106 LAW OF CONTRACTS.

debtor in consideration of the defendant’s undertaking to
pay the debt. Held not within the statute.’

(e) A promise of indemnity is often said not to be
within the statute.? But Judge Hare, after reviewing the
cases in his note to Birkmyer v. Darnell,’ says that the
result of the authorities seems to be that “a promise by
a stranger to the debt, to indemnify surety, is przma
facte within the statute, because the principal is bound
by an implied obligation to do that which the promisor
agrees to do expressly, and the promise is therefore
really to answer for the default of the principal.” Since
this note was written the matter has been squarely de-
cided in Pennsylvania in the case of Nugent v. Wolfe,*
where such a promise was held to be within the statute.
There seems to be, not only in this country, but also in
England, a conflict of cases. In Wildes v. Dudlow,' Sir
R. Malins, V. C., declared that it was clear upon principle,
that such a promise was zot within the statute, but in
Green v. Cresswell® a recovery was refused on a verbal
promise made by the defendant to indemnify the plaintiff
with the risk he would incur by going bail for a stranger,
and in Cripps wv. Hartnoll’ a recovery was refused on a
verbal promise to indemnify for entering into a recogni-
zance for the appearance of the defendant’s daughter in
a criminal court.

1See also Gleason v. Fitzgerald (Mich.), 63 N. W. 512; Lindley v. Simpson,
45 Ill. App. 648; Wilson v. Vass, 54 Mo. App. 221; Eden wv. Chaffee, 160 Mass. 225.

? Pollock, p. 159.

31 Smith’s Leading Cases, p. 538.

#111 Pa. St. 476; Close v. Zell, 141 Pa. St. 390; Elkin v. Timblin, 151 Pa. St.
491. For similar ruling in other States, see Waterman v. Resseter, 45 Ill.
App. 155; Minnick v. Huff, 41 Neb. 516.

5L,, R. 19 Eq. 198. See Thomas v. Cook, 8 Barn. & C. 728; Guild v. Conrad,
g Reports; Lutton v. Grey, 9 Reports, 168, affirming 69 Law T. 354. For same
tuling in the United States see Jones v, Bacon, 145 N. Y. 446; George v. Hos-
kins (Ky.), 30 S. W. 406.

SI0 A. & E. 453.
72 Best & Smith 697.
FORM OF CONTRACTS. 107

The special promise of an executor or administrator
to answer damages out of his own estate, and the special
promise to answer for the debt or default of another are
the only parts of the fourth section of the Statute of
Frauds that are in force in this State. The third class
of cases includes agreements made upon consideration
of marriage. ‘This does not mean that a promise to
marry must be in writing in order to be valid, but it
means that a promise to do anything in considera-
tion of a promise to marry, such as to settle property
or pay money, in order to be actionable must be in
writing.’

The fourth class is “ any contract or sale of lands, tene-
ments or hereditaments, or any interest in or concerning
the same.’ The questions arising under this fourth section
of the Statute, are mainly relating to the meaning of
the words “‘interest in or concerning land.” :

In Morgan vw. Griffith,’ where a tenant had agreed to
take a lease and entered into possession, and found the
place overrun with rabbits, and then refused to sign the
lease unless the landlord would agree to get rid of the
rabbits. This lease was drawn without this stipulation
in it, but with an expressed oral agreement that he would
exterminate the rabbits, which he declined to do. It was
held that this oral agreement was not within the statute;
and a similar decision was made in Erskine v. Adeane.?
Under this part of the statute the products of agriculture
have generally been considered, both in this country and
in England, as personal property and therefore not within
the statute, while natural growths, frzma vestura, have

1Smith on Contracts, p. 98. Also Lloyd v, Fulton, 91 U. S. 479; Mallory’s
Admr. v. Mallory’s Admr. (Ky.), 17S. W. 737; White v. Bigelow, 154 Mass.
593; Manning v. Riley, 52 N. J. Eq. 39; Richardson v, Richardson, 148 Ill. 563;
Johnstone v. Mappin, 60 Law J. Ch. 241.

21,.R. 9 Exch. 70. See also Thomson z. Poor, 67 Hun. 653.

38 Chan. App. 756. '
108 LAW OF CONTRACTS.

been treated as real estate. In Evans v. Roberts,’ a grow-
ing crop of potatoes was held zof to be interest in or con-
cerning land. Marshall v. Green,’ held that a sale of
growing timber, to be taken away as soon as possible, was
not within the statute. In Pattison’s Appeal,’ a contract
for standing timber on a tract of land, to be taken off
at discretion as to time, was held an interest in lands.
In McClintock’s Appeal,‘ a contract for standing timber,
to be taken off on thirty days’ notice was held not to be
within the statute.

The fifth class of contracts mentioned in the fourth
section of the Statute of Frauds is “an agreement not
to be performed within the space of one year from the
making thereof.” ‘The following considerations may be
noted in regard to the construction of this part of the.
statute.

1. The statute does not apply to any agreement which
by any possibility may be performed within a year.
Thus a contract to pay an attorney for services in con-
ducting certain suits is not within the statute, for he
may possibly get through inside of the year.5

The contingency which will complete the perform-
ance of a contract may be necessarily implied, as in
the case of death, when there is a contract to support
during life, orto pay at death. The life may end inside of
a year.

15 B. &C. 829. Also Holt v. Holt, 57 Mo. App. 272; Kluse v. Sparks (Ind),
36.N. E. 914.

21C. P. D. 35.

361 Pa. St. 294. See also Hirth v, Graham, 50-Ohio 57.

471 Pa. St. 365. See also Faith v. Yocum, 51 Ill. App. 620.

5 McPherson v. Cox, 96:U. S. 404; Jones v. Green (Tex.), 31 S. W. 1087;
Hosli v. Yokel, 57 Mo. App. 622; Powder River Live Stock Co. v. Lamb, 38
Neb. 339; Roberts v. Summit Park Co., 72 Hun. 458; Haussman v, Burnham,
59 Conn. 117; Sweet v. Desha Lumber & Planing Co., 56 Ark. 629.

6 Peters v. Westborough, 19 Pick. 364; Blake v. Cole, 22 Pick. 97; Pennsylva-
nia Co. v. Dolan, 6 Ind. App. Io9.
FORM OF CONTRACTS. 109

An agreement that may be completely performed
within the year by ome of the parties to it, is not. within
the statute in England;* but the cases are conflicting
in this country. They are to be found in note to
Peter v. Compton. This portion of the statute has
never been re-enacted in Pennsylvania.

Seventeenth section of the statute of frauds.

This section enacts that “No contract for the sale
of goods, wares and merchandise for the price of ten
pounds sterling and upward shall be allowed to be good
except the buyer shall accept part of the goods so sold
and actually receive the same; or give something in
earnest to bind the bargain or in part payment; or that
some note or memorandum in writing of the said bargain
be made and signed by the parties to be charged by
such contract, or their agents thereunto “ lawfully
authorized.”

This section of the statute is not in force in Pennsyl-
vania, although it is in a great many States in this
country.

The first question which arises in looking at this statute
is, What contracts are embraced under the words “ con-
tracts for the sale of any goods, wares and merchandise?”

The sale of personal property, or as it is termed at
common law, ‘‘a bargain and sale of goods,” is defined by
Mr. Benjamin in his book on Sale of Personal Property,
Section 1, as “a transfer of the absolute or general prop-
erty in a thing for a price in money.” ‘The purchaser
must have aright to the thing itself, making him liable
to the risk of loss in case of the destruction of the property
in order that it be a bargain and sale. An executory
agreement of sale, however, passes no property in the

1 Cherry v. Heming, 4 Exch. 631.
2 1 Smith’s Leading Cases, p. 624.
I10 LAW OF CONTRACTS.

thing itself, though it may give a perfectly good right
of action against the party for breach of contract. One
of the important questions which arose under this section
of the Statute of Frauds was whether an executory
agreement of sale was required under the statute to be
in writing in order to be good, and the matter was not
set at rest until the passage of the Act of 9th George the
IV. It extended the provisions of the 17th Section to
contracts for the sale of goods. Up to the passage of this
statute, the decisions in England, to use the language
of Mr. Benjamin, 1 Benjamin on Sales, Section 93, ‘“‘ were
somewhat contradictory, and perhaps irreconcilable.”
They are cited by him in the section just referred to.
In this country such executory contracts have been held
to be within the statute."

There has also been much diversity of opinion as to
how far contracts for the sale of articles on which labor
was to be bestowed before delivery were within the statute.
After considerable conflict, it was laid down in England
in the case of Lee wv. Griffith,’ that the contract is for a
sale of goods, if it contemplates the ultimate delivery of
a chattel, no matter how much work is to be bestowed on
it before it is delivered, and Blackburn, J., said in this
case: “JT do not think that the relative value of the labor
and of the materials on which it is bestowed can in any
case be the test of what is the cause of action; and that
if Benevenuto Cellini had contracted to execute a work
of art for another, much as the value of the skill might
have exceeded that of the material, the contract would
have been none the less for the sale of a chattel.” The
case of Lee v. Griffith, before referred to, was an action

l Hight v. Ripley, 19 Maine, 137; Bennett v Hull, 1o Johnson, 364; Green-
wood v. Law, 55 N. J. Law 168.

21 Best & Smith 272. See also Pratt v. Miller, 10g Mo. 78; Alfred Shrimp-

ton & Sons v. Dworsky (Com. Pl. N. Y.), 2rgN. Y. Sup. 461, 2 Misc.
Rep. 123.
FORM OF CONTRACTS. Ill

brought by a dentist for the price of a couple of sets
of false teeth made for a lady who had died, and had
therefore no longer any use for them.

In this country the cases are very conflicting, some of
them follow the early English rule: “That where the
work and labor is the substantial object contracted for,
although such work and labor has to be expended on the
materials of the party who is to furnish the article at a
given price, such contract is not for a sale and, conse-
quently, is not within the statute.” '

In Mixer v. Howarth,’ where the defendant went to the
plaintiff’s shop and selected a carriage which the plain-
tiff was to finish for him, it was held that this was not
within the statute. The same Court decided in Gardner
v. Joy,’ that the purchase of one hundred boxes of candles,
not yet manufactured, was within the statute.

The effect of the decisions appears to be in Massa-
chusetts that if the goods are in existence, or produced
in the ordinary course of manufacture, then a sale of
them is within the statute, but if they are manufactured
especially for the purchaser they are not within the
statute.’

Under the English decisions it is settled that stocks,
because they are choses in action and not tangible
property, are not within the statute.’ In this country
the rule is otherwise.®

The statute provided that none of the contracts falling
within the seventeenth section “ shall be allowed to be good

1Finney v. Apgard, 31 N. J. L. 277; Goddard v. Binney, 115 Mass. 450; Mig-
hell v. Dougherty, 86 Iowa 480; Flynn v. Dougherty, 91 Cal. 669; Templeman —
v. Gibbs, 86 Tex. 358; Bagby v. Walker,.78 Md. 239.

2 21 Pick. 205.

> 9 Metcalf 177.

4See cases cited in Benjamin on Sales, 2 108, note y.

5 Humble v. Mitchell, 11 A. & E. 46.

6Bordman v, Cutter, 128 Mass. 388. But see Webb uw. Baltimore & E. S. R.
Co., 77 Md. 92.
112 LAW OF CONTRACTS.

except: (1) the buyer shall accept part of the goods so
sold, and actually receive the same; (2) or give some-
thing in earnest to bind the bargain or in part payment;
(3) or that some note or memorandum in writing of the
said bargain be made and signed by the parties to be
charged by such contract, or their agents thereunto
lawfully authorized.”

I. Acceptance and recetpt.

In regard to the meaning of this clause, Mr. Justice
Blackburn, in his book on Sales," says: “If we seek
for the meaning of the enactment, judging merely from
its words, and without reference to the decisions, it
seems that this provision is not complied with unless
two things concur: the buyer must accept, and he must
actually receive part of the goods; and the contract
will not be good unless he does both. And this is to
be borne in mind, for as there may be an actual receipt
without any acceptance,’ so may there be an acceptance
without any receipt. In the absence of authority, and
judging merely from the ordinary meaning of lan-
guage, one would say that an acceptance of part of the
goods is an assent by the buyer, meant to be final,
that this part of the goods is to be taken by him as
his property under the contract, and as so far satisfy-
ing the contract. So long as the buyer can, without
self-contradiction, declare that the goods are not to be
taken in fulfillment of the contract, he has not accepted
them. And it is immaterial whether his refusal to take
the goods be reasonable or not. If he refuses the goods
assigning grounds false or frivolous, or assigning no reason
at all, it is still clear that he does not accept the goods, and

1Blackburn on Sale, 3 1, * p. 16.
2 Spear v. Bach, 82 Wis. 192; Powder River Live-stock Co. v. Lamb, 38 Neb.

339-
FORM OF CONTRACTS. 113

the question is not whether he ought to accept but whether
he has accepted them. The question of acceptance or not
is a question as to what was the intention of the buyer as
signified by his outward acts. The receipt of part of the
goods is the taking possession of them. When the
seller gives the buyer the actual control of the goods,
and the buyer accepts such control, he has actually
received them. Such a receipt is often evidence of an
acceptance, but it is not the same thing; indeed the
receipt by the buyer may be, and often is, for the
express purpose of seeing whether he will accept or not.
If goods of a particular description are ordered to be
sent by a carrier, the buyer must in every case receive
the package to see whether it answers his order or not ;?
it may even be reasonable to try part of the goods by
using them; but though this is a very actual receipt,
it is no acceptance so long as the buyer can consistently
object to the goods as not answering his order. It
follows from this that a receipt of goods by a carrier or
on board ship, though a sufficient delivery to the
purchaser, is not an acceptance by him so as to bind
the contract, for the carrier, if he be an agent to receive,
is clearly not one to accept the goods.” ?

‘In Phillips v. Bastolli,s where a man who was buying
jewelry at an auction took the jewelry in his hand for
a few moments and then handed it back to the auctioneer
saying he had made a mistake, the Court decided that
this was not an acceptance, because in order to be an
acceptance, there must be an acceptance, with the
intention of taking possession as owner.*

“The acceptance and receipt of a sample by the
purchaser will be sufficient to satisfy the statute, if it is

1 Contra, Liggett & Myers Tdbacco Co. v. Collier (Iowa), 56 N. W. 417.
2 See also Taylor v. Smith, 61 Law J. Q. B. 331; Agnew v. Dumas, 64 Vt. 147.
32B.&C. 511.
4Knight v. Mann, 118 Mass. 143; Sheppard zw. Pressey, 32 N. H. 55
8
114 LAW OF CONTRACTS.

considered by both parties as part of the goods bargained
for, and diminishing the bulk thereof to be finally
delivered; but it will be otherwise if the sample is
considered only as a sample and formed no part of the
goods sold, and whether this be considered one or the
other is a question of fact for the jury, the burden
being upon the party alleging the validity of the
contract.” *

On the question of what amounts to an actual receipt it
is held: .

1. That where the goods sold are already in the posses-
sion of the buyer as a bailee, or agent of the vendor, that
the treatment of them in a manner inconsistent with his
former possession, is evidence from which a receipt of the
goods may be inferred. In Edan wv. Dudfield,? where the
defendant, who was the agent, had in his possession certain
goods which he had entered at the custom house in his
own name, but which belonged to the plaintiff, agreed to
buy them and afterward sold the same, it was held that
his conduct was evidence from which an actual receipt
could be inferred by the jury. .

2. When the goods are in the possession of a third
person they may be received by a vendee by an agreement
between such third person, the vendor and the vendee,
that such third person will hold them thereafter as the
agent of the vendee. But all parties must agree to this,
otherwise there is no evidence of a receipt, so that an
order given by the vendor to the vendee on the bailee of
the goods, will not effect a change of possession amount-
ing to an actual receipt of the goods, unless the bailee of
the goods agrees to recognize the order.?

1 Davis v. Eastman, 1 Allen 422.
21 Q. B. 302, N. S.
3Farina v. Home, 16 M. & W. 119; Penjamin on Sales, 3 174, note y.

See also Bowe vw. Ellis (Com. Pl. N. Y.), 22 N. Y. Sup. 369, 3 Misc.
Rep. 92.
FORM OF CONTRACTS. 115

In Dyer v. Burn,’ it was held that a delivery order given
to the purchaser of wine did not amount to an actual
receipt by him until the warehouse men accepted the
order for delivery and thereby consented to. hold the
wine as agent of the vendee.* Where the third person,
however, is not the vendor’s bailee, but a mere stranger,
then his consent is not necessary in order to make the
receipt by the vendee effective? Where the goods are
in the possession of the vendor, and the vendee actually
removes them into his own possession, of course that
amounts to an actual receipt.* So the delivery of the
goods by the vendor to a common carrier to be sent to
the vendee amounts to a receipt. The carrier is the
vendee’s agent for receiving, but not for accepting the
goods. In Dawes vw. Peck * it was held that the consignor
could not maintain an action against the common carrier
of goods, but only the consignee could.®

Again, the goods may actually remain in the posses-
sion of the vendor and yet be actually received by the
vendee, if the position of the vendor is changed from that
of vendor to that of vendee’s bailee.as in the case of
Elmore v. Stone,’ where a man purchased horses from a
dealer and left them with him at livery. e/d, that that
was a receipt.

2. Part payment.

The next exception is where the buyer gives something
in earnest to bind the bargain, or in part payment.

13B. & C. 423.

2See also Marsh v. Rouse, 44 N. Y. 643.

3See Tansley v. Turner, 2 Bing. N. C. 288.

‘See Smith v. Evans, 36 S. C. 69.

58 T. R. 330.

6 Cross v. O'Donnell, 44 N. Y. 661.

Tz Taunton 458. See also Reinhart v. Gregg, 8 Wash. 191; Maclary wv.
Turner (Del.), 9 Houst. 281; Stockwell v. Baird (Del.), 31 Atl. 811.
4

116 LAW OF CONTRACTS.

In Blenkinsop v. Clayton,’ the buyer drew a shilling
across the palm of the seller’s hand and then put it in
his own pocket, which was called striking off the bargain,
and it was held that this was not a compliance with the
statute because he put the shilling in his own pocket
instead of giving it to the seller. In Walker v. Nussey,’
it was held that the giving something in part payment
must be done after the contract had been completed, and
that therefore when a contract itself stipulated that part
of the price should be paid by deducting a debt due from
the seller to the buyer, which was done, that that was not
apart payment, because it was a part of the contract itself.

3. Memorandum of bargatn.

We come now to the last exception which is “that some
memorandum in writing of the said dargazm be made and
signed by the parties to be charged with such contract
or their agents thereunto lawfully authorized.” ‘There
are three things to be considered with respect to the
memorandum spoken of in the seventeenth section of the
Statute of Frauds. They are:

(1) What is the note or memorandum in writing?
(2) What is meant by being signed by the parties to be
charged with such contract? (3) Who are the agents
lawfully authorized ? 3

In considering these three features of this part of the
seventeenth section of the statute, I shall also consider
at the same time that part of the fourth section of the
Statute of Frauds which says: “ Unless the agreement
upon which such action shall be brought, or some memo-
randum or note thereof, shall be in writing and signed

17 Taunton 597. See also Michelstetter v. Weiner, 82 Wis. 298; Jennings w
Dunham, 1 Mo. App. Rep’r. 228.

2716 M. & W. 302. See Towne v. Davis (N. H.), 22 Atl. 450; Crosby Hard-
wood Co. v. Tester (Wis.), 63 N. W. 1057.

3 See Blackburn on Sales, * p. 44.
FORM OF CONTRACTS. 117

by the parties to be charged therewith or some other
person thereunto lawfully authorized.”

_(z) In the first place the note or memorandum in
writing must be signed before the action is brought.’

(2) The memorandum may consist of various letters
and papers, provided they be connected and consistent
and make a complete agreement under the seventeenth
in section. They need not be contained in one document, as
Reuss v, Picksley,’ where the “agreement” was contained
in two letters.

In Hammersley v. Baron de Biel,} a letter written
after the marriage admitting the terms of an unsigned
writing promising a settlement in consideration of
marriage, was held a compliance with the statute.
But the papers must be “connected, consistent and
complete.” ¢

In Boydell v. Drummond,’ there was a prospectus and
a book in which the defendant signed his name, but
neither the book nor the prospectus referred to each
other. /YZe/d not a compliance with the statute.

In Crane v. Powell,° the plaintiff living at Sheffield
applied to the Free Labor Registration Society for Laborers
and signed a blank containing the terms of the employ-
ment. ‘The plaintiff’s letter and this form were read to
the defendant, who then signed a paper agreeing to pay
certain fee tothe society for obtaining him employment,
and reciting that he had accepted employment at Sheffield.
ffeld a compliance with the statute.

' Bill v. Bament, 9 M. & W. 36, (not so in some cases).

®L, R.1 Exch. 342, Seealso Beckwith v. Talbot, 95 U. S. 289, upon the
‘same point. Also Olsen wv. Sharpless, 53 Minn. 91; American Oak Leather
Company v. Porter (Iowa), 62 N. W. 658; Austrian v. Springer, 94 Mich. 343.

512 C. &F. 45.

* Anson on Contracts, * p. 56.

S11 East 142. See also Taylor v. Smith, (1893) 2 Q. B. 65; Rector Provision

Company v. Sauer, 69 Miss. 235.
6]. R. 4. C. P. 123.
118 LAW OF CONTRACTS.

Bailey v. Sweeting,’ decides that a recognition of a con-
tract in a letter repudiating any liability under it, is a
compliance with the statute. The whole contract must
appear in writing, and cannot be eked out by parol evi-
dence,’ but Beckwith v. Talbot and Crane v. Powell * permit
oral testimony to the extent of connecting different papers
which contain the contract.

3. The memorandum of the contract or bargain must
contain the name of the person with whom the contract
is made as well as the person to be charged with it.

_ In Sharman v. Brandt,‘ the plaintiff was a broker

carrying on business under the style of Simpson & Com-
pany, and was authorized by the defendant to purchase
hemp for them and the contract note was as follows:
“Bought for Messrs. Brandt & Horney of our prin-
cipals 200 tons, etc—W. W. Simpson.” ‘The plaintiff
had no principal, but was the seller himself. It was
held that the signing for the defendant by the other
party was not sufficient ; that such signature must be by
an agent.

It is, however, not necessary to insert the name if
there is sufficient in the memorandum to show who the
person is. The statute in such case is satisfied, because
the bargain or agreement is in writing and the oral evi-
dence is only admitted for the purpose of identifying the
person. But where the paper shows a contract with A,
it is not permitted to A to prove that he was the agent of
an unnamed principal because that would be to contra-
dict a paper.

199 E. C. L. R. 843. But see Fowler Elevator Co. v. Cottrell, 38 Neb. 512.

?Reed on Statute of Frauds, 3. 532. See also Hale v. Hale, 90 Va. 728;
Cameron v. Tompkins, 72 Hun. 113.

3 Supra.

*L. R. 6 Q. B. 720.

5 Higgins v. Senior, 8 M. & W. 834. See also Carrick v. Mincke, 1 Mo.
App. Rep’r. 67.
FORM OF CONTRACTS. 119

But oral evidence will be allowed to show that though
A is named in the contract, that by A is really meant
somebody else.’

In Trueman v. Loder,? Lord Deman said: “ Parol evi-
dence is always necessary to show that the party sued is
the party making the contract and bound by it; whether
he does so in his own name, or in that of another, or in
a feigned name, and whether the contract be signed by his
own hand or that of an agent, are inquiries not different.
in their nature from the question,—Who is the person
who has just ordered goods in my shop? If he sue for
the price and his identity is made out, the contract is not
varied by appearing to have been made by him in a name
not his own.”

In Grafton v. Cummings,’ a hotel, known as the Glenn
House, at the foot of White Mountains, in New Hamp-
shire, together with its furniture was bid for at an auction
sale by Grafton at the price of $90,000. Grafton refused
to complete the contract of purchase and the property
was put up and sold a second time for $61,000. Suit
was brought by Cummings who claimed to be the
vendor. The memorandum of sale did not contain the
name of any vendor. It was held that there being no
vendor described there was nobody to be identified by
parol proof, and that the contract was not binding.

4. The consideration.

It was decided in Wain v. Warlters,* in 1804, that the
memorandum of the agreement referred to in the fourth
section of the Statute of Frauds must contain not only

1Bibb zw. Allen, 149 U.S. 481; Mantz v. Maguire, 52 Mo. App. 236; Tewks-
bury v. Howard (Ind.), 37 N. E. 355.

211A. &E. 178.

399 U. S. 100.

45 East 10. See also Cooley v. Lobdell, 82 Hun. 98.
120 LAW OF CONTRACTS.

the names of the parties and the subject matter of the
agreement, but it must also set forth the consideration.

This rule has been modified to this extent by statute
in England; That in case of a promise to answer for
a debt, default or miscarriage of another, the considera-
tion need not appear in the writing in order to support
an action upon the agreement; 19 & 20 Victoria, c. 97.

The cases in this country on this question are con.
flicting. They will be found collected in the note to
Wain v. Warlters.*

In Pennsylvania it is not necessary that the consid-
eration should be in writing.? The rule requiring the
consideration to appear in writing, laid down in Wain
v. Warlters as to the fourth section of the Statute of
Frauds, was never applied to the memorandum men-
tioned in the seventeenth section of the Statute of
Frauds. Under the seventeenth section, while the
memorandum need not contain the price, if no price
has been agreed upon, yet if a price has been agreed
upon it must be contained in the memorandum.‘

What is meant by being signed by the parties to be
charged with such contract? The memorandum need
ouly be signed by the party against whom the contract
is to be enforced. The effect of this is to make the
contract a good one or not at the election of the other
party.5 The signature may be made by the principal or

11 Smith’s Leading Cases, p. 251. Also Straight v. Wight (Minn.), 63 N. W.
105; White v. White, (Ala.) 18 So. 3; Smith v. Northrup, 80 Hun. 65; Moses
v. Nat. Bank, 149 U. S. 298.

2Shively v. Black, 45. Pa. St. 345.

8Egerton v. Mathews, 6 East 307; Blackburn on Sales, *p. 67.

4Salmon Falls Mfg. Co. v. Goddard, 14 Howard 446.

5M’Farson’s Appeal, 11 Pa. St. 503; Allen v. Bennett, 3 Taunton 169;
Moore v. Powell, 6 Tex. Civ. App. 43; Pettibone v. Moore, 75 Hun. 461;
Moore v. Chenault (Ky.), 29 S. W. 140; Durham Land and Improvement
Co. v. Guthrie (N. C.), 22 S. E. 952; Kittel v. Stueve (Com. Pl. N. Y.),

31 N. Y. Sup. 821; 10 Misc. Rep. 696; Scott wv. Glenn, 98 Cal. 168; Gardels
v. Kloke, 36 Neb. 493.
FORM OF CONTRACTS. 121

by the agent ; and it may be in ink or in pencil; at the
beginning or end, or in any other part of the instrument,
provided that it appears that the signature was intended
for the authentication of the instrument.’

The ordinary rules of agency apply to that part of
the statute which says, “that the memorandum may
be signed by some person thereunto. lawfully authorized
by the person to be charged.”’ It appears, however, to
be settled by the cases that the agent must be some
third person and cannot be the other person to the
contract.”

In an auction sale the auctioneer is the agent, not
only of the seller, but he is the agent of the buyer for
the purpose of signing his name in the memorandum
required by the statute. Brokers are a class of agents
who in many cases are authorized to act for both
parties—buyer and seller.‘

The effect of a non-compliance with the statutory requzre-
ments in regard to having a memorandum in writing.

The terms of the fourth section of the statute do not
render the contract void, but merely provide that no action
shall be brought upon it.

In Leroux v. Brown,5 a contract which was not to be
performed within a year had been made verbally in
France, and was sued upon in England. If the contract
would have been void in England because not in writing,

1 White v. Proctor, 4 Taunton 209; Caton v. Caton, L. R. 2. E. & I. App.
127; Durrell v. Evans, 1 H. & C. 174; Nevada Bank v. Portland Nat. Bank,
59 Fed. 338; Fitzpatrick v. Engard, 4 Pa. Distr. Rep, 383; Sims v. Laudray,
8 Reports 582, (1894) 2 Ch. 318; Gerli v. Poidebard Silk Mfg. Co. (N. J.)
31 Atl. 4o1; Evans v. Hoare, (1892) 1 Q. B. 593; Hargrove z. Adcock, 111 N.
C. 166; Tingley v. Bellingham Bay Boom Co., 5 Wash. 644.

2See Sharman v. Brandt, L. R, 6 Q. B. 720.

3 Emerson v. Heelas, 2 Taunton 28; McBrayer v. Cohen, 92 Ky. 479.

4See Benjamin on Sales, 3 203, p. 307.

$12 C. B. 801.
122 LAW OF CONTRACTS.

+

it could have been enforced, being valid under the Frencl
law, in an English court, but if the English statute
merely forbid an action upon such a contract, if made in
England, then the statute was confined to matters of pro-
cedure.and as to those the law of the place where the suit:
was brought must control and such a contract, though
valid in France, could not be proved in England. Laroux.
v. Brown is approved in Pritchard v. Norton.’ :
Allshouse* v. Ramsay is a decision put the other way..
A contract made in New Jersey on which no action
could be brought there, because it was wof in writing
would have been valid here, but was held void because
not actionable in New Jersey under the Statute of Frauds.
The seventeenth section provides that in case there is.
no acceptance and receipt, no part payment or no memo-
randum in writing the contract shall not “be allowed
to be good.” It is unsettled whether this means any-
thing more than the fourth section means when it says
no action shall be brought. ‘The cases are conflicting.
They are collected in Pollock on Contracts. Both Pol-
lock and Anson incline to the view that the contract is
not void, but that the seventeenth, like the fourth sec-
tion, is a law of procedure.
1106 U. S. 124.

26 Wharton 331.
3* p. 605, note g.
CHAPTER IV.

CONSIDERATION.

‘““A valuable consideration in the sense of the law
may consist either in some right, interest, profit or
benefit accruing to the one party, or some forbearance,
detriment, loss or responsibility, given, suffered, or under-
taken by the other.”* ‘This definition or description of
“consideration” is adopted by both Pollock and Anson
and seems to be full and accurate. ‘The main feature
is that there must be some act or forbearance, either
present or promised, by the one party, and accepted by
the other as the price for which he promises. It is not
material or necessary where this exists that the act or
forbearance should be of any benefit to the party making
the promise.”

L. A consideration 7s necessary to the validity of every
stmple contract.

Notwithstanding the suggestion thrown out by Lord
‘Mansfield, in Pillans v. Van Microp,‘ that there was no
reason why agreements in writing, at all events in com-
mercial affairs, should not be good without any consid-
eration, it was finally settled in England in Rann ».

1Com. Digest, Action on the case, Assumpsit, B. 1-15. Quoted in Currie vz.
Misa, L. R. 10 Exch. 153. For a general discussion of the subject of considera-
tion, see Pollock on Contracts, Chapter IV; and Anson on Contracts, eighth ed.,
p. 88; also Shadwell v, Shadwell, Rul. Cas., Vol. VI, p. 9, and Eng. and Am.
notes appénded.

? Pollock on Contracts, * p. 167.

2 Hess’ Estate, 150 Pa. St. 346; Rann v. Hughes, Rul. Cas., Vol. VI, p. 1, and
Eng. and Am. notes, pp. 4 and 7

$3 Burrows 1664.

(123)
124 LAW OF CONTRACTS.

Hughs,’ that every contract not under seal, whether verbal
or written, required a consideration in order to be enforcible.

Bills of exchange and promissory notes are made by
Mr. Anson to be a seeming but not a real exception to
the rule. He states that in the case of these negotiable
instruments the law presumes a consideration and that
therefore the plaintiff need not either aver it or prove it.
Mr. Pollock, however, makes the exception a real one,’
and refers to remarks of Professor Langdell,? and Pro-
fessor Ames‘ as demonstrating beyond doubt that bills
of exchange and promissory notes are binding without
consideration, and wzthout the presumption of any con-
sideration.5

IT, The adequacy of the consideratzon will not be inquired
znto in a court of law, provided zt ts something of
value in contemplation of law.

If the Courts inquired into the adequacy of the con-
sideration, they would be making the contract for the
parties instead of allowing the parties to make the con-
tract for themselves. While the Court will not enter
into the question of adequacy of the consideration, they
will, however, insist upon the existence of a real con-
sideration.®

In Haigh v. Brooks,’ it was held that the surrender of
a paper signed by the defendant in which he guaranteed

17 T. R. 350.

2% p, 169, note

5 Cases on Contracts, p. 1013.

+2 Cas. on Bills and Notes, p. 872.

5 See note 1, Anson on Contracts, 8th ed. p. 90, and Stimson, Am. Stat. Law,
#4121. Though an endorsement without consideration is void, Strong v. Shef-
field, 144 N. Y. 392.

6 Shadwell v. Shadwell, Rul. Cas., Vol. VI, p. 9, with Eng. and Am. notes.
See Ballard v. Burton, 64 Vt. 387; Hamer v. Sidway, 124 N. Y. 538; Talbot v,
Stemmon’s Ex’rs, 89 Ky. 222, the last two cases deciding that the relinquish-
ament of a personal habit is a real consideration.

T10 A. & E. 309, affirmed at p. 323.
CONSIDERATION. 125

the payment of ten thousand pounds to the plaintiffs in
consideration of their being in advance to certain parties.
to that amount, was a sufficient consideration to support.
a promise by the defendant to pay certain acceptances
held by the plaintiffs, although the paper surrendered
was one on which an action could not have been brought
against the defendant, because it was a paper to answer
for the debt of another without expressing the consider-
ation. The statute did not affect the obligation of debt.
In Bainbridge wv. Firmestone,’ leave given to the defend-
ant to weigh the plaintiff’s boilers, was held a sufficient
consideration to support a promise by the defendant to.
return the boilers after they had been. weighed.

In Barnard v. Simonds,’ it was held that the relinquish-
ment of a void promise would not support a promise to
pay ten pounds, but in Traver v.... ,3 it was held
that where a woman, after her husband’s death, said
to a man who claimed to be his creditor, “If you will
prove that my husband owed you twenty pounds, I will
pay it,” an action would lie to recover the twenty pounds,
and the proof of the debt might be made in that action.
In Neal’s Executors v. Gilmore,‘ it was said that a
promise made by a man and his wife to take care of a
young child while they lived and provide for him when
they died, if he would live with them, could be enforced
after their death, where he had in consequence of that.
promise lived with them.

But while adequacy of consideration will not ordinarily
be inquired into, yet where inadequacy appears on the
face of the transaction dy actual computation, as where
the agreement is for the exchange of one sum of money

18 A. &E. 743.

2 Roll’s Abridgment, p. 26, Pl. 39.

31 Sid. 57. Langdell’s Leading Cases, p. 1023, denies the correctness of this

decision on the ground that there was no right of action until proof was made.
429 Smith (Pa.) 421.
126 LAW OF CONTRACTS.

for a greater sum of money, the consideration is not a
good one.* Pinnell’s case,’ was not one of an agreement,
but one where the payment of a less sum was pleaded as a
satisfaction in an action on a bond for a greater sum,
and it was held not to bea defence. In Foakes wv. Beer,?
it was held by the House of Lords that where a judgment
creditor agreed in writing with the debtor to take no pro-
ceedings on the judgment on consideration of immediate
‘payment of part of the debt and payment of the residue
in certain instalments, there was no legal consideration
for the creditor’s promise. But the general rule is that
the adequacy must not be inquired into.

In Hind v. Holdship,* it is said: “There is no case
where mere inadequacy of price, independent of other
‘circumstances, has been held sufficient to set aside a
‘contract between parties standing on equal ground, and
dealing with each other without any imposition or
oppression.” In this case the defendant had agreed to
pay certain creditors for the plaintiff if he would make
an assignment to him, and the Court said, ‘“ Whether
the contract is advantageous or not is not the question.
It is sufficient that he made the promise under the idea
‘that it would be beneficial.”

Various forms of consideration.

The consideration for a promise may be an act or
forbearance, or a promise to do or to forbear. Where
‘one promise is given for another the consideration is
executory. A promise of marriage is an instance of this
‘kind. Mutual promises must be made at the same time
so that each party may have an action against the other.

‘Jaffray v. Davis, 124 N. Y. 164; Bender v. Bun, 78 Iowa 283.
*5 Coke 117.

39 Appeal Cases 605.

‘42 Watts (Pa.) 104.
CONSIDERATION. 127

In Keep & Hale wv. Goodrich,’ two agreed to submit a
dispute to arbitration and keep the award, but one did
it one time, at which time the other refused, and then
afterward consented, but the consent was not communi-
cated to the other. It was held that there was no
‘consideration, because mutual promises must be made
at the same time. An illustration of a mutual promise
‘is a voluntary subscription. Here the promise:of one
person is the consideration for the promise of the other.’

It is sometimes said that where one promise is the con-
sideration for another promise, the whole contract may be
‘contingent and never come into effect save at the will of
one of the parties; and the case of the Great Northern
R. R. Company v. Witham,’ is authority for this proposi-
tion. In this case the defendant wrote the plaintiffs,
the railroad company, offering to supply them with
‘certain iron at certain prices for a year as the same might
be ordered by the company’s store keeper. To this the
plaintiffs replied saying they would accept the offer at the
prices named, and requesting the defendant to acknowl-
edge the receipt of their letter, which hedid. He supplied
a certain amount of iron and then declined to supply any
more. The company sued him for breach of contract in
not fulfilling an order for iron, and it was held that the
plaintiffs could recover.

But the weight of authority seems to be that in such a
case there is no contingent contract, but simply a con-
tinuing offer with a separate acceptance as to each lot as
often as it is ordered.

It was in this case it was said that the question, of
whether the defendant might not absolve himself from
further performance of the contract by giving notice to

112 Johnson 397.
2See Chambers v. Calhoun, 6 Harris (Pa.) 13.
4L.R.9C. P. 16.
128 LAW OF CONTRACTS.

that effect, was not decided; and in Chicago & G. E.
R. R. uv. Dane,’ it was held that an offer of the railway
company to carry six thousand tons, during certain
months of the year, at a certain price for the ‘plaintiff,
and his acceptance of that offer, did not make a contract.
The plaintiff was not bound to furnish the railway com-
pany anything at all to carry.”

A promise may be conditional, as where a man agrees.
to pay for a building if the work is approved by an archi-
tect, but this does not affect the validity of the considera-
tion.

When the consideration for a promise is an act or
forbearance, the contract is made upon consideration
executed. This arises when either the offer or the accept-
ance is signified by one of the parties doing all that he is
bound to do under the contract. Forbearance, the aban-
donment of a right, or a promise not to enforce it is a
good consideration for a promise.t A promise to pay a
sub-contractor if he would not file a lien is a good considera-
tion. The right forborne may be one against the promisor
or against a third party; it may bea valid claim or it may
be a doubtful one,> but it cannot be a claim clearly not.
enforcible by action; for forbearance to press such a claim
is not a good consideration for a promise.

In the case of Jones v. Ashburnham,° suit was brought
to recover money on a promise, the consideration of which
was the plaintiff’s agreement not to sue on a debt due
him from a third party who was dead. It did not appear
that there was anybody against whom the plaintiff could

143, N. Y. 240.

2This view is endorsed by Pollock on Contracts, *p. 175; Leake on Contracts,
p-. 46; Benjamin on Sales, ¢ 67.

3 Anson on Contracts, *p 73; and see Shadwell v, Shadwell, supra.

4St. Clair v. Perrine, 75 Ill. 366.

5 Good Fellows v. Campbell, 17 R. I. 402; Housatonic Nat. Bank v. Foster,
32 N. Y. S. 1031.

64 East 463; Saalfield v, Manrow, 165 Pa. St. 114.
CONSIDERATION, 129

have brought suit to recover his debt and therefore it was
held that the agreement, being one which it was ‘not
shown could be enforced, was not a good consideration
for a promise. In O’Keeson v. Barclay,’ the compromise
of a suit for slander for words not actionable was held a
good consideration for a promise.

A familiar instance of forbearance as a consideration is
where there is an agreement not to sue.? In regard to
this there are two things to be borne in mind. ‘The
first is that the forbearance must be for a definite or a
reasonable time. In Downing v. Funk,} the charge of
the Court to the effect that an agreement to forbear for an
indefinite time was not a good consideration, was affirmed.
It has, however, been decided in this State that an agree-
ment to forbear generally without naming any particular
time means a perpetual forbearance.‘ Secondly, that
which is forborne must be a right which is reasonably
believed to exist, even if not a valid right.

In Fleming v. Ramsey,’ where there was a dispute
between two neighbors as to whether a private road was
on the land of the plaintiff or on the land of the defend-
ant, and where they had agreed that its location should
be fixed by certain surveyors, and if it was found to be
on the plaintiff’s land the defendant would fence the land,
and this agreement was made after one suit brought in
which the plaintiff had been nonsuited, and where it was to
settle the dispute, it was held to be a good consideration.

Forbearance or a promise to forbear to sue, however, on
an unfounded claim has been said to be no consideration.°

12 P. & W. 531.

? Morgan v. Park Nat. Bank, 44 Ill. App. 582.

35 Rawle ( Pa.) 68. See also Oldershaw v. King, 2 H. & N. 517; Sidwell v.
_ Evans, 1 Pa. St. 385; Traders Nat. Bank vw. Parker, 130 N. Y. 415.

‘ Clark v. Russel, 3 Watts (Pa.) 213.

5 10 Wright 252.

6 Mygatt v. Tarbell, 85 Wis. 457.

9
130 LAW OF CONTRACTS.

It is said a mere belief in a claim is not enough, it must
be a reasonable belief. In Ex parte Banner zx re Blythe,’
Brett, L. J., comments on the two cases of Callisher v.
Bischoffscheim,* and Oxford v. Berrelle,3 the latter of
which decides that a reasonable belief of a cause of action
is not necessary to forbearance to sue as a consideration
and expresses a doubt whether these cases, if they lay
down such doctrine, are good law. He decides that in
a bankrupt court they would go behind a judgment
which was dishonestly obtained. But in the later
case of Miles v. New Zealand Alford Estate,‘ the Court
adhered to the rule laid down by Lord Blackburn in
Callisher v. Bischoffscheim, that if plaintiff believed he
had a claim, though he might not have succeeded in
a suit, the surrender of his claim would form a good
consideration.

In Market Company v. Kelly, a market company
incorporated for twenty years, leased stalls to plaintiff for
ninety-nine years and took his note; the plaintiff, with full
knowledge, gave the note in suit in compromise of com-
pany’s claim on original notes and it was held a good
consideration.

In Graham v. Johnson,° the plaintiff had been tricked
into signing a bond which had been assigned and he then
promised to pay the dona fide assignee a certain sum if
he would not sue on the bond, it was held there was no
consideration for the promise. Ifthe man who agrees to
forbear knows that he has no claim, then his agreement
to forbear is no consideration for a promise.’ The rule as

117 Ch. Div. 480-489.

21, R. 5, Q. B. 452.

320 W. R. 116.

432 Ch. Div. 266.

5 113, U. S. I99.

61, R. 8 Eq. 36,

™ Wade v. Simmeon, 52 FE. C. L. R. 548.
CONSIDERATION. 131

jaid down in Callisher v. Bischoffscheim is the law in
Pennsylvania.’

In connection with this question of forbearance to sue,
it may be mentioned that actual forbearance upon request
without a promise to forbear, has been held a good con-
sideration in the recent case of Leask wv. Scott Brothers,”
where a consignee was largely indebted to the plaintiffs
and upon asking further advances was told that he would
have to give security, whereupon he promised to do so
and received the advance, and some days afterward trans-
ferred to the plaintiffs a bill of lading for a cargo of nuts
which had been shipped to him. He then failed, and the
consignors undertook to stop the goods zz transztu, but it
was held that they had lost their right, the bill of lading
having been transferred for a good consideration, the
plaintiff having in fact given up the right to sue for an
unspecified time. The reasoning in this case seems some-
what open to criticism,’ though the rule seems to be now
settled.*

Bailment is an instance where an act done is a con-
sideration for apromise. Putting goods in the possession
. of a man will support an express promise to do certain
things, therefore in the case of Hart v. Miles, the plain-
tiff at the request of the defendant allowed two bills of
exchange, the property of the plaintiff, to remain in the
possession of the defendant, and the defendant promised
that if he could get them discounted he would give the
plaintiff the proceeds. He did get them discounted but
he did not give the plaintiff the proceeds. It was held
that the plaintiff could recover on the promise.

1See Worrell’s Accounts, 5 W. & S. I 12-115, and O’Keeson uv Barclay,2 P.
& W. 531. i

22Q. B. Div. 376.

3 See Anson on Contracts, * p. 77.

* See Crears v. Hunter, 19 Q. B. Div. 341, and Clark v, Russel, a ai ary:

593 E. C. L. R. 371.
132 LAW OF CONTRACTS.

There are certain cases in which there appears to be
a consideration where in fact there is none. These are
divided by Anson,’ under three heads: (a) Motive:
Cases where motive has been confounded with considera-
tion. (4) Impossibility and vagueness. This class covers
those in which the contract is impossible or too uncer-
tain to know what it is. (¢) Offering a man what he
may already legally demand.

(2) In regard to motive.

It was at one time held that a promise from A to X,
to do something for X’s son or daughter would enable
X’s son or daughter to sue upon this promise upon the
ground that the motive was to confer a benefit upon him or
her.? This is no longer the law, and neither the relatives
of the promisee nor a third person clearly intended to be
benefited by the contract can sue upon the promise.
There is, however, a well established exception to this.
rule, as where money is handed to one person to be
delivered to a third; and in this State it has been held
in accordance with this exception that a third person
may enforce a parol contract which is made exclusively
for his benefit, or which creates a trust for him. The
leading cases are Blymire v. Boistle,* and Guthrie wv. Ker,5
which, while recognizing the general rule that the plain-
tiff must be the person from whom the consideration pro-
ceeded for the promise, and that neither relationship nor
the fact of being the real beneficiary of the contract will
give a right to sue upon the promise, that yet where a
person other than the one from whom the consideration
proceeds is exclusively interested in the promise, then

1*p. 77.

2Dutton v. Pool, 2 Lev. 210.

5K, X.v. A. Y., 34 W. N. C. 145; Harris v. Clark, (Iowa) 62 N. W. 854.
46 Watts (Pa.) 182.

54 Norris (Pa.) 303.
CONSIDERATION. 133

in such case he still has a right to sue and to this
extent the old doctrine in regard to motives may still be
said to be in existence.

Another doctrine arising out of the confusion between
motive and consideration was the doctrine that a moral
obligation was a good consideration for a promise." This
moral obligation sometimes takes the shape of a past
consideration, or it might arise from motives of piety or
from a sense of honor.’ It was said in England down
to the decision in the case of Eastwood v. Kenyon,’ that
an existing moral obligation was a sufficient considera-
tion to support an express promise, and the same rule
existed, if it does not still exist in Pennsylvania, cer-
tainly down as late of the decision of Hemphill v.
McClimans.*

In England, however, the doctrine was completely
overthrown by the decision in Eastwood v. Kenyon. In
which case the declaration alleged that a guardian had
spent money on improving the real estate of his ward,
her ratification of it after age, her marriage to the de-
fendant whereby he got the benefit of the money spent
upon her property and his promise to repay the same.
The declaration was held bad, because it disclosed no
consideration and the doctrine of Lee v. Muggeridge,S
that a moral obligation will support a promise, was said
by Lord Denman to have no place in English juris-
prudence, and that if it were true there would be no

1 Brown v. Latham, (Ga.) 18 S. E. 423.

2 That an executory contract, supported by meritorious consideration only is
not enforcible, see Zz re James’ Estate, 28 N. Y.S. 992; 146 N. Y. 78; lu re
Butterfield, id.

511A. & E. 437.

412 Harris 367. Asaresult of Holden v. Banes, 140 Pa. St. 63 (1891), it is some-
times said to still exist, but this was a case of disability from coverture. However,
see note to Anson on Contracts, eighth ed., p. 94; and Am. notes to Eastwood
v. Kenyon, Rul. Cas., Vol. VI, pp. 41, 42; and Ferguson v, Harris, 39 S. C. 323.

55 Taunton 36.
134 LAW OF CONTRACTS.

necessity for a consideration in any case, because every
promise itself would carry with it a moral obligation, and
the conclusion arrived at in the note to the case of
Wennall v. Adney,’ was stated to be correct in general;
to wit, “That an express promise can only revive a pre-
cedent good consideration which might have been en-
forced at law through the medium of an implied promise,
had it not been suspended by some positive rule of law;
but can give no original cause of action if the obligation
on which it is founded never could have been enforced
at law, though not barred by any legal maxim or statu-
tory provision.” —

In Hemphill v. McClimans’ the son of a married wo-
man contracted with some builders to do work for him;
they refused to go on without security for payment and
his mother promised to pay them, and after the death of
her husband she renewed the promise. The Court held
her liable on her last promise on the ground of a moral
obligation to pay, but in Paul vw. Stackhouse,? the Court
there say, through Judge Woodward, that the case should
have been decided upon the ground that the work having
been done at the request of the married woman, her
promise, after the removal of the disability of her cover-
ture, was sustained by reason of the work having been
done at her request.

In Paul vw. Stackhouse they held the defendant liable
on a written promise to be answerable for the debt of
another made more than a year after the plaintiff had
assumed the obligation, because the obligation had been
assumed at the request of the defendant, and the Court
expressly repudiated the doctrine of a moral obligation
being a consideration for a subsequent express promise,

13 B. & P. 247.
2 Supra.
32 Wright (Pa.) 302.
CONSIDERATION. 135

adopting the rule laid down in Eastwood v. Kenyon
twenty years before. A promise to pay a debt which the
creditor has by his own act released is without consider-
ation.’

In Landis v. Royer,? the Court again got back to the
doctrine that a moral obligation will support an express
promise. In this case the plaintiff had furnished lumber
to a contractor who was building a house for the
defendant. The lumber went into the house, the con-
tractor failed and the defendant then promised the
plaintiff that he would pay him the balance due for the
lumber that had gone into his house. In an action
brought on this promise, the Court charged that as the
lumber had been furnished on the credit of the defendant
for his building, his subsequent promise to pay was on
a sufficient consideration, and the judgment was affirmed
on the ground that there was a moral obligation. There
are later cases in Pennsylvania, but they do not specific-
ally either recognize or repudiate the doctrine of a moral
consideration, and it is hardly worth while to refer to
them, unless Baeder v. Barton? is considered as settling
the rule.

(4) Lmposstbelity and vagueness.

The thing promised must be in itself possible and the
promisor must be legally competent to perform. The
thing promised must not be impossible according to the
state of knowledge of the day, as to go from London
to Rome in three days.* Difficulty or improbability will
not excuse. It must be shown that the thing cannot
by any means be effected. The reason is that the

1 Pollock on Contracts, * p. 169, note g, but contra Baeder v, Barton, 11 W.
N. C. 165, per Sharswood, J.

29 P. F. Smith (Pa.) 95.

311 W.N.C. 165.

4The Harriman, 9 Wallace 161.
136 LAW OF CONTRACTS.

charge having been created by the act of the party, it binds
him because he could have provided by contract that it
should not.’ An example of a promise which the promisor is
legally incompetent to perform, is an undertaking that the
plaintiff’s land shall sell for a certain price by a given day.’
A promise may be impossible by its vagueness. In
White v. Bluett,3 the executors of a testator brought
a suit on a note given by defendant to his father, the
testator: plea that in consideration of the son’s promise
not to complain to his father any more about the unfair
distribution of his (the father’s) estate, the father
promised to discharge the defendant from any liability on
the note. ‘This was held to be too vague a promise, being
equivalent to a promise by a son not to bore his father.

(c) Promises to do or doing that which one ts already bound
to do.

A third class of cases presenting an unreal considera-
tion is where a man promises to do or does that which he
is already bound to do.’ So a promise to do what a man
cannot legally do is no consideration.’ Forbearance to
proceed in action brought without cause, as in Wade w.
Simeon,® is an illustration of this rule.

The thing promised must be something more than the
other side can rightfully demand, or there is no considera-

1 Paradine v. Jane, Alleyn 26.

2 Stevens v. Coon, 1 Pinney (Wis.) 357.

32 B.C. L. R. 301. That a consideration is certain, if it can be rendered
certain, see Caldwell v. School Dist., 55 Fed. 372.

4 As a promise to pay extra to sailors to work a vessel home: (Stilk v. Myrick,
2 Camp. 317) or a promise in consideration of the payment in part or in whole
of a debt already due; (Lathrop v. Page, 129 Mass. 19) or a promise of reward
toa constable for arresting a man whom he is already bound to arrest; (Smith z.
Whildin, 10 Barr. 39. See also, Synge v. Synge, (1894) 1 Q. B. 466; Lingen-
felder v. Wainwright Brew. Co., 103 Mo. 578; Lukens’ App. 143 Pa. St. 346;
McCandless v. Steel Co., 152 Pa. St. 139; Havana Press Drill Co. v. Ashurst, 148
Til. 115.

5 Merrill v. Packer, 80 Iowa 542; See Ridgway v. Grace, 21 N. Y. S, 934.

8 Supra.
CONSIDERATION. 137

tion." Hence while payment of a smaller sum in satis-
faction of a larger is not a good discharge of a debt, yet
if something really though slightly different, will be a
discharge, for the difference is presumed to be beneficial,
it is therefore a consideration.’

In Goddard wv. O’Brien,’ a check for one hundred pounds
was held a satisfaction of a debt presently due for one
hundred and twenty-five pounds. Such new consideration
must be actually executed in order to support a promise
to forego the right to sue for breach of contract. Other-
wise it is not a good accord and satisfaction.‘

There are some apparent exceptions to the rule that
promising to do or doing what a man is bound to do
is not a consideration to support a promise. One of
these is a composition with creditors.° In such case the
creditor would appear to undertake to accept a less sum
in satisfaction of a greater one. This is not the con-
sideration, it is the substitution of a new agreement
between new parties.

In Fitch v. Sutton,’ a plea of an agreement to take
seven shillings on the pound was held bad, but in Good
v. Cheesman,* a plea of an agreement of all the creditors
interested to forego a portion of their debt was held good.

A promise to perform or the performance of an exist-
ing contract has been held to be a good consideration for

1 Sanders v. Carter, (Ga.) 17 S. E. 345. An agreement to extend a note
already due, on payment of accrued interest, is without consideration. Helms
v. Crane, 4 Tex. Civ. App. 89; Stickler v. Giles, (Wash.) 37 Pac. 293; Strong uv.
Sheffield, 144 N. Y. 392. See Moore v. Redding, 69 Miss. 841.

2 Pumell’s Case, 5 Co. Rep. 117; Bender v. Been, 78 Iowa 283; Jaffray v.
Davis, 124 N. Y. 164; King v. D. M. & N. Ry. Co (Minn.), 63 N. W. 1105.

39 Q. B. D. 37. See also Mechanics Bank v. Houston, 11 W. N. C. 389.

4 Hearn v. Kiehl, 2 Wright (Pa.) 147.

5 Cumber v. Wane, 1 Smith’s Leading Cases 633.

®See Anson on Contracts, 8th ed., p. 108, n.1, for a discussion of this
subject.

15 East. 230.

82B. & Ad. 325, and see Weimer v. Worth Township, 104 Pa. St. 320,
138 LAW OF CONTRACTS.

a promise.’ In Shadwell v. Shadwell,’ the plaintiff was
engaged to be married and his uncle wrote him saying
that if he would perform the engagement he would pay
him 150 pounds a year while he lived. The plaintiff
married ; the 150 pounds a year was not all paid and on
the uncle’s death the plaintiff sued his executors and re-
covered on the ground that the plaintiff had put himself
under an obligation not to cancel the engagement. This
case has not been followed in some States, but in Carrol
v. Nixon, a promise to hold a surety harmless made
eight days after he had become surety, but at a time
when he could have withdrawn, was held binding. The
difficulty with both these cases is that neither the
nephew nor the surety bound himself to perform the
contract, but the Pennsylvania decisions may be sup-
ported on the ground that there was evidence of a
previous request to go to the jury and that for this reason
a nonsuit was wrong.

IIT. Consideration may be executory or executed, tt must
not be past.

An executory consideration is a promise for a promise.
An executed consideration is a promise for an act or for
a forbearance. Either in the act or the forbearance one
party does all that he was to do under contract.

There are two forms of contracts arising upon an
executed consideration.

(2) Where a request to act is made in such a way as
to import a promise to pay for the act, the promise may
be accepted and will become binding by performing the

1 For a statement to the contrary, see Anson on Contracts, 8th ed., p. 111,
n. 1; Schuler v. Myton, 48 Kan. 282; Gordon v. Gordon, 56 N. H. 170; Brown-
lee v. Lowe, 117 Ind. 420.

79C. BN. S. 159.
34 W. &S. (Pa.) 517.
CONSIDERATION. 139

act. This is called a consideration executed on request.’
The leading case illustrating an agreement on this kind
of executed consideration is Lampleigh v. Braithwait,’
where the defendant being under sentence of death re-
quested the plaintiff to try and get him a pardon; the
plaintiff tried and afterward the defendant promised to.
pay him. Judgment for plaintiff. Another illustration
of this form of executed consideration is an offer of a
reward for services, when the services are performed the
promise is binding. In such a case the promise need
not be express, it may be implied, as when the service
entails liabilities.‘

(4) If a consideration be offered in such a way as to.
imply that it is to be paid for, its acceptance may operate
as a promise to pay upon the terms of the offer5 A
familiar instance is the offer of goods for sale, of service,.
or of a loan of money.

A past consideration will not support a subsequent.
promise.° Rescorla v. Thomas,’ decided that a warrant.
that a horse was not vicious after the sale was without.
consideration. To this general rule there are some
exceptions. (x) A past consideration will support a.
subsequent promise, if the consideration was at the
request of the promisor.®? The rule here laid down has.

1 Leake on Contracts, p. 52.

? Hobart 105, 1 Sm. L. Cas. * p. 151.

8 England vw. Davidson, 11 A. & E. 856; ante Chap. I.

‘Brittain v. Loyd, 14 M. & W. 762.

6 Leake on Contracts, p. 56.

6 Kastwood v, Kenyon, supra, and Rul. Cas., Vol. VI, p. 23, with Eng. and Am..
notes; also Anson on Contracts, 8th ed., p. 120, n. 1, for a discussion of the Am.
doctrine. For modern Eng. rule Casey v. Stewart, (1892) 1 Ch. 115; McNutt z..
Loney, 153 Pa. St. 281.

73 Q. B. 234, (43 E. C. L. R. 713). See N. Y. Tartar Co. v. French, 31 W.N.
C. 233; Peck v. Harris, 57 Mo. App. 467.

8Lampleigh v. Braithwait, supra. Past services rendered without request,
will not support a future promise. Myers v. Dean, 32 N. Y. S. 237. Contra,,
Viley uv. Pettit, (Ky.) 29 S. W. 438.
140 LAW OF CONTRACTS.

been narrowed by subsequent cases in England until
the subsequent promise of a sum certain would “ perhaps
now” be held only evidence of what the defendant’s
services were worth.’

Probably the best explanation of this apparent ex-
ception is by Judge Hare. He says: “Where the
price is not fixed and it cannot be known what com-
pensation a jury would award, the parties are entitled
to liquidate the damages by agreement.” “If the
defendant, under these circumstances, promises to pay
a sum certain, which is agreed to by the plaintiff, a
new contract will arise binding on both. It is the
assent of the plaintiff which gives validity to the
promise, and if he is free to claim more, the defendant
will not be bound to pay this much.”

(2) The voluntary doing of what another is legally
bound to do. It is stated that where one person does
voluntarily and without authority what another is legally
bound to do, this will be a sufficient consideration to
support an express promise made afterwards.3 But this
statement is doubted by Anson,* and is not the law in
this State. In Hogg wv. Longstreth® a mortgagee was
compelled to pay taxes which the mortgagor was bound
to pay on a foreclosure in order to clear the property
of a lien. The promise and request in such case may
both be implied. Where the plaintiff is compelled to
pay the debt of another the rule is otherwise.

(3) The third exception in these cases is where a man
promises to pay a debt not enforcible against him by
reason of some law which has been repealed, some

1 Pollock on Contracts, * p. 170, Anson on Contracts, * p. 94.

? Hare on Contracts, pp. 248, 249. See Anson on Contracts, 8th ed., p. 102,
n. 5.
3Lampleigh v. Braithwait, supra. See Judy v. Louderman, 48 Oh. St. 562.
4 Anson on Contracts, * p. 98. J ve Goddard’s Estate (Vt.), 29 Atl. 634.

597 Pa. St. 255.
CONSIDERATION. 141

incapacity to contract or a lapse of time.’ In Brown vw.
Bennett,” a married woman had agreed to convey, but
not according to statute. After her husband’s death
she received an instalment of purchase money. Held
evidence of a redelivery, and the instalment was held
enough to support a promise of ratification. In Yaw v.
Kerr, it was held that to avoid the statute of limitation,
in an action on a note more than six years old, the
suit must be on the original promise, and the new
promise or acknowledgment was only evidence to prove
the waiver of the statute.

These exceptions, that is exceptions where a contract
has not been actionable on account of some law which
has been repealed, or incapacity of the party, or lapse
of time, seem to rest upon a reasonable basis, but for
a time, when these exceptions were being established
by decisions, they were rested upon much broader
ground than was actually necessary for the establish-
ment of the exceptions. They were put upon the broad
ground that where there was a moral obligation that
was a sufficient consideration. That doctrine has been
pretty well exploded except, perhaps, in Pennsylvania
where it still lingers to a certain extent. It leaves the
only exception to the rule, the classes of cases just
mentioned, which are cases where an actual consideration
in every case has been received, and they only differ
from an ordinary contract in requiring a new promise
after the disability which prevented action upon the
contract has been removed.

1 Morse v. Crate, 43 Ill. App. 513. See, however, Stephenson wv. Line, 7 Oh.
Cir. Ct. R. 147.

£75 Pa. St. 420.

347 Pa. St. 333-
CHAPTER V.

REALITY OF CONSENT.

Where there is an agreement between competent parties
for a consideration, or in a form not requiring a consid-
eration, the consent declared may not be a real consent.
The reality and completeness of the consent may be
affected by ignorance, fear or dependence excluding
freedom of action.’ The subject is divided by Pollock as
follows:

A. lgnorance.
(a) Not caused by act of other party, is referred in
law to the head of. A@zstake.
Caused by act of other party
(6) Without wrongful intention—J/2srepresentation.
(c) With wrongful intention—Fraud.
B. Fear, or dependence excluding freedom of action.
Not caused by acts of other party or relation
between the parties—(Immaterial).
(d) Caused by such acts—Duress or coercion.
(e) By such relation—Undue Influence.

I. MISTAKE.

Where there is a mistake which prevents any real
agreement from being formed, it renders the contract void.
' In cases of misrepresentation, fraud, duress or coercion,
or undue influence, the contract is never void, but where
it is effected is made simply voidable.’

A mistake of expression is not really what is meant by
mistake, because that may be corrected, and it must be

1 Pollock on Contracts, * p. 391.
? Pollock on Contracts, * p. 392.

(142)
REALITY OF CONSENT. 143

distinguished from a mistake of intention. A mistake
does not of itself affect the validity of contracts at all,
but it may prevent any real agreement from being formed.
The doctrine is thus expressed by Pollock:* “ Where
an act is done under a mistake, the mistake does not
either add anything to or take away anything from the
legal consequences of that act either as regards any
right of other persons or any liability of the person
doing it, nor does it produce any special consequences
of its own; unless knowledge of something which the
mistake prevents from being known, or an intention
necessarily depending on such knowledge, be from the
nature of the particular act a condition precedent to the
arising of some right or duty under it.”

1. A mistake ts in general tnoperative as to the lability
of the party dging an act.

Thus ignorance of the real ownership of property is
no defence to an action for its recovery.” An exception
which is a real one to this rule is in the case of the
execution of processes which are apparently regular,
by a ministerial officer; but even in such cases he is
not excused for mistake as to extraneous matters, such as
the legal character of persons or the ownership of goods.
In Glasspool v. Young,? a sheriff took the property of
a married woman under an execution against her
husband; she turned out to be single and the sheriff was
held liable.

There is also another class of exceptions where a man’s
rights depend upon his ignorance, as in the case of the
purchase of personal property in market overt and the
transfer of negotiable instruments, and also the case

**p. 394.

2¥Fowler v. Hollins, L. R. 7 Q. B. 616.
39 B. & C. 696-700.
144 LAW OF CONTRACTS.

where a man gets a title from one who has a defective title,
or no title, and is enabled to retain it by being a bona fide
purchaser without notice. Bona fide purchaser without
notice means that the buyer of legal title without notice
of equities binding the seller, takes free from them. It is.
a shield for defence not a sword for attack.

The doctrine of sale in market overt does not exist in
this State,’ nor generally throughout this country.

Both in the case of the sale in market overt and the
transfer of negotiable instruments, the purchaser must
act in good faith, and this supposes ignorance. In case
of transfer of negotiable instruments it is not necessary
that the conduct should be free from negligence, although
the contrary was once supposed.’

2. A mistake does not generally alter existing rights.

In Whitehead v. Anderson,3 aman had mailed certain
bills of exchange in return for a bill of exchange sent
him. Having learned after he had mailed his letter con-
taining the bills of exchange, that the bill sent him would
not be paid, and that his correspondent did not desire him
to forward any bills in exchange for it, he obtained the
letter from the post office, under the regulations of the
postal department, where by mistake the letter containing
the bills was subsequently mailed, it was held that the
property in the bills did not pass.

So “a man who acts upon a wrong construction of what
his rights are under the contract, though his acts be for
the benefit of the other party, cannot compel the other
party to adopt that construction,” but if he adopt a broader

1 Kaston v. Worthington, 5 S. & R. (Pa.) 130.

2 Phelan v. Moss, 67 Pa. St. 59.

39M. & W. 518.

4 Midland G. W. R. R. of Ireland v. Johnson 6 H. L. 798; Pollock on Con-
tracts, *p. 402.
REALITY OF CONSENT. 145.

construction, he can abandon that and enforce the contract
tothe extent which the other admits.’

“If parties understand a contract differently and neither
of them lets the other know what his understanding is,
and the agreement was reduced to writing and executed,
they are bound in equity as well as law by that agree-
ment ;”” . . . but “ where both parties have acted on a
particular construction of an ambiguous document, this
construction, if in itself admissible, will be adopted by the
court.’

In Chicago v. Shelden,‘ an ordinance of a city required
railroads to keep in repair and good condition a certain
distance on each side of the track in the street of the city.
For some six or seven years, by acts of both parties, this
had been construed to mean repair. At the end of this
time, the city undertook to construe it to mean an obliga-
tion to put down new pavements when required by the
city. It was held, the question being doubtful, the construc-
tion put upon the agreement by the parties must prevail.

The special classes of cases in which a mistake is of
importance, are classified by Pollock® as follows: (1)
Where mistake is such as to exclude real consent, and
so prevent the formation of any contract, there the seem-
ing agreement is void. (2) Where a mistake occurs in
expressing the terms of a real consent, the mistake may
be remedied by the equitable jurisdiction of the Court.
(3) A renunciation of rights in general terms is under-
stood not to include rights of whose actual or possible
existence the party was not aware. This is in truth a
particular case under (2). (4) Money paid under a mistake
of fact may be recovered back. ‘This is a real exception,

1 Preston v. Luck, 27 Ch. D.497.
2 Arnold v. Arnold, 14 Ch. D. 270.
3 Pollock on Contracts, *p. 403. Forbes v, Watt, L. R. 2 Sc. & D. 214.
*9 Wall. 50.
5* p. 405.
Io
146 LAW OF CONTRACTS.

_ and the most important of all. Yet even here the legal
foundation of the right is not so much the mistake in
itself as the failure of the supposed consideration on which
the money was paid.

Mistake of law and fact.

Where a man has knowledge of material facts in
making a contract he is conclusively presumed to know
what the legal effects of those facts are. But where the
ignorance consists of ignorance of private rights as dis-
tinguished from general law, and that ignorance goes
to the root of the matter, so that there never could
have been any real consent to the contract, the English
Courts have gone so far as to hold such a contract void.’

Where the parties have made a mistake in express-
ing their agreement, whether of law or fact, there the
Court of Equity will reform the mistake.’

In Hunt v. Rousmaniere’s Administrator,’ the Court
said, that in some exceptional cases the Court of Equity
would grant relief against a plain mistake arising from
ignorance of law, and it has been held in Evan’s Appeal,*
and Macknet vw. Macknet,> that where a widow renounced
the provisions her husband had made for her by his
will, and took her dower under mistake as to what her
rights in her husband’s property were, that she might
withdraw her election and claim under the estate.

Where money is paid under mistake of fact it can be
recovered back, and negligence is no bar as long as ignor-

1 Cooper v. Phibbs, L. R. 2H. L. 149-170. See Kilduffe v. Maitland, 12 Pa.
Co. Ct. R. 362; West v. West, 29 S. W. 242.

2 Gould v. Emerson, 160 Mass. 438; Neininger v. State, 50 Oh. St. 394. How-
ever, see Cochran v. Pew, 159 Pa. St. 184. That it must be within a reasonable
time see Salinas v. Stillman, 66 Fed. 677.

31 Peters 1; Snell v. The Ins. 'Co., 98 U. S. 85.

451 Conn. 435.

5 29 N.J. 54.
REALITY OF CONSENT. 147

ance of the fact exists." Buta voluntary payment made
under a mistake of law can never be recovered back.’

Mistake as excluding true consent.

A mistake of this kind arises where the agreement
is on its face a complete agreement, but where there has
been no common consent, and, therefore, no contract.
This may arise where one party had one thing in his
mind and another had another, or it may arise where
they are contracting about the same thing, and intending
to make an agreement about the same thing, and having in
mind some collateral circumstance essential to the existence
of the agreement they are making of such a character that
if what they assume in regard to the collateral matter is
not the fact, then they would not agree. It is very
much like an agreement upon a condition which becomes
discharged on the non-happening of the condition. This
kind of mistake, called by Mr. Pollock “ fundamental
error,” may relate, (1) To the nature of the transaction.
(2) To the person of one of the parties with whom the
contract is made. (3) To the subject matter of the agree-
ment.’

1. Mistake as to the nature of the transaction.

In Thoroughgood’s Case,* the plaintiff, an unlettered
layman, executed a deed which he was told was a release
of claims for rent, whereas in fact, it was a release of
all claims. ‘The deed was not read to him but was

1 Kelly v. Solari; 9 M. & W. 54; Meredith v. Haines, 14 W. N. C. 364; King
v. Stewart, 66 Law T. (N. S.) 339. See Mattlage v. Lewi, 26 N. Y.S.17. If
the amount, though paid by mistake, is less than was due, it cannot be recov-
ered; Ashley v, Jennings, 48 Mo. App. 142.

2Lamborn v. County Commissioners, 97 U.S. 181-185; Real Estate Saving
Inst. v. Linder, 74 Pa. St. 371; Westfield w. Dill, 12 Pa. Co. Ct. R. 30.

3 Pollock on Contracts, * p. 412.

4 Campbell’s Ruling Cases, Vol. VI, p. 202; Am. Notes, pp. 229, 230.
148 LAW OF CONTRACTS.

stated to be a release of rent only. It was held not to
be his deed, and not binding. ‘This rule is recognized in
Green v. North Buffalo Township,’ where the defendants
had signed a bond to the township to support a pauper,
and the Court said that if they knew what the bond
was when they signed it, notwithstanding that they may
have been induced to sign it by a misrepresentation
made to them, it was still their bond, but if they had
not known what the contents of the bond were when
they signed it, then it was not their bond, they being
illiterate persons.* But if the person who cannot read
does not ask to have the deed read to him, in such case,
the deed is his deed and binds him,? and the rule is the
same if he can read and does not.‘

In Foster v. Mackinnon,? the defendant was induced
by the acceptor of a bill of exchange to endorse it upon
a statement that it was a guarantee. The defendant
did it without reading the paper. It was held that he
was not liable in a suit by a subsequent endorser for
value without notice, in the absence of negligence on
his part, the Court saying: “It seems plain, on prin-
ciple and on authority, that, if a blind man, or a man
who cannot read, or who for some reason (not implying
negligence) forbears to read, has a written contract falsely
read over to him, the reader misreading to such a degree
that the written contract is of a nature altogether different
from the contract pretended to be read from the paper
which the blind man or the illiterate man afterward signs ;
then, at least if there be no negligence, the signature so
obtained is of no force. And is invalid not merely on the

156 Pa. St. 110.

2 The Co. of Schuylkill v. Coplye, 67 Pa. St. 386.

3 Weller’s Appeal, 103 Pa. St. 594.

* Greenfield’s Estate, 14 Pa. St. 489; P.R. R. Co. uv. Shay, 82 Pa, St. 198;
Johnstone v. R. & D. R. Co., (S. C.) 17S. E. 512.

51. R.4C. P. 704. See Werner v. Rawson, 89 Ga. 619.
REALITY OF CONSENT. 149

ground of fraud, where fraud exists, buton the ground that
the mind of the signer did not accompany the signature ; in
other words, that he never intended to sign, and there-
fore in contemplation of law never did sign, the contract
to which his name is appended.”

In Stoever v. Weir,’ where in an action of debt’ on a
bond the defendant pleaded what was in effect a special
plea of zon est factum under which he gave evidence
that the paper which he signed had been represented ‘to
him as a receipt, and it was conceded that such evidence
would have been proper under such a plea. This de-
cision antedates the English decision by forty years.
While the rule in Foster v. Mackinnon is followed gen-
erally in this country,’ yet there is this qualification,
if it be a qualification, attached to it: that the party
who claims that he signed the instrument not knowing
what it was, where the suit is brought by the holder
of negotiable paper, must show that he was not guilty
of negligence in signing the paper. Whether this
qualification is to be sustained on the ground of estoppel
by negligence, or as part of the law of negotiable instru-
ments, does not appear to be settled.‘

The cases which hold that where an illiterate man
signs a deed without asking to have it read to him, or
where a man who can read signs a deed without read-
ing it, that in such case the deed is binding and cannot
be set aside upon the ground of mistake, would seem
to be explainable upon the ground of estoppel; because
that there is no real consent in these cases, as much
as in the case where it is misread to the party signing
it, cannot be doubted; and the reason why it is binding
in the case where it has not been read to an illiterate

110 S. & R. 25.

2 Willard v. Nelson, 35 Neb. 651; Deischer v. Price, 148 Ill. 383.
3Coles v. L. E. & St. Ll. R. Co., 41 Ill. App. 607.

4See Swan v. The North British Australasian Co., 7 H. & N. 603.
150 LAW OF CONTRACTS.

man is that the negligence of the man estops him from
making the deed to be void, though, possibly, he may
set up a claim that the deed is voidable upon the
ground of fraud.’

Where the parties to an agreement contemplate dif-
ferent legal effects, there is no agreement, as for in-
stance, where money is given to A as a gift and is
received as a loan, this does not make the receiver a
debtor to the giver, but it may subsequently be turned
into a loan. In Hill v. Wilson,? a man had applied to
his wife’s uncle to advance him a thousand pounds to
defray some of the expenses of his election to parliament.
The uncle declined but said he would give him five
hundred pounds and deduct it from a legacy which he
intended to leave his wife. He sent the five hundred
pounds and the nephew wrote back thanking him for it
and saying that he hoped shortly to be able to repay
it. Subsequently it was arranged between them that it
was to be treated as a loan and a note was given him.
So if A sends wine to B intending to sell it, and B thinks
it a gift and drinks it up, A has no remedy against B.
In Hills v. Snell, the plaintiff was a warehouse man
and had in store flour belonging to A and flour belonging
to B. The defendant was a baker and bought some
flour from C, who ordered it from A, who gave him an
order on the warehouse man to deliver him so much
flour. The warehouse man delivered him the flour of
B, which was a higher grade of flour. The baker took
it, made it into bread and sold it. ‘The warehouse man
then brought action against the baker. It was held that
he could not recover either in contract or tort.

‘Hunter v. Walters, 7 Ch. 75. And the case of deeds by drunken men or
lunatics, which are voidable not void, are to be explained upon the same
ground.

£8 Ch. Ap. 888.
3104 Mass, 173.
REALITY OF CONSENT. 151

2. Mustake as to the person of the other party.

In a great many cases it is immaterial to know with
whom the party is contracting, as for instance, you go
into a store and buy fruit; it is immaterial to you as
long as you buy and pay for it who sells the fruit, and
whether the purchaser thinks it one person or another
ordinarily makes no difference. ‘Theoretically, however,
when a contract is made, each party to that contract
contemplates making a contract with a certain person,
and a third person, by substituting himself for the person
with whom the party intended to contract, cannot in that
way create an obligation between himself and the con-
tracting person.’ In Cundy v. Lindsay,’ the plaintiffs,
who were manufacturers in Ireland, were applied to by a
man in London to supply him with certain goods. The
man in London, who was a stranger to the plaintiffs, so
wrote his name that it appeared to be the name of a
responsible firm, whose signature was very similar to
his, and the plaintiffs supplied him the goods, supposing
they were supplying them to this responsible firm. The
man to whom they were supplied sold them to the de-
fendant for value. The plaintiffs sued the defendant for
the value of the goods. It was held that they were
entitled to recover, as there never had been any contract
between them and the defendant’s vendor, the plaintiffs
supposing that they had been selling their goods to a
responsible person and not to an unknown scamp. In
Boulton wv. Jones,? the plaintiff had succeeded to the
business of one Brocklehurst; the defendant ordered
goods of Brocklehurst, the plaintiff supplied them; and
the defendant received and used them, supposing they
were being supplied by Brocklehurst. The plaintiff sued

1See Rodliff v. Dallinger, 141 Mass. SG

23 App. Ca. 459.
32H. & N. 564.
152 LAW OF CONTRACTS.

for the price of the goods and it was held that he could
not recover as there was no contract between him and
the defendant."

In Decan v. Shipper e¢ a/,? the plaintiffs had sold goods,
payment to be made in cash, as they supposed, to one
Alburtis, through a man claiming to be his agent.
Alburtis knew nothing about it, and the so-called agent
represented nobody. He obtained possession of the goods,
put them on board the defendant’s vessel and obtained
advances from Alburtis on the bill of lading. Alburtis
knew nothing about the transaction. The plaintiffs
replevied the goods and Alburtis intervened, claiming as
owner under the bill of lading. It was held that there
was no sale inasmuch as the plaintiffs had intended to
sell to Alburtis, and he not being the purchaser, the man
who obtained the goods could not convert himself into
the purchaser, and that the title to the goods never passed.
If this was a voidable sale the decision should be
perhaps different.

3. Mistake as to the subject matter of the contract.

The real question in this class of cases is: Did the
party get that for which he intended to contract ? and the
leading case is Kennedy v. Panama etc. Mail Company,5 in
which the prospectus of the company defendant had
stated in inviting subscriptions for new shares that they
had a contract for carrying mails with the New Zealand
Government. The plaintiff subscribed and paid for his
shares and it turned out that the defendant company had
no such contract, though they thought they had when

1 This case was followed in the Boston Ice Company v. Potter, 123 Mass. 28,
under a precisely similar state of facts.

235 Pa. St. 239. See Barker v. Dinsmore, 72 Pa. St. 427.

3 See note to Lickbarrow v. Mason, 1 Sm. L. Cas.

4See Anson on Contracts, * p. 134.
5T,, R. 2 Q. B. 580. See Everson v. International Granite Co., 65 Vt. 658.
REALITY OF CONSENT. 153,

they issued the prospectus. The plaintiff sued to recover
what he had paid for his shares. ‘The judgment was for
the defendant, but for this reason: That there was not
such a substantial difference in what the plaintiff got and
what he contracted for, to make the thing received sub-
stantially different from what he intended to contract
for; otherwise he would have been entitled to recover.

There are three classes of cases in which a mistake
as to the subject matter will avoid a contract. (a) Where
the thing about which the parties contracted has, unknown
to them, ceased to exist. (6) Where the specific thing
about which one party is contracting is not that about
which the other party is contracting. In other words,
where there is a mistake in the identity of the subject
matter. (c) Where one party contracts under a misap-
prehension of the extent of his promise, and the other
party knows it.

(2) Where the thing contracted for has ceased to
exist, the contract is void."

Illustrations of this class of cases where the thing
is non-existing are found in Couturier v. Hastie,? in
which a cargo of corn, which was supposed to be in
existence, was sold and at the time of the sale it had
ceased to exist, and it was held that the contract was
void: and in Allen v. Hammond,’ where the defendant
gave the plaintiff a power of attorney to prosecute a claim
and agreed to give him a per cent of what was recovered,
in ignorance of the fact that at that time the claim had
already been allowed. The contract was ordered to be
cancelled on the ground of a mistake.

This rule is equally applicable where the thing sup-
posed to exist is a particular title or right.

1puncan v. N. Y. Mutual Ins. Co., 138 N. Y. 88; Riegel v. Amer. Life Ins.
€o., 140 Pa, St. 193; 153 Pa. St. 134; Bedell v. Wilder, 65 Vt. 406.

25H L. C..673. .

311 Peter 63.
154 LAW OF CONTRACTS.

In Strickland v. Turner," the purchase of an annuity
was set aside because at the time of the purchase the
annuity had failed by the death of the annuitant.

In Cooper wv. Phibbs,? A agreed to lease a fishery from
B, supposing that B was a life tenant, as a matter of fact
under a settlement which had been previously made, B
had no interest and A was a lifetenant. It was held that
the agreement was void, and that the objection that this
was a mistake of law did not apply, because what was
meant by a mistake of law was a mistake of general law,
and the maxim, zenorantza leges non excusat, has no
application when the word “law” is used in the sense
denoting a private right; and the private ownership was
a question of fact which might be the result of a matter
of law, and where a contract is made under such a mistake
of law it may be avoided.

In Gross wv. Leber, a bond executed by the adminis-
trators of a trustee under the impression that as adminis-
trators they were bound to do what the trustee would
have been bound to do if he had been alive, was set
aside. |

(4) Mistake as to the identity of the subject matter of
a contract.

An instance of this is found in Raffles v. Wichelhaus,*
the declaration in which case alleged the sale of a cargo
of cotton to arrive ‘“Ex Peerless” from Bombay; that
the goods had arrived and the defendants had refused to
accept them. The plea set forth that the defendants
meant a ship by the name of “Peerless” that had
sailed from Bombay in October, whereas the goods
tendered were a part of the cargo of another ship of

17 Exch. (W. H. & G.) 208.

*L. R. 2H. 1. 149.

347 Pa. St. 520.

*2H. & C. 906. See Eng. and Am. notes to this case, Rul. Cas., Vol. VI, pp.
200, 201.
REALITY OF CONSENT. 155

that name which had sailed in December, and the plea
was held good.

In Goettel v. Sage,’ by a mutual mistake of the
vendor and the vendee, the vendor had conveyed by a
quitclaim deed to the vendee a tract of land to which
he had no title, intending to convey one to which he
had a title. In a suit on the bond given for the
purchase money by the vendee, these facts constituted
a defence, the contract being void on account of a mutual
mistake.

So in Kyle v. Kavanagh,’ where there were two streets
of the same name, and the plaintiff intended to sell a
lot on one street and the defendant to buy one on the
other, there was such a mistake in the identity of the
tract that it was held to be void.

(c) Mistake as to the nature of the promise; known
to the party to whom the promise is made. Cases of this
kind of mistake as to the nature of the promise are the
only cases in which mistake as to the quantity or quality
of the thing promised can affect the validity of the
contract.’

The cases mentioned by Pollock,‘ as instances of
material error in kind or quantity of the subject matter,
are really cases where the same thing was not agreed to
be bought or agreed to be sold, or cases where there was
an inadvertence in stating the price which prevented
specific performance in equity, but probably would not
prevent recovery of damages at law.

Ordinarily, in the sale of personal property there is no
implied warranty of quality, all that is implied is that
the seller has a title, and that the property is of the same
species of property as that which the buyer contracts to

1117 Pa. St. 298.

*103 Mass. 356; King v. Spaeth (N. J.), 25 Atl. 257.
3 Anson on Contracts, * p. 131.

‘* pp. 434 to 436.
156 LAW OF CONTRACTS.

buy.’ Consequently if the buyer wants to protect himself
he must do so by an express warrant, which is a collateral
undertaking as to some fact not of the essence of the
‘contract itself.

Nor is the seller responsible for any misrepresentations
he may make with reference to his wares in the absence
of fraud, or unless those representations amount to a
warrant. ‘The seller is not responsible if the buyer forms
a false idea of the quality of the goods or the character
of the goods which he is buying,’ nor is he responsible
even if he knows that the buyer thinks he is buying
one thing, when in reality he is buying another, but
he is responsible if he knows the buyer thinks he is
purchasing a thing of a certain quality, and also thinks
that the seller is promising to sell him a thing of that
quality, when as a matter of fact the seller knows the
thing is not of that quality.

In Smith v. Hughes,’ the plaintiff had a lot of oats
and the defendant agreed to buy some of them for some
race horses which he kept. When the oats were sent
to him he refused to take them and the plaintiff brought
an action against him for the loss he had suffered on
a resale of the oats. There was conflicting evidence as
to whether the oats had been sold as old oats, and the
judge charged the jury that if the contract was for old
oats they should find for the defendant, and he further
charged them that if the defendant was contracting for
old oats, though the word “old” was not used, they
should find for the defendant, and the second part of
this charge was assigned for error, and held to be error.

1 Whitaker v. Eastwick, 75 Pa. St. 229. There is an exception to this rule in
Pennsylvania, where an article is ordered for a special purpose and sold for that
purpose. In such a case there is an implied warranty that it is fit for that pur-
pose. Port Carbon Iron Co. vw. Groves, 68 Pa. St. 149.

2 See Wood v. Boynton, 64 Wis. 265.

3L. R. 6 Q B. 597.
REALITY OF CONSENT. 157

The fact that the defendant believed that he was pur-
chasing old oats was not a ground for avoiding a contract
unless the plaintiff knew that the defendant thought he
was contracting for old oats, and the distinction is a real
one, because in the last case there is no consent ad zdem,
and the thing as to which there is a mistake is the extent
of the plaintiff’s promise, and when that refers to the
quality of the goods sold it is a reason for holding the
contract void.

The effect of mistake, where it has any effect, is to
avoid the contract. If the contract is executory and is
sought to be enforced a mistake may be set up as a
defence; if the contract is executed and the money is
actually paid, it may be recovered back as money paid
without a consideration.

II. MISREPRESENTATION.

‘A representation is defined by Williams, J., in Behn
v. Burness,* to be “a statement or assertion made by one
party to the other before, or at the time of the contract,
of some matter or circumstance relating to it,” and its
untruth has no affect whatsoever, unless it is made
fraudulently, except in the case of certain special con-
tracts. It is not an integral part of the contract. As
soon as it becomes a part of the contract itself, it is a
condition. Where statements form part of the contract,
and turn out to be false they affect the performance of
the contract, and not its formation; and entitle the
party who is misled, either to hold himself discharged
from the contract, or to bring an action for a breach of
one of its terms.” With this kind of misrepresentation,
at the present time, we have nothing to do, as it will

13B.&S. (113 E. C. L. R.) 751.

2 Anson on Contracts, * page 137. See Flight v. Booth, Rul. Cas., Vol. VI, p.
746, with Eng. and Am. notes, pp. 754, 757.
158 LAW OF CONTRACTS.

be considered under the head of discharge of a contract ;
nor have we anything to do now with representations
which are fraudulent, as they more properly come under
the head of fraud.

However, before considering the special contracts
which are affected in their formation by an innocent
misrepresentation, or an innocent failure to disclose
certain facts, it may be well to consider in what consists
the difference between misrepresentation and fraud. In
order that a misrepresentation may be fraudulent it
must be false; it must be known by the man who
makes it to be false, or else it must be made by him
in reckless disregard of whether it be true or false,
and, therefore, without any real belief in its truth; and
it is not fraudulent if honestly made, even though made
without any reasonable ground for believing it to be
true. Unless knowledge of the untruth of the statement,
or a reckless disregard of whether it be true or false
exist, the statement is not fraudulent, and an action of
deceit will not lie.’

The whole subject is elaborately reviewed in Peek w..
Derry,? which was an action on a case by Sir H. Peek
against the chairman and certain directors of the
Tramway Company for fraudulent misrepresentation,
whereby the plaintiff was induced to take shares in the
company. The company had issued a prospectus in.
which they stated that they had the right to use steam
or mechanical motive power instead of horses. Their
charter gave them such a right with the consent of the
Board of Trade, and the directors at the time they
issued their prospectus believed they could get this

1The leading cases on this subject are: Paisley v. Freeman, 2 Smith’s Leading’
Cases, * p. 75; Chandelor v. Lopus, 1 Smith’s Leading Cases, * p. 183. See also,
Anson on Contracts, 8th ed., p. 176, n. 1. Lamberton v. Dunham, 165 Pa. St.

129; Angus v. Clifford (1891), 2 Ch. 449; Le Lievere v. Gould (1893), 1 Q. B. 491.
737 Ch. D. 5
REALITY OF CONSENT. 159

consent. They subsequently failed to get it and con-
seQuently, had not the right to use steam or mechanical
power on their tramway. It was held by Stirling, J.,
that the representation was innocently made by the
directors and the plaintiff could not recover. On appeal
this judgment was reversed upon the ground that the
directors had no reasonable ground for stating that they
had the consent of the Board of Trade, because they
believed they could get that consent. The case was
then carried to the House of Lords.‘ The Court of
Appeals was reversed, and the opinion of Stirling, J.,
was restored for the reason that the statement as to
having steam power had been made in the honest
belief that it was true, and whether that belief was
reasonable or not was entirely immaterial in an action
of deceit. This case settles the law in England, and
there have been two reviews on this decision, one in
the Law Quarterly Review,’ by Mr. Pollock, not agreeing
with the rule laid down in the House of Lords, the
other, in the same magazine,’ by Sir William Anson,
approving of this decision.

The rule in Pennsylvania is the same: Dilworth v.
Bradner,‘ was a case where a man made a false repre-
sentation about his own solvency and on the faith of
that representation the plaintiff sold him lumber on the
tenth day of July, 1875. On the seventeenth of August
the man who made the representation filed a voluntary
petition in bankruptcy. The plaintiff proved these facts
on the trial and rested. The defendant testified that
he considered himself perfectly solvent. The defendant
asked the judge to charge that if the jury believed that
the defendant, at the time of making the statement,

‘14 App. Case, 336.

2Vol. V, p. 410.

3Vol. VI, p. 72, January, 1890.
485 Pa. St. 238.
160 LAW OF CONTRACTS.

really believed himself to be solvent, the verdict should
be for the defendant. The Court affirmed this point.
with the qualification that if he believed himself to be
solvent upon reasonable grounds then he would not be:
liable. ‘The judgment was for the plaintiff and it was.
reversed, Judge Sharswood saying: “It would introduce-
a new and very dangerous element into the question to:
say that the jury must decide whether the defendant.
had reasonable grounds for his belief.”

The charge of the Court below in Griswold v. Gebbie,”
was in effect that if a defendant’s agent stated what he:
did not know to be true, and what was in fact false,
without having any reasonable ground for believing it,.
and the plaintiff relied upon it, the plaintiff could recover:
in an action for deceit. ‘The case was the misstatement.
of the number of acres in the purchase of real estate..

If this statement be taken broadly, it is directly im
conflict with the rule laid down in Peek wv. Derry,’ and
follows the Court of Appeals in the same case.3 But.
if the case be carefully examined, I think there is
nothing inconsistent in it with the rule laid down in
Peek uv. Derry.

The absence of a reasonable ground for belief is evi-
dence from which a reckless disregard of the truth of
the statement may be inferred, and in the case of Gris-
wold wv. Gebbie there was no evidence to meet the przma:
facte case established by such proof of a reckless dis-
regard of the truth of the statement and, therefore, under
the circumstances of the particular case, in the absence
of such evidence, such a charge was not erroneous,,
though if relied upon as a general statement, true in
all cases, it would not be correct.

1126 Pa. St. 353; Chase v. Boughton, 93 Mich. 285; Chatham Furnace Co. v.
Moffatt, 147 Mass. 403.

214 Chan. App. Cases 337.

337 Chan. App. Cases 541.
REALITY OF CONSENT. 161

In connection with the subject of misrepresentation
when not fraudulent, there is a good deal of confusion
between warranties, conditions and representations, and
it may be well to explain the difference between them.
Most of the cases will be found collected in the note
to Chandelor v. Lopus.". The case itself was an action
on the case brought by Lopus against Chandelor, in
which he set out that the defendant, being a goldsmith, and
skilled in jewels and precious stones, had a stone which
he offered to Lopus as a Bezoar stone and sold it to him
for two hundred pounds, whereas it was not a Bezoar stone.
The defendant pleaded not guilty. There was a judg-
ment for the plaintiff and the defendant moved in arrest
of judgment, because the declaration did not contain
matter sufficient to charge the defendant : to wit, that he
warranted it to be a Bezoar stone, or that he knew it was
not a Bezoar stone; and in error of the judgment it was
held that the declaration did not disclose sufficient cause
of action. ‘This is all that casedecided.* But while this
is all the case decided, it has been made the text fora
collection of cases in regard to warranty and false repre-
sentations.

Warranty.

Warranty has been used in a great many senses, but
it is believed that the correct meaning of it is the defini-
tion given in Chanter v. Hopkins,’ to wit, “ An indepen-
dent subsidiary promise collateral to the main object of
the contract.” If made at the same time it requires no
other consideration, if made afterward, it is governed by
the ordinary rules with respect to the requirements of
the consideration. A warranty may be implied. Except

1 1 Smith’s Leading Cases; * p. 183.

2 See article entitled Chandelor wv. Lopus, by. R. C. McMurtrie, 1 Harvard Law

Review, p. I9I.
34M. & W. 399.

II
162 LAW OF CONTRACTS.

in South Carolina, the universal rule in this country is,
in the case of a sale of a specific chattel inspected or
selected by the buyer, or subject to his inspection, that
there is no implied warranty of quality.

Eagan wv. Call’ was the case of a sale of a horse which
turned out not to be sound. The buyer gave his note
and when it came due refused to pay it on the ground of
failure of consideration. The Court held that he was
liable and that there had been no failure of consideration
in the case, as he had got the horse with the title to it,
which was what he bargained for. There was no implied
warranty of quality.

In Ryan vw. Ulmer,?a pork packer in Dubuque, Ia.,
sold a dealer in Pottsville, Pa., “five carloads fully
cured, sweet, pickled shoulders, f. 0. b. Dubuque;” when
they arrived at Pottsville they proved to be unmerchanta-
ble. In an action by the vendee on an implied warranty,
the Court charged that it was the vendor’s duty to fur-
nish pork that was “sweet and sound and in a fit
condition to be sold in the trade,” and this charge was
reversed, and the case of Chandelor v. Lopus? was cited
as authority.

The doctrine has been carried so far in Pennsylvania
that in Boyd wv. Wilson,‘ it was decided that a sale by
sample did not amount to an undertaking that the
goods should be like the sample in quality, but that the
obligation of the vendor was discharged by delivering
merchantable goods of the kind sold. In this particular
case, the goods sold were 850 cases of canned corn. The
defendant tried two cans before buying and found the
corn good, sweet and sound in every respect; the corn
furnished him was not like the sample but a good deal

134 Pa. St. 236.
2 108 Pa. St. 332.
‘8 1 Smith’s Leading Cases, * p. 183.
483 Pa. St. 319.
REALITY OF CONSENT. 163

of it was sour, greasy and unfit for food. The defend-
ant refused to take it, and the suit was on a promissory
note. The judgment was for the plaintiff and the judg-
ment was affirmed.

This case was decided in February, 1877, and on the
thirteenth of April, 1887, an Act of the Legislature was
passed, which provided that in all sales by sample there
should be a warranty that the quality of the goods sold
was the same as that of the sample.’ Before the passage
of the Act, however, in West Republic Mining Company
v. Jones,” where there Had been a sale of ore, “ quality
to be up to sample of car load sent us,” it was held
that this stipulation as to quality was a part of the con-
tract. It is difficult to see how, if such an express agree-
ment is evidence of .a warranty, a sale by sample is not
equally admissible to show such an agreement by con-
duct, and such is the rule almost universally outside
of Pennsylvania. The case last cited states that there
is an implied warranty that the goods are merchantable
and in Port Carbon Iron Works v. Groves,? it was held
that where goods are ordered for a specific purpose there is
an implied warranty that the goods are fit for that purpose.

The breach of a warranty gives a right of action, but
it does not affect the validity of the contract. It is in
effect “a promise of indemnity against a failure in the
performance of a term in the contract.t The breach of a
warranty gives no right to rescind the contract. .

Condttion.

Where the representation made is a part of the con-
tract, so that if untrue, the party to whom it is made

1P. 1, 1887, p. 31.

2708 Pa. St. 55.

368 Pa. St. 149.

* Anson on Contracts, * p. 304.
6Freyman v. Knecht, 76 Pa. St. 141.
164 LAW OF CONTRACTS.

is discharged from his obligation, it amounts toa condi-
tion.

The case of Behn vw. Burness,’ is an illustration of such
a representation. This was the charter-party by which it
was agreed that a certain ship, ‘now in the port of
Amsterdam,” should proceed with all dispatch to some
other port. The ship was not in the port of Amsterdam
at the time of the charter-party, and did not reach there
until some four days afterward. The defendant refused
to load her with freight at a lower rate, and sued for the
difference. The Court below held that this did not
amount to a condition; “ now in the port of Amsterdam,”
and that there had been no breach of contract. This was
reversed by the Court of Exchequer.

The same rule was applied in. Davidson v. Von
Lingen,? where a stipulation in a charter-party that a
vessel is “now sailed or about to sail from Benizaf with
cargo for Philadelphia,” was held to be a condition prec-
edent and not a mere representation.

It is well settled that a breach of a condition prece-
dent will discharge the contract. ‘The acquiescence in
breach of the condition, however, is said to turn it
into a warranty. This subject leads, however, into
a very difficult branch of the law of contracts, that
of their divisibility, and more properly belongs to the
subject of the Discharge of Contracts. Its discussion
will be postponed until that branch of the subject is
treated of.

A different view is taken of representations inno-
cently made, which do not amount either to a warranty

13B.&S. (113 H.C. Ll. R.), 751. Foran annotated report of this case, see
Rul. Cas., Vol. VI, p. 492. :

2113 U.S. 4o.

3 Shaw v. Turnpike Co., 1. P. W. 454; also Behn v, Burgess, and Davidson v.
Von Lingen, cited above.

4See Anson * p. 307 and cases there cited.
REALITY OF CONSENT. 165

or a condition, in the Courts of Equity from that which
is entertained in the Courts of Law.

In Lamare v. Dixon,' the House of Lords refused to
enforce a contract compelling the defendant to specifi-
cally perform an agreement of lease, because the plain-
tiff had stated that the cellar should be made and kept
dry and had failed to make good that promise. In Red-
grave v. Hurd,’ the Master of the Rolls, Jessel, said:
“ According to the decisions of the Court of Equity it
was not necessary, in order to set aside a contract
obtained by material false representation, to prove that
the party who obtained it knew at the time when the
representation was made that it was false.” In Cover-
dale v. Eastwood,? a statement by a father to a man
about to marry his daughter, that he would settle all his
property upon her, as she was his only child, if the
marriage came off, amounted to an undertaking which a
Court would specifically enforce, not merely upon the
ground of contract, but to use the language of Bacon,
Vice Chancellor, “Upon this larger principle, that where
a man makes a representation to another in consequence
of which that other alters his position, or is induced to
do any other act which is either permitted or sanctioned
by the person making the representation, the latter can
not withdraw from the representation, but is bound by
it conclusively.”

In Mr. Pollock’s note (z), in the appendix to his book
on Contracts, he reviews most of the English cases and
reaches the conclusion that the view expressed by Mr.

lLamare v. Dixon, L. R. 6 H. L. 414. ‘‘Innocent misrepresentation if it
furnishes a material inducement, is ground for resisting specific performance of
the contract, or for asking to have it set aside; this relief is of general applica-
tion, and is not peculiar to the contracts described as wherrimae fidei.’’ Anson
on Contracts, 8th ed., p. 190. Id. n. 1, for Am. cases. See Billings v, Aspen
etc. Co., 51 Fed. 338.

220 Ch. D. 1.

3L. R. 15 Eq. Cases 121.
166 LAW OF CONTRACTS.

Justice Stephen in Alderson v. Maddison’ is the correct
one. Mr. Justice Stephen says, “I do not agree with
this view, and I think it desirable to state fully the
way in which the matter presents itself to me. It seems
to me that every representation, false when made or
falsified by the event, must operate in one of three
ways, if it is to produce any legal consequences. First,
it may be a term in a contract, in which case its falsity
will, according to circumstances, either render the con-
tract voidable, or render the person making the repre-
sentation liable either to damages or to a decree that he
or his representatives shall give effect to the represen-
tation. Secondly, it may operate as an estoppel preventing
the person making the representation from denying its
truth, as against persons whose conduct has been influ-
enced by it. ‘Thirdly, it may amount to a criminal
offence. The common case is an instance of a repre-
sentation forming part of a contract. Pickard v. Sears,
6 A. & E. 469, and many other well known cases are
instances of representations amounting toan estoppel. A
false pretence by which money is obtained is an instance
of a representation amounting to a crime.”

Special cases of musrepresentatzon.

I come now to the class of special contracts which are
affected in their formation by a misrepresentation or a
non-disclosure. These are sometimes called contracts
uberrimae fidet, and the characteristic which they all
have in common is that knowledge of the subject-matter,
or some part of the subject-matter of the contract is in
the possession of the one party of the contract in such a
way that the other party has torely upon his statements.’

15 Ex. D. 293.

2 That contracts of insurance are uberrimae fidei, see Batesv. Hewitt, Rul.
Cas., Vol. VI, p. 817, with Eng. and Am. notes, pp. 832, 833. Also Stevens
v, Queen Ins. Co., 81 Wis. 385.
REALITY OF CONSENT. 167

Mr. Pollock mentions the following kinds of contracts
coming within this special class: (1) Marine Insurance,
(2) Fire Insurance, (3) Suretyship, (4) Sales of Land,
(5) Family Settlements, (6) The Contract of Partnership,
and in analogy to it, contracts to take shares in com-
panies and contracts of promotors.

I. Marine tnsurance.

In the case of Marine Insurance, a misrepresentation
or non-disclosure of a material fact, though made without
any fraudulent purpose, vitiates the policy, that is, it
makes it voidable at the option of the underwriter.’

The insured is bound to disclose anything which
would affect the judgment of an underwriter doing
business in the usual way, unless the underwriter has
already as full and precise a knowledge of it as the
insured.? In Jonides wv. Pender,? the fact which was not
disclosed was that the goods were insured very much
above their real value.

2. Fire insurance.

The description of the premises, in the case of fire
insurance, amounts to a condition that the premises
answer to the description substantially so far as is
material to the risk, and that they will not be altered
during the term of the policy so as to increase the
risk.

It was held, /z ve Universal Non-Tariff Fire Insurance
Company v. Forbes & Company’s Claim,‘ that describing

1Tonides v. Pender, 9 Q. B. 531; Morrison v. The Universal Marine Insurance
Company, L. R. 8 Exch. 197; Sun Mutual Insurance Company v. Ocean
Insurance Company, 107 U. S. 485. Also Hart z. British Ins. Co., 80 Cal. 44o.
See Bates v. Hewitt, Rul. Cas., Vol. VI, p. 817. Am. notes p. 833.

2Sun Mutual Ins. Co. v. Ocean-Ins, Co., supra.

3 Supra.

4L. R. 19 Eq. 485.
168 LAW OF CONTRACTS.

a building as a brick building with a slate roof, whereas,
it was:a brick building with a tarred felt roof was not
such a material misdescription as to affect the policy.

In Pottsville Mutual Fire Insurance Company v.
Horan,’ the applicant covenanted and agreed that the
statement made by him on application for insurance on
a house, contained:a full, just and true exposition of all
the circumstances in regard to the condition, situation,
value and risk of the property to be insured, so far as
the same were known to the applicant, and were material
to the risk. There was also a condition in the policy
that if the risk was increased by any means without
notice from the insured, the policy should be void. In this
case the insured failed to specify a small carpenter shop on
the premises, and subsequently failed to give notice of the
erection of another house on the adjoining lot. It was held
that the policy was voidable at the option of the company.

In the case of fire insurance, however, an innocent
failure to communicate, or an innocent non-disclosure
of facts about which the plaintiff was not asked, will
not have the effect of vitiating the policy. In Browning
v. Home Insurance Co.,3 the house was described as a
“dwelling house.” It was a dwelling house but was not
occupied. It was held that the failure to disclose this
fact did not enable the insurance company to avoid the
policy, because no inquiry had been made about it by
the insurance company, although the policy contained a
provision that any omission to make known a fact
material to the risk would render it void.‘

'39 Pa. St. 438.

2 Washington Mills Emery Mfg. Co., v. Weymouth Mutual Fire Ins. Co., 125
Mass. 503. See also Smith v. Niagara F. Ins. Co., 60 Vt. 682; Anson on
Contracts, 8th ed., p. 193, n. 1. As to where an examination of the property is
made, see Ins. Co. vw. Leslie, 47 Oh. St. 409.

371 .N. Y. 508.

4See generally Clemans v. Sup. Assembly etc., 131 N. Y. 485.
REALITY OF CONSENT. 169

The case of life insurance is said to be different from
both marine and fire insurance. Wheelton v. Hardisty,’
decided that a policy of insurance was not bad, although
it was procured by false and fraudulent representations
made by a third person, and not the person insured,
there being no fraud on the part of the insured, and no
term in the policy that it should be void if the repre-
sentations made were untrue. In.Moulor v. American
Life Insurance Co.,? the judgment of the Circuit Court
in this District was reversed, because they gave a binding
direction to find for the insurance company in a case
where, upon a fair construction of the contract of insur-
ance, it was held that it did not stipulate that its validity
should depend upon the absolute truth of certain answers
which the insured had honestly made, but which turned
out not to be correct. In the opinion in this case, other
cases are cited which hold that where such stipulations
are in the policy of insurance, they amount to a condition
that the statements made shall be true, and if untrue
the policy is vitiated.

The view, however, taken in Wheelton v. Hardisty,
and apparently followed in Moulor v. The Insurance
Co., is not accepted generally in this country. In
Bliss on Life Insurance, it is insisted that the same
doctrine of representation that exists in the case of
fire insurance exists also in the case of life insurance,
and that if there is a false statement in material
matter, whether innocently made or not, it avoids the
policy.‘

18 B, & B. (92 E. C. L. R.) 232.

2111 U. S. 335.

Sp. 75-

4But that generally an innocent failure to disclose what is not asked will not
avoid the contract even if material to the risk, see Nat. Bank v. Union Ius. Co.,
88 Cal. 497; Blackstone v. Standard etc. Ins. Co., 74 Mich. 592. That where
policy is issued, it amounts to a waiver of answers to unanswered interrogatories,
see Phoenix Life Ins. Co, v. Raddin, 120 U. S. 183.
170 LAW OF CONTRACTS.

3. Suretyship.

So far as the formation of this contract is concerned,
the rule that exists in regard to the disclosure of any-
thing which may be material to it in the case of a
marine policy of insurance, does not apply. A surety is
not entitled to have a creditor disclose to him matters.
connected with the dealing between the creditor and the
debtor which may be material for the surety to know,
unless he is asked about it." But after the contract is.
formed, the surety will be relieved from liability if he is
not informed of any circumstances which would have
entitled him to end the contract. This is illustrated in
the case of Phillips v. Foxall,? where the surety had
become responsible to the extent of sixty pounds for the
honesty of a servant. The servant proved dishonest,
but her employer, on her agreement to pay back by
installments, what she had stolen, continued to retain
her in his employment without notifying the surety of
her dishonest action. She subsequently committed
another theft and it was held that the surety was not.
responsible for it.

In Magee v. Manhattan Life Insurance Co.,? it was.
held that the contract of suretyship was not affected by
the fact that the creditor failed to disclose to the surety
that the agent, whose honesty was guaranteed, was at.
that time indebted to his principal, and only able to
retain his position by making a contract that he would
apply his future commission to liquidate his past indebt-
edness.

In the case of a surety, a true rule seems to be that
stated by Blackburn, J., in Lee v. Jones * That it depends.

1Hamilton v. Watson, 12 Clark & Fin. 109.
21, R., 7 Q. B. 666.

892 U. S. 93.

417C. B., N.S. 482.
REALITY OF CONSENT. 171

upon the nature of the transaction whether the fact not
disclosed is such that it is impliedly represented not to.
exist.

g. Sales of land.

A wmisdescription affecting the title, the value or
character of the property sold, will make the contract
voidable at the purchaser’s option, as in the case of
Flight v. Booth,’ where the contract of lease mentioned
some restrictions and the lease, when it came to be exe-
cuted, had several others in it. It was held that the
purchaser was not bound and might sue to recover back
what he had deposited, and it was put upon this ground
by Chief Justice Tyndal: ‘“ Where the misdescription,.
although not proceeding from fraud, is in a material and
substantial point, so far affects the subject-matter of the
contract that it may reasonably be supposed that, but
for such misdescription, the purchaser might never have
entered into the contract at all, in such case the contract
is avoided altogether, and the purchaser is not bound to.
resort to the clause of compensation. Under such a state
of facts, the purchaser may be considered as not having
purchased the thing which was really the subject of the
sale.” So in Jones v. Edney,’ where the subject matter
of the lease was described as a free public house and the
lease contained a clause requiring the purchaser to get
all his beer at a particular brewery, it was held not to be
binding.

Questions of this kind generally arise in equity in
suits for specific performance where there is a variance
between the actual holding, or quality or description of
the property from what was stated in the contract, and
the character of relief given in equity depends upon the
discrepancy between the fact and the description. If the:

11 Bing., N. C. 370; Rul. Cas., Vol. VI, p. 746.
23 Campbell 285.
172 LAW OF CONTRACTS.

difference is slight, equity will enforce the contract
giving compensation for the difference. In such case
either party may enforce the contract. Again, where the
contract is voidable at the option of the purchaser, so
that he cannot be forced to complete it even with com-
pensation, he may elect either to be released or to
complete it with compensation; or the variance may be
so material as to amount to a variance in kind, and so
avoid the sale altogether, and prevent the application even
of the clause in the contract of sale with respect to
quality and quantity."

Erwin v. Myers,? is an instance, however, where the
Court enforced a contract, at the solicitation of the vendee,
where the vendor could only make title to half the
property with an abatement of one-half the price.

The result of the authorities seems to be that it is the
duty of the vendor to give substantially correct informa-
tion, at all events to the best cf his own knowledge, of
all facts material to the description or title of the estate
offered for sale, but not of extraneous facts effecting its
value, as for instance, what price he himself gave for the
property.*

5. Family settlements.

It is said in Gordon vw. Gordon,‘ that in the case of
family settlements and compromises, that without full
disclosure an honest intention is not sufficient.

6. Partnerships.

The rule that there must be the utmost good faith
in the case of a partnership, applies usually to trans-
actions between the partners after the formation of the

1See Pollock * pp. 497-502.
246 Pa. St. 96.

3Pollock, * p. 506.

43 Swanson 400.
REALITY OF CONSENT. 173

partnership.’ Pollock cites no authority for requir-
ing the same sort of good faith between the parties
about to enter into a partnership; nor would it seem
that a contract for the purchase of shares stands upon
any different footing from any other contract.

In Reese River Silver Mining Company,’ Turner, L. J.,
said: ‘Contracts of this description between an indi-
vidual and a company, so far as misrepresentation or
suppression of the truth is concerned, are to be treated
like contracts between any two individuals.” So in re-
gard to contracts of promotors, if there are false repre-
sentations made in regard to material matters, the value
of the property, what has been paid for it, what it con-
tains, or what has been done upon it, those who have
been induced to become subscribers to the stock of the
company on the faith of these representations may have
the contract of subscription rescinded and recover back
what they have paid.’

In Densmore Oil Company v. Densmore,‘ Judge Shars-
wood examines the question of the relation of the
promotors of a company to those whom they seek to
associate with them, and he states that in the absence
of fraudulent misrepresentation on their part, they can
sell property which they own to the company, even
though they have procured it with the intention of selling
it to the company, at a price the company is willing to
pay for it, but after they have once become associated

1 See Wiley v. Brundred, 158 Pa. St. 579, where it is decided that the relation
of confidence does not continue after dissolution.

7L,R.2Ch. App. 604.

3 Boscher v. Richmond etc. Co., 89 Va. 455; Venezuela Rwy. Co. v. Kisch,
Rul. Cas., Vol. VI, p. 759, and Eng. and Am. notes, pp. 813-815. That with-
holding knowledge of ownership is misrepresentation on part of promotor, see
Pittsburg Min. Co. v. Spooner, 74 Wis. 307; Yale Gas Stove Co. v. Wilcox, 64
Conn. 101; Placquemines T. F. Co. v. Buck, 52 N. J. Fq. 219. That in the
absence of fraud, the fact that promotor sells at a profit is not misrepresen-
tation, see Burbank v. Dennis, 101 Cal. go.

4 64 Pa. St. 43.
174 LAW OF CONTRACTS.

with others in a company, then any profit they may
make by dealing with property of, or dealing for the
company in any way, properly belongs to the company.
However, both partnership contracts to take shares in
companies and contracts of promotors are all classed by
Pollock* as contracts of the uberrima fides class. Even
in this special class of cases, expressions of opinion, and
merely commendatory expressions, do not amount to such
representations as will, if untrue, in any way affect the
contract.

In Anderson v. The Pacific Insurance Co.,? it was held
in the case of marine insurance that where the captain
of the vessel had written the insurers that he had seen the
place to which the vessel was about to sail and that he
considered it quite a safe anchorage, it was held that this
was a mere expression and though it was not a safe
anchorage the insured was entitled to recover. In Dim-
mock v. Hallett,3 it was said that a statement in regard
to a piece of land which was about to be put up for sale,
that it was fertile and improved land, whereas a part of
it had been abandoned as useless, was not such a mis-
representation as would entitle the purchaser to be dis-
charged. It was said by the judge to bea mere flourishing
description. But a statement that a tenant is a desirable
tenant, when, as a matter of fact, his rent has been in
arrear and what had been obtained had been obtained
with difficulty, and he failed shortly afterward, was held
to entitle the purchaser to rescind.‘

In Fulton vw. Hood,5 it was held that it was no defence
to a bond given by a father, to prove that one of the
plaintiffs had said that he had authority to settle claims,

1* pp. 508 and 509.

71, R.7 CB. 65.

31, R. 2 Ch. App. 21.

‘Smith v. The Land & House Property Corporation, 28 Ch. D. 7.
5 34 Pa. St. 365.
REALITY OF CONSENT. 175

and that unless the bond was executed he would have
the defendant’s sons indicted for obtaining goods under
false pretences and send them to the penitentiary. It
comes close, however, to duress. At most it was the
expression of an opinion or the intention of what he
would do.

In Gordon wv. Butler,’ the plaintiff had purchased sand-
stone quarries from one of the defendants upon repre-
sentations made by the defendant, and certificates made
by the two other defendants that they believed their
value to be what was stated therein. The quarries did
not turn out anything like what the two defendants
stated they believed they were like. In an action of
fraudulent misrepresentation it was held that they were
not liable, it being a mere expression of opinion. A
strong instance of a case where the failure to disclose
material circumstances affects the contract, is that of
a contract of marriage. Here one would suppose there
ought to be the utmost good faith between the parties,
and yet concealment of prior insanity* or the conceal-
ment of an existing engagement to another person? have
been held not to be good defences for a refusal to carry
out a contract of marriage. But in Von Storch v. Griffin,*
it was held that the concealment by a woman of her
want of chastity was a defence to an action for a breach
of promise of marriage, though not a ground for divorce.

III. FraAvup.

Without attempting to define fraud, Mr. Anson in his
book on “ Contracts,’ 5 describes it as follows: ‘“‘ Fraud is
.a false representation of fact, made with a knowledge of

1105 U. S. 553.

2 Baker v. Cartright, 10 C. B., N.S. 124.
3 Beachey v..Brown, E., B. & E. 796.
477 Pa. St. 504.

5* p, 154.
176 LAW OF CONTRACTS.

its falsehood, or in reckless disregard whether it be true
or false, with the intention that it should be acted upon
by the complaining party, and actually inducing him to
act upon it,” whereby he is injured.

There is a -misrepresentation here by one party, made
with the knowledge that it is a misrepresentation, for
the purpose of inducing another party to act, and having
the effect of causing him to act to his damage.

z. In order to constitute fraud, there must be a repre-
sentation false tn rtself.

Mere non-disclosure, it is said, never constitutes a fraud
in itself ‘There must be a statement of something which,
taken in connection with that which is not disclosed, is
misleading and untrue.

In Peak v. Gurney,’ Lord Cairns states the rule as
follows: “‘ Mere non-disclosure of material facts, however
morally censurable, however that non-disclosure might
be a ground in a proper proceeding at a proper time for
setting aside an allotment or a purchase of shares, would
in my opinion form no ground for an action in the
nature of an action for misrepresentation. ‘There must,
in my opinion, be some active statement of fact, or, at
all events, such a partial and fragmentary statement of
fact, as that the withholding of that which is not stated
makes that which is stated absolutely false.

In Ward v. Hobbs, the defendant sent a lot of pigs
infected with some disease to a public market, the plain-
tiff bought them and took them home and his pigs took
the complaint; a good many of the pigs bought, and
some of the others, died. No representation was made,

1 Anson, * p. 154. See also Burt v. Mason, 97 Mich. 127.

2.,,R.6H. L. 377. See also Bliven v. Robinson, 83 Hun. 208; Fieseler v.
Stage, 86 Hun. 595; Pyroleum Appliance Co. v. Williamsport Hardware Co.,
(Pa.) 32 Atl. 458.

33 Q. B. D. 150.
REALITY OF CONSENT. 177

and in a suit it was held that the defendant was not
liable on the ground of fraudulent concealment. In this
case, however, the pigs were sold “with all faults.” In
Keates v. Lord Cadogan," the defendant was sued for
letting a house to the plaintiff which he knew to be re-
quired for immediate occupation, without disclosing that
it was in a ruinous condition. It was held that he could
not recover, as there was no warranty and no. fraud.
This case is generally followed in this country except .
where there is a nuisance on the premises, which it is
then the duty of the landlord to disclose. Minor v.
Sharon’ was the case of a house in which a family had
lived with the small-pox. It was afterward let by the
landlord without saying anything about the small-pox,
and the tenants caught it.

While mere non-disclosure does not amount to fraud,
except in the case of the purchase of goods with the
intention not to pay for them,’ it has been held that the
mere non-disclosure of insolvency alone does not amount
to fraud,‘ yet conduct as distinguished from mere passive
acquiescence may amount to a representation, as_ for
instance, the concealment, by tying him so that he could
not crib, of the fact that a horse was a cribber, though
nothing was said, was held to be fraud in Croyle wv.
Moses.°

But a mere failure to disclose a fact which, if falsely
stated would constitute fraud, does not render the con-
tract voidable.© In Smith v. Hughes,’ the law in regard
to concealment is quoted from Judge Story’s Book on

410 C. B. 591.

2112 Mass. 477.

3 Donaldson v. Farwell, 93 U. S. 631.

*Rodman v, Tahlheimer, 75 Pa. St. 232; Smith v. Smith, Murphy & Co., 21
Pa. St. 367. |

>go Pa. St. 250.

6 Laidlaw v. Organ, 2 Wheaton, 178; Allen v. Brooks, 88 Wis. 265.

TL. R. 6 Q. B. 597.

12
178 LAW OF CONTRACTS.

Contracts’ as follows: “The general rule, both of law
and equity, in respect to concealment, is that mere
silence in regard to a material fact, which there is no
legal obligation to divulge, will not avoid a contract, |
although it operate as an injury to the party from
whom it is concealed.” “Thus,” he goes on to say,
“although a vendor is bound to employ no artifice or
disguise for the purpose of concealing defects in the
articles sold, since that would amount to a positive
fraud on the vendee; yet under the general doctrine of
caveat emptor, he is not, ordinarily, bound to disclose
every defect of which he is cognizant, although his sil-
ence may operate virtually to deceive the vendee.”
“But,” he continues, “an improper concealment or
suppression of a material fact, which the party conceal-
ing is legally bound to disclose, and of which the other
party has a legal right to insist that he shall be in-
formed, is fraudulent, and will invalidate a contract.” ?
Further, distinguishing between extrinsic circumstances
affecting the value of the subject-matter of the sale, and
the concealment of intrinsic circumstances appertaining
to its nature, character and condition, he points out that
with reference to the latter the rule is “that mere sil-
ence as to anything which the other party might by
proper diligence have discovered and which is open to
his examination, is not fraudulent, unless a special trust
or confidence exists between the parties, or be implied
from the circumstances of the case.’ In the doctrine
thus laid down I entirely agree. (Cockburn, C.J.) A
person knowing there is a mine on another’s land, of
which the other is ignorant, may buy the land without
disclosing the fact.’

1p, 516.
2 See also Rison v. Newberry, 90 Va. 513; Spence v. Geilfuss, 89 Wis. 499.
3 Harris v. Tyson, 24 Pa. St. 349; Neill v. Shamburg, 158 Pa. St. 263.
REALITY OF CONSENT. 179

The representation must be a representation of fact,
not the expression of an opinion nor of an intention.
The cases on this point have already been cited under
the head of Misrepresentation.' False statements as to
value are immaterial,’ except where the parties have not
equal means of knowledge, or means are used to prevent
the discovery of the real value. In Fisher v. Warrall,*
there was an untrue statement in regard to an occult
quality of land. The cases of the purchase of goods
without any intention of paying for them, which is
spoken of as an exception to the rule that mere non-
disclosure does not amount to fraud, may really be.
treated as cases in which there is a positive false state-
ment, because if at the time the man buys and promises
to pay, he has not the intention of paying, he is at that
time making a false statement of his then present in-
tention.®

Nor will a misrepresentation as to matter of Jaw affect
the contract,° but in Herschfield v. Railway Company’ a
man had been induced by the agent of the Railway
Company to execute two releases of any claim for dam-
ages upon two representations; one that his injuries
were trivial and the other that if they were not trivial
the giving of the releases would not prevent his recover-
ing damages. In a suit subsequently brought by him
against the railway company, the releases were set up

1See also Johanson v. Stephenson, 154 U. S. 625; Day w. Ft. Scott Inv. &
Imp. Co., 153 Ill. 293; Mudsill Mining Co. v. Watrous, 9 C. C. A. 415, 61 Fed.
163; Reeves v. Corning, 51 Fed. 774; Cummings v. Cass, 52 N. J. L. 77; Coulan
v. Roemer, 52 N. J. L. 53. :

2Graham v. Pancoast, 30 Pa. St. 89; Bement & Sons vw. Dow, 66 Fed.
185; Conly v. Coffin, 115 N. C. 563; Dean v. Brooks, 88 Wis., 667; Walker vz.
Cosgrain, 101 Mich. 604.

3 Bower v. Fenn, 90 Pa. St. 359. See Prewett v. Trimble, 92 Ky. 176.

45 W. &S. 478.

5 See analogous case, Mott v. Mott, 49 N. J. Eq. 192.

6 See Anson on Contracts, 8th ed., p. 207, note I.
+2 Q. B. Div. 1
180 LAW OF CONTRACTS.

as defences, and it was held: First, that the defence was
met by proof that the representation in regard to the
character of the injuries was a fraudulent one; secondly,
that it was said that there was no reason why the mis-
representation as to the effect of the deed of release
might not be a reply to the defence.

In this country, however, the rule is that misrepre-
sentation of law, or of the legal effect of a contract will
not sustain an action of deceit or justify a rescission
of the contract except where there is some relation of
confidence, or one party, by reason of ignorance or un-
familiarity with business, relies upon the other party
and is overreached.’

2. The representation must be knowingly false, or must
be made with a adtsregard of the truth.’

The cases on this point also have been cited under
the head of Misrepresentation. I may, however, add the
case of Cox v. Highley,? in which it is said that if the
defendant honestly believed that his representation was
true, an action of deceit will not lie. A man need not
have a dishonest motive in order to make himself liable
in an action of deceit. If he makes a false statement
knowingly, with the intention of inducing another to
act, and the other does act, even if he does so with the
best intentions in the world, he is liable in an action of -
deceit.

In Polhill v. Walter,’ the defendant accepted a bill
of exchange drawn on another person. He represented

1Upton v. Tribileock, 91 U. S. 45.

2Chatham Furnace Co. v. Moffatt, 147 Mass. 403; Bullitt v. Farrar, 42 Minn.
8. Also Anson on Contracts, 8th ed., p. 203, n. 2. ;

3100 Pa. St. 249. See also Western Union Tel. Co. v. Allen, 66 Miss. 549.
But see Florida v. Morrison, 44 Mo. App. 529.

4 Judd v. Weber, 55 Conn. 267.

5Polhell v. Walter, 3 B. & Ad. 113.
REALITY OF CONSENT. 181

himself to have authority from the other to accept the
bill, and believed that the acceptance would be sanctioned
and the bill paid by the person for whom he pro-
fessed to act. He knew, though, that at that time he
had no authority, and he was held liable in an action of
deceit.

3. A’representation must be made with an intention that
zt should be acted upon by the other party.

A statement need not be made to the injured party.
In Langridge wv. Levy,’ the defendant sold to the
plaintiff’s father a gun, as a good, secure and safe gun
of Knock make. The plaintiff used the gun and it
bursted and turned out not to be a good gun and not
to have been made by Knock. Suit was brought and
the defendant defended on the ground that the repre.
sentation was not made to the plaintiff but was made
to the plaintiff’s father. The Court held that the plaintiff
‘was entitled to recover; that there was fraud and damage,
the result of that fraud from an act contemplated by the
party at the time, and that the defendant was therefore
responsible to the plaintiff.

But while the statement need not be made to the
party who is injured, it must have been made with the
intention that it should be acted upon by a third person
in the way in which it is acted on to cause an injury,
and the injury must be the immediate and not the remote
effect; therefore it was held, in Peck v. Gurney,’ that
where there were false representations in a prospectus,
and there had been a transfer of shares from the origi-
nal allottee, the subscriber for such purchaser could not
‘avail himself of that statement because the purpose of
the prospectus was to induce original subscriptions and

' 12M. & W, 519.
2. R. 6H. L. 377.
182 LAW OF CONTRACTS.

not to help those who originally subscribed to sell their
shares to others afterward.

4. The representation must be made by the party to the
contract.

Where made by his agent, it is as if made by him.
The principal cannot accept the benefit of the contract
without the burden of the agent’s fraud." So in the case
of a sale of infected sheep, a subsequent purchaser to
whom, as agent of the original buyer, the false state-
ment was made, cannot maintain an action.”

5. Lhe representation must actually decetve.

In Ming v. Woolfolk,? where the defendant had altered
his position after hearing a false statement, but not in
consequence of having heard it, an action by him for
making a false statement was held not to lie.

A curious instance of this rule, and an extreme one,
is the case of Horsfall v. Thomas.* In this case the
defendant bought a cannon but bought it without any
inspection at all. The cannon had a hole in it which
the defendant plugged up; when the plaintiff fired it
off it burst. The plaintiff sued the defendant on a bill
of exchange given for the price of the cannon and it
was held that the plaintiff had not been deceived by the
defendant’s fraud.

1Jones v. Building Association, 94 Pa. St. 215. Also Wendstrom C. D. & M.
Co. v. Pumell, 75 Md. 113; Fieseler v. Stege, 86 Hun. 595.

2 Wells v. Cook, 16 Ohio St. 67.

3116 U.S. 599. See also Smith v. Smith, 134 N. Y. 62; Pearce v. Buell, 22
Or. 29; Gotcher v. Haeffner, 107 Mo. 270.

41H. & C. 90.

5 The plaintiff must not only have been misled, but must have been misled to
his prejudice or injury. Schubart v. Chicago Gas Light & Coke Co., 41 Ill.
App. 181. Also Olson v. Scott, 1 Colo. App. 94; Ritter v. Devine, 80 Hun. 303;
Hewlett wv. Saratoga Carlsbad Spring Co., 84 Hun. 248; Sheldon v. Davidson,
85 Wis. 138.
REALITY OF CONSENT. 183

In the case of an active misrepresentation it is no
answer, either in proceeding for damages or for setting
aside the contract, to say that the party complaining
of the misrepresentation had means of making inquiries.’

In the Central Railroad Co. of Venezuela v. Kisch,?
Lord Chesterfield said, ‘‘ When it is once established that
there has been any fraudulent misrepresentation or willful
concealment by which a person is induced to enter into a
contract, it is no answer to his claim to be relieved from
it to tell him that he might have known the truth by
proper inquiry. He has the right to retort upon his
objector, ‘You, at least, who have said what is untrue,
or have concealed the truth, for the purpose of drawing
me into a contract, cannot accuse me of want of caution
because I relied implicitly upon your fairness and
honesty.’”” As to the materiality of the statement, the
Court will presume that the party to whom the statement
was made acted on the faith of the statement, if it be
of such a nature as would induce a person to enter into
a contract, or would be a part of the inducement: Per
Jessel, in Smith v. Chadwick.

Where there has been a fraud, the person who has been
misled may affirm the contract, if he see fit, and sue for .
damages because it was a fraud,* or he may rescind the con-
tract, return the property, if he do so promptly, and refuse
to pay for it, or if he has paid, recover back the amount.

Rescission.

The right of the defrauded party to rescind is a
right which when he once elects to avail himself of is

1Nearen v. Bakewell, 110 Mo. 645; Brotherton v. Reynolds, 164 Pa. St. 134.
But see Lewis v. Brookdale Land Co. 124 Mo. 673.

2L,R. 2H. L. 99.

S5L,. R. 20 Ch. D. 27. See also Carlton v. Hulett, 49 Minn. 308; Warren wv.
Richie, (Mo.) 30 S. W. 1023; Wilson v. Carpenter's Adm’r, (Va.) 21 S. E. 243.

* Houldsworth v. City of Glasgow Bank, 5 App. Cases 317.
I

184 LAW OF CONTRACTS.

final. It is a right which may be lost by such a change
in the position of the parties that the former state cannot
be restored. It is a right which may be lost by waiting
until rights have accrued to innocent third parties, or it
may be lost by lapse of time.

1. The election once made is final. In Clough wv. The
London & Northwestern Railway Company,’ the Court
said: “ And we further agree that the contract continues
valid till the party defrauded has determined his election
by avoiding it.? And, as is stated in Com. Dig. Election, C.
2, if a man once determines his election it shall be deter-
mined forever; and, as is also stated in Com. Dig. Elec-
tion, C.1, the determination of a man’s election shall be
» made by express words or by act. And, consequently, we
agree with what seems to be the opinion of all the judges
below, that if it can be shown that the London Piano-forte
Company have at any time after knowledge of the
fraud, either by express words or by unequivocal acts,
-affirmed the contract, their election has been determined
forever. But we differ from them in this, that we think
that the party defrauded may keep the question open so
long as he does nothing to affirm the contract. The
principle is precisely the same as that on which it is
held that the landlord may elect to avoid a lease and
bring ejectment, when his tenant has committed a for-
feiture. If with knowledge of the forfeiture, by the
receipt of rent or other unequivocal act, he shows his
intention to treat the lease as subsisting, he has de-
termined his election forever, and can no longer avoid
the lease. On the other hand, if by bringing ejectment
he unequivocally shows his intention to treat the lease
as void, he has determined his election, and cannot

1L,. R. 7 Exch. 26.
2 Knappen v. Freeman, 47 Minn. 491; Armstrong v. Helfrich, 34 | Neb. 358;
Crooks v. Nippolt, 44 Minn. 239; Bach wv. Tuch, 126 N. Y. 53.
REALITY OF CONSENT. 185

afterward waive the forfeiture: Jones v. Carter, 15 M. &
Wi. 71s?

Where the election is to rescind, there should be
“prompt repudiation and restitution, as far as possible ;”
per Bramwell, J., in Bwlch-y-plwm Lead Mining Com-
pany v. Baynes.’

2. Where the party who has made the misrepresenta-
tion has acted in such a way that a rescission of the contract
would work him great mischief, the right to rescind is lost.’
This must be taken with the qualification, however,
that what has been done by the party who committed
the fraud must have been induced by either the acts or
the acquiescence of the defrauded party, that is, the de-
frauded party must have stood by and seen him do acts
which would make it inequitable to allow the contract
to be rescinded; or the interest which the misled party
acquired may have so changed that he cannot give the
same thing back he received.

In the case of Clarke wv. Dickson e¢ als, the plaintiff
had taken shares in a Cost-book Mining Company. ‘The
company was subsequently changed by an Act of
Parliament into a joint stock company and was then
wound up. At this time the plaintiff discovered that
the representations, on the faith of which he had
purchased his shares, were fraudulent, but it was too
late to rescind the contract because the only shares he
could return were shares in a different company. His
remedy was by an action for deceit against the directors,
which he adopted successfully.’

1, R.2 Exch. 324; Balue v. Taylor, 136 Ind. 368; Lyle v. Shay, 165 Pa. St. 637.

2Nalle v, Railroad Co., 88 Va. 948; Rigdon v. Walcott, 141 Ill. 649; Carlton
v. Hulett, 49 Minn. 308; Goodrich v. Lathrop, 94 Cal. 56; Dotterer z. Freeman,
88 Ga. 479; Henninger v. Heald (N. J. Ch.), 29 Atl. 190; Aultman & Co. wv.
Withrow, 48 Ill. App. 492; Lurch v. Holder (N. J. Ch.), 27 Atl. 81; Alexander
wv. Donohoe, 143 N. Y. 203; Marston v. Singapore Rattan Co. (Mass.), 39 N. E. 113.

3B. B. & BE, (96 BE. C. L. R.) 148. :

4See Clarke v. Dickson, 6 C. B. N. S. 453.
186 LAW OF CONTRACTS.

3. The contract cannot be rescinded after a third party
has acquired rights under it for value. So that a pur-

chaser in good faith from a fraudulent buyer gets a good
title."

4. The contract must be rescinded within a reasonable
time. The time for rescission must be so long that the-

other party to the contract would be justified in believing
that the party who had been misled has elected not to.
rescind the contract.’

Length of time alone is not a reason for denying the
right to avoid a contract for fraud or for any other
ground for which it can be avoided, but it is evidence
of an acquiescence in the contract, such that an assent:
to it may be reasonably inferred. But even in such a
case, if the defrauding party has not done anything in
consequence of the acquiescence of the other party, a.
lapse of time short of the period limited by the statute
of limitations ought not to take away the right of action.

The opinion in the case of De Bussche v. Alt,3 is as:
follows: “The term ‘acquiescence,’ which has been applied
to his conduct, is one which was said by Lord Cottenham
in the Duke of Leeds v. Earl Amherst (2 Ph. 117, 123)
ought not to be used; in other words, it does not
accurately express any known legal defence, but if used.
at all it must have attached to it a very different
signification, according to whether the acquiescence
alleged occurs while the act acquiesced in is in progress.
or only after it has been completed. If a person having

1Sinclair v. Healy, 4o Pa. St. 417; Dixon v. Wilmington Savings & Trust Co.,
115 N. C. 274; Rapps v. Gottlieb, 142 N. Y. 164; Destra v. Kestner, 147 Pa. St.
a Taylor v, Short, 107 Mo. 384; Rugan v. Sabin, 53 Fed. 415, 3 C. C. A. 578,
1o U. S. App. 519; Bedier v Reaume, 95 Mich. 518; Parsons v. McKinley, 56.
Minn. 464; Scheftel v. Hays, 58 Fed. 457; Watts v. British & Am. Mtge. Co., 60.
Fed. 483; E. Bement & Sons v. La Dow, 66 Fed. 185; Temple Nat. Bank w

Warner (Tex.), 31 S. W. 239.
31, R. 8 Ch. Div. 286.

\
REALITY OF CONSENT. 187

a right, and seeing another person about to commit, or
in the course of committing an act infringing upon that
right, stands in such a manner as really to induce the
person committing the act, and who might otherwise
have abstained from it, to believe that he assents to its
being committed, he cannot afterward be heard to
complain of the act. This, as Lord Cottenham said in
the case already cited, is the proper sense of the term
‘acquiesced,’ and in that sense may be defined as acqui-
escence under such circumstances as that the assent
may be reasonably inferred from it, and is no more
than an instance of the law of estoppel by words or
conduct. But when once the act is completed without
any knowledge or assent upon the part of the person
whose right is infringed, the matter is to be determined
upon very different legal considerations. A right of
action has then vested in him which, at all events as
a general rule, cannot be divested without accord and
satisfaction, or release under seal. Mere submission to
the injury for any time short of the period limited by
statute for the enforcement of the right of action cannot
‘take away such right, although under the name of
laches it may afford a ground for refusing relief under
some particular circumstances; and it is clear that even
an express promise by the person injured that he would
not take any legal proceeding to redress the injury
done to him could not by itself constitute a bar to. such
proceedings, for the promise would be without considera-
tion, and therefore not binding.”

This distinction, however, does not seem to be recog-
nized in Pennsylvania. In Leaming wv. Wise,’ it was
held that a delay of four months in repudiating a
purchase of oil stock, was an unreasonable delay, and
stood in the way of the plaintiff’s right to rescind the

173 Pa. St. 173
188 LAW OF CONTRACTS.

contract. Ina later case, Davis v. Stuard,’ the Court say
that where the facts are disputed, what is a reasonable
delay is a question for the jury, and that a delay of a
little less than six years “would bear” against the
plaintiff.

IV. DurEss.

Where the consent of one of the parties to a contract
is not free, the contract is voidable at the option of the
party whose consent is so obtained.? At common law
the coercion may consist in duress or the threat of
it. The duress consists in: (1) The unlawful im-
prisonment of a party, or the husband or wife, parent
or child, of such party;* (2) The imprisonment of
such a person procured through the abuse of lawful
process or made unjustly oppressive; (3) Unlawful
and great bodily harm to such person; (4) Unlawful
seizure, destruction or detention of the property of such
person.

The imprisonment must be unlawful. A lawful im-
prisonment is not duress.’ So that an agreement made
in consideration of a release from a lawful imprisonment
is not voidable.© But a lawful imprisonment procured
by an abuse of process, or threatened to be procured in
such way, is duress.

In Work’s Appeal,’ a husband procured the execution
of an assignment by his wife by arresting her under a

199 Pa. St. 295.

? Pollock, * p. §53. Commercial Nat. Bank v. Wheelock, 4o N. E. 636; Miller

v. Miner Lumber Co., 98 Mich. 163; Morse v Woodworth, 155 Mass. 233;
Morrill v. Nightingale, 93 Cal. 452.

3 Bacon’s Abr., Duress, B.

‘Benjamin on Contracts, p. 78.

5 Shep. Touch. 62. .

6 Kelsey v. Hobby & Bond, 16 Peters 269; Mascolo v. Montesanto, 61 Conn. 50;
Gregor v. Hyde, 62 Fed. 107.

759 Pa. St. 444.
REALITY OF CONSENT. 189

trumped up charge of theft. In Jordan v. Elliott,’
a woman signed a judgment note under a threat
that her son would be imprisoned. This case followed
Williams v. Bayley,’ where the rigor of the old common
law rule was relaxed and the more sensible rule.
adopted, that where the person, as a matter of fact, was
not a free and voluntary agent owing to his condi-
tion of mind induced by threats, his contract was not
binding.

If the imprisonment is unlawful it amounts to duress.?
So where there is a threat of great bodily harm, this
amounts to duress. Brown vz. Pierce, was a case where
a man in Nebraska who had lawfully entered on land
was compelled, by a threat of the Omaha Claims Club.
that they would take his life, to convey the property.
The deed was set aside and the following opinion given
by Judge Clifford: “ Actual violence is not necessary to
constitute duress, even at common law, as understood in
the parent country, because consent is the very essence
of a contract, and, if there be compulsion, there is no
actual consent, and moral compulsion, such as that pro-
duced by threats to take life or to inflict great bodily
harm, as well as that produced by imprisonment, is
everywhere regarded as sufficient, in law, to destroy
free agency, without which there can be no contract,
because, in that state of the case, there is no consent.” >

“Duress, in its more extended sense, means that
degree of constraint or danger, either actually inflicted
or threatened and impending, which is sufficient, in

122 Am. Law Reg. N S., 180 (12 W.'N. C. 56); Note by Mr. Ewell. See also
Bryant v. Peck & Whipple Co., 154 Mass. 460; Western Ave. Bldg. Ass'n v.
Walters, 7 Ohio Circ. Ct. R. 202; Bradley v. Irish, 42 Ill. App. 85; Merchant v.
Cook, 21 D. C. 145; Beindorff v. Kaufman, 41 Neb. 824.

'..R. 1H... 200. See also McClair v. Wilson, 18 Colo. 82.

3 Cumming v. Ince, 11 Q. B. 112 (63 E.C. L. R. 112),

47 Wall. 205.

6 Schoelhamer v. Rometsch (Or.), 38 Pac. 344.
190 LAW OF CONTRACTS.

severity or in apprehension, to overcome the mind and
will of a person of ordinary firmness.’

“Text-writers usually divide the subject into two
classes, namely, duress fer mznas and duress of imprison-
ment, and that classification was uniformly adopted in
the early history of the common law, and is generally
preserved in the decisions of the English Courts to the
present time.

‘“Where there is an arrest for an improper purpose,
without just cause, or where there is an arrest for a just
cause, but without lawful authority, or for a just cause,
but for an unlawful purpose, even though under proper
process, it may be construed as duress of imprisonment ;
and if the person arrested execute a contract to pay
money for his release, he may avoid the contract as one
procured by duress, or may recover back the money in
an action for money had and received.’

‘Second class, duress per mznas, as defined at common
law, is where the party enters into a contract: (1) For
fear of loss of life; (2) For fear of loss of limbs; (3)
For fear of mayhem; (4) For fear of imprisonment,’ and
many modern decisions of the Courts of this country
still restrict the operations of the rule within these
limits.

“They deny that contracts procured by menace of a
mere battery to the person, or trespass to lands, or loss
of goods, can be avoided on that account, and the reason
assigned for this qualification of the rule is, that such
threats are held not to be of a nature to overcome the

' Morse v. Woodworth, 155 Mass. 233; Young v. Quinn, 41 Ill. App. 28; Ren-
dleman v. Rendleman, (Ill.) 41 N. E. 223; Jewelers’ League v. De Forest, 80
Hun. 376; Baldwin v. Hutchinson, 8 Ind. App. 454.

? Morrill v. Nightingale, 93'Cal. 452; Lazzarone v. Oishei, 21 N. Y. Sup. 267,
2 Misc. Rep. 200; Behl v. Schnett, 88 Wis. 471; Hunt v. Hunt, 94 Ga. 257.

3 Cribbs v. Sowle, 87 Mich. 340; Small v. Williams, 87 Ga. 681; Springfield
Fire & Marine Ins. Co. v. Hull, (Ohio) 37 N. E. 1116; Hamilton v. Lockhart,
158 Pa. St. 452.
REALITY OF CONSENT. 19I

mind and will of a firm and prudent man, because it is
said if such an injury is inflicted, sufficient and adequate
redress may be obtained in a suit at law.

“Cases to the same effect may be found also in thé
‘reports of decisions in this country, and some of our
text-writers have adopted the rule, that it is only where
‘the threats uttered excite fear of death, or of great bodily
‘harm, or unlawful imprisonment, that a contract, so pro-
‘cured, can be avoided, because, as such Courts and authors
‘say, the person threatened with slight injury to the per-
‘son, or with loss of property,’ ought to have sufficient
‘resolution to resist such a threat, and to rely upon the
law for his remedy.

“On the other hand, there are many American deci-
‘sions, of high authority, which adopt a more liberal rule,
and -hold that contracts procured by threats of battery
‘to the person, or the destruction of property, may be
avoided on the ground of duress, because in such a case
there is nothing but the form of contract, without the
‘substance.”

See also Baker v. Morton” and United States v. Hucka-
‘bee,? where it was held that the sale of a factory to the
‘Confederate Government when the vendors had the option -
to sell or make goods at a ruinous rate, was not duress.
Both opinions are by the same judge, who gave the
‘opinion in Brown v. Pierce. These cases show a dispo- ©
sition to give a broader application to the doctrine of
duress by threats. They adopt the rule laid down by
Mr. Philips in an article in the Amercian Law Register
entitled, ‘What Amounts to Duress Per Minas at Law,’*
which is as follows: “ Any unlawful threats amount to
duress per minas, sufficient to avoid a contract or agree-

1Dausch v, Crane, 109 Mo. 323.
212 Wall. 150-6.

316 Wall. 414.

414 Am. Law Reg. N. S. 201.
192 LAW OF CONTRACTS.

ment, if such contract or agreement, would not have
been entered into if the threats had not been used.’’*

The broader rule is recognized in Miller v. Miller,?
though the facts—threats to turn a woman out of a
house—were held not to be sufficient to go to the jury
to establish duress, and in Motz v. Mitchell,3 where the
threatened destruction of a deed was held to amount to
duress. It will be observed that the duress in this case
consisted of the detention and threatened destruction of
personal property, a deed.

At common law, it is said, there is no such thing as
duress of goods. But while this rule is announced, it
is also held that money paid under “circumstances of
practical compulsion, though not amounting to duress,
may be recovered back.” 5 ‘The rule is very well expressed
in Swift Company v. United States,° where a watch com-
pany who were entitled to be paid a commission in cash
on the amount of stamps purchased by them were com-
pelled by the internal revenue debt to take stamps in
lieu of cash. They sued to recover the difference. Mat-
thews, J., said: “‘ Money paid or other value parted with,
under such pressure, has never been regarded as a volun-
tary act within the meaning of the maxim, volentz non fit
anjurta: ‘In Close v. Phipps, 7 M. & Gr. 586 (49 E. C.
L. R.), which was a case of money paid in excess of what
was due in order to prevent a threatened sale of mortgaged
property, Tindal, C. J., said: ‘The interest of the plaintiff
to prevent the sale, by submitting to the demand, was
so great, that it may well be said that the payment was

1Landa v, Obert, 5 Tex. Cin. App. 620.

768 Pa, St. 486.

or Pa. St. 114.

‘ Atlee v. Backhouse, 3 M. & W. 633; Anson on Contracts, * p. 164; Pollock,
* p. 554, and cases cited in note d.

5 Pollock, * p. 555.

®r11 U. S. 22,
REALITY OF CONSENT. 193

made under what the law calls a species of duress.’*
And in Parker v. Western Railway Company, 7 M. & Gr.
253, the wholesome principle was recognized that pay-
ments made to a common carrier to induce it to do what
by law, without them, it was bound to do, were not vol-
untary, and might be recovered back. Illegal interest,
paid as a condition to redeem pawn, was held in Astley
v. Reynolds, 2 Stra. 915, to be a payment by compulsion.
This case was followed, after a satisfactory review of the
authorities, in Tutt v. Ide, 3 Blatch. 249; and in Ogden
v. Maxwell, 3 Blatch. 319, it was held that illegal fees
exacted by a collector, though sanctioned by long con-
tinued usage and practice in the office, under a mistaken
construction of the statute, even when paid without
protest, might be recovered back, on the ground that the
payment was compulsory and not voluntary. And in
Maxwell v. Griswold, 10 Howard 242, 256, it was said
by this Court: ‘Now it can hardly be meant, in this
class of cases, that to make a payment involuntary, it
should be by actual violence or any physical duress.
It suffices, if the payment is caused on the one part by
an illegal demand, and made on the other part reluc-
tantly, and in consequence of that illegality, and without
being able to regain possession of his property, except
by submitting to the payment.’ To the same effect are
the American Steamship Company v. Young, 15 Gray 471;
Carew v. Rutherford, 106 Mass. 1; Preston v. Boston, 12
Pickering 7.4 In Beckwith vw. Frisbie, 32 Vt. 559-566,
it was said: ‘To make the payment a voluntary one,

1 See also Newman v. Curiel, 75 Hun. 31.

2 Also Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210; Baldwin v. Sullivan
Timber Co., 65 Hun. 625.

3 See also, excessive payments made under a threat to file a mechanic’s lien,
Gates v. Dundon, 18 N. Y. Sup. 149.

* Also Lonergan v. Buford, 145 U. S. 581; Fuller v. Roberts (Fla.), 17 So. 359;
Tolhurst v. Powers, 133 N. Y. 460.

13
194 LAW OF CONTRACTS.

the parties should stand on equal footing.’ Ifa person
illegally claims a fee colore offic, the payment is not
voluntary so as to preclude the party from recovering
it back. Morgan wv. Palmer, 2 B. & C. 729." In Steel v.
Williams, 8 Exch. 625, Martin, J., said: ‘If a statute
prescribes certain fees for certain services, and a party
assuming to act under it insists upon having more, the
payment cannot be said to be voluntary.’ ‘The common
principle,’ says Mr. Pollock, Principles of Contracts, 523,
‘is, that if a man chooses to give away his money, or
to take his chances whether he is giving it away or
not, he cannot afterward change his mind; but it is open
to him to show that he supposed the facts to be other-
wise, or that he really had no choice.’ Addison on
Contracts, p. 1043; Alton v. Durant, 2 Strobh. 257.” ?
This case states the principle and gives instances of its
application.

In White v. Heyhnan,? the rule was applied in a case
where money had been paid to obtain the assignment of
a patent fraudulently taken out by the defendant.

The limitation of the rule is well stated in Radich »z.
Hutchins,‘ as follows:

“To constitute the coercion of duress which will be
regarded as sufficient to make a payment involuntary,—
.treating now the redemption of the cotton as made in
money, goods being taken as equivalent for a part of
the amount,—-there must be some actual or threat-
ened exercise of power possessed, or believed to be pos-
sessed by the party exacting or receiving the payment
over the person or property of another, from which the
latter has no other means of immediate relief than by

1 Van Dusen v. King (Utah), 64 N. W. 9.

2 Sornborger v. Lanford, 34 Neb. 498; Foerster v. Squier, 19 N. Y. Sup. 367;
Miller v. Miner Lumber Co., 98 Mich. 163.

_ 334 Pa. St. 142.
“#95 U. S. 213.
REALITY OF CONSENT. 195

making the payment. As stated by the Court of Ap-
peals of Maryland, the doctrine established by the
authorities is, ‘that a payment is not to be regarded as com-
pulsory, unless made to emancipate a person or property
from an actual and existing duress imposed upon it by
the party to whom the money is paid.’ Mayor and City
Council of Baltimore v. Lefferman, 4 Gill (Md.) 425;
Brumagin v. Tillinghast, 18 Cal. 265; Mays w. Cincin-
nati, 1 Ohio 268.” *

Te this case of Radich v. Hutchins the plaintiff had
paid money to certain Confederate officials to obtain the
telease of cotton which he had deposited in compliance
with a notice stating that cotton would only be exported
if such deposit was made. So money paid to release
goods from an unfounded attachment may be recovered
back.”

Mr. Pollock explains all these cases as cases where
payment has been made without consideration, and the
coercion is only evidence that the payment was not a
gift. The cases are collected in the note to Marriott v.
Hampton,? where the general principle under which
they all fall is quoted from Lord Mansfield’s decision in
Moses v. Macfarlane,‘ as follows: ‘“ This kind of equita-
ble action,” said his lordship, “to recover back money
which ought not in justice to be kept, is very bene-
ficial, and therefore much encouraged. It lies only for
money which ex aeguo et bono, the defendant ought to
refund. It does not lie for money paid by the plaintiff
which is claimed of him as payable in point of honor
and honesty, although it could not have been recovered
from him in any course of law, as in payment of a

1 McCormick v. Dalton, 53 Kan. 146.

Chandler v. Sanger, 114 Mass. 364. See also Gates v. Dundon, 28 N. Y.
Sup. 149.
' 82 Smith’s Leading Cases, p. 421.

42 Burrows, I009.
196 LAW OF CONTRACTS.

debt barred by the Statute of Limitations, or con-
tracted during his infancy, or to the extent of principal
and legal interest upon a usurious contract, or for money
fairly lost at play ; because in all these cases, the defend-
ant may retain it with a safe conscience, though, by
positive law, he was barred from recovering; but it lies
for money paid by mistake, or upon a consideration
which happens to fail, or for money got through imposi-
tion, or extortion or oppression, or an undue advantage
taken of the party’s situation contrary to laws made for
the protection of persons under those circumstances.”

In the case of unlawful detention of property, if there
is no danger to the personal liberty or security of the
owner and no threat of injury to person or property, the
payment of money merely as a matter of convenience
to avoid litigation, the right of detention in the first instance
is not a payment under duress.’

If the question can be legally tried before the goods
can be taken, a payment under a detention or threat of
detention or destruction of goods is not a payment prac-
tically compulsory. In order to be that, it must be a
case where the owner has no chance to be heard before
his property is gone.

V. UNDUE INFLUENCE.

Any influence brought to bear upon a person entering
into an agreement, or consenting to a disposal of property,
which, having regard to the age and capacity of the
party, the nature of the transaction, and all the circum-
stances of the case, appears to have been such as to
preclude the exercise of a free and deliberate judgment, is
considered by Courts of Equity to be wndue influence,

1Silliman v. U. S., 101 U. S. 465-471; Heysham v. Dettree, 89 Pa. St. 506;

Doyle v. Rector, etc., of Trinity Church, 133 N. Y. 372; McClair v. Wilson, 18
Colo, 82; Perryman v. Pope, 94 Ga. 672; Phillips v. Henry, 160 Pa. St. 24.
REALITY OF CONSENT. 197

and is a ground for setting aside the act procured by its
employment.”

This relation may be (1) proved to exist, or (2) it may
be “ presumed to exist where the relations of the parties are
such that the Court presumes confidence and influence
exerted.”

In Smith v. Kay,? Lord Kingsdown thus states the
doctrine in equity : “It is not the relation of solicitor and
client, or of trustee and cestuz gue trust, which constitutes
the sole title to relief in these cases, and which imposes
upon those who obtain stich securities as these, the duty
before they obtain their confirmation, of making a free
disclosure of every circumstance which it is important that
the individual who is called upon for the confirmation,
should be apprised of. The principle applies to every
case where influence is acquired and abused, where confi-
dence is reposed and betrayed. The relations with which
the Court of Equity most ordinarily deals, are those of
trustee and cestuz gue trust, and such like. It applies
specially to those cases, for this reason and this reason
only, that from those relations the Court presumes confi-
dence put and influence exerted. Whereas in all other
cases where those relations do not subsist, the confidence
and the influence must be proved extrinsically; but
where they are proved extrinsically, the rules of reason
and common sense, and the technical rules of a court
of equity, are just as applicable in the one case as in
the other.”

It is suggested by Mr. Pollock’ that if the circum-
stances were fully brought out they would constitute
fraud, but that undue influence means an influence in
the nature of fraud and compulsion, the exercise of

1Pollock, * page 557.
27H. L. C. 750.
5 * page 557.
198 LAW OF CONTRACTS.

which is not proved in the particular case, but is in-
ferred in a court of equity from an existing relation of
dominion on the one part and submission on the other.
So that an habitual influence being established either
by proof or by presumption, from the relations of the
parties, its exercise in the present case is presumed,
and wherever such a commanding influence is shown to
exist in a person, he must rebut the presumption that
any benefit conferred upon him has been procured by
the exercise of that influence."

This is illustrated in the class of cases which arise
very frequently, in which parties who have been in-
strumental in preparing and obtaining a will take a
benefit under it, and the rule is thus expressed by Lord
Heatherley, in Fulton v. Andrew. After stating that it
is enough for an ordinary legatee to prove that the will
was read over to the testator, and that he was of sound
mind and memory and capable of comprehending it, he
adds: “ But there is a further ozws upon those who take
for their own benefit, after having been instrumental
in preparing or obtaining a will. They have thrown
upon them the ozus of showing the righteousness of the
transaction.”? So in Boyd v. Boyd,‘ Judge Sharswood
says: “Undue influence is very nearly allied to fraud,
yet it may be true that they are not identical, so that
while undue influence comprehends fraud—fraud by
no means embraces every species of undue influence:
Redfield on Will, 510, ~. A person, for a very disin-
terested purpose, and because he sincerely believes
that it is the duty of a testator to make a will of a

1Barnard v. Gantz, 1440 N. VY. 249; Hall v. Hall, 41 S. C. 163; Lind v. Lin-
hardt, (Mo.) 29S. W. 1025; Carter v. West, 93 Ky. 211; Jackson v. Tatebo, 3
Wash. St. 456; Darlington’s App., 30 W. N. C. 15.

21, R. 7H. L. 472.

3Corrigan v. Pironi, 48 N. J. Eq. 607.
166 Pa. St. 283.
REALITY OF CONSENT. 199

particular character, may carry his persuasion and influ-
ence beyond that point which is legitimate. Yet it
would hardly deserve so harsh a name as fraud. But
where the end and purpose of the influence is the benfit of
the party employing it, it is not easy to distinguish and
save it from that imputation. Hence, when the party
upon whom rests the charge, derives none, or a very
inconsiderable benefit from the will, there must un-
doubtedly be evidence of direct influence exerted at the
time of making the will; such as in effect to destroy the
free agency of the testator: Eckert v. Flowry, 7 Wright
46. But where, being an entire stranger—having no
claims from lawful relationship—he derives a very con-
siderable benefit from the act, such direct proof ought
not to be, and is not required: Such was the case of
Dean v. Negley, 5 Wright 312. General evidence of
power exercised over the testator, especially if he be of com-
paratively weak mind, from age or bodily infirmity, though
not to such an extent as to destroy testamentary capacity,
will be enough to raise a presumption, which ought to be
met and overcome, before such a will can be established.
Particularly ought this to be the rule where the party
to be benefited stands in a confidential relation to the
testator. ‘Where the party,’ says Mr. Redfield, ‘to be
benefited by the will has a controlling agency in procur-
ing its formal execution, it is universally regarded as a
very suspicious circumstance, and one requiring the
fullest explanation. Thus, where a will was written by
an attorney or solicitor, who is to be benefited by its
provisions, it was considered that this circumstance should
excite stricter scrutiny, and required cleverer proof of
capacity, and the free exercise of voluntary choice:’
Redfield on Wills 515, citing Duffield v. Robeson, 2
Harring 384. Undoubtedly if the counsel of an old
man whose mental faculties are impaired, though not
200 LAW OF CONTRACTS.

destroyed by advanced age, should draw for him a will
giving to himself the bulk of his estate, or a very con-
siderable part of it, it would not be enough to show the
formal execution of the paper, in the presence of two
subscribing witnesses called in for that purpose. He
must go further, and rebut the presumption by some
evidence that the disposition made was the exercise of
the free will of the testator. ‘The existence of the fidu-
ciary relation,’ says Mr. Redfield, ‘does not annul the
testamentary act in favor of the attorney by his client;
but such fact calls for watchfulness, lest some improper
influence may have been exercised. There should be
very clear evidence of mental capacity and proof inde-
pendent of the /actum that the mind free and unbiased
accompanied the act:’ Redfield on Wills 529.” This
case was followed in Wilson’s Appeal.’

The transaction which takes place under undue influence
may be either in the nature of a gift or a contract. In
either aspect it is regarded by the courts of equity with
a jealous eye, but the scrutiny in the cases of gifts is
more severe and searching than in those of contracts.”
' ‘The leading case of gifts is Huguenin v. Baseley.2 In
this case a voluntary settlement made by a widow upon
the defendants, a clergyman and his family, was set
aside as obtained by undue influence and abuse of
confidence in the defendant, who was an agent under-
taking the management of affairs. In giving the
judgment in this case, Lord Eldon, after reviewing the
evidence showing that the grantor, who had given the
defendant a house in which to live, expressed her
delight in seeing him occupy it; that she had so much
property that it was a pleasure to her to give it to him,

199 Pa, St. 545.
? Bispham on Equity, 3 231.
14 Ves. 273; 2 Leading Cases in Equity, * page 556.
REALITY OF CONSENT. 201

says: “Take it that she intended to give it to him; it
is by no means out of the reach of the principle. The
question is not, whether she knew what she was doing,
had done, or proposed to do, but how the intention was
produced ; whether all that care and providence was
placed around her, as against those who advised her,
which from their situation and relation with respect to
her, they were bound to exert on her behalf.” '

Tate v. Williamson,? is the leading case in regard
to setting aside a contract obtained through undue
influence. A young man who was somewhat dissipated
had contracted a considerable number of debts in college,
and on some previous occasion having experienced the
kindness of his great-uncle, turned to him again for
assistance. The great-uncle deputed the defendant, his
nephew, to look into the affairs of his great-nephew.
The defendant saw the young man, who expressed a
desire to sell his property, and entered into a con-
tract to buy it from him, having ascertained that the
property was worth three times the price for which
he was able to buy it. The sale was consummated
and the great nephew died shortly afterward. His
administrators brought a bill to set aside the contract
upon the ground that a relation of confidence was
established which required a disclosure of every circum-
stance.

(1) That dominion or influence which is presumed
from certain relations, such as guardian and ward,
solicitor and client, may, in cases where such a relation
does not exist, be proved from the circumstances of the
particular case.

1See also Zimmerman v. Bitner (Md.), 28 Atl. 820.

21 Equity 528, affirmed in 2 Chan. App. 55.

3See Goree v. Clements, 94 Ala. 337; Kithcart v. Larimore, 34 Neb. 273;
Ryan v. Price (Ala.), 17 So. 734; Chambers v. Chambers, (Ind.) 38 N. E. 334;
Bell v. Campbell, 123 Mo. 1; Moreley v. Loughman, (1893) 1 Ch. 736.
202 LAW OF CONTRACTS.

In Williams v. Bayley,’ where a father gave security
for the amount of certain notes by his son, believed to
have been valid, where the holders of the notes threatened
the son with a criminal prosecution unless the security
was given: it was held that this was such an influence
brought to bear upon the father as to prevent his act
being that of a free agent and that, consequently, he
was entitled to have the transaction set aside. ‘This
case was followed in Jordan wv. Elliott,? where a judg-
ment was obtained from an old lady, who was frightened
into giving it, under very similar circumstances.

In Smith v. Kay, already cited, a dissipated young
man, completely under the influence of an older man,
who was catering to his desires in the way of dissipation,
was induced just after he came of age to execute
securities for bills which he had accepted during his
minority, and for about double the amount which he
had obtained under the bills, and the securities were set
aside.

In Ellis v. Barker, a testator left his real estate to
his nephew in fee, and left a number of legacies and
two annuities, and then after reciting that he was a
tenant from year to year of a certain farm, declared it
to be his desire that his trustee should give up the
tenancy in favor of his nephew if the landlord would
accept him as a tenant; and provided in case that he
was accepted, but not otherwise, that he should have
the farming stock and implements of husbandry upon
the farm. It was found that after paying the testator’s
debts there was no personal property to pay the annuities
and legacies. One of the trustees was agent for the

1L.R.1 H.L. 200, See also Wood v. Lambert, 85 Iowa 580; Tucker v. Roach,
(Ind.) 38 N. E. 822.

$12 W. N.C. 56.

37 H. 1. C. 750.

41. R. 7 Chan. App. Cases 104.
REALITY OF CONSENT. 203

owner of the farm which the testator had requested that
his nephew should become a tenant of, and this trustee
induced the landlord to refuse to receive the nephew
unless he should provide for the legacies and annuities
out of the real estate. The nephew did this; was received
as a tenant, and subsequently filed a bill to set aside the
transaction by which he had provided to pay the legacies,
aud the bill was sustained. In this case, however, there
was a relation of trustee and cestuz que trust, but the
benefit was not sought by the trustee for himself but for
another cestuz gue trust.

In Rau vw. Von Zedlitz,7a Miss Kelsey, of Massachu-
setts, was traveling abroad and while there became
engaged to be married to Baron Von Zedlitz. Two days
before her marriage she executed a marriage settlement
which had been prepared and sent her, and at that time
the Baron was largely indebted to the plaintiff, and there
was evidence that some of the money had been advanced
to the Baron on his promise to repay the plaintiff on his
marriage with Miss Kelsey, whom he represented to be
possessed of a large fortune. On the day before her
marriage, Miss Kelsey was induced to go to the office of
a notary public to make some arrangement about a sum
of money which the Baron’s mother informed her the
Baron owed the plaintiff. She went about five o’clock
in the afternoon and was kept there until after eight.
There was rather a violent altercation between the Baron
and Rau, the Baron shaking Rau, and she was urged by
the Baron’s mother to pay the money which Rau de-
manded, and was led to believe that if she did not do so,
her marriage would be prevented and the whole trans-
action published in the newspapers the next day. She
finally consented and signed two drafts and agreed that
she would pay the Baron’s debts. The drafts and

1132 Mass. 164.
204 LAW OF CONTRACTS.

agreement were set aside on the ground that even if it
did not amount to duress at law, it was undue influence
in equity.

What the relations are as to which there is a pre-
sumption of undue influence, has not been defined. As
to certain well known relations the Court there pre-
sSumes undue influence.

In Hatch wv. Hatch,’ certain of these relations are
pointed out by Lord Eldon, who there says: ‘In equity
the persons standing in certain relations to one another,
such as parent and child, man and wife, doctor and
patient, attorney and client, confessor and penitent,
guardian and ward, are subject to certain presumptions
when transactions between them are brought into ques-
tion; and if a gift or contract made in favor of him
who holds the position of influence is impeached by him
who is subject to that influence, the courts of equity
cast upon the former the burden of proving that the
transaction was fairly conducted as if between strangers ;
that the weaker was not unduly impressed by the
stronger, or the unexperienced overreached by him of
more mature intelligence.’

Parent and child.

In the case of parent and child, it is said in Jenkins
vy. Pye, by the Supreme Court of the United States,
that they would not be disposed to sanction the broad
principle that the deed of a child to a parent was a
deed prima face void. Any circumstances of imposi-
tion or unfairness will be seized hold of to set aside
the transaction, but there must be something besides
the mere relationship.

19 Ves. 292.

2 For the relations of brother and sister, see Worthington v. Major, 94 Mich.
325; Hill v. Miller, 50 Kan. 659; Rothenbarger v. Rothenbarger, 111 Mo. 1;
Smith v. Cuddy, 96 Mich. 562.
REALITY OF CONSENT. 205

However, the more recent English cases, of which
Turner v. Collins,’ is an example, and our own case
of Miskey’s Appeal,’ apply a stricter rule; and in the
case of a voluntary conveyance from a child to a parent
require it to be shown that the child understood what
he was doing and was not under the parental influence.’

Husband and wife.

“The transaction in itself,” to use the language of
Justice Trunkey, in Darlington’s Appeal,‘ “is consid-
ered so suspicious as to cast the burden of proof upon
the person who seeks to support it, to show that he is
taking no advantage of his influence, and that the
arrangement is fair and conscientious.” The case last
cited, Darlington’s Appeal, is an instance of the second
relation spoken of by Lord Eldon, that of man and wife.
In this case Mrs. Darlington, who was about thirty-six
years of age, married a widower who had five children,
and in about two months after the marriage he induced her
to convey her property to a trustee, who immediately con-
veyed it to him after reserving a life interest to her.
Thirty years afterward they both died and her son then
filed a bill to set aside the conveyance as having been
procured by undue influence on the part of her husband,
and the conveyance was set aside.

17 Chan. App. 239.

2107 Pa, St. 611-629.

3 Nielson v. Lafflin, 66 Hun. 636; Bowen v. Hughes, 5 Wash. St. 442; Whit-
ridge v. Whitridge, 76 Md. 54; Brown v. Burbank, 64 Cal. 99; Tompkinson v,
Muzzy, 2 Wash. St. 616.

45 Norris 512.

5See also Ravens v. Nau, 110 Mo. 416; Dolliver v. Dolliver, 94 Cal. 642;
Hodges v. Cook, 93 Mich. 577; Allen uv. Drake, 109 Mo, 626; Lins v. Linhardt
(Mo.), 29 S. W. 1025; Kellogg uv. Kellogg (Colo.), 40 Pac. 358; Hall v. Otterson
(N. J. Ch.), 28 Atl. 907; Golding v. Golding, 82 Ky. 51.
206 LAW OF CONTRACTS.

Doctor and patient

In the case of doctor and patient, in Dent v. Bennett,"
an agreement obtained by a surgeon from a patient was
set aside by the Court, because the Court was satisfied
that the defendant never could have intended to sign it,
or that if he did, the signature must have been obtained
by fraud, or undue influence, though no special fraud or
undue influence was shown except that arising out of
the circumstances: the patient being eighty-five years
of age and the contract being to pay 25,000 pounds for
medical services during the rest of his life.

In this case the Lord Chancellor said, “I will not
narrow the rule or run the risk of in any degree fetter-
ing the exercise of the beneficial jurisdiction of this
Court by any enumeration of the description of persons
against whom it ought to be most freely exercised.
‘The relief” as Sir S. Romilly says in his celebrated
reply in Huguenin v. Baseley, (from hearing which I
received so much pleasure that the recollection of it has
not been diminished by the lapse of more than thirty
years), ‘the relief stands upon a general principle, ap-
plying to all the variety of relations in which dominion
may be exercised by one person over another;’ and
when I find an agreement, so extravagant in its provi-
sions, secretly obtained by a medical attendant from his
patient of a very advanced age, and carefully concealed
from his professional advisers and all other persons, and
have it proved that the habits, views and intentions of
the testator were wholly inconsistent with those provi-
sions, I cannot but come to the conclusion that the
medical attendant did obtain it by some dominion exer-
cised over his patient. How it was effected, whether by
direct fraud, or by what other means, the defendant has,

14M. & C. 269. See also Unruh v. Lukens, 166 Pa. St. 324; Cadwallader v.
West, 48 Mo. 483.
REALITY OF CONSENT. 207

by the secrecy of the transaction, prevented my having
any direct testimony. By that he cannot profit; the
conclusion being, I think, satisfactorily established.” In
Audenreid’s Appeal,’ it was decided that where a gift was
made by an old man to his attendant physician, that
the burden of proof did not rest upon the physician to
explain the “righteousness of the transaction.”

Lawyer and clrent.

The rule in regard to the relation of lawyer and client
is stricter than that between parent and child, or between
guardian and ward. While a lawyer may contract with
his client yet he must show that the transaction is a
perfectly fair one between them, and it has been decided
that he may not receive a gift from his client.* In
Greenfield’s Estate,’ it was held that a compensation to
an attorney, in a deed drawn up by him, for services to
be performed under the deed, would not be allowed in
the absence of evidence that it was a fair transaction.
The burden of evidence was upon the attorney and the
trustees for whom he acted to show that the settler in
this case understood what he was doing, and was free
from influence, and this proof they failed to furnish.
‘This case reviews the English cases down to 1850, and
seems to qualify the statement that a gift cannot be
made from a client to his attorney to this extent: That
the possibility of proving the fairness of the transaction
is so slight in such case, that such gifts are rarely
sustained. See, however, the case of Perry v. Dicken,*
which establishes the right of an attorney in Pennsyl-
vania to make a contract with his client for a contin-
gent fee.

189 Pa, St. I14.

2See Trogman v. Littlefield, (Com. Pl.) 18 N. Y. Sup. 583; Roby v. Colehour,
135 Ill. 300; Finlay v. Leary, 87 Hun. 8.

314 Pa. St. 489.

#105 Pa. St. 83.
208 LAW OF CONTRACTS.

Confessor and penttent.

Marx v. McGlynn,’ was the case of a will made by a
single woman who was about sixty years of age. About
ten years before she made the will she was a High Church
Episcopalian, attending St. Albans, where she made the
acquaintance of the Rev. Mr. Bradley, the officiating
priest in charge. She became very much interested in
him, and in 1872, when he entered the Romish Church,
she followed him, and finally, in 1878, when she died, she
left a will leaving him the greater part of her property.
The Court there laid down the rule that the burden rested
upon the beneficiary to show that no undue influence
exercised her in making this will on account of the
relations between them, from which there would be a
presumption that such influence had been used. In this
case the will was sustained, the proof being satisfactory.
In Greenfield’s Estate,” a gift to a clergyman by a woman
who was not a member of his congregation was held to be
valid. There was no evidence, however, of dominion over
the testatrix.

Guardian and ward.

In Elberts v. Elberts,3 a purchase by a guardian of his
ward’s estate shortly after she became of age, for one-
sixth of its value, was set aside because it would be
impossible in such a case to show that the transaction was
a righteous one.

Judge Woodward, in Hawkin’s Appeal,’ cited in this
case, said: “Courts of Justice will not permit such
transactions” (A release by a ward to her guardian) “ to
stand, unless the circumstances demonstrate, in the

188 N.Y. 357. See also Finegan v. Theisen, 92 Mich. 173; Corrigan v. Pironi,
48 N. J. Eq. 607.

*24 Pa. St. 240.

355 Pa, St. 110. See also Hemphill v. Holford, 88 Mich. 293.

$8 Casey 263.
REALITY OF CONSENT. 209

highest sense of the terms, full deliberation and wberrima
fides.”
Trustee and cestut que trust.

The same rule as to uberrima fides exists as to the
dealings between a trustee and a cestuc que trust. In
Diller v. Brubaker,’ the Court say: “A trustee is
bound to put his cestuc gue trust in possession of the full
and true state of his affairs, before any form of settlement
will bind. It is the policy of the law to discountenance
all but the most open and satisfactory dealings between
parties standing in the attitude to each other of trustee
and cestuz que trust.”?

The same rule applies to all fiduciary relations. In
Worrall’s Appeal,t where a man who was usually in
poor health, shortly after coming of age, made a deed of
his property for a nominal consideration, to a woman who
lived in the house with him, who had been his nurse
when a child and had taken care of him as he grew up,
it was held that the burden of proof was on the defendant
to show that the deed was not procured by undue
influence, and that the transaction was fair. In this case
the Court say: “the defendant intended to make a deed,
but the question is, How was the intention produced?”
The deed was set aside. A list of relations between
parties from which undue influence has been presumed to
exist, are to be found in Pollock on Contracts. ‘These
are classes of cases analogous to those which have already
been spoken of.

152 Pa. St. 498.

2See also Nichols v. McCarthy, 53 Conn. 299; Avery’s Trustees v. Avery, 90
Ky. 613; Saunders v. Richard, 16 So. 679; Richards v, Pitts, 124 Mo. 602; Leach
v. Leach, 65 Wis. 284.

3Bispham’s Equity, 3 237.

‘II0 Pa. St. 349. See Allen v. Snyder, 100 Mich. 290; Hamilton v. Armstrong,
120 Mo. 597; Graham v. Graham, 143 N. Y. 573; Berkmeyer uv. Kellerman, 32
Oh. St., 239."

5* pp. 570 to 572, inclusive. See Krumbhaar v. Griffiths, 151 Pa. St. 223.

14
210 LAW OF CONTRACTS.

Where the presumption of undue influence is once
established, the relation out of which it is presumed will
be considered not to have ended as long as there is any
reasonable probability of the continuance of the existence
of the influence. The influence will be presumed to exist
sometime after the relationship of guardian and ward is
ended.

In Smith vw. Kay," Lord Carnworth said: “But the
Court has said, that after the relationship has terminated,
no advantage shall be taken of the child, I think, until
the child has either had independent advice, and is acting,
therefore, quite free from influence, or till so much time
has elapsed that it may be fairly supposed that he thought
for himself, and has consulted an independent adviser
whom it may be reasonable that he should consult.”

Inadequacy of consideration is evidence of undue influ-
ence and fraud, but it is not conclusive evidence in itself.

In Davidson v. Little,” Judge Black says: “Inadequacy
of price is not fraud. A man may be as honest in making
a profitable bargain as a bad one; and the law does not
require him to pay a full price, if the person he deals with
is willing to take less. 7 ° - e s
“Such gross inadequacy as there was in this case is
very well calculated to fix upon the transaction a serious
suspicion of its fairness. It is contrary to all our usual
experiences that a man should part with his property at
five per cent of its value, unless he was excessively
weak or ignorant, or under the influence of some decep-
tion.’

17H, L. C. 750. See also McParland v Larkin, 155 Ill. 84.

292 Pa. St. 245.

8 Martinez v. Moll, 46 Fed. 724; Friedman v. Hirsch, 63 Hun. 630; Pellizzarro
v. Reppert, 83 Iowa 497; Kirschner v. Kirschner, 113 Mo. 290; Cooper z.
Reilly (Wis.), 63 N. W. 885; Dakin wv. Rumsey (Mich.), 62 N. W. 990; Rhino v.
Emery, 65 Fed. 826; Neill v. Shamburg, 158 Pa. St. 263; Owen v. Smith, 91
Ga. 564.
REALITY OF CONSENT. 211

But where the inadequacy of price is coupled with
other circumstances, such as weakness of mind, ignorance
or distress, it may be a very material element in the proof
of that undue advantage, which will induce a court of
equity to set aside a transaction.’

In Allore wv. Jewel,’ a bill was filed to cancel a convey-
ance of land alleged to have been obtained from an old
lady a few weeks before her death. The woman from
whom it was obtained was between sixty and seventy
years of age; was confined to her house by sickness
from which she never recovered; she lived alone in a
state of great distress, and was without regular attend-
ance in her sickness. ‘There were no persons present
with her at all at the time of the execution of the deed,
except the defendant, his attorney and agent, and she
died a few weeks afterward. She conveyed a property
worth from six to eight thousand dollars upon an agree-
ment to pay her $250 down, an annuity of $500, and
her doctor bills. All that she ever received was $250.
The deed was set aside. The Court said: “It may be
stated as settled law, that whenever there is great weak-
ness of mind in a person executing a conveyance of land,
arising from age, sickness, or any other cause, though not
amounting to absolute disqualification, and the considera-
tion given for the property is grossly inadequate, a court
of equity will, upon proper and seasonable application of
the injured party, or his representatives or heirs, interfere
and set the conveyance aside.” In this particular case
nearly seven years had elapsed before suit was brought.

In Wheeler vw. Smith,? where, by the terms of a will, a
bequest was made to a trustee for a charity, which under

1Burke v. Taylor, 94 Ala. 530; Winkler v. Winkler (Tex.), 26 S. W. 893;
Galbraith v. McLaughlin, 59 N. W. 338; Smith v. Snowden, 27 S. W. 855.

#94 U. S. 506, 511 and 512.

39 Howard 55.
212 LAW OF CONTRACTS.

the laws of Virginia was void, a release given by the heir,
who was young and needy, upon the assurance of the
trustees, one of whom was a lawyer of high reputation,
that the bequest was valid, was set aside. ‘The decree in
this case was based upon the inadequacy of the consider-
ation, coupled with the needy circumstances of the party
giving the release and the fact that he had no oppor-
tunity to take advice in regard to the legality of the
charitable bequest or devise.

Whether inadequacy of consideration is a sufficient
ground for refusing specific performance of a contract,
where a party comes into equity and asks its aid in order
to enforce a contract, is a question as to which the English
decisions are conflicting. They will be found collected in
Pollock on Contracts.' The weight of authority in this.
country is in favor of the rule that inadequacy of consider-
ation, stands upon no stronger ground when urged against
specific performance than when urged for a reason for
avoiding a contract.

In Cathcart wv. Robinson,? Chief Justice Marshall
says: “At any rate, this excess of price over value, if the
contract be free from imposition, is not in itself sufficient
to prevent a decree for a specific performance. But
though it will not, standing alone, prevent a court of
chancery from enforcing a contract, it is an ingredient
which, associated with others, will contribute to prevent
the interference of a court of equity.” See also the
American note to Woollam v. Hearn,’ and in Pennsylva-
nia Graham v. Pancoast,* where specific performance

1¥Pp, 577 to 579, inclusive.

25 Peters 264-271. See also Rice v. Gibbs, 33 Neb. 460; South and North
Ala. R. Co. v. Highland, 98 Ala. 4oo; Union Pac. Ry. Co. v. Chicago, R. I. &
P. Ry. Co., 51 Fed. 309, 2C. C. A. 174.

32 Leading Cases in Equity, 1032, 4th Am. ed.

46 Casey 89-98. See also Wollums v. Horsley, 93 Ky. 582; J# ve Rohr-
backer’s Estate, 12 Pa. Ct. R. 438, 2 Pa. Distr. R. 106,
REALITY OF CONSENT. 213

was refused in a case of inadequacy of price, though
there were other circumstances associated with it,—weak-
ness of mind, old age, and short time for consider-
ation.

But in Davidson v. Little,’ Chief Justice Black says:
““An unexecuted contract has been often annulled, or the
vendee left to his action at law, when there was no proof
of foul practice, except inequality between the price agreed
on and the thing sold.” And in Kelly’s Appeal,” the
Court say, that “inadequacy of price might prevent the
Specific performance of a contract so executed.” What
the rule is in Pennsylvania it is difficult to say.

There is a class of contracts which constitutes an
exception to the rule that mere inadequacy of considera-
tion is not in itself a ground for setting aside a contract.
These are contracts made with expectant heirs. The
phrase “expectant heirs” is explained by Sir George
Jessel, in the case of Beyson v. Cook. The old doctrine
of the Court of Chancery in regard to people raising money
on expectancies was based upon the idea that such persons
were at a great disadvantage, and that, any way, such
transactions were frauds on the heads of families, from
whom they were concealed.

In the Earl of Aylesford v. Morris,‘ Lord Selborne
states the ground upon which equity granted relief origi-
nally in the case of “catching bargains with heirs.” He
quotes from Lord Hardwicke:* “There is always fraud
presumed or inferred from the circumstances or conditions
of the parties contracting; weakness on the one ‘side,
usury on the other, or extortion, or advantage taken of
that weakness. There has been always an appearance

110 Harris 245.
2108 Pa, St. 29.
310 Ch. App. Cases, 391, note.

*8 Ch. App. Cases, 484.
52 Ves., Sr., 125-157.
214 LAW OF CONTRACTS.

of fraud from the nature of the bargain.” Then he
adds: “One peculiar feature has been almost universally
present: the victim comes to the snare (for this system
of dealing does set snares, not, perhaps, for one prodigal
more than another, but for prodigals generally as a class),
excluding and known to exclude, by the very motives and
circumstances which attract him, from the help and
advice of his natural guardians and protectors, and from
the professional aid which would be accessible to him,
if he did not feel compelled to secrecy. He comes in the
dark, and in fetters, without either the will or the power
to take care of himself, and with nobody else to take care
of him. Great judges have said that there is a principle
of public policy in restraining this; that this system of
undermining and blasting, as it were, in the bud, the
fortunes of families, is a public as well as a private mis-
chief; that it is a sort of indirect fraud upon the heads
of families from whom these transactions are concealed,
and who may be thereby induced to dispose of their
means for the profit and advantage of strangers and
usurers, when they suppose themselves to be fulfilling
the moral obligation of providing for their own descend-
ants.”

“Whatever weight there may be in any such collateral
consideration, they could hardly prevail, if they did not
connect themselves with an equity more strictly and
directly personal to the plaintiff in each particular case.
But the real truth is, that the ordinary effect of all the
circumstances by which these considerations are intro-
duced, is to deliver over the prodigal helpless into the
hands of those interested in taking advantage of his
weakness; and we so arrive in every such case at the
substance of the conditions which throw the burden of
justifying the righteousness of the bargain upon the
party who claims the benefit of it.” ~
REALITY OF CONSENT. 215

In this particular case, a young nobleman in his
twenty-second year, entitled to a large property in the
event of his surviving his father, was largely indebted.
His creditors pressed him for payment and recommended
him to.a money lender, who lent him enough to partly
pay his debts and made him a slight advance besides,
taking as security his acceptance for three months for the
amount of the advance and sixty per cent besides. When
they came due the same thing was done over again and
before the second set of notes fell due, the father died.
The money lender brought an action on the bills and it
was held, a bill having been filed to restrain the action,
that they should be enjoined and a decree was made that
the bills be delivered up upon payment of the advances at
five per cent interest.

Sir J. Leach, V. C. in Gwynne v. Heaton,’ thus states
the history and policy of the doctrine at law and in
equity also: “Generally speaking, a man who has a
power of disposition over his property, whether he sells
it to relieve his necessities, or to provide for the con-
venience of his family, cannot avoid his contract upon
the mere ground of inadequacy of price. A court of
equity, however, will relieve an expectant heir or
reversioner from a disadvantageous bargain. In the
earlier cases it was held necessary to show that undue
advantage was taken of the situation of such person, but
in modern times it has been held not only that those who
were dealing for their expectations, but those who were
dealing for vested reversioners also, were so exposed
to imposition and hard terms, and so much in the power
of those with whom they contracted that it was a fit
rule of policy to impose upon all who dealt with ex-
pectant heirs and reversioners the ous of proving that
they had paid a fair price, or otherwise, to undo their

11 Bro. C.C. 9.
216 LAW OF CONTRACTS.

bargains and compel a reconveyance of the property
purchased.”

As originally developed, the doctrine had two branches.

(1) As to reversionary interests, whether the rever-
sioner was an expectant heir or not, the rule of law
that the vendor might avoid the sale for under value,
and the rule of evidence that the purchaser must show
that he paid full value. (2) As to catching bargains
with expectant heirs, remainder men or reversioners in
similar circumstances, that is, bargains made on their
expectations.” The rule of evidence in these cases also
was that the burden of proof lies on the contracting
party receiving the benefit to show that the transaction
was a fair one. By the Act of 31 Victoria, 1867, it
was enacted that no purchase made bona fide, and
without fraud or any unfair dealing of any reversionary
interest in real or personal estate should be set aside
merely upon the ground of under value.

The cases of the Earl of Aylesford v. Morris? and
Beyson v. Cook,‘ already cited, decided that the rules
of equity in regard to the burden of proof in these cases
are not affected by the repeal of the usury law by the
Act of Parliament just referred to. So that at present
the effect of this doctrine is to throw upon the party
contracting the necessity of proving the consent of the
other party, and of also proving that the consent was
free and without improper influence of any kind.

Mr. Pollock,5 has classified the conditions under which
this burden of proving exists, or rather, he has classified
the conditions which have been present where such

1See note in the case of Chesterfield v. Jannsen, 1 Leading Cases in Equity, *
page 541.

2 Pollock, * p. 582.

38 Ch. App. Cases 484.

410 Ch. App. Cases 391.

5* pp. 585-86.
REALITY OF CONSENT. 217

telief has been granted. (1) A loan in which the bor-
rower is a person having little or no property immediately
available and is trusted in substance on the credit of his
expectations. (2) Terms rma face oppressive and extor-
tionate, such as a man of ordinary sense and judgment
cannot be supposed likely to give his consent to. (3) A
considerable excess in the nominal amount of the sums
advanced over the amount actually received by the bor-
rower. (4) The absence of any real bargaining between
the parties, or any inquiry by the lender into the exact
nature of the borrower’s expectations. Where these con-
ditions all concur the burden is thrown upon the lender
to show that the transaction was a fair one. Whether
they must all concur, or whether any of them except the
first is indispensable, he deems it unsafe to assert.

In O’Rorke v. Bolingbroke,’ a young man had a charge
of 500 pounds on an estate, payable at his father’s
death. His father, who was at that time sixty-one years
of age, negotiated the sale of this charge for 326 pounds.
‘The young man had no means and nobody to advise him
except his father. The father’s health was in a very pre-
‘carious condition, and he died three months after negotiat-
ing the sale. Ina bill filed to set aside the purchase of the
reversionary interest it was held that the burden of
proof lay upon the defendant to show that the transaction
was a fair one. ‘The Master of the Rolls thought no
‘case had been made out of the bill. On appeal, Lord
Chancellor Ball and Lord Justice Christian in the Court
of Chancery of Ireland, reversed the order of the Master
of the Rolls, and made a decree in accordance with the
prayer of the bill. On appeal to the House of Lords,
the judgment of the Master of the Rolls was restored by
Lord Blackburn and Lord Gordon, Lord Hatherley dis-
senting, and there is quite a lengthy review of all the

1L, R. 2 App. Cases 814.
218 LAW OF CONTRACTS.

cases by Lord Hatherley in which the same rule is laid
down as to the burden of proof in the case of the pur-
chase of reversionary interest in the case of “ catching
heirs,” necessarily as if the transaction was fair.

It is said in the note to Chesterfield v. Jannsen,’ that in
this country it would seem to be settled that the sale of an
expectancy (in accordance with English decisions) is con-
trary to the policy of the law, and void, and the cases
are collected and some of them go to that extent, though
in Pennsylvania there does not seem to be any such
broad rule as exists in England.

The rule seems to be recognized in this State in David-
son v. Little,? where Chief Justice Black says: ‘“ This
case does not seem to be within the rule which sets aside
an executed contract with an heir, for mere inadequacy
of price. Norris was not an heir expectant. The estate
was fully vested in him.” But while recognized, it is
denied so far as it relates to vested interests.

 

The right to set aside a contract or transfer of prop-
erty as voidable upon the ground of undue influence is
analogous to the right of rescinding a transaction void-
. able upon any other ground, but there is one peculiarity
which marks rescission on the ground of undue influ-
ence.

In case of fraud, as soon as the fraud is discovered, it
becomes the duty of the party who is defrauded to elect
whether he will rescind the contract on the ground of
fraud or not, and he may affirm it, either expressly or by
his conduct; but in the case of undue influence an
affirmation will not be allowed to bind the party who
has been taken advantage of, unless it be clearly shown
that the influence no longer exists. In other words, that

11 Leading Cases in Equity, 828.
2 to Harris 252.
REALITY OF CONSENT. 219)

he is entirely emancipated, and that any imperfect in-
formation that he may have had has been supplemented
by association and advice.

In Bridgman v. Green,’ Lord Chief Justice Wilmot
says: “In cases of forgery, instructions under the hand
of the person whose deed or will is supposed to be forged,
to the same effect as the deed or will, are very material.
But in cases of undue influence and imposition they
prove nothing; for the same power which produced one
produces the other; and therefore, instead of removing
such an imputation, it is rather an additional evidence
of it.”

And in Moxon zw. Payne,’ Lord Justice James, after
quoting the above extract from the opinion in Bridgman
y. Green, says: “The same principle applies to instru-
ments obtained apparently ratifying and confirming the
transaction.” Again, in the same case, he says: “Fraud
or imposition of the kind practiced in this case (and it
was a case of undue influence) cannot be condoned; the
right to property acquired by such means cannot be con-
firmed in this Court unless there be full knowledge of
all the facts, full knowledge of the equitable rights
arising out of those facts, and an absolute release from
the undue influence by means of which the frauds were
practiced. ‘To make a confirmation or compromise of any
value in this Court the parties must be at arm’s length,
on equal terms, with equal knowledge, and with sufficient
advice and protection.”

The right to rescind may be exercised by the donor’s
representatives: Darlington’s Appeal.’

The right to set aside a contract voidable upon the ground
of undue influence may be lost by express confirmation,

' 2 Ves. Sr. 627.
2. R. 8 Ch. App. 886.
35 Norris 518.
220 LAW OF CONTRACTS.

or by delay amounting to proof of acquiescence.’ In
Price’s Appeal,’ it was held that a delay of twenty-
one years, coupled with the fact that there had been no
complaint in the meantime, would be fatal to an effort to
set aside a “catching bargain” upon the ground of undue
influence.

1See Geyer v. Snyder, 140 N. Y. 394.
254 Pa. St. 472.
CHAPTER VI.

LEGALITY OF OBJECT.

Though an agreement may be complete in every other
respect yet it may not be an agreement which the law
will enforce for the reason that its object is either one
which the law forbids or it is so connected with such an
object that the law will not enforce it. Such agreements
are illegal. In considering the illegality of agreements
the subject may be divided into two heads: (I) The
classification of illegal agreements; (II) The effect of the
presence of illegality in an agreement.

The division made by Mr. Pollock: of agreements
which are unlawful, is as follows:

(A) Contrary to positive law (illegal).

(B) Contrary to positive morality recognized as such
by law (immoral).

(C) Contrary to the common weal, and against public
policy, as tending:

(1) To the prejudice of the State in its external rela-
tions.

(2) To the prejudice of the State in its internal rela-
tions.

(3) To improper or excessive interference with the
lawful actions of individual citizens. .

This is a convenient way to group the classes of illegal
agreements, but this classification is really reducible to
the ordinary one of agreements forbidden (1) by statute,
and (2) bycommon law. ‘The latter head includes every-
thing in the classification of Mr. Pollock except that

1 Pollock on Contracts, * p. 234.
(221)
222 LAW OF CONTRACTS.

part of the first head which relates to cases of prohibi-
tion by statute. I shall follow, not exactly, but in a
general way, the classification of Mr. Pollock, as a
convenient one for presenting the subject.

A. AGREEMENTS CONTRARY TO PosrrivE LAw.

(z) Legality from statutory prohibition.*

Whether or not an act is forbidden by statute is a
question of construction. Attempts have been made to
lay down fixed rules, nominally of construction, but in
reality to control the expressed intention of the legisla-
ture. The present rule of interpretation, however, is
that statutes “shall be construed according to the intent
of the parliament which passed the act,’ provided the
words be “sufficient to accomplish the manifest purpose
of the act.”% The general intent is to be regarded even
though it may prevail over particular expressions. But
this intent must be gathered from what the legislature
has said, and not from what a Court may think might
or should have been the intent of the legislature. De-
duced from these general constructions are certain rules
which have been applied to prohibitory statutes. .

(2) When a statute forbids a transaction it does not
matter upon what ground the prohibition is placed,
whether it be because the transaction is mala zn se, or
whether it be merely something which if not prohibited
would be lawful.

(4) The imposition of a penalty on any specific act
or omission, is prema facie equivalent to an express
prohibition, and

1 Burger v. Roelsch, 77 Hun. 44; Vulcan Powder Co. v. Hercules Powder
Co., 96 Cal. 510.

? Pollock, * p. 251.
3 Sussex Peerage Case, 11 Cl. & F. 143.
LEGALITY OF OBJECT. 223

(c) What is forbidden to be done directly cannot be
done indirectly.

These three rules are all illustrated in the case of Bank
of the United States v. Owens ef a/.! In that case the
charter of the bank forbade it to take more than six per
cent interest upon its loans or discounts, but did not
declare the act void. The bank discounted notes at the
rate of six per cent, but with an agreement that the pro-
ceeds of the discount should be received in the notes of
a State Bank of Kentucky at their nominal value,
although their then current value was very much less.
The notes were sued upon and the facts already stated
were pleaded, and there was a demurrer to the plea.
The Circuit Court was equally divided. The Supreme
‘Court decided that the notes could not be recovered on.

In Holt vw. Green,? a commercial broker brought suit
for his commissions on the sale of certain goods, and
on the trial proved that he was employed by the de-
fendant to sell certain machinery, and that he had
advertised it, and that such was his business, and that the
sale had been made. On cross-examination he testified
that he had not taken out a license, nor paid a license
tax under the law of the United States. A judgment
of non-suit was entered and affirmed on a writ of error.

The statute referred to provided that no person should
be engaged in the business in which the broker was engaged
until they had obtained a license, and that if they carried
on business without a license they should pay a certain
penalty. ‘The Court said: “It is not necessary that the
statute should expressly declare a contract to be void.
An action founded upon a transaction prohibited by a
statute cannot be maintained, although a penalty be

12 Peters 527.
273 Pa. St. 198. See also Lowey v. Granite State Provident Association, 28
N. Y. S. 560, 8 Misc. Rep. 3109.
224 LAW OF CONTRACTS.

imposed for violating the law. Hence when a contract is
made about a contract or thing which is prohibited and
made unlawful by statute, it is void, though the statute
itself does not declare it to be so, but only inflicts a
penalty on the offender.”

In Columbia Bank and Bridge Company v. Haldeman,”
the defendant had signed a bond indemnifying a cashier
of a bank, which was the stakeholder of a bet, from
any damages by reason of his paying over the amount.
of the stake to the winner of the bet. He paid it over
and the loser of the bet sued him and recovered the
money. He then sued the defendant on the bond and
it was held that he could not recover, inasmuch as the
bet was one forbidden by a statute.

The question whether a party to an illegal contract who
is sued upon it, and where the illegality of the consid-
eration does not appear on the face of the contract, can
be allowed to explain the true nature of the consideration
and its illegality, is one in regard to which the decisions.
are conflicting. It is said in this State that the test of
whether the plaintiff can recover on a contract which is
illegal, is whether the plaintiff requires the aid of the
illegal transaction to establish his case, and that if he
does not, the defendant cannot set up his own turpitude
as a defence.?

In Evans vw. Dravo,' the plaintiff sued on a bond for
$2000 given him by the defendants. He put the bond
in evidence and rested. The defendants put in an
equitable defence of this nature: That at the time of the
execution of the bond it was agreed between the plaintiff
and defendants that upon the delivery of a deed by the

1 But see Rahters v, Bank, 92 Pa. St. 392.

29 W. &S. 233.

3 See Peters v. Grim, 149 Pa. St. 163; Repplier v. Jacobs, id. 167; Fearnley

v. De Mainville (Colo. ), 39 Pac. 73.
424 Pa. St. 62.
LEGALITY OF OBJECT. 225

plaintiff to the defendants for certain property, which
he owned, and for which he was to receive $500 purchase
money, the bond was to be destroyed, and the object of
executing the bond was to induce the plaintiff's wife to
join in a conveyance of the property for $500, which
she would not do unless the defendants gave this bond
of $2000 to her husband, she believing the property to
be worth $2500. It was held that inasmuch as the plain-
tiff was able to make out his case without the aid of the
illegal transaction he was entitled to recover, and that
the defendants ought not to be allowed to prove a transac-
tion which was a fraudulent one, and to which they them-
selves were parties.

In Johnson wv. Hulings,’ the rule is stated a little
differently from what it is in the earlier cases, and from
the way it is stated by Judge Hare in a note to Collins
v. Blantern,? to which I shall refer in a moment. ‘The
rule laid down by Chief Justice Marshall in Craig v.
the State of Missouri,’ is there laid down as the correct
statement of the law, Chief Justice Marshall saying:
“Neither can it be doubted that: the plea of non-as-
sumpsit allowed the defendants to draw into question
at the trial the validity of the consideration on which
the note was given. Everything which disaffirms the
contract, everything which shows it ta be void, may be
given in evidence on the general issue in an action of
assumpsit; the defendants therefore, were at liberty to
question the consideration which was the foundation of
the contract, and the constitutionality of the law in
which it originated.”* A similar rule is said to prevail
in Massachusetts, though a contrary rule exists in New
York, where the defendant may show a fraud though he

1103 Pa. St. 498. See Spalding v. Ewing, 1 Ad. R. 775.

21 Smith’s Leading Cases, 8th ed., p. 753.

34 Peters 410. ,

‘Kain v,. Bare, 4 Ind. App. 440; Glass v. Murphy, 4 Ind. App. 530.
15
226 LAW OF CONTRACTS.

was a party to it.’ The result of the cases is summed
up in Collins v. Blantern,? where Judge Hare says:
“The result of the authorities as a whole seems to be
that in admitting or excluding evidence of collusion or
mutual fraud, the Court should look beyond the parties
to the considerations of legal policy, which require that
such transactions should be rendered insecure. The
question is not in which case the fault appears, but
whether entering judgment on the contract will tend to
aid or frustrate the accomplishment of the illegal design.
Every one will agree that a bond or promissory note,
given to stifle a prosecution, or influence the plaintiff
in the discharge of a public duty, is not a valid cause
of action. To enforce such a contract by judgment and
execution, would be to render the machinery of the law
subservient to the administration of a bribe. It is in
like manner a good defence to a bond, that it was given
in consideration of the services of the defendant in nego-
tiating a marriage, because the public good requires that
a broker shall not intervene to bias the inclinations of
the parties.’’ >

Where a statute imposes conditions for the conduct
of any particular business or profession, and these condi-
tions are not observed, agreements made in the course
of such business or profession are void, where it appears
that the purpose of the statute was to protect the public
or to further objects of public policy ;° but if the purpose
be merely to collect revenue and no penalty is attached to
the particular transaction, then such contracts are valid.’

1Nellis v. Clark, 20 Wend. 24.

21 Smith’s Leading Cases, 8th ed., p. 753.

3 Irvin v. Irvin (Pa.), 32 Atl. 445; Church v. Proctor, 66 Fed. 240; 13 C. C. A.
426.

4Cook v. Shipman, 24 Ill. 614.

5 See Appeal of Bredin, 92 Pa. St. 241.

6 Hawley uv. Coal Co., 48 Kan. 593.

7Baumann v. De Logerot, 74 Hun. 640.
LEGALITY OF OBJECT. 227

In Brown v. Duncan,’ five persons carried on the
business of distillers; one of them carrying on the busi-
ness of a retail liquor dealer on his own account.
There were two Acts of Parliament in force, one of which
imposed a penalty upon every distiller who carried on
a retail liquor business within a certain distance from
where his distillery was, and the retail liquor store of
one of the partners was within this distance; the other
required the distillers to have all their names inserted
in the license. The plaintiffs, being the five persons
carrying on the business of distillers, sued the defendant
on a guarantee which he had given them for the pay-
ment, by a person named in the guarantee, of the price
of whisky consigned by the plaintiffs to that person for
sale by him as their agent, and the defence was that
the plaintiffs had knowingly violated the excise law.
It was held not to be a good defence. Lord Tenterden,
C. J., said: “ These cases are very different from those
where the provisions of acts of parliament have for their
object the protection of the public, such as acts against
stock jobbing, and acts against usury. It is different
also from the case where a sale of bricks, required by act
of parliament to be a certain size, was held to be void
because they were under that size. There the act of par-
liament acted as a protection to the public, as well as the
revenue, securing to them bricks of a particular dimen-
sion. Here the clauses of the Act of Parliament had not
for their object to protect the public, but the revenue
only.” A

In Rahter wv. The National Bank of Lancaster,the
owner of a distillery sold some whisky to the defendant B
and took the defondia’’s note in payment, and subse-
quently had it discounted at a bank. ‘The seller of the

110 B. & C. 93.
292 Pa. St. 393.
228 LAW OF CONTRACTS.

whisky had no license to sell it and the barrels were
not stamped according to law.> The bank sued on the
note and it was contended that the note was void because
of these violations of the statute. «The statute provided
that if any person carried on the business of wholesale
or retail liquor dealers without paying a special tax, as
required by law, he should pay a certain penalty, and that.
he should also be subject to a penalty for not branding
his barrels. >The Court held that though he may have
been liable to the penalties, that did not make the sale
of the liquor illegal, and further, that the single trans-
action did not make him a person engaged in the business.’

I do not propose to point out what contracts are for-.
bidden by statute, whether directly or impliedly, by having
a penalty attached to their execution. By way of illus-
tration, however, I may refer to two classes of contracts.
which are very generally forbidden. They are: Con-
tracts made on Sunday,’ and usurious contracts though
in Pennsylvania the latter class of contracts is not void,
but the provision is that the interest over the legal rate
shall not be recoverable.

There is another class of contracts in regard to which
there has been considerable legislation in England and
in this country, viz.: Wagering contracts.

A wager is defined by Anson‘ to be ‘‘a promise to
pay money or transfer property upon the determination
or ascertainment of an uncertain event; the considera-.
tion for such promise is either a present payment or
transfer by the other party, or a promise to pay or trans-.
fer upon the event determining in a particular way,”
and the writer goes on to say that “the uncertainty

1 But see Niagara Falls Brewing Co. v. Wall, 98 Mich. 158.

2See Anson on Contracts, 8th ed, p. 228, n. 1.

3Stimson’s Am. St. Law, 3 % 4830-37; Hammond v. Hopping, 13 Wend.

(N. Y.) 505.
‘Anson on Contracts, * p. 174.
LEGALITY OF OBJECT. 229

may arise from the fact that the event has not happened,
as in the case of a bet on an election, or it may be in
regard to an existing fact not ascertained, as the height
of the Public Buildings.” The uncertainty is in the
minds of the parties.

At common law a wager was lawful and enforcible.
In Good w. Elliott,’ there was a bet between the plaintiff
and defendant as to whether Susanna Tye had bought
a wagon from David Cole. It was held that the action
lay.

This is not the law in Pennsylvania. In Edgell v.
McLaughlin,’ it was held that an action could not be
maintained in Pennsylvania to recover a sum of money
alleged to have been lost by the plaintiff to the defend-
ant upon a bet, and the rule of Pennsylvania is generally
the rule in this country. Irwin v. Miller,‘ was a case
of dealing in futures in grain.

In Pennsylvania wagers on elections are prohibited,
and those on horse races are made utterly voids In
England by Statute 8 and 9 Victoria, c. 109, the agree-
ments or contracts by way of gaming are made null and
void, and no suit can be brought to recover stake-money.

There are three important classes of wagering contracts
entered into for commercial purposes. These are marine
insurance, life insurance, and certain stock contracts, and
contracts in the nature of stock contracts.

In England the contract of marine insurance is void
by Statute of 19 George II, c. 37, (1746) unless the
person effecting the insurance is interested in the thing
insured, and in Pennsylvania, though there is no statute,

13 T. R. 693.

26 Wharton 175.

3 See the cases collected in note to Godsall v. Boldero, 2 Smith’s Leading
Cases, p. 271, 8th ed., p. 316, e¢ seg.

110 U. S. 499.

5 Purdon’s Digest, 861.
230 LAW OF CONTRACTS.

the same principle of law is adopted in Prichards v.
Insurance Company of North America."

Insurance other than marine insurance is provided for
in England by Statute of 14 George III, c. 48, which
forbids the insurance upon lives of any persons or on any
event whatsoever in which the person effecting the insur-
ance has no interest. In this country, in the case of fire
and life insurances, there must be an insurable interest
in order that the contract may be valid generally.

Warnock v. Davis* was a case of the assignment of
a life insurance to a creditor, who sought to recover upon
it in excess of the amount for which the policy had been
assigned as collateral. It was held that he could not
recover. ‘The contrary, however, was held in this State
in the case of Cunningham’s Administrators v. Smith.

It was held in Dalby v. The Life Insurance Company,‘
that the contract of life insurance is a mere contract to
pay a certain sum of money on the death of a person in
consideration of the due payment of a certain annuity,
during his life, the amount of the annuity being calcu-
lated in the first instance according to the probable dura-
tion of life, and when it is once fixed it is constant and
invariable. The result is that if there is an insurable
interest at the time the policy is taken out, so that it is
not a wagering contract at that time, it may be subse-
quently assigned to a person who really has or continues
to have no interest in the life of the insured.5

The third class of wagering contracts is the transac-
tions of the stock exchange, or, as they are frequently
called, “dealings in futures,” or agreements to pay

13 Yates 458.

2 104 U. S. 775

370 Pa. St. 450.

415 C. B. 386.

5 A good case is Connecticut Mutual Insurance Co. v. Schaeffer, 94 U. S. 457.
(In this case the interest ceased. )
LEGALITY OF OBJECT. 231

differences. An agreement for a sale for future delivery,
even though the seller has not the goods on hand at
the time and no means of getting them except buying
them, is perfectly valid if the parties really intend and
agree that the goods are to be delivered at the time
and paid for,’ but if the transaction is merely a cover for an
agreement to pay the difference between the contract price
and the market price of the goods at the time, then it
is a gambling transaction and is void in England by
virtue of the statute of 8 and 9 Victoria.

In Grizewood v. Blane,’ it was held that a colorable
contract for the sale and purchase of railway shares,
where neither party intended to deliver or accept the
shares, but merely to pay the differences, was void under
the statute of Victoria, but though void it was not ille-
gal,; and as a consequence, where a broker has been
employed to speculate for a principal, with a knowledge
that the principal neither intends to accept stocks
bought or deliver goods sold, but relied upon the broker
to protect him in this matter so that nothing but the
differences should be payable to and by him, it was held
that the broker could recover against the principal for the
liabilities incurred by him in acting under a contract of
this kind.‘

In this country generally, wagering contracts are held
to be illegal and void against public policy,’ and it has
therefore been held that where the broker brings the
parties together and was privy to and, so to speak,

1 Brand v. Lock, 48 Ill. App. 390; Fisher v. Fisher, 8 Ind. App. 665; Morris-
sey v. Broomal, 37 Neb. 766; Eggleston v. Rumble, 66 Hun. 627; Bibb vz.
Allen, 149 U. S. 481; Hopkins wv. O’Kane, (Pa.) 36 W.N.C. 475; Pope zw

Hauke, 155 Ill. 617; Hentz v. Miner, 64 Hun. 636.

211 C. B. (73 E. C. L. R.) 526.

3 Fich v. Jones, 238 E.C. L. R. 239. See also Universal Stock Exchange wv.
Stevens, 66 Law T. 612, 40 Weekly Rep. 494.

4 Thacker v. Hardy, 4 Q. B. D. 685.

5Irwin v. Williar, 110 U. S. 499.
232 LAW OF CONTRACTS.

partieps criminzs in the illegal transaction, he cannot
recover anything he may have advanced.’ But if the
broker is innocent he may recover.’

(2) LMlegality tndependent of statute because contrary
to positive law.

Instances of such illegality are as follows: 1. An agree-
ment to commit acrime or an indictable offence is illegal.
2. An agreement to commit a civil wrong is illegal. For
instance, an agreement to beat a man is an illegal agree-
ment. Soan agreement which involves the publication
of a libel.

In Bigbie v. The Phosphate Sewage Company,' this
principle was applied where a man purchased from a com-
pany, which had the exclusive right to certain patents in
England, but did not possess any such rights in Berlin,
the exclusive right to use their patents in Berlin, the
purchaser knowing at the time that they had no such
exclusive right there, but the directors of the company
who sold the right not having such knowledge. The
object of the purchase was to form a new company, for
which he designed to secure subscriptions by representing
that the new company, by virtue of its purchase, would
have the exclusive right to the patents in Berlin. He
sued the seller to recover back the purchase money on
the ground of a failure of consideration. The Court held

1See Irwin v. Williar, 110 U. S. 499. Also Dickson’s Admrs. v, Thomas, 97
Pa. St. 278, where the Pennsylvania cases are all reviewed. Also Connor z.
Black, 119 Mo. 126; Mohr v. Miesen (Minn.), 49 N. W. 862; Pope v. Hanke,
155 Ill. 617; Dows v. Glaspel (N. D.), 60 N. W. 60; Dwight v. Badgley, 75 Hun.
174. But see Peters v. Guinn, 1 Ad. Rep. 720.

? Roundtree v. Smith, 108 U. S. 268. See Barnes v, Smith, 159 Mass. 344.

3 See Goodrich v. Tenney, 144 Ill. 422.

* Clay v. Yates, r Hurl. & N. 73; Friend v. Porter, 50 Mo. App. 89; Scott z.
Brown, (1892) 2 Q. B. 724; Jewett Pub. Co. v. Butler, 159 Mass. 517; Hofflin z.
Moss, 67 Fed. 440, 14 C. C. A. 459.

51, R. 10Q. B. 4o1.
LEGALITY OF OBJECT. 233

that he could not recover because the transaction was
illegal, inasmuch as he intended to commit a fraud on the
subscribers to the stock of the new company.

The same principle has been applied where property
has been conveyed for the purpose of defrauding credi-
tors, under a private understanding that it was to be
conveyed back. In such cases the law has refused to
enforce the agreement to reconvey.'

3. There are certain cases analagous to contracts which
are void on the ground of illegality because they amount
to an agreement to commit a civil injury. Where there
are contracts which give rise to a continuing relation to
which certain duties are incident, and transactions which
are inconsistent with these duties, they either render the
contract void or the transactions themselves are voidable.
Of this character are: (a) Dealings between the princi-
pal creditor and his debtor to the prejudice of a surety;
(4) Dealings by an agent in the business of an agency on
his own account, and (c) Voluntary settlements made
before marriage in fraud of marital right. The first of
these renders the contract of suretyship void; in the
second class it is voidable between the principal and
the agent; and in the third class it is voidable at the
option of the husband.’

(2) Any variation of the contract of suretyship made
between the principal debtor and the creditor discharges
the surety as a general rule. In Holme v. Brunskill,
the rule was thus stated by Cotton, L. J.: “The true
rule in my opinion, is that if there is any agreement
between the principals with reference to the contract
guaranteed, the surety ought to be consulted, and
that if he has not consented to the alteration, although

1 Randall v. Howard, 2 Black 585.
2 Pollock,* p. 241.
33 Q. B. D. 495.
234 LAW OF CONTRACTS.

in cases where it is without inquiry evident that the
alteration is unsubstantial,’ or that it cannot be other-
wise than beneficial to the surety, the surety may not
be discharged; yet, that if it is not self-evident that
the alteration is unsubstantial, or one which cannot be
prejudicial to the surety, the Court will not, in an action
against the surety, go into an inquiry as to the effect.
of an alteration, or allow the question, whether the
surety is discharged or not, to be determined by the
finding of a jury as to the materiality of the alteration
or on the question of whether it is to the prejudice of
the surety, but will hold that in such a case the surety
himself must be the sole judge whether or not he will
consent to remain liable notwithstanding the alteration,
and that if he has not soconsented he will be discharged.”

In this case, the tenant having made an agreement
with the landlord giving up part of a demised premises,
with the understanding that he was to redeliver 700 sheep
at the end of the tenancy, the tenant’s surety was held
to be discharged, he having no knowledge of the arrange-
ment between the landlord and the tenant.

In Bensinger v. Wren,” the Court say: ‘“ Any altera-
tion of a contract by the principal parties, without the
assent of the surety is fatal to its validity, as against
the surety. Even if he sustains no injury by the change,
or if it be for his benefit, he has a right to stand upon the
very terms of his obligation and is bound no further.
Any unauthorized variation in an agreement which asurety
has signed, that may prejudice him, or may substitute

1 Socialistic Co-operative Pub. Ass’n v. Hoffmann, 33 N. Y. Sup. 695, 12 Misc.
Rep. 440; Stevens v. Pendleton (Mich.),63 N. W. 655; Risse v. Hopkin’s
Planing Mill Co. (Kan.), 40 Pac. 904; Fitzpatrick v. McAndrews, 12 Pa. Co.
Ct. R. 353; Barclay v. Alsip, 151 Pa. St. 374; Henricus uv. Englert, 63 Hun. 625,
137 N. Y. 488; Medary zv. Cathers, 161 Pa. St. 87.

2 100 Pa. St. 500.

5 Sanders v. Bagwell, 37 S. C. 145.
LEGALITY OF OBJECT. 2355

an agreement different from that which he came into,,
discharges him.”* In this case a private banking com-
pany was organized and its directors took a bond from a.
person who was acting as cashier for them. ‘The articles
of association provided for securing a charter at an early
date. The charter was not obtained and the association
became merged into an existing corporation which had no:
banking powers, but then did a banking business. It.
failed and its assignees brought suit against the cashier’s
bondsmen for a default while acting as cashier of the cor--
poration, and it was held that they were relieved by the
change in the articles of association.

This rule is frequently applied in the case of a bond.
given by an officer. There, if his duties are materially
changed so as to effect the risk the surety takes, he is.
discharged.

In Miller v. Stewart * a bond was given by the collector
of taxes appointed for eight townships, and the instru--
ment of appointment referred to in the bond was afterward.
altered so as to make him collector for nine townships.
The surety was said to be discharged. But where the
guarantee is for the performance of several duties, and
the change is made in one, the surety remains responsible:
on the others.

In Harris v. Seymour,’ the plaintiff agreed to buy a.
ship from A and pay him a certain amount of money
and give him another ship, and also to loan him a
certain amount of money on the security of the ship.
which he was to give him; and A agreed to put the

1 See also Judge Hare’s opinion in Shackamaxon Bank v. Yard, 150 Pa, St.
351, 143 Pa. St. 129, Also Dupee vw Blake, 148 Ill. 453; Board of Com’rs of
Renville Co. v. Gray (Minn.), 63 N. W. 635; Gallagher v. St. Patrick’s Church
(Neb.), 63 N. W. 864; Eldridge v. Fuhr, 59 Mo. App. 84; Nesbit v. Turner, (Pa.
Com. Pl.) 7 Kulp 41; Clark v. Cummings, 84 Tex. 610; Bolton v. Salmon, (1891).
2 Ch. 48; Mundy z. Stevens, 61 Fed. 77; State v. Smith (Del.), 9 Houst. 143,

29 Wheaton 680.

3, R.1C. P. 518. See also Fitzpatrick v. McAndrews, 2 Pa. Distr. R. 713..
236 LAW OF CONTRACTS.

ship he was selling into good order within a week after
she came into port, and to thoroughly repair the ship
which was to be transferred to him, on the security of
which the plaintiff agreed to advance him the money.
The defendant became surety for A on this contract ;
the contract was subsequently altered by reducing the
time within which the vessel purchased by the plaintiff
was to be repaired, and it was held that the surety was
discharged as to this part of the contract but bound as
to the part of the contract relating to the other vessel.
The ground upon which the decision was placed was
that the matters were as distinct as though they had
been the subject of two different bonds.

The same principle is enunciated in Gaussen v. The
United States,t where the surety on a collector’s bond
was held not to be discharged by reason of additional
new duties of an entirely different character being im-
posed by law upon the collector. The duties imposed
in this case were not those ordinarily belonging to the
office of collector.

So a release of the principal debtor discharges the
surety. This is illustrated in rather a curious way in
Eichelberger v. Morris,? where a creditor appointed his
principal debtor and surety two of his executors. This
discharged the debt as to the principal debtor because
he could not sue himself, and thereby discharged his
surety, though the principal debtor was responsible to
the estate, not on the bond, but as having money of the
estate in his hands to the amount of the bond.

So likewise, giving time to the principal debtor will

197 U. S. 584. Seealso State v. Cheaney, 52 Mo. App. 258; Snyder wv. State
(Wyo.), 40 Pac. 441.

36 Watts 42, Also Michener v. Springfield Engine and Thresher Co. (Ind.),
40 N. E. 679; Dupee wv. Blake, 148 Ill. 453; Daniel’s Ex’r v. Wharton, 90 Va.
584; Commercial Bank of Tasmania v. Jones, 1 Reports 367, (1893) App. Cas.
313; Kelley v. Post, 37 Ill. App. 396.
LEGALITY OF OBJECT. 237

discharge the surety, provided a definite time is given so
as to prevent the creditor from pursuing the debtor,’ unless
the surety assents to such arrangement or unless the
principal reserves the right of the surety, or his right
against the surety, in either of which cases the surety is
not discharged.

Hagey v. Hill? was a case where the holder of a note
gave the maker time, but with a proviso reserving the
remedies against the endorsers. It was held they were
not discharged.* So if the principal fails to do an act
which his duty to the surety requires him to do, whereby
the surety’s remedy against, the principal debtor is im-
paired, the surety is discharged: Thus in Clow wv. The
Derby Coal Company,' the principal neglected to have a
judgment, for which other parties were sureties, paid out
of a fund from which it was payable, and it was held that
they were discharged from their bond as sureties.

Fegley v. McDonald® is to the same effect, the Court
saying: “The rule is well settled, that when a creditor
has in his hands the means of paying his debts out of the
‘property of his principal debtor, but gives it up, the surety
is discharged. It need not be actually in the hands of the

1Bank v. Legrand, 103 Pa. St. 309; Scott v. Fisher, 110 N. C. 311; Clark wv.
House, 61 Hun. 624; Barnard v. Reynolds, 49 Ill. App. 596; Scott v. Scruggs,
60 Fed. 721; Hintonfv. Greenleaf, 113 N. C. 6; Walter A. Wood Mowing and
Reaping Machine Co. v. Oliver (Mich.), 61 N. W. 507; Wayman v. Jones, 58
Mo. App. 313; Knight v. Hawkins, 93 Ga. 709.

2Exchange Bld’g & Ins. Co. v. Bayless (Va.), 21 S. E. 271; Van Horne v.
Dick, 151 Pa. St, 341.

375 Pa. St. 108. See also Aultman & Taylor Co. v. Smith, 52 Mo. App. 351;
Kriz v. Rad Pokrok, 46 Ill. App. 418; Haynes v. Sinnott, 160 Pa. St. 180;
Rouse v. Bradford Banking Co., 6 Reports 349; Gordon vw. Third Nat. Bank, 144
‘U. S. 97; Thorn v, Pinkham, 84 Me. 103; Campbell v. Floyd, 153 Pa. St. 84.

4See generally on this subject, Rees v. Berrington, 2 Leading Cases in Equity,
Pp. 974, 4th Am. edition, p. 1409-10. See also Bateson vw, Gosling, L. R. 7 C.
P. 9.

5098 Pa. St.. 432. Also Pursifull v. Pineville Banking Co.’s Assignee (Ky.), 30
S. W. 203; Montgomery v. Sayre, 100 Cal. 182.

§89 Pa, St. 128.
238 LAW OF CONTRACTS.

creditor, if it be within his control, so that by the exer-
cise of reasonable diligence he may have realized his
pay out of it, yet voluntarily and by supine negligence
relinquishes it, the surety is discharged.”

(6) When an agent deals on his own account in the
business of the agency, the principal may repudiate the
transaction or he may affirm the transaction and claim
any profits the agent has made by the transaction.

A common illustration of this principle is where an
agent for sale becomes a purchaser. ‘This he cannot do.’
The rule rests upon the principle that a man shall not
be allowed to put himself in a position in which his
interest and his duty conflict,?7 and it is immaterial
whether the principal suffers an injury or not by the
act of the agent in such a case. The principal is not
bound to go into an inquiry of that kind.

In Everhart v. Searle,3 an agent was employed to sell
land under an agreement by which he was to have all
he could sell it for over $125 an acre. He then went
to another man and agreed to give his services to him
in purchasing the same land for $500. He brought the
parties together and the land was sold for $150 per acre.
He then sued for the ¢500 and it was held that he
could not recover it because he had concealed from the
parties that he was acting as agent for both, and that
the agreement to endeavor to obtain it for the purchaser
was in bad faith toward the seller for whom he was acting;
and secondly, that the contract was illegal and he could
not recover on it although the seller was not injured.‘

1 Bartholomey v. Leech, 7 Watts 472; Fisher v. Lee (Iowa), 63 N. W. 442;
‘Colbert v. Shepherd, 89 Va. 401; Rockford Watch Co. v. Manifold, 36 Neb. 801;
‘Gonzalia v. Bartelsman, 143 Ill. 634; Burke v. Bours, 92 Cal. 108.

2Smitz v. Leopold, 51 Minn. 455.

371 Pa. St. 256. See also Smith v. Tyler, 57 Mo. App. 668; Kramer uv. Winslow,
154 Pa. St. 637.

4See note to Fox v. Mackreth, 1 Leading Cases in Equity.
LEGALITY OF OBJECT. 239

Any profits made by the agent in the business of the
agency belong to the employer. In Story on Agency,’
the rule is thus laid down: “Indeed, it may be laid
down as a general principle, that in all cases when a
person is either actually or constructively an agent for
another person, all profits or advantages made by him
in the business beyond his compensation, are to be for
the benefit of his employer,” ”

In the case of Morison v. Thompson,’ the defendant
was employed by the complainant to purchase a ship
on the basis of an offer of £9000. This ship was
finally purchased for £9250. The seller’s broker had
been authorized to sell it for £8500 and that anything he
got above that he might keep. He made an arrangement
with the defendant, the buyer’s broker, promising to give
him a portion of the excess. For this portion the
plaintiff brought an action for money had and received,
and was allowed to recover. The case is an interesting
one.

(c) The rule in regard to voluntary settlements before
marriage in fraud of marital rights is this: If a woman
is about to be married and secretly conveys her property
away, and then the marriage subsequently takes place,
that is a fraud upon the husband and he has a right
to have the settlement set ‘aside. It is necessary, how-
‘ever, that there should have been at the time a contract
of marriage which was subsequently carried out, and that
the settlement was made without his knowledge. In
Duncan’s Appeal,‘ such a settlement was set aside.

13 2011.

2See also on this subject Rorebeck v. Van Eaton (Iowa), 57 N. W. 694;
Warren v. Burt, 58 Fed. 101; St. Louis Elec. Light and Power Co. v. Edison
-G’n’l Elec. Co., 64 Fed. 997; Williams v. McKinley, 65 Fed. 4; Clarke v. Kelsey,
41 Neb. 766; Shearman v. Morrison, 149 Pa. St. 386; Manville v. Lawton, 65
Hun. 619; Levy v. Spencer (Colo.), 33 Pac. 415.

31, R.9 Q. B. 480.

*43 Pa. St. 67.
240 LAW OF CONTRACTS.

In this country it is settled that a secret conveyance
by a man on the eve of his marriage is voidable as against
his wife’s right of dower.’

4. Marriage within certain degrees of kindred or
affinity are contrary to positive law, and are prohibited
by statute.”

In Commonwealth v. Lane,? Gray, C. J., laid down
this rule, which is also the rule in a number of other
States :

“But a marriage which is prohibited here by statute,
because contrary to the policy of our law, is yet valid
if celebrated elsewhere according to the law of the place,
even if the parties are citizens and residents of the
Commonwealth, and have gone abroad for the purpose
of evading our laws, unless the legislature has clearly
enacted that such marriages out of the State have no
validity here.’ And this is the rule generally in this
country.*

B. AGREEMENTS CONTRARY TO Goop MorRALS.

The only agreements which have been held illegal
and void on the ground of immorality are these: (1)
Those which provide for or tend to illicit cohabitation ;
and (2) those which tend to disturb the marriage status.®

(1) All agreements for future illicit cohabitation are
illegal. (2) Agreements to live separate were originally

1 Chandler v. Hollingsworth, 17 Am. Law Register, N. S., p. 319.

2 Purdon’s Digest, p. 412. See Reed v. Reed, 49 Oh. St. 654.

31413 Mass. 458.

4See Bishop on Marriage and Divorce, pp. 340-400. See also Goodrich v.
Cushman, 34 Neb. 460; Jackson v. Jackson (Md.), 30 Atl. 752; Jz ve Lum Lin
Ving, 59 Fed. 682.

6 Blank v. Nohl, 112 Mo. 159; Evans v. Evans (Ky.), 20 S. W. 605; Loveren
v. Loveren (Cal.), 39 Pac. 801; Irvin v. Irvin (Pa.), 32 Atl 445; Barbour wv.
Barbour, 49 N.J. Eq. 429; Wilde v. Wilde, 37 Neb. 891.

6 Baldy v. Stratton, 11 Pa, St. 316; Agerst v. Jenkins, 16 Equity, 275~286. See.
Ernst v. Crosby, 140 N. Y. 364; Massey v. Wallace, 32 S. C. 149; Dougherty w..
Seymour, 16 Colo. 289; Schankel v. Moffatt, 53 Ill. App. 382.
LEGALITY OF OBJECT. 241

considered illegal, because marriage was considered a
sacrament creating an indissoluble relation. But the
law was settled in England by Hunt v. Hunt,’ the other
way, and a husband was enjoined from interfering with
his wife living separate under a deed of separation. In
this country such deeds are valid. And in Hutton ».
Hutton’s Administrators; such a deed made directly
between the parties without the intervention of a trustee,
was sustained. All agreements for a future separation
are illegal and void.‘

C. AGREEMENTS CONTRARY TO PuBLic Poricy.5

The application of the principle that contracts will be
declared illegal because against public policy is of very
early origin. Mr. Anson® says that probably agreements
in restraint of marriage, or of trade, or to promote litiga-
tion first called for the application of this rule. Mr.
Pollock, on the other hand,’ says that the efforts of judges
to discourage wagering contracts first brought about the
application of the principle of holding contracts illegal
because against public policy.

The leading case in England is Edgerton v. The Earl
Brownlow. The judgments in this case are very well
worthy of study, as they set forth the ground upon which
the Court will treat contracts as against public policy.
The danger in applying this principle is that the Courts”
may run into judicial legislation, and instead of having
some fixed principles applicable to the cases which may

14 De Gex, F. & J. 221.

2 Walker v. Walker’s Executors, 9 Wallace 743; Dillinger’s Appeal, 35 Pa.
St. 357.

33 Barr 100.

‘Walker v. Walker’s Executors, 9 Wallace 743.

5U.S. v. Trans-Missouri Freight Association, 58 Fed. 58, 7 C. C. A. 15.

§* page 183.

™* page 272.

84H. LL. C. 1-255.

16
242 LAW OF CONTRACTS.

come before it, may be tempted to decide that the contract
before it, on account of its particular facts and peculiari-
ties, is in their judgment contrary to public policy.

Sir George Jessel alludes to this danger in The Print-
ing & Numerical Registering Company wv. Sampson,"
where he says: “It must not be forgotten that you are
not to extend arbitrarily those rules, which say that a
given contract is void as against public policy, because
if there is one thing more than another public policy
requires, it is that men of full age and competent under-
standing shall have the utmost liberty of contracting,
and that their contracts when entered into freely and
voluntarily shall be held sacred and shall be enforced by
courts of justice, therefore you have this paramount
public policy, to consider—that you are not likely to
interfere with this freedom of contracting.” This was
an agreement by the vendors of a patent to assign to the
purchaser all future patent rights which the vendors may
hereafter acquire “‘of a like nature to the patent sold.”
It was held to be lawful. One of the vendors in this case
was the inventor.

(1) Contracts against public policy which prejudice the
State in rts relation to foreygn powers.

The first general class of contracts which are illegal
because against public policy are those which concern the
State in its relations with foreign powers. ‘ An agree-
ment may be void for reasons of this kind either when it
is for the benefit of an enemy, or when the enforcing of
it would be an affront toa friendly State.”? Potts wv. Bell,3
decided that trading with an alien enemy without the
king’s license was illegal, and that the purchase of goods

11g Eq. 462-465.

2 Pollock, *p. 278.
38T, R. 548.
LEGALITY OF OBJECT. 243

in an enemy’s country after the commencement of hos-
tilities, even though it be not shown that they were pur-
chased from an enemy, and bringing them into the
country in a neutral ship, was held to be illegal. Where
there is an existing contract, and war is declared between
the countries whose subjects are parties to the contract,
the effect is to suspend the contract, if it is of a char-
acter that can be suspended, and if it is not of that
character it is dissolved. War puts an end to all dealings
between the citizens of the two belligerent States, and the
individuals are treated as in a state of hostility as well as
the government.*

In Montgomery v. The United States,’ a contract made
in New Orleans during the war, by an agent of a planter,
to sell cotton belonging to him to an Englishman,
within the Confederate lines, was held to be void, and the
rule was thus stated: “Every kind of trading or com-
mercial dealing, or intercourse, whether by transmission
of money or goods, or orders for the delivery of either,
between the countries at war, either directly or indirectly,
or through the intervention of a third person, or partner-
ship, or by contracts, in any form looking to, or involving
such transmission,” are prohibited.

In New York Life Insurance Company v. Statham
et al it was decided that where certain people whose
lives had been insured in the New York Company, who
resided in the South and were prevented from paying the
premiums during the war, their policies became void, but
that the insured were entitled to recover their surren-
dered value. Four of the judges dissented from this
view ; two believing that they were entitled to recover noth-
ing, and two others being of opinion that the policies had

: 1 Expositito v. Bowden, go E. C. L. R. 762-782.
215 Wallace 395.
393 U. S. 24.
244 LAW OF CONTRACTS.

not become void, but were merely suspended. So where two
nationsare at peace, a contract between their subjects for the
purpose of raising money to enable one party to the contract:
to carry on hostilities against his own government is illegal.

In Kennett v. Chambers,’ it was held that a contract.
made by a citizen of the United States with certain citizens.
of Texas after they had declared war with Mexico, but.
before their independence had been recognized by the
United States, was illegal, and could not be recovered on.
But an agreement among neutrals, having blockade run-
ning for its object is lawful. So while it is conceded
to be unlawful to make an agreement to violate the laws.
of a friendly country, yet revenue laws are an exception
to this rule, so that the sale of an article with a knowl-
edge that it is to be smuggled into another country is a
lawful sale, yet if the seller contributes in any way to
the smuggling of the goods he cannot recover.

(2) Contracts against public policy which prejudice the
State in tts internal relations.

The second general class of contracts which are illegal
because against public policy are those to the prejudice
of the State in its internal relations. ‘These include con-
tracts affecting (a2) good government, (4) the administra-
tion of justice, and (¢) certain peculiar legal duties of indi-
viduals in the performance of which the public is interested.

(a2) Agreements affecting public services

An agreement to influence legislation, or to influence
a judicial or executive officer, is illegal and void A

114 Howard 38.

2? Rx parte Chavasse, Jn re Grozebrook, 4 De Gex, J. & S. 655.

3See Burney’s Heiss v. Ludeling, 47 La. Ann. 73.

4*See Danserau v. City of St. Louis, 18 Can. S. C. R. 587; Beebe v. Board
Sup’rs Sullivan Co., 64 Hun. 377; Funk v. Washington Turnpike, 13 Pa. Co.
Ct. R. 385; Washington Turnpike v. Shoop, 2 Pa. Dist. R. 639; Brown v. First.
Nat. Bank, 137 Ind. 655.
LEGALITY OF OBJECT. 245

contract to pay a man $1000 for procuring a pardon for
a person convicted of crime is said to be illegal.’ In
Marshall v. Baltimore & Ohio R. R.? an agreement to
procure legislation in the State of Virginia for the B. &
O. R. R., “by surrounding the legislature with respecta-
ble agents to influence the members to do naked justice”
‘was held to be illegal as contemplating the procurement
of the legislation through possibly improper methods, and
the Court in this case said “that what in the technical
vocabulary of politicians is called lobbying, is a mis-
‘demeanor at common law punishable by indictment.”
The same point was decided in Clippinger v. Hepbaugh.?
So a contract to take charge of a claim before Congress,
amounting in effect to a contract to procure the passage
of a bill by lobbying‘* and the purchase of an office are
illegals An agreement that the post office should be
moved near the vendee’s place of business and that he
‘should be appointed postmaster, was held illegal. In
Bowser v. Bowser,® an agreement made in consideration
of the plaintiff relinquishing his right to administer on
the estate of an intestate in favor of the defendant was
held to be against public policy and void. So in Hunter
v. Nolf,’ an agreement between the plaintiff and defendant,

'Hatzfield v. Gulden, 7 Watts 152. See also Foley zw. Platt (Mich.), 63 N.
“W. 520.

216 Howard 314.

35 W. &S. 315. Also Chesebrough v. Conover, 140 N. Y. 382; Spalding v.
‘Ewing, 149 Pa. St. 375; Roby wv. Carter (Tex.), 25 S. W. 725; Houlton v. Dunn
‘(Minn.), 61 N. W. 898; Burney’s Heirs v. Ludeling, 47 La. Ann. 73; Salinas v.
‘Stillman, 66 Fed. 677.

4Trist v. Child, 21 Wallace 441.

5 Filson’s Trustees v. Himes, 5 Barr 452; Basket v. Moss, 115 N. C. 448. See
-also Florida Cent. & P. R. Co. uw. State, 31 Fla. 482; Lunn v. Clark, 56 Minn.
278.

626 Pa. St. 74. See as to contract to procure appointment of administrator,
Aycock v. Braun, 66 Tex. 201. See also Greer v. Nutt, 54 Mo. App. 4; Moss v.
‘Cohen, 32 N. Y. Sup. 1078, 11 Misc. Rep. 184.

T71 Pa. St. 282; Deyoe v. Ewen, 70 Hun. 545; Deyoe v. Woodworth, 144N. Y.
-448.
246 LAW OF CONTRACTS.

who were both applicants for appointment as United
States assessors, whereby the plaintiff agreed to withdraw
and the defendant agreed to pay him half the emolu-
ments of the office, was held to be illegal.t So where a
candidate for public office pledged himself, if elected, to
perform the duties of the office for less than the lawful
salary or fees, his election was declared invalid.’

(6) Agreements which tend to pervert the course of justice.

(aa) An agreement for the purpose of stifling a crim-
inal prosecution is void because it tends to obstruct
justice. In Ormerod v. Dearman,’ a contract whereby
an attorney-at-law for a contingent fee, undertook to pro-
cure a settlement of a criminal charge, was held to be
illegal, but where civil and criminal remedies coexist a
compromise of a prosecution is permissible. .The rule is
thus stated in Keir v. Leeman.® “‘ We shall probably be
safe in laying it down that the law will permit a com-
promise of all offences, though made the subject of a
criminal prosecution, for which offences the injured party
might sue and recover damages in an action. It is often
the only manner in which he can obtain redress, but if
the offence is of a public nature no agreement can be
valid that is founded on the consideration of stifling pros-
ecution for it.”’ In this case an agreement founded on

1See also McCandless v. Alleghany Bessemer Steel Co., 152 Pa. St. 139; Keith
v. Fountain, 3 Tex. Civ. App. 391; Brooks v. Cooper, 50 N. J. Eq. 761.

2State v. Collier, 72 Mo. 13. Seealso Bloom v. Hazzard, 104 Cal. 310.

3Cox v. Grubb, 47 Kan. 435; Lyon v. Hussey, 82 Hun. 15; Boehmer v. Foval,
55 Ill. App. 71; Quirk v. Muller, 14 Mont. 467.

‘Williams v. Bailey, L. R. 1 H. L. 200-220; Morill v. Nightingale, 93 Cal.
452; Budd vw. Rutherford, 4 Ind. App. 386; Jones v. Merionethshire Bldg. Soc.,
(1891) 2 Ch. 587; (1892) 1 Ch. 173; People’s Bank v. Johnson, 20 Can. S. C. R.
541; Dionne v. Matzenbaugh, 49 Ill. App. 527; Friend v. Miller, 52 Kan. 139;
Springfield Fire & Marine Ins. Co. v. Hull (Ohio), 37 N. E. 1116. Buffalo Press
Club zv. Green, 86 Hun. 20,

5 too Pa. St. 561. Also Lalfield v. Manrow, 13 Pa. Co. Ct. R. 497.

66 Q. B. 21 (51 E. C. L. R. 308), and on appeal, 9 Q. B. 395.

TAmestoy v. Transit Co., 95 Cal. 311.
LEGALITY OF OBJECT. 247

the settlement of a prosecution, among other things, for
riot, was held to be illegal. In Geier v. Shade,’ it was
decided that an agreement to settle a prosecution for ob-
taining money under false pretences was a valid agree-
ment.

(46) Agreements to refer matters to arbitration which -
tend to oust the jurisdiction of the Court, though not
void, do not prevent an action to settle the very thing
which it is agreed to refer.* In Insurance Company v.
Morse, the agreement of an insurance company made in
pursuance of an act of the legislature, which required.
foreign insurance companies, in order to do business in.
the State, to stipulate that they would remove no actions:
to the Federal Court, was held to be illegal; and in Rea’s:
Appeal,‘ a provision in an assignment that the assignee’s
accounts should be audited in a particular court, was held.
not to be binding. But the parties to a contract may pro-
vide that no right of action shall arise until the amount
of damages shall have been found by arbitration, or by
the certificate of a certain person, and such contract is
valid.s In Mentz v. Armenia Fire Ins. Company,° it was
held that where a condition inthe policy provided that
“no action, suit or proceeding at law or in equity shall
be maintained on this policy unless the amount in dispute,
as aforesaid, shall have first been thus ascertained” (and
the policy provided that the mode of ascertainment should
be by arbitration) the jurisdiction of the Court was not
ousted. The Court, however, said that it was not without
effect and that if the insurance company had admitted

1 tog Pa. St. 180.

2 Lanford v. Commercial Traveler’s Mut. Acc. Ass’n of America, 86 Hun. 380;
Knorr v. Bates, 33 N. Y. Sup. 691, 12 Misc. Rep. 395. See article by Hugh EH.
Miller, in 33 Cent. Law J. 168.

320 Wallace 445.

413 W. N.C. 546.

5Scott v. Avery, 5 H. L. C. 811; Greve v. Aitna Live Stock Ins, Co., 81 Hun. 28,

679 Pa. St. 478. See Tullis v. Jackson, (1892) 3 Ch. 441.
248 LAW OF CONTRACTS.

the validity of the policy and their liability under it, and
had then shown that there was a dispute as to the extent
of that liability, that it might be that before a suit could
be brought that question must first be referred to arbitra-
tion.

(cc) Agreements intended to encourage litigation.
Under this head will come contracts of maintenance and
champerty.

Maintenance is defined to be “when a man maintains a
suit or quarrel to the disturbance or hindrance of right.”
But in Findon v. Parker,? the law of maintenance is
confined to cases where a man improperly and for the
purpose of stirring up litigation and strife encourages
a man either to bring actions or to make defences which
he has no right to make.

Champerty is where he who maintains another is to
have by agreement part of the land or debt in suit; so
that champerty is maintenance plus the right to have
part of whatever is recovered. It has been decided in
England that an agreement to advance funds or supply
evidence, with or without professional assistance, for the
recovery of property in consideration of being paid out
of the property in proportion to the amount recovered
is illegal.

In Huntly v. Huntly,* the plaintiff and defendant
entered into an agreement under which the defendant
was to supply the plaintiff with the means of contesting
the will of the deceased, which revoked a prior one under
which the plaintiff was a beneficiary, and the agreement
provided that whatever was recovered was to be divided
between the plaintiff and the defendant. This was held

1Com. Dig. 5 p. 22.

411M. & W. 675.

3 Alabaster v. Harness, (1895) 1 Q. B. 339.
*L. R. 8Q. B. 112.
LEGALITY OF OBJECT. 249

to be illegal.t This is not the law in Pennsylvania, and
it is well settled here that an attorney may contract with
his client for a contingent fee, even when he is a material
witness himself in the case, and where it is understood
that he will testify as such witness.*?. The rule is different
in different States in this countrys The purchase of
property the title to which is in dispute, or which is the
subject of a suit, or the agreement for such purchase is
not illegal, but such an agreement is illegal if the real
object is to enable the purchaser of it to maintain a suit.®

(c) Agreements touching certain dutves of individuals in
which the public has an interest.

Certain agreements have been considered unlawful
and void which, though they deal with duties towards
individuals, affect the public in their performance.‘
Instances of this kind of agreement are contracts by
a father to deprive himself of the custody of his children,
and contracts insuring seamen’s wages.

In regard to the first of these, contracts by a father
to give up absolutely the custody of his children to his
wife, or to anybody else, are held to be void because
they are against public policy.? But while the Court will

1Kelly v. Kelly, 86 Wis. 170; Keiper v. Miller, 68 Fed. 627; Hamilton v.
Gray (Vt.), 31 Atl. 315; Lyon v. Hussey, 82 Hun. 15. Contra, Brown v. Bigne,
21 Or. 260: Graham v. McReynolds, 90 Tenn. 673; Joy v. Metcalf, 161 Mass.
514; Ross v. City of Fort Wayne, 64 Fed. 1006, 12 C. C. A. 627.

2 Perry v. Dicken, 105 Pa. St. 83. Also Reece v. Kyle, 49 Ohio 475; Burnham
v. Heselton, 84 Me. 578; Dunne v. Herrick, 37 Ill. App. 180; Manning z,
Perkins, 85 Me. 172. See Jv re Murray’s Estate (Pa. Orph. Ct.) 2 Pa. Distr.
Rep. 681.

3 The cases are collected in Pollock, p. 296, note /.

4 Wagar v. Bowley (Mich.), 62 N. W. 293; Sand v. Church, 7o Hun. 483. As.
to purchase of litigious rights, see Gilkeson-Sloss Commission Co. v. Bond,
44 La. Ann, 841. :

5 De Hoghton v. Money, L. R. 2 Ch. App. 164; Snyder v. Church, 70 Hun. 428.

6 Pollock, * p. 304.

7 See cases collected in the opinion of the Court, Zm ve Andrews’ App’l, L. R.

8$Q. B,, 153.
250 LAW OF CONTRACTS.

not recognize such an agreement because against public
policy, yet if the conduct of the father is such that the
Court, looking to the interest of the child, would take it
from his custody and place it in the charge of somebody
else, then where there has been an agreement before for
that purpose, such an agreement will be carried out.’

In regard to the insuring of seamen’s wages, Chancellor
Kent says,’ “The expediency of the prohibition arises
from the consideration that if the title to wages did not
depend upon the earning of the freight by the perform-
ance of the voyage, the seamen would want one great
stimulus to exertion in times of difficulty and disaster,”
and therefore it is a settled principle that such contracts
of insurance are not valid.

(3) Agreements against public policy because unduly
limiting the rights of tndividual action.

Sir George Jessel, /z ve Printing & Numerical Regis-
tering Company vw. Sampson,’ said: “If there is one thing
which more than another public policy requires, it is that
men of full age and competent understanding shall have
the utmost liberty of contracting and that their contracts,
when entered into freely and voluntarily, shall be held
sacred and shall be enforced by courts of justice.”

Notwithstanding this general principle, there are
certain matters as to which this freedom of contracting,
which public policy requires, and which exists in most
things is restricted. These are certain contracts relating
to (a) marriage, (0) testamentary dispositions, and (c)
trade.

1See Hamilton v. Hector, L. R. 13 Equity 511, and particularly the remarks
of Lord Romilly, M. R. pp. 519, 520 and 525. See also Enders v. Enders, 164
Pa. St. 266.

2 3 Kent 269.

319 Equity 465.
LEGALITY OF OBJECT. 251

(2) Agreements which affect the freedom or security of
marriage are invalid. A contract by a man or woman
that he or she will not marry is illegal.

In Lowe wv. Peers,’ an action of covenant was brought
upon a marriage contract under seal, in which Mr.
New Champagne Peers promised Mrs. Catharine Lowe
that he would not marry with anybody besides herself,
and that if he did, he would pay her one thousand
pounds within three months after he married anybody
else. This contract was made in 1757, and in 1767 Mr.
Peers married somebody else and Mrs. Lowe brought
suit, averring that she had to remain single, and that
she had always been willing to marry Mr. Peers while
he remained single but that he married Elizabeth
Gardner. The verdict was for the plaintiff and it was
moved in arrest of judgment that the bond was void
because in restraint of marriage, and the judgment was
arrested.

So an agreement to procure or negotiate a marriage
for a consideration is void and illegal. These agreements
are called marriage brokage contracts. In Johnson ».
Hunt,’ an agreement by a grandfather to surrender to
his grandson a note for $5000, which he held, if the
grandson would use his endeavors to induce a young
lady to marry the grandfather was held to be illegal
and void.

(4) An agreement to use influence with a testator in
favor of a particular person or object is void. In
Debenham v. Ox,? a bond, given by the plaintiff to
the defendant in consideration that she would make
use of the influence that she had over the plaintiff’s
grandfather that he should dispose of the whole of his

14 Burrows 22-25.

281 Ky. 322.

31 Vesey Senior 276. An agreement bya person to make another (not related
to him) his heir, is illegal. Davis v. Jones Adm’r, 94 Ky. 320.
252 LAW OF CONTRACTS.

estate for the plaintiff’s benefit, was ordered to be can-
celled and delivered up, but no costs were allowed; the
Lord Chancellor placing the decree upon the ground
that the plaintiff himself having solicited the proposed
action was particeps crimints and would have had no
standing in court to have the deed set aside had it not
been void upon the ground of public policy, and that
while the Court would set it aside for this reason, at the
same time it would deny the plaintiff his costs.

(c) As to agreements affecting trade. In general it is
unlawful fora man to make a contract restraining him-
self from carrying on any lawful business, or from
exercising his skill to earn a living, because such a
contract is injurious to the public, as having a tendency
to prevent men from earning a livelihood, and also to
create monopolies.*

An agreement between several manufacturers to regu-
late their wages and hours of work, the suspending of
work, partially or altogether, and the management of
their establishments by the decision of a majority of their
number, is in general restraint of trade and illegal.’

In the Morris Run Coal Company wv. The Barclay
Coal Company,’ an agreement was made by five corpora-
tions dividing certain bituminous coal regions of which
they had control among them in certain proportions.
A committee was appointed to control the business of

1See the case of Alger v. Thacher, 19 Pic. 51-54. Also U. S. v. Trans-
Missouri Freight Ass’n, 58 Fed. 58, 7 C. C. A. 15,

? Hilton v. Eckersley, 6 E. & B. (88 E. C. L. R.), 47.

368 Pa. St. 173. See also Judd v. Harrington, 139 N. Y. 105; Chicago, M. &
St. P. Ry. Co. v. Wabash, St. L. & P. Ry. Co., 61 Fed. 993, 9 C. C. A. 659; Foss
v. Cummings, 149 Ill. 353; Oliver v. Gilmore, 52 Fed. 562; Griffin uv. Piper, 55
Ill. App. 213; Nester v. Continental Brewing Co., 161 Pa. St. 473. See U.S.
Chemical Co, v. Provident Chemical Co., 64, Fed. 946; Oakes v. Cattaraugus
Water Co., 143 N. Y. 430; Drake v. Siebold, 81 Hun. 178; National Distilling
Co. v. Cream City Importing Co., 86 Wis. 352; Southern Pac. Co. vw. U. S., 28
Ct. Cl. 77; Pope Mfg. Co. v. Gormully, 144 U. S. 224, 238.
LEGALITY OF OBJECT. 253.

all the companies, and decide all questions by a vote,
and each company was to deliver coal under the direction
of the committee, at certain times, and to such persons
as the committee should choose. The committee had
the right to adjust the prices of coal, and to suspend
delivery where any company sold beyond its proportion.
It was held that this agreement was illegal, and a draft
drawn on one of the companies for the amount due
from it in order to equalize the proportions of the
parties, under the agreement, was void and could not be
recovered.

But while contracts in general restraint of trade are
unlawful, the same public policy which makes them
unlawful, permits contracts in partial restraint of
trade to be made in order to encourage a healthy com-
petition.

It is thus expressed by Vice-Chancellor James, in
Leather Cloth Company wv. Larsont:’ “Public policy
tequires that every man shall be at liberty to work for
himself, and shall not be at liberty to deprive himself, or
the state of his labor, skill or talent, by any contract that
he enters into. On the other hand, public policy requires
that when a man has by skill or by any other means.
obtained something which he wants to sell, he should be
at liberty to sell it in the most advantageous way in the
market; and in order to enable him to sell it advan-
tageously in the market it is necessary that he should
be able to preclude himself from entering into competition
with the purchaser. In such a case the same public
policy which enables him to do that does not restrain
him from alienating that which he wants to alienate, and
therefore enables him to enter into any stipulation how-
ever restrictive it is, provided that restriction in the
judgment of the Court is not unreasonable, having

IL. R. 9 Equity 354.
254 LAW OF CONTRACTS.

regard to the subject matter of the contract.” The lead-
ing case on this subject is Mitchell v, Reynolds.’

The restriction in order to be valid must be reason-
able and founded upon a given consideration. In Keeler
v. Taylor,? Keeler agreed to instruct Taylor in making
platform scales, and to employ him afterward in making
them at the rate of $1.75 per day, and Taylor agreed to
pay Keeler $50 for every machine he should make for
anybody else without Keeler’s consent. Taylor continued
to work for Keeler under this agreement for seven years,
and then left his employment and went to making scales
on his own account, and Keeler filed a bill to restrain
him. The bill was dismissed because the restraint was
unreasonable as to time and space.

It is said in Gompers v. Rochester,} that the consider-
ation must appear on the face of the instrument, and
that if the instrument be under seal, the seal in such
case does not render it unnecessary to aver a consider-
ation. But the case cited as authority is that of Mallan
v. May,‘ which does not go to this extent, Baron Parke
saying: “But if there are circumstances recited in the
instrument (or probably if they appear by averment) it
is for the Court to determine whether the contract be a

fair and reasonable one or not.» But whether it is

11 Smith’s Leading Cases, *p. 417.

*53 Pa. St. 567. As to what restrictions are reasonable, see Gamewell Fire
Alarm Telegraph Co. v. Crane, 160 Mass. 50; Fuller v. Hope, 163 Pa. St. 62;
Davies v. Racer, 72 Hun. 43; Brown v. Kling, ror Cal. 295; Nordenfelt v.
Maxim-Nordenfelt Guns & Ammunition Co., 11 Reports 1; Id. 67 Law T.
(N. S.) 469; Id., (1894) App. Cas. 535; Ellerman v. Chicago Junction Rail-
ways and Stockyards Co., 49 N. J. Eq. 217; Tode uv. Gross, 127 N. Y. 480;
Lewis v. Gollner, 129 N. Y. 227; Mills uv, Dunham, (1891) 1 Ch. 576; Davies v.
Lowen, 64 Law T. 655; Urmston wv. Whitelegg, 55 J. P. 453; Rogers v. Mad-
docks, (1892) 3 Ch. 346; Williams v. Montgomery, 68 Hun. 416; Hulse v.
Bonsack Machine Co., 65 Fed. 864, 13 C. C. A. 180.

356 Pa. St. 194. /

411M. & W. 655.

5 Badische Anilin Fabrik v. Schott, (1892) 3 Ch. 447; Perls v. Saalfeld, (1892)
2 Ch. 149.
LEGALITY OF OBJECT. 255

necessary to aver a consideration in the instrument or not,
it is decided both in Hitchcock v. Coker! and in McClurg’s
Appeal’ that the Court will not enter into the question
of the adequacy of the consideration.

It has been decided that if the contract is reasonable
in other respects, that a restraint indefinite in point of
time does not invalidate it.

But while a restriction indefinite in point of time was
lawful, the general rule has been that one unlimited in
Space was unlawful,t and many cases have been decided
to the effect that a restriction against exercising a trade
anywhere within a State is an unreasonable one, and
therefore void because in restraint of trade. But in two
cases, one Beal v. Chase,5 and the other The Oregon
Steam Navigation Company v. Winsor,’ agreements were
sustained, in the first place, not to carry on business, and
in the second, not to run a steamboat anywhere within
the limit of the State. In the latter case, Bradley, J., says:
“This country is substantially one country, especially in
the matter of trade and business.; and it is manifest that
cases may arise in which it would involve too narrow a
view of the subject to attempt to invalidate a contract not
to carry on a particular business within a particular State.”

And in Rousillon v. Rousillon,? Fry, J.,° discusses

16 Ad. & E. 438.

#58 Pa. St. 51.

5 See cases cited in Note to Mitchell v. Reynolds, Smith’s Leading Cases, 8th
ed., p. 780. Also Hitchcock v, Coker, 33 E. C. L. R. (6 Ad. & E.) 438; Carll v.
Snyder, (N. J. Ch.) 26 Atl. 977.

‘Martin v. Murphy, 129 Ind. 464; Field Cordage Co. v. National Cordage Co.,
6 Ohio Cir. Ct. R. 615. But see Oakdale Mfg. Co. uv. Garst, (R. I. ) 28 Atl. 973;
Nordenfelt v. Maxim-Nordenfelt Guns & Ammunition Co., 11 ‘Reports (Jan.) 1;
Ad., (1894) App. Cas. 535-

531 Mich. 499. See also Moenich v. Fenestre, 61 Law J. Ch. 737; Id., 67 Law
T. (N. S.) 602.

620 Wallace 64.

12 Ch. D. 338.

SSee pp. 363, 364, 365.
256 LAW OF CONTRACTS.

what is the criterion by which the reasonableness of a
contract in restraint of trade is to be judged. Asa
result, he reaches the conclusion that the burden of
showing that the contract illegally restrains trade rests:
upon the defendant, because it is the defendant who
seeks to put the restraint upon the freedom of con-
tracting.'

I. Tae EFFECT OF THE PRESENCE OF ILLEGALITY IN
AN AGREEMENT.

This is the second division into which the considera-
tion of the illegality of contracts was divided, the first.
being the classification of illegal agreements. The effect.-
of illegality existing in a contract varies according to.
varying circumstances. The illegality may affect the
whole or only a part of a contract, and in the latter
case, the illegal part may or may not be capable of
being separated from the legal contract. Both parties.
may be aware of the illegality, or both parties may be
ignorant of it; or one party may be aware of it and the
other may not. Securities may be given for money due
for an illegal object.

1. Cases where the contract ts divisible.

If one of the things promised is legal and the other
illegal, and these promises are not interdependent in
any way, then the consideration will support the legal
promise, and the illegal promise will be void.’

This rule is laid down as follows in Pigott’s Cases:
“Tf some of the covenants of an indenture, or of the
conditions endorsed upon a bond are against law, and

1Commonwealth v. Eagan, 103 Mass. 71; Gibbs v. Consolidated Gas. Co., 130
U. S. 397; Diamond Match Co. v. Roeber, 106 N. Y. 473. See also Patterson
on Contrasts in Restraint of Trade. Also Badische Anilin Fabrik v. Schott,
(1892) 3 Ch. 447.

2 Davies v. Lowen, 64 Law T. 655.

22 Reports 27.
LEGALITY OF OBJECT. 257

some are good and lawful, in this case the covenants or
conditions which are against law are void ad zuztzo, and
the others stand good.”

This rule has been applied in the case of contracts
in restraint of trade." Thus in Peltz v. Eichel,? a con-
tract not to engage in a particular trade for a specific
time, in the City of St. Louis, or at any other place,
was held to be divisible and good as to the restriction
in St. Louis. So in Massachusetts, where a man agreed
not to be interested in a certain business ina certain
county, nor for five years anywhere in the United
States, it was held that the contract was divisible and
good as to the certain county, though void as to the
United States.

In Price v. Green, a covenant not to carry on a
perfumery business in London and Westminster, nor
within a distance of sixty miles thereof, was held to be
good as to London and Westminster, though void as to
the rest.

In the Oregon Steam Navigation Company v. Winsor,
A sold a steamer to B with an agreement that it should
not be used in California waters for ten years. Three
years afterward B sold the steamer to C with a similar
agreement as to California and Washington territory,
for ten years from the date of the second sale. Now it
was conceded that B had no interest in the second
covenant except to protect A for the unexpired seven years
of B’s covenant with him. It was held that the covenant
was divisible and could be enforced as to the seven years.

1See Rogers v, Maddocks, (1892) 3 Ch. 346; Brown v. Kling, ror Cal. 295;
Gamewell Fire-Alarm Tel. Co. v. Crane, 160 Mass. 50.

262 Mo. 171.

3 Dean v. Emerson, 102 Mass. 480; City Carpet Beating, etc., Works v. Jones
(Cal.), 36 Pac. 841.

416 M. & W. 346.

5 20 Wallace 64.

17
258 LAW OF CONTRACTS.

In Western Union Telegraph Company wv. Burlington
& Southwestern Railroad Company,’ the Railroad Com-
pany made a number of promises, one of which promises
was illegal, but all the others legal, in consideration of
certain promises on the part of the telegraph company,
all of which were legal. The Court held that the
contract was divisible and the legal promises of the
railroad company binding, citing the rule laid down by
Tyndall, C. J., in Shackell v. Rosier,? quoted in the
Eighth Edition of Smith’s Leading Cases,3 as follows:

‘“‘ Where the consideration is tainted with no illegality,
but some of the conditions or promises are illegal, the
illegality of those which are bad does not communicate
itself to, or contaminate those which are good, except
where in consequence of some peculiarity in the contract
its parts are inseparable or dependent upon one another.”
This same rule is applied to contracts of corporations
where some of the objects are w/tra vires and some are not.

2. Where there are several considerations for a promise,
some legal and others tllegal, the contract ts void.

The reason of the rule‘ is that in such a case it is
impossible to apportion each part of the consideration in
inducing the promise ;:but this must be taken with the
qualification that where as a matter of fact it is possible
to apportion the good and bad parts of the consideration
to the respective parts of the promise, then the promise
to which the legal consideration attaches is binding.

The rule is well expressed by Chief Justice Gibson
in Filson’s Trustees v. Himes,> where he says: “If

13 McCrary 130.

22 Bingham, N. C. 438.

3p, 727; English note to Collins v. Blantern.

*Bick v. Seal, 45 Mo. App. 475; Boehmer 7. Foval, 55 Ill. App. 71; Tompkins

v. Compton, 93 Ga. 520; Beitman v. Steiner, 98 Ala. 241.
55 Pa. St. 452.
LEGALITY OF OBJECT. 259

any part of an indivisible promise, or any part of an
indivisible consideration for a promise is illegal the whole
is void.” In this case a promise to secure the removal
of a post office and the appointment of one of the parties
to the contract as post master was held not to be separable
from the rest of the consideration, and therefore to taint
the whole contract and render it void. The same prin-
ciple was applied to an issue of bonds by a municipality
exceeding the constitutional limit, in Borough of Millers-
town v. Frederick,’ it being impossible to tell which bonds
were within and which bonds beyond the lawful limit.

3: Where the tmmediate object of a contract zs tlegal
the agreement 7s vord.’

But where there is no illegal intent and where the
contract can be and is legally performed, it is valid,
though the intention was to perform it in a manner
which was illegal, but which neither party knew was
illegal. In Waugh v. Morris,? a contract for the impor-
tation of goods, which, as intended to be carried out was
forbidden, was held good, because as actually carried out
the law was not violated, and because neither party
intended to do an illegal act.

4g. Where the tmmedtate olject or consideration of an
agreement ts not unlawful, but the intention is to
further an illegal purpose.

In such case the contract is void if both parties knew
of the illegal purpose at the time.t This seems to be
the result of the modern English cases. In the earlier

1y14 Pa. St. 435.

2 Woodford v. Hamilton (Ind.), 39 N. E. 47; Graves v. Johnson, 156 Mass. 211;
Miller v, Ammon, 145 U.S, 421.

3 Waugh v. Morris, L. R. 8 Q. B. 202, See Hartford Fire Ins. Co. v. Chicago,
M. & St. P. R. Co., 62 Fed. go4.

4Pollock, * p. 322.
260 LAW OF CONTRACTS.

cases something more than mere knowledge was held
necessary. In Faikney v. Reynolds,’ decided in 1767,
one man had paid money at the request of another, on
a contract which was illegal, and a bond was given for
its repayment. It was held that he could recover on
the bond because he was not concerned in the use which
the other made of the money. This was followed in
1803, in Bowry v. Bennett,? where a man was allowed
to recover the price of goods sold for a purpose which
he knew was immoral. And again in Hodgson w.
Temple,’ it was decided that a man could recover the
price of liquor sold with the knowledge that the defend-
ant intended to use it illegally. It was held that in
order to deprive him of the right to recover, it was
necessary that the vendor should be a sharer in the
illegal transaction. In the same year, however, the case
of Langton v. Hughes,* was decided, where the action
was for the price of drugs sold to the defendants, who.
were brewers, with the knowledge of the plaintiffs that.
they were intended to be mixed with beer, which was
contrary to law; and the jury were charged that in
selling them to the defendants with this knowledge the
plaintiffs were aiding the defendants in their unlawful
act. This charge was sustained and it was held that the
plaintiffs could not recover. This case, where the mod-
ern doctrine was first laid down, was followed by Canna
v. Bryce,’ which was the case of a loan of money for the
purpose of enabling a party to pay for losses on an
illegal stock transaction. In this case it was held that
the plaintiff could not recover because he had loaned the

14 Burrow 2070.

21 Campbell 348.

35 Taunton 181. See Gambo uv Sunderland’s Estate, ror Mich. 355; Durkee
‘v. Moses (N. H.), 23 Atl. 793.

41M. & S. 593.

53 B, & Ad. 179.
LEGALITY OF OBJECT. 261

money to another man with full knowledge of the object
to which the money was to be applied, and with the
express purpose of accomplishing that object.

Again, in 1866, the rule was laid down in the case of
Pearce v. Brooks.’ In this case the plaintiff supplied a
carriage to the defendant with the knowledge that it was-
intended to be used in the prosecution of an unlawful
business, and it was held that the contract was void. Inthe
case of Hanauer wv. Doane,’ it was decided that an action
would not lie for the price of goods sold with the knowl-
edge that the defendant proposed to use them to aid
the Confederate States’ government. Justice Bradley,
after reviewing the cases, said: “Where to draw the —
precise line between the cases in which the vendor’s
knowledge of the purchaser’s intention to make an
unlawful use of the goods will vitiate the contract,
and those in which it will not, may be difficult. Per-
haps it cannot be done by exact definitions. The whole
doctrine of avoiding contracts for illegality and immor-
ality is founded on public policy. It is certainly con-
trary to public policy to give the aid of the Courts to
a vendor who knew that his goods were purchased, or
to a lender who knew that his money was borrowed,
for the purpose of being employed in the commission
of a criminal act, injurious to society, or to any of its
members.” 3 On the contrary, however, it has been held
in a good many cases in this country that the vendor
of goods is entitled to payment, though he may have
known that the buyer intended to make an illegal use
of them.‘

In Tracy v. Talmage,’ the English and American

iL, R. 1 Exch. ‘213.

12 Wallace 342.

3 See Waugh v. Beck, 114 Pa. St. 422.

4Hill v. Spear, 50 N. H. 253.
514N. Y. 162.
262 LAW OF CONTRACTS.

cases are thoroughly reviewed, both by Judge Selden and
Judge Comstock.

In a note to Anson on Contracts,’ the rule in this
country is stated as follows: “As a rule the vendor
will not be deprived of the right of payment unless
(a) it be made a part of the contract of sale that the
property shall be used for an unlawful purpose ;? (6)
unless the vendor does something beyond making the
sale in aid or furtherance of the unlawful design; (c)
unless the illegal act contemplated is such that no man
having a knowledge of the design can remain neutral
without being in a just sense a criminal himself.” And
cases are then cited, and the same note also cites the
American cases to the effect that where money is loaned
“for the express purpose” of accomplishing an illegal
object, it cannot be recovered back. Where the illegal
act has already been committed, however, the loan of
money to meet an obligation arising out of the illegal
transaction isa lawful contract. In Armstrong wv. Toler,?
goods had been imported illegally for the defendant, but
consigned to the plaintiff. They were seized by the gov-
ernment and the plaintiff gave a bond for their appraised
value, the defendant agreeing to pay the plaintiff whatever
he might be compelled to pay, whereupon the goods were
delivered to the defendant. The goods having been
condemned, the plaintiff had to pay their appraised value,
and then he sued the defendant under his contract. It
was held that he could recover. In charging the jury,
Judge Washington said: “If the man who imports goods
for another by means of a violation of the laws of his
country is disqualified from founding any action upon
such illegal transaction for the value, or freight of the

Ip. 192.
?Schankel v. Moffatt, 53 Ill, App. 382.
311 Wheaton 258.
LEGALITY OF OBJECT. 263

goods, or other advances made on them, he is justly
punished for the immorality of his act, anda powerful
discouragement for its perpetuity is provided for it by the
rule, but after the act is accomplished no new contract
ought to be affected by it. It ought not to vitiate a con-
tract of the retail merchant who buys these goods from
the merchant; that of the tailor who purchases from the
merchant; or of the customers of the former amongst
whom the goods are distributed in clothing, although
the illegality of the original act was known to each of
the above persons at the time of the contract.” The
case was argued for the plaintiffs in error by Messrs.
Webster and Wheaton, and C. J. Ingersoll contra, and
the opinion of the Supreme Court was delivered ‘by
Chief Justice Marshall, affirming the judgment.

In Sterrett e¢ al. v. The Philadelphia Local Telegraph
Company,’ the Court of Common Pleas No. 2, of Phila-
delphia County, in deciding the case said, “‘ We believe
no case has gone so far as to decide that the lender of
money may not recover it at law, though he knew the
borrower intended to use it for gambling.”’’

5 Where the tmmediate object of the contract ts not
unlawful, and yet the contract 1s designed to further
an illegal purpose.

If the unlawful intention of one of the parties is not
known to the other at the time of the agreement, then
the contract as long as it is executory, is voidable at the
option of that. other. In Cowen wv. Millborn,? the plaintiff
sued the defendant for a breach of agreement for letting
some rooms. It appears that the defendant intended to

118 W. N.C. 77.
2 Waugh wv. Beck, 114 Pa. St. 422. See also Longnecker v. Shields, 1 Colo.

App. 264.
31. R. 2 Exch. 230.
264 LAW OF CONTRACTS.

use the rooms for a purpose forbidden by statute, that is,
for blasphemous lectures. The defendant having learned
this refused to give him possession and the suit was
brought for a breach of the contract of letting. It was
held that the plaintiff could not recover.’ If, however,
the contract has been completed by an actual transfer of
property it is valid, though made upon an illegal con-
sideration.

In Ragnet v. Roe,? a note had been given for the
purpose of stifling a prosecution. The note had been
sued upon and the illegal purpose for which it was
given was held to be a good defence, but the note was
secured by a mortgage and in an action of ejectment
brought on the mortgage, it was held that as the
mortgage was an executed contract by which the title
passed subject to a defeasance, that evidence of the
illegal purpose for which the note was given, to secure
which the mortgage had been executed, was not
admissible.

6. Securities for the payment of money due upon an illegal
contract.

Where the transaction is illegal, a promise either by
parol or under seal to pay money due upon it, is void.
In Fisher v. Bridges,’ the plaintiff sued the defendant
on a covenant to pay money. The defendant proved
that the covenant was made on the consideration of an
assignment to him of a leasehold interest subsequently

1A loan toa person to enable him to carry on a liquor business under a license
is not against public policy. Germantown Brewing Co. v. Booth, 162 Pa. St.
Ioq. See also Bing v. Willey (Pa.), 23 Atl. 440.

27 Ohio (Part 2) 70.

3See Savings Bank of San Diego County v. Burns, 102 Cal. 473; Leveroos vz.
Reis, 52 Minn. 259; Oliver v. Gilmore, 52 Fed. 562.

42E.&B. 118. Also International Bank of Chicago v. Vankirk, 39 Ill. App.
23; Nave v. Wilson (Ind.), 38 N. E. 876; Beer v. Landman (Tex.), 30 S. W. 64;
Sheldon v, Pruessner, 52 Kan. 579.
LEGALITY OF OBJECT. 265

to be sold at lottery in a manne Prbidden by statute.
The Court below held that the covenant was good, being
simply for the payment of money. ‘This judgment was
reversed in the Exchequer Chamber, where it was held
that it was not a simple promise to pay money, but
that it sprang from, and was the creature of, an illegal
transaction.

Armstrong v. Toler," is an illustration of a case where
the illegal purpose is so distinct from the giving of the
security that the latter is valid. :

If the security is a negotiable instrument, and it passes
into the hands of an innocent holder for value, the effect
of the illegality in the contract for which it is given is
not to render the negotiable security void, but to throw
upon the holder the burden of proving that he is an
innocent holder for value.”

7. As a general rule, money or property paid or deliv-
ered under an unlawful agreement cannot be recov-
ered back.

The plaintiff cannot set up a case in which it appears,
either from his own statement or otherwise, that an
illegal purpose is the groundwork of his claim. This
rule is expressed in the maxim Jz part delicto potior
est condttio defendentis. 'The law leaves them in the posi-
tion in which they are.

In Holeman v. Johnson,‘ it is said: ‘The objection
that a contract is immoral or illegal as between plaintiff
and defendant sounds at all times very ill in the mouth
of the defendant. It is not for his sake, however, that

111 Wheaton 258-269. See Smith v. Delaney, 64 Conn. 264.

2 Hutchinson v. Boggs & Kirk, 28 Pa. St. 294; and Daniels on Negotiable
Instruments, ¢ 815, note I.

3 Woodford v. Hamilton (Ind.), 39 N. E. 47; McEwen v. Shannon, 64 Vt.
583; Wyman v. Moore (Cal.), 37 Pac. 230.

41 Cowper 341.
266 LAW OF CONTRACTS.

the objection is ever allowed, but it is founded in general
principles of policy which the defendant has the advan-
tage of contrary to real justice, as between him and the
plaintiff, by accident, if I may say so. The principle
of public policy is this: Ax dolo malo non oritur actio.
No Court will lend its aid to a man who founds his
cause of action upon an immoral or illegal act, if from
the plaintiff’s own statement or otherwise, the cause of
action appears to arise ex furpicosa, or the transactions
of the positive law of this country through the Court.
assist him who has no right to be assisted. It is upon
that ground the Court goes; not for the sake of the
defendant, but because they will not lend their aid to
such plaintiffs. So if the plaintiff and defendant were
to change sides and the defendant was to bring his
action against the plaintiff, the latter would then have
the advantage of it, for where both are equally in fault
portior est conditio defendentzs.”

This rule was applied in Chester v. Taylor.* In this case
the plaintiff declared on the bailment of a bank note to be
delivered on request. The defendant pleaded that it had
been deposited tosecure the payment of money advanced by
the plaintiff to the defendant, and the plaintiff replied that
the money alleged to be due on the plea, was money loaned
for an improper purpose, and the defendant demurred to
the replication. It was held that the demurrer was good.

There are certain cases in which the rule is not applica-
ble. If A pays money to B for the use of C, B can-
not refuse to pay it to C because it was paid under an
unlawful agreement between A and C.3

1 City of Los Angeles v, City Bank, too Cal. 18; Chicaga M. & St. P. Ry. Co. v.
Wabash, St. L. & P. Ry. Co., 61 Fed. 993, 9 C. C. A. 659; Spearman z, City of Tex-
arkana, 58 Ark. 348; Olcott v. International & G. N. R. Co. (Tex.), 28S. W. 728;
Goodrich v. Tenney, 144 Ill, 422; Church v. Proctor, 66 Fed. 240, 13C. C. A. 426.

24 Q. B. 309.

‘Tenant v. Elliott, 1 B, & P. 3; Miller v. Houston City Ry. Co. 55 Fed. 366.
LEGALITY OF OBJECT. 267

In Lestapies v. Ingraham,’ it was decided that where
one person by fraud obtains compensation for an injury
done to property of another, for which the other could
not recover, the receiver is accountable to the true owner.
In this case a citizen of the United States had been
allowed, in making a claim against the French Govern-
ment under a treaty with the United States, the value
of certain goods destroyed by the French and which
belonged to a citizen of France, who was unable to make
any claim for them. It was held that the citizen of
France could recover their value from the citizen of the
United States.

In Brooks wv. Martin,? it was held that one partner
might have an account against the other partner for the
proceeds of a business which was illegal; following the
English case of Sharp v. Taylor,’ where two partners in
a vessel which was an American vessel and could not
therefore be registered under the navigation laws of.
Great Britain, and could not be registered in the United
States because the owners were British subjects, regis-
tered the vessel falsely in Charleston, S. C., as owned by
citizens resident of that place. One of the partners
refused to divide the profits, and it was held that the bill
lay for an account upon the ground that the illegal trans-
action was closed and this was merely a division of what
had come from it.

In Sikes v. Bedon,‘ Jessel, M. R., does not agree with
the decision in Sharp v. Taylor, and says: “It is no part
of the duty of a court of justice to aid either in carrying
out an illegal contract, or in dividing the proceeds arising
out of it between the parties to that illegal contract ;”

45 Pa. St. 71. See Hurd v. Doty, 86 Wis. 1.

22 Wallace 70.

* 2 Philip’s Chancery 801.

411 Ch. D. 170, on page 195. See also Mexican International Banking Co. v.
Lichtenstein (Utah), 37 Pac. 574.
268 LAW OF CONTRACTS.

and a demurrer in this case was sustained to a bill asking an
account of the administration of a trust which was illegal.

In another class of cases, consideration for an illegal
promise is allowed to be recovered, and that is where the
plaintiff is not zx pari delicto. ‘This class of cases is
illustrated in Reynell v. Sprye. In this case the com-
plainant had been induced to enter into a contract with
the defendant which was illegal because it violated the
rule against champerty, but he had been induced to enter
into it upon the false representations of the defendant,
upon which he relied. He was allowed to maintain a
bill for relief against two instruments, upon the ground
that the public policy is promoted by allowing the more
excusable of the two to sue for relief.

In Atkinson v. Denby,‘ a creditor exacted from his
debtor more than the amount which he was willing to
pay, and the rest of his creditors were willing to accept
in settlement of his debts. The complainant was com-
pelled to pay it because he could not get his composition
through unless the defendant joined in the deed. He
did pay it and was allowed to recover it back. To the
same effect is Bean v. Brookmire & Rankin.5 Again,
“If money is paid or goods delivered for an illegal
purpose, the person who had so paid the money or
delivered the goods may recover them back before the
illegal purpose is carried out, but if he waits till the
illegal purpose is carried out, or if he seeks to enforce
the illegal transaction,” he cannot recover. This rule is
stated in the language of Mellish, J.° In this case the

1 See Everet v. Williams, cited in Lindley on Partnership, *p. 93.

2See Bell v. Campbell, 123 Mo. 1; Miller v. Herschberg (Ore.), 37 Pac. 85;
‘Tozer v. O’Gorman (Minn.), 61 N. W. 895.

37D. M. & G. 660,

‘6H. & N. 778.

52 Dillon 108.

61 Q. B. D. 300.
LEGALITY OF OBJECT. 269

plaintiff had delivered goods to a third person in order
to defraud his creditors, and that third person subse-
quently handed over a portion of the goods to the defend-
ant, who was one of the creditors. The scheme was
never carried out, and the plaintiff sued to recover his
goods. He was allowed to recover. The rule in this case
‘was approved in Spring Company v. Knowlton.

Where the illegal purpose is effected by the mere
deposit of the goods, they cannot be recovered back.

In Herman v. Jeuchner,’” the defendant agreed to go bail
for the plaintiff if the plaintiff would deposit the amount
of the bail in his hands as indemnity for a specific time.
This was done, and before the time expired the plaintiff
sued the defendant to recover the money on the ground
that the contract was illegal and against public policy.
It was held, reversing the Court below, that the illegal
purpose was effected when the public ‘lost the protection
which the law affords for securing the good behavior of
the plaintiff.”

1303 U. S. 49.
215 Q. B. D. 561.
CHAPTER VII.

IMPOSSIBLE AGREEMENTS AND AGREEMENTS OF IMPER-
FECT OBLIGATION.

The performance of an agreement may be unenforci-
ble in itself, or by law, or in fact, by reason of the
existence of a particular state of things. It is impossible
(1) in itself when it is physically impossible, as an
agreement to construct a perpetual motion machine; (2)
zn law, aS a promise by a servant to discharge a debt
due to his master, and (3) in fact, by reason of the exist-
ence of a particular state of things, as the physical
non-existence of a thing agreed to be delivered. In the
first two cases the agreement is void ab zuztzo. In the
last case the agreement is not void unless the fair con-
struction of the contract is that it was only to be
binding in case of its performance being and continuing

possible in fact.’

1. Where both parties know that the thing promised
is impossible, the contract is treated as if it had not been
made. For instance, a covenant in a charter party that a
ship shall sail at a date long before the contract was
executed,’ renders it void. So a covenant to doa thing
which both know to be legally impossible is void, as a
covenant to pay a sum of money to the covenanter and
others.

2. Where both parties are ignorant at the time the

contract is made, that its performance is impossible, the

1Pollock, * p. 352.
2 Hall v. Cazenove, 4 East. 477.
3Falkner v. Lowe, 2 Exch. 595.

(270)
IMPOSSIBLE AGREEMENTS. 271

contract is usually void on the ground of mutual mistake.
But where the performance may or may not be im-
possible, it is a question of construction whether the
parties intended to provide that the contract should be
conditional on the supposed possibility of perform-
ance. ;

In Courturier v. Hastie,‘ an agreement to buy a cargo
of corn was held not binding in view of the fact that
at the time the contract was made the cargo had been
sold as damaged. On the other hand, in Marquis of
Bute v. Thompson,’ where the defendant agreed to mine
so many tons of coal each year at a fixed price per ton
or else pay a certain sum as rent, he was held liable
though the mine was exhausted and it was impossible to
perform his agreement.

In Clifford v. Watts,? under a covenant to mine not
less than 1000 tons of potters’ clay each year, it was
held that the covenanter was not liable if there was not
enough clay to make this performance of the covenant
possible.

3. Where the impossibility of performance is known
to the promisor but not to the promisee, as where a
married man engages to marry a woman who was not
aware that he was already married, the promise makes a
valid contract and the man in such case is liable for
damages. Of course where the promisee knows that the
promisor’s undertaking is an impossible one the promise
does not bind, because the promisee could not have
expected that it could be carried out.

The main part of the discussion of impossible agree-
ments relates to those agreements which have become
impossible of performance after they are formed, and

19 Exch. 102; 5 H. L. C. 673.
213M. & W. 487.

3. R.5 C. P. 577.

4 Millward v. Littlewood, 5 Exch. 775.
272 LAW OF CONTRACTS.

will be treated of when the subject of the discharge of
contract is reached.

AGREEMENTS OF IMPERFECT OBLIGATION.

These are agreements which cannot be enforced as
contracts. They cannot besuedon. ‘There.is no remedy
for their breach. This can only arise from some rule
of positive law, which acts First, to take away a pre-
viously existing remedy; Second, by imposing certain
conditions precedent to the existence of any remedy;
Third, by excluding any remedy altogether."

L. Contracts of imperfect obligation by reason of the remedy
being lost.

These arise by operation of the Statute of Limitations.
The contracts are valid but they cannot be enforced
after the limit of time provided in the Statute of Limita-
tions, if the other party opposes. There is a right to
sue, but the right can be defeated by pleading the statute.

1. The lien is not lost. As the statute only provides
that no action shall be brought, the lapse of time is no
bar to the recovery of the debt in any other way than
that forbidden by the statute, so that a lien on goods
may be enforced, though the right of action may be lost.

In Council v. Moyamensing,? a lien for curbing was
held not to be barred by the act for the limitation of
personal action. In some of the States it is held that
the lien for the unpaid purchase money is not affected
by the fact that the debt itself is barred by the statute.’
So where the debtor makes a payment without applying
it to any particular debt, the creditor may apply the pay-
ment to a debt barred by the statute.+

1Pollock, * p. 598.

#2 Pa, St. 224.

3 Hopkins v. Cockerell, 2 Gratt. 88; Hardin v. Boyd, 113 U. S. 756-765.
‘Ramsey v. Warner, 97 Mass. 8; Beck v. Haas, 111 Mo. 264.
IMPOSSIBLE AGREEMENTS. 273

In Courtney v. Williams,’ it was decided that an execu-
tor may retain out of a legacy a debt due the testator
barred by the statute. In Reed v. Marshall? and Milne’s
Appeal,’ the Supreme Court of Pennsylvania refused to
follow this rule:—but an administrator is not bound
to plead the statute.t Where the matter of set off would
be barred by statute, the statute is a good replication to
such a plea.$

2. The creditor’s remedy may be revived by the action
of the debtor. The theory on which the debt is revived
is said by Mr. Pollock to be this: The original considera-
tion exists and supports the subsequent promise, the
remedy under the first promise having been taken away
by the statute.© The difficulty with the theory is that’
it makes a past consideration support the promise.

In Case v. Cushman,’ it was said that a new promise
made while the statute of limitation was running, but
before the debt was barred, could not be sued upon as
there was no consideration for that promise. And
accordingly in that case, although the new promise was
made within six years, it was held that the debt was
barred by the statute. But while the correctness of the
decision in Case v. Cushman was recognized in so far as
the new promise being without consideration (see the
reasoning of Gibson, C. J., in Forney v. Benedict,® and.
of Coulter, J., in Hazelbacker v. Reeves’), yet it was.
held in these cases that that was no reason why a debt
should be barred, although the promise was made within.

13 Hare 539.

290 Pa. St. 345.

399 Pa. St. 483.

4Ritter’s App’l, 23 Pa. St. 95.

5 Verrier v. Guillon, 97 Pa. St. 63-68; Heath v. Doyle (R. I.), 27 Atl. 333.
® Pollock, * p. 601.

‘yr Pa, St. 241.

§5 Pa. St. 225.

®9 Pa. St. 258.

18
274 LAW OF CONTRACTS.

the six years, and therefore without consideration. It
remained, however, for the later case of Yaw v. Kerr,’
and Wesner v. Stein & Greenawalt,* to state the true
ground upon which recovery is allowed notwithstanding
the statute has run, where there had been a promise
before or after the debt was actually barred by the
statute; and that is that the right of action remains
upon the original promise, the statute only affects the
remedy, and that a subsequent promise or partial pay-
ment, if made at any time within six years, before action
is brought upon the original promise, is evidence of a
waiver of the bar of the statute.

An unequivocal acknowledgment of the debt as well as
an express promise to pay it will toll the statute in Pennsyl-
vania.t As the statute of limitations affects not the rights
but only the remedy, it is a law of the forum, and hence
the question of its application has nothing to do with
the law of the place where the contract is made, but
depends entirely on the law of the place where the suit is
brought.

In Harris & Adams v. Quine,’ a Manx lawyer who had
sued in the Manx courts for services performed in that
jurisdiction and had been defeated by the plea of the
statute, then sued in the English courts and re-
covered. In Townsend v. Jemison,® a plea of the
Mississippi Statute of Limitations in an Alabama court,
in a suit on a contract made in Mississippi, was held
bad.

147 Pa. St. 333.
*97 Pa. St. 322.

3 See Steude vw. Fischer, 50 Ill. App. 374; Patterson v. Neuer, 165 Pa, St. 66.

‘Schaeffer v. Hoffman, 113 Pa, St. 1; Appeal of Ritter, 161 Pa. St. 79; Jw re
Souder’s Estate, 169 Pa. St. 239; Keener wv. Zartman, 144 Pa. St. 179; Ju ve
Hartranft’s Estate, 153 Pa. St. 530.

61, R. 4 Q. B. 653.

6g Howard 407.
IMPOSSIBLE AGREEMENTS. 275

fl. Agreements of imperfect obligation because the condt-
toons on which the right to a remedy 1s made to de-
pend have not been performed.

One of the most important statutes imposing condi-
tions on the right to enforce a contract is the Fourth
Section of the Statute of Frauds,* and probably the
Seventeenth. In this State the latter is not in force,
but the former has been re-enacted here as to contracts,
to charge an executor or administrator upon any promise
to answer damages out of his own estate, or to charge
the defendant upon any special promise to answer for
the debt or default of another.

It was decided in England in the case of Leroux v.
Brown,’ that the Fourth Section of the Statute of Frauds
related only to procedure and not to the right or validity
of the contract itself. This rule is followed to some
extent in this country. Where this construction is put
upon the statute a verbal contract within the class as
to which the statute says no action shall be brought
unless there is a memorandum in writing, is an agree-
ment of imperfect obligation. ‘There are certain results
which follow from the existence of such an informal
agreement.

1. Money paid under an informal agreement cannot be
recovered back merely because the agreement is not
enforceable.* Money received from a debtor, in the absence
of any application of the payment by him, may be applied
by the creditor to a debt on which suit cannot be brought,
if it is not illegal. In Hayes wv. Nice,’ the application of
a payment to the past board of a child, where the person

129 Car. II c. 3.

212 C. B. 801.

3The subject is discussed in the chapter on the subject of the Statute of
Frauds, supra.

‘Pollock, * p. 609.

5 t00 Mass. 327.
276 LAW OF CONTRACTS.

paying had promised to pay for past and future board
and the contract as to past board was not enforceable under
the Statute of Frauds, was held valid. In Beal wv. Brown,"
a man, who had verbally promised to pay the debt of
another, paid the debt and was then allowed to recover
the amount paid, from the original debtor. So a person
who has entered into an agreement which is not en-
forceable on account of the statute of Frauds, cannot be
compelled to make such defence by a third person, nor
can a third person set up the statute collaterally.

In Houser v. Lamont,? Bowman purchased real estate
for the defendant, was paid part of the purchase money
and took the title in his own name as security for the
balance of the purchase money and then conveyed the
property by deed to the plaintiff who advanced the
balance of the purchase money. The plaintiff brought
ejectment and sought to set up the Statute of Frauds
against the defendant’s title from Bowman. Held: he
could not interpose the statute to prevent proof of the
resulting trust to the defendant. But where money has
been paid under an imperfect agreement and the party
to whom it has been paid refuses to fulfill the agree-
ment the money may be recovered on the ground of a
failure of consideration. Pulbrook v. Lawes,‘ was the
case of a verbal agreement to lease a house, under the
terms of which the lessee was to pay part of the repairs

113 Allen 114.

255 Pa. St..311. See also Hudson v. White, 17 R. I. 519; Larmon v. Knight,
140 Ill. 232; McCahill v. McCahill, 32 N. Y. Sup. 836, 11 Misc. Rep. 258;
Leahey v. Witte, 123 Mo. 207; Beadle v. Seat (Ala.), 15 So. 243.

3 Worth v. Patton, 5 Ind. App. 272; Whitaker v. Burrows, 71 Hun. 478; Her-
rick v. Newell, 49 Minn. 198; Schroeder v. Loeber, 75 Md. 195; Durham Con-
solidated Land & Imp. Co. uv. Guthrie (N. C.), 21S. E. 952; Brockhousen v.
Bowes, 50 Ill. App. 98; Nelson v. Manuf’g. Co., 96 Ala. 515.

41 Q. B. D. 284. See Donohue v. Chicago Bank Note Co., 37 Ill. App. 552;
Hartwell v. Young, 67 Hun. 472; Moore v. Powell, 6 Tex. Civ. App. 43; Smith
v. Prichett, 98 Ala. 649; Zachry v. Nolan, 66 Fed. 467, 14 C. C. A. 253.
IMPOSSIBLE AGREEMENTS. 277

and the lessor to do the rest. ‘The lessee paid for his
part and then owing to the failure of the landlord to do
as he had agreed, the lessee refused to take possession
and sued for the money he had expended and was allowed to
recover. Parker v. Tainter,’ was a case where the plaintiff
built a house on the defendant’s démised land under an
agreement by the defendant (not enforceable under the
Statute of Frauds) to give him a sublease of the land. The
defendant refused to give the sublease and the plaintiff
was held entitled to recover the value of the house he had
built.

2. The performance of an informal agreement may be
shown and the other party to the agreement who has re-
ceived what he has bargained for cannot treat it as a nullity.’
Thus where a promissory note is given for the purchase
money of land and the maker has entered into possession,
the fact that the agreement was not in writing, as
required by the statute, is not a defence in an action on
that note.’

In an action for a debt, a plea that plaintiff had
verbally agreed to discharge the defendant from the debt
in consideration of the defendant’s giving up possession
of an inn, and that such possession had been given up,
was held a good plea in accord and satisfaction.’

3. Part performance of an agreement to convey land
precludes plea of the statute. The equitable doctrine that

1123 Mass, 185. See O’Grady v. O’Grady, 162 Mass. 290.

2 Pollock, * p. 610. But payment of the purchase money is not sufficient
performance. Munk uv. Weidner (Tex.), 29 S. W. 409; Rosen v. Rose, 34 N. Y.
Sup. 467, 13 Misc. Rep. 565; Brown v. Pollard, 89 Va. 696; Miller v. Lorentz, 39
W. Va. 160; Forrester v. Flores, 64 Cal. 24; Guthrie v. Anderson, 47 Kan.
cae v. Pawling, 86 Hun. 502; Stringer v. Stringer, 93 Ga. 320; Rosen-
berger v. Jones, 118 Mo. 559; Enterprise Land Co. v. Betz, 34 W. N. C. 284;
Cooper v. Monroe, 77 Hun. 1; Smith v. Arthur, 110 N. C. 400; Haussman vz.
Burnham, 59 Conn. 117; Small v. Ehrgood, (Pa.) 1 Lack. Leg. N. 167; Anderson

y. Babcock, 63 Conn. Iog.
4Jones uv. Jones, 6 M. & W. 84.
278 LAW OF CONTRACTS.

part performance of an informal agreement to convey land
will entitle the party who has thus partly performed the
contract to specific performance, is another instance of
rights growing out of an agreement which cannot itself
be enforced, but which is referred to in order to define
the rights of the parties and prevent injustice between
them. ‘The doctrine of part performance is thus stated
by Mr. Bispham in his book on Equity.’ “The doctrine
of part performance is based upon the principle that where
a contract is so far performed that the parties could not
be restored to their original position if the contract was
rescinded, it would be highly unjust to allow any tech-
nical objection to the fulfillment of the contract to be
interposed. Hence if a verbal contract is made for the
sale of real estate and is acted upon to the extent above
indicated, neither party can then refuse to perform it on
the ground that the provisions of the Statute of Frauds
have not been complied with. If, for example, upon the
faith of a parol agreement, the purchaser has gone into
possession, has paid the purchase money and has made
valuable improvements, the vendor will not be suffered
to set up the Statute of Frauds as a ground for refusing
to execute a conveyance. ‘This case, it is said, is taken
out of the statute.”

The reason for the rule is thus stated in Caton z.
Caton:? “The ground on which the Court holds that
part performance takes a contract out of the purview of
the Statute of Frauds is, that when one of two contract-
ing parties has been induced, or allowed by the other,
to alter his position on the faith of the contract, as for
instance by taking possession of the land, and expending
money in building or other like acts, then it would be
a fraud on the other party to set up the legal invalidity

19 384.
*z Ch. App. Cases, L. R. 137.
IMPOSSIBLE AGREEMENTS. 279

of the contract on the faith which he has induced, or
allowed, the person contracting with him to act, and
expend his money.” And the same Judge (Lord Cran-
worth) goes on to explain why, where specific performance
is sought by a parol contract for the purchase of land,
part performance on the part of the defendant will not
avail to take the case out of the statute. He says: “If
I agree with A, by parol, without writing, that I will
build a house on my land, and then will sell it to him
at a stipulated price, and in pursuance of this agreement
I build a house, this may afford me ground for compelling
A to complete the purchase, but it certainly would
afford no foundation for a claim by A to compel me to
sell on the ground that I had partly performed the
contract.”

And the same general doctrine prevails in this country.
In Williams v. Morris,’ the Court say: ‘“ Where one
of two contracting parties has been induced or allowed
to alter his position on the faith of such contract, to
such an extent that it would be fraud on the part of
the other party to set up its invalidity, courts of equity
hold that the clear proof of the contract and of the acts
of part performance will take the case out of the operation
of the statute, if the acts of part performance were clearly
such as to show that they are properly referable to the
parol agreement.” ”

Another result which flows from the obligation existing
under an agreement informal under the Statute of Frauds
is that a postnuptial memorandum is sufficient between

195 U. S. 444.

2 See as to different States: Young v. Overbaugh, 145 N. Y. 158; Roberge v.
Winne, 144 N. Y. 709; Riggles v. Erney, 154 U. S. 244; Sharman v. Sharman,
4 Reports 124, 67 Law T. 834; Lloyd v. Hollenback, 98 Mich. 203; Barrett 2,
Geisinger, 148 Ill. 98; Zz ve Donnelly’s Estate (Pa. Orph. Ct.), 3 Pa. Distr.
Rep. 381; Wall v. M., S.P. & S. S. M. Ry. Co., 86 Wis. 48; Smith uv, Pierce, 65
Vt. 200; Barbour v. Barbour, 49 N. J. Eq. 429.
280 LAW OF CONTRACTS.

the parties (though not as against creditors,’) to sustain
a parol ante-nuptial agreement.’

It is proper to add, however, that the written agreement
was in this case admitted under the signature of the party
to be charged before any action had been brought upon it,
and the case therefore seems to be not one of imperfect
agreement, but of an agreement which had been made
perfect by having a memorandum of it signed by the
party to be charged before any action was brought upon it.

Another class of cases where imperfect obligations arise
by failure to comply with statutory requirements is found
in the case of marine insurance in England.

In practice the contract of insurance is concluded be-
tween the parties by a memorandum called a slip, initialed
by the underwriter. The revenue laws render any con-
tract for sea insurance, unlessit be expressed in the policy,
invalid and prohibits the policy being pleaded or given in
evidence unless duly stamped, and the result is that no
action can be maintained on the slip itself.

In Ionides v. the Pacific Insurance Company,’ the slip
“was admitted in evidence to show that it was immaterial
to the insurer whether they insured hides in a particular
vessel or in any other vessel.

And in Cory v. Patton,‘it was held that the failure to
disclose facts material to the risk, which came to the knowl-
edge of the insured between the time the slip was signed
and the policy was executed, did not vitiate the policy.

ITT. Cases where all remedy zs taken away.

Most of these cases arise under statute, and in cases
where the statute does not make the contract absolutely
void, there is sometimes something left of the contract more

1 Warden v. Jones, 23 Beadan 487.

2 Pollock, * p. 636, citing the case of Barkworth v. Young, 4 Drewery I.
3, R.6Q. B. 674-684.

4L. R. 7Q. B. 304.
IMPOSSIBLE AGREEMENTS. 281

than a mere moral obligation. Perhaps this is best illus-
trated in a case outside of any statute, that is, a contract
between a barrister and a client for compensation to the
_ barrister for his services as an advocate.
The case of Kennedy v. Broun,’ established the doctrine
in England that the relation of counsel and client ren-
dered the parties absolutely incapable of making any con-
tract, and the promises of the client and the services of
the counsel “create neither an obligation nor an inception
of obligation nor any inchoate right whatever, capable of
being completed and made into a contract by any subse-
‘quent promise.” And yet it has been decided that a solic-
itor needs no special authority to enable him to retain and
pay counsel, and make his client liable to himself for the
amount of the payment.
In Morris vw. Hunt,* Bayley, J., spoke as follows:
“But then the suggestion is, that by law no man is
liable to pay for counsel at all, and that therefore the whole
of this charge for counsel is improper. That seems to
me to arise entirely from a mistake in point of law. It
is never expected, it never has been the practice, and in
many instances it would be wrong, that counsel should
be gratuitously giving up their time and talents without
receiving any recompense or reward. It is the recom-
‘pense and reward which induce men of considerable
-ability, and certainly of great integrity, and with every
.qualification which is necessary to adorn the bar, to exert
‘their talent. It is the emolument in the first instance, to
a certain degree, that induces them to bear the difficulties
-of their profession, and to wear away their health, which
a long attendance at the bar naturally produces, and it is
-of advantage to the public that they should receive those
‘emoluments which produce integrity and independence ;

113C. B., N.S. 677.
21 Chitty 544,
282 LAW OF CONTRACTS.

and I know of nothing more likely to destroy that inde-
pendence and integrity, than to deprive them of the
honorable reward of their labors. But it is said that
counsel can maintain no action for their fees: why?
Because it is understood that their emoluments are not to
depend upon the event of the cause, but that their com-
pensation is to be equally the same whether the event is
successful or unsuccessful. ‘They are to be paid before-
hand, because they are not to be left to the chance
whether they shall ultimately get their fees or not; and
it is for the purpose of promoting the honor and integrity
of the bar, that it is expected all their fees should be paid
at the time when the briefs are delivered. That is the
reason why they are not permitted to maintain an action.
It is their duty to take care, if they have fees, that they
have them beforehand, and therefore the law will not
allow them any remedy if they disregard their duty in
this respect. The same rule applies to the case of a phy-
sician, who cannot maintain any action for his fees. He
therefore is to receive his fees at the period of time when
his attendance occurs. These are the reasons why the
gentlemen of these two professions can maintain no action
for their fees; but is it to be supposed that men are to
waste their lives to qualify themselves for their profession,
without receiving any emolument? That never can be im-
agined ; and the constant course which has been adopted,
shows that it never could be so understood. If this is not the
right rule the Courts of Westminster Hall have been in
error for centuries, because they have been in the constant
habit of allowing to plaintiffs when they succeed, the fees of
counsel on the one hand, and to the defendant the fees of
their counsel when they succeed, on the other hand. ‘This
is the invariable rule acted upon on the taxation of costs.’?

1See note in 2 American Law Register, N.S. 372, by Judge James T. Mitchell,
on Kennedy wv. Broun.
IMPOSSIBLE AGREEMENTS. 283

An instance of an imperfect right under a statute is
found in Philpott v. Jones.‘ In this case an Act of Par-
liament forbade recovery of the price of spirits sold in
quantities where the price came to less than twenty shill-
ings. Money which had been paid where liquor had been
sold in this way and appropriated by the seller to the
liquidation of any claim he might have for the liquor so
sold was held to have been a valid appropriation.

An interesting question arises in this connection, of
this kind: Will a valuable consideration given for an
illegal purpose sustain a new promise, the illegality of
the purpose having in the meantime ceased ?

A good illustration of what is meant by this question
is found in the case of the usury laws, where they forbid
a contract to lend money at more than a certain rate of
interest and make the contract void. There is no doubt
that whether the law is repealed or not, you can never
recover under the old contract reserving a usurious rate
of interest. The question is whether you can recover, the
usury laws having been repealed, upon a subsequent
promise without any other consideration than the old loan.
This question came before the Exchequer Chamber in the
case of Flight v. Reed.? It was held by two judges, the
third dissenting, that there was sufficient consideration
for the new promise, the Court saying:

“There are many conjunctures in which a man may
feel himself morally bound to pay money and promise to
do so, which the law would not recognize as forming a
good consideration. But a loan of money is a very dif-
ferent thing. The very name of a loan imports that it
was the understanding and intention of both parties that
the money should be repaid. And though at the time
of the advance, the law, for reason of public. policy,

10 A. & E. 24.
27H. &C. 703.
284. LAW OF CONTRACTS.

forbid any liability, and incapacitate the parties from
' making a binding contract, there is no reason why a
binding contract should not be made afterward if the
legal prohibition be removed. And the consideration
which would have been sufficient to support the promise,
if the law had not forbidden the promise to be made
originally, does not cease to be sufficient when the legal
restriction is abrogated. ‘There is, therefore, reasonable
ground, as it seems to us, for this qualified proposition,
viz.. That a man by express promise may render him-
self liable to pay back money which he has received as
a loan, though some positive rule of law or statute inter-
vened at the time to prevent the transaction from con-
Stituting a legal debt.”

These cases are followed in Sheldon v. Haxtun,’ two
of the judges dissenting.

The doctrine found in these cases has been applied in
the case of a contract made by a married woman, where
she has, after discoverture, made a new promise, and the
old consideration for the void contract was held sufficient
to sustain the new promise. Though in Brown vw. Ben-
nett,? Judge Sharswood says: “It may well be that a
naked ratification by a married woman after discoverture
would not avail.” And in Musick vw. Dodson, in the
Supreme Court of Missouri,‘ the contrary doctrine was
laid down, and in the note to that case it is stated that the
weight of authority is against the extension of this doctrine
to the case of a promise made by a married woman.

In Ludlow v. Hardy,5 it was held that a sale of liquor,
in violation of the prohibitory liquor law, cannot sustain
a new promise after the law is repealed.

lor N. Y. 124.

? Gounding v. Davidson, 26 N. Y. 604; Hemphill v. McClemans, 24 Pa. St. 367.

375 Pa. St. 420.

*22 Am. Law Reg., N. S., p. 522.
5 38 Mich. 690.
IMPOSSIBLE AGREEMENTS. 285,

In Smith v. Tripp,’ it was held that where a property
owner whose property had been taken by a municipality,
had a remedy provided by statute, provided he made his.
claim within a year, and failed to make his claim within
the statutory period and then brought an action against
the city relying upon an express promise, he could not re-
cover, there being no consideration for the promise. In
the opinion of the Court the subject is carefully re-
viewed, and the Court adopts the language of Lord
Denman in Beaumont wv. Reeves,’ as follows: “An ex-.
press promise cannot be supported by consideration
from which the law would not imply a promise except
when the promise does away with all legal suspension
or bar of a right of action, which but for such suspen-:
sion or bar would be valid.”

These cases are all in reality exceptions to the rule
that a past consideration is no consideration, and will
not support a new promise. The difficulty in the case of a.
consideration for a promise that is absolutely void, as in
the case of a married woman, and in the case of a con-
tract forbidden by statute, as usury or the sale of
liquor,—is that there never was any consideration at all,
and if one is to be raised by the subsequent promise,
to use the language of Lord Deman in Eastwood z.
Kenyon,3 “The doctrine would annihilate the necessity
for any consideration inasmuch as the mere fact of
giving a promise creates a moral obligation of per-.
formance.” ¢

The rules in regard to imperfect agreements are
summed up by Mr. Pollock‘ as follows:

144 R. I. 112.

280. B. 483.

Sir A. & E. 137.

+See also on the same subject, Langdell’s Select Cases on Contracts: Summary,
Moral Consideration.

**p. 634.
286 LAW OF CONTRACTS.

‘““An imperfect obligation is an existing obligation
which is not directly enforceable.”

“This state of things results from exceptional rules
of positive law, and especially from laws limiting the
right to enforce contracts by special condition precedent
or subsequent.”

‘“When an agreement of imperfect obligation is exe-
cutory, a right of possession immediately founded on the
obligation can be no more enforced than the obligation
itself.” :

“Acts done in fulfillment of an impetfect obligation
are valid, and may be the foundation of new rights and
liabilities, by way of consideration for a new contract or
otherwise.”

“A party who has a liquidated and unconditional claim
under an imperfect obligation may obtain a satisfaction
thereof by any means other than direct process of law
which he might have lawfully employed to obtain it if
the obligation had not been imperfect.”

“The laws which give rise to imperfect obligations
by imposing special conditions on the enforcement of
rights, are generally treated as part of the law of pro-
cedure of the forum where they prevail, and as part of
the /ex fort they are applicable to contracts sued upon
in that forum without regard to the law governing the
substance of the contract; but on the other hand they
are not regarded in any other forum.”
PART II.

THE OPERATION OF CONTRACTS.

A valid, legal contract having been entered into, its
operation raises the questions, Who are bound by it?
and, What are their respective rights and liabilities?
Having determined which, the further questions arise,
Can these rights and liabilities be assigned? and if so,
Whether by act of the parties or by operation of law?
The subject therefore falls into the natural division of—
I. Limits of Contractual Obligation, and II. Assignability
of Contracts, wherein of assignment (1) by Act of the
Parties, and (2) by Operation of Law, treating under the
former head of Bills of Exchange, Promissory Notes and
Bills of Lading.

(287)
CHAPTER VIII.
LIMITS OF CONTRACTUAL OBLIGATION.

“A person who is not a party to a contract cannot be
included in the rights and liabilities which the contract
creates, so as to enable him to sue or be sued upon it.”’*

1. 4A man cannot incur labtlitees from a contract to
which he was not a party,

In Durnford v. Messiter,? the Court say: ‘ Money
paid to and for the use of the defendant does not neces-
sarily raise a cause of action; because a man cannot, of
his own will, pay another man’s debt without his consent,
and thereby convert himself into a creditor.” In Schmal-
ing v. Thomlinson e¢ a/,‘ the defendants had authorized
a ship broker to employ certain parties to transport some
cocoa from London to Amsterdam. ‘The persons em-
ployed by the ship broker then made a contract with the
plaintiffs to transport the goods, and they did it and then
sued the defendants. It was held that there was no
privity of contract between the plaintiffsand the defendants.

Agency is not an exception to this rule, because in
order to bind the principal there must have been either
a previous authority or a subsequent ratification. While
a man cannot have imposed upon him the liabilities of
a contract to which he is not a party, he cannot, on the

1 Anson on Contracts, *p. 208. /

2 The subject is treated by Pollock in his Fifth Chapter, and by Anson, Part.
III, Chapter 1, *page 209, of his book on Contracts.

35M. & S. 446.

46 Taunton 147.

5 See Fairchild v. King, 102 Cal. 320; Exchange Bank v. Third National Bank,
112 U. S. 276.

(288)
LIMITS OF CONTRACTUAL OBLIGATION. 289

other hand, compel another party to accept performance
by him of the obligations of the other party.

In Robson & Sharp v. Drummond,’ Sharp agreed with
the defendant, Drummond, to furnish him a coach at a
certain price per annum for a term of five years. At
the time of making this contract Sharp had a partner,
Robson, in business with him, but of this fact Drummond
was ignorant. At the end of the third year Sharp and
Robson. dissolved partnership, and Robson continued to
carry on the business. Sharp declined to continue to
furnish a coach to Drummond; Robson offered to do it,
but Drummond declined, and then Robson sued for the
price that Drummond had agreed to pay Sharp per annum
for furnishing the coach, and it was held that he could
not recover because Robson could not compel Drummond
to accept performance by him in place of performance by
Sharp.

Where performance by a third person is accepted by
the agreement of all parties, it amounts to a rescission of
the first contract and the formation of a new contract.

Though a man cannot incur liabilities arising directly
out of a contract to which he is not a party, yet he may

incur liabilities by inducing a party to a contract to break
it with an intention to injure the other party to the con-
tract. This liability, however, is a liability in tort, and
does not arise directly out of the contract, but arises from
a wrongful act of the man in inducing a party to a con-

tract to break it. This is an English rule, but it does
not prevail universally in this country.

In Lumley wv. Gye,’ the plaintiff had engaged Johanna
Wagner to sing at his theatre for a certain time, a part
of the contract being that she should not sing any-
where else during that time except with the plaintiffs

12 B. & Ad. 303.

22K. & B. 216.

19
290 LAW OF CONTRACTS.

consent. The declaration set out this contract, and that
the defendant, knowing the premises, and maliciously
intending to injure the plaintiff, while the contract was
still in force, induced the said Wagner to refuse to
perform, and that she did refuse to perform to the damage ~
of the plaintiff; there was a demurrer to the declar-
ation and it was held that the action lay, though there
was a very able dissenting opinion by Judge Coleridge.

Bowen wv. Hall," affirmed Lumley wv. Gye, the actual
case before the Court being that of a man employed as
a bricklayer, and the Court laid down the general rule
that wherever a man does an act which in law and in
fact is a wrongful act, and such an act as may, as a
natural and probable consequence of it, produce injury
to another, and which in the particular case does produce
such an injury, an action will lie; and it does not the less
lie because the injury and probable consequence of the
act complained of is an act done by a third person in
violation of a contract.

The English decision was followed in Walker ».
Cronin,? and in some of the other States,> though in
Hayward v. Tilson,* the doctrine was criticised and was
said to be confined to cases of strictly personal services.

2. A person cannot acquire rights under a contract to which
he ts nota partys

In Price wv. Easton,® the declaration set out that a third
person being indebted to the plaintiff agreed to work for

16 Q. B. D. 333. See Temperton wv. Russell, 1Q. B. (C. A.) 715; Flood wv.
Jackson, 2 ib. 27.

2107 Mass. 555; Angle v. Rwy., 151 U. S. 1; Jones v. Stanley, 76 N. C. 355;
Chipley v. Atkinson, 23 Fla. 206.

3See note to Bowen v. Hall, 20 Am. L. R. 587.

475 Me.; and see Bourlier Bus. v. Macaulay, 91 Ky. 135; Chambers v. Baldwin,
ib. 121; Boyson v. Thorn, 98 Cal. 578; Ashley v. Dixon, 48 N. Y. 430.

5 Anson on Contracts, * p. 210; Johnson v. Bamberger, I9 S. W. (Ark.)
920; Holly Mfg. Co. v. New Chester Water Co., 48 Fed. 879.

64 B. & Ad. 433.
LIMITS OF CONTRACTUAL OBLIGATION. 291

the defendant for a certain time without pay in consid-
eration of which the defendant agreed with the third
person that he would pay the plaintiff the amount which
the third person owed the plaintiff. There was a verdict
for the plaintiff and a rule in arrest of judgment. The
rule was made absolute, the Court saying that the
declaration disclosed no cause of action in the plaintiff
who was not a party to the contract.

In Tweddle v. Atkinson,’ the rule here laid down was
affirmed, and the exception noted in some of the earlier
cases that such an action might be brought where there
was a close relationship between the parties, was over-
tuled. In this particular case the plaintiff being about
to marry a young woman, alleged that his own father -
and the father of the woman he was about to marry
had agreed between themselves that they would settle a
certain amount of money on their children as soon as
they were married; that they were married, and after-
ward, in order to carry out this agreement, they executed
a paper in which each one of them agreed to give a
specific amount to the plaintiff as in fulfillment of the
original contract; and that the wife’s father died without
having paid the amount he agreed to contribute. A suit
was brought against his executors and it was held that
no action lay.

In this country the prevailing rule is that a person not
a party to the contract, but for whose benefit the contract
is made, may maintain an assumpsit on the contract. In
Hendrick v. Lindsay, e¢ a/.,? it was held that the plaintiff
could recover on a promise by the defendant to a third
person to indemnify the sureties he might procure on a
certain bond, the plaintiff having been then procured as

+1 B. & S. 393; see Marston v. Bigelow, 150 Mass. 45; cf. Strong v. Marcy, 33
Kans. 109; Gooden wv. Ray, 85 Iowa 592.

¥93 U. S. 143.
292 LAW OF CONTRACTS.

one of those sureties. In Exchange Bank of St. Louis z.
Rice and others," it was stated that ‘‘ The general rule of
law is, that a person who is not a party toa simple con-
tract, and from whom no consideration moves, cannot sue
on the contract, and consequently that a promise made
by one person to another, for the benefit of a third per-
son who is a stranger to the consideration, will not sup-
port an action by the latter. And the recent decisions in
this commonwealth and in England have tended to
uphold the rule and to narrow the exceptions to it.”
Among the exceptions to this rule are: (a) Cases in
which the defendant has in his hands money which
equitably and in good conscience belongs to the plaintiff.”
(4) Cases where property is placed in the hands of a
party to a contract for the benefit of a third person.
How far the English rule,—that a person not a party to
a contract, though he is to receive the benefit under it,
cannot sue upon the contract,—prevails in Pennsylvania,
it is difficult to say. In Hind v. Holdship,* it was held
that the third party to whom, according to the terms of
the contract, defendant had agreed to pay money, might
sue the defendant directly for that money. Here plain-
tiff’s employer made an assignment to defendant and did
not prefer his workmen, of whom plaintiff was one, because
defendant promised they should be paid. Plaintiff recov-
ered.5 In Blymire v. Boistle,° the rule was stated by Mr.
Justice Sergeant, that the cases in Pennsylvania warrant
this distinction: “That if one pay money to another for
the use of a third person, or having money belonging to

1407 Mass. 37. See also Marston v. Bigelow, 150 Mass. 45; Borden vw. Board-
man, 157 Mass. 410; Linneman v. Moross, 98 Mich. 178.

2See judgment of Metcalf, J., in Mellen v. Whipple, I Gray 317.

3 Justice v. Tallman, 86 Pa. 147, is an illustration of this class.

42 Watts 104.

5 See also Winner v, Lippincott Investment Co., 28 S. W. (Mo.) 998.

66 Watts 182.
LIMITS OF CONTRACTUAL OBLIGATION. 293

another, agree with the other party to pay to a third,
action lies by the person beneficially interested. But
where the contract is for the benefit of the contracting
party, and the third person is a stranger to the contract
and consideration, the action must be by the promisees.”
Plaintiff’s debtor conveyed land to the defendant in con-
sideration of his promise to pay the debt due plaintiff.
The judgment was in favor of the defendant. The latter
is the view adopted by Judge Sharswood after reviewing
the cases in Mississippi C. R. R. Co. v. The Southern
'R. R. Association.‘ In Torrens v. Campbell,’ it is stated
by Mercur, J., that “‘The general rule undoubtedly is,
that where the contract is for the benefit of the con-
tracting party, and the third person is a stranger to the
consideration, the action must be by the promisee.” 3

The American cases on the subject are reviewed in the
note to Vadakin wv. Soper,* and the result is there summed
up (page 179) as follows: ‘To render a contract between
two persons binding in favor of a third, it must accord-
ingly appear, first, that it was intended to confer an
indefeasible interest on the latter; and next, that he is the
ouly person interested in the performance of the contract,
-because the defendant might otherwise be made answer-
able twice for the same default.”

The rule is practically the same in equity as in law.

18 Phila. 107.

274 Pa. 470.

3See the case of Delp v. Bartholomay Brewing Company, 123 Pa. 42, which
follows Blymire v. Boistle, supra. Also First Nat. Bank wv. Rowley, 61 N. W.
(Iowa) 195; Evans v. Gulf Rwy. Co., 28 S. W. (Tex.) 903; Heath uv. Coreth, 32
S. W. (Tex.) 56.

42 American L. C. 163. See cases cited in Note 1, Anson on Contracts (8th
edition), pages 280-281.

5 In re Empress Engineering Company, 16 Ch. D. 125. See Touche v. Metro-
politan Warehousing Co., 6 Ch. 671; Spiller v, Paris Skating Rink, 7 Ch. D.
368; Kelner v. Baxter, L. R. 2 C. P. 174; Ely v. Assurance Co., 1 Ex. D. (C. A.)
88; Ashbury Carriage Co. v. Riche, L. R. 7 H. L. 667; also Borden v, Boardman,
32 N. E. (Mass.) 469.
294 LAW OF CONTRACTS.

In the case of /z re Empress Engineering Co.,’ certain
parties agreed with another acting on behalf of, and repre-
senting a company to be formed, to sell certain property to
the company at a certain price, and they further stipulated
that sixty guineas should be paid to certain solicitors for
their services in the formation of the company. This
agreement was inserted in the memorandum of the asso-
ciation and was ratified by the directors of the company.
The company was formed and then wound up, and upon
the winding up the solicitors claimed the -sixty guineas.
The Court held, that even if there was a contract between
the company and the parties with whom they contracted
to pay sixty guineas to certain solicitors, the solicitors
could not recover from the company. Jessel, Master of
the Rolls, saying, ‘‘ Supposing, however, that there was,
it is then contended that a mere contract between two
parties that one of them shall pay a certain sum toa third
person not a party to the contract, will make that third
person a cestuz que trust. Asa general rule that will not
be so. A mere agreement between A and B that B shall
pay C (an agreement to which C is not a party either
directly or indirectly) will not prevent A and B from com-
ing to a new agreement the next day releasing the old one.
If C were a cestuz que trust it would not have that effect.
I am far from saying that there may not be agreements
which may make C a cestuz que trust;” and then he men-
tions a case where the agreement was to pay out of prop-
erty and one of the parties to the contract made himself a
trustee of the property for the benefit of the third party.

Vb.
CHAPTER IX.
ASSIGNMENT OF CONTRACTS BY ACT OF THE PARTIES.

Under certain circumstances the rights and liabilities
created by a contract may pass to a person not an original
party to the contract, and this may happen either by the
act of the parties or by the rules of law. Considering
first the assignment by the act of the parties, it may be
observed that liabilities cannot be assigned.

If I am indebted to a third person I cannot get rid of
that indebtedness by making an assignment of my liability
to sombody else." The same rule is laid down in Jones v.
Walker,? where Jay, C. J., says: “I take it for granted
that a debtor cannot voluntarily transfer his obligation to
pay to a third person without the consent of his creditors.”

While a liability cannot be assigned, yet where the duty
to be performed can be just as well done by another person
as by the person who agreed to do it, the latter may
employ a third person to do the work, and the other con-
tracting party cannot object; but the liability of the orig-
inal contracting party continues in case the work is not
done properly. In British Wagon Co. uv. Lee, the plain-
tiff, the Wagon Company, had let the defendants some
wagons for a number of years; during the term the
plaintiff company was wound up and their contract was,

1 Robson & Sharp v. Drummond, 2 B. & Ad. 303.

2; Paine’s C. C. 708. See also Arkansas Valley Smelting Co. v. Belden
Mining Co., 127 U. S. 379.

3 British Wagon Co. v. Lee, 5Q.B. D. 149; also Rochester Lantern Co. wv.
Stiles Co., 135 N. Y. 209; La Rue v. Groezinger, 84 Cal. 281; Galey v. Mellon,
172 Pa. 443, which upheld an assignment of a contract for digging an oil-well.

(295)
296 LAW OF CONTRACTS.

under the terms of a statute in regard to such companies,
assigned to another company, who was ready at all times
to keep the wagons in repair, that having been one of the
obligations of the plaintiff company under the original
contract. In an action for the rent, brought in the name
of the two companies, it was held that there was no defence
upon the ground that there was no reference to the per-
sonal skill and competency of the first company.

ASSIGNABILITY OF THE BENEFITS OF A CONTRACT.

At common law.

At common law, except under the Law Merchant, the
assignee of a contract could not sue in his own name, but
is allowed to sue in the name of an assignor.* The only
way in which a benefit under a contract could be as-
signed was in reality by the rescission of the original
contract and the formation of a new one. In Fairlie z.
Denton & Barker,’ Lord Tenderten says: “It is a general
rule of law, that a chose in action cannot be assigned.
There is, however, an exception to that rule. It has
been held that where it has been admitted and agreed
beyond dispute that a defined and ascertained sum is due
from A to B and that a larger sum is due from C to
A, and the three agree that C shall be B’s debtor, in-
stead of A, and C promises to pay B the amount owing
to him by A, an action will lie by B against C.” The
particular case was held not to come within the excep-
tion, because at the time when the defendants were sup-
posed to have admitted that they were responsible to the
plaintiffs, there was not any defined or ascertained sum
due from them to the plaintiff's debtor. In order to
make such a novation good, there must be ascertained

1 Powles v. Innes 11 M. & W. Io.
28B. & C. 395.
ASSIGNMENT OF CONTRACTS. © 297

sums due and a definite agreement to substitute one for
the other upon consideration. In Liversidge v. Broad-
bent,’ A owed money to the plaintiff who wanted security
for it, and the defendant owed money to A. A gave the
plaintiff a paper authorizing the defendant to pay money
to him, the plaintiff. The defendant acknowledged this
paper but upon being sued it was held that the plaintiff
-had no cause of action, because A had never promised
to give up his claim against the defendant, and therefore
there was no consideration to the defendant for the
promise. Martin; B., says: “There are two legal princi-
ples which, so far as I know, have never been departed
from; one is that at common law, a debt cannot be as-
signed, so as to give the assignee a right to sue for it
in his own name, except in the case of a negotiable in-
strument; and, that being the law, it is perfectly clear
that Clapham could not assign the plaintiff the debt
due from the defendant to him. That a debt may be
assigned in equity there is no doubt, and I should rejoice
if the scandal did not exist of there being one rule at
law and another in equity. The other principle which
would be infringed by allowing this action to be main-
tained, is the rule of law that a bare promise cannot be
the foundation of an action: ‘Ex nudo pacto non oritur
actio.. Applying this principle to the present case, I am
clearly of opinion that the action cannot be maintained.
The document begins, ‘I hereby agree to authorize Mr.
Stephen Broadbent, of Wetherby, to pay to Mr. W. Liver-
sidge, or his order, the sum of £113 135.’ This is nothing
more than an agreement to anthorize the defendant to pay
to the plaintiff, or some one in his stead ; and the signature
of the defendant has no other meaning than that pointed
out by the Lord Chief Baron. Nevertheless I will assume
that the defendant did promise to pay the money to the

14H. & N. 603.
298 LAW OF CONTRACTS.

plaintiff; then there is the objection of a want of con-
sideration to support the promise. The document goes
on, ‘Mr. Broadbent to debit my account with the above
money.’ If I thought that meant this—‘You may now
take a pen and write down £113 13s. to my debit, and
thereby extinguish so much of your debt,’ I should agree
with the plaintiff’s counsel. But this is not the meaning
of the document.”

Assignment in equity.

In equity, rights under a contract are assignable when |
not for exclusively personal services, so that the assignee
can sue in his own name; but such an assignment in
order to be sustained must be for a consideration, and in
order to bind the person liable he must have notice, and
the assignee takes subject to all the defences which would
have been good against the assignor.' No new act is
necessary to complete the assignee’s beneficial ownership.
The assignment is in ‘itself sufficient to complete the
assignee’s title against the assignor. In the leading case
of Holroyd v. Marshall,? the question was whether a
mortgage covered after acquired personal property, there
being a covenant that if the old machinery in the mort-
gaged mill was taken out and new machinery put in that
it should be subject to the mortgage, and it was held that
the mortgage covered this machinery as against the exe-
cution creditor. The same principle was applied in Butt
v. Ellett,3 where a cotton crop which had not been planted
was assigned for the security of the rent. After the crop
was gathered and sold to one who purchased it with
notice that it had been pledged before the seed was sown
1Anson on Contracts, *.p. 222; see Tailby v. Official Receiver, 13 App. Ca.

543; Western Wagon Co. v. West, 1 Ch. 271; Moeser v. Schneider, 158 Pa. 412.

2710 H. L. C. 209.
319 Wallace 544. See also Methoen v. Staten Island Light etc. Co., 66 Fed.

(C. C. A.) 113.
ASSIGNMENT OF CONTRACTS. 299

as security for the rent, it was held that the landlord
could charge the purchaser of the crop as a trustee.
The same doctrine was laid down in Collin’s Appeal,’
where it was held that a pledgee of an interest in a
limited partnership to be formed was entitled before the
creditor of the owner of that interest in the limited part-
nership upon a distribution of his interest after his
death.”

No notice to the person liable is necessary to make
the assignment complete. In the case of Jz re Way’s
Trust, the deed of an equitable reversionary interest in
stock, assigning it to a trustee, was held good, though it
was never delivered to the trustee, and no notice given to
any one, and subsequently destroyed and a different dis-
position by will made of the subject matter of the deed.
The broad principle upon which this doctrine rests is
that a voluntary settlement, freely made, is binding upon
the grantor even if he retains the deed; and it is equally
binding, without notice, upon the creditors of the grantor.
In Pellman v. Hart,‘ a judgment creditor issued an execu-
tion against the maker of a note due the defendant, and
the garnishees set up the assignment of the note prior to
the attachment. On the trial the Court was requested to
charge that if the jury believed that the attachment was
served upon the garnishees before they had any notice of
assignment that the plaintiff was entitled to recover.
This was refused, which was assigned for error, but the
judgment was affirmed.

1107 Pa. 590. :

2?The assignment of an expectant interest in the estate of one not yet dead
was upheld in Kuhns’ Estate, 163 Pa. 438. See also Clendening v. Wyatt, 54 Kan.
523, and as to assignments of other interests; see Wheeler v, Walton & Whann
Co. (C. C.), 64 Fed. 664; Perkins v. Butler Co., 62 N. W. (Neb.) 308; Hardy
Implement Co. v, Iron Works, 31 S. W. (Mo.) 599; Greite v. Hendricks, 71
Hun. (N. Y.) 7; Kinyon v. Kinyon, 72 Hun. 452.

32 DeG. J. & S. 365.
+1 Pa, 263.
300 LAW OF CONTRACTS.

In an equitable assignment of rights under a contract
there are two things to be considered. They are, first,
that in order to bind the person liable there must be notice
of the assignment, and, second, the assignee takes subject
to all defences which could be made against the assignor.

(x) Notice to the person liable is necessary in order to
bind him, otherwise he might pay a subsequent assignee.
It is therefore necessary in order to complete the title of
the assignee." In Spain v. Hamilton’s Administrators,’
the Court said: “To constitute an assignment of a debt
no particular form is necessary. . . . As theassignee
is generally entitled to all the remedies of the assignor,
so he is subject to all the equities between the assignor
and his debtor. But in order to perfect his title against
the debtor it is indispensable that the assignee should
immediately give notice of the assignment to the debtor,

for otherwise a priority of right may be obtained by a
subsequent assignee, or the debt may be discharged by a
payment to the assignor before such notice.” ‘The English
rule is that equitable titles have priority according to the
priority of notice.2 The same rule was followed in Judson
v. Corcoran,* where the prior assignee of a claim against -
Mexico, having given no information of the assignment
until a subsequent assignee had prosecuted the claim
before the commissioners and obtained an award, was
postponed to the subsequent assignee.®

This rule has not been universally followed in this
country. In Thayer v. Daniels, the rule in Massachu-
setts is stated as follows: “It is well settled that the

1Stocks v. Dobson, 4 De G. McN. & G. II, 15.

2 1 Wallace 604-624.

3 See the case of Stocks v. Dobson, supra.

417 Howard 612. Also Van Buskirk v. Ins. Co., 14 Conn. 141; Clodfelter uv.
Cox, 1 Sneed (Tenn.) 330; Ward v. Morrison, 25 Vt. 593.

5See Hobbs v. McLean, 117 U.S. 567; Burck v. Taylor, 152 ib. 634.

6113 Mass, 129; also Williams v. Ingersoll, 89 N. Y. 508; Muir v. Schenck,
3 Hill (N. Y.) 228.
ASSIGNMENT OF CONTRACTS. 301

assignment of a chose in action is complete upon the
mutual assent of the assignor and the assignee and it
does not gain additional validity as against the third
person by notice to the debtor.” Judge Pomeroy, in the
second volume of his Equitable Jurisprudence,’ says:
“The remaining case to be considered . . . is that
of successive transfers of the same thing in action made
by the same person—the creditor party—to different
assignees. ‘The American decisions upon this particular
case cannot be reconciled. I can only present those settled
doctrines of equity which, it would seem, should apply to
and govern such a condition of circumstances. In Eng-
land and in some of the States the rule giving to the
assignee who first notifies the debtor party or trustee a
precedence over all others, even those who are earlier in
date, furnishes a certain and simple criterion for determin-
ing the priority, it being remembered that this rule is
confined to pure personal things in action, and does not
extend to liens and other equitable interests in real estate.
In the States where the rule referred to does not prevail,
the question must turn upon other doctrines. If the
interests are equitable in their nature, and the equity of
no assignee is intrinsically superior to the others, the
settled principles of equity should control, that the order
of time determines the order of priority; or, in other
words, that the subsequent assignee takes subject to the
rights of the one prior in time; and this principle
has been applied, in such cases, by many able deci-
sions. On the other hand, if the subsequent assignee
has acquired the legal title, and was a purchaser in
good faith for a valuable consideration and without
notice, he is protected; and this doctrine of bona jide
purchase seems to have been extended, by some decisions,
to subsequent assignees who had only obtained an

14 713.
302 LAW OF CONTRACTS.

equitable interest.”” The cases pro and con are cited in
the note.’

What the rule in Pennsylvania is, it is a little
difficult to say. The point was raised in Coon & Neil
v. Reed,’ but it was not directly decided. In that case,
Lucas, having a suit pending for an unliquidated claim,
assigned it to Reed as collateral security for a previous
debt; he subsequently assigned a portion of it to Coon
in payment of a previous debt. Coon filed his assign-
ment of record in the case; judgment was subsequently
recovered and as soon as it was recovered Reed filed his
assignment and the money was paid to him, and then
Coon sued Reed to recover the money. Judgment was
entered for the defendant and this judgment was affirmed.
In giving the opinion, the Court said that there was no
law making the record of an action or suit a place for
recording the claim, and added: “In the absence of a
positive law requiring the assignment to be filed, it
would be rather an act of legislation than of the adminis-
tration of equity, judicially, to say that the prior assign-
ment has lost its validity against the junior transfer by
not filing it. In such a case, przor zn tempore potior
est in gure, is the maxim which becomes the law of the
assignment, if there be no equity otherwise to defeat it.”

(2) The second point to be noticed in regard to
equitable assignments, is that the assignee takes subject
to equities. In Crouch v. Credit Foncier of England,
Lord Blackburn says; ‘The general rule both at law
and equity is that no person can acquire title either to

1 For recent cases upon the subject, see Methoen v. Staten Island Light etc.
Co., 66 Fed. (C. C. A.) 113; Jones v. Lowery Banking Co., 16 So. (Ala.) 11;
Board of Education v. Duparquet, 24 Atl. (N. J.) 922; Scheuber v. Simmons, 22
S. W. (Texas) 672; Beran v. Tradesmen’s Bank, 137 N. Y. 450; Abbott v. David-
son, 25 Atl. (R. I.) 839; Fortunato uv. Patton, 25 N. Y. S. 333; Burck v. Taylor,
152 U.S. 634; Fortunato v. Patten, 41 N. E. (N. Y. App.) 572.

279 Pa. 240.

3. R. 8Q. B. 380.
ASSIGNMENT OF CONTRACTS. 303

a chose in action or in other property from one who has
himself no title to it.’ In Mangles v. Dixon,’ the Lord
Chancellor says: ‘ The authorities upon this subject as
to liabilities show that if a man does take an assignment
of a chose in action he must take his chances as to the
exact position in which the party giving it stands.” This
last case was an action of assumpsit to recover freight
under a charter party. The facts appear to have been
these: The plaintiffs were ship owners and importers
up to the time of their bankruptcy; the defendants
were engaged in chartering vessels for importing
certain materials; the plaintiffs offered a vessel to the
‘defendants who thought it was too large, whereupon the
plaintiffs offered to take half the ship in partnership
with the defendants. It was thereupon arranged that a
charter party in the usual form, which was the document
declared upon, should be executed by the defendants and
plaintiffs, and that a certain agreement as to the proposed
adventure should be entered into which should be signed
by a clerk of the plaintiffs in his own name, but in reality
as the agent of the plaintiffs; and a memorandum
accordingly was signed, after the execution of the charter
party, by the defendants and the clerk of the plaintiffs,
stating that after the adventure was over and the freight
‘deducted, the profits should be divided equally. While
the vessel was on her voyage the plaintiffs deposited the
‘charter party with Messrs. Dixon & Company as security
for a debt, and upon it wrote an order upon the defendants
to pay any amount due them from that date to Messrs.
Dixon & Company. The bankers had no notice of this
second agreement under which the profits were to be
divided between the plaintiffs and the defendants, and
the suit in the Court of Exchequer was brought in the
name of the plaintiffs for the use of the bankers. It

12H. L. C. 735. See also Boyd v. Mangles, 3 Exch. (W. H. & G.) 387.
304 LAW OF CONTRACTS.

was held that they could recover the whole amount of
the freight. Subsequently, the defendants in the suit in
the Exchequer Chamber, filed a bill against Dixon &
Company to restrain the collection of the whole freight
and make them responsible for half the losses incurred
on the voyage, and the decision was made in their favor
upon the ground that when the Dixons took the assign-
ment of the charter party from the Boyds, they took it
subject to any equities between the Boyds and the
defendants. The same rule is recognized in Faull v.
Tinsman.' In which case a note was given, signed by the
defendant, to one Tinsman for $700, as consideration for a
patent corn sheller. The note was subsequently assigned
for value and a suit was brought for the use of the
assignee. ‘The defence was that at the time the note
was given it was agreed that it was not to become due
until the maker of it had made enough out of the
corn sheller to release it. The Court charged the jury
that this was not a good defence against the assignee,
and this judgment was reversed for that reason, the
Court holding that the assignee took subject to all
defences which could be made against the assignor.

Oue of the commonest instances of the application of
this rule is Seen in cases where, under the defence of a
set off, a claim of the debtor against the assignor is
allowed in a suit by the assignee against the debtor.
This is illustrated in the case of Metzgar uv. Metzgar,’
and the case of Miller v. Bomberger.2 In the first case
a judgment which existed before the date of the instru-
ment upon which suit was brought was allowed to be
set off ;+ and in the second case, a judgment obtained

136 Pa. 108.

21 Rawle 227.

376 Pa. 78.

4See, however, the case of Blair v. Mathiott Admr., 46 Pa. 262, which disap-
proves of the ruling in Metzgar v. Metzgar.
ASSIGNMENT OF CONTRACTS. 305

after notice of the assignment, on a liability which existed
before that notice, was held to be a good set off, the
Court holding in this case that the right of the assignee
was not complete until the person liable had received
notice. In Northampton Bank v. Balliet,’ it was ruled
that the debtor can set off a claim acquired after the
assignment, provided it was before he received notice of
the assignment. But the parties to the original contract
may protect the assignee from the defence of equities by
so providing in the contract.

In re Agra & Masterman’s Bank, ex parte Asiatic
Banking Corporation,? Lord Cairns (p. 397) says:
‘“Generally speaking, a chose in action assignable only
in equity must be assigned subject to the equities existing .
between the original parties to the contract; but this is a
rule which must yield when it appears from the nature
of the terms of the contract that it must have been
intended to be assignable free from and unaffected by
such equities.” And in that particular case it was held
that the assignment was free from equities between the
parties. ‘That case was a letter of credit given by a bank
authorizing certain parties to draw for a certain amount.
It was held that people who had advances of drafts drawn
in accordance with this letter of credit were not liable to
have any equities between them and the holders of the
letters of credit set up against them. And in the case
of instruments issued for the purpose of raising money,
the defence of equities between the parties will not be
allowed, even though nothing is said about it in the
instrument, because the person liable is in a position to
come into a Court of Equity asking for protection on
account of a secret agreement between him and the
assignor, and the answer which the assignee makes is

18 W. &S. 311.
22 Ch. App. Cas. 391.

20
306 LAW OF CONTRACTS.

that you, by giving this agreement to the assignor, which
on its face was intended to be used for the purpose of
raising money, enabled him to deceive me and therefore
cannot set up this equity. Where upon the face of the
instrument assigned it does not appear to have been
created for the purpose of raising money, and the trans-
action is voidable on the ground of fraud or misrepresen-
tation, the defence may be made by the person liable.’

To what extent this defence of taking subject to equi-
ties goes, is a question about which there is a very con-
siderable conflict in the decisions. The question being
whether it is to be confined to the equities between the
original parties to the contract, or whether equities of
intermediate assignees, and of third persons against the
assignor are to be included? Taylor v. Gitt,* decided
that the assignee of a bond, while he was liable to any
defence which the obligor had had to assume on the bond,
was not liable to a defence which the first assignor could
have set up against the immediate assignor of the party
suing; and this was approved in Mullison’s Estate.
It would appear, therefore, that the tendency of the
decisions in Pennsylvania is to restrict the class of equi-
ties to those existing between the original parties.®

Assignment by statute.

In England the Judicature Act of 1873 (36 & 37 Vict. c.
1866) gives to the assignee of any debt or legal choses in
action all legal rights and remedies, but (1) the assignee

1See the case of Dickson v. Swansea Vale R. R. Co., L. R. 4 Q. B. 44.

2 Graham vz. Johnson, L. R. 8 Equity 36.

5See II. Pomeroy’s Equity, 33 714,715. Sutherland wv. Rieve, 151 Ill. 384;
Moore v. Smith, 61 N. W. (Mich.), 538; Burton v. Willin, 6 Houston (Del.)
522; Himrod v, Bolton, 44 Ill. App. 516.

410 Pa. 428.

518 P. F. S. 212.

6 Blair v. Mathiott Admr., 46 Pa. 262; Theyken v. Howe Machine Co., 109
Pa. 95.
ASSIGNMENT OF CONTRACTS. 307

takes it subject to equities; (2) the assignment must be
absolute ; (3) it must be in writing, signed by the assignor ;
(4) express notice in writing must be given to the party
to be charged, and the title of the assignee dates from the
notice.

By various statutes in England, policies of life insurance,
of marine insurance and shares in companies are made
assignable by statute and it is not necessary to refer to
them here.

In this country there are various provisions in the dif-
ferent States providing for the assignability of choses in
action, giving to the assignee the right to bring suit in his
own name. In this State as early as 1715, bonds, special-
ties, and notes in writing were made assignable, and the
assignee could bring suit in his own name; but these
assignments had to be under seal and signed in the pres-
‘ence of two witnesses. They were subject to equities,"
and notice is necessary toperfect the title of the assignee.’

A few of the leading principles applicable quite gener-
ally are collected in a note to Anson on Contracts,3 and are
summarized as follows :

1. Every right of property which was assignable in
equity and survives to the personal representatives of the
owner is assignable. It is therefore held in Mulhall v.
Quinn,‘ wages not earned or not contracted for at the
time of the assignment did not pass under the assignment.

2. Damages for a tort which survives to a personal
representative may be assigned, but not unless they
survive Accordingly it was held in Smith v. Sherman,°

1 Bank v, Balliet, 8 W. & S. 318.

2 Bury v. Hartman, 4S. & R. 175. See also Purdon’s Digest under ‘‘ Bonds.”

3 * page 224.

£1 Gray 107.

5 Hunt v. Conrad, 47 Minn. 557; Dean v. Chandler, 44 Mo. App. 338; Dickson
v. Elevator Co., ib. 498; Webber v. Quaw, 46 Wis. 118; Smith v. Thompson, 94
Mich, 381; Slauson v. Schwabacher, 4 Wash. St. 783.

§ 4 Cushing 408.
308 LAW OF CONTRACTS.

that in the absence of special damage an action for
breach of promise of marriage was not assignable.

3. The right to compensation for personal services
arising out of a contract cannot be assigned.’

4. While a partial assignment probably could not be
enforced at law,’ yet it is said in the Appeal of Phila-
delphia,? that they can be enforced in equity.

1 White’s Executors v. the Commonwealth, 39 Pa. St. 167.

2 Mandeville v. Welch, 5 Wheaton 277; Jermyn v. Moffitt, 25 Smith 399.
386 Pa. St. 182.
CHAPTER X.
NEGOTIABLE INSTRUMENTS.

The assignment of a contract by the act of the parties,
whether made at common law, under the rules in equity,
or by statute (generally), only binds the party liable when
notice is given him, and only passes the interest of the
assignor, or at least, is subject to any defence which was
good against the original assignor by the party to be
charged. ‘There are, however, certain promises the benefit
of which can be assigned so as to be free from any
equities, which do not require any notice to the party to
be charged, and which originally derived their sanction

from the law merchant. ‘These are negotiable instru- -

on
,

ments, and are by reason of their negotiability to be dis- ©

tinguished from assignable contracts. The holder of a
negotiable instrument can sue in his own name. He is

not liable to the defences which could be made against
his assignor and no notice is necessary in order to bind

the party to be charged. The properties which the law

merchant attaches to certain contracts are thus stated

by Pollock.’

(1) “The absolute benefit of the contract is attached
to the ownership of the document, which according to
ordinary rules would be only evidence of the contract.”

(2) ““The proof of ownership is then facilitated by
prescribing a mode of transfer which makes the instru-
ment itself an authentic record of the successive trans-

fers; this is the case with instruments transferable by

endorsement.”

1 Pollock on Contracts, * p. 217.
(309)
310 LAW OF CONTRACTS.

(3) “Finally this proof is dispensed with by presum-
ing the dona fide possessor of the instrument to be the
true owner; this is the case with instruments transfer-
able by delivery, which are negotiable in the fullest
sense of the word.”

BILLS OF EXCHANGE AND PROMISSORY NOTES.

The common forms of negotiable instruments are bills
of exchange and promissory notes. The former by the
law merchant; the latter by statute. Judge Hare, in his
lecture on Promissory Notes and Bills of Exchange,
uses the definition and description given by Bayley on
Bills: ““A promissory note,” he says, “has been aptly
described as a promise for the payment of money at all
events;” and the same definition applies to a bill of
exchange, substituting ‘order’ for ‘‘ promise.” I think,
however, that the definitions given in Byles on Bills are
better. He describes a bill of exchange as follows: “A
bill of exchange is an unconditional written order from
A to B, directing B to pay C a sum certain of money
therein named.” He defines a promissory note as “an
absolute promise in writing, signed but not sealed, to pay
a specified sum at atime therein limited, or on demand
or at sight, to a person therein named or designated, or to
his order or to the bearer." “A foreign bill is one drawn
or payable, or both, abroad. An inland bill is one
drawn or payable within England, Wales and Berwick-
on-Tweed.”? States of the United States are foreign to
each other in this regard.

A bill of exchange must contain an order to pay as
distinguished from a mere request. Accordingly a letter

1¥For acollection of various definitions of bills of exchange and promissory
notes, see note to Byles on Bills and Notes; * p. 1, and Daniel on Negotiable
Instruments, 35.

* Byles on Bills and Notes, * p. 391.
NEGOTIABLE INSTRUMENTS. 311

as follows: “Please let the bearer have seven pounds
and place it to my account, and oblige, yours, R. Slack-
ford,” was held not to be a bill of exchange.’ On the
other hand, a mere authority to pay has been held not
to make a bill of exchange, because it gives a man an
option whether he will do it or not. He is not under an
obligation to pay.* So, a promissory note must contain
a promise to pay. ‘No precise words of contract are
necessary, provided they amount in legal effect to a
promise to pay.’* ‘To be paid on demand” has been
held to import a promise.* So the words “Good to A
or order for $30,000” were held to import a promise.
On the contrary, a mere acknowledgment as an order,
“T owe you,” or a non-negotiable due bill, is not a note.®
In Currier v. Lockwood,’ the following writing: ‘Due
Currier to Lockwood, $17.14, value received,” was held
not to be negotiable. So a certificate of deposit in which
a certain sum was made payable to A in twelve months,
to his order, was held not to be commercially negotiable.®
This goes on the ground of an intention to make the
paper negotiable, notwithstanding a decision of the
Supreme Court the other way.?

(1) A promise or order must be unconditional. The
undertaking must be absolutely free from any contin-
gency, except presentment, protest and notice of dishonor.

“Ninety days after sight or when realized,” is not a
bill or note, because it would have to be presented when

1 Little v. Slackford (Moody & Malcom 171), cited in Patterson v. Poindexter,
6 W. & S: 227.

2 Hamilton v. Spottiswoode, 4 Exch. 200.

3 Byles on Bills and Notes, *p. 8.

£Casborne v. Dutton, Selwin’s Nisi Prius 329.

5 Franklin v. Marsh, 6 N. H. 364.

6 Fisher v. Leslie, 1 Espinasse 426.

740 Conn. 348.

8 Patterson v. Poindexter, 6 W. & S. 227, affirmed in Lebanon Bank a.
Mangan, 28 Pa. 452.

®*Miller v. Austin, 13 Howard 218.
312 LAW OF CONTRACTS.

the acceptor was in funds;* nor “ten days after A’s mar-
riage ;””’ nor if the payment is made dependent upon the hap-
pening of some extrinsic fact, as the existence of a dispute
at a given time,’ even if the condition has happened.
(2) It must be payable in money, or what is legal
‘tender at the place of payment. An instrument is not
a note or bill, if payable in bank notes, unless they are a
legal tender,’ or if payable in “ current funds,” because its
value must be ascertained ;° or if payable in foreign money,
as Canadian money;’ but it is a good note or bill if
only expressed, but not made payable in foreign money.®

(3) The bill or note must not contain an independent
agreement or it is no longer negotiable. In Martin ».
Chauntry,° a note to deliver up horses and a wharf, and
pay money at a particular day, was not a promissory
note, and in Follett v. Moore, Baron Parke says, ‘“ The
case of Martin v. Chauntry, 2 Strange 1271, shows that a
promise in writing to pay money and do any other thing is
not a promissory note. To constitute a promissory note the
promise must be to pay a sum certain and nothing else.”
Accordingly, it has been held in Pennsylvania that
putting a clause in a promissory note, allowing a com-
mission as a collection fee, in case of non-payment at
maturity, destroys its negotiability." But this decision
went rather upon the ground that as such a clause gave

1 Alexander v. Thomas, 16 Q. B. 333 (71 E. C. L. R.).

? Beardsley v. Baldwin, 2 Strange 1151.

3 Hartley v. Wilkinson, 4 M. & S. 25.

‘Kingston v. Long, cited in Bayley on Bills 16; Iron City National Bank v.
McCord, 139 Pa. 52. See also Bank v. Frage, 36 N. E. (Ind.) 378, as to pro-
visions affecting the certainty of time.

5McCormick v. Trotter, 10 S. & R. 94.

6 Wright v. Hart’s Admr., 44 Pa. 454.

7™Thompson v. Sloan, 23 Wend. 71.

8 Carey v. Courtney, 103 Mass. 316.

92 Strange 1271.

104 Exch. (W. H. & G.) 416.

1 Woods v. North, 84 Pa. 407.
NEGOTIABLE INSTRUMENTS. 313

no definite amount, as the commission would not neces-
sarily be the per cent named, it rendered the whole
amount payable upon the note uncertain, and in the
opinion of the Court it was said that a clause waiving
exemption would not affect the negotiability of the note
because it did not touch the simplicity and certainty
of the paper. The insertion of a waiver of exemp-
tion in a promissory note was directly decided not to
affect its negotiability in Zimmerman v. Anderson,’ but
in Sweeney wv. Thickstun,? a note containing a clause
allowing a commission and a warrant to enter up judg-
ment was held non-negotiable by reason of a warrant of
attorney contained in it, so that the rule in Pennsyl-
vania is, not that a collateral agreement inserted in the
note will make the latter non-negotiable, but that where
that collateral agreement so inserted affects the certainty
of the amount or the time of payment of the note, that
in such case it will destroy its negotiability. It will be
noticed, however, that these agreements all relate to the
note itself and not to something else.

In some States, that of Iowa for instance,’ it was held
that the insertion of a clause giving a commission upon
collection will not affect the negotiability of the note.
This same rule has been followed in a number of other
States,—TIllinois* Indiana, Kansas, Louisiana, Nebraska,
Massachusetts and New York.’ I do not know of any

167 Pa. 421.

497 Pa. 131. '

3Sperry v. Horr, 32 Iowa 134. See also Shenandoah Nat. Bank v. Marsh, 56
N. W. (Iowa) 458.

4 Wolff v. Dorsey, 38 Ill. App. 305; S. C. 32 N. E 495.

§ For cases on this subject, see Handley v. Tibbetts, 17 S. W. (Ky.) 166; Bank
of Commerce v. Fuqua, 28 Pac. (Mont.) 291; Balfour v. Davis, 14 Or. 47; Levens
v. Briggs, 21 Or. 333; Rixey v. Pearre, 15 S. E. (Va.) 498; Bank v. Sutton Mfg.
Co., 52 Fed. 191; Bahk v. Anglin, 6 Wash. 403; Stapleton v. Louisville Bkg. :
, Co., 23 S. E. (Ga.) 81. As to provisions for the payment of exchange see Flagg

v. School District, 58 N. W. (N. D.) 499; Whittle v. Bank, 26 S. W. (Texas)
1106.
314 LAW OF CONTRACTS.

decision which holds that these collateral agreements in
a note may be enforced in a suit brought in the name of
the holder of the note or whether a suit must be brought
in the name of the payee for the use of the holder.

A promise to pay out of a particular fund, or an order
in a bill of exchange making it payable out of a particu-
lar fund, renders the bill or note non-negotiable. In
Horback wv. Reeside,’ a bill directing $5000 to be paid to
the order of A, ‘and charged to my account for trans-
porting U.S. mail,” was held to be non-negotiable. So
a direction when in funds from the sale of product in
the drawee’s hands was held not to be a negotiable instru-
ment;” but a direction to charge toa particular fund, if
not intended to affect the absolute liability of the acceptor,
but merely to indicate to what fund the acceptance is to
be charged, will not affect the negotiability of a paper.

(4) The amount of money payable by a note or bill must
be definite, that is it must be capable of being ascertained by
inspection of the instrument without any recourse to ex-
trinsic facts. So a promise to pay a man a definite sum
and whatever other sums may be due him is not a good
promissory note.* But a note payable in installments
with a provision that upon the failure to pay one, all
shall become due, has been held to be a good promissory
note.’ In regard to certainty of payment, the general
rule both in England and this country is, that if the
instrument is absolutely payable, or is payable on the
happening of a contingency which must happen, though
exactly when it will happen is not known, it is a negotia-
ble instrument. Andrews v. Franklin,® held that a

16 Wharton 47.

2 Gallespie v. Mather, 10 Pa. 28.

3 Coursin v. Ledlie’s Admr’s, 31 Pa. 506.

‘Smith v. Nightingale, 2 Starkie 330.

§Carlon v. Kenealy, 12 M. & W. 139.

61 Strange 24, see Armiston Trust Co. v. Stickney, 19 So. (Ala.) 63.
NEGOTIABLE INSTRUMENTS. 315

promissory note payable within two months after a cer-
tain ship is paid off is good. Colehan vw. Cooke,' decided
that a note payable ten days after the death of the maker’s
father was good. Soin Ernst & Godshalk v. Steckman,’
a promise to pay in twelve months or sooner if made out
of the sale of a machine, was held to be a good negotia-
ble note. On the other hand, it has been held in some
cases, notably in Massachusetts, that the promise must
be to pay in a time absolute or a time which can be made
certain at the option of the holder, and this would seem
to be the ground upon which in Alexander v. Thomas,‘
it was held that a bill payable in ninety days or when
realized out of the drawer’s bill of exchange was not a
negotiable instrument. Also in Nunez v. Dautel,5 an
instrument as follows: “Due Joseph Dautel, or order,
$1619.66, being balance of principal and interest for four
years and six months’ services. This we will pay as
soon as the crop can be sold or money raised from other
sources,” was held not to be negotiable. Wherever an
obligation may be reduced to certainty at the option of
the holder, all the cases agree that it is a good nego-
tiable instrument, and that is the reason that notes pay-
able at sight, or on demand, are sustained, because the
holder can always fix a time by presenting them or
making the demand.

(5) Certainty as to parties. A bill of exchange must
have both a drawer and a drawee as well as a payee. In
Peto v. Reynolds,’ it was very strongly intimated, though
it was not expressly decided, that the instrument in ques-
tion was not a bill of exchange, because no drawee was

12 Strange 1217.

274 Pa. 14.

* Hubbard v. Mosely, 11 Gray 170; Stults uv. Silva, 119 Mass. 139.
*16 Q. B. 333.

5 19 Wallace 560.

69 Exch. 410.
316 LAW OF CONTRACTS.

named. In Hooper v. Williams,’ it was held that a note
made payable to the order of the maker, is not a nego-
tiable instrument until it has been endorsed by him;
and in Miller v. Weeks,’ the doctrine which is very
thoroughly reasoned out in Hooper v. Williams is assumed
as the basis of the decision. A note in favor of the
secretary for the time being of the Indian Laudable &
Mutual Insurance Society was held not to be negotiable,
because it was uncertain at the time the note was drawn
who would be the secretary of that society when the note
was due;* but in King v. Box,t and Davis v. Garr,> a
promise to pay, in the first case, to two stewardesses or
their successors, and, in the second case, to three trus-
tees or their successors, was held to be good. It is also
held that a note cannot be made payable to A or B in
the alternative.®

(6) Neither a bill or a note takes effect until it is
delivered. Delivery is essential to their validity.’ If
the party who has’ signed or endorsed a note dies before
its delivery, the signing or endorsing is a nullity. In
this case the endorsement had been made, but there had
been no delivery before the death of the endorser; his
executrix then delivered it without any additional en-
“ dorsement and it was held that there was no right of
action in the holder. It may be delivered in escrow, but
it differs from a deed in this particular; that a deed
cannot be delivered to the grantee and be a good delivery
in escrow, whereas a note may be delivered to a stranger
or by one party to another on condition that it is only

12 Exch. 18.

? 22 Pa. 89. .

3 Cowie vu. Stirling, 6 E. & B. 333.

46 Taunton 325.

5 2 Selden 124.

6 Blanckenhagen v. Blundell, 2 B. & Ald. 417.
TChapman v. Cottrell, 34 L. J. Ex. 186.

8’ Bromage v. Lloyd, 1 Exch. 32.
NEGOTIABLE INSTRUMENTS. BIT

to take effect in a certain event, and that condition is.
valid even in an action brought on the agreement.' Of
course this doctrine does not apply if the note goes into
the hands of a dona fide holder without notice. .

Acceptance.

“ Acceptance in its ordinary signification is the engage-
ment by the drawee to pay the bill, when due in money.””
Before acceptance the drawee is not liable to the holder.

(1) A bill can only be accepted by the drawee.3 In
the case cited the bill was addressed to John Hart and
accepted by H. L. Clarke. Held that he was not an
acceptor, unless it be accepted for honor after protest for
non-acceptance. ‘The acceptance may be by an agent, and
he need not disclose the fact that he is acting as an agent ;*
but it has been held in Rositer v. Rositer,5 that if the ac-
ceptor has not authority at the time of accepting, he will be
liable personally, though his act is subsequently ratified,
and the principal by such ratification becomes liable also.

The exception to the rule that a stranger to the bill
cannot accept so as to make himself liable as acceptor
under the law merchant is in the case of an acceptancé
for honor.. Where acceptance is refused any person may
accept the bill for the honor of the drawer or of any of
the endorsers. Where this is done the acceptor must go
before a notary and declare that he accepts such pro-
tested bill for the honor of the drawer or endorser as the
case may be and will satisfy the same at the appointed
time. Such an acceptance, when general, supra protest
is for the benefit of the drawer.® In order to hold the

1 Byles on Bills and Notes, * p. 100.

2 Byles on Bills and Notes, * p. 184.

3 Davis v. Clarke, 6 Q. B. (51 E. C. L. R.). 16.
4 Byles on Bills and Notes, * p. 32.

58 Wendell 494.
6 Byles on Bills and Notes, * p. 262,
318 LAW OF CONTRACTS.

acceptor “for honor” of such a bill, the bill must be
presented for payment to the drawee. In Williams vz.
Germaine,’ the acceptor supra protest was held not
liable -because of a failure to present to the drawee
for payment. The reason is that such an acceptance
is in effect a conditional acceptance, an undertaking
to pay, if drawee does not pay. A drawee may, after
refusing to accept, accept for honor. There cannot be
two or more acceptors of the same bill not jointly
responsible where there is one drawee.? In this case A
supplied B with goods and C agreed to guarantee the
payment of the price. A drew on B and the acceptance
was by B and C. It was held that it was not a good
bill according to the custom of merchants and plaintiff
was nonsuited.

(2) At common law an oral promise to accept an
existing foreign bill is a good acceptance.* In the case
cited the drawee wrote the drawer, who had notified him
that he had drawn. on him, that he might be assured
that the bills would meet with due honor from him.
The plaintiff had received the bills with knowledge of
the letter of the drawee. It was held that the drawee
was liable as acceptor of the bills. The acceptance may
be verbal.s The rule has been changed by statute in
England® which requires the acceptance to be in writing,
and also in some of the States in the United States,
among others Pennsylvania.? In Pillans v. von Mierop,®

17B. & C. 468.

2 Schimmelpennich v. Bayard, 1 Peters 264, and preceding case.

3 Jackson v. Hudson, 2 Campbell 447.

4 Clarke v. Cock, 4 East, 57.

5 Spaulding v. Andrews, 48 Pa. 411; Spurgeon v. Swain, 41 N. E. (Ind.) 397.

6 Byles on Bills and Notes * p, 189.

™See Act of May 10, 1881. P. L..17, 31. This act, however, is for the
‘benefit of the acceptor alone, Ulrich v. Hower, 156 Pa. 414; Moeser v. Schneider,
158 Pa. 412; also Nat. State Bank v. Linderman, 161 Pa. 199; Dickinson v.
Marsh, 57 Mo. App. 566.

83 Burrows 1663.
NEGOTIABLE INSTRUMENTS, 319°

it was held that a promise to accept a bill not already
in existence amounts to an acceptance, Lord Mansfield
saying: “‘I will give the bill due honor,’ is in effect
accepting it. If a man agrees ‘that he will do the
formal part’ the law looks upon it (in the case of an
acceptance of a bill) as if actually done;” and Yates,
J., said: “A promise to accept is the same as an actual
acceptance.” But in Johnson wv. Collins,’ a promise to
accept a bill if it should be drawn upon the promisor,
was held not to bind the promisor as an acceptor of the
bill. Lord Kenyon delivering the opinion of the Court
said: “I am not disposed to carry them (the cases) to
the length now contended for, and to say that a promise
to accept a bill before it is drawn is equally binding
as if made afterward. It is not generally true that a
promise to do a thing is the same thing in law as
actually doing it; it certainly is not so applied to this
case.” In this country it has been decided in Coolidge
v. Payson,’ that a promise to accept a bill to be drawn
in the future, is a good acceptance of such bill. This
case was followed in Pennsylvania by Steman, Baker &
Company v. Harrison & Hooper. And the reasoning
is this: That inasmuch as a collateral promise in the
case of an existing bill is held to amount to an ac-
ceptance, because it is intended to give the credit to the
bill, the same doctrine should apply to a bill to be
drawn after the letter is written, provided the bill to

‘tr East 98.

?Tn this case when the holder took, he had no knowledge of the promise.

32 Wheaton 66.

*42 Pa. St. 49. In Howland z. Carson, 15 Pa. 453, where plaintiff had no knowl-
edge of the promise to accept when he took the bill he was not allowed to re-
cover for non-acceptance; in Spaulding v. Andrews, 48 Pa. 411, there was a parol
acceptance, as distinguished from a promise to accept. See also Scudder z.
Bank, g1 U. S. 406; Hall v. Cordell, 142 U. S. 116; Union Bank v. Shea, 58N. W.
(Minn.) 985. In Exchange Bank v. Hubbard, (C. C. A.) 62 Fed. 112, an action ,
for breach of promise to accept drafts was maintained; see Kelley v. Greenough
9 Wash. 659; Nichols v. Commercial Bank, 55 Mo. App. 81.
320 LAW OF CONTRACTS.

which credit is intended to be given is sufficiently re-
ferred to in the letter. On the other hand, the reason-
ing on which the decisions rest that such a promise
with respect to a bill -not in existence cannot be an
acceptance, is that every simple contract requires a con-
sideration to support the promise (the exceptions are
in the case of a deed or negotiable paper), and that there
being no bill in existence at the time the promise is
made, such promise does not therefore come’ within the
rule as to negotiable paper. The limitations placed
upon the application of the rule are stated at the end
of Chief Justice Marshall’s opinion in Coolidge wv. Pay-
son’, where he says: “Upon a review of the cases which
are reported, this Court is of opinion that a letter, writ-
ten within a reasonable time before or after the date of
a bill of exchange, describing it in terms not to be
mistaken, and promising to accept it, is, if shown to
the person who afterward takes the bill on the credit.
of the letter, a virtual acceptance, binding the person
who makes the promise.” The doctrine of this case, with
limitations, has been universally followed in this country.

In Storer v., Logan,’ where there was a letter promising
to accept a bill to be drawn, it was said by the judge:
“The transfer is made, not by the delivery of the bill
itself, for that is no evidence against the drawee, but by
communicating to the payee a letter of credit which the
drawer holds addressed to him by the drawee.”’

A promise to accept may be made to the drawer after he
has negotiated the bill, and will enure to the benefit of the
holder.’

In both of these cases just cited the promise was made
to the drawer after the bill had been negotiated, and, of

12 Wheaton 66.

2 9 Mass. 55.

3 Powell v, Monnier, 1 Atkins 611; Spaulding v. Andrews, 48 Pa. 411. See
note supra,
NEGOTIABLE INSTRUMENTS. 321

course, it could not have been negotiated on the faith of the
promise. In the latter case Judge Strong says: “It is
said that even if there was a promise to pay the draft,
there was no promise to pay Andrews, who obtained it
after the acceptance. But an acceptance is a promise to
pay anyone who may thereafter become the holder, and
the legal effect is the same whether it be in parol or in
writing. Nor does it make any difference when a parol
acceptance is given if it be after the bill is drawn; it en-
ures to the benefit of all parties to the bill. It may be given
to the drawer or to any other party to the bill, after it has
been negotiated away, and even after it has become due it
may be given to a person by whose direction and on whose
account the bill was drawn, though he be no party to the
bill, and although the bill has been previously endorsed."
If a bill comes into a man’s hands with a parol acceptance,
though he does not know of that acceptance, he may avail
himself of it afterward when it comes to his knowledge.
In the case of Fairlee v. Herring,’ the defendant had
been placed in funds to meet certain bills, but failed to
accept them. When they were presented the drawer of
the bill, who was the agent of the drawee, told one of
the defendants that the bill was not accepted, where-
upon the defendant exclaimed, ‘‘ What, not accepted?
We have had the money and they ought to be paid,
but I do not interfere in this business; you should see
Mr. Powells.” ‘The money had been placed in the de-
fendants’ hands upon their request that it should be
placed there for the purpose of taking up the bills. It
was held that this amounted to a parol acceptance and
enured to the benefit of the holder, who knew nothing
about the transaction and, of course, took the bills

1 See Byles on Bills and Notes, 147, 148, and cases cited, especially Fairlee v.
Herring, 3 Bingham 625; also Wood's edition of Byles on Bills, p. 191, note 3.
23 Bingham 625. “*

7 21
322 LAW OF CONTRACTS.

without any acceptance on their face. In Scudder v. The
Union National Bank,’ the Court say (p. 413): ‘‘ Unless
forbidden by statute, it is the rule of law generally that
a promise to accept an existing bill is an acceptance
thereof, whether the promise be in writing or parol.”

(3) The acceptance of a bill does not have to be in
any particular form. Any act which indicates that the
drawee means to pay is sufficient for an acceptance.
In Mason w. Barff,? the vendor of goods had been in
the habit of drawing on the vendee for the price of
the goods, getting the bills discounted at the bankers.
The vendee cautioned the bankers to see that the goods
were shipped and the carrier’s receipt sent, and assured
them that in that case they would be accepted. The
particular bill on which suit was brought was sent to
the banker, who transmitted it to the vendee for accept-
ance; he kept it ten days and then declined to accept
it, as the invoice of the goods had not been delivered.
After a further interval of sixteen days, the bankers
not having objected to his detention of the bill, he returned
it. Held that the drawee was not liable as an acceptor
from the mere fact of detention. On the other hand,
in Webb wv. Mears,3 where a bill was sent to the drawee
who returned it with the words “Acceptance waived”
written across it, together with a letter saying that he
was not in funds to provide for it but he probably
would be soon, and that he would try to arrange the
matter satisfactorily, it was held that there was no
acceptance. Where there is not a written acceptance
across the face of a bill it is a question really whether
the drawee intended to accept it, and must be deter-
mined on all the facts in the case.

1 + Otto 406.
22B. & Ald. 26.
345 Pa. 222.
NEGOTIABLE INSTRUMENTS. 323

(4) The acceptance may be a qualified acceptance.

When the bill is presented to the drawee he can
either accept it generally, which means absolutely,
whereby he makes himself the principal debtor, or he
may make a conditional acceptance, or a partial accept-
ance; and if he does either and the holder accepts such
conditional or partial acceptance he will discharge the
drawer and prior endorsers unless he obtain their
consent, because he has consented toa variation of the
contract to which they are parties. In Seabag wv. Abitbol,*
Bayley, C. J., says: “It is true the holder is not bound
to present the bill for acceptance, but I have always
understood that if he does present it and a qualified
acceptance is given, he is bound to give notice. If then,
the circumstances of the bill being accepted, payable at
the bankers, it is to throw on the holder the obligation
to present it at a particular place, the consequence will
be that any intermediate endorser who may be called
on to pay, and does pay the bill, will in his action
over against another party to the bill be saddled with
the proof of the additional fact beyond what he would
have to prove if the acceptance were a general accept-
ance.” In Wegersloffe v. Keene,’ it was decided that a
provisional acceptance, by which the drawee agreed to
pay 100 pounds on a bill for 127 pounds, was a good
acceptatice.

Acceptances, “to pay as remitted for;”3 “to pay
when in cash for the cargo of the ship Thetis;’*
“to pay when goods consigned to the drawee were

14M. &S. 462.

21 Strange 214. This case is a very interesting one on account of the argu-
ment for the defendant by Strange, and there réported with the whole practice
and law with respect to the acceptance of bills of exchange, which is carefully
gone over.

3 Banbury v. Lisset, 2 Strange 1211.

*Julian v. Shobrooke, 2 Wils. 9.
324 LAW OF CONTRACTS.

sold,”’’ have been respectively held to be conditional
acceptances.’

(5) Time of acceptance.

The drawee has twenty-four hours after the present-
ment of a bill to decide whether he will accept it or
not. An acceptance may be made after the time when
the bill is payable and in such case, though the acceptance
be secundum tenorem et effectum brllae, yet it is a general
acceptance.* And this acceptance may be made after refusal
to accept.© In Grant v. Shaw,° the defendant promised
that if certain parties would get the bill back, he would
accept and pay it, and they got the bill. Held that was.
a binding acceptance, the condition having been performed.

(6) Acceptance is complete without delivery.

An acceptance is complete the moment it is written
on the bill, and no delivery is necessary, because it
does not affect in any way the title of the holder.’ It
was decided in Cox v. Troy,® that the acceptance is
revocable at any time before delivery, although in the
earlier case of Thornton v. Dick,’ Lord Ellenborough
stated the opposite to be the law.*° When, however, the
bill is not accepted on its face, but has been accepted orally,
or by some collateral writing, it is held that inasmuch as.
such acceptance enures to the benefit of all parties to the
bill, even without knowledge, it cannot be revoked.”

1Smith v. Abbot, 2 Strange 1152.

2 Byles on Bills and Notes, * page 193.

3 Connelly v. McKean, 64 Pa. 113.

4Jackson v. Pigott, 1 Lord Raymond 364. The same doctrine was followed
in Christie v. Peart, 7M. & W. 490.

5 Wynne wv. Raikes, 5 East 514.

636 Mass. 341.

T™Wilde v. Sheridan, 21 L. J. Rep, 260; but see cases cited in note I ta
Wood’s Byles on Bills and Notes, * page 199.

85 B. & Ald. 474.

94 Espinasse 270,

10See Wood’s Byles on Bills and Notes, * page 199, note 1.

UGrant vy. Hunt, 1M. G. & S. (50 E. C. L. R.) 44.
NEGOTIABLE INSTRUMENTS. 325
Transfer of bills and notes.

In order that a bill or note may be transferred so as
to charge the drawer or acceptor of the bill, or the maker
of the note, it must contain a direction or promise to pay
to the payee or order, or to pay to bearer. These words
“to order” or “to bearer” are necessary to make the bill
or note negotiable.’ In Robinson v. Brown,’ a promissory
note was made payable to Joseph S. Burr and endorsed
by him as follows: “Pay the within to Jesse Robinson.
Joseph S. Burr.” It was held that this endorsement did
not transfer the title to Robinson so that he could bring
asuit against the makers in his own name. And the ©
same point was decided in Gerard v. La Coste. In Ray-
mond v. Middleton,‘ it was said that any other words
which indicated clearly an intention to make a note
negotiable would answer as well as the words “ to order.”
It was originally doubted whether a note payable to A,
B or bearer, enables the holder to sue in his own name,
where he had acquired title merely by delivery,> but in
Grant v. Vaughan,® it was settled the other way as it
was in this State in Rankin v. Woodworth.” In
Mechanics Bank vw. Straiton,® it was held that a
check drawn to bills payable or order was the
same as if drawn to bearer, because the fictitious
payee coupled with the words of negotiability gave
it negotiability in no other way except as indicative
of an intention that the bill should be negotiable without
endorsement.

1 Byles on Bills and Notes, * p. 146.

24 Blackford 128 (S. C. in Ames on Bills and Notes, 313).

‘87 Dallas 194 (Court of Common Pleas of Philadelphia County).

‘429 Pa. 529.

6 See Hodges v. Steward, 1 Salkeld 125 (Ames on Bills and Notes, 294).
‘6 3 Burrows 1516.

72 Watts 134.

‘83 Keyes (N. Y.) 365.
326 LAW OF CONTRACTS.

In this country it is settled that the bonds of cor-
porations, issued as marketable securities, possess the
qualities of negotiable paper: (1) When made payable
to bearer, as in Murray v. Lardner,’ in which case three
coupon bonds of the Camden & Amboy Railroad Com-
pany, payable to bearer, were stolen from a safe and were
purchased by Murray in good faith. It was held that he
took a good title to the bonds, if he purchased in good faith,
and that the burden of proof was upon the owner to show
that he did not purchase in good faith. In Carr vu. Fevre,’
it was held that a bond issued by a corporation payable
to bearer was capable of passing by delivery, and would
enable the holder to sue upon it in his own name. (2)
Bonds payable in blank (the name to be inserted by the
holder). (3) Bonds payable to A or order.* (4) Bonds
payable to A or assigns.s And in the case of /z re Lea-
land,° this quality of negotiability is said to attach to the
coupon bonds of an individual.

A transfer may be by endorsement or by delivery alone.
When the bill or note is payable to order it can only be
transferred by endorsement. In Prevot wv. Abbott,’ the
plaintiff declared on a bill of exchange drawn by defendant
directing the drawee ninety days after date, to pay the
defendant or order twenty-seven pounds, and averred that
the defendant delivered the bill to the plaintiff, and
averred also an acceptance, presentment for payment and
dishonor. ‘There was a verdict for the plaintiff, and after
the verdict there was a rule in arrest of judgment upon the
ground that no endorsement by the plaintiff was averred,

12 Wallace IIo.

207 Pa. 413.

3 White v. Vermont & Mass. R. R. Co., 21 Howard 575.

‘Junction R. R. v. Cleaneay, 13 Ind. 161.

5 Clapp v. Cedar Company, 5 Iowa 15; Brainard uv. N. Y. R. R., 25 N. Y. 496.
66 Benedict 175.

75 Taunton 786.
NEGOTIABLE INSTRUMENTS. 327

and the bill could not pass without endorsement by mere
delivery. The rule was made absolute.t Where the
note or bill is payable to order and is transferred with-
out endorsement, although the transferee has not the
legal title and cannot sue in his own name, he has an
equitable title and may acquire the legal title by a sub-
sequent endorsement, even after the bankruptcy of the
party from whom he has obtained the bill.”

The rule is thus laid down in Story on Bills, (Section
201:) “If the bill is originally payable to a person or his
order, then it is properly transferable by endorsement.
We say properly transferable, because in no other way
will the transfer convey the legal title to the holder so
that he may at law hold the other parties liable to him ex
directo, whatever may be his remedy inequity. If there be
an assignment thereof without an endorsement, the holder.
will thereby acquire the same rights only as he would
acquire upon an assignment of a bill not negotiable. If
by mistake, or accident, or fraud, a bill has been omitted
to be endorsed upon the transfer when it was intended
that it should be, the party may be compelled by a
court of equity to make the endorsement; and if he
afterward become bankrupt that may not vary his right
or duty to make it; and if he should die his executor
or administrator will be compelled in like manner to
make it.” This doctrine is approved in Harrop v. Fisher,3
and in Guptell v. Horne,‘ an endorsement by a married
woman in her maiden name, of a note which she had
transferred by delivery, before her marriage, was held good.

1A note payable to an agent as ‘‘trustee,” but not indorsed by the agent is
subject to equitable defences in the hands of the principal, who is a holder for
value. Thompson-Houston Electric Co. v. Capitol Electric Co., 56 Fed. 849;
Benson wv. Abbott, 22 S. E. (Ga.) 127.

2? Smith v. Pickering, Peake 50; see also Jenkins v. Wilkinson, 113 N. C. 532.

310 C. B. N.S. 196.

463 Me. 405.
328 LAW OF CONTRACTS.

But where the bill is payable to order and is transferred
by delivery, the transferee takes it subject to any defences
which can be made against the party from whom he
received it; and, accordingly, if before the endorsement
is supplied, he learns of what would be a good defence
against the endorser, he takes it subject to such defence.
In Whistler v. Forster,’ the defendant gave one Grif
fiths a check, under an agreement that it was not to
be presented for payment before the fourth of October,
and that Griffiths would by that time supply the defend-
ant with the funds to meet it. On the third of October
Griffiths gave the check to the plaintiff for value and
without any notice of the agreement between him and
the defendant. When the check was handed to him
Griffiths forgot to endorse it, and before the plaintiff
obtained Griffiths’ endorsement he learned of the circum-
stances under which Griffiths secured the check from the
defendant. It was held that the plaintiff could not recover.
The same rule was applied in Lancaster Bank v. Taylor,’
where it was held that in the case of a note transferred
before it was due, without endorsement, and then endorsed
after it was due, the endorsee took subject to a defence
which rendered the note invalid in the hands of his imme-
diate endorser. In this case had the endorsement and
delivery both been after the note was over due, according
to a well recognized principle, applicable to commercial
paper, the endorsee would have taken subject to any
defences which would have been good against his endorser,
and the endorsement having been after the note was
due, his condition was none the better by the fact of a
delivery without endorsement before the maturity of the
note.

114C. B.N. S. 248,
? 100 Mass. 18, ;
3In this case the equities allowed were those between the original parties.
NEGOTIABLE INSTRUMENTS. 329

When a bill or note is endorsed in blank, or made
payable to bearer, it may be transferred by delivery alone.
Accordingly, where there is a blank endorsement followed
by a special endorsement, and then the bill is discounted
without the endorsement of the special endorsee, the
holder can sue directly, having the right to strike out
the special endorsement and write in his own name in
front of the blank endorsement.’

‘In all cases delivery is necessary to make a title such
that the holder can sue in hisown name. In Emmett vz.
Tottenham,” a bill which had been endorsed in blank and
transferred by delivery, was in the hands of a holder who
died. His executors did not want to bring suit upon it
in his own name and got the plaintiff to bring suit for
his benefit, and it was held that the plaintiff could not
recover because he had no real interest in the bill sued
upon. ‘Thesame point was decided in Hocker v. Jamison.?

In Marston v. Allen,‘ a bank officer drew a bill upon the
defendant for a debt due the bank, which bill was accepted
by the defendant. The bank officer then gave the bill,
for safe keeping, into the custody of a son of the plaintiff,
who was a clerk in the bank. ‘This son endorsed it to his
brother, and the brother endorsed it to the plaintiff, and ina
suit brought by him against the defendant, the defence was
set upthat there was no endorsement of the note by the orig-
inal payee who was the drawer, on the ground that though
he had written his name on the back of the bill, he had never
delivered it except for the purpose of having it put away for
the use of the bank, and this was held to be a good defence.

1Smith wv. Clarke, Peake 225, affirmed in Savannah Bank v. Haskins, 101
Mass. 370. And in Rand v. Dovey, 83 Pa. St. 280, the same rule was applied,
‘though there had been an irregular endorsement before the blank endorsement
of the payee. See also Coco v. Gumbel, 47 La. Ann. 966.
28 Exch. 884. See Middleton wv. Griffith, 31 Atl. (N. J.) 405.
82.W. & S. 438.
48M. & W. 494.
330 LAW OF CONTRACTS.

Endorsement.

‘“‘ Endorsement is the writing of the name of the holder
of a note or bill on the back thereof with intent to
transfer the right under the instrument to the endorsee
followed by the delivery to him for his uses.’”

An endorsement is not only a transfer, but it is a con-
tract. It is a contract to pay, if the maker does not, after
demand upon the maker and dishonor, and notice of dis-
honor, unless such liability is qualified by the nature
of the endorsement itself. An endorser may stipulate for
exemption against liability, as by an endorsement “ with-
out recourse.” In Rice v. Stearns,? an endorsement as.
follows: ‘‘ For value received I order the contents of this
note to be paid to Merrick Rice at his own risk,” was.
held to exempt the endorser making it from any liability.
In Craft v. Fleming,3 where a promissory note was
endorsed by “J. F. without recourse to me, J. F.,” it
was held to be a qualified endorsement and that there was.
no liability in case of non-payment by the maker. In
certain other cases endorsement only acts as a trans-
fer and does not create any liability. For instance, the
endorsement of an infant will transfer the title ;5 but he
will not be liable upon his note.© The endorsement’ of
a bill by way of a gift passes a title to the bill ;” but
the donee cannot hold the donor responsible for the
amount of the bill; and the rule here laid down seems
to be established now by weight of authority.

1Hare’s Lectures on Bills and Notes, p. 39.

“3 Mass. 225.

346 Pa. 140.

4In Nebraska an endorser ‘‘ without recourse’’ is responsible if the note is
fraudulent, fictitious or forged. Palmer v. Courtney, 32 Neb. 773.

5 Grey v. Gooper, 3 Douglas 65,

6 Williams v. Watts, 1 Campbell 552.

™Milnes v. Dawson, 5 Exch. 948.

® Holliday v. Atkinson, 5 B. & C. 501.
NEGOTIABLE INSTRUMENTS. 331

The endorsement may be in blank, in full, or re-
stricted. A blank endorsement is by writing the name
of the endorser on the back of the instrument. An .
endorsement in full names or designates the endorsee,
and the endorsee may render a blank endorsement
special or in full by superscribing a direction to pay
the instrument to himself, or to a third person, and
where this is done the effect will be the same as where
the instrument had been so endorsed in the first instance.
A restrictive endorsement limits the rights transferred
to the endorsee and effects it with a trust to the en-
dorser, or for some one whom he designates.’ An
endorsement in blank authorizes the holder to write
in his own name in the blank. An endorsement in
blank renders the bill payable to bearer, even though
there be a special endorsement afterward, because that
special endorsement may be struck out. In Walker v.
McDonald,’ the suit was against the defendant as en-
dorser of a bill of exchange. The bill had come into
the hands of the defendant under a blank endorsement
by the payees, it was then endorsed by the defendant
specially, and upon a refusal afterward by the drawee
to accept the bill, the special endorsee sued the de-
fendant, and it was held by Pollock in his decision:
“This is an action against the defendant as a special
endorser of a bill of exchange, before that endorse-
ment the bill had been endorsed in blank, and was
therefore payable to bearer.” It was decided in Smith
v. Clarke,3 that when a bill has been endorsed, no
subsequent endorsement can restrict its negotiability.
That decision has always been considered a correct one
and has been constantly acted upon. In Lawrence v.

1 Hare’s Lectures on Bills and Notes, p. 4o.
* 2 Exch. 527.
3 Peake 225.
332 LAW OF CONTRACTS.

Fussell,' there had been a blank endorsement and then
a special endorsement by the holder, the Media Bank,
as follows: ‘‘ Pay First National Bank, Philadelphia, for
account of First National Bank, Media, Jos. W. Hawley,
Cashier,” and the suit was brought by the payee who
had endorsed it in blank against the maker, and it was
held that the special endorsement by the Media Bank
destroyed the negotiability of the note and that the
holder, who was the payee, could not therefore sue in his
own name.

Where a bill or note is made payable to order, and it is
endorsed without words of negotiability, as for instance,
“Pay to A,” it has been held that this is not a restric-
tive endorsement, because the endorsement will follow the
nature of the instrument, and that being negotiable, the
instrument will be construed to be negotiable unless
there are express words of restriction. The endorsement
must follow the tenor of the bill. Therefore an endorse-
ment which varies the amount of the bill,.as for instance,
where a bill has been accepted for one hundred dollars,
and a man endorses it, promising to pay fifty dollars, is
not a valid endorsement.* But while this is true as
against the maker or drawer, it will bind the endorser,
because every endorsement is equivalent to the drawing
of a new bill. Where a note is endorsed after maturity
1@ is in effect a note on demand, and the endorser is
therefore entitled to have the note presented to the maker
for payment, and if refused, to have notice of such
refusal.‘ .

The endorsement must be made on the bill, or if
there is not room on the bill, then on a piece of paper

177 Pa. 460,

2 Hawkins v. Cardy, 1 Lord Raymond 360.

5 Smallwood v, Vernon, 1 Strange 478. In this case the date was changed.

4 Tyler v. Young, 30 Pa. 143.
5 Byles on Bills and Notes, * p. 149.
NEGOTIABLE INSTRUMENTS. 333

attached to it called an allonge,’ and if the endorsement
is not on either one or the other, it does not pass a title
to the bill. In French v. Turner,’ there was a mortgage
given to secure some notes, and the notes and the
mortgage were all assigned by writing on the back of
the mortgage. It was held that this did not transfer the
title to the notes. It need not, however, be upon the
back of the bill, it can be upon the face of its The
endorsement must be by the legal holder. Every endorser
of a bill is in the nature of a new drawer and is liable
to every succeeding holder in default of acceptance or
payment by the payee.* And even where the bill is
non-negotiable such an endorser is liable, being looked
upon as the drawer of a new bill in favor of the endorsee,
and the maker being looked upon as the drawee of the
bill. In Brezer v. Wightman,® a due bill which was not
negotiable was endorsed by the party to whom the money
was admitted to be due as follows: “ Pay James Wight-
mau or order.” It was held that this was in effect a bill
of exchange drawn by the endorser on the maker of the
due bill in favor of Wightman, the endorsee, and that con-
sequently Wightman was bound to give the drawer due
notice of the refusal of the drawee to pay. This seems
to be the rule in England. In Penny vz. Innes,‘ a bill
was endorsed by the payee with a special endorsement in
favor of AB. It was then endorsed by a stranger to the
bill, and then endorsed by the special endorsee, who sub-
sequently brought suit against the intermediate stranger
endorser. It was held that he could recover because he
(the stranger endorser) was liable as the drawer of a

1 Brown wv. Bookstaver, 31 N. E, (Tll.) 17.
215 Ind. 59.

8 Dilley v. Glover, 3 Jurist N. S. 637.

* Byles on Bills and Notes, * p. 151.

57 W. & S. 264.

§1C.M. & R. 439.
334 LAW OF CONTRACTS.

new bill. But while this is true of an anomalous endorser
of a bill in England, it is not true of an anomalous en-
dorser of a note. Such anomalous endorser does not ap-
pear to be liable in any capacity, either as maker, or as
endorser."

In this country, however, the irregular endorser of a
note is liable in a large majority of cases. He is held
liable as an original promisor or surety.” The nature
of the liability has been held to be different in the
different jurisdictions. In Pennsylvania such an endorse-
ment, thatis, one that would be regular, if the payee had
signed first, has been held to make the endorser liable
as second endorser, but there is no liability to the maker.
In Schafer v. Farmers and Mechanics Bank of Easton,5
a note was drawn by Benjamin Schafer to the order of
Jacob and Joseph Schafer. It was endorsed first by
Solomon Schafer and then by the payees, discounted by
the bank, and on the failure of the maker to pay it,
the bank sued Solomon Schafer, the endorser before the
payees. A special agreement may be established by
proof, but the proof of such special agreement is subject

1See Lecaan v. Kirkman, 6 Jurist N.S. 17; Woodham v. Edwardes, 5 Ad. &
E. 771.

2See note 1, Byles on Bills, * page 148. Also Wade v. Creighton, 36 Pac.
(Or.) 289; Salisbury v. Bank, 37 Neb. 872.

3 There is a very elaborate note collecting all the cases in 1 Ames’ Cases on
Bills and Notes, page 269, and Wood’s Byles on Bills, p. 150, n. 7. See also
McPhillips v. Jones, 73 Hun. 516; McCallum v. Driggs, 17 So. (Fla.) 407; Prov-
ident Life Society v. Edmonds, 31 S. W. (Tenn.) 168. The presumption is that
the payee was intended to be first endorser. Casey v. Stewart, 30 N. Y. S. 808;
Barton v. American National Bank, 29 S. W. (Tex.) 210; Allison v. Washtenaw,
62 N. W. (Mich.) 152. In Montgomery v. Schenck, 82 Hun. 24, the test is said
to be whether the endorser intended to create for the maker credit with the
payee. Tabor v. Miles, 38 Pac. (Col.) 64. Parol evidence is admissible to show
whether he signed as surety or endorser. Barton v. American National Bank,
29 S. W. (Tex.) 210.

“Temple v. Raker, 125 Pa. St. 634; Leidy v. Tammany, 9 Watts 353, and
Brenzer v. Wightman, 7 W. &.S. 264.

559 Pa. 144.
NEGOTIABLE INSTRUMENTS. 335

to the ordinary rules in regard to agreements outside
of negotiable paper.* An irregular endorser was held
liable, where note was to order of maker.? The case
of Schafer v. The Bank, (supra) is the leading ‘case in
Pennsylvania, and contains an elaborate review of all
the cases by Judge Sharswood.

A note does not cease to be negotiable because it is
overdue, but the endorsee of an overdue note takes it
exclusively on the credit of the endorser, and subject
to any defences that the maker may have against the
endorser. In Snyder v. Riley,’ it was said that the
burden of showing that the bill had come to the holder’s
hands by endorsement after it was due rested on the
defendant, but that very slight circumstances would be
sufficient to shift this burden of proof. But while the
endorsee of such a note or bill takes it subject to
equities between his endorser and the maker, he does
not take it subject to matters of set off not growing
directly out of the bill. The law is otherwise in
Massachusetts.*

The contract which the endorser makes, as has already
been stated, is that if the drawee or maker shall not at
maturity pay the bill or note, he, the endorser, will, on
receiving due notice of the dishonor, pay the sum which
the drawee ought to have paid, together with such dam-
ages as the law prescribes as anindemnity.® ‘This liability
arising from the endorsement of a note or bill may be
voided, as has already been stated, either by endorsing
the bill or note without recourse or conditionally, by
making the endorser liable to pay only in a certain event.

1See Bank v, Dreydoppel, 26 W. N. 240, and Judge Arnold’s note, p. 242.
2b.

36 Pa, 164.

‘Hughes v. Large, 2 Pa. 103, following Whitehead v. Walker, 9 M. & W. 506.
5 Sargent v. Southgate, 5 Pick. 312.

*® Byles on Bills and Notes, * page 154; Suse v. Pompe, 98 E. C. lL. R. 537.
336 LAW OF CONTRACTS.

A transfer by endorsement vests in the endorsee the
right of action against all the parties whose names are
on the bill in case of default of acceptance or payment."

Transfer by delwery.

A transfer by mere delivery, without endorsement, of
a bill of exchange or promissory note made, or to become
payable to bearer, does not render the transferrer liable
on the instrument to the transferee.” And the same
authority states that it is the general rule of the English
law that the transferrer is not even liable to refund the
consideration if the bill or note transferred by delivery
turn out to be of no value by reason of the failure of
the other parties to it, because it is prema face a sale
of the bill. Such a transfer does not imply a guarantee
of the maker or any other party ;* in Guardians of Lich-
field,t Bramwell, J., says: “The question as to the effect
of payment by bank notes when the bank either has
stopped at the time of payment or shortly after, has been
frequently the subject of legal discussion; and the case
of Camidge v. Allenby, 6 B. & C. 373, seems to contain
the existing law upon the subject. In that case a dis-
tinction was taken between a payment by bank notes at
the time of the sale or of the original transaction, and a
payment by bank notes of a pre-existing debt. Bayley,
J.) whose opinion upon the subject is not expressed to be
to the same extent as those of Holroyd, J., or Littledale,
J. says: ‘If the notes had been given to the plaintiff at
the time when the corn was sold, he could have had no
remedy upon them against the defendant. The plaintiff
might have insisted upon payment in money. But if he
consented to receive the notes as money, they would have

1 Byles on Bills and Notes, * p. 157.

? Byles on Bills and Notes, * p. 161.

5’ Camidge v. Allenby, 6B. & C. 373; Guardians of Lichfield, 1 H. & N. 884.
41H. & N. 884.
NEGOTIABLE INSTRUMENTS. 337

been taken by him at his peril. If, indeed, he could
show fraud or knowledge of the maker’s insolvency in
the prayer, then it would be wholly immaterial whether
they were taken at the time or afterward.’ But Holroyd,
J., and Littledale, J., both seem to be of opinion that if |
country bank notes are paid and received as money in
any transaction of payment, and both parties be innocent,
that it is payment; the latter learned judge expressly
says that, in his opinion, ‘there is no guarantee implied
by law in the party passing a note payable on demand
to bearer.’ It has been already stated what, in the opinion
of Bayley, J., is the effect of payment by bank notes at
the time of the transaction or sale. But in the same
case it is said, by the same learned judge, that if a man
takes bank notes ‘in payment of a pre-existing debt and
the bank stops the following day, he is entitled at once
to return the notes and treat them as non-payment.’”

But while the transferrer by delivery only is not liable
in case of the non-payment of the note by maker or
other parties thereto, he is liable in case it turns out
that the note or bill is a forgery, or the signatures are
fictitious. In other words, he is liable on an implied
warranty of title. That is to say, that the bill or note:
is a bill or note signed by the parties by whom it pur-
ports to be signed. In Gurney v. Womersley,’ the plain-
tiffs and defendants were both money dealers and bill
brokers in London. One A took an acceptance of a
well known firm of bankers to the defendants to sell to
them. He indorsed it in blank and they took it to the
plaintiffs who gave them the money on it, though they
refused to endorse or guarantee the bill. It subsequently
turned out that all the signatures on the bill except A’s
were forgeries and A was convicted of the forgery. The
plaintiffs sued the defendants and it was held that they

14K. & B. (82 KE. C. 1. R.) 132.
22
338 LAW OF CONTRACTS.

_ could recover, Coleridge, J., saying: “The vendor of a
specific chattel, it is not disputed, is responsible if the
article be not a genuine article of that kind of which
the seller represents it to be. And the question raised
really is, What is the extent of the want of genuineness
for which he is responsible? Without laying down the
limits, it is clear to me that the case fell much within
them. In effect here the defendants said to the plaintiffs,
Will you take, without recourse to us, this bill which
purports to bear the acceptance of P. and C. Van Notten?
By doing so they represented it to be their acceptance,
as it purported to be, and sold it, as answering that
description. That being so, the case is not so strong as
the bar of brass sold as a bar of gold, mentioned in Gom-
pertz v. Bartlett, 2 E.& B. (75 E.C. L. R.) 849, or of the
altered navy bill in Jones v. Ryde, 5 Taunton 488 (1 E.
C.L. R.).” | And the Court in this case were so well
satisfied that the law was settled that they refused an
appeal. The case of Gompertz wv. Bartlett,’ was this:
An unstamped bill of exchange, endorsed in blank, was
sold by the holder without recourse as a foreign bill.
It turned out that the bill had been made in England
and was void for want of a stamp. It was held that the
purchaser of the bill was entitled to recover back the
price from the transferrer and the vendor on the ground
that the article sold him did not answer the description
by which it was sold, Lord Campbell saying: ‘The
case is precisely as if the bar was sold as gold but was
in fact brass, the vendor being innocent. In such a
case the purchaser may recover.” Where a note or bill
is received in satisfaction or payment and it turns out
to be void, because it is forged or for other reasons, the
transferee may sue and recover back that which was
given for such bill or note.

, 12E. & B. (75 E. C. L. R.) 849.
NEGOTIABLE INSTRUMENTS. 339

In Swanzey v. Parker,’ Judge Strong says (page 450):
“The fundamental question of fact in this case appears
to have been whether the note upon which the suit had
been brought was the note of R. E. Parker as well as
that of Laughlin, the other defendant. It had been given
to Pomeroy by Laughlin, and Pomeroy had sold it to
the plaintiff. By the sale, he warranted it to be what
it purported, the note of both Parker and Laughlin. A
transferrer, even by delivery, of a promissory note or a
bill of exchange, though he does not generally warrant
the solvency of the maker, does warrant that the bill
or note is not forged or fictitious; that it is what it
appears to be: Jones v. Ryde, 5 Taunton 489. In
that case Chief Justice Gibbs said, ‘ Declining to endorse
the bill does not rid him of the responsibility which
attaches on him for putting off an instrument as of a
certain description which turns out to be not such as he
represents it.’ This liability of the transferrer by
delivery of the note or bill is simply a branch of the
general law, that wherever a man sells personal pro-
perty, there is an implied warranty that the thing sold is
as to kind what it is represented to be.

In Lyons wv. Divelbis,? Lewis, J., says (page 189):
“Every endorsement of a promissory note includes in it
an assignment, but an assignment is not necessarily an
endorsement. ‘The Statute of 3 & 4 Anne, Chapter IX,
distinguishes between the two methods of transfer, when
it authorizes the holder, whether by endorsement or
assignment, to bring an action in his own name against
the maker and endorser. No action is given by the
statute against the assignor. An endorsement is an
authority to the holder to write over the signature an
order upon the maker, in the nature of a bill of exchange.

150 Pa. 441.
*22 Pa. 186.
340 LAW OF CONTRACTS.

It is a commercial transaction, and the law merchant
fixes the measure of liability, as in bills of exchange.
An assignment of a chose in action is in strictness
unknown to common law. It is, however, recognized in
equity, and transfers to the holder the right of the
assignor, at a price presumed to be more than equal to
the value of the claim against the maker, taking into
consideration his character for punctuality, and his
ability to pay. On such a transfer the assignor is
responsible for nothing but the genuineness of the claim.
The instrument on which this action was brought, is a
transfer of the description last mentioned, written upon
a note overdue at the time. On this there is no resort for
indemnity against the insolvency of the maker.”

In Flynn vw. Allen,’ Judge Sharswood says: “The
doctrine that the vendor of chattels in possession
impliedly warrants the title, extends to choses in action:
Richie v. Summers, 3 Yates 531; Charnley v. Dulles,
8 W. & S. 361; Swanzey v. Parker, 14 Wright 450.
As in the sale of other things, he undertakes not for
their quality, that they are really worth the money
they represent, but that they are what they purport to
be. In other words, he warrants the genuineness of the
claim upon them.” In Frazier v. D’Invilliers,? a treasury
note in the following form: “11 March, 1841, The
United States promises to pay, to Corcorn & Riggs,
or order, five hundred dollars, with interest, at the rate
of six per centum,” was stolen after it had been paid by
the United States, and put into circulation by forgery.
It was held that the holder who had transferred it by
endorsement, without recourse, was liable to the person
to whom he passed it, the government having refused to
pay it, upon the ground that, like a person who transfers

157 Pa, 482.
22 Pa. 200.
NEGOTIABLE INSTRUMENTS. 341

a note by delivery only, he warranted the genuineness
of the treasury note.

Bills and notes, payable to bearer, circulates as money,
and are considered as such. ‘The dona fide possessor is
therefore the true owner.’ If a check or bill is made
payable to bearer, the title of the holder is not effected
by any infirmity in the title of the transferrer, provided
the holder took dona fide for value. In connection with
this last question, of the rights of the transferee by
delivery, and I may say by endorsement too, the question
arises, what constitutes a dona fide holder for value?
By these words is meant a holder who has paid value
for the note, and who has taken it without notice
of that which, if he had had notice, would be a good
defence to his action on the note. And the rule in
regard to the rights of a bona fide holder without
notice is thus stated in Miller v. Race,” “It appears to be
settled in American cases that the holder of a negotiable
note is prema face entitled to recover upon merely
producing a note, but that if the defendant proved that the
note was fraudulent in its inception, or fraudulently put
in circulation, or stolen, or lost, or obtained by duress,
there is then upon the plaintiff the burden of proving that
he is a holder doxa fide and for a valuable consideration.”

This is true even if the holder takes the note under
circumstances which ought to have excited the sus-
picions of a prudent man;* and the same rule now is
the law of England,‘ though for a time the ruling of

1 Byles on Bills and Notes, * p. 162.

21 Smith’s Leading Cases 863, and cases therein cited. Wherea note is shown
to have been obtained by fraud, the burden is on the holder to show that he
purchased it in good faith for value. Jones v. Burden, 56 Mo. App. 199; Hodson
v. Eugene Glass Co., 4o N. E. (Ill.) 971; Fawcett v. Powell, 43 Neb. 437;
Thamling v. Duffey, 37 Pac. (Mont.) 363; see Second Nat. Bank v. Morgan, 165
Pa. 199.

3 Phelan v. Moss, 67 Pa. 59.
4 Pooley v. Goodwin, 4 A. & E. 94.
342 LAW OF CONTRACTS.

Lord Chief Justice Abbott in Gill v. Cubitt,’ prevailed,
where he stated that if the holder took under suspicious
circumstances, he could not recover. A pledgee acquires
a property just the same as a person who buys, and the
real owner cannot recover from him on the bill.” In
the passage just cited from Miller v. Race, it was said
that the burden was put upon the plaintiff to show that
he was a bona fide holder for a valuable consideration.
This does not seem to be accurate, and the distinction
is pointed out in Byles on Bills (* page 121). Wherea
suit is brought on a note and the person sued, the
maker, shows that the note was fraudulently put into
circulation without his consent, the knowledge, in so far
as it proves a defect in the original -title, throws upon
the plaintiff, the holder, the necessity of proving that
which will cure the defect, and therefore the burden of
showing that he paid value for the bill rests upon him;
but, having shown that he paid value for the bill, the
burden then shifts to the defendant of showing that
when the plaintiff paid value for it, he had notice of the
fraud that was practiced on the defendant. Because by
paying value he has acquired an independent title and
there is no presumption that at the time he acquired
that independent title he would obtain a knowledge of
the facts which rendered the original title bad.

It was said by Baron Parke, in Bailey wv. Bidwell,? in
answer to counsel during the argument, that the burden
of proving notice of illegality clearly rested upon the
defendant. The right of a purchaser for value without
notice to recover is true both of negotiable paper trans-
ferred by delivery, and that transferred by endorsement,
inasmuch as the holder takes his title through the

13 B. & C. 466.
? Collins v. Martin, 2 Espinasse 520 (1 B. & P. 648).
313M. & W. 73.
NEGOTIABLE INSTRUMENTS. 343

endorsement, he will acquire no title and cannot therefore
recover in the case of a forged endorsement ;* or in the
case of an endorsement by an agent who had no author-
ity to endorse ;* or an endorsement by a married woman.3
But while a purchaser for value and without notice takes
a good title as against any defence which might avoid
the bill if he had notice of it, as for instance, fraud ;+
duress as in Duncan w. Scott,’ where it was held the
plaintiff could not recover, being the holder of a note
made under duress, because he failed to prove that he
had given value for it; failure of consideration ;° or by
illegality, where such illegality does not make the in-
strument void; in Potter v. Tubb,’ the defence was that
the consideration for the original making of the bill was
a debt from the acceptor to the drawer for smuggling
goods, and Buller, J., said that this would not affect the
plaintiff unless the bill had been given to him for smug-
gling.® Yet even as against such purchaser for value
without notice, defences which destroy the validity of the
instrument itself are good; such as the incapacity of the
defendant to make a contract; illegality, which renders
the instrument void; and the extinguishment of the
instrument. An illustration of the first class, incapacity
of the defendant to make a contract, is found in the case
of a bill made by an infant; or by a married woman.”
Instances of illegality under a statute whereby an instru-
ment is void, are to be found in the case of the usury

1Mead v. Young, 4 Term Reports 28.

? Robinson v. Yarrow, 7 Taunton 455.

3 Barlow v. Bishop, I East 432.

4Phelan v. Moss, 67 Pa. 59

5 Campbell roo.

6U. S. v. Bank of Metropolis, 15 Peters 377.

71 Chitty, Jr. 430.

® See cases cited in 1 Ames on Notes and Bills, 464.
® Williamson v. Watts, 1 Campbell 552.

10 Barlow v. Bishop, 1 East 432.
344 LAW OF CONTRACTS.

laws in this country, where the contract is made abso-
lutely void. For cases where the rights created under
the instrument have been extinguished, see the opinion
of Brett, J., in Baxendale wv. Bennett,’ where he stated
that Ingham wv. Primrose,’ could not be supported, this
case having held that where a man had torn a note up
with the intention of cancelling it and threw the pieces
in the street, he was still liable to the person who had
obtained the note from the endorser, who picked up the
pieces, put them together and put the bill in circulation.
Illustrations of extinguishment by alteration are found
in the case of Wait v. Pomeroy,? where the cases are
reviewed by Chief Justice Campbell. In that case a
memorandum attached to the note, stating that it was
not to be payable unless a certain machine was delivered,
had been cut off, and it was held that even in the hands
of a dona fide holder such a note was invalid, because it
was not the note which the maker had executed. In
this particular case the suit was brought by the holder
against the transferrer by delivery, not a party to the
note.

In Phelan wv. Moss,‘ and Zimmerman v. Rote,> the
liability of the maker of such a note which had been
altered was sustained, where the suit was brought by a
bona fide purchaser for value and without notice. In
Phelan wv. Moss, the man had signed a paper supposing
it to be an agreement about a washing machine, and
the paper was so drawn that the part above his signa-
ture could be separated from the rest, making a good
note. This was done and it was held that he was re-
sponsible on it. The fact that the instrument on which

13.0. B.D. 525.
27C. B. N.S. 82.
320 Mich. 425.
467 Pa. 59.

575 Pa. 188.
NEGOTIABLE INSTRUMENTS. 345

suit was brought was not the instrument which the
defendant signed does not appear to have been much
dwelt upon in the opinion of the Court, and the later
case was decided upon the authority of this one. These
‘decisions, however, may be reconciled with the doctrine,
that where an instrument is altered it can no longer be
sued upon, by placing the decisions upon the ground
of estoppel. That is to say, that the defendant cannot
be allowed, through his own carelessness, to show the
truth.’

Value.

By value is meant money, or money’s worth. It may
consist in the surrender and cancellation, or giving up,
of negotiable instruments. This is what the value con-
sisted of in the Bank of Salina v. Babcock.’ In this
case a note had been misappropriated without the knowl-
edge of the defendant, and the question was whether
the defendant, the bank, had given value for it. What
it had done was to give credit to the holder of the
note for the amount of it and charge against his account
three other notes of his, overdue, which the bank held,
cancelling them; and it was held that this was a
valuable consideration. So the value may be an en-
dorsement, as in Williams v. Smith,3 where a note had
been negotiated in violation of the terms under which
it was handed to the original payee, without notice of
the violation of the agreement to the party who nego-
tiated it, the consideration he gave being an agree-
ment to endorse certain notes to a certain amount in

1Daniel on Negotiable Instruments, ¢1405. Garrard v. Haditan, 67 Pa. St.
82. ‘This latter case, however, was not the case of an alteration, but of a space
which was carelessly left, which was filled up so that the note was raised from
$100 to $150. See, however, the case of Foster v. Mackinnon, I. R. 4C. P.
704, which seems to be the other way.

221 Wendell, 499.
$2 Hill 301.
346 LAW OF CONTRACTS.

the future and his subsequent endorsement of those
notes. So, an existing debt, which is merged in, or
given up, on the receipt of a negotiable instrument,
makes the party receiving it a holder for value.

In Currie v. Misa," it was decided that an existing
debt formed of itself a sufficient consideration for a
negotiable security payable on demand so as to constitute
a creditor to whom it was paid, a holder for value. In
this case the defendant had purchased certain bills of
Lizardi & Company, and Lizardi & Company being
largely indebted to the plaintiffs handed them a bill on
the defendant, ordering the defendant to pay the bearer
41999. The bill being due was presented to the
defendant who gave a check for it, and after giving the
check learned that Lizardi & Company, who were also
his debtors, had failed. He then stopped payment on
the check and a suit was brought against him on the
check, and the defence was set up that it was given for
an antecedent debt and therefore not good, but the
plaintiff recovered. The previous cases in England are
reviewed in the judgment of the Exchequer Chamber, and
the ground upon which the decision proceeds is stated to
be that the giving of such negotiable security is a con-
ditional payment of the precedent debt, the condition being
that the debt revives if the security is not realized. And
the same conclusion is reached in Swift v. Tyson,3 in a
learned decision by Judge Story. And the same rule is
laid down in Struthers v. Kendall & Son,‘ where an
accommodation bill was passed to the plaintiffs in the
usual course of business in payment on account of an
existing indebtedness. This was held to make them
bona fide holders for value. And this is the rule

1L. R. 10 Exch. 153.

? This case was affirmed in 1 App. Cases L. R., 554.
516 Peters I.

441 Pa, 214.
NEGOTIABLE INSTRUMENTS. 347

generally in this country, though the decisions in New
York State are the other way. They will be found
reviewed in the case just cited,—Struthers v. Kendall
& Son.

If, however, a negotiable instrument is given as
collateral security for the payment of a preexisting
debt, the person to whom it is given is not a holder
for value in Pennsylvania and some other States. In
Petrie v. Clark,‘ an executor gave a note which he had
received in payment of certain goods of the decedent,
which he had sold, and which therefore belonged to the
estate, as collateral security for the payment of his own
debt, and it was held that though the man to whom it
was given knew nothing of the fact, inasmuch as it
was given as collateral security for existing indebtedness,
he was not a holder for value. Chief Justice Gibson in
delivering the opinion, said: ‘‘ There is nothing in the
commercial nature of the security, to vary the nature of
the transaction. When the holder of the note or bill
has paid value for it, he is in privity with the first
holder. ‘There is a difference too between a note
regularly negotiated, which always supposes a considera-
tion, and a note placed like the present, in the hands
of the holder, merely as a security, which in this case
stands exactly as it would if it were a bond, that is, a
mere pledge, subject in the hands of the holder to
every equity that could be set up against it, in the
hands of the person from whom he obtained it.” This
case was affirmed in Smith wv. Hogeland,’? where the
defendant had endorsed a note given on account of
the purchase money of property belonging to Morrison,
and sold at public sale by the plaintiffs as Morrison’s
agents. The property was purchased by Robb who gave

111 S. & R. 377.
278 Pa. 252.
348 LAW OF CONTRACTS.

the note, the defendant endorsing it. Morrison transferred
the note to plaintiffs as collateral security, for an endorse-
ment for his benefit made by the plaintiffs. Subsequently
the contract of sale was rescinded without any participa-
tion in such rescission by the plaintiffs. The plaintiffs
sued on the note and the judge charged that they stood
in the same position as Morrison and that therefore
Morrison’s rescission of the sale released the defendants
on the note; and this was assigned as error and the
judgment reversed, the Court saying: “If this note was
passed to the plaintiffs by Morrison for some present
consideration, as that they should hold it as security for
‘the endorsement of the $655 note, or for advancements
then made, the subsequent action of Morrison and Robb
could not affect them, and they would be entitled to
recover so much of the note in suit, and no more, as
would cover their endorsement or advancement. If, on
the other hand, it was passed to them without considera-
tion, or as security for an antecedent debt or endorsement,
they would occupy no better position than Morrison;
they would be entitled to his rights and nothing more:
Petrie v. Clark, 11 S. & R. 377. These were questions
for the jury and should have been submitted for their
consideration.”

While this, however, is the rule in Pennsylvania, and
some other States, it is not the rule in the Supreme Court
of the United States; in Swift v. Tyson,’ Judge Story
says: “It is for the benefit and convenience of the com-
mercial world to give as wide an extent as practicable
to the credit and circulation of negotiable paper, that it
may pass not only as security for new purchases and
advances, made upon the transfer thereof, but also in
payment of and security for pre-existing debts. The credi-
tor is thereby enabled to realize or secure his debt, and

116 Peters I.
NEGOTIABLE INSTRUMENTS. 349

thus may safely give a prolonged credit, or forbear from
taking any legal steps to enforce his rights. The debtor
also has the advantage of making his negotiable securi-
ties of equivalent value to cash. But establish the
opposite conclusion, the negotiable paper cannot be applied
in payment of or as security for pre-existing debts, with-
out letting in all the equities between the original and
antecedent parties, and the value and circulation of such
securities must be essentially diminished, and the debtor
driven to the embarrassment of making a sale thereof,
to some third person, and then by circuity to apply the
proceeds to the payment of his debts. What, indeed,
upon such a doctrine would become of the large class
of cases where new notes are given by the same or other
parties, by way of renewal or security to banks, in lieu
of old securities discounted by them, which have arrived
at maturity? Probably more than one-half of all bank
transactions in our country, as well as those of other
countries, are of this nature. The doctrine would strike
a fatal blow at all discounts of negotiable securities for
pre-existing debts.” In the case itself where Judge
Story announces these views, the notes were not given
as collateral security for a preexisting debt, but in
payment of a debt; but in McCarty w. Roots,’ the Court
say (page 438): “ Nor does the fact that the bills were
assigned to the plaintiff as collateral security for a pre-
existing debt, impair the plaintiff’s right to recover.”
The point has been expressly decided in Huddell &
Seitzinger, Ex parte R. D. Wood & Company,’ and the
cases are there collected. In this case the Circuit Court
overruled the opinion of Judge Cadwallader, who followed
the rule of Pennsylvania, on the ground that it was a

1291 Howard 432. And se¢ the elaborate opinions of Harlan and Clifford, JJ.,
in R. R. Company v. The Bank, 102 U. S. 14, which settles the matter as far as
the Federal Courts are concerned.

28 W.N. C. 407, and note.
350 LAW OF CONTRACTS.

general question of commercial law, and the United States
Court would not follow the State Court.

The rule in Pennsylvania, while it was regretted in
Depeau v. Waddington,’ is, however, firmly established
and reiterated again and again. Among the later cases
is Scheaffer v. Fowler.? But there are these two things
to be noted in respect to this doctrine. First, that if
any new consideration is given at the time of the receipt
of a negotiable instrument as security for a pre-existing
debt, then the party who receives it becomes a holder for
value. This new consideration may be the giving of time,
or the surrender of other collaterals,’ or a mere exchange
of collaterals, as in the case of Depeau v. Waddington,
just cited. The other point to be noted is this: That
while in the case of an ordinary note the rule is that
where it is transferred as security for a pre-existing debt,
the party who receives it is not in the position of a holder
for value, yet, in the case of an accommodation note, he
is. As expressed by Judge Sharswood in his note in
Byles on Bills (* page 125): ‘““He who chooses to put
himself in the front of a negotiable instrument for the
benefit of his friend, must abide the consequences : Walker
v. The Bank of Montgomery County, 12 S$. & R. 382,
and has no more right to complain, if his friend accommo-
dates himself by pledging it for an old debt, than if he
used it in any other way. Appleton v. Donaldson, 3 Pa.
St. Rep. 381. Accommodation paper is the loan of the
maker’s credit without restriction as to the manner of its
use, Lord v. Ocean Bank, 20 Pa. St. Rep. 386, per Black,
C. J.” But while want of consideration is no defence
where an accommodation note has been pledged for an
antecedent debt, yet, as the holder is not a holder for

16 Wharton 219.
2111 Pa. 451. See also Gleason v. Crider, 14 Pa. Co. Ct. Rep. 670.
3 See Barker v. Lichtenberger, 41 Neb. 751.
NEGOTIABLE INSTRUMENTS. 351

value, fraud in the making or procuring of the note, is a
defence

But whether a holder of negotiable security, which is
pledged to him as collateral security, be a holder for
value or not, he can only recover the amount of his
debt. In the case of Williams vw. Smith, already cited,’
it was held, in the case of a note which was misap-
propriated and pledged as collateral security for endorse-
ments to be made in the future, by the payee, for the
benefit of the pledgor, that the pledgee could only re-
cover, not the face of the note, but the amount of his
debt remaining due* A man need not pay the face
value of a note in order to recover the whole amount
of it, because a note like anything else may be sold for
any price it will bring in the market. The amount of
the consideration will not be inquired into in the case
of a note, any more than it will in the case of any
other contract; but where a man has purchased a note
which has been fraudulently. put in circulation, and be-
fore he has paid the whole of the purchase money for
the note he learns of the fraud, he can only recover
upon the note the amount he paid before he had notice;
in Dresser v. The Railway Construction Company,* the
action was brought upon three notes made by The

1Cummings v. Boyd, 83 Pa. St. 372; Carpenter v. Bank of the Republic, 106
Pa. St. 170. And see on this subject generally the whole of the note last
referred to of Judge Sharswood, Byles on Bills, * page 125; and also a notein
Ames’ Cases on Notes and Bills, Vol. I, page 677; and Vol. I, page 650. U.S.
Nat. Bank v. Ewing, 131 N. Y. 506; Yaler v. Dart, 17 N. Y. S. 179; Peigh v.
Hoffman, 34 N. E. (Ind.) 32; Woodsen v. Owens, 12 Southern (Miss.) 207;
Bank v, Johnson, 11 Southern (Ala.) 690; Weaver v. Farrington 27 N. Y. S.
‘971; Marx v. Drefus, 26S. W. (Tex.) 232; Rosemond v. Graham, 54 Minn. 323;
Black v. Reno, 59 Fed. 917; Natl. Revere Bank v. Morse, 40 N. E. (Mass.) 180;
First Nat. Bank v. Nelson 16 So. (Ala.) 707; Hangun v. Sunwall, 62 N. W.
{Minn.) 398; Union Trust Co. v. McClellan, 21S. E. (W. Va.) 1025; First Nat.
Bank v. Schmidt, 40 Pac. (Col.) 479.

*2 Hill 301.

3 And see cases cited by Judge Sharswood in the note already referred to.

£93 U.S. 92.
352 LAW OF CONTRACTS.

Missouri & Iowa Construction Company to the order of
William Erwin, to the aggregate amount of $10,000.
The defence was that they were obtained by fraudulent
representations. The plaintiff received the notes before
maturity, and without notice at the time he received
them, of the fraud by which they had been put in
circulation. He purchased the notes under a contract,
according to the terms of which he had paid only about.
$500, being part of the purchase money, when he learned.
of the fraud. It was held that he could not recover any
more than the $500, which he had paid before he learned
of the fraud. The cases are all reviewed in the opinion
in this case.

Notice.

Notice of illegality or fraud is either particular or
general:* By particular notice is meant notice of the
particular facts which constitute the fraud or illegality;.
and by general notice is meant that there is some fraud
or illegality without necessarily having notice of what
the particular circumstances are. Mere neglect, however,
and failure to make inquiry where a man should make
inquiry will not be sufficient to effect a man with notice;
for either he must have actual knowledge or he must
wilfully abstain from inquiry because he fears that if
he does inquire he may learn what he does not wish
to learn. In May v. Chapman & Gurney,’ Baron Parke
says: “I agree that ‘ notice and knowledge’ means not
merely express notice, but knowledge, or the means of
knowledge to which the party wilfully shuts his eyes.”
In Jones v. Gordon, Lord Blackburn says: “I think it

1 Byles on Bills and Notes, * p. 122.

716 M. & W. 355. See also DeLong wv. Schroeder, 45 Ill. App. 236; State
Nat. Bank v. Bennett, 36 N. E. (Ind.) 551; Second Nat. Bank v. Morgan, 165
Pa. 199; Atlas Nat. Bank v. Hohn, 71 Fed. 489.

51, R. 2 App. Cases 616.
NEGOTIABLE INSTRUMENTS. 353

is right to say that I consider it to be fully and thor-
oughly established that if value be given for a bill of
exchange, it is not enough to show that there was care-
lessness, negligence or foolishness in not suspecting that
the bill was wrong, when there were circumstances which
might have led a man to suspect that. All these are mat-
ters which tend to show that there was dishonesty in not
doing it, but they do not in themselves make a defence
to an action upon a bill of exchange. I take it that in
order to make such a defence, whether in the case of a
party who is solvent and saz jurzs, or when it is sought
to be proved against the estate of a bankrupt, it is neces-
sary to show that the person who gave value for the bill,
whether the value be great or small, was affected with
notice that there was something wrong about it when he
took it. I do not think it is necessary that he should
have notice of what the particular wrong was. Ifa man,
knowing that a bill was in the hands of a person who had
no right to it, should happen to think that perhaps the
man had stolen it, when if he had known the real truth
he would have found, not that the man had stolen it, but
that he had obtained it by false pretences, I think that
would not make any difference if he knew there was
something wrong about it and took it. If he takes it in
that way he takes it at his peril. But then I think that
such evidence of carelessness or blindness as I have referred
to may with other evidence be good evidence upon the ques-
tion which, I take it, is the real one, whether he did know
that there was something wrong about it. If he was (if I
may use the phrase) honestly blundering and careless, and
so took a note of exchange or a bank note when he ought
not to have taken it, still he would be entitled to recover.
But if the facts and circumstances are such that the
jury, or whoever has to try the question, came to the
conclusion that he was not honestly blundering and
23
354 LAW OF CONTRACTS.

careless, but that he must have had a suspicion that
there was something wrong, and that he refrained from
asking questions, not because he was an honest blun-
derer or a stupid man, but because he thought in his own
secret mind—I suspect there is something wrong, and if I
ask questions and make further inquiry, it will no longer
be my suspecting it, but my knowing it, and then I
shall not be able to recover—I think that is dishonesty.”
In this case the claimant in bankruptcy had purchased
bills amounting to over seventeen hundred pounds,
though he had never purchased such bills before, and
he knew that the maker cf them was in insolvent cir-
cumstances.

There must be bad faith, or such negligence as is incom-
patible with good faith, in order to affect the title of the
holder. This is the general rule in the United States."
But while notice of fraud or illegality ordinarily pre-
vents the holder from recovering, yet, if there is an
intervening holder who is a doxa fide holder for value,
who takes without notice of fraud or illegality, then a
subsequent holder tracing his title from him, can recover,
though at the time he took the note he knew of the
fraud or illegality, or prior equities. A transferee of
a note or bill takes subject to constructive notice of
that, of which anything upon the face of the note or
bill should give him knowledge or put him upon inquiry.

1 See cases collected in r Amer. Cases on Bills and Notes, p. 714. Phelan v.
Moss, 67 Pa. 59; First Nat. Bank of Cameron v. Stanley, 46 Mo. App. 440;
Richardson v. Monroe, (Iowa) 52 N. W. 339; Whaley v. Neill, 44 Mo. App. 316;
Webber v. Indiana Nat. Bank, 49 Ill. App. 336; Clark v. Evans, 66 Fed. (C. C.
A.) 263; Second Nat. Bank v. Morgan, 165 Pa. 199. Knowledge of suspicious
facts is to be considered in determining the good faith of purchaser. Bowman
v. Metzger, 39 Pac. (O.) 3. /

2? Commissioner of Montgomery Co. v. Clark, 94 U. S. 278; Bank v. Stanley,

-46 Mo. App. 440.

3 See Smith v. Weston, 88 Hun. 25; U. S. Nat. Bank v. First Nat. Bank, 64

Fed. (C. C. A.) 985.
NEGOTIABLE INSTRUMENTS. 355

In Lloyd v. Sigourney,’ the endorsement upon the bill
of exchange was ‘‘ Pay for my use.” The bill was dis-
counted by the defendants and the money placed to the
credit of the holder instead of the endorser. It was held
that the endorser could recover, because the defendants
were affected by notice of the restrictive endorsement.
So the transferee is bound to take notice of any condition
attaching to a transfer, as in the case of Robertson wz.
Kensington,’ where a bill was directed to be placed to
account as advised, and the drawee was directed by en-
dorsement on the back of the bill to pay the same upon
the payee’s name appearing in the Gazette as ensign
of any of the regiments of the line, between certain dates.
The bill was paid by the acceptor to a subsequent holder
without the payee having been gazetted as an ensign.
It was held he could recover it back. In the same way,
if a person takes an overdue note he is constructively af-
fected with notice of all equities between the prior parties.
““A person who takes a bill or note after it is due,
takes it subject to all objections in respect of want of
consideration or illegality, and all other objections and
equities affecting the instrument itself, and to which it
was liable in the hands of the person from whom he
takes it.’

In regard to the unfilled blanks in‘a bill, the rule in
this country is that the signing of a note or bill with.
blank spaces in it, or the endorsement of commercial
paper blank as to date, time or place of payment, or
name of payee, authorizes the person to whom it is

1s Bingham 525.

*4 Taunton 30.

3 Per Thompson, J., in Wilson v. Mechanics Saving Bank, 45 Pa. 494. Seealso
‘Risley v. Gray, 32 Pac. Rep. (Cal.) 884; Davis v. Noll, 17S. E. (W. Va.) 791;
Robertson v. Reiter, 56 N. W. (Neb.) 877; Knott v. Tidyman, 86 Wis. 164;
Higgins v. Landsigh, 154 Ill. 301; Gibson v. Hutchins, 21 S. E. (S. C.) 250;
City Bank v. Dill, 60 N. W. (Mich.) 767. :
356 LAW OF CONTRACTS.

delivered to fill up the blanks. Consequently, a pur-
chaser for value of such a bill in this country is never
put upon inquiry to find out the extent of the agent’s
authority, as it.is said in some cases in England he is.
As for instance in the case of Awde wv. Dixon,’ where
a note as follows: “ December, 1848. On
demand, we do hereby, jointly and severally, promise to
pay Mr. . . . , ororder, one hundred pounds, as wit-
ness our hand. William Dixon,” was negotiated and it
was held that a man who advanced money upon it,
upon the statement of the holder that he, the holder,
was authorized to fill up the blanks, without ascertaining
whether he had this authority to so fill the blanks,
when in fact he had not, could not recover.

The circumstances which may affect the taker of a
note or bill with notice of prior equities may be entirely
outside of the bill itself, as in the case of a firm note
given by a partner in payment of an individual debt;
but the rights of the holder in such a case vary according
to the form of the instrument. If the note is made
payable to the creditor, he will have to show the authority
of all the partners but, if, on the other hand, the note
is made payable to one of the partners and by him
endorsed, the holder can recover on it against the firm.’
“The taking of joint security for a separate debt raises
a presumption that the creditor who took it knew that
it was given without the concurrence of the other parties,”
and he cannot charge them.* And it is said by Judge
Sharswood:5 “The doctrine of the text is sustained
by the whole current of American authorities. But

1 Byles on Bills and Notes, * page 164, note 1, and * page 187, note 1.

26 Exch. (W. H. & G.) 869.

3See Mechanics Bank v. Barnes, 86 Mich. 632; also Cheever v. R. R., 72
Hun. 380; Lincoln Nat. Bank v. Schoen, 56 Mo. App. 160.

* Leverson v. Lane, 13 C. B. N.S. (106 E. C. L. R.) 278.

5 Note 1, Byles on Bills and Notes, * page 46.
NEGOTIABLE INSTRUMENTS. 357

nevertheless such a note or bill in the hands of an inno-.
cent endorsee for value, will be good against the firm.”
A note drawn, however, in the firm’s name payable to
the partner, and by him endorsed, raises no presumption
of a use of the firm’s name to pay a private debt."
An irregular endorsement in the firm’s name of a note
made by the firm to the order of one of its members is
notice that it is an accommodation instrument by the firm
and does not bind them. The irregularity of the endorse-
ment shows it is an accommodation instrument by one
member of the firm, and that is not within his authority.’
When I say it does not bind them, I mean, that it does
not bind them unless the consent of the other members of
the firm is shown.3
Presentment.

(1) Presentment of a bill for acceptance is not necessary
in the case of bills payable at a certain period after date.*
Payment of such bills may be demanded at once on their
maturity without being previously presented for accept-
ance.> Presentment is necessary when the billis payable at
or after sight, in order tocharge the other parties on the bill.°
Such bills must be presented within a reasonable time; and
what is a reasonable time is a mixed question of law and fact
dependent upon all the circumstances of the particular case.’

1 Ridley v. Taylor, 13 East 175.

2See Byles on Bills and Notes, * page 47, and West St. Louis Bank v. Shawnee
County Bank, 95 U.S. 557. Also Hayden Milling Co. v. Lewis, 32 Pacific (Ariz.)
263.

3 McKinney & Heller v. Brights, 16 Pa. 399.

‘Byles on Bills and Notes,* pages 179, 182.

5 Bank of Washington v. Triplett & Neale, 1 Peters 25; Read vw. Adams, 6S.
& R. 356.

§(In England by Statute 24-25, Victoria, c. 74, a bill payable at sight is
payable on demand.) Acceptance and payment are simultaneous.

TFor a list of the cases, in some of which the time was held to be reasonable,
and in some of which it was held not to be reasonable, see 2 Ames’ Cases on
Bills and Notes, page 277, note 1. The facts being undisputed, the question of
reasonable time is one of law; Singer v. Dickneite, 51 Mo. App. 245.
\

358 LAW OF CONTRACTS.

The bill must be presented to the drawee or his
agent in business hours; in Cheek v. Roper,’ the action
was against the drawer for non-acceptance by the. drawee,
and the evidence of presentment was that the bill was
taken to the place described as the drawee’s house and
offered to some person in a tanyard who refused to
accept it, but the person who presented the bill did not
know whether the person in the tanyard was the drawee
or not. It was held that the plaintiff could not recover.
If the bill is addressed to the drawee at a particular
place, it should be presented at that place, and that is
enough to charge the drawer in the event of non-
acceptance unless the drawee is not there and the holder
knows his true residence. In such case he is bound to
use due diligence, and he is to find the personal represen-
tative of the drawee in case of the drawee’s death; in
Pierce v. Struthers,’ the drawee, while he resided in
Albany, did business in New York at the Irving House,
and occasionally at 78 Beaver street. A note was pre-
sented at 78 Beaver street for payment and the Court
below charged that it was the duty of the notary to seek
elsewhere for the man and try to find him, but the
Supreme Court reversed the judgment saying: “We
think that where a bill of exchange is addressed to a
drawee at a particular house, and the same is accepted
generally by him, the address indicates the place where it |
is to be presented for payment, and a presentment there
is sufficient against the drawer and endorsers; unless,
perhaps, when the holder knows the true residence or
place of business of the acceptor in time to present it
there, or may so learn it when seeking to make the
presentment.” In this case the bill was addressed to 78
Beaver street, New York.

45 Espinasse 175.
227 Pa. 249:
NEGOTIABLE INSTRUMENTS. 359

In Smith vw. The Bank of New South Wales,’ there is a
very interesting discussion by Judge Mellish, L. J.,
(pages 205-209) as to what is necessary in the way of
presentment of a bill for acceptance in the case of the
death of the drawee before letters have been taken out
on his will; and in that case, while not professing to
decide the exact point, he states that the real question
is— Did the parties do, under all the circumstances,
what was reasonable for the purpose of getting the bill
accepted and paid?”

(2) Presentment for payment, demand and notice are
necessary to charge the drawer or endorser, the maker of
a note and the acceptor of a bill being absolutely liable
without presentment.? Considering the subject of pre-
sentment for payment, there are several things to be
noted. First, by whom the presentment must be made.
The bill must be presented by some one whocan give
an acquittance. It need not be in the case of an inland
bill of exchange or promissory note, by a notary.

In Sussex Bank v. Baldwin,? the Court say: “ Any
person may present at its maturity a promissory note of
which he is put in possession, and if paid in the ordinary
course of business and taken up, the payment is good ;
and if not paid, the attempt is good as a ground work
for notice to the endorsers and that without any protest.
' The rule is otherwise as to foreign bills of exchange
which must be protested by a notary; and their official.
seal is plenary evidence in all foreign courts or countries
of the dishonor of the bill.” A foreign bill must be
presented by a notary because it must be protested, and
unless he presents it himself (or in some States, as in

1L, R. 4 P. C. Appeals 194.

2ZTambert v. Oaks, 1 Lord Raymond, 443; also Presbey v. Thomas, 1 App.
D.C. 171.

32 Harrison 487, and cases cited in the opinion of the Court.
360 LAW OF CONTRACTS.

New York and Pennsylvania, by his clerk),’ he cannot
certify to the facts which the certificate of protest ought
to contain. In Ocean Bank v. Williams,’ it was held that
the presentment by the clerk of a notary public was not
sufficient.

The note must be described with accuracy, but it need
not be produced unless the drawee demands to see it,
and if he does, then it must be produced. Arnold v.
Dresser,3 decided that a valid demand could not be made
without the person who made the demand having the
note in his possession, because upon payment the other
party was entitled to have the note surrendered to him
and he could not comply with this condition, and there-
fore the other party would be excused from making
payment. Where the note has been lost, however, it
is sufficient to produce a copy of it with an offer of
indemnity.‘

Third, The place of presentment.

The note or bill must be presented at the usual
place of business, or at the residence of the drawee or
maker. In Baumgardner v. Reeves, it was held that an
averment in the narr of presentation and demand was
sufficiently proved by the notarial certificate which set
out that the notary went with the note to the place of
business of the drawee (without naming the place) in
order to demand payment thereof, and found the place
closed, and found no one there to answer respecting
the same. But in Reid wv. Morrison,® it is said “ that
if the drawee has merely removed from his usual place
of residence to another in the same State or kingdom,

1See Stewart v. Allison, 6S. &. R. 324.
2102 Mass. 141.

58 Allen 435.

4 Hinsdale v. Miles, 5 Conn. 531.

535 Pa. 250.

62 W. &S. 4or.
NEGOTIABLE INSTRUMENTS. 361

it is incumbent upon the holder to make every reason-
able endeavor to find out whither he has removed, and,
in case he succeeded in such attempt, to present the
note or bill for payment at that place. But if the drawee
or maker has absconded, that circumstance will dispense
with the necessity of making any further inquiry after
him. Chitty on Bills, 261; Bayl., 95; Duncan wv. McCul-
lough, (4 S. & R. 480). The same rule which exists in
the case of absconding applies to that of the removal of
the maker or drawee into another jurisdiction after the
execution of the instrument.”” And the case of M’Gruder
v. Bank of Washington,’ was cited, that case having
decided that where a maker removes to another State,
demand upon him is not necessary tocharge the endorser.
Where, however, at the time of making the note, or accept-
ing the bill, the maker or acceptor resides in another
State, it is the duty of the holder to present the note and
demand payment before the endorser can be held.’

In King wv. Holmes,’ it was decided that a demand
made in the street was not a good demand, and in
Stuckert v. Anderson,‘ it was held that a demand could
not be made by letter through the post office. Where
the address or place of business of the drawee is given,
the rule is different as to whether presentment at such
place is necessary to bind the acceptor, or in the case of
a note the maker, from what it is in the case of an en-
dorser. The rule as to the acceptor and maker is thus
stated by Judge Hare: 5

“ Agreeable to the English authorities, a note payable
at a particular place is an exception to the general rule,
that the debtor must find and satisfy the creditor, aud

19 Wheaton 661.

2 See opinion of Judge Thayer in Browning v. Armstrong, 9 Phila. 59.
811 Pa. 456. See Parker v. Kellogg, 32 N. E. (Mass.) 1038.

*3 Wharton 116.

5 Lectures on Bills and Notes. * p. 60.
362 LAW OF CONTRACTS.

presentment at that place is an indispensable requisite
without which recovery cannot be had against the maker:
Sanderson v. Bowes, 14 East 500; Sands wv. Clark, 8 C.
B. 751; and such also was originally the rule in regard
to acceptance, Rowe v. Young, 2 Brod. & Bing. 165, al-
though the statute 1, 2 George IV., c. 78, now provides
that an acceptance payable at a particular place should
operate as a general acceptance unless the words‘ and not
otherwise,’ when the acceptor will not be answerable un-
less the condition is fulfilled: Halstead v. Skelton, 5 Q.
B. 80. A different view prevails in the United States
where bills and notes payable at a particular place obey the
general rule, that presentment is not necessary to charge
the maker or acceptor: Fitler v. Beckley, 2 W. & S.
458.”

In regard to the endorser, however, the rule is different,
and in United States Bank v. Smith,? Thompson, J., in
delivering the opinion of the Court, says (page 175):
‘But, when recourse is had to the endorser of a promissory
note, as in the present case, very different considerations.
arise. He is not the original and real debtor, but only
surety. His undertaking is not general, like that of the
maker, but conditional, that if, upon due diligence having
been used against the maker, payment is not received,
then the endorser becomes liable to pay. This due dili-
gence is a condition precedent, and an indispensable
part of the plaintiff’s title, and right of recovery, against
the endorser. And when, in the body of the note, a
place of payment is designated, the endorser has the
right to presume, that the maker has provided funds at
such place to pay ‘the note, and has a right to require
of the holder to apply for payment at such place.” De-
mand at the place to which a bill of exchange is

1See also Byles on Bills and Notes, * p. 212, note 1.
2 11 Wheaton 171.
NEGOTIABLE INSTRUMENTS. 363,

addressed is sufficient to found a notice of dishonor,
unless, perhaps, where the holder knows the true address
in time to present it there." A presentment at the place
where a bill is dated is not sufficient to charge any of the
other parties on a bill or note. This was decided in
Lightner v. Will.”

Fourth, Time of presentment.

In computing time, “month” means calendar month;*
and where days of grace are allowed, the instrument
must be presented on the last day of grace. In Stuckert
v. Anderson,‘ Judge Kennedy says: “ Now in order to make
the plaintiff in error liable as endorser to pay the note, it
being payable generally, without mention of place for that
purpose, the notary public, or some other person author-
ized by the bank ought, on the last day of grace, that
being the time the note became due, to have called with
it in his possession upon the maker, at his residence or
place of business, presented it, and demanded payment;
and if he failed to pay, then to have given immediate
notice thereof to the plaintiff in error; or to have placed
such notice in the post office for him, so that it might
have been transmitted thence by the first mail to the post
office most convenient or nearest to his residence.” (P.
120.)

A presentment before the last day of grace is not suffi-
cient to charge the endorsers If the last day of grace
falls on Sunday, or a legal holiday, the bill is payable
the day before, and presentment must be then made.° If
no days of grace are allowable and the paper falls due

1 Pierce v. Struthers, 27 Pa. 249, and Struthers v. Kendall & Son, 41 Pa. 214.

22W. &S. 141.

3 Byles on Bills and Notes, * page 204.

43 Wharton 116.

5 Wiffen v. Roberts, 1 Espinasse 261.

6 Bussard vw. Levering, 6 Wheaton 102. And note to the case in 2 Ames Cases.
on Bills and Notes, 262.
364 LAW OF CONTRACTS.

on Sunday or a legal holiday, it is payable the day after ;
in the cases of Avery v. Stewart,t and Salter wv. Berk,’
the decisions go upon the ground that when the time
for performing the contract comes on Sunday it is not
to be counted, and therefore the full time will not have
been allowed unless it is made payable the next day.
Days of grace are allowable except on bills and notes
payable on demand, and on checks. This is one of the
main differences between a check and an inland bill of
exchange Judge Story, /z ve Brown,* says (page 512):
“The distinguishing characteristics of checks as counter-
distinguished from bills of exchange, are (as it seems to me),
that they are always drawn on a bank or banker; that they
are always payable immediately upon presentment, without
the allowance of any days of grace, and that they are never
presented for mere acceptance, but only for payment.” 5

Bills and notes payable on demand, and checks, must
be presented within a reasonable time; in Byles on Bills
and Notes*® what is a reasonable time for the present-
ment of a bill is said to be a question of law; and in
National Banking Company v. The Bank of Erie,’ the
Court below was reversed; the Court above finding that
the presentment was made within a reasonable time, the
‘Court below having found that it was not made within a
reasonable time. There were, however, no facts in dispute,
so that this case would therefore be an authority that
what is a reasonable time within which the presentment
of a bill must be made, is a question of law.’ In the

12 Con. 69.

*20 Wendell 205.

3 The act of June 18, 1895, P. L. 198, abolishes days of grace in Pennsylvania,

‘2 Story Rep. 502.

5 Cited with approval by Judge Sharswood in Champion v. Gordon, 70 Pa.

St. 474.
&* page 207.
763 Pa. 404.
‘8 See the case of Newbold v. Boraef, 155 Pa. 227.
NEGOTIABLE INSTRUMENTS. 365

case of checks, as between the drawer and holder, a
delay in presentment does not affect the drawer’s lia-
bility, unless he can show that he was thereby injured.
In Case v. Morris,’ the Court below charged (and the
charge was assigned for error and the judgment affirmed),
that if the drawer of a check was prejudiced by a delay
of one month in presenting it, he would be discharged
from liability,— but not otherwise.’

But as against an endorser, a bill must be presented
within a reasonable time; and the cases seem to have
established that where people live in the same place the
holder of the check has the whole of the next day in
which to present it.3 Where the holder of the check does
not live in the place in which the check is payable, it
should be mailed on the succeeding day.*

Fifth, Excuse for not making, or delaying making,
demand for payment.

While the obligation to make demand is an absolute
one in order to charge the drawer or endorser, because
their contract is a conditional contract to pay only after
demand and refusal of the maker and acceptor and notice
given them, and it is therefore part of the plaintiff’s case
to prove it, so much so, that in the case of the death of
the maker, the taking out of letters by prior endorsers
on his estate does not excuse a demand upon them,’ yet
there are circumstances which will excuse presentment,
either entirely or at the proper time, as for instance,

131 Pa. oo. See upon question of delay in presentment, Wagner v. Crook,
167 Pa. 259; Marshall v. Freeman, 52 Ill. App. 42; Industrial Trust Co. v.
Weakley, 15 So. (Ala.) 854; First Nat. Bank v. Buckhannon Bank, 31 Atl.
(Md.) 302; Bank v. Miller, 43 Neb. 791; Gifford v. Hardell, 88 Wis. 538; Carroll
v. Sweet, 30 N. Y. S. 204.

2 See Shackelford v. Clarke, 43 Il. App. 618. Also Rosenthal v. Erlicher, 154
Pa. 396.

3 Byles on Bills and Notes, * pags 208, note 1.

*Ib., page 20, note I.

5Juniata Bank v. Hale, 16S. & B. 157.
366 LAW OF CONTRACTS.

the cessation of mails in commercial intercourse between
Pittsburg and New Orleans, while blockaded by the
authority of the United States, during the rebellion, is
sufficient excuse for the non-presentment of a bill or
note, and for not sending notice of its protest.”

Protest.

“A protest is, in form, a solemn declaration, written by
the notary under a fair copy of the bill, stating that pay-
ment or acceptance has been demanded and refused, the
reason, if any, assigned, and the bill is therefore pro-
tested.” It is necessary in the case of a foreign bill of
exchange; but it is not necessary in the case of an
inland bill of exchange;* nor in the case of a note.>
The certificate of a notary is only evidence that a bill
has been dishonored, it is not evidence of notice; in Fitler
v. Morris,° the certificate of an Alabama notary was held
not to be evidence of the fact that he had given notice
of a demand and refusal to pay, the drawers. being in
Philadelphia. The Court said the notary should have
been called and sworn. However, in Pennsylvania by the
Act of January 2, 1815,’ it is provided as follows: “ The
official acts, protestations and attestations of all notaries
public (acting by the authority of this commonwealth),
certified according to law, under their respective hands
and seals of office, may be read and received in evidence
of the facts therein certified, in all suits that now are or
hereafter shall be depending; provided, that any party
may be permitted to contradict, by other evidence, any

1 House v, Adams, 48 Pa. 261.

? Byles on Bills and Notes, * page 258.

3 Ib. * page 256, note 1.

*Union Bank v, Hyde, 6 Wheaton 572.

‘5Stephenson v. Dickson, 24 Pa. 148. See Wood River Bank ». First Nat.
Bank, 55 N. W. (Neb.) 239.

66 Wharton 405.

731, 6 Smith L. 238. See Purdon’s Digest, page 1270.
NEGOTIABLE INSTRUMENTS. 367

such certificate.” A certificate of a notary setting forth
that he has given notice to the endorsers under this
statute is evidence of such notice." The later Act of the
14th of December, 1854, provides that ‘“‘ The official acts,
protests and attestations of all notaries. public, certified
according to law, under their respective hands and seals
of office, in respect to the dishonor of all bills and promis-
sory notes, and of notice to the drawers, acceptors and
endorsers thereof, may be received and read in evidence
as proof of the facts therein stated, in all suits now pend-
ing or hereafter to be brought; provided, that any party
may be permitted to contradict, by other evidence, any
such certificate.” Whether or not such certificate is evi-
dence of anything more than the facts relating to the pro-
test and the sending of notice, is doubtful. In Bellemire
v. Bank of the United States, Chief Justice Gibson states
that the official character of the notary extends only to
the protest, and not to the hunting up of the parties.
This case was commented on in Bennett v. Young,‘
where the Court said that the facts being uncontroverted,
the question of due diligence in making a demand on
the drawer was for the Court, and then referred it to the
jury to state whether the facts shown by the defendant
were sufficient to overcome the notarial certificate that
he had made diligent search and inquiry; stating that
the Court had some doubt whether the certificate was any
evidence at all on that point. The verdict was for the
defendant, and this part of the charge was assigned for
error and the judgment was affirmed, the Court above
saying that it was not necessary to decide the question, as
the remark was not sufficient ground for reversing the

1 Kase v. Getchell, 21 Pa. 503.

242, P. L. 724; Purdon’s Digest, page 1270, 3 14.
*4 Wharton 105.

418 Pa. 261.
368 LAW OF CONTRACTS.

judgment. In Coleman v. Smith,’ the notarial certificate
was decided to be no evidence of the statement therein set.
forth, that the person on whom the protest was served was.
the agent of the drawer.

Notice of dishonor.

When either the acceptance or payment of a bill is
refused, it is necessary to give the drawer and endorser
notice in order to charge them. ‘There is no special form
of notice necessary; it may be written or oral. It is only
necessary that it should communicate the fact of demand
for acceptance or payment and the refusal to accept or pay ;
and either directly or by reasonable intendment inform
the person to whom it is addressed that he is held liable.

In Lewis wv. Gompertz,’ the following letter was held to
be a good notice of the dishonor of a bill of exchange.
“6 Bernard street, Russell Square, December 23, 1839.
Mr. Gompertz, Sir:—The bill of exchange for $250,
drawn by S. Rendall, and accepted by Charles Stretton,
and bearing your endorsement, has been presented for pay-
ment to the acceptor thereof, and returned dishonored, and
now lies over due and unpaid with me, as above, of which
I hereby give you notice. I am Sir, etc., C. Lewis.”
This notice was held sufficient; Baron Parke, in deliver-
ing the opinion of the Court, after commenting upon an
expression of the judge in Solarte v. Palmer,’ where it
was said that it ought to appear upon the face of the
instrument “by express terms or necessary implication,
that the bill was presented and dishonored,” to the effect
that the words ‘‘ necessary implication” in this connection
should be rather “reasonable intendment,” said: “ Under-
standing then, the term ‘necessary implication’ with this

126 Pa. 255.

26M. & W. 4oo.
$2 Clark & Fin. 93.
NEGOTIABLE INSTRUMENTS. 369

latitude, and taking the rule to be, that the three facts
required to be conveyed to the mind of the person to
whom it is addressed in a written or verbal notice, either
expressly, or so connected with each other as to leave no
reasonable doubt upon the mind as to their meaning,—
viz. first, that the bill was presented when due; secondly,
that it was dishonored, and thirdly, that the party
addressed is to be held liable for the payment of it; I
think that any mercantile man, who reads this document,
could not fail to come to the conclusion that those three
requisites had been complied with.” In Metcalf v. Rich-
ardson,’ the notice was an oral one. The day after the
bill became due the holder’s clerk called on the drawer
and told him that the bill was duly presented and the
acceptor could not pay; to which the drawer replied that
he would see the holder about it. This evidence was left
with the jury with the direction that they might infer
from it due notice, and the jury found that it was due
notice, and the rule for a new trial was refused; the Court
saying that in the case of an oral notice the jury was not
restricted to the precise form of words in which the notice
was given. Where the notice of protest comes from the
holder of the bill, it need not expressly state that the
holder looks to the person to whom the notice is sent for
payment; in Furze v. Sharwood,’ it was decided that the
holder of a bill of exchange need not in terms inform the
party to whom he gives notice of its dishonor, that he looks’
to him for payment, and this was affirmed in Miers z.
Brown.

The description of a note or bill need not be a literal
one; all that is necessary is to so describe it that it can he
identified, and a misdescription which is not misleading

173 B.C. L. R. Iori.

42 Ad. & E., N.S. 388. (42 FE. C. L. R. 726.) °

311 M. & W. 372. For American cases to the same effect, see 2 Ames Cases
on Bills and Notes, page 371, note I.

24
370 _ LAW OF CONTRACTS.

is not material;' in Tobey vw. Lenning,’ the notice to an
endorser, served on May 25th, stated that a note drawn by
him was due on that day, and it was due on that day, but
the notice was dated the next day. It was held that the
notice was sufficient. Chief Justice Gibson saying, “It
is agreed in all the cases that a mistake by which the
endorser could not have been misled, is immaterial.”
Sheldon v. Benham,’ was a suit by one endorser of a
note against another. The note was protested for non-
payment and notice was served upon the defendant
endorser, who lived in the same town as the plaintiff
endorser, through the mail, and it was held not to be
sufficient. The town in which they lived was the town of
Pennyan, in New York, a small town. And this is the
general rule, that where the parties live in the same town
the notice must be sent and left either at their place of
business or at their residence; but in large cities, and
where there are frequent daily deliveries, and where it is
customary to communicate from one part of the town to
another through the mail, a notice put in the mail in
time to be delivered by the carrier the same day is
sufficient.« But where the party to whom the notice is
to be sent resides in another place, it is sufficient if the
letter is posted, whether he gets it or not.$

As to the place where the notice should be given. It
should be regularly given at the place of business
or the place of residence of the party for whom it is
intended.®

1See Dodson v. Taylor, 28 Atl. (N. J.) 316; King v. Hurley, 85 Me. 52

214 Pa. 483.

34 Hill 129.

4Shoemaker v. Mechanics Bank, 59 Pa. 79. See also Kramer v. McDowell,
8W. & S. 138.

5 Wood v. Neeld, 44 Pa. 86. See also Townsend v. Auld, 28 N. Y. S. 746.
The deposit of a notice of dishonor in a private letter box of an office is not a
sufficient posting, Townsend v. Auld, 31 N. Y. S. 29.

' § Byles on Bills and Notes, * page 280, and cases there presented.
NEGOTIABLE INSTRUMENTS. 371

As to the time when noticeshould be sent. In Williams
v. Smith,’ Chief Justice Abbott thus states the rule: “It
is of the greatest importance to commerce, that some
plain and precise rule should be laid down, to guide per-
sons in all cases, as to the time within which notice of the
dishonor of bills must be given. That time I have always
understood to be the departure of the post on the day fol-
lowing that in which the party receives the intelligence of
the dishonor. If, instead of that rule, we were to say that
the party must give notice by the next practicable post,
we should raise in many cases difficult questions of fact,
and should, according to the peculiar local situations of
the parties, give them more or less facility in complying
with the rule. But no dispute can arise from adopting
the rule which I have stated.” The rule in this country
is to send the notice by the next practicable post.* In
Stephens v. Dickson,’ it was held that a notice was in time
if sent by the next day’s mail, the Court saying:
“True, as a general rule, the notice must be sent as early
as the first mail succeeding the day of the demand, but if
the mail closes at so early an hour, and so that it is im-
practicable to forward a letter by it, one sent by the next
mail is in time.” Each endorser has a day to transmit the
notices.* The object of the notice is to inform the person
to whom it is given that the bill has been dishonored and
that he will be looked to to pay it. It is therefore essential
that this notice should come from some party who, in case
the bill is not paid by the party to whom it is sent, will
be entitled to enforce it against him. This person need
not necessarily be the holder of the bill at the time.
In Harrison v. Ruscoe,> Baron Parke thus states the rule :—

12B. & Ald. 496.
? See cases in Byles on Bills and Notes, * page 281, note I.
324 Pa. 148.

4 Byles on Bills and Notes, * page 285.
$15 M. & W. 231.
372 LAW OF CONTRACTS.

“Since the case of Chapman v. Keane, 3 Ad. & E. 193,
it must be considered as perfectly settled, that a notice
of dishonor need not be given by the holder, but that he
may avail himself of notice, given in due time by any
party tothe bill, The decision in that case is referred to
and adopted by Chancellor Kent, in his Commentaries,
Vol. III, p. 108, and Mr. Justice Story on Bills of Ex-
change, Sec. 304. The former states the rule to be, that
the notice may be given by anyone who isa party to the
bill; the latter states it more fully, and says, that the
notice will be sufficient, although not given by the holder
or his agent, if it comes from some person who holds the
bill when it is dishonored, or is a party to the bill, or
who would, on the same being returned to him, and after
payment, be entitled to require reimbursement thereof.”
In this particular case, the attorney of the third en-
dorser gave notice in the name of the second endorser,
from whom he had no authority to act, and it was held
that the notice being good in time, if it had come from the
second endorser, it was good as to the third endorser, sub-
ject to any defences which the maker might have against
the second endorser. A notice by the holder inures to the
benefit of all antecedent or subsequent parties.’

Notice should be given to all the endorsers and to the
drawer, but it need not be given to the acceptor of a bill or
maker of a note, because their contract is an absolute one.
The rule as to notice where there are several endorse-
ments, is thus stated by Judge Sharswood in his note to
Byles on Bills (* page 287, note 1): ‘‘Where there are
several successives endorsers on a bill of exchange or
promissory note, whether the endorsement be upon actual
negotiation for value or for the purpose of collection only,
the holder may send notice of its dishonor to his imme-
diate endorser ; and if that endorser, after receiving such

1 Byles on Bills and Notes, * page 286.
NEGOTIABLE INSTRUMENTS. 373

notice, give seasonable notice to his immediate endorser,
the latter is liable to his immediate endorser though he
does not receive notice as soon as if it were transmitted to
him by the holder immediately upon the dishonor; and so
of each successive endorser. Each party has a full day to
give notice, but the over diligence of one shall not be made
to supply the want of diligence of another.” But while
the first endorser may be liable, though he does not
receive notice for several days, provided each endorser
transmits the notice seasonably, yet the holder, if he
undertakes to skip the endorsers and give notice to the
payee, is only entitled to the same time that he would
have been entitled to give notice to his immediate
endorser. In Rowe vw. Tipper,’ Jervis, C. J., in delivering
the opinion, said: “It seems to me that the rule laid down
in Chitty and Hulme is the correct rule, and that if the
holder of a bill of exchange wishes to avail himself of a
notice of dishonor given by him to a remote endorser, he
must give it within the time within which he is required
by law to give it to his immediate endorser; and he
cannot avail himself of his laches, to gain another day.
If he could, the consequences which have been pointed
out would follow, viz., that, if there were twenty endor sers,
he would have twenty days within which to give notice to
the first of them. The rule is correctly laid down by
Burrough, J., in Dobree v. Eastwood, that the holder
has his day to give notice to any party he may seek
to charge, and that each of the prior endorsers in turn
has his day. Each has one day to give notice to all
the parties against whom he intends to enforce his
remedy.” .

The rule is stated, however, to be the other way in
Pennsylvania; in Etting v. Schuylkill Bank,’ where it is

113. C. B. 249.
22 Pa. 355. This is a dictum however.’
374 LAW OF CONTRACTS.

said that as much time is allowed for a direct notice to
a remote endorser as would be allowed had the notice
gone seriatim through the intermediate endorsers. The
effect of a neglect to give notice is to discharge the
party from any liability, because the presumption is that
the drawer, if he had notice, would at once withdraw
his effects from the hands of the drawee, and that the
failure to give the endorser notice would make his remedy
against the parties liable to him more doubtful."

Notice may be excused or waived by agreement of the
parties.? So if the drawer at the time the bill was drawn,
and during its currency, had no funds in the hands of
the acceptor to meet it, and therefore could not have sup-
posed that it would be paid by the acceptor, and would
have no remedy against him, nor against anybody else
if it was not paid, it is said that he is liable without
notice. This decision, however, has been regretted as
substituting knowledge for notice; and it has been held
necessary therefore to prove that he had no remedy
against anybody, and if therefore the bill was drawn for
the accommodation of the acceptor, notice to the drawer
is necessary. Following out this principle, the accom-
modation endorser of a promissory note is entitled to
notice, because he has a remedy over against the maker,
though the maker is not entitled to notice because he has
no remedy against anybody. So the accommodation
drawer of a bill of exchange is entitled to notice, though
he had no funds in the hands of the drawee, because he
has a remedy over against the party for whose accommo-
dation he drew the bill and he is entitled to notice in

1Byles on Bills and Notes, * p. 293.

2Hammett v. Trueworthy, 51 Mo. App. 281. See also Hallowell Nat. Bank
v. Marston, 85 Me. 488; Los Angeles Nat. Bank v. Wallace, 36 Pac. (Cal.) 197;
Sieger v. Second Nat. Bank, 132 Pa. 307; Jenkins v. White, 147 Pa. 303; Quain-

tenance v. Goodrow, 41 Pac. (Mont.) 76; O’Rourke v. Hanchett, 35 N. Y.S. 328.
3 Byles on Bills and Notes, * p. 293. And see note 1 for the American cases.
NEGOTIABLE INSTRUMENTS. 375

order to preserve that remedy. If, however, a drawer of
a bill has a reasonable expectation that the bill would be
honored, though he has no effects in the hands of the
drawee applicable to the payment of the bill, he is still
entitled to notice. But if the drawer has no reasonable
ground to expect the bill will be honored, and has no
funds in the hands of the drawee, then he is chargeable
without notice." Another instance of what will excuse
notice is ignorance of the party’s residence, provided ordi-
nary means have been used for ascertaining it. After he
has ascertained it, the holder has the same time as he
would have had in the first instance had he known it.”
The death of an acceptor or a maker is no reason for not
notifying the drawer or endorser, even though he knows
the fact.
BILLS OF LADING.

A bill of lading is a receipt, given by a carrier to whom
goods are delivered for carriage, expressing to whom, or
to whose order, they are to be delivered.* In Blackburn
on Sales (* p. 389), the following definition is given: “A
bill of lading is a writing signed on behalf of the owner
of the ship in which goods are embarked, acknowledging
the receipt of the goods, and undertaking to deliver them
at the end of the voyage (subject to such conditions as
may be mentioned in the bill of lading). The bill of
lading is sometimes an undertaking to deliver the goods
to the shipper by name, or his assigns; sometimes to

1See the American cases collected in note 1, Byles on Bills, * p. 296.

? Byles on Bills and Notes, * pp. 297-8; and see note 1, for the collection of
American cases, as to what constitutes diligence in finding out the residence of
the party to whom notice is to be sent.

3Juniata Bank v. Hale, 16S. & R. 157.

‘It has been held that a ship does not guaranty that the amount of cargo
recited in her bills of lading has been actually shipped and received. The
Asphodel, 53 Fed. (D. C.) 835; but as regards.an assignee for value, see Tibbits
v. Rock Island Rwy. Co.. 49 Ill. 4 np. 567, where it was held that the carrier

could not dispute the correctness of the bill.
°
376 LAW OF CONTRACTS.

order or assigns, not naming any person, which is appar-
ently the same thing, and sometimes to a consignee by
name, or assigns, but in all of its usual forms it contains
the word “assigns.” The bill of lading is therefore a
written contract between those who are expressed to be
parties to it, on behalf of their principals if they be agents,
that is, generally speaking, between the master of the
ship on behalf of his principals, the ship owners, on the
one part, and the person named, as shipper of the goods,
on behalf of the person who, at the time of shipment,
was his principal, on the other part, by which it is agreed
that the ship owner is to deliver the goods to the person
who shall fill the character of assign. The assignment of
the bill of lading designates the person, and the master,
by delivering the goods to him, fulfills the contract, and
by refusing to deliver them to him, he breaks the
contract.”

In Bryans v. Nix,’ Baron Parke said it was unnecessary
to decide whether the document in that case, which was a
receipt given by a canal boat captain, acknowledging the
receipt of certain corn to be delivered to the shipper’s
agent at Dublin, to be shipped to the plaintiffs, was a bill
of lading or not. In the particular case the receipt was
delivered to the plaintiffs, who on the faith of its posses-
sion accepted certain drafts drawn on them by the
shipper; and it was decided that the goods had been
delivered to the carrier, the canal boat captain, to be
delivered to the plaintiffs and that therefore the property
vested in the plaintiffs at the moment of delivery to the
carrier on condition that the plaintiffs accepted the bill of
exchange, and when they accepted it their title became
complete. In the cases of Dows v. Rush,? Dows v. Perring,3

14M. & W. 775.
228 Barbour 157.
S16 N. Y. 328.
NEGOTIABLE INSTRUMENTS. 377

Dows v. Green,’ it was decided that a receipt in form
like a bill of lading, given by a canal boat captain,
was a bill of lading so far as its effect went. So that we
may now say that a bill of lading is a receipt given by a
carrier, etc., substituting for the words “master’’ or
“‘owner”’ of the vessel in Lord Blackburn’s definition, the
word “carrier,” so far as any question of assignability or
negotiability of rights arising by the endorsement and
delivery of such paper is concerned.

The effect of an endorsement (by the custom of
merchants,) while the goods are in transit before complete
delivery of possession has been made to the person who,
under the bill as originally drawn, is entitled to claim
them, is to transfer just such property in the goods named
in the bill of lading as was the intention of the parties to
the endorsement to transfer. In the case of Hieskell v.
The Bank,’ it is said that the bills of lading are symbols
of property, and when properly endorsed and delivered
operate in law as a delivery of the goods themselves.
That statement is no doubt correct when applied to the
particular facts of that case, but as a general statement of
the effect of an endorsement of a bill of lading, it is too
broad, although so far as judicial phraseology goes, it is
entirely warranted by precedent. It is, however, now
settled in England, and the decisions in this country do
not conflict with the determination of the House of Lords,
that the endorsement and delivery of the bill of lading
does not zfso facto at law necessarily transfer the abso-
lute title to the goods.’

The leading case on this subject is the case of Sewell
v. Burdick, in this case a man shipped goods to be

124N. Y. 638.
289 Pa. 159.
3See Porter on Bills of Lading, 2 438; also Dickson v. Merchants Elevator

‘Co., 44 Mo. App. 498; Harrison v. Mora, 150 Pa. 481; Bache v. Phillips, 155 Pa. 103.
4L. R. 10 App. Cases 74.
378 LAW OF CONTRACTS.

carried from London to a port on the Black Sea, under a.
bill of lading whereby the goods were made deliverable to.
the shipper or his assigns. ‘The carrier was given a lien
on the goods and the liberty to sell them at auction and
retain freight and charges if they were not paid at
destination. The bills of lading were then endorsed in
blank and pledged to certain bankers by the shipper for
an advance to him. When the vessel arrived at its
destination there was nobody there to receive the goods.
They were stored in a Russian warehouse and afterwards
sold for custom duties, there being nothing left to pay
charges and freight, and the ship owners then sued the
bankers with whom the bills were pledged for the advance
they had made to the shipper. The bankers never had
claimed the goods under the bills of lading and the real
question was whether the title to the goods, by the
endorsement of the bills of lading, had passed at law with
a resulting equity after the amount of money for which
the bills were pledged had been paid to the pledgors, or
whether the title still remained in the endorser subject to
the special property of the pledgee on account of his ad-
vances. In the Court below Field, J., held that the object
of the endorsement being to create a contract of pledge,
the property did not pass by the endorsement. This was
reversed in the Court of Appeals by two judges, a third
dissenting, and the original judgment was affirmed in the
House of Lords. The question arose under the Statutes.
of 18 and 19 Vict., which give to the endorsee of a bill
of lading the right to sue in his own name where he was
the person “to whom the property in the goods therein
mentioned has passed, upon or by reason of such endorse-
ment.” In other words, this case settles that the mere
endorsement of a bill of lading has no transcendent effect
to convey a different title than was intended by the parties
to the endorsement; and in delivering his opinion in the.
NEGOTIABLE INSTRUMENTS. 379

House of Lords, Lord Bramwell said: ‘I take this op-
portunity of saying that I think there is some inaccuracy
of expression in the Statute. It recites that, ‘by the
custom of merchants a bill of lading being transferable
by endorsement the property in the goods may thereby
pass to the endorsee.’ Now the truth is that the property
does not pass by the endorsement, but by the contract in
pursuance of which the endorsement is made. Ifa cargo
afloat is sold, the property would pass to the vendee, even
though the bill of lading was not endorsed. I do not say
that the vendor might not retain a lien, nor that the non-
endorsement or non-handing over of the bill of lading
would not have certain other consequences. My concern
is to show that the property passes by the contract. So
if the contract was one of security—what would be a
pledge if the property was handed over—a contract of
hypothecation, the property would be bound by the con-
tract, at least as to all who had notice of it, though the
bill of lading was not handed over.”

The intention of the parties in endorsing a bill of lading
may be:

(1) To transfer the property in the goods absolutely,
subject to the right of the vendor to stop the goods in
their transit in the event of their price being unpaid, or
the vendee becoming insolvent, for the purposes of assert-
ing his lien on the goods for their price. In other words,
subject to the vendor’s right to stoppage zz transztu.
(2) To pass the property on certain conditions, as on the
acceptance of a bill of exchange for the price, or (3) To
effect a pledge of goods for the same purpose, or (4) To
pass no property in the goods at all. Property in the
goods may pass absolutely by the endorsement and de-
livery of a bill of lading, but after all, the endorsement
and delivery of a bill of lading is only evidence in such a
case of the intention to pass the property absolutely. The
380 LAW OF CONTRACTS.

property passes absolutely by the agreement to pass it,
and the delivery of the thing itself being impossible, the
delivery of the bill of lading is simply a symbolical deliv-
ery of the goods themselves." It was decided in Pennsyl-
vania in the cases of Holmes v. The Bank,? and Holmes
v. Bailey’ that where a bill of lading is attached to a draft
_as security for its payment and transferred for a valuable
consideration, it is an appropriation of the property con-
tained in the bill, whether the bill is endorsed or not.
The same point is decided in Myer v. Sharp.* In this case
a bill of lading of goods was handed over as a considera-
tion for advances, and it was held that it passed the title
(though the bill was not endorsed), as against the assignee
of the shipper.’

Before speaking of the right of stoppage zm transztu
and how it may be defeated, I will refer to one or two
ways in which the unpaid vendor may secure himself.
He can do it either by reserving to himself the right of
disposing of the goods, or by a conditional endorsement
of the bill of lading. He can retain the right of disposal
of the goods by taking a bill of lading in his own name,
or that of his agent, and directing his agent, whether
taken in his agent’s name or in his own name and en-
dorsed to his agent, not to deliver the goods until they
are paid for. In Shepherd v. Harrison,° the goods were
invoiced on the account of the plaintiffs, but the bill of

1See Union Pacific Rwy. Co. v, Johnston, 63 N. W. (Neb.) 144 Midland Nat.
Bank v. Rwy. Co., 1 Mo. App. Rep. 417.

287 Pa. 525.

392 Pa. 57.

*5 Taunton, (1 E.C. L. R.) 74.

5 See First Nat. Bank v. N. Y.& H. R. R., 85 Hun. 160; Walters v, Western
and A. R. Co., 63 Fed. (C. C.) 391; Nat. Bank of Phcenixville v. P. & R.R.,
163 Pa. 467; Richardson v. Nathan, 167 ib. 513. One who puts in circulation a
bill of lading in the usual form, is estopped to claim the goods as against one
who innocently advances value on it; Pollard v. Reardon, 65 Fed. (C. C. A.)

848.
65 E. & I. App. 116.
NEGOTIABLE INSTRUMENTS. 381

lading was to the shipper’s agent, and the shipper’s
agent sent the bill of lading to the plaintiffs together
with a draft, asking the plaintiffs to accept the draft. The
plaintiffs declined to accept the draft, but kept the bill
of lading and got a delivery order from the defendants
who were the ship owners. The shipper’s agent, how-
ever, obtained the goods on a duplicate bill of lading
indemnifying the defendants. The plaintiffs then brought
suit and it was held that they could not keep the bill of
lading without accepting the bill of exchange, and that
therefore no title ever passed to them and they were not
entitled to the goods. Whether in such a case, where the
shipper takes the bill of lading to his own order or to his
agent’s order, he retains an absolute right of property
over the goods, or only retains the right of property
which may be divested by the vendee paying the price
for them, does not seem to be absolutely settled. In
Ogg v. Shuter,? Lord Cairns says: “The transactions
in which merchants shipping goods on the orders of
others protect themselves by taking a bill of lading, de-
liverable to the shipper’s order, involve property of im-
mense value, and we are unwilling to decide more than is
required by the particular case. But we think this much
is clear, that where the shipper takes and keeps in his own
or in his agent’s hands a bill of lading in this form to pro-
tect himself, this is effectual so far as to preserve to hima
hold over the goods until the bill of lading is handed over on
the conditions being fulfilled, or at least until the consignee
is ready and willing and offers to fulfill these conditions,
and demands the bill of lading. And we think that sucha
hold retained under the bill of lading is not merely a right
to retain possession till those conditions are fulfilled, but
involves in it a power to dispose of the goods on the vendee’s
default, so long at least as the vendee continues in default.”
1, R.1C. P. D., 47.
382 LAW OF CONTRACTS.

What seems to be the correct explanation of the prin-
ciples which should govern this case is to be found in
the opinion of Cotton, J., in the case of Mirabita v. Impe-
rial Ottoman Bank,’ where he says, (page 172): “ Under
a contract of sale of chattels not specific the property does
not pass to the purchaser unless there is afterward an
appropriation of the specific chattels to pass under the
contract, that is, unless both parties agree as to the
specific chattels in which the property is to pass, and
nothing remains to be done in order to pass it. In the
case of such a contract the delivery by the vendor to
a common carrier, or (unless the effect of the shipment.
is restricted by the terms of the bill of lading) ship-
ment on board a ship of, or chartered for, the purchaser,
is an appropriation sufficient to pass the property. If,
however, the vendor, when shipping the articles which
he intends to deliver under the contract, takes the bill
of lading to his own order, and does so not as agent
or on behalf of the purchaser, but on his own behalf,
it is held that he thereby reserves to himself a power
of disposing of the property, and that consequently
there is no final appropriation, and the property does not
on shipment pass to the purchasers. When the vendor
on shipment takes the bill of lading to his own order,
he has the power of absolutely disposing of the cargo,
and may prevent the purchaser from ever asserting any
right of property therein; and accordingly in Wait vz.
Baker, 2 Exch. 1; Ellershaw v. Magniac, 6 Exch. 570,
and Gabarron v. Kreeft, L. R. 10 Exch. 274, (in each of
which cases the vendors had dealt with the bills of
lading for their own benefit), the decisions were that the
purchaser had no property in the goods, though he has
offered to accept bills for or had paid the price. So, if
the vendor deals with or claims to retain the bill of

1], R. 3 Exch. Div. 164.
NEGOTIABLE INSTRUMENTS. 383

lading in order to secure the contract price, as when he
sends forward the bill of lading with a bill of exchange
attached, with directions that the bill of lading is not
to be delivered to the purchaser till acceptance or pay-
ment of the bill of exchange, the appropriation is not
absolute, but, until acceptance of the draft, or tender of
the price, is conditional only, and until such acceptance,
or payment, or tender, the property in the goods does not
pass to the purchaser, and so it was decided in Turner v.
‘Trustees of Liverpool Docks, 6 Exchequer 543; Shepherd
v. Harrison, L. R. 4 Q. B. 196; Ogg v. Shuter, 1 C. P.
D. 47. But if the bill of lading has been dealt with
ouly to secure the contract price, there is neither prin-
ciple nor authority for holding that in such a case the
goods shipped for the purpose of completing the con-
tract do not on payment or tender by the purchaser of
the contract price vest in him. When this occurs there
is a performance of the condition subject to which the
appropriation was made, and everything which, according
to the intention of the parties, is necessary to transfer
the property is done; and in my opinion, under such
circumstances, the property does on payment or tender
of the price pass to the purchaser.”

The rule as thus explained by Cotton, J., was followed
in Dowes ef al. v. The National Bank of Milwaukee,’ in
avery careful opinion by Judge Strong, and in Hieskell
v. The Bank,’ afirmed in Pennsylvania Railroad Com-
pany v. Stern & Spiegel. Where there has been an
endorsement of a bill of lading with the intention of
passing the title to the property,—by this I mean in pur-
suance of a contract of sale—the vendor has the right to
take possession of the goods at any time before the

191 U. S. 618.
289 Pa. 159.
4119 Pa. 24.
384 LAW OF CONTRACTS.

transit is ended, on the bankruptcy or insolvency of the
vendee.

I do not propose to discuss the doctrine of the right of
stoppage zz ¢ransztu farther than to say that it appears to.
be an equitable right of the vendor to obtain and retain
possession of the goods in order to preserve his lien for
the price, and, accordingly, when the price is paid to him
he is bound to deliver up the goods. It does not work a
rescission of the contract of sale.’ This right of stoppage
zz transitu may be defeated by an endorsement and deliv-
ery of the bill of lading, or where it is payable to bearer,
by a simple transfer of the bill of lading to a bona fide
purchaser without notice. So that in this particular case,
the endorsement of a bill of lading gives to the endorsee
a title which is free from the equity which the vendor
had to retain the goods to preserve his lien for the
purchase money which attached to it in the hands of the
assignor.

The assignee must give a valuable consideration. It
was decided in the case of Leaske v. Scott,’ dissenting from
an earlier case,’ that the valuable consideration may be
a past one, as a loan already made, or an existing debt.
In this case the bill of lading was assigned as security
for a previous advance. In the American note to Lick-
barrow v. Mason, it is said that the assignment of a bill
of lading for an antecedent debt is not a valuable con-
sideration unless given in satisfaction of the debt, or
given as security for a contemporaneous advance. The
question is not settled The assignee must also be a
bona fida purchaser, that is, he must have no knowledge

1See the note to the case of Lickbarrow v. Mason, II. Smith’s Leading
Cases. See also the case of Gibson v. Carruthers, 8 M. & W. 321, for a history -
of the right of stoppage 7 transitu.

22Q. B. D. 376.

3 Reported in L. R. 2 P. C. 293.

4 See First Nat. Bank v. Schmidt, 4o Pacific (Col.) 479.
NEGOTIABLE INSTRUMENTS. 385

of the vendee’s insolvency, or any equities affecting the
goods. And a dona fide purchaser for value will take a
good title to the goods by an endorsement of a bill of
lading by a vendee to whom the goods have been sold
through a fraud practiced upon the vendor.’ But this
rule does not go so far as to protect a purchaser from a
vendee who has obtained the bill of lading by a fraud.’
The assignment of a bill of lading, however, will not
give a better title than the assignor had, except that in
the case of a Jona fide assignee without notice from a
vendee, the property passes free of the vendor’s right of
stoppage zz transztu.

In Pollard v. Vinton,? Justice Miller says: “A bill of
lading is an instrument well known in commercial
transactions, and its character and effect have been defined
by judicial decisions. In the hands of the holder it is
evidence of ownership, special or general, of the property
mentioned in it, and of the right to receive said property
at the place of delivery. Notwithstanding it is de-
signed to pass from hand to hand, with or without
endorsement, and is efficacious for its ordinary purposes
in the hands of the holder, it is not a negotiable instru-
ment or obligation in the sense that a bill of exchange or
promissory note is. Its transfer does not preclude, as in
those cases, all inquiry into the transaction in which it
originated, because it has come into the hands of persons
who have innocently paid value for it. The doctrine of
bona fide purchasers only applies to it in a limited sense.
It is an instrument of a twofold character. It is at once
a receipt and a contract. In the former character it is an
acknowledgment of the receipt of property on board his
vessel by the owner of the vessel. In the latter it is a

1 See cases collected in American note to Lickbarrow v. Mason.
2 See the case of Decan v. Shipper e/ a/., 35 Pa. St. 239.
3105 U.S. 7.

25
386 LAW OF CONTRACTS.

contract to carry safely and deliver. The receipt of the
goods lies at the foundation of the contract to carry and
deliver.” The ordinary rule in regard to the sale of
chattels is that the vendee cannot get a better title than
the vendor has, whether the vendor has possession or not.’
And so where the possession of the bill of lading was
given without any intention of passing the property to
the holder of the bill of lading, such holder could not pass
a title to a doxa fide purchaser without notice.

In Gurney e al. v. Behrend ez al.,? Lord Campbell, in
delivering the opinion of the Court, says: “A bill of
lading is not, like a bill of exchange or promissory note,
a negotiable instrument, which passes by mere delivery
to a bona fide transferee for valuable consideration, with-
out regard to the title of the parties who make the
transfer. Although the shipper may have endorsed in
blank a bill of lading deliverable to his assigns, his
right is not affected by an appropriation of it without his
authority. If it be stolen from him, or transferred with-
out his authority, a subsequent doxa fide transferee for
value cannot make title under it, as against the shipper
of the goods. The bill of lading only represents the
goods; and, in this instance, the transfer of the symbol
does not operate more than a transfer of what is repre-
sented.” Accordingly, before the Factors Act in England,
where goods were consigned under a bill of lading to a
consignee as factor, and were pledged by him to a dona
fide purchaser without notice, no title passed as against
the shipper ; in Newsom v. Thornton,’ Lord Ellenborough
said: ‘‘I should be very sorry if anything fell from the
Court which weakened the authority of Lickbarrow v.
Mason, as to the right of a vendee to pass the property of

' McMahon vz. Sloan, 12 Pa. St. 229.
*3 HE. & B. 622, (77 H.C. L. R.).

36 East 17,
NEGOTIABLE INSTRUMENTS. 387

goods zz transztu by endorsement of the bill of lading
to a bona fide holder for a valuable consideration, and
without notice. . . . This was a direct pledge of the
bill of lading, and not intended by the parties as a sale.
A bill of lading, indeed, shall pass the property upon a
bona fide endorsement and delivery, where it is intended
so to operate, in the same manner as a direct delivery of
the goods themselves would do, if so intended. But it
cannot operate farther. . . . I consider the endorse-
ment of a bill of lading, apart from all fraud, as giving
the endorsee an irrevocable, uncountermandable right to
receive the goods, that is, where it is meant to be dealt
with as an assignment of the property in the goods, but
not where it is only meant as a deposit by one who had
no authority to do so.”* And this doctrine in regard toa
factor was held, notwithstanding that it was argued that
the purchaser’s equity was greater than the owner of the
goods, because the owner of the goods had enabled the
fraudulent vendée to deceive the purchaser by the posses-
sion of the bill of lading.» In Shaw wv. The Bank,’ it
was decided that where the endorsee of a bill of lading
had a reason to believe that the bill was held by the
endorsers as security for the payment of an outstanding
draft, and where such was the fact, the owner of the bill
out of whose possession it had been surreptitiously ob-
tained, was held. entitled to recover the goods from a dona
fide endorsee of the bill of lading.

There was an attempt in England to give to certain
documents, such as dock warrants, wharfingers’ receipts
and delivery orders, the same character so far as their
endorsement went, as bills of lading; but it was held that

1A factor cannot pledge, but sell, and he cannot do more with the symbol
than he can with the property.

? But see Pa. Act April 14, 1834, P. L. 375, 241, 2 and 3, also English Stats.

5 and 6 Vict. c. 39 and 40 and 41 Vict. c. 39.
3i01 U.S. 557.
388 LAW OF CONTRACTS.

the assignment of such documents did not divest the
unpaid vendor’s lien for the price of the goods.t The
principle which lies at the bottom of these decisions is
this: If the document represents to the holder of it in
effect that the vendor has waived his lien, then his lien
is gone, otherwise it is not. Therefore it becomes a
question of fact, controlled in some cases by the custom
of trade, in each instance. The result of this state of
the law was this: That where advances were made or a
purchase was made by a person who relied upon the
possession of the documents as showing title, he suffered
the loss unless he was deceived by the real owner. The
rule is thus stated in Cole v. Northwestern Bank,’ (page
372): “The general rule of law is that, where a person
is deceived by another into believing that he may safely
deal with property, he bears the loss, unless he can show
that he was misled by the act of the true owner.” And
then the judge goes on to state the object of the Factors
Act which was passed in England to secure a bona fide
purchaser or pledgee who made advances to a factor.
He says: “The legislature seems to us to have wished
to make it the law, that where a third person has in-
trusted goods or the documents of title to goods to an
agent, who in the course of such agency sells or pledges
the goods, he should be deemed by that act to have misled
any one who dona fide deals with the agent and makes
a purchase from or an advance to him without notice
that he was not authorized to sell or to procure the
advance.” And the substance of the Act which affected
this result in England,’ was this: That any person
intrusted with, or in possession of, any document or title
to goods shall be taken to be the true owner of the

1The cases are collected in Blackburn on Sales, * page 415.
IL. R. 10 C. P. 354.
3 The second section of Statute of George IV., chapter 94.
NEGOTIABLE INSTRUMENTS. 389

goods so far as to give validity to any contract made
by him for the sale or the pledge of the goods to a
person who has no notice that he is not the actual and
bona fide owner. The subsequent Acts of 5th and 6th
Victoria extended the provisions of the Act of George the
IV. to cases where an agent intrusted with possession
secures an advance on the goods, even though the party
making the advance knows he is an agent, and by the
later Act of 1877, it is provided that where any docu-
ment or title of goods has been lawfully endorsed or
otherwise transferred to any person as a vendee or owner
of the goods, and such person transfers such documents
by endorsement or by delivery to a person who takes the
same bona fide and for a valuable consideration, the last
mentioned transfer shall have the same effect for defeat-
ing any vendor’s lien or right of stoppage zz transztu as
the transfer of a bill of lading has for defeating the right
of stoppage zz ¢ransztu.

By the (Pa.) Act of the twenty-fourth of September,
1866,’ it is provided that warehouse receipts, given for any
goods, wares, merchandise, etc., stored or deposited with
any warehouse man, wharfinger or other person, in this
State, or bills of lading or receipts for the same when in
transit, in cars or vessels, to any such warehouse man,
wharfinger or other person, shall be negotiable and may be
transferred by endorsement and delivery of such receipt
or bill of lading, and any person to whom the said receipt
or bill of lading may be transferred shall be deemed and
taken to be the owner of the goods, wares and merchandise
therein specified, so as to give security and validity to any
lien created on the same. In the case already referred to
(Shaw v. The Bank,)? it was held that the word “ nego-
tiable” in such statutes did not mean negotiable in the

1p, L,, 1363. See Purdon’s Digest, ‘‘ Bailees.”’
2to1 U. S. 557.
390 LAW OF CONTRACTS.

same sense as it does when applied to commercial paper,
and that the purchaser of a lost or stolen bill of lading
acquires no title to it. The following description of a bill
of lading in Anson (* page 231,) seems to be, in view of
the cases cited, and of what I have already said, correct.
He says: “ But though the assignee is relieved from any
of the liabilities of the assignor he does not acquire pro-
prietary rights independent of his assignor’s title: a bill
of lading stolen, or transferred without the authority of
the person really entitled, gives no rights even to a dona
fide endorsee. And again, the contractual rights conferred
by statute are expressely conferred subject to equities. A
bill of lading then may be called a contract assignable
without notice, partaking in some respects of the character
of a conveyance, inasmuch as it gives title to property, but
incapable of giving a better title, whether proprietary or
contractual, than is possessed by the assignor; subject
always to this exception, that one who takes from an as-
signor with a good title is relieved from liability of the
vendor’s right of stoppage zz transztu which might have
been exercised against the original consignee.”
CHAPTER XI.

ASSIGNMENT OF RIGHTS AND LIABILITIES OF A CONTRACT
BY THE OPERATION OF LAW.

Within certain limits, rights and liabilities existing
under a contract are transferred, by operation of law, (1)
By the assignment of interests in land; (2) By marriage;
(3) By death or bankruptcy. ;

I. Assignments of interests in land.

Most obligations ex contractu which are attached to the
ownership of lands may be divided into those arising
under a demise, and covenants connected with the owner-
ship where there is no relation of landlord and tenant.

(a) The rights attached to a demise.

Where the liability to perform a covenant, or the right
to enforce its performance, passes to the assignee of land,
the covenant is said to run with the land; and so where
the liability to perform, or the right to enforce performance,
passes with a reversion, a covenant is said to run with the
reversion. Spencer’s case,’ the leading case on the
subject of covenants running with the land, was this:
Spencer and his wife demised certain land, in right of his
wife, for twenty-one years, by indenture under which the
lessee covenanted for himself, his executors and adminis-
trators that he, his executors, administrators or assigns.
would build a brick wall upon part of the land demised to
him. The lessee assigned his term and the lessors

11 Smith’s Leading Cases, * page 76.
(391)
392 LAW OF CONTRACTS.

brought an action against the assignee of the lessee’s
assignee for breach of the covenant to build this wall. In
the report of the case,‘ it was resolved:

(1) That when the covenants extend to a thing zz esse
which is part of the demise, the thing to be done under
the covenants is in a certain manner annexed and appur-
tenant to the demised premises and shall go with the land
and bind the assignee of the land, although the word
“assigns” is not used: but if the covenants extend to
something not in existence at the time of the demise then
it shall not bind the assignee, because it is not appur-
tenant to or annexed to the demise. (2) That in the
latter case, if a covenant is made expressly so as to in-
clude assigns, then the assignee would be bound. (3) If
the lessee covenants to hand over personal property at the
end of the lease, this does not bind the assignee, because
it may never come into his hands.

In Minshull v. Oakes,? doubt is expressed as to the
necessity of the word assigns in a covenant as to a thing
not 2 esse, in order that the covenant may run with the
land. At common law covenants run with the land, but not
with the reversion.’ The consequence was that at common
law, while the assignee of the lessee could sue the lessor,
the assignee of the lessor could neither sue nor be sued
on the covenants. In order to remedy this condition of
affairs the statute of 32 Henry the VIII. (c. 34), was
enacted, which gave an action of covenant against the
assignee of the lessor, and also gave him the right to sue.
This statute only extends, however, to covenants which
touch and concern the thing demised, and not to col-
lateral covenants, and the reversioner must continue to be
seized or possessed of the same reversion; it must not

15 Coke 16.
*2 H. & N. 793. Smith’s Lead. Cas. 82.
3’ Thursby v. Plant, 1 Saunders 230, note 3 by Williams.
ASSIGNMENT OF RIGHTS. 393

merge in some other estate. Hence a lessee who accepted
a new lease from his landlord could not enforce his cove-
nants against his sub-lessee.'

All covenants that are implied under a demise are cove-
nants which touch and concern, or, to put it another way,
upon a lease no covenants will be implied so that their
benefit and burden shall pass with the land except those
which do touch and concern the land. Implied covenants
upon the part of the landlord are that the lessee shall
enjoy quiet possession of the premises;* and that the
landlord will pay the taxes;3 but there is no implied
covenant that the premises are inhabitable or suitable for
cultivation, or for any other purposes for which they are
rented. The doctrine of implied covenants relates to
title and possession of premises, and not to their condi-
tion. ‘There is no implied contract that the landlord will
keep the premises in repair;> nor that he will rebuild
the premises if they are destroyed by fire or any other
accident without his fault.° On the other hand, there is
an implied covenant that the tenant will keep the
premises in tenantable condition, and that he will make
ordinary repairs, but not to make extraordinary repairs.
The rule is thus expressed in Long v. Fitzimmons,’
“A tenant is bound to commit no waste, and to make
fair and tenantable repairs, such as putting in windows
or doors that have been broken by him, so as to prevent
waste and decay of the premises; but not to make sub-
stantial and lasting repairs, such as to put on new roof-
ing: (2 Esp. N. P. 590). He is not liable for general

1Spencer’s Case, 1 Smith’s Leading Cases, p. 153.
2 Duff v. Wilson, 69 Pa. 316.

3Jackson & Gross on Landlord and Tenant, 2 951.
Moore v. Weber, 71 Pa. St. 429.

§ Kline uv. Jacobs, 68 Pa. 57.

§ Moore v. Weber, 71 Pa. 429.

Tr W. &S. 530.
394 LAW OF CONTRACTS. ‘

repairs, Horsfall v. Mother (Hall’s N. P. C. 7); nor is he
compellable to restore premises, if burned down, or
become ruinous by any other accident, without any
default on his part. And in all cases there is an implied
assumpsit arising out of the relation of landlord and
tenant, to use the premises in an ordinary and proper
manner.”

Some express covenants run with the land and some
are merely collateral or personal and do not run with the
land, and consequently when the land or the reversion is
transferred, neither the benefit nor the burden of such
covenant passes. Accordingly, where in a lease the
lessor covenanted not to build or keep any house for the
sale of spirits or beer within a half mile of the demised
premises, the assignee of the lessee cannot enforce this
covenant."

In Masury v. Southworth,” there is a very interesting
discussion by Gholson, J., in regard to the character of
express covenants which run with the land, and he in
substance says, in ascertaining whether the character and
nature of a covenant is such as to inhere in the land, we
are to look at the policy of the law, and having ascer-
tained first that it is of a kind that the policy of the law
permits to inhere in the land, we have to look, in the
second place, at the intent of the parties creating the
estate to see whether it does inhere in the land; and in
this particular case he held that a covenant to insure

1 Thomas v. Hayward, L. R. 4 Exchequer 311. Fora list of express covenants
that have been held to run with the land, see Spencer’s Case, 1 Smith’s Leading
Cases 81, and Jackson & Gross on Landlord and Tenant, 3990, where are
collected a number of express covenants on the part of the lessor which run
with the land. In ¢@991 of the same book will be found collected a
number of express covenants on the part of the lessee which run with the land;
and in 33 995 and 996, of the same book, will be found collected a number of
express covenarits on the part of the lessor and on the part of the lessee which
are merely personal. Also Fennell v. Guffey, 139 Pa. 341; Williams v. Short,
155 Pa. 480, as to covenants to pay royalty under oil leases.

29 Ohio 340 (1859).
ASSIGNMENT OF RIGHTS. 395

and to spend the money on the property was one which
did run with the land, and there was evidence sufficient
to show that it was intended to be attached to the land
in that case, although the word “assigns” was not used.
The facts in the case were as follows: A lease had been
made with a covenant that the tenant should keep the
property insured for the benefit of the landlord, but in
case the property burned down the money was to be used
in rebuilding. Both landlord and tenant assigned; the
policy was allowed to run out, and the assignee of the
landlord sued the assignee of the tenant for what it had
cost him to reinsure, and it was held that he could
recover."

Where the thing in respect to which the covenant is
made is not zz esse, under the second resolution in
Spencer’s case, the assignee is not bound, and accord-
ingly, where there was a covenant with the lessor to pay
for improvements put up by the lessee, the assignee of
the landlord was held not liable for improvements put
up.” But where the covenant is directly for the benefit
of the holders for the time being of the land, it will be
binding, though the word “assigns” is not used. In
Coleman v. Coleman,’ there was an agreement between
tenants in common not to make a partition, and the
word “assigns” was not used, yet it was held that it
would bind everybody to whom the land might subse-
quently come by assignment. ‘The transfer of the obli-
gation arising under an express covenant by an assignment
of the land or reversion does not relieve the original
covenantor. In Dewey v. Dupuy,‘ where a tenant, before

1In Benz v. Langan, 5 Northampton (Pa.) 139, it was held that a covenant
for an amicable ejectment and confession of judgment contained in a lease runs.
with the land and binds the assignee of the original lessee.

2 Tallman v. Coffin, 4 Comstock 134.

319 Pa. 100.

42 W. &S. 553.
396 LAW OF CONTRACTS.

he entered into possession, assigned the lease and the land-
lord accepted rent from the new tenant, it was held that
this did not discharge the original tenant from the obliga-
tion to pay rent under the original lease; and in Ghegan
v. Young,’ the reason for this rule is very clearly stated by
Lewis, J., as follows: “There is a distinction between
an action of debt for rent, and an action of assumpsit or
covenant. The former being founded upon the actual
enjoyment of the premises, an assignment by the lessee
to another, with the assent of the landlord, would be a
defence. But where the action is not founded on the
privity of estate, but on the lease itself, and the cove-
nants or promises contained in it, an assignment of the
term by the lessee, even with the assent of the landlord,
does not discharge the lessee from his express contract
to pay rent. In Fisher wv. Milliken, 8 Barr 120, it was
remarked by Chief Justice Gibson that ‘it had been held
in a countless number of cases collected in Comyn on
Landlord and Tenant, 275, that the tenant is bound by
a covenant to pay the rent, though he assign his lease
with his landlord’s assent, and though the latter accept
the assignee for his tenant, and receive rent from him.’
It must be remembered that a lessee is under two sorts
of obligations to his landlord—one arising from the
privity of estate, which may be discharged by an assign-
ment of his term with the assent of his lessor; the other
in respect to the terms and engagements in his lease, by the
privity of contract, which is, as we have seen, not affected in
any way by an assignment of the term. The assignment
of the term, and the acceptance of the assignee as tenant,
instead of the lessee, discharges the latter from all obliga-
tions arising from privity of estate, but is not a discharge
from the express contract contained in the lease: Comyn

123 Pa. 18.
ASSIGNMENT OF RIGHTS. 397

on Landlord and Tenant 275; 8 East 314; 4 Term Rep.
9 4.”

But the liability in implied covenants ends with the
assignment of the interest, and this is true even when the
covenant is implied from the words “ yielding” or “ pay-
ing” rent ;* though in the note to Spencer’s case a query is
suggested as to the correctness of this doctrine. An as-
signee, however, of the covenantor only continues liable
while his interest continues.» In Hannen wv. Ewalt,3 the
Court say: “The assignee being liable upon the cove-
nants merely in respect of the privity of estate, and no
privity of contract existing between them and the original
lessor, his liability lasts only so long as he remains pos-
sessed of the estate. An assignment to a mere pauper will
not be deemed fraudulent, and an assignment to a feme
covert will discharge the assignee.” A tenant may pay
rent which is due to his landlord provided he has had no
notice of an assignment of the reversion, and the reason
rests upon the general principle that payment to one to
whom, under a contract, payment is to be made, is a dis-
charge always, where there is no notice of anybody else’s
right to payment.*

(6) Covenants relating to land, not between landlord and
tenant.

These may be divided into two classes. First, cove-
nants made with the owner; second, covenants made by
the owner.

As to covenants made-with the owner, there is no doubt
that the right to sue on them runs with the land to each

1See note to Mills v. Auriol, 1 Smith’s Leading Cases, 1267; and Spencer’s
Case, 1 Smith’s Leading Cases, *p. 85.

2See note last cited, and Hannen v, Ewalt, 18 Pa. 9.

318 Pa. 9. .

4See the case of De Nicholls v. Saunders, L. R. 5 C. P. 589.
!

308 LAW OF CONTRACTS.

successive transferee who holds of the same estate as the
original covenantee did ;* and it does not matter whether
the covenantor be the person from whom the covenantee
claims title or whether he be a stranger. In the case re-
ported in Spencer’s Case itself, the covenant was by a
prior to sing in a chapel, being a parcel of a manor of
which the covenantee was seized, and the covenantee
enfeoffed the plaintiff of the manor, and it was held that
the action of covenant would lie by the feoffee against the
prior. In Sharp v. Waterhouse,’ where a mill owner cove-
nanted with the land owner below him to supply a
reservoir to be made by the land owner on his land with
pure water, there being no connection of tenure of any
kind whatsoever between the mill owner and the land
owner; it was held that the benefit of this covenant passes
to the land owner’s devisee, and it is upon the same prin-
ciple that a covenantor’s covenants of title pass to the
grantee’s assignee, for in England where the statute of
Quza Emptores is enforced, there is no relation of tenure
between the covenantor in fee and the assignee of his
grantee. And the same is true in this country, so that
the grantee of land can sue any of the grantors in the
line of title for a breach of covenant occurring during his
ownership as grantee. In the case of Le Ray De Chau-
mont v. Forsythe,’ it was held that a grantee could avail
himself of a covenant of general warranty made by his
grantor’s grantor. But it is necessary that the covenantee
should own the land at the time the covenant is made.
This rule is stated in Spencer’s Case, where it is

1 See Spencer’s Case, supra * p. 88; also Raby v. Reeves, 16 S. E. (N. C.)
760; Moxley v. N. J. & N. Y.R.R., 66 Hun. 632, and Ritzman v. Spencer, 5
Dtst. Rep. (Pa.) 224, which was the case of a covenant by the owner of an irre-
deemable ground rent to make the rent redeemable, and it was held that the
covenant ran with the land though unrecorded for over forty years.

77H. & B. (Q0E. C. L. R.) 816.

32P.& W. 507.
ASSIGNMENT OF RIGHTS. 399

distinctly said: ‘But if such covenant was made to say
divine service in the chapel of another, there the assignee
shall not have an action of covenant, for the covenant in
such case cannot be annexed to the chapel, because the
chapel does not belong to the covenantee.”

Covenants made by the owner do not run with the land
unless there is a relation of tenure existing, so that a cove-
nant imposing a charge on land, while it may be enforced
by the covenantee or those claiming under him, will not be
binding upon an assignee of the covenantor unless the
relation of landlord and tenant or that of lessee for life or
years and reversioner exists between the covenantor and
covenantee. An explanation of the difference between
covenants with the owner and covenants by the owner is
given by Judge Hare, in his note to Spencer’s Case." He
there says: ‘“‘ The obligation of all contracts is ordinarily
limited to those by whom they are made, and if privity
of contract be dispensed with, its absence must be supplied
by privity of estate. When, therefore, no privity of
estate exists between the covenantor and covenantee, as
where the covenantor charges land which he holds in fee,
and the obligation of the covenant is based on privity of
contract, it will not extend to a subsequent assignee how-
ever direct and immediate the relation between the land
and the covenant, and although the covenant be one
which, if entered into between a lessee for life or years
and the reversioner, would bind a subsequent assignee of
the term. But while the liability imposed by contracts is
thus rigidly confined to the persons by whom they are
made, justice often requires that the right to enforce them
should extend to all who have a beneficial interest in their
fulfilment.” The reason cited from the First Institute in
the English note to the same case (* page 91) seems to
me more satisfactory. ‘That where the covenant is made

11 Smith’s Leading Cases, * p. 113.
400 LAW OF CONTRACTS.

wzth the owner of the land, and it is one touching and con-
cerning the land, and is broken, the person aggrieved is
the owner at the time whoever he may be, and therefore
he ought to have an action for the breach of the covenant;
but where the covenant is dy the owner of the land, and
is broken, the covenantee or his assignee has remedy for
such a breach of covenant against the man, or the repre-
sentatives of the man, who made the covenant and it has
not necessarily anything to do with the person who at
that time may be the owner of the land.

In Brewster v. Kitchell,’ the defendant’s grantor had
granted a rent charge to the plaintiff’s ancestor, free of
taxes, out of certain lands of which the defendant was
terre tenant, and the question was whether this covenant
bound the defendant, and Lord Holt was of the opinion
that it did not. The question was elaborately consid-
ered in the case of Keppell v. Bailey,? and Lord Chan-
cellor Brougham in delivering the opinion of the Court
there said: “Assuming then for the present that the
Kendalls covenanted for their assigns of the Beaufort
Works, could they, by such a covenant with parties
who had no relation whatever to those works except that
of having a lime quarry, and a railway in the neigh-
borhood, bind all persons who should become owners of
those works, either by purchase or descent, at all times
to: buy their lime at the quarry and carry their iron
on the railway? Or could they do more, if the cove-
nant should not be kept, than give the covenantees a
right of action against their heirs and executors as far
as they received assets? Consider the question first upon
principle. There are certain known incidents to prop-
erty and its enjoyment; among others, certain burthens
wherewith it may be affected, or rights which may be

1Lord Raymond 318.
22M. & K. 517.
ASSIGNMENT OF RIGHTS. 401

created and enjoyed over it by parties other than the
owner; all of which incidents are recognized by the
law. In respect of persons, the property may be in one,
while the reversion is in another; in respect of interest,
the life estate in one, the remainder in tail in a second,
and the fee in reversion in a third. So in respect of
enjoyment, one may have the possession and the fee
simple, and another may have a rent issuing out of it,
or the tithes of its produce, or an easement, or a right
of way upon it, or of common over it. And such last
incorporeal hereditament may be annexed to an estate
which is wholly unconnected with the estate affected
by the easement, although both estates were originally
united in the same owner, and one of them was after-
ward granted by him with the benefit, while the other
was left subject to the burthen. All these kinds of
property, however, all these holdings, are well known to
the law and familiarly dealt with by its principles. But
it must not therefore be supposed that incidents of a novel
kind can be devised and attached to property, at the fancy
or caprice of any owner. It is clearly inconvenient
both to the science of the law and to the public weal, that
such a latitude should be given. There can be no harm
in allowing the fullest latitude to men in binding them-
selves and their representatives, that is, their assets real
and personal, to answer in damages for breach of their
obligations. ‘This tends to no mischief, and is a reason-
able liberty to bestow; but great detriment would arise
and much confusion of rights, if parties were allowed to
invent new modes of holding and enjoying real property,
and to impress upon their lands and tenements a peculiar
character, which should follow them into all hands, how-
ever remote. Every close, every messuage, might thus
be held in a several fashion ; and it would hardly be pos-
sible to know what rights the acquisition of any parcel
26
402 LAW OF CONTRACTS.

conferred, or what obligations it imposed. The right of
way or of common is of a public as well as of a simple
nature, and no one who sees the premises can be ignorant
of what all the vicinage knows. (See Ackroyd v. Smith,
10 C. B. 164). But if one man may bind his messuage
and land to take lime from a particular kiln, another may
bind his to take coals from a certain pit, while a third
may load his property with further obligations to employ
one blacksmith’s forge, or the members of one corporate
body, in various operations upon the premises, besides
many other restraints as infinite in variety as the imag-
ination can conceive; for there can be no reason what-
ever in support of the covenant in question, which would
not extend to every covenant that can be devised. “ The
difference is obviously very great between such a case as
this, and the case of convenants in a lease, whereby the
demised premises are affected with certain rights in favor
of the lessor. The lessor or his assignees continue in
the reversion while the term lasts. ‘The estate is not
out of them, although the possession is in the lessee or
his assigns. It is not at all inconsistent with the nature
of property that certain things should be reserved to the
reversioners, all the while the term continues; it is only
something taken out of the demise, some exception to the
temporary surrender of the enjoyment; it is only that
they retain, more or less partially, the use of what was
wholly used by them before the demise, and what will
again be wholly used by them when that demise is at
an end.”
So in the case of Hurd v. Curtis,” where the owners

of two mill properties who drew their water from the
same reservoir, entered into a covenant in regard to the

1See Cole v. Hughes, 54 N. Y. 444; Middlefield v. Church Mills Knitting
Co., 160 Mass. 267; Conduitt v. Ross, 102 Ind. 166; Mott v. Oppenheimer,
135 N. Y. 312.

219 Pickering (Mass.) 459.
ASSIGNMENT OF RIGHTS. 403

kind of water wheels to be used by them. One of the
mill owners sold his property and the purchaser who
declined to observe the terms of the covenant was held
not to be liable to the other mill owner, and that the
mill owner’s remedy was in an action agdinst the pur-
chaser’s vendor. In certain of the States the rule is
the other way.’ But while this is the general rule, yet
there is a class of cases where the benefit and the bur-
den of a covenant are so intertwined that the liability
to the burden must be sustained in order that the right
to the benefit may be enjoyed; in Coleman v. Coleman,’
tenants in common each covenanted with the other that
a certain portion of the common property should not
thereafter be divided, and it was held that this bound
the assigns of the covenantors because the benefit could
not be enforced without enforcing the burden. In Carr
v. Lowry’s Admr.,3 a covenant by a mill owner to keep
a tail race through an adjoining property free from
obstruction in consideration for being allowed to build
it there, was held to bind the subsequent owner of the
mill property, and it was also held that the executor
of the original covenantor was not liable upon the cov-
enant, the covenant being made for the man, his heirs
and assigns. But while in the absence of any privity
of estate, the burden of covenants, that is to say, cove-
nants made by the owner, does not pass by an assign-
ment or transfer of the land, yet such covenants are
sometimes enforced in equity where the vendee of the

4See Pollock on Contracts, * p. 226, note d.

19 Pa.1oo. See also Inhabitants of Middlefield v. Church Mills Knitting
Co., 160 Mass. 267, which holds that the covenant of a landowner to keep in
repair a bridge and its highway approaches, may run with the land; First Nat.
Bank v, Security Bank, 63 N. W. (Minn.) 264; Bean v. Stoneman, 104 Cal. 49;
Bald Eagle Valley R. R. v. Nittany Valley R. R., 171 Pa. 284; Dey v. Prentiss,
35 N. Y. S. 563 (covenant relating to division fence); Landell v. Hamilton, 34

Atl. (Pa.) 663 (building restriction).
327 Pa. 257.
404 LAW OF CONTRACTS.

land has notice of the covenants. The rule is thus
stated in Tulk v. Moxhay,’ by Lord Cottenham, ‘“ That
this Court has jurisdiction to enforce a contract between
the owner of land and his neighbor purchasing a part
of it, that the latter shall either use or abstain from
using it in a peculiar way, is what I never knew to be
disputed. * * * It is said that the covenant
being one which does not run with the land, this Court
cannot enforce it; but the question is not whether the
covenant runs with the land, but whether the party
shall be permitted to use his land in a manner incon-
sistent with the contract entered into by his vendor and
with notice of which he purchased.” In this case, though
the covenant was an affirmative one, to use the land in
a particular way, it was construed to mean that it should
not be used in any other way, and an assignee with
notice was restrained from using it any other way.

In Luker v. Dennis,’ there was a lease of a public
house and the lessee covenanted to purchase from the
lessor, who was a brewer, all his beer consumed at that
house and at another public house which the lessee held
under a lease from a stranger, and it was held that the
covenant was binding upon the assignee of the second
public house who took with notice. In delivering the
opinion of the Court, Fry, J., discussed the case of
Keppells v. Bailey, and in effect says: ‘That so far as
that part of it is concerned which holds that the covenant
cannot be enforced against the assignee, even if he has
notice, it is overruled by the later cases.

Morland wv. Cook,? is a case where certain owners of
land bordering upon the sea entered into a covenant to
contribute toward the payment of the cost of a sea wall,

12 Ph. 774.
£L, R. 7 Ch. D. 227.
5L. R. 6 Equity 252.
ASSIGNMENT OF RIGHTS. 405,

and had made such contribution a charge on their lands
in a proceeding in partition. A suit was instituted to
compel the assignees of certain of the owners, who refused
to contribute according to this agreement, to pay up their
portion, and a decree was made directing them to pay up;
and in the course of the decision Lord Romilly said that
he could not distinguish between this case and the case of
Tulk v. Moxhay, because in the latter case the land was
not to be used in a particular manner, and in the case he
was deciding the proprietors were to contribute their
quotas toa common benefit. In other words, he carries
the doctrine of Tulk v. Moxhay so far as to enforce an
affirmative covenant to pay money. But in Haywood vw.
The Brunswick Permanent Benefit Building Society,” it
was held that where land had been granted in fee in
consideration of a rent charge and a covenant to build and
repair buildings, the assignee of the land is not liable
either at law or equity (on the ground of notice to the
assignee of the grantee of the rent charge) on the covenant
to repair, and in giving the opinion of the Court of
Appeals, Cotton, L. J., discussed the case of Tulk v.
Moxhay, and said:

“Tet us consider the examples in which a court of
equity has enforced covenants affecting land. We find
that they have been invariably enforced if they have been
restrictive, and that with the exceptions of the covenants
in Cook wv. Chilcott (3 Ch. D. 694), only restrictive
covenants have been enforced. In Tulk v. Moxhay (2
Ph. 774), the earliest of the cases, Lord Cottenham says:
“That this Court has jurisdiction to enforce a contract
between the owner of land and his neighbor purchasing a
part of it, that the latter shall either use or abstain from
using it in a particular way, is what I never knew dis-
puted.’ In that case the covenant was to use in a

18 Q. B. D. 403.
406 LAW OF CONTRACTS.

particular manner, from which was implied a covenant
not to use in any other manner, and the plaintiff obtained
an injunction restraining the defendant from using in any
other manner, although the covenant was in terms affrma-.
tive. At page 778, Lord Cottenham says, ‘If an equity
is attached to property by the owner, no one purchasing
with notice of that equity can stand in a different situation
from the party from whom he purchases.’ This lays down
the real principle that an equity attaches to the owner of
the land. It is possible that the doctrine might be ex-
tended to cases where there is an equitable charge which
might be enforced against the land, but it is not necessary
to decide that now; it is enough to say that with that sole
exception the doctrine could not be farther extended.
The covenant to repair can only be enforced by making
the owner put his hand into his pocket, and there is
nothing which would justify us in going that length.
We are not bound here by Cooke wv. Chilcott, and I do not
think that the rule of Tulk v. Moxhay can be extended as
Malins, V. C., there extended it. In Morland v. Cook
(L. R. 6 Equity 25), there are perhaps some expressions
of Romilly, M. R., which favor the opposite contention,
but the fact of their being a deed of partition in that case
makes it distinguishable.”

The doctrine announced in this case was reiterated by
Jessel, M. R., in London & Southwestern Railway Com-
pany v. Gomm,’ in delivering his opinion, where he says
(page 583): “The doctrine of that case, rightly con-
sidered, appears to me to be either an extension in equity
of the doctrine of Spencer’s Case to another line of
cases, or else an extension in equity of the doctrine
of negative easements; such for instance, as a right
to the access of light, which prevents the owner of
the servient tenement from building so as to obstruct

1L, R. 20 Ch. D. 562.
ASSIGNMENT OF RIGHTS. 407

the light. The covenant in Tulk v. Moxhay was affirma-
tive in its terms, but it was held by the Court to imply a
negative. Where there is a negative covenant expressed
or implied, as, for instance, not to build so as to obstruct
a view, or not to use a piece of land other than as a
garden, the Court interferes on one or other of the above
grounds. This is an equitable doctrine, establishing an
exception to the rule of Common Law which did not
treat such a covenant as running with the land, and it
does not matter whether it proceeds on analogy to a
covenant running with the land or on analogy to an
easement. ‘The’ purchaser took the estate subject to the
equitable burden, with the qualification that if he acquired
the legal estate for value without notice he was freed from
the burden.” So that this doctrine which enables a
covenant made by the owner to be enforced against the
assignee of the land where the assignee has notice of
the covenant, is confined in England to the case of
restrictive covenants, or, at all events, to covenants which
might be enforced against the land."

This rule was applied in Clark v. Martin,? where the
owner of two lots at the corner of Eighth and Locust
streets, Philadelphia, conveyed the corner lot, reserving
the ground-rent, with the condition that no building
higher than ten feet should be put up upon the rear of
the end lot; a subsequent grantee of the original owner
filed a bill against the grantee of the corner lot to
restrain the violation of this covenant and the injunction
was granted. And the rule was again applied in St.
Andrew’s Lutheran Church’s Appeal,’ where the several
owners of the lots on the South side of Arch street, between
Broad and Fifteenth streets, entered into a covenant that

1See on this subject, Pollock on Contracts, * page 228 to 231. The English
cases are collected in Kealis v. Lyon, 4 Ch. 218.

249 Pa. 299.
367 Pa. 512. See also Muzzarelli v. Hulshizer, 163 Pa. 643.
408 LAW OF CONTRACTS.

nothing other than private dwelling houses and the
ordinary buildings attached to dwelling houses should
be erected on any of the lots. The erection of a church
on the corner lot was restrained. In this case the Court
said that the covenant was one that ran with the land.
This was not necessary to the decision of the case, and
if correct under the decisions, is so because it comes
within that class of cases of which Coleman v. Coleman,
(supra) is an example, where the benefits and the burdens
are so intimately connected that one carries the other
with it.

But there is this difference between enforcing the
obligations of such a covenant against an assignee in
equity and a right to bring an action of covenant at
law. In the former case you are appealing to the
discretion of a chancellor to specifically enforce a con-
tract and are liable to be met by any of those objections
which are sufficient to stay the hand of the chancellor
where such a relief is asked.

In some cases the owner of a tract of land has in
conveying separate lots, into which the tract has been
cut up, created restrictions in favor of the different
grantees, or in favor of the owner of that portion of the
lot conveyed. And when these restrictions have been
sought to be enforced in a court of equity, after a con-
siderable lapse of time, it has been decided that the
Court will refuse to enforce them where the change of
circumstances has been such that the enforcement under
the changed circumstances can hardly be deemed to have
been within the intention of the parties at the time the
restriction was created. However, in the case of Sayers
v. Collier,? it was said by the Justice that this refusal
of acourt of equity to enforce such a negative restriction

1See the case of Bedford v, The British Museum, 2 M. & K. 552.
228 Ch. D. 103.
ASSIGNMENT OF RIGHTS. 409

applied only where the alteration in the condition
of affairs takes place through the act or permission of
the plaintiffs, or those under whom he claims, so that
to enforce the covenant would be unreasonable on his
part. But in Trustee v. Thatcher,’ the Court refused to
enforce a covenant of this kind where the alteration had
occurred, not through the act of the plaintiff, but through
extraneous circumstances which rendered the enforce-
ment of the covenants oppressive.

In Narcross wv. James,” however, Judge Holmes declined
to enforce a covenant made by the grantor, at the time of
conveying away a portion of the property owned by him,
that he would not quarry any stone on the property
retained by him. The suit was brought by the assignee
against the assignee of the purchaser, both parties taking
with notice of the covenant. The ground upon which he
declined to enforce it was that it was not for the benefit
of the land. The case is an instructive one on account
of the review of the cases and discussion of the question
of privity of estate. In an action at law you are entitled
to a judgment if the covenant and the breach of it are
proved. A covenant made by the owner of land will
frequently bind his assignee, even without notice, but in
such case it is because the covenant creates an easement,
or incorporeal right, and this incorporeal right may be
attached to other lands. In the case of Rowbotham v.
Wilson,’ the title to the surface of certain lands became
vested in one under whom the plaintiff claimed, and the
title to the minerals in the defendant’s grantor. Under
an agreement between the original owners, that the owner
of the mine was not bound to afford a support for the
surface of the ground, it was held that an action would

187 N. Y. 311.
2140 Mass. 188.
36 EF. & B. 593 (88 E. C. L. R.).
410 LAW OF CONTRACTS.

not lie against the assignee of the original mine owner
for mining in such a way that the ground fell in, because
this was the creation of an easement in favor of the owner.
of the mine; and it is upon this principle that a good
many of the restrictive covenants that have been enforced
in equity can be sustained.

In the note to Spencer’s case,’ it is said: “‘ The cases
in Pennsylvania and Massachusetts tend accordingly to
show that every right which can arise or be created out
of land by a grant or reversion, may be made the subject
of an appropriate covenant which will bind the land as
well as the parties, and may consequently be enforced by
and against subsequent assignees and purchasers.” But
this limitation to the right to create these estates by
covenant, must be borne in mind. The right which is
conferred by the covenant must be one that can be the
subject matter of a grant. It must relate to the realty,
or to use the language of the earlier cases, touch and
concern the realty to such an extent that it is capable of
descending and being conveyed. It must be something
more than a mere personal right. Where the covenant
made Jy the owner is made with one from whom at the
time it is made an estate in fee passes to the covenantor,
the question of whether this covenant is binding on an
assignee depends upon whether there is privity of estate
between the assignee and the original grantee; and in
such a case it would be binding in Pennsylvania, where
the Statute Quza Empiores is not in force, but it would
not be in England and in certain of the States in this
country where that statute is in force.

In Royer v. Ake,” it was decided where land was con-
- veyed in fee, reserving a ground rent, that the assignee
of the land, although the word “ assigns” was not used,

41 Smith’s Lead. Cases, page 197.
23P. & W. 461.
ASSIGNMENT OF RIGHTS. All

was bound to pay the rent,—the covenant was binding on
him. A covenant made dy the owner of the land did not
pass at common law to the assignee of the reversion, and,
while by the Statute of 32 Henry the VIII., this was
remedied as to reversioners after estates for life or years,
it was left to stand as it stood at common law in the case
of a grant in fee, where there was only the possibility of
reverter in the grantor. Consequently, where a covenant
was made upon a grant in fee, as, for instance, to pay
rent, that covenant could not be enforced by the assignee
of the covenantee, and if this rule had been in force in
Pennsylvania, an assignee of the owner of a ground rent
could not have sued the ¢evre tenant; it was decided in
the case of Streaper v. Fisher,’ that he could.

In Ackroyd v. Smith,’ a right of way was pleaded in
answer to an action in trespass by averring a right con-
veyed to A by deed in connection with certain lands to
pass over the /ocus zn quo for all purposes, and the assign-
ment of this right to the defendants, and on a demurrer
to this plea the plea was held bad, because it was not the
kind of right that could be created to appertain to land.

(2) Assignment by marriage and death.

The two remaining divisions of the transfer of contrac-
tual rights by the operation of law are those in the case
of marriage, and those in the case of death or bankruptcy,
and these may be disposed of in a very few words. The
extent to which the husband succeeds to the contracts of
the woman whom he marries, upon marriage, has already
been discussed in treating of married women as parties
toa contract. Upon the death of a party to a contract
his personal representative, that is his executor or admin-
istrator, succeeds to his rights and liabilities except as to

11 Rawle 154.
*10C. B. 164 (70 EK. C. L. R.).
412 LAW OF CONTRACTS.

contracts dependent upon personal skill or service, as to
which both the rights and liabilities end with the death
of the party;* and the same is true of a contract of
marriage. ‘The executor of one of the parties cannot sue
the other for a breach of the marriage contract between
them.? And in the case of bankruptcy the assignee suc-
ceeds to the contractual rights of the bankrupt, and is
liable for his obligations to the extent of the assets in his
hands applicable to the payment of such obligations.

1Dickinson v. Calahan’s Admrs., 19 Pa. 227; Lacey v. Getman, 119 N. Y.
Iog; Siler v. Gray, 86 N. C. 566; Cf. Billings’ App., 106 Pa. 558; Drummond
v. Crane, 159 Mass. 577.

?Chamberlain v. Williamson, 2 M. & S. 408; Finlay v. Chirney, 20 Q. B. D.
(C. A.) 494; Wade v. Kalbfleisch, 58 N. Y. 282; Chase v. Fitz, 132 Mass. 359.
PART III.

CHAPTER XII.

INTERPRETATION OF CONTRACTS.

It will be remembered that the definition of contract
given at the outset was as follows:

1. Every agreement and promise enforceable by law is
a contract.

2. An agreement is an act in the law whereby two or
more persons declare their consent as to any act or thing
to be done or foreborne by some or one of these persons
for the use of the other or others of them.

3. Such a declaration may consist of: (a) The con-
currence of the parties in a spoken or written form of
words as expressing their common intention, or (4) a
proposal made by some or one of them and accepted by
the others or other of them.

4. The declaration by any person of his intention to
do or forbear from anything at the request or for the
use of another is called a promise.’

In the interpretation of a contract, it is necessary to
ascertain what the parties declared to be their common
consent, whether this declaration be the spoken or written
form of words in which they have concurred as expressing
their intention, or a proposal and acceptance. And so
when a promise has been made it must be proved. After
the declaration or promise has been proved, then the
meaning of the terms in which it is expressed must be

1See Pollock on Contracts, * p. 1.
(413)
414 LAW OF CONTRACTS.

determined. The subject therefore divides itself naturally
into two branches: (1) Rules of Evidence, and (2) Rules of
Construction. Under the first head we have to consider
the sources to which we may go for the purpose of ascer-
taining what is the expression by the ‘parties of their
common intention. Under the second we have to consider
the rules which exist for construing the intention from
the expression ascertained to have been used.’

I. RULES OF EVIDENCE.

The province of the Court and jury in deciding issues
is clearly described in Starkie on Evidence (page 11),
as follows: ‘“ For the finding of a verdict on every issue,
it is essential, in the first place, to know what facts,
when proved, will satisfy the issue in point of law; and,
secondly, to inquire whether such facts have been proved.
The office of the jury is confined altogether to the latter
question; their duty is to ascertain the existence of facts
by means of the judgment which they form of the credi-
bility of the witnesses, and by the inferences which they
make from the circumstances submitted to their considera-
tion. For the due discharge of this important function,
they are supposed to be peculiarly well qualified by their
experience of the conduct, affairs, and dealings of man-
kind, and the manner and customs of society. In this
respect, and to this extent, the law confides implicitly in
their knowledge, experience and discretion. It interferes
no further than by laying down cautionary rules to
prevent the jury from being deceived or misled. Having
done this, the rest is left to the conscience and discretion
of the jury. And the Courts will only interfere with
their decision when the verdict has been perverse or
clearly contrary to the evidence. It is with a view to

1 Anson on Contracts, * p. 237.
INTERPRETATION OF CONTRACTS. 415

those objects that the rules of evidence are almost exclu-
sively framed. But in the next place, a knowledge
whether particular facts, if established to the conviction
of the jury, will satisfy the issue, or the allegations to
be proved, is also essential to a verdict; and this is
usually a question of law, and therefore within the prov-
ince of the judge. In such case, therefore, it is for the
Court to instruct the jury in point of law, to inform them
what facts are essential to the proof of the issue, and
that they ought to give their verdict in the affirmative or
negative, according to the opinion of the jury that the
particular facts are proved or disproved.” When a contract
is made orally there is nothing in the rules of evidence in
regard to its proof which requires specific attention. When
a contract is in writing, there are three things to be con-
sidered in regard to evidence extrinsic to such a contract.

1. Proof of the existence of a writing.

2. Proof that the writing is an agreement, or part of
an agreement.

3. Proof of the meaning of the terms of the writing."

Extrinsic evidence of the intention of the parties to a
contract is not admissible. ‘This is as true of oral as of
written contracts; for “if, whatever a man’s real inten-
tion may be, he so conduct himself that a reasonable man
would believe that he was assenting to the terms pro-
posed by the other party, and that other party upon the -
belief enters into the contract with him, the man thus
conducting himself would be equally bound as if he had
intended to agree with the other party’s terms.”* The
effect of which would be to bind the parties to a contract
where their minds were not ad zdem, provided that they
had unequivocally expressed themselves orally, by writing
or by conduct. .

1 Anson on Contracts, * p. 239.
2 Per Blackburn, J., in Smith v. Hughes, L. R. 6 Q. B. 607.
416 LAW OF CONTRACTS.

According to the general law of England, the written
record of the contract must not be varied or added to by
verbal evidence of what was the intention of the parties.'
And this is the rule in Pennsylvania.’

Starting out then with this general principle, I return
to the three classes of cases in which, in order to ascer-
tain what a written contract is, recourse may be had to
evidence outside of the contract.

Proof of the document.

A contract under seal is proved by proof of its execu-
tion and delivery. Where there is an attesting witness
to a document, he must be called, or if he is dead, in-
capable of testifying or out of the reach of process, his
handwriting must be proved. The rule is thus stated
in Wharton on Evidence (Section 727): ‘‘ The secondary
evidence which is received after the nonproduction of the
witness is satisfactorily accounted for, consists, ordinarily,
of proof of his handwriting. Such proof may be infer-
ential. Proof of the handwriting of the witness, in such
case, is sufficient, without proving the handwriting of the
party, but the latter may be cumulatively proved or
alternately. But, as a general rule, handwriting of the
party executing cannot be proved until there is a bona
fide but unsuccessful effort to prove the handwriting of
the deceased witness.” I believe this is a correct state-
ment of the rule of evidence. Extrinsic evidence is of
course necessary to show that the party sued is the party
who made the contract. And where the writing consists
in part of the contract, the rest may be proved by wit-
nesses; or when the contract is contained in several

1 Per Blackburn, J., in Burges v. Wickham, 3 B. & S. 669.

2? Martin v. Berens, 67 Pa. St. 459. Lewis’s Greenleaf on Evidence, Vol. I,
pp. 142 and 431.

3Greenough v. Greenough, 1 Jones 489. See Stephen’s Digest of Law of
Evidence, Art. 66 and Art. 67.
INTERPRETATION OF CONTRACTS. 417

documents, these documents may be connected by oral
evidence.

In Edwards v. Aberayron Mutual Ship Insurance
Society,” oral evidence was admitted to connect rules of
an insurance society with the policy; Bret, J., saying:
‘“‘T see no reason why parol evidence should not be ad-
mitted to show what documents were intended by the
parties to form an alleged contract of insurance.’” It is
true, as said in this very case, that in cases where the
Statute of Frauds requires the contract to be in writing,
there the papers cannot be connected by parol evidence,
for this would be to repeal the statute pro tanto.

Evidence of the fact of agreement.

After the proof of contract in writing, parol evidence
is admissible to show the existence of any facts which
prevent the agreement from being enforceable. Such as
want of capacity of parties, want of real consent, illegality
of the object, or in the case of simple contracts, the
want of a consideration. An ordinary instance of the
last case is where, in an action by the payee against the
maker of a promissory note, the defendant is allowed to
prove by parol that the note is an accommodation note.
So in the case of an illegal object, as in Pratt v. Langdon,
in which case a promissory note was alleged to have been
given for the purchase of liquors in violation of a statute
of Massachusetts. Parol evidence may be given also to
prove the existence of a condition suspending the operation
of the contract, as in the case of the delivery of a deed

11Q, B. D. 587.
2Colby v. Dearborn, 59 N. H. 326; Wilson v. Tucker, 10 R. I. 578. It has
been held that in order to admit parol evidence in such a case, the documents

- must contain a reference toeach other. Long v. Miller, 4 C. P. D. 456, also

Coe v. Tough, 116 N. Y. 273; O’Donnell v. Leeman, 43 Me. 158. See Lewis’s
Greenleaf on Evidence, Vol. I., p. 444.
397 Mass. 97.

27
418 LAW OF CONTRACTS.

to take effect upon the happening of some event. A
written contract may depend for its operativeness upon
a condition not in the writing, and these conditions may
be proved orally, because it shows not what the contract
was, but that there was not any contract at all.

The leading case on the point is Pym wv. Campbell,
where there was a written contract for the purchase of
part of an invention. ‘There was a verbal agreement that
the contract should only be operative in case a certain
expert first approved of the invention. Suit was brought
for breach of the written contract and evidence of the
verbal condition was admitted; Earle, J., saying: “‘ The
point made is that this is a written agreement, absolute
on the face of it, and that evidence was admitted to show
that it was conditional; and if that had been so it would
have been wrong. But I am of opinion that the evidence
showed that in fact there was never any agreement at all.
The production of a paper purporting to be an agreement
by a party, with his signature attached, affords a strong
presumption that it is his written agreement; and, if in
fact he did sign the paper axzmo contrahendz, the terms in
it are conclusive, and cannot be varied by parol evidence ;
but'in the present case the defence begins one step earlier ;
the parties met and expressly stated to each other, though
for convenience they would then sign the memorandum
of the terms, yet they were not to sign it as an agreement
until Abernethie was consulted. I grant the risk that
such a defence may be set up without ground; and I agree
that a jury should therefore always look on such a
defence with suspicion; but, if it be proved that the
paper was signed with the express intention that it
should not be an agreement, the other party cannot fix
it as an agreement upon those sosigning. ‘The distinc-
tion in point of law is that evidence to vary the terms

16 E & B. 370.
INTERPRETATION OF CONTRACTS. 419

of an agreement in writing is not admissible, but evidence
to show that there is not an agreement at all is
admissible.” *

Evidence as to the terms of the contract.

The general rule both in this country and in England is
that the written record of a contract must not be varied
or added to by parol evidence of intention. But extrinsic
evidence is admitted to prove the ¢erms of a contract:
(2) When there are supplementary or collateral terms
to that part of the agreement which is written; (4) To
explain terms; (c) To introduce usages; (d) In the
application of equitable remedies in case of mistake.?

(a) Supplementary and collateral terms.

Parol evidence may be given to show that the whole
contract is not expressed in the writing. So an addi-
tional collateral agreement, made at the time of signing
the written agreement, may be proved by parol.‘

In Erskine v. Adeane,' it is said: “‘ No doubt, as a rule
of law, if parties enter into negotiations affecting the terms
of a bargain, and afterward reduce it into writing, verbal
evidence will not be admitted to introduce additional terms
into the agreement; but, nevertheless, what is called a
collateral agreement, when the parties have entered into

1See also Reynolds v, Robinson 110 N. Y. 654; Blewitt v. Boorum, 142 ib.
357; Westman v. Krumweide, 30 Minn. 313.

2See Anson on Contracts, * p. 244.

3 The case of Jervis v. Berridge, L. R. 8 Ch. Appeal Cases 357, is a good ex-
ample of supplemental terms. See Wood v. Moriarty, 15 R. I. 518; Chopin vz.
Dobson, 78 N. Y. 74; Wood Mowing Co. v. Gaertner, 55 Mich. 453; Bradshaw
-v. Combs, 102 Ill. 428. Lewis’s Greenleaf on Evidence, Vol. I, p. 447.

+An instrument under seal cannot be modified by a subsequent parol con-
tract: Leavitt v. Stern, 55 Ill. App. 416; but otherwise if not under seal, and
the oral agreement is based upon sufficient consideration. Robinson v. Hyer,
17 So. (Fla.) 745.

51. R. 8 Chancery App. Cases 756.
420 LAW OF CONTRACTS.

an agreement for a lease or for any other deed under
seal, may be made in consideration of one of the parties
executing the deed, unless, of course, the stipulation contra-
dicts the terms of the contract itself. I quite agree that an
agreement of that kind is to be rather closely watched,
and that we should not admit it without seeing clearly
that it is substantially proved. Indeed I may say that
this being a case between landlord and tenant, if there has
been no evidence except Mr. Bennett’s own evidence,
and the agreement has been alleged to have been made
in an interview between him and Mr. Adeane when
nobody else was present, I should probably have thought
it would have been the duty of the Court to say that
this was not satisfactory enough for the Court to act
upon. But in this case it appears to me that the
agreement is proved in the most satisfactory manner,
and it is also proved that it was not intended to be in-
cluded in the terms of the lease, which were afterward
reduced into writing and made into a deed, but it was
intended to be collateral, because according to the evi-
dence, which, to some extent, is confirmed by Lady
Elizabeth Adeane, it was distinctly said that the lease,
as regarded the game, was to be in the ordinary form
of Mr. Adeane’s leases. But, nevertheless, he stipulated
that he himself would behave in a particular way with
teference to the powers which were to be preserved to
him by the lease. When it has been proved that Mr.
Bennett, having found a vast quantity of game upon the
farm, said that it was impossible that he could take it
with that quantity of game on it, even according to
Lady Elizabeth, it is quite plain that Mr. Adeane said
that Mr. Bennett need not be afraid of that, because he
was in such a state of health that he no longer wanted
the shooting himself, and that he was not going to let it
again, and that all the keepers would be dismissed except
i

INTERPRETATION OF CONTRACTS. 421

one; and when the lease was executed on the faith
of that agreement, and upon those representations so
made, it would be contrary to the ordinary rules of
justice if the tenant were afterward to have no remedy.
There is no imputation against Mr. Adeane himself,
because I think it appears that he was in so infirm a state
of health that he was incapable of managing his affairs,
and accordingly it was relet, and the game kept up as much
asever. As to the amount of the damage that is a matter to
be inquired into; all we have to say now is that this is an
agreement that is binding in point of law, and assuming
that there has been damages sustained, that Mr. Bennett
is entitled to be paid for it out of Mr. Adeane’s estate.” *

In Walker v. France,? the Court say (page 210):
“That a written agreement may be modified, explained,
reformed or altogether set aside by parol evidence of an
oral promise or undertaking material to the subject
matter of the contract, made by one of the parties at the
time of the execution of the writing, and which induced
the other party to put his name to it, must now be
regarded as a principle of law so well settled as to pre-
clude discussion.” *

(6) Explanation of terms.

May be to identify parties,—as to show that a party
contracting in his own name is agent for an undisclosed
principal; in Wake wv. Harrop,‘ there was a written con-

1See also Angell v. Duke, L. R. 10 Q. B. 174; Hardwick v. Pollock, 3 Pa.
Dist. Rep. 245; Thurston v. Arnold, 43 Iowa 43; Van Brunt v. Day, 81 N. Y.
251; Naumberg v. Young, 44 N. J. L. 331; Green v. Batson, 71 Wis. 54.

2 112 Pa. 203; also Sidney School Furniture Co. v. Warsaw School Dist., 130
ib. 76; Ferguson v. Rafferty, 128 ib. 337.

3 As to the evidence necessary to establish such agreement or submit the ques-
tion to a jury, see Halberstadt v. Bannan, 149 Pa. 51; Jessop v. Ivory, 158 ib,
71; Baer’s App., 127 ib. 360; Irvin wv. Irvin, 142 ib. 272.

46H. & N. 768; and Andrews v. Dyer, 81 Me. 104; Byington v. Simpson,
134 Mass. 169. Lewis’s Greenleaf on Evidence, Vol. I, pp. 450, 454.
422 LAW OF CONTRACTS.

‘tract signed by defendant as agent for A.D. H., when
in the body of the instrument the defendant appeared
to be personally bound. The plea averred knowledge by
plaintiff that defendant was acting as agent; held (by
Bramwell, J.), to be a good equitable plea, and probably
a good plea at law.

As to subject matter; in contracts relating to real
property parol evidence is always admissible to show
what is granted. The rule is sometimes expressed,
““Whether parcel or no parcel is always matter of evi-
dence.” Parcel or no parcel is a question for the jury.’
In the case of a contract for the sale of goods, the par-
ticular goods meant by the description may be shown
by parol evidence, as what was meant by the words “ your
wool.”? ‘To show the meaning of a phrase; the meaning
of the word “seaworthy,” in a particular contract, was
allowed to be explained by oral proof of the circum-
stances under which the policy of insurance was made; in
Burges v. Wickham,’ Lord Blackburn, in delivering his
opinion (p. 697), said: ‘Now in the present case the
policy expresses that the plaintiffs are assured ‘at and
from all or any ports and places in the Clyde, or from
Liverpool to Kurrachee or Calcutta, and for the space |
of thirty days after her arrival at her port, upon the
body, tackle, apparel, ordnance, munition, artillery,
boat and other furniture of and in the good ship or
vessel called The Ganges, a steamer.’ If the plain-
tiffs’ case were that the Ganges steamer was not sea-
worthy, but that it was intended that the warranty
implied by law should not apply to her, or that there
should be some exception from or qualification of that

1Leake 210.

2McDonald v. Longbottom, 1 E. & E. 977; also Bulkley v. Devine, 127 III.
406; Clark v. Coffin Co., 125 Ind. 277.

33. B. & S. (113 E. C. L. R.) 669; also Ganson v. Madigan, 15 Wis. 144; Man-
chester Paper Co. v. Moore, 104 N. Y. 680.
INTERPRETATION OF CONTRACTS. 423

warranty, I think the plaintiffs would fail, as there is
nothing on the face of the policy to express any such
intention, and, as I have already said, I think no such
intention can be proved by extrinsic evidence. But this
is not the case of the plaintiffs. It is always permitted
to give extrinsic evidence to apply a written contract
and show what was the subject matter to which it refers.
When the stipulations in the contract are expressed in

terms which are to be understood, as logicians say, not

semplictter, sed secundum quid, the extent and the obliga-
tion cast upon the party may vary greatly according to
what the parol evidence shows the subject matter to be ;
but this does not contradict or vary the contract. For
» example, in a demise of a house with a covenant to keep
it in tenantable repair, it is legitimate to inquire whether
the house be an old one in St. Giles’ or a new palace in
Grosvenor Square for the purpose of ascertaining
whether the tenant has complied with his covenant, for
that which would be repair in a house of one class is not

so when applied to a house of the other (see Payne vw.
Hayne, 16 M. & W. 541). So, suppose a sale of a horse

warranted to go well in harness; the qualities necessary
to constitute a good goer in harness would be different
in a pony fit to draw a lady’s carriage or a dray horse;
or in a lease of Whiteacre for a year with an express
contract to cultivate it in a proper manner, the quantity
of manure and labor which the tenant would have to
bestow must be different according as Whiteacre consists
of hop-gardens or meadows. In each of these cases you
legitimately inquire what is the subject-matter of the
contract, and then the terms of the stipulation are to be
understood, not szmpliczter, but secundum quid. ‘The two
last instances I have supposed are not, as far as I know,
decided cases; but I give them to explain my meaning

as examples of a general rule. Now, according to the.

t
424 LAW OF CONTRACTS.

view already expressed, seaworthiness is a term relative
to the nature of the adventure; it is to be understood,
not szmpliciter, but secundum quid.”

The rule generally is thus stated in Taylor on Evi-
dence,’ “It may be laid down as a broad and distinct
rule of evidence that extrinsic evidence of every materzal
fact, which will enable the Court to ascertain the ature
and qualities of the subject matter of the instrument, or
in other words, to zdentzfy the persons and things to
which the instrument refers, must of necessity be re-
ceived.” ‘These illustrations all fall under the head of
latent ambiguities.

(c) Terms annexed by proof of usage.

The principle, upon which the terms of a contract are
modified by proof of usage are that the parties are pre-
sumed not to have put their whole contract in the docu-
ment, but have contracted with reference to the usage.”

In the case just referred to, Burges v. Wickham, we
have an instance of a term annexed by usage to a contract.
There the imputed warranty of seaworthiness was read
into the policy. ‘The leading case of Wigglesworth vz. Dal-
ison,’ contains the English and American cases in regard
to the right annexed to contracts by usage. In the origi-
nal case a customary right to a way-going crop was an-
nexed toa lease under seal. The usage must be proved, and
it must be reasonable and not contradict the contract, nor be
repugnant to statutory law or public policy.t| The cases
have sometimes gone very far in allowing usage to change
the meaning of a word of precise signification, as in the

1Vol. 2, ¢ 1082.

2See opitiion of Parke, B., in Hutton v. Warren, 1 M. & W. 466. Lewis’s
Greenleaf on Evidence, Vol. I, p. 465, e¢ seq.

317 Sm. L. C. 928.

4See note to Wigglesworth v. Dallison, 1 Sm. L. C. pp. 960-64, and Cooper
v. Kane, 19 Wend. (N. Y.) 386.
INTERPRETATION OF CONTRACTS. 425

case of Smith v. Wilson,’ where a usage of the neighbor-
hood was allowed to be proved to the effect that zooo
rabbits meant 7200. ‘This case has been followed in some
cases but has been disapproved of in others.”

(2) Parol evidence 2s admissible in equity to prove a
mistake.

Thisis illustrated in cases (1) where specific performance
of a contract is refused because there has been a mistake
in the writing ; (2) where contracts are reformed because of
amistake. Such mistakes must: be mutual. The oral
evidence, if there is nothing else, must be uncontra-

dicted.4
RULES OF CONSTRUCTION.

‘There are a number of general and minor canons of
construction which will be found in Lewis’s Greenleaf on:
Evidence.’ Of these general rules, Leake thus speaks:
“Some general rules or maxims have been laid down by
the Court for the construction of written contracts which
may be here noticed, though they do not appear to be of
much practical efficacy; the rules themselves being for the
most part self evident propositions and the difficulty con-
sisting chiefly in choosing which to follow in each particu-
lar case.” And he cites in a note (* page 221) the opinion
of Lord Bacon, that a general rule of construction ‘is but
sound in the air that cometh in sometimes to help and make
up other reasons without any great instruction or direction,

13 B. & Ad. 728.

2See American note to Anson on Contracts, * page 249; Soutier v. Kellerman,
18 Mo. 509; Cf. Sweeney v. Thomason, 9 Lea (Tenn.) 359; Walls v. Bailey, 49
N. Y. 464; as to explaining art or technical phrases, see Hills v. Evans, 31 L. J.
Ch. 457; Welsh v. Huckestein, 152 Pa. 27.

’ Fowler v. Fowler, 4 De G. & J. 250.
4Mortimer v. Shortall, 2 Dr. & War. 363-74; Attorney-General v. Sitwell, 1

YV. & C. 559-83.
5Vol. I, p. 431, et seg.
426 LAW OF CONTRACTS.

except it be duly conceived in point of difference where
it taketh place and where not.”

In questions depending on the construction of docu-
ments precedents are of little value; what a judge has.
to do is to construe the particular document. In Aspden
v. Seddon,’ Jessel, M. R., said: “No judge objects more
than I do to referring to authorities merely for the purpose
of ascertaining the construction of a document; that is to
say, I think it is the duty of a judge to ascertain the con-
struction of the instrument before him, and not to refer to
the construction put by another judge upon an instrument,.
perhaps similar, but not the same. The only result of
referring to authorities for that purpose is confusion and
error, in this way, that if you look at a similar instrument,
and say that a certain construction was put upon it, and that
it differs only to such a slight degree from the document
before construction, but at the same time the judge who
decided on that other instrument may have thought that
you, that you do not think the difference sufficient to alter
the construction, you miss the real point of the case, which
that is to ascertain the meaning of the document before you.
It may be quite true that in your opinion the difference
between the two instruments is not sufficient to alter the
very difference would be sufficient to alter the interpre-
tation of that instrument. You have, in fact, no guide
whatever; and the result especially in some cases of
wills, has been remarkable. ‘There is, first, document A,
and a judge formed an opinion as to its construction.
Then came document B, and some other judge has said
that it differs very little from document A—not sufficient
to alter the construction—therefore he construes it in the
same way. ‘Then comes document C, and the judge there
compares it with document B, and says that it differs very
little, and therefore he shall construe it in the same

11, R. 10 Ch. App. 394.
INTERPRETATION OF CONTRACTS. 427

way. And so the construction has gone on mntil we
find a document which is in totally different terms from
the first, and which no human being would think of
construing in the same manner, but which has by this
process come to be construed in the same manner.”

There are two points of construction to which your
attention may be directed.

(1) Zime of essence of a contract.

At one time when a thing was to be done at a certain
time under a contract, if not done at that time, the other
party might elect to consider the contract at an end.
This was the rule at law. In equity it was different.
Equity looked into the contract, and if it appeared that
the object was to secure performance within a reasonable
time, then in equity the contract was treated as binding,
if performance was made within a reasonable time.’ It
was open to the parties to make time the essence of the
contract by express stipulation.’

(2) Difference between a penalty and liquidated damages.

Where a penalty is affixed to the nonperformance of a
promise by the contract itself, it may be meant as a
mode of assessing the damages in case of a breach, or
it may be meant as a penalty to prevent a breach.

The rule is that if the contract is for a fixed sum,
and the penalty for a breach is greater, then it is not
liquidated damages. If the contract is for an uncertain
sum, then the penalty is liquidated damages. If there
are some of the things contracted for of a certain value

1 Thurston v. Arnold, 43 Iowa 43; Beck Co. uv. Colorado Co., 52 Fed. Rep. 700;,
Coleman v. Applegarth, 68 Md. 21.

2?Reed v. Breden, 61 Pa. 460. Cf. Norrington v. Wright, 115 U. S. 188;
Davison v. Von Lingen, 113 ib. 4o.
428 LAW OF CONTRACTS.

and some not, and there is the same penalty for all, it
cannot be recovered as liquidated damages,’

1 The leading case is Kemble v. Farren, 6 Bingham 141, followed generally in
this country. See also Streeper v. Williams, 48 Pa. 450; Shreve v. Brereton,
51 Pa. 175; Matthews wv. Sharp, 99 Pa. 560; Penriypacker v. Jones, 106 Pa. 237;
Hall v. Crowley, 5 Allen (Mass.) 304; Patent Brick Co. v. Moore, 75 Cal. 205;
Waggoner v. Cox, 40 Ohio 539; Chaude v. Shepard, 122 N. Y. 397; Lansing v.
Dodd, 45 N. J. L. 525; Cotheal v. Talmage, 9 N. Y. 551.
PART ‘LY.
DISCHARGE OF CONTRACT.

Under this head we are to consider how the contractual
relation established by the contract may be determined.
The analysis of the modes of discharging contractual
obligations made by Anson is as follows :*

A contract may be discharged by

( Waiver.
Agreement, which | Substitution of a new contract.
may be by Express provision in the contract itself for its
| discharge.
( Doing the thing agreed to be done, which is
Performance, which very often Payment.
may be by | Tender,—offering to do the thing agreed to be

done, which is often the tender of payment.

( Renunciation of right of performance.

Impossibility of performance created by the
act of a party.

| Failure of performance.

Breach in case of

 

Impossibilit of [ Law.
P “asl Destruction of the thing essential to perform-
performance |
hen created by pea
© | Incapacity for personal service.
, j Merger.
Opeeatian of tay | Alteration of document.
case of
Bankruptcy.

This analysis, in general, will be followed in the present
discussion.

1 Anson on Contracts, Part V.
(429)
CHAPTER XIII.
DISCHARGE OF CONTRACT BY AGREEMENT.

Discharge of contract by agreement occurs: (1) When
there is a waiver by the parties; (2) when there is a
substituted contract by agreement of the parties; (3)
when there is an express provision in the original con-
tract for its own determination.

I. Duscharge of contract by waiver.

Waiver is an express agreement that the contract
shall be no longer binding. Where the contract is ex-
ecutory on both sides, the consideration for such an
agreement is the abandonment by each party of his
rights under the contract. The illustration usually found
in the books is the case of King vw. Gillett... This case
was assumpsit for breach of promise of marriage. Plea
that after the promise was made and before breach, the
plaintiff wholly absolved the defendant from his promise.
Special demurrer on the ground zz¢er alza, that a con-
tract founded on mutual promises could only be dissolved
by mutual consent. Judgment sustaining the plea, on
the ground that under this plea the defendant could
prove an offer to exonerate by plaintiff, acceded to by
the defendant. Where, however, the contract has been
executed on one side, so that one of the parties has
discharged all the obligations which under the contract
he is bound to fulfill, a waiver on his part of perform-
ance by the other party to the contract will not be

17M. & W. 55.
(430)
DISCHARGE OF CONTRACT. 431

effectual to discharge that other party from his obliga-
tions, unless there is a new consideration for the waiver
or it is under seal.’

Kidder v. Kidder? is not really different from the
case where the contract is executory on both sides,
in so far as the principle is concerned. Consideration
is needed in every case to support a waiver; but where
the contract is executory on both sides the abandon-
ment of the obligations constitutes the consideration.
In giving the opinion of the Court in Foster v. Dawber,‘
Baron Parke says : “ Now it is competent for both parties
to an executory contract, by mutual agreement, without
any satisfaction, to discharge the obligation of that con-
tract. But an executed contract cannot be discharged
except by release under seal, or by performance of the
obligation, as by payment, where the obligation is to
be performed by payment.” He then goes on to state
an exception to this rule which prevails in England—
the case of bills of exchange or promissory notes, and
I will quote his opinion on that subject. He adds: “The
rule of law has been so often laid down and acted upon,
although there is no case precisely on the point as
between immediate parties, that the obligation on a bill
of exchange may be discharged by express waiver, that
it is too late now to question the propriety of that rule.”
So, in that particular case, a plea that after the defend-
ant had given the bill of exchange to the plaintiff’s

1Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Landon v. Hutton, 50 N. J.
Eq. 500; Richmond & D. R. Co. v, Walker, 92 Ga. 485; Wabash Western Ry.
‘uv. Brow, 65 Fed. 941; Byers v. N.C. & St. L. Ry. Co., 94 Tenn. 345; Blagborne —
v. Hunger, 101 Mich. 375; The Cayuga, 59 Fed. 483; Ralston v. Aultman, Miller
& Co., (Tex.) 26 S. W. 746; Romaine v. Beacon Lithographic Co. (Com, Pl. N.
Y.) 34 N. Y. Sup. 124, 13 Misc. Rep. 122; Maness v. Henry, 96 Ala. 454.

233 Pa. St. 268.

8 Bacon v. Proctor, (N. Y. Com. Pl.) 33 N. ¥. Sup. 995, 13 Misc. Rep. 1;
Curlee v. Reiger, 45 Ill. App. 544; Flegal v. Hoover, 156 Pa. St. 276.

46 Exch. 839.

5* p, 851.
432 LAW OF CONTRACTS.

testator, the plaintiff’s testator exonerated and discharged
him, was held a good plea; though no consideration
was alleged for the waiver and none proven. ‘This ex-
ception in regard to bills and notes is not generally
followed in this country.‘ Judge Sharswood in his note
to Byles on Bills,? says: “Judge Story has not laid
down the law so broadly as it is assumed in the text:
‘Where the renunciation is clear, and the intention to
discharge unquestionable, there, if there be a sufficient
consideration, or an act done on the part of the acceptor,
which might not otherwise have been done, which
affects his interest, the acceptor will be discharged.’
Story on Bills, Section 266. There can be no hesitation in
assenting to this statement of the law. But there is
nothing peculiar in this doctrine to bills of exchange. It
is the application only of principles well settled in all
other classes of contracts. It is to be observed, also, that
bills or notes are not within the rule that simple contracts.
may be discharged by parol before breach; it would be
more accurately expressed, to say that executory contracts.
may be discharged or varied by parol before breach, and
then I am not aware of any principle or cases which would
confine it to simple contracts. If A agreed to build a
house for B, or to sell him certain materials, whether by
articles under seal or not, A and B may before breach
vary such agreement by parol. But if the consideration
on either side is executed, or just so far as it is executed,
it is no longer an executory, but an executed contract,
and an accord without satisfaction is no bar. A bond, a
bill, a note, the price to be paid for making a coat, build-
ing a house, or selling a barrel of flour, if the service has
been performed, or the merchandise delivered, though a
credit be given, are debzta in presentz, solvenda in futuro,

1Mannes v. Henry, 96 Ala. 454; Davidson v. Burke, 143 Ill. 139.
2* p. 198.
DISCHARGE OF CONTRACT. 433

and cannot be released, unless by an instrument under seal,
or an agreement founded upon sufficient consideration.

In this State, in Campbell’s Estate,’ where a testator
had directed certain notes, which he had taken from a
favorite nephew to be destroyed, and they had not been
destroyed but handed after his death to his executor, who
was the maker of the notes, it was held that the execu-
tor should charge himself with the amount of those notes ;
Chief Justice Gibson saying: ‘‘The notes in question could
have been discharged only by a sealed release, or a parol
gift of them. . . . A gift is a contract executed ;
and, as the act of execution is delivery of possession,
it is of the essence of the title. It is the consummation
of the contract which, without it, would be no more than
a contract to give, and without efficacy for the want of
consideration. When the note itself is surrendered, it is
operative to discharge the obligation, because it then
becomes a gift.”

Il. Dtscharge of contract by novation.

A new contract, either wholly, or in part, different from
the original one may be substituted, either expressly or
by implication. If nothing is said about the old con-
tract and the terms of the new are inconsistent, either as
to subject or by the substitution of a new party, this will
amount to an implied waiver of the original contract. A
mere postponement, however, of the time of performance,
or a change of place, is not evidence of an intention to
substitute a different agreement.

In the case of Ogle wv. Earl Vane,’ an action was
brought to recover the difference between the price at

17 Barr Ioo.
2. R. 2 QO. B. 275. See also Kendrick v. Visage, 88 Ga. 275; Stiff v. Fisher,
2 Tex. Civ. App. 346; Cornish v. Suydam, 99 Ala. 620; Huckenstein v. Kelly &

Jones Co., 152 Pa. St. 631; Van Syckle v. O’Heran, 50 N. J. Eq. 173; Anderson
v. Moore, 145 Ill. 61; Maher v. Lumber Co., 86 Wis. 530.

28
434 LAW OF CONTRACTS.

which the defendant had agreed to sell the plaintiff
certain iron and the price which the plaintiff was com-
pelled to pay for the iron in the market upon the failure
of the defendant to deliver it at a time subsequent to
the date at which under the contract he was bound to
deliver it. The plaintiff alleged and proved that he had
waited for the time when the iron should have been
delivered under the contract till the time he went into
the market to buy, at the request of the defendant, who
wanted a further time to make his deliveries in. The
price of iron in the market had continued to rise all the
time, and it was held that the plaintiff could recover the
difference between the contract price and the price at the
time when he bought, which was considerably greater
than the amount which he would have recovered had he
been confined to the difference between the contract
price and the price at the time agreed for delivery. The
defence was that the contract was broken at the time of
the failure to deliver according to the contract, and that
the measure of damages must be fixed by the difference
between the contract price and the market price at the
time of the breach, unless there was a new contract by
what had occurred between the parties in regard to the
postponement of the time of delivery, and that if there
was such a new contract then, it being a verbal con-
tract, it could not be enforced under the Statute of
Frauds. Chief Justice Blackburn, in delivering the
opinion, said: “This distinction between waiting and
(not) binding one’s self to wait, is the same as that
between a mere license and a-contract; or as that
between giving time to a principal by mere for-
bearance, and binding one’s self for a good considera-
tion to give time, in which latter case only is the surety
released.” ?

1See, also, the opinion of Lush, J.
DISCHARGE OF CONTRACT. 435

The same point was decided in McCombs v. McKennan.*
There the plaintiff agreed to deliver 200 bushels of
clover seed at the borough of Indiana, or the city of
Pittsburg, or one hundred at each place, for a certain
price per bushel. After some fifty-five bushels had been
delivered at Pittsburg, the defendant said he would
accept the rest at Indiana, and the same was delivered
there. He paid for part of it, but did not pay for all of it.
The plaintiff then took the seed away, sold it for a lower
price, and sued the defendant for the difference. The
agreement having been under seal, an action of covenant
was brought on the original contract, and the Court below
held that this was proper. This was assigned for error,
the ground being that the original contract had been
varied by the agreement: of the parties that the seed
should be delivered at Indiana instead of Pittsburg.
The Court below was affirmed, however, Judge Sergeant
saying : “We think, however, the true principle is stated
in the charge of the Court, that this was not so much
an alteration of the original contract, as a waiver or dis-
pensation on the part of the defendant, of certain things
to be done by the plaintiff, which were conditions pre- |
cedent to be performed by him. If a party agrees to
accept the thing to be delivered at another time or place
than that stipulated, a performance of this by the other
party is equivalent to a performance of the original
undertaking. It imposes no new duty on the de-
fendant: he merely accepts as performance by the
plaintiff that which would not otherwise have been so;
and the defendant’s liabilities on the original contract
remain the same.” The discharge of a contract by
the substitution of another agreement, different in its
terms, is illustrated in the case of Rogers v. Rogers &

12W. & S. 216. See also Van Stone v. Mfg. Co., 142 U.S. 128.
436 LAW OF CONTRACTS.

Brothers.‘ In this case there had been a contract to
sell certain silverware at a certain price. After part
of it had been delivered, the seller refused to deliver
any more unless he was paid a higher price, to which
the buyer consented. The goods were delivered and
paid for, and the seller was sued for a breach of the
original contract, and it was held that the original
contract had been discharged by the substituted agree-
ment. The same point was decided in the case of
Teal v. Bilby.?

The original contract may be discharged by the sub-
stitution of a new party in place of one of the parties
in the contract. This is a novation, and has been
described in the previous chapter. This mode of dis-
charging the liability under a contract has been applied
in England and some of the States in this country to
effect the discharge of a retiring partner, where a credi-
tor, after receiving notice that one member of a firm
with which he has been dealing has retired and the
business will be carried on by the other members, con-
tinues to deal with them; it has been held that he
thereby accepts the liability of the continuing partners
for the debts of the old firm, as well as of the new, and
relieves the outgoing partner from any liability. This
is what was decided in the case of Hart v. Alexander,
and this rule has been followed by a number of ‘cases
in this country; but it has been decided in this State,
in the case of Walstrom v. Hopkins,‘ that in order to

1139 Mass. 440. See also King v. Faist, 161 Mass. 449; Telfener v. Russ, 60
Fed. 228; Bascom v. Cannon, 158 Pa. St. 225; Tingley wv. Fairhaven Land Co.,
9 Wash. 34; Haines v. Stillwell, (Cal.) 40 Pac. 332; Hayes v. Orr, 47 Fed. 286;
Bray v. Loomer, 61 Conn. 456; Richardson v. Moyer, 155 Pa. St. 174; Cornish
v. Suydam, 99 Ala. 620; Stix v. Roulston, 88 Ga. 743; Greene v. Paul, 155 Pa.
ms eee S. 572.

32M. & W. 484.
4103 Pa. St. 118.
DISCHARGE OF CONTRACT. 437

sustain a promise to look to continuing partners exclu-
sively, there must be some consideration for that promise
on the part of the debtor.

The facts in these two cases were these: In the first
case, Hart v. Alexander, the plaintiff who resided in Eng-
land had deposited money from time to time with a firm
of bankers in India. The defendant had retired from
that firm some years before the action was brought, and
the Court held that the evidence was sufficient to affect
the plaintiff with notice that he had retired. The plain-
tiff thereafter continued to do business with the new
firm, into which a new member had been admitted, and
when they failed sued the defendant for the deposits
which he had placed there and which had been there
since before the defendant had retired. It was held that
he could not recover, Baron Parke saying: “I apprehend
the law to be now settled, that if one partner goes out
of a firm, azd another comes in, the debts of the old firm
may, by the consent of all the three parties—the creditor,
the old firm, and the new firm—be transferred to the
new firm.” Now this case, though it is usually cited
as the leading case for the rule that where a creditor
consents to looking exclusively to the remaining partners,
where one has retired, such an agreement discharges the
out-going partner, had this additional element: that a
new partner was admitted whose liability may have been
an inducement to the creditor to give up any liability
of the retiring partner.

In the case in this State, Walstrom v. Hopkins,’ the
affidavit of defence was that the plaintiff had agreed to
look to the continuing partner, in a case where one of
the partners had retired and no one had been admitted,
but it contained no allegation that there was any

1 103 Pa. St. 118. See also Morrison v. Kendall, 6 Ind. App. 212; Hellman v.
Schwartz, 44 Ill. App. 84.
438 LAW OF CONTRACTS.

consideration averred for this undertaking on the part
of the plaintiff, and it was held to be insufficient as setting
up a contract without consideration; and it seems to be
more in accordance with the principles than the English
tule, if that rule be in accordance with the construction
that is generally placed upon the case of Hart v. Alex-
ander.’

ITI. Discharge of contract by proviston in the contract
ztself.

This occurs: (1) Where the contract provides that it
may be determined at the option of one of the parties
upon the non-fulfillment of any of its provisions; (2)
Where it is provided in the contract that upon the hap-
pening of certain events the contract shall be deter-
mined; and (3) Where it contains a provision that one
of the parties may determine it upon doing certain things.

1. The option may be given to determine the contract.
upon the happening or non-happening, of a certain
event. A common illustration of this occurs in the
case of a sale, where goods are sold to be returned if
found not to have certain characteristics, or not to come
up to certain standards; and the leading case on the
subject is Head v. Tattersall.? In this case the plaintiff
bought a horse from the defendant warranted to have
been hunted with the Bicester hounds, and it was part
of the contract of sale that if the horse did not come
up to the description, the plaintiff could return him any
time within two days. The plaintiff was told by one
of the stablemen before he took the horse away, that
the horse had not been hunted with the Bicester hounds,
and this was true as a matter of fact. The man who

1See on this subject the cases collected in 1 Smith’s Leading Cases, p. 654,
note to Cumber v. Wane.
21. R. 7 Exch. 7.
DISCHARGE OF CONTRACT. 439

told him this was not in the employ of the defendant.
The plaintiff took the horse away and he was injured,
by no fault of his, and he returned it within the two
days, and sued to recover what he had paid for it. It
was held that the right of rescission existed, and that
the plaintiff could recover the price he had paid.

2. The discharge of a contract may be by the occur-
rence of an event specified in the contract itself. In this
case the contract is determined or modified, as the case
may be, by the happening of a subsequent event which
the contract provides shall determine or modify it, if it
happens. The commonest instance of this is the condi-
tion introduced into an ordinary bond. In an ordinary
bond a man binds himself to pay a certain amount of
money. ‘The condition is that if a certain thing hap-
pens the bond is to be null and void, otherwise to
remain in full effect. The excepted risks in a charter
party is another instance. In charter parties it is
usually stipulated where the vessel is to sail from and
the place to which she is to sail, and then follows the
clause which excepts certain things, such as fire, acci-
‘dents, the acts of Ged, dangers of navigation, etc. When
one of these excepted risks occurs it releases the person
who was otherwise under obligation to perform the con-
tract, either wholly or in part, to the extent with which
it interferes with the performance of the contract.

In the case of Geipel v. Smith,’ the defendants agreed
that their vessel should go to a certain place, and load
with coal and then proceed to some other port, “the
restraint of princes and rulers excepted.” War having
broken out between the country where the port of destina-
tion was and another country, that port was blockaded,
and it was therefore impossible to perform the contract,
and it was held that the vessel was not bound even to

1L. R. 7 Q. B. 404.
440 LAW OF CONTRACTS.

load with coal, and the owners could not be held respon-
sible for her refusal to do so.

Another very common illustration oceurs in the case
of all carriers, who are responsible except for the acts of
God and of public enemies.‘ What is meant by the
“act of God” has been the subject of many decisions and
considerable discussion.? There seems to be two things
reasonably well settled: First, that there must be no
human agency involved in the act, otherwise it will not
be considered the act of God; and, secondly, though as to
this the cases are more conflicting, it would seem to mean
an extraordinary violence of nature. Among the cases
cited in the note I referred to is Colt & Colt v. McMachen,3
in which it was decided that a sudden failure of wind, by
which a vessel was stranded, was the act of God. This
is certainly in conflict with those cases which hold that
an act of God means some extraordinary violence of
nature.

The case of Nugent v. Smith,‘ was a case of this kind:
The defendant was a carrier, and received a horse from
the plaintiff to be carried from London to Aberdeen. The
voyage was rather rough, and the horse was injured with-
out any negligence on the part of the defendant’s servants,
but because of the rough weather which frightened it and
caused it to struggle. It was held that the defendant was
liable. And in the opinion of the Court, Mr. Justice
Brett adopts the principle laid down, and which I have
already cited, in the American note to Coggs v. Bernard,
saying: “The best form of the definition seems to us to
be that the damage or loss in question’ must have been
caused directly, and exclusively, by such a direct and

1See note to Coggs v. Bernard, 1 Smith’s Leading Cases, p. 422, last ed.
2 The cases will be ‘found collected in Coggs v. Bernard, 1 Smith’s Leading
Cases, p. 422, last edition, commencing on p. 430.

3 2 Johnson 160.
4L. R.1C. P. Dz. 19.
, DISCHARGE OF CONTRACT. 441

violent and sudden and irresistible act of nature as the
‘defendant could not by any amount of ability foresee
would happen, or, if he could foresee that it -would
happen, could not by any amount of care and skill resist,
so as to prevent its effect.” ‘This judgment was reversed
in the Court of Appeals,’ Chief Justice Mellish saying,
in delivering the opinion of the Court: “I think, how-
ever, that in order to prove that the cause of the loss
was irresistible, it is not necessary to prove that it was
absolutely impossible for the carrier to prevent it, but
that it is sufficient to prove that by no reasonable precau-
tion under the circumstances could it have been pre-
vented.” But the real ground of the reversal was this:
‘The Court below held that as the weather was not rough
enough to say that the accident had been caused by the
act of God, and as it was not clear that the struggles of
the animal were caused by any inherent viciousness, that
therefore they had shown neither an act of God, nor a
defect in the thing carried, such as to excuse the carrier.
‘The Court above held that though the carrier could not
show either of those things so as to excuse him upon
either ground, yet if he could show enough of each, so
that no reasonable precaution on his part could prevent
what had occurred, then he was excused.”

3. A contract may be discharged where it contains
a provision giving either party the right to determine it
upon certain terms. For instance, giving to either party,
where the contract is a continuing one, as is the case of
service, the right to end it upon giving notice. In
| England, in the case of menial service, a term is implied
in the contract that it may be terminated upon thirty
days’ notice, but there is no such rule in this country.

1L.R.1C. P. D. 423. ;

2 For other cases on the meaning of ‘an act of God,” see Lang v. Penna. Ry.
Co., 154 Pa. St. 342; Richmond & D. Ry. Co. uv. White, 88 Ga. 805; Adams
Express Co. v. Jackson, 92 Tenn. 326.
442 LAW OF CONTRACTS.

Having considered the different ways in which the obli-
gations of a contract may be discharged by the agreement
of the parties, I come now to consider in what form this
agreement of the parties may be embodied. Of course,
where the provision exists in the contract itself, there is
no place for such an inquiry because the form in which
the contract, making the obligation, is expressed, also
contains the provision which enables the parties to
terminate the contract. The general rule is that a
contract may be discharged in the same form as that in
which it is made, that is, if the contract is made under
seal it must be discharged by an instrument under seal.
If the contract is required to be in writing, it must be
discharged by a contract in writing.

In Muston v. Gladwin,’ a lessee of buildings covenanted
to insure and keep insured such buildings in the joint
name of himself and the lessor. He then had the
buildings insured in his own name, showed the policy to
the lessor, who approved of it, and subsequently took rent
from him. ‘This continued until the lessor assigned the
reversion, when the assignee brought an ejectment for a
forfeiture by reason of a failure to keep the property
insured in the joint name of the lessee and the lessor,
and it was held that he could recover. The Court said:
“That it (the covenant) has been broken is unquestion-
able; but the present landlord is said to be bound by the
act of the former, who gave the defendant to understand
that he should not require the performance of the covenant,
but was satisfied with the substitution of a different mode of
insuring. ‘The case was likened to Pickard v. Sears, 6 A. &
E. 469, and to some others, where it was held that a party
may by his conduct so mislead another, and so affect his in-
terests, as to deprive him of the right tocomplain of what was.

16 A. & EH. (N. §&.), 945: See also Moses v. Loomis, 55 Ill. App. 342; Heisen v..
Heisen, 145 Ill. 658.
DISCHARGE OF CONTRACT. 443

afterward done under an impression which he himself had
produced. . . . It seems, however, sufficient to observe that
no case has gone to the length of intimating that a breach of
covenant can be justified by a parol license to break it. This
would be to confound well established legal principles.”
In Canal Company v. Ray,’ it was held that a contract
under seal providing the particular location for a gate and
slide gauge for a canal might be subsequently changed by
parol, Judge Strong saying: ‘Notwithstanding what was
said in some of the old cases, it is now recognized doctrine
that the terms of a contract under seal may be varied by a
subsequent parol agreement. Certainly, whatever may
have been the rule at law, such is the rule in equity.”
And in Le Fevre v. Le Fevre,’ parol evidence was held
to be admissible to show that a change in the location of
a road to be laid out under the provisions of a sealed
instrument, but it was said: “ A party may be admitted
to prove by parol evidence, that after signing a written
agreement the parties made a verbal agreement, varying
the former; provided their variations have been acted
upon, and the original agreement can no longer be
enforced without a fraud on one party.” Here, as in the
case in the United States Court just cited, the decision
was placed upon an eguztable ground. The agreement
must have been carried out or it would not amount to a
discharge or variation of the sealed instrument. And if
this be the true ground upon which such a discharge is
sustained, it is in effect like the case of a postponement
of time or a change of place by parol, which has been held '
not to be admissible as evidence of an agreement to dis-
charge, but to be admissible as evidence of a substituted
performance.3 The general current of authorities in this

1ror U. S. 522.
248. & R. 241.
3Rucker v. Harrington, 52 Mo. App. 481.
444 LAW OF CONTRACTS.

country is to allow an instrument under seal to be varied
or discharged by a parol agreement which has been
executed." Where a contract is not under seal and is
executory, it may be changed or abrogated by the agree-
ment of the parties, and the new mutual promises, or the
abandonment of the old ones are sufficient consideration.’
Where, however, the contract is required to be in writing
by the Statute of Frauds, the better opinion is that the
agreement to alter or rescind must also be in writing.?

In Cuff e¢ al. v. Penn,‘ there was a written contract for
the sale of a certain number of hogs to be delivered at a
certain time, the purchaser requested the seller to post-
pone the time of delivery as things were dull. The seller
did this, and then after a reasonable time, offered the hogs
to the buyer, who refused totakethem. He then sued on
the contract and it was held that he could recover; that
the parol agreement did not change the contract, but was
a dispensation of the time of delivery, and it was consid-
ered by Lord Ellenborough to be a substituted perform-
ance. However, in Noble wv. Ward,*® where there were
precisely a similar set of facts, except that the delivery
which was made would have been a compliance with either
the earlier or later time. It was held that the subsequent
parol agreement could not in any way, and did not, affect
the contract required to be in writing by the Statute of
Frauds. But where the parol contract which varies the
contract required to be in writing by the Statute of Frauds
has been actually carried out, there is a good discharge
of the original contract.®

! Anson on Contracts, * p. 268 , note 2. See also Voege uv. Ronalds, 83 Hun
x14; Benson v. Shotwell, 103 Cal. 163.

2McNish v. Reynolds, 95 Pa. St. 483.

3 Swain v. Seamens, 9 Wallace 254. See Blagborne v. Hunger, ror Mich.
375-

41M. &S. 21.

51, R. 2 Exch. 135.

* Norton v. Simonds, 124 Mass. 19.
CHAPTER XIV.
DISCHARGE OF CONTRACT BY PERFORMANCE.

Where each party to a contract has done all that he is
under obligation to do according to the terms of the con-
tract, that contract is discharged, and it is discharged by
performance. Where the consideration has been an exe-
cuted consideration, that is, where one party has promised
to do something, by reason of something already done at
his request by the other party, as soon as he performs his
promise the contract is discharged. Where, however, the
contract is executory on one side, then the performance by
one party coupled with a partial or total failure of per-
formance by the other party, does not necessarily dis-
charge the contract. There has been a breach of the
contract by the one party’s partial or total failure to
perform, which gives to the other party a right of action.
Whether the contract in such a case is discharged or not,
will be considered when we come to treat of the discharge
of contracts by breach. We are now concerned with the
discharge of contract by performance.

ln order that performance may discharge a contract, such
performance must be tn accordance with the terms of
the contract.

In Haldane v. Johnson,’ it was decided that in an action
of covenant for the non-payment of rent under a lease, a.
plea that the defendant was on the premises and ready
and willing to pay the rent the day that it was due, was
not a good plea, because under such a lease, no place

18 Exch. 687. See Schriner v. Peters, 39 Ill. App. 309.
(445)
446 LAW OF CONTRACTS.

being mentioned for the payment of rent, it was the duty
of the lessee to seek the lessor and pay him, and, conse-
quently, not having complied with his contract, this was
not performance.

In Richardson v. Barnes,’ the defendant agreed to
deliver up a lease, the term in which had expired, and
when he came to deliver it he cut off the seal and
the question was whether this was a compliance with his
agreement. He gave upacancelled instrument instead
of a defunct instrument, and it was held that it was not a
compliance with his agreement.

In Danville Bridge Company v. Pomroy’ the rule is
thus stated by Judge Bell: ‘The defendant’s position
is drawn from the general rule, that an entire con-
tract must be performed in all its parts by him who claims
a counter-performance from the other contracting parties,
and if there be a failure in any particular, no recovery
can be had, however meritorious may be the claim pre-
ferred for services actually performed in furtherance of
the engagement. At one time, this rule was rigidly ad-
hered to, though the consequence was to bestow upon
one the advantages derived from the labor, time and
money of another; because, it was supposed, an insuper-
able technical difficulty forbade a division of the subject
of the contract. Mutual covenants, like those which
exist here, were treated as necessarily entire; and as
performance on one side was regarded as a condition
precedent to a demand for performance on the other,
nothing short of a perfect discharge of every part of the
undertaking was accepted as a sufficient fulfillment of
the condition. This was peculiarly so when the contract
was for the execution of a task, involving skill and labor
on one side, to be compensated by payment in money,

14 Exch. 128.
215 Pa, St. 151.
DISCHARGE OF CONTRACT. 447

or other valuable thing, on the other. And it is still
the general rule which governs the remedy upon entire
contracts, as shown by Shaw v. Turnpike Company, 2 Pa.
St. 454; Alexander vw. Hoffman, 5 W. & S. 382, and other
cases.

“But the injustice inflicted in practice, by a liberal
application of it in all cases, long since introduced an
exception to, or rather modification of, a principle, which,
however perfect in theory, was found to work harshly in a
large variety of instances. That modification was, perhaps,
first recognized in Boone v. Eyre, 1 H. Bl. 273, note a;
and is thus stated in Liggett v. Smith, 3 Watts 331,
where it was approved and applied. A mutual or de-
pendent covenant, which goes but to a part of the con-
sideration on both sides, and whose breach may be’
compensated in damages, is to be treated exactly as if
it were separate and independent. Its non-performance
will not, necessarily, bar the entire right of the plaintiff.
So, too, a covenant which is in form entire, but in truth
embraces a variety of acts, more or less essential to the
whole performance, may be discharged as to sustain an
averment of performance, though a literal compliance
cannot be alleged: Wilhelm vw Caul, 2 W. & S. 26;
Preston v. Finney, id. 53, and Chambers wv. Jaynes, 4 Barr
39, are examples of this. Each of them proceeds upon
the ground that, where a party, acting honestly, and
intending to fulfill his contract, performs it substantially,
but fails in some comparatively unimportant particulars,
the other party will not be permitted to enjoy the fruits
of such imperfect performance, without paying a fair
compensation according to the contract, receiving a credit
for any loss or inconvenience suffered. And, perhaps, it
may be asserted, that where a thing is so far perfected
as to answer the intended purpose, and it is taken pos-
session of and turned to that purpose by the party for
448 LAW OF CONTRACTS.

whom it is constructed, no mere imperfection or omis-
sion, which does not virtually affect its usefulness, can be
interposed to prevent a recovery, subject to a deduction
for damages, consequent upon the imperfection complained.
of. Of course, the indulgence is not to be so stretched
as to cover fraud, gross negligence, or obstinate and wilful.
refusal to fulfill the whole engagement, or even a volun-.
tary and causeless abandonment of it.”

It is well to bear in mind, however, that some of the
cases, in fact most of the cases mentioned in the opinion.
of the Court in the citation just made, are cases of dis-
charge of the contract by breach and a remedy given for
work done by an action on the quantum meruzt. Cases.
of this kind will be considered later on. ‘Though the
performance must be strictly according to the contract in
order to discharge the latter, yet a substantial performance
is equally effective where agreed upon, as a postponement.
of the time of delivery, or a change of place.* This is
not a new contract, but a mere agreement as to a substi-
tuted mode of performance. Where the delivery under
the agreement is tendered in the mode specified,
that is, at the time and at the place the contract calls
for, and the other party is not ready, then the contract is
discharged.

In Case uv. Green,’ there was an agreement to pay the
amount of an execution, which the plaintiff held on cer-
tain goods of the defendants, by the delivery at a certain
place and at a certain time of a certain number of scythe
snaths and rakes. They were tendered at that time and
the plaintiff was not there to receive them, and he turned
around and sued on the contract, and judgment was given
for the defendant and affirmed on appeal. Where the
time and place of performance are provided for in the

1 See cases cited in preceding chapter. |
*5 Watts 262.
DISCHARGE OF CONTRACT. 449

contract, performance must be at that time and place or
else the contract is not discharged.

In Millard v. Morse," the defendant agreed to deliver a
lot of hemlock bark at a certain time and place, in con-
sideration for which the plaintiff agreed to pay him so
much and give him acertain amount of goods in part
payment. He did not deliver it at the place where he
agreed to deliver it under the contract, that is, “on good
wagon roads,” but cut it and left it in the woods, and it
was held that on an action brought by the plaintiff for the
price of the goods advanced him, the plaintiff could re-
cover, Judge Strong saying :

“Tt was an entire contract, and substantial performance
on his part was necessary, in order to give him any cause
of action against the plaintiff. A partial performance was
no better for such a purpose than no performance at all.
Had the plaintiff received the bark, though not on wagon
roads, the defective performance might have been the
subject of compensation; but the jury have found that
he did not. There was, therefore, no delivery ; and con-
sequently, no transmission of ownership from the defen-
dant to the plaintiff. The contract fixed the place of
delivery, and the plaintiff was under no obligation to re-
ceive the bark elsewhere. The Court, therefore, properly
instructed the jury, that the defendant was entitled to no
allowance for anything that he had done under his bark
contract.”

Place of performance.

Where no place is stipulated for the delivery of the
article, or for the performance of the contract, the rule as
to what the duty of the person who is to perform the con-
tract is, varies.

In Barr wv. Myers,’ which was the case of a sale of trees,

132 Pa. St. 506.
43, W. & S. 295. See also Yockey v. Norn, ror Mich. 193.

29
450 LAW OF CONTRACTS.

Judge Sergeant says: “The rules that regulate the de-
livery of portable articles, which are contracted to be sold
and delivered, vary according to the nature of the contract.
If by the contract neither time nor place of performance
is stipulated, but they are deliverable on demand, then the
general rule is, that the articles sold are to be delivered at
the place where they are at the time of sale—such as the
store of the merchant, the shop of the manufacturer or
mechanic, and the farm or granary of the farmer, at which
they are deposited or kept. And the reason is, that the
party to receive is to be the actor, by going to demand the
articles; and till then the other party is not in default by
omitting to tender them. But the reverse is the case,
where, though the place is not fixed, the time on or before
which the vendor binds himself to deliver the articles is
stipulated ; for there the party to deliver must become the
first actor, in order to fulfill his contract. He must seek
out the vendee, at his residence, and there tender the
articles, to save himself from default. This distinction is
settled by various authorities. Goodwin v. Holbrook, (4
Wend. 380); Lobdell v. Hopkins, (5 Cowen 516); Roberts
v. Beatty, (2 Penn. 71); Chipman on Contracts, 29, 30;
2 Kent’s Com. 505. I speak of portable articles capable
of being conveniently carried from place to place, and ob-
viously so intended from their nature; for there may be
cases where, possibly, from the nature of the subject of
the contract, it might be otherwise—and in the case of
cumbersome articles, where the delivery is to be to the
vendee, the vendor must seek the vendee a reasonable
time before the day of delivery, to ask him to appoint
a place of delivery. Co. Litt. 210, b; Roberts v. Beatty,
2 Penn. 71; 2 Kent’s Com. 507. I am not aware of
any decided case which makes a distinction, when a
time is stipulated for the delivery of articles, between a
contract of sale and delivery, and a contract to pay a
DISCHARGE OF CONTRACT. 451

debt in certain articles; nor do I perceive the ground of
such distinction.”

Where the performance consists in the payment of
money, the debtor is bound to seek the creditor any-
where in the country and pay him when the money is
due, but he is not bound to seek him out of the country
or in any other State." Where a purchaser designates
a bailee or carrier to whom the goods are to be delivered,
or where the course of business is such that there arises
thereby what is equivalent to such a designation, then,
in either case, a delivery of the goods to such person
so designated is a delivery to the principal.

This rule, however, proceeds upon the theory that
the carrier is the agent of the person to whom the goods
are to be delivered, but if goods are delivered to the
master of a vessel under a contract of sale, anda
bill of lading is taken to the order of the consignor,
this does not amount to a delivery, because the goods
are in the possession of the master of the vessel, not
as a common carrier, but as the agent of a shipper.’

Shepherd v. Harrison,’ is an interesting case on the
subject of performance. In this case the plaintiff in
England sent an order to certain parties in Pernam-
buco to buy a certain amount of cotton for him. The
cotton was bought by them and shipped in the defend-
ant’s vessel and the invoice was made out: “ Shipped
on account of, and at the request of the plaintiff,” but
the bill of lading was made deliverable to the shipper
or order, and by him endorsed to his own agent, and
sent, together with a draft on the plaintiff, to that
agent. The invoice was sent directly to the plaintiff.
‘The agent sent the bill of lading with the draft asking

1 Allshouse v. Ramsay, 6 Wharton 330.
2 Wait v. Baker, 2 Exch. I.
8L. R. 4 Q. B. 196.
452 LAW OF CONTRACTS.

them to accept it. They kept the bill of lading and
returned the draft without accepting it. They then
presented the bill of lading to the defendant who refused
to deliver the cotton, but delivered it to the agent of
the shipper under a duplicate bill of lading. The Court
held that the defendant was right in refusing to deliver
and said: “All that can be said is, that a consignor
who sends a cargo to England, and draws bills of ex-
change on his consignee, and makes over his right to a
third party, had a right to retain the bill of lading until
the bill of exchange had been accepted; and, until the
bill is accepted, it would be the duty of the third party
not to hand over the bill of lading, because the endorse-
ment of the bill of exchange and the handing of the
bill of lading to him is putting the third party in the
place of the original party, the consignor.”’

Time of performance.

Where no time is fixed, a reasonable time is intended.
In the case of a sale of property where no time is
stipulated for the delivery, in order to discharge a con-
tract by performance, the goods must be delivered with-
out unnecessary delay at the place where they are at
the time of sale. If they are to be sent somewhere else,
then they must be sent within a reasonable time; or if
they are actually to be delivered at a certain place, they
must be sent within a reasonable time to that place."
In Ford v. Cotesworth,? a charter party provided that a
ship should go to, or as near to, a certain port as she
could get and deliver her cargo in the usual and customary
manner, but was silent as to the time to be occupied

1 Hoffman v. Bloomsburg & S. R. Co., 157 Pa. St. 174; Weld v. Barker, 153
Pa. St. 465; Lawrence v. M., L. S. & W. R. Co., 84 Wis. 427; Sivers v. Sivers,
97 Cal. 518; Biddison v. Johnson, 50 Ill. App. 173; Fort Wayne Elec. Light Co.
v, Miller, 131 Ind. 499.

7L. R. 4 Q. B. 127.
DISCHARGE OF CONTRACT. 453

in the discharge of the cargo. While the vessel was
unlading, the town was being threatened with bom-
bardment, and the authorities refused to allow any more
of the cargo to be discharged. It was held that the ship-
owner would have to bear this loss and that the charterer
was not responsible to him. In giving the opinion of the
Court, this principle was laid down by Justice Blackburn:
““We have come to the conclusion that the plaintiffs are
not entitled to recover. The question depends upon what
the contract implied by law is, where there is a charter
party silent as to the time to be occupied in the discharge.
We agree that whenever a party to a contract undertakes
to do some particular act, the performance of which de-
pends entirely on himself, so that he may choose his
own mode of fulfilling his undertaking, and the contract
is silent as to time, the law implies a reasonable time
to do it under the circumstances. And if some unfore-
seen cause, over which he has no control, prevents him
from performing what he has undertaken within that
time, he is responsible for the damage. But where the
act to be done is one in which both parties to the con-
tract are to concur, and both bind themselves to the per-
formance of it, there is no principle on which, in the
absence of a stipulation to that effect, either expressed
by the parties, or to be collected from what they have
expressed, the damage arising from an unforeseen im-
pediment is to be cast by law on the one party more
than on the other; and consequently we think that what
is implied by law in such a case is, not that either
party contracts that it shall be done within either a
fixed or reasonable time, but that each contracts that
he shall use reasonable diligence in performing his part.
It is on the application of this principle to a charter party
that the present question depends. We think that deliv-
ering cargo is as much the duty of the shipowner as .
454 LAW OF CONTRACTS.

of the merchant; and consequently that the contract, im-
plied by the law, in the absence of any stipulation, in a
charter party, is that each party shall use reasonable
diligence in performing his part of the delivery at the
port of discharge, the merchant being ready to receive in
the usual manner, and the owner by his captain and crew
to deliver in the usual manner. So that there is no con-
tract implied by law on the part of the shipowner to allow
his vessel to be kept there for the usual time, if by rea-
sonable diligence on the part of the merchant, the cargo
might be sooner taken away, and no contract implied by
law on the part of the merchant to take the cargo out
within such usual time, if he could not by reasonable
diligence perform it; though very commonly there are
stipulations to that effect.” Even though the contract is
in writing, if no time is mentioned, what is a reasonable
time must depend upon all the circumstances of the case.
But where there is no dispute about the facts, it is a
question for the Court to determine.*. Where a contract
requires something to be done on or before a certain day,
the man has the whole of the last day to do it in,’ or,
perhaps, if it is the delivery of goods, and daylight is
required for the inspection, he has only until dark. If
he does not deliver them on the last day it is not a
performance of the contract.

In Cleveland & Co. v. Sterrett,ta man agreed to deliver
a certain amount of oil “any time between July 1 and
December 1,”’ the plaintiff giving ten days notice at his
option. The plaintiff did not give any notice and the
defendant was not ready to deliver the oil until after

1See Benjamin on Sales, * p. 675, note 7.

?Placer Mining Co. uv. Schreiner, 14 Mont. 121; San Gabriel Land & Water
Co. v. Dennis, (Cal.) 34 Pac. 441; Zz ve Zech’s Estate, 15 Pa. Co. Ct. R. 622, 4
Pa. Dist. R. 250.

3Klieforth v. Slate, 88 Wis. 163.

470 Pa. St. 204.
DISCHARGE OF CONTRACT. 455

December 1. It was held that the plaintiff could recover
back that part of the purchase money which he had
prepaid on account of the oil. Where the word ‘‘month”
is used in mercantile transactions it means the calendar
month and not a lunar month.’ So where anything is to
be done within a certain number of days, and the last day
falls on Sunday, it is sufficient if it is done the next day.”

In Mark’s Executors v. Russell,’ a rule to plead within
ten days expired on Sunday, and it was held that a plea on
Monday was in time, and this case also decides that in
counting the time from a day toa day, the first day is to be
excluded,‘ but Sunday is to be counted as one of the con-
secutive days where it is not the lastday.s This question
is now, as to all things to be done under law, a rule of court
regulated by the Statute of the twentieth of June, 1883.°
This excludes the first day and includes the last, except
when it falls on Sunday or a legal holiday; but the act
makes the proviso not applicable to commercial paper,
which, when it falls due on Sunday, is payable the day
before. Where time is of the essence of the contract, the
same rule is applicable to it in equity as at law.

In Hewson wv. Paxson,’ the Supreme Court of Pennsyl-
vania say: “Time is not generally of the essence of a
contract, but may be made so by express agreement, or
plainly indicated by the attending circumstances: D’Anas

1 Thomas v. Shoemaker, 6 W. & S.179. See Parker v. State, (Tex.) 29 S.
W. 480.

2 Spencer v. Haug, 45 Minn. 231; Monroe Cattle Co. v, Becker, 147 U. S. 47;
Johnson v. Merritt, 50 Minn. 303; Morgan v. Perkins, 94 Ga. 353; Holbrook v.
Ins. Co., 86 Iowa 255. But see State ex vel. Kerr v. Sheehan, 55 Mo. App. 66;
Miner v. Tilley, 54 Mo. App. 627; Williams v. Lane, 87 Wis. 152; Hermann zv.
U. S., 66 Fed. 721; Johnson v. Meyers, 54 Fed. 417, 4C. C. A. 399.

3 40 Pa. St. 372; Gray v. Worst, (Mo.) 31 S. W. 585.

4Stroud v. Water Co., 56 N. J. Law 422; Klein v. Tuhey, (Ind.) 4o N. E. 144;
Bates v. Howard, 105 Cal. 173; Weld v. Barker, 153 Pa. St. 465.

5 But see Campbell v. Cook, 92 Mich. 626; State v. Harris, 121 Mo. 445.

6P. L. 136.

736 Legal Int. 308.
456 LAW OF CONTRACTS.

v. Keyser, 2 Casey 249; Shaw v. Turnpike Company, 2
P. & W. 454. Where time is made the essence of the
contract, equity will not grant relief against an omission
to pay or to perform on the day;” citing a number of
cases.’

» As to quantity in the performance of a contract.

The vendor does not comply with his contract by the
tender or delivery of either more or less than the exact
quantity contracted for, or by sending the goods mixed
with other goods.’

In Hart v. Mills,3 where an order had been given for
two dozens of wine, and four dozens were sent, it was
held that the buyer need not take any; and the same
thing was repeated in Cunliffe v. Harrison,* where fifteen
hogsheads of claret were sent, ten only having been
bought. It was held that the buyer was not bound to
pick out his ten. |

Levy v. Green’ is a very interesting case. It is an
action for goods sold and delivered, and on the trial it
was shown that the defendant ordered of the plaintiff
certain specified quantities of particular kinds of crockery,
to be sent to him by railway. The plaintiff sent a crate
containing a smaller quantity of the particular goods,
and some other kinds not ordered, but of such a char-
acter as to be easily distinguishable from those that
had been ordered. He sent one invoice debiting the
defendant with the whole contents of the crate. The

1 Beverly v. Blackwood, 102 Cal. 83; Thorne v. French, 24 N. Y. Sup. 694,
4 Misc. Rep. 436; Morrison v. Wells, 48 Kan. 494; Beck & Pauli Lithographing
Co. v. Colorado Milling & Elevator Co., 52 Fed. 700, 3 C. C. A. 248, 10 U. S.
App. 465.

2 Benjamin on Sales, * p. 680.

315 M. & W. 85.

46 Exch. 903.

58 E. & B. 575. Seealso Whitla v. Moore, 164 Pa. St. 451.
DISCHARGE OF CONTRACT. 457

defendant refused to receive the goods, saying that they
were out of time, and it was objected that the defendant
was not bound to take any part of the goods because they
were accompanied by other goods not ordered. ‘Two of
the judges thought that the defendant was not bound to
accept because other goods had been tendered to him
besides those he had ordered, and two thought that he
was. The opinion of the judges who thought that the
defendant ought not to have the onus of separating the
goods forced upon him, was sustained in the Exchequer
‘Chamber.

In Downer v. Thompson,’ where 260 barrels of cement
had been sent to fill a contract for 250, it was held in the
Court below that this was not a good performance, and
this ruling was substantially recognized in the Court
above, though the case was reversed because the Court
above thought that it should have been left to the jury to
say whether or not the plaintiff had not intended to
deliver the 260 barrels for the same price that he was to
receive for the 250.

In Stevenson vw. Burgin,’ the plaintiff undertook to
deliver to the defendants 100 tons of oil-cake f. o. b. at
Philadelphia. He delivered 107 tons and took a bill of
lading for that amount which he endorsed and sent to the
defendants together with a bill for 107 tons. The
defendants declined to receive it and were sued. It was
held that the plaintiff could not recover. Judge Strong
in giving the opinion of the Court said: “That can be no
tender of specific articles which does not place the other
party in such a position that he has nothing to do but to
signify his acceptance in order to have the ownership of
the chattels vest immediately in him. If anything remains

12 Hill 136, and 6 Hill 208. See Shrimpton & Sons vy. Warmack, (Miss.) 16
So. 494.
“49 Pa. St. 36.
458 LAW OF CONTRACTS.

\

to be done with them, as, if they are to be separated from
a larger mass, before they could become the property of
the other party, there can be no tender or delivery until
such separation has been made; and this for the most
satisfactory reason. A tender of specific articles dis-
charges the obligation without being followed up as a
tender of money must be, and it vests the ownership of
the thing tendered instantly in him to whom the tender is
made, if he is under obligation to receive the article.
It was then no compliance with what he was.
bound to do in order to give him a right of action against
the defendants, nor was it a tender of compliance that the
plaintiff had on board the vessel a larger quantity of oil-
cake than the contract called for, since the one hundred
tons were not separated from the bulk.”
This statement of the law is somewhat qualified in
Lockhart v. Bonsall." In that case the defendant had
bought 5000 barrels of oil for his firm, to be delivered at
a certain time and after a certain notice, ‘in bulk cars or
bulk boats at Pittsburg.” He, at the same time, bought
5000 barrels of oil for himself on precisely the same
terms. Under the contract the buyer had an option to
select, under certain circumstances, another point of
delivery. He did this and the plaintiff tendered the
defendant who had bought the oil some 6000 barrels in
bulk in fulfillment of the purchase of the firm, and the
balance to be on his own contract. ‘The seller was under
no obligations to pump the oil from the car, and the jury
was instructed that the plaintiff could not recover for a
refusal to receive the oil and this judgment was reversed,
‘the Court saying: “If then the plaintiff offered in good
faith to deliver the petroleum, it seems to us that, under
all the circumstances of the case, they were not bound, in
order to make a valid tender, to set apart the precise

177 Pa. St. 53.
DISCHARGE OF CONTRACT. 459

quantity of petroleum called for by the contract, before
offering to deliver it.” |

This decision goes upon the ground that inasmuch as
the buyer would have had to pump the oil from the cars
in bulk, there was no more trouble cast upon him in
requiring him to pump out of a tank containing 6000
barrels than there would have been had the tank contained
the exact quantity called for by the contract; to wit, 5000
barrels. Of course, where the seller offers to deliver less
than the contract it is nota performance, and where the
delivery is to be made from time to time, a failure to
deliver the whole, gives the purchaser the right to return
that which he has already received.’

In Norrington v. Wright,’ the Court say, “ The seller
is bound to deliver the quantity stipulated, and has no
right either to compel the buyer to accept a less quantity,
or require him to select part out of a greater quantity ;
and when the goods are to be shipped in certain propor-
tions monthly, the seller’s failure to ship the required
quantity in the first month gives the buyer the same right
to rescind the whole contract, that he would have had if
it had been agreed that all the goods should have been
delivered at once.”

Questions have frequently arisen as to what amounts to
a performance, where a contract calls for the delivery of a
certain amount qualified by the words “more or less” or
“about” or some equivalent qualification, such as “A
thousand tons more or less,’ or, “ About a thousand
bags.” The rule on this subject is very clearly expressed
by Mr. Justice Bradley-in the case of Brawley v. United
States.3 He says: “ Where a contract is made to sell or

1 Brownfield v. Johnson, 128 Pa. St. 254.

27115 U. S. 188, see page 204.

396 U. S. 168. See also Jv re Keighley, 70 Law T. (N. S.) 155; Wheeler v.
Britton, 63 Hun. 628.
460 LAW OF CONTRACTS.

furnish certain goods identified by reference to inde-
pendent circumstances, such as an entire lot deposited
in a certain warehouse, or all that may be manufactured
by the vendor in a certain establishment, or that may
be shipped by his agent or correspondent in certain
vessels, and the quantity is named with the qualification
of ‘about’? or ‘more or less,’ or words of like import,
the contract applies to the specific lot; and the naming
of the quantity is not regarded as in the nature of a
warranty, but only as an estimate of the probable
amount, in reference to which good faith is all that is
required. In such cases, the governing rule is some-
what analogous to that which is applied in the descrip-
tion of lands, where natural boundaries and monuments
‘control courses and distances and estimates of quantity.

‘But when no such independent circumstances are
referred to, and the engagement is to furnish goods of
a certain quality or character to a certain amount, the
quantity specified is material, and governs the contract.
The addition of the qualifying words ‘about,’ ‘more or
less,’ and the like, in such cases, is only for the purpose
of ‘providing against accidental variation arising from
slight and unimportant excesses or deficiencies in
number, measure or weight.”

Payment.

Payment is frequently a form of performance of the
‘contract, and where it is, it discharges the contract. It is
thus defined by Mr. Anson:' “ Payment, then, is the
performance of a contract, whether it be a performance of
‘an original, or of a substituted contract, or of a contract
in which payment is the consideration for a forbearance
to exercise a right of action, which may have arisen from
the breach of an agreement.” The question often arises

1* p. 273.
DISCHARGE OF CONTRACT. 46

where payment is made by giving negotiable paper
instead of cash, whether that amounts to a performance
of the obligation by payment, or whether the negotiable
paper is merely taken on condition that it shall be con-
sidered performance if paid, or as collateral security for
the payment. The general rule, both in this country and
in England, is that the taking of the note of a debtor, or
of a third person, is not a discharge of an existing in-
debtedness or an existing obligation, unless it is agreed
to be.”

In the case of The Kimball,’ the rule is thus stated by
Mr. Justice Field: ‘By the general commercial law, as
well of England as of the United States, a promissory
note does not discharge the debt for which it is given
unless such be the express agreement of the parties; it
only operates to extend until its maturity the period for
the payment of the debt. The creditor may return the
note when dishonored, and proceed upon the original
debt. The acceptance of the note is considered as accom-
panied with the condition of payment. ‘Thus it was said,
as long ago as the time of Lord Holt, that ‘a bill shall
never go in discharge of a precedent debt, except it be
part of the contract that it should be so.’ Such has been
the rule in England ever since; and the same rule pre-
vails, with few exceptions, in the United States. The
doctrine proceeds upon the obvious ground that nothing
can be justly considered as payment in fact but that which
is in truth such, unless something else is expressly agreed
to be received in its place. That a mere promise to pay

13 Wallace 37. See also Combination Steel and Iron Co. v. St. Paul City Ry.
Co., 47 Minn. 207; Hanson v. Tarbox, 47 Minn. 433; Hartshorn v. Hartshorn,
(N. H.) 29 Atl. 406; Whiting v. Equitable Life Assurance Soc., 60 Fed. 197;
Hutchinson v. Hutchinson, (Mich.) 61 N. W. 60; Macomber v. Macomber,
(R. I.) 31 Atl. 753; Nash v. Meggett, 89 Wis. 486; Fitch v. Iron Nat. Bank,
145 N. Y. 498; Stewart Paper Mfg. Co. v. Rau, 92 Ga. 511; Mason v. Douglass,
6 Ind. App. 558; Sebastian May Co. wv. Codd, 77 Md. 293; Folsom .v. Ballou
Banking Co., 160 Mass. 561.
462 LAW OF CONTRACTS.

cannot of itself be regarded as an effective payment is
manifest.”

The same doctrine is repeated in League v. Warring
& Company,’ where the Court say: “The note of a third
person given for a pre-existing debt will only be con-
ditional payment unless there was an agreement that it
was to be absolute.”

In Hunter v. Moul,? the Court say: “‘ The mere accept-
ance, from a debtor, of his note, or the note of a third
person, in case of an antecedent indebtedness, in the
absence of a special agreement, must be considered as a
conditional payment or as collateral security, and the
debtor continues liable for his own debt in the event of a
failure of payment of the note thus given or transferred.”
A number of cases in Pennsylvania are cited as authority.
There has, however, been a distinction made where the
note of a third person is received at the time of the crea-
tion of the debt. This has been held to create a pre-
sumption of satisfaction of the debt. It is considered in
the cases which so hold as analogous, or as amounting in
substance toa buyer—one person gets the note and the
person who gives the note gets relief, the consideration
may be coming from the other side.

In the note to Cumber v. Wane,? it is said: “The
note of a third person will operate as an absolute and
immediate satisfactory discharge of the debt, if such be
the intention and understanding of the parties; and the
distinction on this part, as to the first presumption of
intention, is that where the notes of a third person are
accepted as payment at the time the purchase is made,
this is to be understood as an exchange or barter of the
thing purchased for the notes, and the notes are at the

185 Pa. St. 244; Walker v. Hatry, 152 Pa.-St. 1.
+98 Pa. St. 13.
* 1 Smith’s Leading Cases, 652.
DISCHARGE OF CONTRACT. 463

tisk of the purchaser,” and certain cases are then cited,
and also certain exceptions, as in the case of the forgery
of a note, or it is returned within a reasonable time, or
the concealment of the maker’s insolvency.’ This, how-
ever, is a presumption which may be rebutted by proof
that such was not the intention of the parties. The
whole subject is very carefully examined in McIntyre v.
Kennedy,’ where all the cases in this State up to the
present time are reviewed, and the rule as laid down in
the notes to Cumber v. Wane is adopted as expressing
the law on this subject. The Court say: “In the note
of Hare & Wallace to the case of Cumber v. Wane, the
result of the authorities on the point before us is stated
thus: ‘The note or bill of a third person may be given
by a debtor, and received by the creditor as collateral
security—as conditzonal payment, that is, to be a satisfac-
tion if and when paid—or as an absolute and immediate
satisfaction and discharge, and to be wholly at the risk of
creditor. Which of these three it will be depends entirely
upon the intention of the parties, to be derived from all
the circumstances of the case. The mere acceptance by
the creditor of a negotiable note of a third person makes
it but collateral security. If the note be taken as pay-
ment, that is ordinarily and prima face but conditional
payment. But the note will operate as an immediate and
absolute satisfaction and discharge of the debt, if such be
the intention and understanding of the parties, and such
intention is to be implied where the notes of a third
person are accepted in payment at the time the purchase
is made, for it is to be understood as an exchange or
barter, but where they are given for a pre-existing debt
the presumption is the other way, and nothing short of
an actual agreement, or some evidence from which a

1 Sebastian May Co. v. Codd, 77 Md. 293.
2 29 Pa. St. 448.
464 LAW OF CONTRACTS.

positive inference of discharge can be made, or proof of
fraud, will suffice.’ ”’*

But it is somewhat curious that there is no case in
Pennsylvania which decides that where the note of a
third person is taken for a debt contemporaneously
created, that it is presumed to have been taken in satis-
faction of that debt. It is true that in Bayard v. Shunk,’
a case which decides that the payment in the current notes
of an insolvent bank discharges a debt, it was said, speak-
ing of the transfer of bills or notes of the third party for
a debt, that ‘ Where the parties to such a transaction are
silent in respect to the terms of it, the rules of interpre-
tation are few and simple. If the securities are trans-
ferred for a debt contracted at the time, the presumption
is that they are received in satisfaction of it; but if for a
precedent debt, it is that they are received as collateral
security for it; and in either case it may be rebutted by
direct or circumstantial evidence.”

This was said by Gibson, C. J., and referred to by
Judge Woodward in the case of McIntyre v. Kennedy.
as amounting to more than a dzctum, though in reality.
it does not, because bank-notes are cash. There is also.
a dictum to the same effect in Bond wv. Aitkin,? where
Judge Sergeant gives the opinion. On the contrary, in
New York,° it is said’ in regard to this distinction, that
is, the taking of the note of a third person at the time
of the making of the contract, by Judge Sutherland, in
giving the opinion of the Court: “Now I apprehend
that it is a payment in neither case unless it is agreed
to be so taken, and if so agreed, it is equally a payment,

1 Ralston v, Aultman, (Tex.) 26S. W. 746.

Ir W. &S. 92.

56 W. & S. 165.

See Van Haagen’s Estate, 141 Pa. St. 214; Shepherd v. Busch, 154 Pa. St.
149.

5 See Strauss v. Trotter, (N. Y. Com. Pl.) 26 N. Y. Sup. 20, 6 Misc. Rep. 77.
DISCHARGE OF CONTRACT. 465

when taken for an antecedent debt as when taken for a
debt contemporaneous with theagreement. In either case
the inquiry is the same: Did this ¢reditor agree to make
this payment ? and so areallthe cases. Porter v. Talcott,
1 Cowen 359-383, where the cases are reviewed.”

Tender.

A contract may be discharged, not only by perform-
ance, but by an offer to perform. And when the per-
formance does not consist in the payment of money, the
refusal of one party upon the offer of the other to perform
according to the terms of the contract, is equivalent to a
performance and discharges the contract, and the party
who has made the tender may either sue the party, or
if he is sued afterward by the other party, can prove a
fulfillment of the contract upon his part by proof of the
tender to perform.’ But where the performance consists
in the payment of money, there must be something more
than a mere tender by the debtor. The rule is thus ex-
pressed in Dixon v. Clark:* “In actions of debt and
assumpsit, the principle of the plea of tender, in our
apprehension, is, that the defendant has been always
ready (toujours prist) to perform the entire contract on
which the action is founded; and that he did perform
it, as far as he was able by tendering the requisite money,
the plaintiff himself precluding a complete performance,
by refusing to receive it. And, as, in ordinary cases,
the debt is not discharged by such tender and refusal,
the plea must not only go on to allege that the defend-
ant is still ready? (uncore prist) but must be accom-
panied by a profert 7m curtam of the money tendered.
If the defendant can maintain this plea, although he will
not thereby bar the debt (for that would be inconsistent

1 Anson, * p. 274,
257 H.C. L. R. 365.
McDaniel v. Uptan, 45 Ill. App. 151.

30
466 LAW OF CON‘ RACTS.

with the wxcore prist and profert in curiam), yet he will
answer the action, in the sense that he will recover
judgment for the costs of defence against the plaintiff
—in which respect the plea of tender is essentially different
from the payment of money into Court.” ‘The tender
must be of the amount due, or of a greater amount from
which the amount due can be taken ont, though change
cannot be asked.’ Nor can there be a valid tender of
part of a debt.’

A tender must be unconditional, and therefore if it is
accompanied by a demand that the party to whom it is
tendered shall admit that no more is due in respect to the
debt for which it is tendered, it is not a good tender.’

In Richardson v. Jackson,‘ where, when a tender was
made it was objected to because it was not enough, it was
decided that the tender was not invalidated because accom-
panied by a demand for a receipt, because the ground of
the objection made at the time had been different; and
one of the judges said: “I should be sorry to hold this
to be a bad tender on account of the receipt having been
mentioned.’ But the receipt asked for in this case was
not for a receipt in full.

In the appeal of the Forest Oil Company ef a/.5 Paxson,
C. J., says: “Any demand for a receipt, discharge or
assignment of a debt renders the tender invalid.” This
was a case where the party offering to pay a creditor who
held a judgment, demanded an assignment of the judg-
ment, and it was held that it was not a good tender.

1See Benjamin on Sales, * p. 705. Also Mayo v. Knowlton, 134 N. Y. 250;
McGrath v. Gegner, 77 Md. 331; Randal v. Tatum, 98 Cal. 390.

2 Dixon v. Clark, 57 E. C. L. R. 365; Lichtenfels v. The Enos B. Phillips, 53
Fed. 153; Weld v. Savings Bank, 158 Mass. 339; Moore v. Norman, 52 Minn. 83.

3 Benjamin on Sales, * p. 710, cases cited in note. See also Odum vz. Railroad
Co. 94 Ala. 488; Henderson v. Cass Co., 107 Mo. 50; Greenwood v. Sutcliffe,
(1892) 1 Ch. 1; Jones v. Shuey, (Cal.) 15 So. 945; Doty v. Crawford, 39 S. C. I.

48M. & W. 208.
5118 Pa, St. 138.

t
CHAPTER XV.

DISCHARGE OF CONTRACT BY BREACH.

Wherever one party to a contract fails to perform
what under the contract he is bound to perform, that con-
stitutes a breach of the contract on his part, and such a
breach gives to the other party to the contract always
a right of action to recover damages for the injury he
may have suffered through such breach of the contract.’
Such a breach, however, does not necessarily discharge
the contract; that is, it does not necessarily relieve the
other party from his obligation to do what he has under-
taken to do by making the contract.? It may do so, how-
ever, and when it does the contract is said to be
discharged by breach.

When a contract is discharged by a breach of it by
one of the parties, the other party, if he has not done
anything under the contract, need not do anything;
and if he is sued by the party who has been guilty
of the breach, for failure to do what he contracted to
do, he can set up the discharge of the contract by the
breach of the other party as a defence. He can also
sue the party guilty of the breach specially on the
contract for any damages he may have suffered, and he
need not either aver or prove performance or a tender
to perform, after the breach, on his part. And, lastly,
where, before the breach, the other party has either
wholly or partially performed his part of the contract,

1 Lewis v. Vagel, 28 N. Y. S. 833; 77 Hun. 337; Ice Ass’n v. Andrews,

24N. Y. S. 611, 71 Hun. 74; Avil Min. Co. v. Humble, 153 U.S. 540.
* See Smith wv. Hay, 152 Pa. St. 377; Appeal of Hay, ib. 384.

(467)
468 LAW OF CONTRACTS.

he can sue upon an implied contract to pay him the
fair value of what he has done.

In Stark v. Parker,’ the plaintiff agreed to work for
the defendant for a year for $120. He left the service of
the defendant before the year, without any fault on the
part of the defendant, and then sued him for such
portion of the $120 as was represented by that part of
the year during which he had served. It was held that
the plaintiff's breach of the contract discharged the
contract and was a good defence. The Court said that
plaintiff could not renounce his agreement, refuse to
complete the performance of his part of the contract and
then recover on a guantum merutt.

In Harris v. Ligget,? the plaintiff agreed to haul a lot
of wood to be coaled. He hauled only a part of it and
then refused to haul the rest. The case was tried on its
merits without any regard to the pleadings, and the jury
were instructed that if they thought that there was any
balance due the plaintiff after allowing for the damage
done the defendant, they should find accordingly, and
this. judgment was reversed, Chief Justice Gibson say-
ing: “But the present is not so much a question of
pleading as of title. Can the plaintiff recover in any
form of action? He can recover, if at all, only in an
action founded in contract; but what contract? There
certainly was no aggregatio mentium, or mutual consent,
which is of the essence of a contract, that the one might
do, and the other should pay for, less than the whole
which was contracted to be done. If, then, it will not
be pretended that he could recover on the express con-
tract, unless he had performed or was ready to perform
every part of it, can it be pretended that the law will imply
from part performance a promise for part compensation

12 Pick (Mass.) 267. To the same effect, see Wilson v. Lyle, 23 W. N. C. 309.
21 W. & S. 301.
DISCHARGE OF CONTRACT. 469

in the teeth of the fact? There is no reported in-
stance of such an implication; and the law is too
politic and just, as well as too regardful of the induce-
ments to good faith, to sanction it. The terms of a
contract are private laws, which the parties to it pre-
scribe for themselves, to fix the measure of their duties
and responsibilities; and they agree to be bound by
them and no others. But a judge would bind them
differently, did he enforce between them duties of imper-
fect obligation, and support an implication of terms to
which they did not accede. It is the boast of a freeman
that he is to be bound only by his own consent; and
if there is a power to bind him beyond it, whether ex-
ercised by an arbitrator, a judge, a jury, or a populace,
it is a despotic one. Such is the power that would
force a man to reward an unsought service, on the
ground of natural justice; but it has long been settled
that natural justice alone, or, as it has been more accu-
rately called, moral obligation from benefit conferred, is
not a foundation for the erection of a legal promise. It
is difficult, however, to imagine the existence of a moral
obligation to compensate the labor of a man who has
deliberately cut himself loose from a part of his bargain,
and that, too, the hardest part of it. On what. principle
of law or justice such a man is entitled to be paid for
performance of the part of the bargain most beneficial
to him, and paid at the contract rate of performance of
the whole, I am unable to discover. If the work done
was under his bargain, let his claim to compensation for
it be determined by the terms of his bargain; if it was
not, then it was done under no contract whatever, and it
is no more than a service done without request.”

The case of Cort v. The Ambergate Railway Company,’

117 Ad. & E. N. S. 79 E. C. L. R. 127. See Dalzell v. Fahys Watch Case
Co., 138 N. Y. 285.
470 LAW OF CONTRACTS. _

decides that where there is a breach the other party
may sue on the contract, without tendering performance,
for any damages he may have suffered. In this case the
plaintiff had agreed to furnish the defendant, and the
defendant had agreed to take from the plaintiff a certain
number of railway chairs. A portion of them had been
delivered and the defendant declined to take any more.
The plaintiff made no more, but sued the defendant for
damages for refusing to take, and it was contended that
the plaintiff could not have been ready and willing to ful-
fill the contract because he never made the chairs; Lord
Campbell saying: “In common sense the meaning of
such an averment of readiness and willingness must be
that the non-completion of the contract was not the fault
of the plaintiffs, and that they were disposed and able to
complete it if it had not been renounced by the de-
fendants.” .
Planche v. Colburn,’ is an illustration of the right of
one party to a contract to recover on guantum meruzt for
what he has done, where the other party has been guilty
of a breach which discharges the contract. In this case
the plaintiff was employed to write a volume on the sub-
ject of Costumes and Ancient Armor for “The Juvenile
Library,” a publication of the defendants. The plaintiff
wrote a portion of the work, and went to some trouble
visiting collections of ancient armor and making drawings
of them. “The Juvenile Library”? was abandoned by
the defendants on account of the exceedingly poor success
of its first number; it came to an absolute end. The
plaintiff did not tender that portion of his work which he
had already done to the defendants, but sued them on the
contract for the price which they had agreed to pay him,
one hundred pounds, and also joined account for work

18 Bingham 14; Campbell’s Rul. Cas., Vol. VI, p. 634. See Anson on Con-
tracts, 8th ed., pp. 350 e¢ seg. and p, 352, n. 1 and 2.
DISCHARGE OF CONTRACT. 471

and labor done. A verdict for fifty pounds was sustained.
Chief Justice Tyndal said: “I agree that when a special
contract is in existence and open, the plaintiff cannot set
up a guantum meruzt. Part of the question here, there-
fore, was, whether the contract did exist or not. It dis-
tinctly appeared that the work was finally abandoned, and
the jury found that no new contract had been entered
into. Under these circumstances the plaintiff ought not
to lose the fruit of his labor; and there is no ground
for the application which has been made.” The applica-
tion was a motion to set aside the verdict. The rights
of which I have spoken, and which are illustrated by the
cases which have been cited, arise where there has been
a discharge of a contract by breach. As I have already
said, however, it is not every breach that discharges a
contract, and the question always arises in every case
which comes up, What sort of a breach will discharge a
contract? The contract may be broken, either by a
party renouncing his right under it, or by his doing some
act which makes it impossible for him to perform his
part of the contract; or by failure either partially or
altogether in performance.*

I. RENUNCIATION.

The leading case on the subject of renunciation is
Hochster v. De La Tour,? in which a man, some time in
April, engaged a courier to travel on a tour to commence
in June following, and in May he wrote the courier tell-
ing him that he would not want his services. It was
held that the courier could sue at once.’

1 Anson on Contracts, * p. 289.

22 E. & B. 678. See also Campbell’s Rul. Cas., Vol. VI, pp. 584 e7 seg., for
Eng. and Am. notes to this case.

3 This case has been followed generally, but not universally, in this country.
See cases collected in note to Anson on Contracts, 8th ed., p. 355, 0. 1. Hocking
v. Hamilton, 158 Pa. St. 107.
472 LAW OF CONTRACTS.

In Frost v. Knight,’ the rule in Hochster v. De La Tour
was applied in a case where the defendant had promised
to marry the plaintiff as soon as his father died. During
his father’s life time the defendant absolutely refused to
marry the plaintiff, whereupon the plaintiff brought suit
for a breach of promise of marriage, and it was held she
could recover, Chief Justice Cockburn saying: “It is true,
as pointed out by the Lord Chief Baron, in his judgment
in the case of Hochster v. De La Tour, that there can
be no actual breach of a contract by reason of non-per-
formance so long as the time for performance has not
yet arrived; but, on the other hand, there is—and the
decision in Hochster v. De La Tour proceeds on that
assumption—a breach of the contract when the promisor
repudiates it and declares he will no longer be bound
by it. A promisee has an inchoate right to the per-
formance of the bargain, which becomes complete when
the time for performance has arrived. In the meantime
he has a right to have the contract kept open as a sub-
sisting and effective contract. Its unimpaired and un-
impeached efficacy may be essential to his interest. His
right acquired under it may be dealt with by him in
various ways for his benefit and advantage. Of all such
advantage, the repudiation of the contract by the other
party, and the announcement that it never will be ful-
filled, must of course deprive him. It is therefore quite
right to hold that such an announcement amounts toa
violation of the contract zz omnzbus, and that upon it the
promisee, if so minded, may at once treat it as a breach
of the entire contract, and bring its action accordingly.”

In Dingley v. Oler,? Judge Lowell applied this doctrine

1L,.R. 7 Exch. 114,

+11 Fed. Rep. 372. See, however, the case of Daniels v. Newton, 114 Mass.
530, where the Supreme Court of Massachusetts refused to apply the doctrine of

Frost vy. Knight and Hochster v. De La Tour to the case of a breach of a con-
tract to purchase land.
DISCHARGE OF CONTRACT. 473

to a case where the defendant, having agreed to return
a certain number of tons of ice which he had borrowed
during the year 1880, had refused, before the expiration
of the year, to carry out his contract. It was held that
an action would lie before the expiration of the year.
The case was reversed upon appeal, the Court above
declining to pass upon the applicability of the doctrine
of anticipatory breach to such a class of cases, because
they held that there had been no clear refusal to perform
the contract acquiesced in by the promisee.'. There are
two qualifications to the application of an anticipatory
breach of a contract by renunciation. They are these:
First, the refusal must be given to the entire contract ;
it must be a refusal to perform any part of it; and,
Second, the promisee must treat the renunciation as a
discharge or else it is not a discharge.’

In Johnstone v. Milling,’ there was a lease of the
premises for twenty-one years, with a covenant on the
part of the landlord to rebuild the premises at the ex-
piration of four years, if required to, upon six months’
notice, and with the privilege on the part of the lessee
to determine the lease at the end of four years. Before
the four years had expired the landlord told the tenant
that he had no money to build, and, in consequence,
the lessee gave notice determining the lease; but after
the determination of the lease he kept the premises for
some time, paying rent to the lessor’s mortgagee on the
chance of the lessor securing the money to rebuild.

It was said that an action could not be sustained for
damages for breach of the landlord’s covenant because

1 The doctrine was applied, however, to the case of a refusal to receive oil be-
fore the time in the case of Mountjoy v. Metzger, 12 Law Reg. N. S. 442, ina
decision of the old District Court of Philadelphia County, the opinion being by
Judge Hare.

2 Johnstone v. Milling, L. R. 16 Q. B. 460.

31, R. 16 Q. B. 460.
474 LAW OF CONTRACTS.

the lessee had determined the lease before a breach of
this covenant, unless there was a breach by anticipation.
Lord Esher, M: R., said, “The question before us arises.
entirely on the counter-claim. The claim therein set
up is for damages for breach of a covenant in a lease
whereby the landlord undertook to rebuild the premises.
upon notice. It is quite clear that there was no breach
of the covenant in the ordinary sense of the term, because
no notice to rebuild has been given, and the tenant had
exercised the right given him by the lease of putting
an end to the term at the expiration of the first four
years, and consequently the lease was determined before
the time at which the obligation to build under the
covenant would have accrued. The lease being put an
end to, it is quite clear that the lessee could not sue
the lessor for breach of the covenant in not rebuilding
after the expiration of the four years. That being
so, the cause of action is thus shaped on behalf of
the defendant. It is alleged that a breach of the
contract was committed by the plaintiff here before
the end of the four years, inasmuch as he had declared
that he was unable and would be unable to find the
money for rebuilding when the time came. It is in-
sisted that such declaration amounted to a declaration
of his intention not to perform the contract, and was.
intended as a repudiation of it, or that, if it was not
so intended, the expressions used by the plaintiff were
such that the defendant was entitled to treat them as an
equivalent to a repudiation of the contract; and it is
accordingly contended that there was a breach of the
contract by anticipation before the time of its performance
arrived, for which the defendant was entitled to damages,
and that the fact that the defendant afterward exercised
his option of determining the lease was immaterial, for
in so doing the defendant only acted for the benefit of
DISCHARGE OF CONTRACT. 475

the landlord in order to minimize the damages arising
from his repudiation of the contract. The evidence
shows, and the county court judge has found as a fact,
that the lessor did a considerable time before the expi-
ration of the four years, in answer to the questions of
the lessee, repeatedly say that he was unable and would
be unable to find the money for rebuilding, and the
judge finds that in consequence the defendant sur-
rendered the lease. It appears, however, from the
evidence that he did not at once throw up the lease
and give the premises into the hands of the plaintiff,
but that he waited till the last six months of the four
years and then gave the requisite notice to determine
the term in accordance with the provisions of the lease.
Upon these findings the county court judge decided that
the defendant could not maintain his counter-claim. The
case then went to the divisional court which held that,
either upon those findings, or on the inferences that
ought to be drawn from them the defendant had a
right of action on the covenant, and therefore that the
county court judge was wrong. Now on what principle
can it be that the defendant had a right of action on
the covenant? As I have said it cannot be on the
ground that there was a breach of the covenant in the
ordinary sense of the term, because the defendant never
gave any notice to rebuild, and he put an end to the
term, so that the time when the covenant was to be
performed never arrived. Accordingly the defendant has
recourse to the doctrine laid down in several cases cited,
the best known of which is perhaps the case of Hochster
v. De La Tour, 2 E. & B. 678; 22 L. J. (Q. B.) 455.
In those cases the doctrine relied on has been expressed
in various terms more or less accurately; but I think that
in all of them the effect of the language used with regard
to the doctrine of anticipatory breach of contract is that
476 LAW OF CONTRACTS.

a renunciation of a contract, or, in other words, a total
refusal to perform it by one party before the time for per-
formance arrives, does not, by itself, amount to a breach
of contract but may be so acted upon and adopted by the
other party as a rescission of the contract as to give im-
mediate right of action. When one party assumes to
renounce the contract, that is, by anticipation refuses to
perform it, he thereby, so far as he is concerned, declares '
his intention then and there to rescind the contract. Such
a renunciation does not of course amount to a rescission
of the contract, because one party to a contract cannot by
himself rescind it, but by wrongfully making such a re-
nunciation of the contract he entitles the other party, if
he pleases to agree to the contract being put an end to,
subject to the retention by him of his rights, to bring an
action in respect of such wrongful rescission. The other
party may adopt such renunciation of the contract by so
acting upon it as in effect to declare that he too treats the
contract as at an end, except for the purpose of bringing
an action upon it for damages sustained by him in con-
sequence of such renunciation. He cannot, however,
himself proceed with the contract on the footing that it
still exists for other purposes, and also treat such renun-
‘ciation as an immediate breach. If he adopts the renun-
‘ciation, the contract is at an end except for the purposes
of the action for such wrongful renunciation ; if he does
not wish to do so, he must wait for the arrival of the time
when in the ordinary course a cause of action on the con-
tract would arise. He must elect which course he will
pursue. Such appears to me to be the only doctrine re-
ognized by the law with regard to anticipatory contract.
We are asked, as it seems to me, by the counsel for the
defendant, to lay down a new principle, but I do not think
we can do so consistently with the established doctrines
of law on the subject. We have, therefore, to consider
DISCHARGE OF CONTRACT. 477

whether the defendant can bring his case within the doc-
trine as to anticipatory breach of contract laid down. The
first question is whether the defendant intended to repu-
diate the contract when he made the statements relied upon
with regard to his inability to find the money for rebuild-.
ing. Did he mean to say, that, whatever happened,
whether he came into money or not, his intention was not
to rebuild the premises? It does not seem to me that.
what he said naturally leads to the inference that such
was his intention, and I think, having regard to the terms.
of his findings, that the county court judge declined to
draw that inference. If he declined to do so, I think we
ought not to do so, unless it is a necessary inference from
what the plaintiff said. It does not appear to me that it.
is. If we ought not to draw the inference from what the
plaintiff said, it seems to me to follow as a matter of
course that the defendant was not entitled to draw it;
and the result is that the defendant fails in the very
first point which it is necessary for him to establish, viz.,
that the plaintiff at the time when he made these decla-
rations of his inability to find the money for rebuilding
intended to repudiate his liability on the contract, or
that he made use of expressions entitling the defendant
to suppose that he did so. That being so, his case is
gone; but, assuming the contrary, then comes the ques-
tion whether the defendant elected to treat the plain-
tiff’s statement as a wrongful repudiation of the contract.
That involves first of all the question whether he could
so treat it. ‘The contract made between the plaintiff and
defendant was the whole lease. The covenant in question
is a particular covenant in the lease not going to the
whole consideration. If there were an actual breach of
such a covenant at the time fixed for performance, such
a breach would not, according to the authorities, entitle
the tenant to throw up the lease. That being so, I do
478 LAW OF CONTRACTS.

not hesitate to say, though it is not necessary in this
case to decide the point, that an anticipatory breach
could not entitle him to do so, that it does not appear
to me that he could elect to rescind part of the contract.
‘Therefore it seems to me that the defendant could not
elect to put an end to the contract in consequence of
what the plaintiff stated. But, whether he could do so
or not, it seems to me that in fact he did not. He did
not renounce the lease or give up the premises. He
did not do any act which affected the existence of the
contract. He made no declaration of intention to treat
it as rescinded except for the purpose of bringing his
action upon it. On the contrary, at the time fixed by
the contract he gives the requisite notice to determine
the lease. I think, therefore, that on every point neces-
sary to establish his counter-claim the defendant fails.
For these ‘reasons, with great deference to the divisional
court, before whom these points do not appear to have
been developed so clearly as they have been before us,
I think their decision cannot be supported, and that the
judgment of the county court judges was correct.”

The doctrine of this case was recognized and applied
in the case already referred to of Dingley wv. Oler,’ where
the promisee does not acquiesce in a renunciation, but
continues to insist on the promisor’s performance, the
contract is not discharged, and the obligations created
by it remain in force for the benefit of both parties, and
subject to the happening of anything which may operate
to discharge either party.

In the case of Avery v. Bowden,’ the plaintiff made
a contract with the defendant that the plaintiff’s vessel
should go to Odessa and there receive a cargo from the
defendant’s agent. The vessel went there and the

4117 U. S. 490. See Goulding v. Hammond, 54 Fed. 639.
75H. & B. 714.
DISCHARGE OF CONTRACT. 479

defendant’s agent refused to load it, but the plaintiff,
through the master of the vessel, his agent, insisted
upon the performance of the contract. Before the time
within which the defendant’s agent was bound to furnish
the cargo, the performance became legally impossible by
the breaking out of war. The plaintiff then sued the
defendant for a breach of the contract, relying upon the
defendant’s refusal to load before the time had expired
within which he was bound to load, as an anticipatory
breach of the contract which discharged it. It was held
that he could not recover upon the ground that he had
not acquiesced in the renunciation by the defendant, and
that therefore the contract was still in force at the time
when it became legally impossible of performance in such
a way as to discharge the defendant from the obligation
to do what he had contracted to do.

In Zuch & Henry v. McClure & Company,’ the
plaintiff had agreed to deliver the defendant a certain
amount of coal in October, and he did it. On November
11 following, he contracted to deliver some more coal on
the first of the following December. On the nineteenth
of November he wrote the defendant saying that he could
not perform his contract. On the twenty-ninth of
November he sued the defendant for the price of the coal
delivered in October, and on the fourth of December, some
five days days after suit was brought, the defendant wrote
that he was then prepared to receive the coal which the
plaintiff had agreed to deliver on the first of December
under his contract of November 11, and if it was not
delivered right off he should consider that contract
broken. No answer was made to this letter and no coal
delivered. On the trial, the defendant sought to set off
against the plaintiff’s claim the damages which he had
suffered by the breach of the contract of the eleventh of

198 Pa. St. 541.
480 LAW OF CONTRACTS.

November, and it was held that he could not do it. It
‘was not a good set off unless he could have sued for
what he claimed as a set off at the time of the commence-
ment of the action, and he could not have sued then
unless there had been a breach of the contract at that
time, to wit, on November 29; and it was held that the
plaintiff’s refusal to fulfill the contract made on the
nineteenth did not amount to a discharge of the contract,
because it was not acquiesced in by the promisee. The
Court said: “A mere notice of an intended breach is not:
of itself a breach of the contract. It may become so if
accepted and acted on by the other party If the defend-
ant had accepted the plaintiffs’ notice of breach contained
in their letter of November 19 and acted upon it, there
would plainly have been a breach of the contract. The
plaintiffs in such case could not have relieved themselves.
by commencing to deliver the coke on December 1, but
must have been held to all the legal consequences of the
breach. The defendants, however, on December 4 still
insisted upon compliance. ‘They say they are not ready
to receive said coke under said contract.’ This certainly
kept the contract alive as to both parties. The plaintiffs.
could have gone on and delivered the coke on December
4, in which case there would have been no breach and no
damages. The notice of an intention not to perform the
contract, if not accepted by the other party as a present
breach, remains only a matter of intention, and may be
withdrawn at any time before the performance is in fact
due; but if not in fact withdrawn it is evidence of a
continued intention to refuse performance down to and
inclusive of the time appointed for performance: Ripley
v. McClure, 4 Exch. 345; Leake on the Law of Contracts,
873. The promisee may treat the notice of intention as
inoperative and await the time when the contract is to
be executed, and then hold the other party responsible
DISCHARGE OF CONTRACT. 481

for all the consequences of non-performance. But in
that case he keeps the contract alive for the benefit of
the other party as well as his own; he remains subject
to all his own obligations and liabilities under it, and
enables the other party not only to complete the contract,
if so advised, notwithstanding his previous repudiation
of it, and also to take advantage of any supervening cir-
cumstances which would justify him in declining to
complete it: Leake on Contracts, supra.”

In Parker v. Russell,’ the plaintiff had conveyed certain
real estate to the defendant in consideration of which the
_ defendant had agreed that she would support the plaintiff
during the rest of his natural life. She did support him
for five years in a house belonging to her; at the end of
that time the house was burned down, and after that
she contributed nothing toward his support. At the end
of two years from the time the house burned down the
plaintiff brought an action for a breach of the entire
contract, and the Court below charged that the plaintiff
might elect to treat the contract as at an end and recover
damages for the breach of the contract as a whole, and
this judgment was affirmed.

2. IMPOSSIBILITY CREATED BY ACT OF ONE OF THE
PARTIES.

Discharge of a contract where it is broken by one of
the parties making it impossible to fulfill the contract,
either before or during the performance, releases the
other party from all liability under the contract, and
he is entitled to bring action immediately, averring his
willingness to perform his part of the contract, but
without proof of actual performance.’

1133 Mass. 74.
2 Cort v. The Ambergate Railway Co., 17 Q. B. 148; Planche v. Colburn, 8
Bing. 14.

31
482 LAW OF CONTRACTS.

In Short vw. Stone,’ Mary Short sued the defendant
for a breach of a promise to marry her within a reason-
able time next after he should be thereunto requested
to do so by her; and the declaration set out the contract
and averred that the plaintiff had always been ready and
willing to marry the defendant, and that he knew she
had, but that disregarding his promise he had married
another person. ‘The defendant pleaded that he had not
at any time been requested by the plaintiff to marry her ;
the plaintiff demurred to the plea and the demurrer was
sustained, Lord Denman saying: ‘‘We must look at
this case with a view to the feelings and intentions of
the parties at the time of entering into such a contract ;
and the intention clearly is, to marry in the state in
which the parties respectively are at the time. If either
party puts himself out of that state, he must be taken
to dispense with the contract so far that the other may
have an action against him without a request to marry,”
and Judge Coleridge said: “If the defendant disables
himself from fulfilling such request, then, in the first
place, he dispenses with the request, because it has
become impossible to make the request effectually ; and,
secondly, he has broken his own contract, because he is
no longer able to fulfill that. It is no matter how long
the person whom the defendant has married lives, the
contract having been once broken; and the averment of
a request to fulfill it is immaterial.”

In Lovelock v. Franklyn,’ the defendant had agreed
to convey to the plaintiff his interest in a certain lease
any time within seven years upon payment to him of
4140 and within the seven years he conveyed the
interest in the land to somebody else. Thereupon the
plaintiff sued him for a breach of the contract, and it

18 Ad. & EB. N.S. (55 E. CL. R.) 358
28 Ad. & E., N. S. 371.
DISCHARGE OF CONTRACT. 483

was held that the contract was discharged by the con-
veyance; Lord Denman saying: ‘ The plaintiff has a
right to say to the defendant, ‘ You have placed yourself
in a situation in which you cannot perform what you
promised: You promised to be ready during the period
of seven years; and, during that period, I might at any
time tender you the money and call for an assignment,
and expect that you should keep yourself ready; but,
if I now were to tender you the money, you would not
be ready.’ That is a breach of the contract.’ The
defendant had put it out of his power to comply with
his contract. It was not necessary for the other side to
aver a tender of the £140.

The impossibility to fulfill the contract may be created
during the performance, as in the case of Planche v.
Colburn, already referred to, where the defendants
abandoned the enterprise of publishing ‘The Juvenile
Library.”

In Chicago wv. Tilley," and United States v. Behan,’
the same rule was applied as laid down in Planche »v.
Colburn, where an architect in the first case and a
contractor in the other had been prevented by the act
of the other party from being able to fulfill his contract,
it was held that he might recover for the value of the
services already performed. In neither case was there
apparently much attention paid to the pleadings, because
in the first case there was a claim on the contract
itself besides a claim under the zzdebztatus count;
and in the second case there was a petition filed in
the Court of Claims in which the plaintiff not only
claimed for services but for loss of profits, and in
delivering the opinion Judge Bradley makes the following

1 103 U. S. 146.

2 110 U. S. 338. And see, generally, Cutter v. Powell, Campbell’s Rul. Cas.
Vol. VI, p. 627, and Eng. and Am. notes, pp. 636, 638. Rathbun uv. Thurston
Co., 8 Wash. 238.
484 LAW OF CONTRACTS.

remarks on the subject: “It is to be observed that
when it is said in some of the books, that where one
party puts an end to the contract, the other party cannot
sue on the contract, but must sue for the work actually
done under it, as upon a guantum meruzt, this only
means that he cannot sue the party in fault upon the
stipulations contained in the contract, for he himself has
been prevented from performing his own part of the
contract upon which the stipulations depend. But surely,
the willful and wrongful putting an end to a contract,
and preventing the other party from carrying it out, is
itself a breach of the contract for which an action will
lie for the recovery of all damages which the injured
party has sustained. The distinction between those
claims under a contract which result from a performance
of it on the part of the claimant, and those claims under
it which result from being prevented by the other party
from performing it, has not always been attended to.
The party who voluntarily and wrongfully puts an end
to the contract and prevents the other party from
performing it is estopped from denying that the injured
party has not been damaged to the extent of his actual
loss and outlay fairly incurred.

“The particular form of the petition in this case
ought not to preclude the claimant from recovering what
was fairly shown by the evidence to be the damage sus-
tained by him. Though it is true that he does pray
judgment for damages arising from the loss of profits, yet
he also prays judgment for the amount of his outlay and
expenses less the amount realized for the sale of materials
on hand. The claim for profits, if not sustained by
proof, ought not to preclude a recovery of the claim for
losses sustained by outlay and expenses. In a proceed-
ing like the present, in which the claimant sets forth by
way of a petition, a plain statement of the facts without
DISCHARGE OF CONTRACT. 485

technical formality, and prays relief either in a general
manner or in an alternative or cumulative form, the
Court ought not to hold the claimant to strict technical
rules of ‘pleading, but should give to his statement a
liberal interpretation and afford him such relief as he
may show himself substantially entitled to if within the
fair scope of the claim as exhibited by the facts set
forth in the petition.”

The general rule seems to be that stated by Chief
Justice Gibson in Harris v. Ligget,’ where he says:
“There certainly is a difference between defective and
deficient performance, or, to use another word, no per-
formance at all; and therefore it is that a tailor who has
cloth delivered to him for a coat, would not be allowed
the price of his work, were he to make a different gar-
ment of it though of.equal value. But Justice Buller
admits, that to make performance the consideration of an
implied promise, the work must be done; and with that
agrees Algeo v. Algeo, 10 S.& R. 235, in which the
plaintiff was not allowed to recover zudebztatus assumpszt
for performance of part of his agreement, though the
defendant had prevented him from performing the rest
of it. It was held that though prevention is equivalent
to performance in an action on the contract, it is, never-
theless, not performance itself; and that, as the law im-
plies a promise of compensation from nothing less, the
proper remedy was an action on the special agreement,
with an averment of the plaintiff’s tender of performance
or readiness to perform, as an excuse for the want of
actual performance.”

The decision referred to, Algeo v. Algeo,? was also
by Chief Justice Gibson, and is very well worth reading.
It is as follows: “The English decisions on this subject

| Supra.
210S. & R. 235.
486 LAW OF CONTRACTS.

are irreconcilable; but a rule has been extracted from
them, which is more consonant to the general principles
of the action than the opposite doctrine to it, that where
there is an express agreement, the complete execution
of which has been prevented by the defendant, the plain-
tiff must declare specially on the agreement, and not on
the implied promise for work and labor done, 2 Chitty on
Pleadings 340. Here the plaintiff below claimed to
recover for the whole time for which he had been em-
ployed, on the ground, that an act the performance of
which has been prevented by the person for whose bene-
fit it was to be performed, shall as to him be taken to
have been actually performed. This holds so far as to
give an action on the contract where actual performance
would otherwise have been a condition precedent; but not
to create an implied promise to compensate the party as
if the act were actually performed. Where a special
agreement has been executed, the.Courts have allowed a
recovery on a general count: In other words, the plain-
tiff has been permitted to waive the benefit of the agree-
ment where he could show a meritorious cause of action
which was independent of it, and to recover on an implied
promise; and thus far the Courts might well go without
introducing an incongruity into the form of the action.
But if a plaintiff will insist on the benefit of the special
agreement, he must declare on it: otherwise he might
count on one contract and recover on another. Now here
he does not find his right of recovery on a promise
arising by implication of law from acts performed by
him, but on a special agreement and for acts stipulated
to be performed by him, prevention by the party to be
benefited being said to be equivalent to actual perform-
ance. It appears then from the case made out at the
trial, that he claims to recover on an express contract,
and not as he has stated his cause of action in his
DISCHARGE OF CONTRACT. 487

declaration. There is never such a thing, in fact, as a
promise laid in a general count; it is a consideration
for which the promise is supposed to be made, that is
the substantial groundwork of the action. But the
consideration is not the execution of a contract, but ser-
vices rendered or work and labor done, and this is the
reason that the precedent contract, where there is one,
must have been executed, the law implying a promise
only from the acts of the plaintiff and never from acts
of prevention by the defendant.”

In Pennsylvania the rule is settled in the case of Hall
v. Rupley,’ the suit being on the special contract. The
Court say: ‘When a contract is entire, before any
recovery can be had of the consideration money, the
plaintiff must prove that he has performed, or is ready to
perform, his part of the contract, or that the performance
was prevented by the defendant. Here, the non-fulfillment
of the contract has arisen from the defendant’s omission.
He is in default. It would, therefore, be unjust that the
plaintiff should be deprived of payment, on a guantum
merutt, for the work actually done to the building.” ‘This
was a case where the defendant was under an obligation
to furnish the materials, and did not furnish them, and
the plaintiff who was the building contractor stopped
work and sued for what he had done.

In the two cases where performance is renounced or
rendered impossible during the performance of the con-
tract, the result of the cases is that the promisee or the
other party to the contract can recover for what he has
done on a guantum meruzt without proving an offer to
fulfill the contract on his part, because he recovers in
such a case without regard to the contract. Where
nothing has been done, as in the case where there is a
renunciation, or where the contract is made impossible

110 Barr 231.
488 LAW OF CONTRACTS.

before performance is commenced on the other side, the
recovery only can be had for any damages suffered for
such discharge of the contract by breach in an action on
the contract. There cannot be any guantum meruzt in
such a case, because nothing has been done.

3. FAILURE OF PERFORMANCE.

Where a breach does not render a contract wholly
incapable of performance, or where it does not occur
through renunciation acquiesced in, it may still operate
to discharge the obligations of the contract in cases where
it consists in a failure on one side to entirely perform the
contract, or a failure to perform a part of it. Such total
or partial failure of performance, however, will not, in all
cases, relieve the other side from its obligations under the
contract. To determine in what cases it will have this
effect and in what cases it will not, is often a very difficult
question. The test which was early adopted, and which
is to-day still recognized as a proper method of determin-
ing the question, is a very simple one. It is this: If the
promises on one side and the promises on the other are
independent, then a breach, that is, a failure to perform
some or all of them on one side, will not relieve the other
party from his obligation of performance on the other.
In other words, such a breach will not discharge the
contract. If, on the other hand, the promises are mutu-
ally dependent, then a breach on one side will excuse
performance on the other, or, in other words, will dis-
charge the contract.

This test was very clearly announced by Sergeant
Williams nearly a hundred years ago, in his note to
Pordage v. Cole,’ where, referring to some of the earlier
cases, he says with respect to them: ‘‘ Hence it appears that

11 Saunders 320.
DISCHARGE OF CONTRACT. 489

the judges in these cases seem to have founded their con-
struction of the independency or dependency of covenants
or agreements on artificial and subtle distinctions with-
out regard to the intent and meaning of the parties, for the
rule which is contained in them all seems clear and indis-
putable; that where there are several covenants, promises
or agreements which are independent of each other, one
party may bring an action against the other for a breach
of his covenant without averring a performance of the
covenants, etc., on his, the plaintiff's part; and it is no
excuse for the defendant to allege in his plea a breach of
his covenant, etc., on the part of the plaintiff.

But where the covenants, etc., are dependent, it is neces-
sary for the plaintiff to aver and prove a performance of
the covenants, etc.,on his part to entitle himself to an
action for the breach of the covenants on the part of the
defendant. . . . The difficulty lies in the application
of this rule to the particular case. It is justly observed
that covenants, etc., are to be construed to be either
dependent or independent of each other according to the
intention and meaning of the parties and the good sense
of the case; and technical words should give way to such
intention.” He then proceeds to give four rules to assist
in finding out when it is necessary to aver performance
and when not. Of course, where it is necessary to aver
performance, the inability to do it on account of a breach
on the part of the plaintiff is because that breach has
discharged the contract; and where it is not necessary to
aver performance, then a breach arising from a failure of
such performance does not discharge the contract.

The rules are as follows:

When a day has been appointed for paying money or
doing anything, and the day is to or may happen before
the thing, which is the consideration for the payment
of money or the doing of the act, is to be performed ;
490 LAW OF CONTRACTS.

then suit may be brought for the money or for the failure
to do the act before the consideration on the other side is
performed ; because in such case it is evident that what
the party who was to pay the money or to do
the act relied upon was the promise of performance and
not performance itself, and therefore the failure to per-
form would not relieve him from obligation to do some-
thing which he undertook to do on account of the
promise to perform; and he cites a number of cases,
amongst them the case of Thorp v. Thorp,’ where the
rule stated in the note is announced by Chief Justice
Holt, and where also the second rule is announced,
which is that when a day is appointed for the payment
of money, and the day is to happen after the doing of
that which is the consideration for the payment of
money, etc., no action can be maintained for the money
before performance, because it is apparent there that the
parties meant to make the payment of the money, or
the doing of the act, dependent upon performance by
the other side.

The first of these rules refers to the first class of
independent promises spoken of by Anson in his work
on Contracts, that is, absolute promises.

Absolute promises.

In the case of absolute promises, where the promise
of one side is entirely unconditional of performance on
the other side, the promise on the one side is made in
consideration of the promise on the other, and if it fairly
appears that that is the meaning of the parties, then a
breach on one side will not discharge the contract, that
is, it will not discharge the obligation of the other party.”

112 Modern 455.

2 Stokes v. Stokes, 26 N. Y. S. 1025; McGrath v, Cannon, 57 N. W. (Minn.)
150.
DISCHARGE OF CONTRACT. 491

But where it clearly appears from the contract that the
intention of the parties was that performance of the
obligation on one side was the consideration for the
promise upon the other side, then a failure to perform,
that is, a breach arising from a partial or total failure to
perform, does discharge the contract.

The case of Pordage vw. Cole’ itself is an illustration of
an absolute promise. That case was debt on a spe-
cialty for some £700. The defendant had covenanted
to pay some £700 to the plaintiff, at a day named, for
all his lands and certain brewing vessels now remaining
in his house, and the deed was executed by both parties.
It was held that an averment of the conveyance of the
land, or a willingness or readiness to convey the land, was
unnecessary.“ However, in Marsden v. Moore & Day,3
where the plaintiff had agreed to sell a portion of a hill
containing ore for £250, and the defendant agreed tu
pay £250 for it, and it was further agreed that a com-
pany should be formed with a certain amount of cap-
ital, which agreement went on to say that as soon as
the company was registered the £250 should be paid,
a plea that the plaintiff had neither tendered convey-
ance nor had a title was held a good plea to an
action for the money, though the company had been
organized and registered. The judges affirmed Pordage
v. Cole, but distinguished this case from it as being a
present agreement for a future sale and delivery.

Anson, in his work on Contracts, says: “The tendency
of the modern decisions is to construe covenants if possi-
ble as dependent, where the covenants on one side, or the
agreements on one side, are the whole consideration for
those on the other; and the order in which things are to

1 Supra.

2 This case has been criticized by Langdell in his summary to Select Cases on
Contracts. It was followed in Mattock v. Kinglake, 10 Ad. & E. 50.

34H. & N. 500.
492 LAW OF CONTRACTS.

be done by one party or the other is often decisive as
to whether the agreement is an independent one, or
whether the promises on the two sides are dependent.”
But, as remarked by Langdell,* the relative time of per-
formance only establishes the dependency of that promise
which is to be performed later in time, and still leaves the
promise to be performed earlier in time an absolute
proniise.

The Supreme Court of the United States, in the Bank
of Columbia v. Hagner,? says on this subject, “‘ Although
many nice distinctions are to be found in the books
upon the question, whether the covenants or the prom-
ises of the respective parties to the contract, are to be
considered independent, or dependent; yet it is evident,
the inclination of the Courts has strongly favored the
latter construction, as being obviously the most just.
The seller ought not to be compelled to part with his
property, without receiving the consideration; nor the
purchaser to part with his money, without an equivalent
in return. Hence, in such cases, if either a vendor or a
vendee wish to compel the other to fulfill his contract, he
must make his part of the agreement precedent, and
cannot proceed against the other without an actual per-
formance of the agreement, on his part, or a tender and
refusal. And an averment to that effect is always made
in the declaration upon the contracts, and that averment
must be supported by proof.” In this State, the general
rule in regard to dependent and independent covenants
is stated in Keeler v. Schmertz,3 and in Niagara Fire
Insurance Company v. Fidelity Insurance Company.‘

In the first case it was held that the vendee of oil
could not maintain an action for a failure to deliver

1 Select Cases in Contracts.
21 Peters 455.

546 Pa. St. 135.

+123 Pa. St. 516.
DISCHARGE OF CONTRACT. 493,

without proving an offer to pay for it upon delivery;
and in the second case, that where an insurance policy
provided that in case loss was occasioned by the negli-
gent act of a third party, that upon receiving the insur-
ance the insured should assign his cause of action
against the third party to the insurance company. In
an action to recover the insurance the failure or refusal
of the insured to assign his cause of action was held
a good defence, because the promises or covenants were
dependent.

Divisible performance.

The third rule laid down by Sergeant Williams’ note
to Pordage wv. Cole, is that where a covenant goes only to
part of the consideration on both sides, and a breach of
such covenant may be paid for in damages, it .is an
independent covenant, and an action may be maintained
for the breach of the covenant on the part of the defend-
ant without averring performance by plaintiff of his
covenant in the declaration. This embraces the second
and third classes of independent promises mentioned by
Anson, that is, where the performance of a promise may
be divisible, and where a promise is subsidiary. The
two illustrations given by Sergeant Williams are very
plain. They are Boon vw. Eyre,’ and Campbell v. Jones.”

The first case was covenant on a deed whereby the
plaintiff conveyed to the defendant a certain interest in
a plantation in the West Indies together with a stock
of negroes, for which he was to give so much down
and an annuity for life. Action was for a breach of the
covenant to pay the annuity. The plea was that the
defendant was not possessed of the negroes at the time
he made the deed and it was held a bad plea, because

11 Henry Blackstone 273.
26 Term Reports, 570.
494 LAW OF CONTRACTS.

the covenant did not go to the whole of the consider-
ation. He had gotten part of the consideration, the
land having been conveyed to him. In the second
case, Campbell v. Jones, the plaintiff had agreed to
convey a patent and teach a man a bleaching process,
for which he was to give £500; and the defendant agreed
to pay £250 down, and £250 by the twenty-fifth of Feb-
ruary following. The action was for failure to pay the
remaining £250, and the contention on the part of the
defendant was that the £250 were not to be paid until he
was taught how to bleach. The declaration was defective
in not setting out that he had been taught, and it was
held that the covenant did not go to the whole of the
consideration ; and as the defendant had received part of
what he was to receive he must perform his contract,
aud if he suffered any damages by failure to learn how
to bleach, he could bring a separate action.

The same rule is recognized in Pennsylvania in
Liggett v. Smith. The plaintiff had contracted to put
up the brick work for a warehouse for the defendant,
and he did so, but a portion of the contract he did not
perform, so that the building was not as strong as it was
agreed that it should be; but it was not unfit for use,
and the defendant used it. In an action on the cove-
nant brought by the plaintiff to recover the price agreed
to be paid him for doing the brick work, the defendant
set up the defence of breach of the condition whereby
the warehouse was not as strong as it should have
been, and it was held that this did not discharge the
defendant from his agreement to pay, because it did
not go to the whole consideration, and the damages the
defendant had suffered might be deducted from the
amount which the plaintiff would recover. The opinion

13 Watts 331. See Skinner v. Machine Co., 140 N. Y. 217; Sticker v, Over-
peck, 127 Pa. St. 446; Gallagher v. Sharpless, 134 Pa. St. 134.
DISCHARGE OF CONTRACT. 495

was delivered by Chief Justice Gibson, who said:
‘“Previous to the decision of Boon v. Eyre, 1 H. B. 273,
note a, it seems to have been taken that nothing less than
entire performance of a mutual covenant would entitle
the party to his action for a breach on the other side.
In that case, however, a more reasonable and just rule
was adopted, by which a mutual or dependent covenant
which goes but to a part of the consideration on both
sides, and whose breach may be compensated in damages,
is to be treated exactly as if it were separate and indepen-
dent. This is distinctly the principle and it has been
established by a train of decisions, both in England and
in this country, which it is unnecessary to quote.”*

The class of cases given as illustrations of contracts,
the performance of which is divisible, are cases of
charter parties, where they are chartered to load and
deliver a complete cargo; and cases of sales of goods
where the deliveries are to extend over a considerable
interval and are to be made from time to time. Anson
states the rule to be that where the breach deprives the
promisee of part, it does not discharge his obligation,
for instance, in the one case, to pay freight for so much
of the cargo as the vessel may bring, or, in the other
case, to accept future deliveries where there has been a
breach in one of the earlier deliveries under an instal-
ment contract.

The general rule in regard to freight is this: “If
the shipowner, contracting to load a full cargo, only
loads and carries part of it, or if, having loaded a full
cargo, he only delivers part of it, he will, in the absence
of a stipulation for lump freight only be entitled to
freight pro vata in the quantity delivered, and the
freighter can counter-claim for short delivery, not solely

1This case was cited with approval in the Danville Bridge Company v.
Pomroy, 3 Harris (Pa.) 151.
496 LAW OF CONTRACTS.

. caused by excepted perils, or the vice of the goods them-
seives.”’ *

In Richie v. Atkinson,? a ship was chartered to go
to St. Petersburg and load a complete cargo and deliver
the same at London, freight paid upon delivery. The
vessel went to St. Petersburg, and there being a rumor
that the Russian government was going to put an em-
bargo upon all British vessels, the vessel put out to
sea without having a complete cargo. Suit was brought
for the proportionate part of the freight on the cargo
shipped and delivered, and it was held that the plaintiff
could recover. Lord Ellenborough, in delivering the
opinion of the Court, said: “If the delivery of a com-
plete cargo was a condition precedent to the recovery of
any freight, no doubt the defendant would be entitled
to require the strict performance of it; but the question
is, whether it be a condition precedent ? and that depends
not on any formal arrangement of the words, but on the
reason and sense of the thing, as it is to be collected
from the whole contract; whether of two things recip-
rocally stipulated to be done, the performance of one
does in sense and reason depend upon the performance
of the other. The rule was well laid down by Lord
Mansfield in Boon v. Eyre, that where mutual coven-
ants go to the whole of the consideration on both sides,
they are mutual conditions, the one precedent to the
other; but where the covenants go only to a part, there
a remedy lies on the covenant to recover damages for the
breach of it, but it is not a condition precedent.” And
he adds, “ Where, as in Smith v. Wilson, the freight is
made payable on an indivisible condition, such as in
that case the arrival of the ship with her cargo at her
destined port of discharge, such arrival etc. must be a

1Scrutton on Charter Parties, 3 142.
2 Io Kast 295.
DISCHARGE OF CONTRACT. 497

condition precedent ; because it is incapable of being ap-
portioned; but here the delivery of the cargo is in its
nature divisible and therefore, I think it is not a condi-
tion precedent; but the plaintiff is entitled to recover
freight in proportion to the extent of such delivery ; leav-
ing the defendant to his remedy in damages for the short
delivery.”

In the case of Smith v. Wilson,’ a master of a ship
agreed to load his ship at London, proceed to Monte-
video and deliver the cargo, reload and return with a
cargo to a particular port in Great Britain, and the
freight was made payable on the arrival and discharge
of the ship at her destined port. He loaded the vessel
and started on his voyage, and was then seized and
brought back into a Court of Admiralty. After getting
out of the Court of Admiralty he offered to perform the
contract and the defendant declined. It was held that
the plaintiff could not recover, as the ship had never
arrived with her cargo at her destined port of discharge,
which was an essential part of the contract extending
to the whole consideration.

The class of contracts given as an illustration of this
rule, that is, of the divisible performance of the contract,
are where deliveries are to be made by instalments, and
where there is a failure at the beginning, or during the
course of performance, to deliver one instalment accord-
ing to the terms of the contract. In applying the doc-
trine of Boon v. Eyre, to determine whether stipulations
as to the time of delivery are conditions precedent or
not, there is considerable conflict among the cases.

The earlier English cases, down to the time of Hoare
v. Rennie, held that a failure to deliver a portion of what
was to be delivered under the contract could be com-
pensated for in damages and that therefore the other

18 East, 438.
32
498 LAW OF CONTRACTS.

side was not relieved from his obligation to perform his
part of the contract.

In Fathergill v. Walton,’ where a vessel was to load
and go to the West Indies and then take another cargo
of fruit and come back, it was held that the plaintiff
need not aver that he had taken a cargo out, and that
therefore it was no defence to an action against the
defendants for refusing to load the vessel with fruit.

In Hoare v. Rennie,” however, a different rule was
laid down. In this case the defendants agreed to buy
of the plaintiffs 667 tons of iron to be shipped from
Sweden in the months of June, July, August and Sep-
tember, and in about equal proportions each month;
and an action was brought for a refusal of the defend-
ants to accept or pay for any iron under the contract,
the plea being that in the month of June the plaintiff
shipped only twenty-one tons and were not ready and
willing to fulfill their contract by shipping any more
in the month of June, and that for this reason the
defendants refused to accept. It was held to be a good
plea. Pollock, C. B., said: “We are all agreed that
the defendants are entitled to judgment upon the pleas.
The foundation of my opinion is shortly this, that a
man has no right to say that which is a breach of an
agreement is a performance of it. On that ground this
case is distinguishable from almost every other case which
has been cited. It does not turn upon any question of
condition precedent. The only question is whether, if
a man who is bound to perform his part of a contract
does not do so, he can enforce the contract against an-
other party. The plaintiff contracted with the defend-
ants to ship a large quantity of iron in June, July,
August and September, about one-fourth part in each

~

18 Taunton 284.
25H. &N. Ig.
DISCHARGE OF CONTRACT. 499

month ; but instead of shipping about 160 tons in June, as
they should have done, they shipped little more than
twenty tons as a performance of the contract. The
first count states that the plaintiffs performed all things
necessary on their part to be performed, that they were
ready and willing to do all things which according to
agreement it was necessary they should be willing to
do, and that all things happened to entitle the plain-
tiffs to a performance of the agreement on the part of
the defendants. This is.denied by the plea. The sec-
ond count states that the plaintiffs in part performance
of the contract, shipped a certain portion of the iron,
and, in further performance of the agreement, tendered
and offered to deliver the said portion so shipped,
yet defendants refused to accept the same. The pleas
raise the question whether the defendants were bound
to accept and pay for what was sent and tendered ; the
plaintiffs having in June shipped from Sweden a quan-
tity much less than they were bound to have shipped,
and the defendants having insisted that this was a
breach of the contract and given notice that they refused
toaccept the residue. ‘The pleas expressly state that the
plaintiffs were not ready to deliver such a quantity of iron
shipped from Sweden in June as is specified in the con-
tract,and were not ready and willing to deliver the small
quantities shipped until after the month of June had
elapsed, and until after the defendants had notice that
the plaintiffs were not ready and willing to perform
their part of the agreement. The only question we
have to deal with is whether, on a contract like this,
if the sellers at the outset send a less quantity than
they are bound to send, so as to begin with a breach,
they can compel the purchasers to accept and pay for
that the sending of which was a breach and not a per-
formance of the agreement. The argument on the part
500 LAW OF CONTRACTS.

of the plaintiffs is that this was not a condition prece-
dent. I do not think that is the test. It was said that
if the plaintiffs had sent the one-hundredth part instead
of one-fourth part in June, the defendants’ remedy would
have been by a cross action. The case was put out of
the plaintiffs sending a short quantity after one ship-
ment had been accepted. Possibly that might have made
some difference. Where a person has derived a benefit
from a contract, he cannot rescind it because the parties
cannot be put in statu guo. Probably, therefore, in such
case, the defendants could not have repudiated the con-
tract and must have been left to their cross action.
Here, however, the defendants refused to accept the
first shipment, because, as they say, it was not a per-
formance but a breach of the contract.. Where parties
have made an agreement for themselves, the Court ought
not to make another for them. Here they say that, in
the events that have happened, one-fourth shall be
shipped in each month, and we cannot say that they
meant to accept any other quantity. At the outset the
plaintiffs failed to tender the quantity according to the
contract; they tendered a much less quantity. The
defendants had a right to say that this was no per-
formance of the contract, and they were no more bound
to acccept the short quantity than if a single delivery
had been contracted for. Therefore the pleas are an
answer to the action.”

In England this case, was followed by two others, the
first of which, Jonassohn v. Young," was deemed to
distinguish from Hoare v. Rennie, and was admitted to
be explained on the ground that the Court considered
time to be of the essence of the contract; and in the
second of which, Bradford v. Williams,” Hoare v. Rennie

14B. & S. 295.
?L. R. 7 Exch. 259.
Be.

DISCHARGE OF CONTRACT. 501

was followed. But in this last case it is well to notice
the language of Martin, B., because it seems to point
to what is the true solution of these cases. He said:
“Contracts are so various in their terms that it is really
impossible to argue from the letter of one to the letter
of another. All that we can do is to apply the spirit
of the law to the facts of each particular case. Now, I
think the words ‘condition precedent’ unfortunate. The
teal question, apart from the technical expression, is,
What in each instance is the substance of the contract ?”

In the same year there was decided the case of
Simpson v. Crippin,’ in which the defendants had agreed
to supply the plaintiffs with from six to eight thousand
tons of coal, to be delivered in equal monthly instal-
ments, into the plaintiff's wagons, over a period of
twelve months. The plaintiffs during the first month,
sent wagons sufficient to carry only 158 tons, and
immediately after the expiration of this month the
defendants notified the plaintiffs that they would not
deliver any more coal. The plaintiffs sued on the
contract and the plea was that the plaintiffs were not
ready and willing to accept the coal. A verdict in favor
of the plaintiffs was sustained. In delivering the opinon,
Judge Blackburn said: “I think the rule (for a new
trial) ought to be discharged. It cannot be denied that
the plaintiffs were bound in every month to send wagons
capable of carrying at least 500 tons, and by failing to
perform this term they had committtd a breach of the
contract ; and the question is, whether by this breach
the contract was determined. The defendants contend
that the sending of a sufficient number of wagons by
the plaintiffs to receive the coal was a condition pre-
cedent to the continuance of the contract, and they rely
upon the terms of the letter of the first of August. No

1L,.R. 8 Q. B. 14.
oft

502 LAW OF CONTRACTS.

sufficient reason has been urged why damages would not
be a compensation for the breach by the plaintiffs, and
why the defendants should be at liberty to annul the
contract ; but it is said that Hoare v. Rennie is in point,
and that we ought not to go counter to the decision of
a court of co-ordinate jurisdiction. It is, however, diffi-
cult to understand upon what principle Hoare v. Rennie
was decided. If the principle upon which that case was
decided is that, wherever a plaintiff has broken his con-
tract first he cannot sue for any subsequent breach
committed by the defendant, the decision would be
opposed to the authority of many other cases. I prefer
to follow Pordage v. Cole.”

In Freeth v. Burr,’ the defendant contracted to sell
the plaintiff 250 tons pig iron, half to be delivered in
two, the remainder in four weeks. ‘The delivery of the
first half was not completed for nearly six months.
The plaintiffs refused to pay for the first parcel and still
urged the delivery of the second parcel. The defendant
treated the plaintiff’s refusal to pay as an’abandonment,
and declined to deliver any more. The first parcel was
subsequently paid for. Suit was brought for the non-
delivery of the second parcel, and it was held that a
refusal to pay for the first was not sufficient to discharge
the defendant from his obligation to deliver the rest of
the iron. Coleridge, J., in delivering the opinion of the
Court, said: ‘In cases of this sort, where the question
is whether the one party is set free by the action of
the other, the real matter for consideration is whether
the acts or conduct of the one do or do not amount to
an intimation of an intention. to abandon and altogether
to refuse performance of the contract. I say this in order
to explain the ground upon which I think the decisions
in these cases must rest. There has been some conflict

1L, R. gC. P. 208,
DISCHARGE OF CONTRACT. 503

amongst them. But I think it may be taken that the
fair result of them is as I have stated, viz., that the
true question is whether the acts and conduct of the
party evince an intention no longer to be bound by the
contract. Now, non-payment on the one hand, and non-
delivery on the other, may amount to such an act, or
may be evidence for a jury of an intention wholly to
abandon the contract and set the other party free. That
is the true principle on which Hoare v. Rennie, was
decided, whether rightly or not upon the facts, I will
not presume to say.” ‘Then, after one or two cases in
which some refined distinctions were made in the appli-
cation of the rule laid down in Simpson v. Crippin, came
the case of Houck v. Muller." In this case the plaintiff

had bought from the defendant 2000 tons of iron, to be
delivered in November, or equally in November, De-

cember and January, election to be made by plaintiff.
The plaintiff failed to take any iron in November,
although the defendant wrote, asking him to fix the
time for delivery or to elect, and the defendant there-
upon cancelled the contract. In an action by the plain-
tiff for non-delivery of two-thirds of the iron, z. 2. the
December and January deliveries, it was held that the
refusal to receive in November discharged the whole
contract; two of the judges approving and following
Hoare v. Rennie, and the third dissenting.

In the Mercy Steel & Iron Company vw. Naylor,’ the
defendants had agreed to purchase from the Mercy Com-
pany a large quantity of steel to be delivered on board
ship in five monthly instalments, commencing with Janu-
ary. A portion of the January instalment was delivered
and then the Mercy Company failed and went into liqui-
dation. The defendants, under the advice of their solicitor,

17 Q,. B. D. 92.
29 Q. B. D. affirmed in 9 App. Cas.

a
504 LAW OF CONTRACTS.

declined to pay; and the company advised them that
they should treat their declination to pay as an equivalent
to a rescission of the contract. The defendants then wrote
that they would claim damages for non-delivery in Janu-
ary. The company’s liquidator declined to make any
further deliveries and brought an action for the value of
the goods delivered. The defendants set up a couuter-
claim for damages, and it was held that the conduct of the
defendants was zof such as to evince an intention to re-
pudiate the contract and that therefore they could set up
a counter-claim for damages for non-delivery in January.
In delivering the opinion of the Court, Jessel, M. R., said:
“The first question is what is the rule which is to prevail
as regards the getting rid of the liability to the further
performance, or to the performance of a contract in con-
sequence of the acts or defaults of the other party in
respect to that contract? If one party breaks a contract
is the other party bound to perform his part of it or not?
There is no absolute rule which can be laid down in
express terms as to whether a breach of contract on the
one side has exonerated the other from performance of
his part of the contract. But I think the rule of law
is properly stated in Freeth v. Burr, and it is stated in
a very few words, by the judge from whose decision this
appeal comes. He says, ‘I say this in order to explain
the ground upon which IJ think the decisions in these
cases must rest. There has been some conflict amongst
them; but I think it may be taken that the fair result
of them is as I have stated, namely, that the true ques-
tion is whether the acts and conduct of the party evince
an intention no longer to be bound by the contract.’
That makes it a question of evidence; you must consider
the nature of the breach, the circumstances under which
the breach occurred, and then see whether that is the
result of it.”
DISCHARGE OF CONTRACT. 505

This is the state of the English law on the subject.

In Pennsylvania, Simpson v. Crippin has been followed
in Scott v. Kittanning Coal Company.’ In this case a
contract to deliver 5000 tons of coal in a year, the ship-
ments to be made at the rate of 600 tons per month,
at the buyer’s option upon notices to be furnished, is
a severable contract. Where there has been a part per-
formance of such a contract,— the coal has been received,.
paid for and consumed,—the substitution of inferior coal
is not a ground for rescinding the contract.

In the Lucesco Oil Company v. Brewer,’ the plaintiffs
had agreed to advance $75,000 to the Oil Company from
time to time, as it might be needed, for the conduct of the
business. ‘They had advanced some $71,000, then refused
to advance any more and sued to recover what they had
already advanced, and the defence was set up that the
contract was entire, and not having advanced the whole
$75,000, they could not recover. It was held that they
could. In giving the opinion of the Court, Judge
Williams said: “ The defence set up by the plaintiffs in
error, the defendants below, on the trial of this case, was
based on the hypothesis that the contract between the
parties is entire, and that no recovery could be had thereon,
because the plaintiff below had not in all respects fully
performed their part of the agreement. All the points
submitted by the defendants, . . . andthe refusal of which
by the Court is assigned as error were predicated of an
entire contract. Ifthen the contract was severable, and
not entire, the Court rightly refused to give the instruc-
tions prayed for. The criterion for determining whether
a contract is entire or severable is thus stated by Mr.
Parsons in his work on the law of Contracts: ‘If the
part to be performed by one party consists of several and

189 Pa, St. 231.
266 Pa. St. 351.
506 LAW OF CONTRACTS.

distinct items, and the price to be paid by the other is.
apportioned to each item to be performed, or is left to
be implied by law, such a contract will generally be held
to be severable. . . . But if the consideration to be paid
is single and entire, the contract must be held to be
entire, although the subject of the contract may consist
or several distinct and wholly independent items:’ 2
Par. Con. 29-31. This rule of classification is based on
a distinction so simple that it may be easily understood.
and readily applied. It is the consideration to be paid,
and not the subject or thing to be performed, that deter-
mines the class to which a contract belongs. Its entirety
or separableness depends not upon the singleness of its
subject, or the multiplicity of the items composing it,
but upon the entireness of the consideration, or its ex~
press or implied apportionment to the several items
constituting its subject. If the consideration is single
the contract is entire, whatever the number or variety
of the items embraced in its subject: but if the con-
sideration is apportioned, expressly or impliedly, to each
of these items, the contract is severable.”

In Morgan v. McKee,’ the defendant bought 4000.
barrels of oil from the plaintiff, and eight similar papers
of the same date were executed by them, each for the
delivery of 500 barrels on the last day of consecutive
months, payment to be made on each delivery. On one
of these appointed days the plaintiff refused to deliver.
When the time for the next delivery came round the
defendant gave notice of rescission on the ground of this
previous failure on the part of the plaintiff. It was held
that the plaintiff might recover for the refusal of the
defendant to pay for the oil which was tendered on the
days appointed for the future deliveries after the time of
the plaintiff ’s default.

177 Pa. St. 228,
DISCHARGE OF CONTRACT. 507

The true rule, however, seems to be expressed by
Judge Agnew, in Shinn v. Bodine,‘ where he says: “The
entirety of a contract depends upon the intention of the
parties and not on the divisibility of the subject. The
severable nature of the latter may often assist in deter-
mining the intention, but will not overcome the intent to
make an entire contract, when that is shown. Nor will
the mode of measuring the price, as by the bushel, ton
or pound, change the effect of the agreement when it is
entire.” In this case the contract was held entire. It
was a contract to deliver 800 tons of coal at $6 per ton,
“coal to be delivered on board vessel as sent for during
months of August and September. Should we be unable
to get all away by close of September it is understood you
can keep over on wharf or bring down later, as you
prefer, as much as 300 tons of above quantity.” The
defendants delivered one cargo of coal and then would not
deliver any more, because the plaintiffs would not pay for
that cargo, and it was held that they were not bound to
pay until the whole was delivered.

The Supreme Court of the United States, however, in
Norrington v. Wright,? have adopted the view laid down
in Hoare v. Rennie, and after a long review of the cases,
English and American, more particularly English, decided
that under a contract for 5000 tons of rails, for shipment
from a European port, at the rate of 1000 tons per month,
that a failure to ship anywhere near a thousand tons in
the first month, entitled the other side to rescind the
contract.

This case has been followed in a number of States. In
Pope v. Porter,’ iron was sold to arrive in March and

160 Pa. St. 182. See Gill v. Johnstown Lumber Co., 151 Pa. St. 534; Fullmer
v. Poust, 155 Pa. St. 275; McLaughlin v. Hess, 164 Pa. St. 570.

2115 U. S. 188; cf. Clark v. Wheeling Steel Works, 53 Fed. 494. See also

Miller v. Benjamin, 21 N. Y. S. 1116.
3102 N. Y. 366. See also Anson on Contracts, 8th ed., p. 365, n. 1.
508 LAW OF CONTRACTS.

April. The plaintiffs made default in the March delivery,
and then offered to deliver the April, which was refused,
and it was held that the defendants had a right to treat
the contract as at an end on account of the failure to
make the March delivery. Sometimes a default in regard
to one instalment, either in paying or delivering, may
indicate an intention to abandon the contract, as in the
case of Bloomer wv. Bernstein,’ where it was held that in
a case where the contract for the sale of goods to be
delivered in instalments, the price of each instalment
being payable on delivery, where the buyer does not pay
for one delivery, under circumstances such as to give
the seller reasonable grounds to believe that he does not
intend to pay for future deliveries, the seller may treat
the contract as rescinded.

Subsidiary promtses.

A breach of the subsidiary promise, is a breach of a
promise which the parties have not considered as one
vital to the contract itself, and therefore, it will not dis-
charge the other side. A very good illustration of when
such a promise is vital and when it is not, is found in the
case of Bettini v. Gye,’ in which the plaintiff had been
engaged to sing tenor, under the direction of the defendant,
in various parts of Great Britain, his engagement to begin
on the thirtieth of March, 1875, and terminate on the
fifteenth of July, 1875, ata salary of 150 pounds a month.
Among other stipulations was one that the plaintiff should
not sing anywhere from the first of January, 1875, until
the last of December, 1875, out of defendant’s theatre,
without defendant’s consent; and another stipulation that
the plaintiff should be in London six days before his

1L., R.gC. P. 588. This doctrine is laid down in Stephenson v. Cady, 117
Mass 6. See McGrath v. Gequer, (Md.) 26 Atl. Rep. 502.
271, R.1Q. B.D. 183.
\

DISCHARGE OF CONTRACT. 809)

engagement commenced, for the purpose of rehearsal.
The suit was by the singer, who set out the contract,
that he had fulfilled it by not singing anywhere else and
that he had come to London two days before the beginning:
of his engagement, having been prevented by sickness.
from getting there sooner, and that the defendant had
refused to receive him into his service. The plea was that.
he had not been there six days before, to which there
was a demurrer and the plea was held bad. The opinion
of the Court was given by Blackburn, J., who said:
“We think that we are to look at the whole contract,
and applying the rule stated by Park, B., to be acknowl-
edged, see whether the particular stipulation goes to the
root of the matter, so that a failure to perform it would
render the performance of the rest of the contract by the
plaintiff a thing different in substance from what the
defendant has stipulated for; or whether it merely par-
tially affects it and may be compensated for in damages.
Accordingly, as it is one or the other, we think it must.
be taken to be or not to be intended to be a condition
precedent.” And then upon a careful consideration of
that contract he came to the conclusion that the failure
to be there six days before did not go to the root of the
matter; it was a subsidiary promise.

On the other hand, in the case of Poussard v. Spiers &
Pond,’ there was an agreement by the defendants to.
engage Madam Poussard to sing in opera for them at a
salary of eleven pounds a week, commencing on or about
the fourteenth day of November and continuing for three
months. Madam Poussard was taken sick just before
the engagement opened, and was kept in bed some three
or four days and was unable to perform, and the managers.
employed some other person to play in her place. It was.
left to the jury to find whether or not the non-attendance:

IL, R. 1 Q. B.D. 410.
6
510 LAW OF CONTRACTS.

of Madam Poussard was of such importance as to render
it necessary for the. defendants to employ another artist,
and the jury found that it was, and that the engagement
of a substitute at a higher rate which had also taken place
was also necessary, and the Court decided in view of these
_ facts that the failure of Madam Poussard to attend went to
the root of the whole contract and it was therefore rescinded.

Another class of cases which illustrate subsidiary
promises are warranties of quality in the sale of personal
property. These are subsidiary agreements, the breach
of which may be compensated in damages, and do not dis-
charge a contract... Warranty is a collateral undertaking,
forming a part of the contract by the agreement of the
parties. It is important to bear in mind one distinction
that where the contract is executory, there a failure to
deliver goods of the quality contracted for entitles the
buyer to reject the goods, because the description of the
goods as long as the contract is executory, is a condition
precedent. In other words, the buyer is entitled to have
goods of the quality which is stipulated for, but after the
title of the goods has passed, that which was a condition
before and would have entitled the buyer to refuse to
fulfill the contract of sale becomes a subsidiary promise
and does not entitle him to return the goods, but he
must either sue in damages for the breach of warranty or
set off these damages in a suit for the price.’

In Ellen v. Topp,’ the principle is stated as follows:
“Tt is remarkable that, according to this rule, the con-

1See Sheffield Ry. Co. v. Gordon, 151 U. S. 285; White v. School Dist., 159
Pa. St. 201. :

2 Dawson v. Collis, 10 C. B. 823; Freyman v. Knecht, 78 Pa. St. 141. On this
question of a condition precedent, where the contract is executory, becoming a
warranty after the contract is partially or wholly executed, see Biddle on the
Sale of Chattels, 3 89 e¢ seg.; and the judgment in Behn v. Burness, 3 B.
& S. (113 E. C. L. R.) 751; also the note of Professor Parsons to that case; and
particularly the remarks by Pollock, C. B. in Ellen v. Topp, 6 Exch. 424-442.

3 Supra. :
DISCHARGE OF CONTRACT. 511

‘struction of the instrument may be varied by matter ex
post facto; and that which is a condition precedent when
the deed is executed may cease to be so by the subsequent
conduct of the covenantee in accepting less; as in the
cases referred to, the defendant, in the first, might have
objected to the transfer, if the plaintiff had no good title
to the negroes and refused to pay; in the second, he
might have objected to the payment if the plaintiff had
refused to transfer the patent, though he had been will-
ing to teach the art of bleaching. But this is no objec-
tion to the soundness of the rule, which has been much
acted upon. But there is often a difficulty in its applica-
tion to particular cases, and it cannot be intended to
apply to every case in which a covenant by the plaintiff
forms only a part of the consideration, and the residue
of the consideration has been had by the defendant.
That residue must be the substantzal part of the contract ;
and if, in the case of Boon v. Eyre, two or three negroes
had been accepted, and the equity of redemption not
conveyed, we do not apprehend that the plaintiff could
have recovered the whole stipulated price, and left the
defendant to recover damages for the non-conveyance
of it.”

Conditional promises.

It has been stated that a breach of contract will not
always necessarily discharge a contract, but that whether
it will or not is a question to be ascertained from the
intention of the parties as to the nature of their respective
promises; and the question resolves itself into this: Are
the promises of the parties independent of, or conditional
upon one another? We have now to deal with promises
which are conditional.

Where a promise is subject to a condition, that condi-
tion must be either precedent, concurrent or subsequent
512 LAW OF CONTRACTS.

in time. Instances of how a condition subsequent may
operate to discharge a contract were spoken of in discuss-
ing the discharge of contracts by agreement. They
were cases:

first, where one side was given the right to rescind
certain terms of a contract which were not complied with ;

Second, wpon the occurrence of some specified event; and

Third, at the option of one of the parties upon certain
terms, such as notice, for instance.

In those cases, however, the condition upon the happen-
ing of which the contract would or might be discharged
was inserted in the contract itself.

Where the contract is discharged by breach of a condi-
tion subsequent, there the materiality of the default must
be shown, it not being part of the agreement that if there
is a breach, there must bea discharge. In the case of a
concurrent condition, the right of one party under a
contract is dependent upon his doing something concur-
rently with the performance of the promise on the other
side. An instance of this kind of condition is found in
an ordinary sale of goods, “where goods are sold, and
nothing is said as to the time of delivery, or the time of
payment, and everything the seller has to do with them
is complete, the property vests in the buyer, so as to
subject him tothe risk of any accident which may happen
to the goods, and the seller is liable to deliver them
whenever they are demanded upon payment of the price;
but the buyer has no right to have possession of the
goods till he pays the price.”*

Where a promise is made subject to a condition prece-
dent, no obligation arises under the promise until the
condition has been performed. Sometimes the failure to

1 Per Bayley, J., in Bloxam v. Sanders, 4 B. & C. 941. For the rule as to
damages, see Fireworks Co. v. Polites, 130 Pa. St. 536; Ballentine v. Robinson,
48 Pa. St. 177.
DISCHARGE OF CONTRACT. 513

fulfill a condition precedent attached to a promise does not
discharge the contract, but merely suspends the right of
action upon it, as where payment for a building is not
to be made until an engineer has given a certificate
that the work has been properly done;? or where some
act is to be done by the promisee, as demand made, or
notice given, as in the case of the obligation of a landlord
to repair upon notice. In such case his obligation does
not arise until notice is given.? In these cases, if an
action is brought before the failure of the condition, it
does not prevent the bringing of a second action after
the condition has been performed.

But where the condition precedent is such that the
breach of it is the breach of a term expressly or im-
pliedly essential to the validity of the contract, that is,
to the completeness of the agreement between the parties,
so that when it is broken one party loses a material part of
the whole of that in consideration of which he promised,
the breach of such a condition discharges the contract.

So that where a promise is not an absolute promise,
but a conditional one, it will be discharged:

first, by the failure to fulfill a concurrent condition, |
that is, by the failure to do or to be ready to do something
which should be done, or ready to be done, at the time
of performance by the other side;

Second, by the failure, total or partial, of one party to
do that thing in consideration of which the other party
promised ; and

Third, by the failure to do something, or by the untruth
of some statement material to the agreement or contract.*

1 See Morgan v. Birnie, 9 Bing. 672; Mahoney v. Rector etc. of St. Paul’s Church,
47 La. and 1064; Schmidt v. City, 40 Pac. 790; Robinson v. Baird, 165 Pa. 505.

2 Makin v. Watkinson, L. R. 6 Exch. 25.

* Palmer v. Temple, 9 A. & E. 508.

4 This analysis of the discharge of contracts by breach of a material condi-
tional promise is substantially that given in Anson on Contracts, * pp. 296-298.

33
514 LAW OF CONTRACTS.

Before taking up these separate heads, two cases in
Pennsylvania which illustrate very clearly conditional
and absolute promises should be referred to.

In Weichardt v. Hook,’ the plaintiff sold the defendant
some stock in a company and took in part payment the
defendant’s note secured by part of the same stock as
collateral; some dispute having occurred between them,
they agreed to leave it to their lawyers. The lawyers
agreed that the plaintiff should give the defendant back
his notes, pay a certain amount of money, and at the
same time the defendant should give back the stock.
Nothing was done under this agreement, and the plaintiff
then brought suit on the notes, and the defendant filed
an affidavit of defence setting up this agreement as a
bar to the action, and it was decided that it was not;
and in regard to it the Court said: “The conditions
therein contained are mutual and dependent, and it
thence follows that neither party can set it up without
at least a tender of performance. This contract, in itself,
neither satisfied the notes nor transferred the stock.
Hither of these things could result only from a perform-
ance of its conditions, and without this it was inoperative.
As the plaintiff had no right in or to the stock until
he tendered the payment of the money and cancellation
of the notes, so the defendant had no right to such
money or cancellation until he tendered a transfer of the
stock.”

In Long wv. Caffrey,? a mechanic, who was about to
erect a building, agreed in writing with the owner thereof
that he would not file a mechanics’ lien against the
building and that no one else should, and the owner
agreed, to better secure the mechanic, that he would
insure the building and transfer to him the policy as

183 Pa. St. 434.
293 Pa. St. 526.
DISCHARGE OF CONTRACT. 515

collateral. The owner failed to insure the building and
the mechanic filed a lien, and this agreement was set
up as a defence, and it was held to be a good defence.
The Court said: “The different parts of the contract
are separate and independent covenants, and we see no
reason why the one not to file a lien should not be
enforced.”

L. Concurrent conditions.

Where the conditions are concurrent, neither party
can recover against the other unless he can show per-
formance on his side or an offer to perform, because the
failure of performance in such a case discharges the con-
tract." This sort of condition is illustrated in the case
of Hapgood v. Shaw, and Shaw v. Hapgood.” In this
case the parties made an agreement as follows: ‘‘ Boston,
March 30, 1864.—Received of Jacob Hapgood $100 on
account of guns shipped by us per invoice £90 sterling
from Joseph Child, and now in bonded warehouse in New
York, which guns we promise to deliver to said Hapgood
on the first day of June next, or at such time as he
shall order previous to that date, upon payment of bal-
ance of invoice with freight, charges and interest to date
of remittance due in England.” ‘The agreement was
signed by Warran & Company. At the time of the
execution of this paper Hapgood paid the $100, and
agreed to receive the guns on or before June 1, 1864;
and up to June 6, Warran & Company neither delivered
nor offered to deliver the guns to Hapgood; nor made
to him any statement or demand of the amount of the

1 Cronin v. Tebo, 24 N. Y. S. 644; Babsell v. St. L., A. & T. Ry. Co., 4 Tex.
Civ. App. 580.

2105 Mass. 276. ‘The rule of common law, now embodied in the Sale of
Goods Act, was that, unless otherwise agreed, delivery of the goods and pay-
ment of the price are concurrent conditions. Anson on Contracts, 8th ed.,

Pp: 363.
516 LAW OF CONTRACTS.

sums to be paid by him for them. Hapgood never
requested any such statement nor paid, nor offered to
pay, the amount. On June 6, Warran & Company re-
quested Hapgood to take and pay for the guns, which
he refused to do.

Warran & Company brought an action for refusal to
accept and pay for the guns, and Hapgood brought an
action for the $100 that he had paid on the guns, and
it was held that neither could recover. The Court said:
“Tf this had been an absolute, independent agreement,
on the part of Warran & Company, they would have
been in default, upon the facts here shown. But the
case finds a mutual agreement. Hapgood, at the time
of executing the written contract by Warran & Com-
pany orally agreed ‘to receive the goods on or before
June 1;’ and this, with the acceptance of the writing,
implied a promise to pay the balance as stipulated
therein. The written contract, by its express terms,
engages for the delivery, only ‘upon payment of the
balance of invoice with freight, charges ‘and interest.’
These are mutual dependent stipulations. ‘The acts of
performance by each party are to be concurrent. There
is nothing to be done by either, which by the terms of
the agreement, or from the necessity of the case, must
precede any action by the other. It is urged in behalf
of Hapgood, that he could not pay until furnished with
a statement of charges. But we do not see that Warran °
& Company were under any obligation to furnish such
a statement except upon request and offer of payment,
or notice of readiness to pay. No place is specifically
agreed on for the performance; so that neither party is
in default for not being in readiness at such place.

es . oa Upon the statement, neither party is in
default; neither can hold the other for a breach of the
agreement. Hapgood was bound to pay only upon
DISCHARGE OF CONTRACT. 517

the delivery of the guns, and Warran & Company were
bound to deliver the guns only upon payment. Upon
such an agreement, if both parties remain inactive, there
is no breach by either. If either would charge the
other upon it, he must put him in default. He must
show a refusal by the other party to perform, or some
act or neglect on his part which may be regarded as
equivalent to a refusal. Unless excused from perform-
ance on his own part, by the refusal of the other party
to perform, or some conduct equivalent to a refusal, he
must show that he has offered to perform his part of the
agreement ; or at least that he gave notice of his readiness
to perform, or, being thus ready, requested performance
by the other party. Failing to do that, he cannot
charge the mere neglect of the other party to take any
action, as a refusal to perform, or as a breach of the
agreement.”

And then the Court went on to say, that Hapgood
could not recover his $100 unless he could treat the
contract as rescinded, and the contract not having been
rescinded before June 1, he could not treat any act of
Warran & Company as a rescission after he had himself
refused to receive the guns.

In Henderson wv. Lauck,' the plaintiff had sold a lot
of corn to be paid for when the last load was delivered,
and he delivered the corn at a mill belonging to the
defendant, dumping it upon a heap of other corn with
which it became mixed up. When the last load was de-
livered he went into the town some distance from the
mill, and asked payment. The defendant could not pay
him and he immediately went back and undertook to
take out of the heap the amount he had delivered, and
the defendant’s agent would not permit this; he then
brought an action of replevin for the amount of corn

Jar Pa. St. 359.
518 LAW OF CONTRACTS.

delivered and the Court said: “If the plaintiffs did not
rely on the promise of Preston to pay, but relied on
receiving payment as soon as the last load was delivered,
agreeable to the contract, and one of them immediately
came to Carlisle, and ascertained that Preston could not
pay him, and returned the same day, and gave notice to
the miller to whom he had delivered the corn that Preston
had failed to comply with his contract, that the corn
was his and not Preston’s, and that the miller should not
use it, and the corn remained as it then was till the writ
of replevin was served, the plaintiffs might recover,” and
this judgment was affirmed.

The same rule applies in ordinary contracts for service.
The performance of the service is a condition precedent
to right of compensation. In Stark wv. Parker,’ the
plaintiff agreed to work for the defendant a year for
$120; he left before the year was out without any de-
fault of the defendant’s and .sued for a proportional
part of the compensation which was coming to him for
the entire year. It was held that he could not recover.’
The conclusion seems rather in favor of the right of
the employee to recover a ratable compensation for the
time of his services, even though the contract be considered
entire ; though in Lyle v. Wilson,’ the Supreme Court of
Pennsylvania inclined the other way, and rather toward the
view taken in the early Massachusetts case already cited.

IT. Fatlure of consideration.

Where there has been a partial or total failure to
perform on one side, where such performance was a

12 Pick. (Mass.) 267.

? The cases on this subject, however, are not uniform. They are collected in
the note to Cutter v. Powell, p. 43 of the 8th ed., 2 Smith’s Leading Cases.
See also Eng. and Am. notes to Cutter v. Powell, Campbell’s Rul. Cas., Vol. VI,
p. 627.

323 W. N.C. 309.
DISCHARGE OF CONTRACT. 519

condition of the promise on the other, the contract is dis-
charged. Such cases are those spoken of by Sergeant
Williams in Pordage v. Cole, in Saunder’s Reports,
under his fourth classification, which is when the mutual
covenants or promises go to the whole consideration on
both sides, they are mutual conditions, and the perform-
ance must be averred. The total failure by one party
to perform where the performance was the condition on
which the promise was made on the other side will
clearly discharge the contract.

The question of the failure of the one party to a con-
tract to do that which he is bound to do under it arises
very frequently in cases of sale, where there is no ex-
press stipulation as to quality of the goods, and where
the goods are either sold by description or by sample.
In such cases the goods must not only correspond to
the description, but they must be of merchantable
quality.

The rule is thus stated in Jones v. Just:* “It appears
to us, that in every contract to supply goods of a specific
description which the buyer has no opportunity to in-
spect, the goods must not only in fact answer the
specific description, but must also be salable or merchant-
able under that description.” The opinion of the Court
in this case was by Mellor, J., and contains a careful
review of the English cases on the subject.” Suit was
brought on a contract for a cargo of manilla hemp to
arrive from Singapore. The cargo was damaged when’
it arrived so that it was not merchantable, but not to
such an extent as to lose its identity as manilla hemp.
The quality of the hemp was treated as a warranty,
because the purchaser had taken and subsequently sold

1L,R. 3Q. B. 197-204.
2 For a review of many of the Eng. and Am. decisions, see Biddle on War-

ranties on the Sale of Chattels, 33 89-131.
520 LAW OF CONTRACTS.

it, but he would have been entitled to reject it; and the
same rule would apply if the bulk delivered equalled the
sample and still did not correspond to the description of
the goods sold.‘ For warranty affects only the quality,
but not the nature or quantity of the thing itself.

In Josling v. Kingsford,? where a man had purchased
oxalic acid, after an examination both of the sample
and the bulk by the buyer and the seller, and after
the seller had said: “As regards the strength of the
oxalic, your friend having already examined the bulk,
we decline all responsibility in this respect,” the acid
delivered having been found to contain 10 per cent.
of magnesia, and suit having been brought for a failure
to deliver goods according to contract, it was left to
the jury to say whether the article delivered came prop-
erly under the denomination of oxalic acid, and this
was held to be correct. Williams, J., said: “‘ However
completely the defendant may have guarded himself
against contracting that the thing was the very partic-
ular quality, it is not possible to construe the contract
in any other way than that it was a part of the agree-
ment that the subject of the sale should be the oxalic
acid of commerce,” and that therefore the contract was
discharged, the thing contracted for not having been
delivered. In contrast with this is the recent ruling in
Pennsylvania, in the case of Ryan v. Ulmer,? where it
was held that a contract to deliver “Five car-loads fully
cured, sweet, pickled shoulders, f. 0. b. Dubuque,” was
satisfied by shipping sour pork, provided it was not
unmerchantable. All that is necessary in this State in
a sale by sample or description, is that the thing

'Nichols v. Godts, 20 Ex. 191.

2130. B., N.S. (106 F.C. L. R.), 447.

3108 Pa. St. 332. See Furniture Co. v. Warsaw Township Sc. Dist. 158 Pa.
St. 35; Bank v. Newton, 6 Kulp (Pa.) 193.
DISCHARGE OF CONTRACT. 521

supplied should be of the same species and be mer-
chantable.*

Where the title to the property has passed, a defect in
the quality of the goods, even though it be such as to
render them worthless, will not entitle the buyer to return
the goods. His remedy is either, in case the price has
not been paid, to defend in an action brought by the
seller, for the price, or, if he has paid for the goods, to
bring an action for breach of warranty. There is one
point to be noticed though, where the seller sues for
the price; it is that the buyer may defend the action
successfully for the whole of the price.? But the case
cited as authority by Anson does not sustain the
proposition

Poulton zw. Lattimore, was acase where a man had
warranted seed which he sold to be good, new, growing
seed, and the man who bought it put it in the ground and
found that it was not. The seller sued for the price, and
the buyer set up that it was worth nothing, and there-
fore the seller could recover nothing, and the judgment
was for the defendant. In delivering the opinion of the
Court, Parke, J., said: ‘‘ The plaintiff might have shaped
his case in either of two ways. He might have claimed
to recover the price stipulated in the contract made
between the parties, but then he could not have recovered
that price, without showing that the warranty was com-
plied with. But if, in order to recover the contract
price, he had attempted to show that the warranty was
complied with, it would, undoubtedly, have been compe-
tent to the defendant to give evidence to negative that fact.

1 Mining Co. v. Jones, 108 Pa. St. 55. But see Fogle v. Brubaker, 122 Pa.
St. 7, where the Eng. rule is applied. See Statute 13th April, 1887, P. L. 21,
that sale by sample implies warranty that goods are in quality like the sample.

2 Anson on Contracts, * p. 302. Poulton vw. Lattimore, 9 B. & C. (17 E.C.
L. R.), 259.

3 Supra.
522 ‘LAW OF CONTRACTS.

The plaintiff, instead of relying upon the contract, might,
however, claim to recover on the guantum valebat
so much as the seed was worth, and proved by parol
the actual value of the seed. In answer to that case,
it would be competent to the defendant to show by
the contract, that he purchased the seed as good, grow-
ing seed, to use for the purpose of sowing, and that,
not being good, growing seed, was of little or no yalue
to him.”

In that case, the plaintiff, according to the rule laid
down by the Court, could not recover on the contract,
and the reason that he recovered nothing on the guantum
valebat was that the article furnished was worth nothing.
Where, however, the breach of the implied condition of
merchantability does not discharge the contract, because
the title has passed, and the plaintiff is therefore entitled
to recover the contract price for the goods less the dim-
inution in value caused by the defect in quality, or
merchantability of the goods, what the defendant is
entitled to deduct is not the difference between the con-
tract price and the actual value of the goods delivered,
but the difference between what the value of those goods
would have been had they been up to the standard of
what they were represented when sold, and the condition
in which they were when sold. In Seigworth v. Leffel,’
Judge Sharswood said: “ All that the defendants could
claim was to set off against the plaintiff's demand the
damages recoverable on breach of the warranty. In such
a case the measure of damages is well settled to be the
difference between the value of the articles as warranted
and the real value or market price. . . . The
reason is a conclusive one: if the vendee made a bad
bargain, he is not to be reimbursed what he lost by his
simplicity in damages for a breach of warranty.”

176 Pa. St. 476.
DISCHARGE OF CONTRACT. 523

LITl. Conditions precedent.

The third class of cases in which a breach discharges
a contract is where there is a statement material to
the contract, which is untrue, or the breach of some
term of a contract deemed essential to its validity by
the parties; and this class comprises the breach of
what is strictly a condition precedent, which is defined
by Anson to be “a statement or promise, the untruth
or non-performance of which discharges the contract.”
It is perfectly settled that the breach of such a con-
dition discharges the contract.

The difficulty is in practically applying the rule.
The trouble is to find out whether the parties consid-
ered the particular statement or the particular act essen-
tial to the validity of the contract; if they did, its
untruth or non-performance will discharge the contract ;
if they did not, it will not discharge the contract but
an action for damages will lie.

Anson’ defines a warranty to be a more or less qualified
promise of indemnity against a failure in the performance
of a term in the contract; and if the particular state-
ment or term in the contract is nothing but a promise of
indemnity against a failure of performance, its untruth or
non-performance will not discharge the contract; and
whether it is one or the other is a matter to be ascertained
by trying to find out by the whole contract and its
surrounding circumstances what the parties really con-
sidered it. .

A statement may be such a term in a contract that its
untruth will discharge the contract. This is explained
in the judgment of Williams, J., in Behn v. Burness,’

1 Anson on Contracts, 8th ed., p. 369, notea. See Sale of Goods Act, 56 and.
57 Vict. c. 71, 2g 10-15, and Chalmers.on Sale of Goods Act, Appendix ii.

23 B. & S. 751, Campbell’s Rul. Cas., Vol. VI, p. 492, with Eng. and Am.
notes, pp. 500, 50I.
524 LAW OF CONTRACTS.

where he says: “The representations are not usually
contained in the written instrument of contract, yet they
sometimes are. But it is plain that their insertion
therein cannot alter their nature. A question, however,
may arise, whether a descriptive statement in the written
instrument is a mere representation, or whether it is a
substantial part of the contract. This is a question of
construction which the Court, and not the jury, must
determine. If the Court should come to the conclusion
that such a statement by one party was intended to be a
substantive part of the contract and not a mere represen-
tation, the often discussed question may, of course, be
raised, whether this part of the contract is a condition
precedent or only an independent agreement, a breach of
which will not justify a repudiation of the contract, but
will only be a cause of action for compensation in dam-
ages. In the construction of charter parties this question
has often been raised, with reference to stipulations that
some future thing shall be done or shall happen, and has
given rise to many nice distinctions. Thus a statement
that a vessel is to sail or be ready to receive a cargo, on
or before a given day, has been held to be a condition,

while a stipulation that she shall sail with
all convenient speed, or within a reasonable time, has
been held to be only an agreement." . But
with respect to statements in a contract deseaipeive of the
subject matter of it, or of some material incident thereof,
the true doctrine, established by principle as well as
authority, appears to be, generally speaking, that if such
descriptive statement was intended to be a part of the con-
tract, it is to be regarded as a warranty, that is to say, a
condition on the failure or non-performance of which the
other party may, if he is so minded, repudiate the con-
tract zz toto, and so be relieved from performing his part

1 See, however, Lowber v. Bangs, 2 Wall 728.
DISCHARGE OF CONTRACT. 525

of it, provided it has not been partially executed in his
favor.”

If the matter, in respect to which there has been a
failure to fulfill, is one which the parties have expressly
agreed shall be vital to the contract, or one which, from a.
fair construction of the whole contract, appears to have
been intended to be vital, then such failure will discharge
the other party to the contract."

‘Time may be such an essential element that even in
a Court of Equity a contract will not be specifically en-
forced, because performance has not been tendered in time.
In Taylor v. Longworth,’ Justice Story says: “In the
first place, there is no doubt that time may be of the
essence of a contract for the sale of property. It may
be made so by the express stipulation of the parties, or
it may arise from implication from the very nature of
the property, or the avowed objects of the seller or the
purchaser.” In Carter v. Phillips,’ the plaintiff was em-
ployed by the defendant as manager of a manufactory,
under an agreement by which his employment could be
terminated by either party upon sixty days’ notice, and
the plaintiff by the contract had the privilege of pur-
chasing the property at a certain price, within the sixty
days. The defendant notified him that he would not
need his services at the end of sixty days, and on the
last of the sixty days the plaintiff said that he had
decided to buy the property and asked the defendant to
join with him in ascertaining what the price should be,
but he made no offer to pay the amount, and had not
the means or ability to pay the same at that time and
the defendant refused to sell to him. Upon a suit

1Hocking v. Hamilton, 158 Pa. St. 107. See, however, Anson on Contracts,

8th ed., p. 183 and notes,
214 Peters 172. See Thorne v. French, 24 N. Y. S. 694.

3 144 Mass. 100.
526 LAW OF CONTRACTS.

brought to enforce the contract the Court decided that
the bill must be dismissed, that time was of the essence
of the contract and that the plaintiff must offer to com-
plete the purchase on the last of the sixty days. In
Jones v. The United States,* there was an executory
contract with the manufacturer of goods to deliver on a
specific day. It was held that a failure to deliver at the
time discharged the vendee from the obligation to take
them, because the purpose was to supply those goods to
an army in the field.

REMEDIES FOR A BREACH.

Where a contract is discharged by a breach, the other
party is exonerated from the obligation to do anything
more under the contract, whether he has done anything
or not. If he has done anything, he has a right to
recover the value of what he has done in an action on
quantum merurt or quantum valebat, that is, in an action
arising out of the conduct of the parties. In the third
place he has a right of action on the contract itself for
damages for the breach.”

The remedies for a breach are stated in the note to
Cutter v. Powell,’ as follows:

(x) Where there has been a special contract, the whole
of which has been executed on the part of the plaintiff,
and the time of payment on the other side has passed,
a suit may be brought on the special contract, or a general
assumpsit may be maintained; and in the last case the
measure of damages will be the rate of recompense fixed
by the special contract.

496 U. S. 24; particularly the opinion of Clifford, J., p. 27. See Hoffman v.
Bloomsburg & S. R. Co., 157 Pa. St. 174. -

?See Anson on Contracts, 8th ed., p. 374 and notes.

32 Sm. L. Cas. 33. See also Eng. and Am. notes to Campbell’s Rul. Cas.
Vol. VI, pp. 638, 639.
DISCHARGE OF CONTRACT. 527

(2) If there has been a special contract which has been
altered or deviated from in particulars, by common con-
sent, general assumpsit will lie when the work has been
performed ; and in such case, if the original contract has
not been wholly lost sight of in the work as executed,
the rates of recompense fixed by it shall be the measure
of damages as to those parts in which it can be traced
in the performance; and for the new or extra work, the
recovery shall be upon a guantum merutt.

(3) If there has been a special contract which remains
unaltered, and the work has been performed, but not
according to the terms of the contract, so that the plain-
tiff could recover nothing in a special assumpsit on the
contract, the question whether he can recover, in a guan-
tum meruzt, the value of the work to the defendant, will
depend substantially upon the question whether the work
done is by the defendant’s consent or against it.

(4) If there has been a special contract, and the plain-
tiff has performed a part of it according to its terms, and
has been prevented by the act or consent of the defend-
ant, or by the act of the law, from performing the residue,
he may in general assumpsit recover compensation for
the work actually performed, and the defendant cannot
set up the special contract to defeat him.

(5) But if there has been an entire executory contract,
and the plaintiff has performed a part of it, and then
wilfully refuses, without legal excuse and against the
defendant’s consent, to perform the rest, he can recover
nothing either in general or special assumpsit.

The cases in support of these general propositions
will be found in the note referred to.

Generally speaking, the remedy for a breach of a con-
tract is either damages, or the enforcement of a specific
performance of the contract. The latter remedy is an
equitable one, and can only be enforced in a court of
528 LAW OF CONTRACTS.

equity, or in a court where equitable principles are ad-
ministered, and is only available under certain circum-
stances. Damages is a general remedy for a breach of a
contract.

Ll. Damages.

Where the parties have not provided in the contract
itself what the damages shall be for the breach of it,
the rule at common law is as follows: ‘“‘ Where a party
sustains a loss by reason of a breach of contract, he is,
so far as money can do it, to be placed in the same
situation in respect to damages as if the contract had.
been performed.”’*

In Noble v. Ames Manufacturing Co.,? the defendant.
wrote the plaintiff, who was in the Sandwich Islands,
that if he would come to the defendant’s works in Massa-
chusetts, he would employ him at a salary of $1500 a
year. He came on from the Sandwich Islands and the
defendant refused toemploy him. He brought an action
for a breach of contract, and the judge instructed the
jury that he was entitled to recover his expenses in
coming from the Sandwich Islands and for the time
consumed in his journey, at the rate of $1500 a year;
and this rule was assigned for error and held to be wrong
in both particulars. The contract was not to commence
until the plaintiff got there, and if he had gone to work
when he came and then been discharged at the end
of the year, he would have received $1500; but under:
the ruling, if the contract was broken and he remained
out of employment, he would get $1500 and in addition

1Robinson v. Harman, 1 Exch. 850; Noyes v. Barnard, 63 Fed. (C. C. A.)
782. As to distinction between penalty and liquidated damages, see Butler z.
Stone & Min. Co., 47 Ill. App. 153; Barton zu. Patents Co., 68 Law. T. 857;
Wagner v. Kingsley, 27 N. Y. S. 1124; Gibson v. Oliver, 158 Pa. St. 277; Ken-
wood Bridge Co. v, Dunderdale, 50 Il]. App. 581; Dixon-Woods Co. z. Phillips.

Glass Co., 169 Pa. St. 167; Bancroft v. Seribner, 72 Fed. 988.
2112 Mass. 492,
DISCHARGE OF CONTRACT. 529 °

the expenses of his removal and compensation for the
time consumed, which would have been more than the
contract contemplated.

The rule laid down by Parke, B., in the case of Robin-
son v. Harman,* has been qualified to this extent: that
the damages to which the plaintiff is entitled are such as
might have been supposed by the parties to be the natural
result of the breach—such as they may be supposed to
have contemplated would be the result of a breach when
the contract was made. ‘The leading case on this subject
is Hadley v. Baxendale,’ in which the owner of a flour
mill sent a broken shaft to the office of the defendants, ,
who were common carriers, to be conveyed by them; and
the defendant’s clerk was told that the mill was stopped
and the shaft must be delivered immediately, and if
necessary a special entry must be made to have it for-
warded. ‘There was an unreasonable delay in delivering
the broken shaft to the consignee, who was to make a
new one, using the one sent as a pattern; and in conse-
quence the plaintiffs were not able to work their mill for
some days, when, if they had had the shaft, they would
have been able to do so, and they incurred a loss thereby.
Held that such loss could not be recovered from the
defendants. In delivering the opinion of the Court,
Judge Alderson said :

“Now we think the proper rule in such a case is this:
Where two parties have made a contract which one of
them has broken, the damages which the other party
ought to receive in respect of such breach of contract
should be such as may fairly and reasonably be considered
either as arising naturally, ze. according to the usual,
course of things from such breach of contract itself, or

11 Exch. 850.
29 Exch, 341; and see Eng. and Am. notes to this case, Campbell’s Rul. Cas.,
Vol. VI, pp. 617 e¢ seg.

34
530 LAW OF CONTRACTS.

such as may reasonably be supposed to have been in the
contemplation of both parties, as the probable result of
the breach of it. Now, if the special circumstances under
which the contract was actually made were communicated
by the plaintiffs to the defendants, and thus known to
both parties, the damages resulting from the breach of
such ‘a contract, which they would reasonably contem-
plate, would be the amount of injury which would ordi-
narily follow from a breach of contract under these special
circumstances so known and communicated. But, on the
other hand, if these special circumstances were wholly
unknown to the party breaking the contract, he, at the
most, could only be supposed to have had in his contem-
plation the amount of injury which would arise generally,
-and in the great multitude of cases not affected by any
special circumstances, from such breach of contract. For,
had the special circumstances been known, the parties
might have specially provided for the breach of contract
by special terms as to the damages in that case; and of
this advantage it would be very unjust to deprive them.”*

If it is desired to charge either party to a contract with
any special loss, not within the ordinary contemplation
of the parties in making the contract, it is necessary to
put an expression of that kind in the contract.

In Horne v. The Midland Railway Company,‘ the
plaintiffs, being shoe manufacturers, were under a contract
to supply a quantity of military shoes to a firm in London,
for the use of the French army, at an unusually high
price. The shoes were to be delivered at a given date.

1 This case has been very generally followed in this country. It is approved
in Pennsylvania in the case of Flemming v. Beck, 48 Pa. St. 309. See also Horne
v. Midland Railway Co., L. R. 8C. P. 131; Fox v. Boston R., 148 Mass. 220;
Lantern Co. v. Stiles Co., 135 N. Y. 209; Clark v. National Benefit Co., 67 Fed.
222; Consolidated Coal Co. vw Smelting Co., 53 Ill. App. 565; Lawrence v,
Porter, 63 Fed. 62.

7L. R. 8C. P. 131.
DISCHARGE OF CONTRACT. 531

They were sent to the defendant’s station in time to be
delivered in London at that date. Notice was given to
the station master at the time that the plaintiffs were under
a contract to deliver the shoes at a certain time and that
unless they were so delivered they would be thrown on
their hands, but nothing was said of the unusually high
price of the shoes. The shoes were not delivered in time,
and were not accepted by the consignees, and the plain-
tiffs were obliged to sell them at a price which was
considerably less than the contract price. In a suit
brought by the plaintiffs against the railroad company,
the latter paid into Court an amount sufficient to cover
an ordinary loss, but the plaintiffs claimed a further
amount, to wit: the difference between the contract
price and the amount realized from the sale of the
shoes. :

It was held by five of the judges that the defendants
were not liable and by two dissenting judges that the
notice was sufficient to put the defendants upon inquiry
as to the nature of the contract which the plaintiffs were
under, and if they accepted the goods without inquiry,
they accepted them at the risk of whatever might be in
that contract. ‘The ground upon which the majority of
the Court placed the case was that there was no special
contract entered into by the railroad company to bear the
exceptional loss, the notice not being sufficient to make a
contract, because the railroad was bound to carry the
goods anyway. The case is a very interesting one.
There are seven opinions given, and there is a good deal
of difference among the judges as to exactly what the
true rule of damages was in this case, although the result,
generally, is as I have stated it.

It is stated in some books on the subject that loss of
profits cannot be compensated for as part of the damages
for a breach of contract.
532 LAW OF CONTRACTS.

In Flemming v. Beck,’ it was decided that a man could
not recover the loss of profits caused by the defective
repair of a millstone. In giving the opinion Judge
Agnew says, “ Mr. Sedgewick, in his work on damages,
page 78, says, ‘Both the English and American Courts
have generally adhered to the denial of profits as any
part of the damages to be compensated, and that whether
in cases of contract or of tort. He further says:
‘Independent, however, of all authority, I am satisfied
upon principle that an allowance of damages upon a
basis of the calculation of profits, is inadmissible. The
rule would be in the highest degree unfavorable to the
interests of the community;’ the reasoning for which
he then proceeds to give. The same doctrine is stated
in 2 Parsons on Contracts 458-9. I think the rule in
such cases is well stated in the case of Hadley v. Baxen-
dale, 9 Ex. (26 Eng. L. & E.) 398. There Alderson,
B., says: ‘Now we think the proper rule in such a case
as the present is this: Where two parties have made a
contract which one of them has broken, the damages
which the other party ought to receive, in respect to
such breach of contract, should be such as may fairly
and reasonably be considered either arising naturally, z.
e. according to the usual course of things, from such
breach of the contract itself, or such as may reasonably
be supposed to have been in the contemplation of both
parties at the time they made the contract, as the probable
result.of the breach of it.’ In strict logic it may be
said that he who is the cause of loss, should be answerable
for all the losses which flow from his causation. But in
the practical workings of society, the law finds, in this
as in a great variety of other matters, that the rule of
logic is impracticable and unjust. The general conduct
aud reflections of mankind are not founded upon nice

148 Pa. St. 309.
DISCHARGE OF CONTRACT. 533

casuistry. Things are thought and acted upon rather
in a general way, than upon long, laborious, extended,
and trained investigation. Among the masses of man-
kind conclusions are generally the results of hasty and
partial reflections. Their undertakings, therefore, must
be construed in view of these facts: otherwise they would
often be run into a chain of consequences wholly foreign
to their intentions. In the ordinary callings and business
of life failures are frequent. Few, indeed, always come
up to the proper standard of performance; whether in
relation to time, quality, degree, or kind. To visit upon
them all the consequence of failure would set society
* upon edge, and fill the courts with useless and injurious
litigation. It is impossible to compensate for all losses
and the law therefore aims at a just discrimination,
which will impose upon the party causing them the
proportion of them that a proper view of his acts and
the attending circumstances would dictate.”

The reason stated here for not recovering profits seems
hardly to be the correct one. The better reasoning
appears to be as stated in the note to Vicars v. Wilcox.’
The profits are excluded, generally speaking, because
they depend upon combinations so various and uncertain
that it would be impossible to arrive at any definite
determination of the actual value of the loss by any
trustworthy method, and the following passage in the
case of Allison v. M’Lean,’ is cited. “It seems reason-
able that where profits are thus lost, the defaulting party
should make them good; for the machinery is purchased
with a view to the profits, and the contract would not
be entered into if the profits were not expected and
counted upon. But the difficulty in measuring damages
by profits is that they are commonly uncertain, speculative

12 Sm. L. Cas. 577.
2 48 Mich. 428.
$34 LAW OF CONTRACTS.

and depend upon so many contingencies that their
loss cannot be traced with reasonable certainty to the
breach of the contract. When that is the case, they are
said to be too remote, and the damages must be estimated
on a consideration of such elements of injury as are
more directly and certainly the result of the failure in
performance. But in’ some cases profits are the best
possible measure of damage, for the very reason that
the amount is indisputable, and the loss may be estimated
with almost absolute certainty.”

The rule seems to be that where the profits can be
ascertained with reasonable certainty, their loss is an
element which may be taken into consideration in estimat-
ing the damages.’ In the opinion by Judge Strong in
Hoy v. Grenoble,” it is said: “There are few subjects
more difficult than the proper rule by which damages are
to be estimated. It is often said that in actions founded
upon contracts, the rule is compensation. But this prac-
tically amounts to very little. What is compensation ?
““In many contracts, the parties have themselves fixed
the measure. In many others, the contract furnishes no
standard, and it is impossible to prescribe any general
rule which shall in all cases give to the plaintiff a precise
equivalent for what he would have enjoyed if the contract
had not been violated. Without attempting to deduce
from adjudicated cases any rule of universal application,
it may suffice, for the present, to refer to a few principles
that seem to be supported by the better authorities.
While it is well settled, that a jury are not at liberty to
allow mere speculative damages, yet there are cases in

1 United States v. Behan, 110 U. S. 338; Howard v. Mfg. Co., 139 U. S. 338;
Swain v. Schieffelin, 134 N. Y. 471; Gabriel v. Akinsville Pressed-Brick Co.,
57 Mo. App. 520, Wire & Cable Co. v. Baltimore, 66 Fed. 140; Lanahan w,
‘Heaver, 29 Atl. 1036; Tufts v. Weinfeld, 88 Wis. 647; Fisher v. Newark City
Ice Co., 62 Fed. 569; cf. Rigney v. Monette, 47 La. Ann. 648.

234 Pa, St. 9.
DISCHARGE OF CONTRACT. 535

which a plaintiff has been held entitled to what he would
have made had the contract been fulfilled: I mean, to
what he would have made zmmediately out of the contract.

“The loss of such profits is not consequential, in the
sense in which consequential damages are sometimes said
to be too remote. They are in the immediate contempla-
tion of the parties when the contract is made. Thus, in
contracts for the sale and delivery of goods at a desig-
nated time or place, the damages are measured by the
price of the goods on the day named, or at the place
specified if there be a failure on the part of the vendor.
This is, in effect, making him responsible for profits.
This subject has received a very thorough discussion in
New York, in Masterton v. The Mayor of Brooklyn, 7
Hill 62. That was a case in which the plaintiff had
agreed to furnish marble for the City Hall of Brooklyn,
for which the defendants agreed to pay as the work
progressed. After a portion of the marble had been
‘delivered, the defendant refused to receive any more and
the plaintiffs brought covenant for a breach of the contract.
They were allowed to recover the profits they would have
made from the actual performance of the contract. The
Court, while denying the right of the plaintiffs to remote
and contingent damages, or to profits of collateral enter-
prises, in which they might have been induced to engage
on the faith of the contract with the defendants, remarked
that, ‘Profits or advantages, which are the direct and
immediate fruits of the contract entered into between
the parties, stand upon a different footing.’ They are
part and parcel of the contract itself, entering into and
constituting a portion of its very elements; something
stipulated for, the right to the enjoyment of which is
just as clear and plain as to the enjoyment of any
other stipulation.” And in the same case he reversed
the judgment on account of the charge of the Court
536 LAW OF CONTRACTS.

,

‘below to the effect that the plaintiff was entitled to dam-
ages for violation of faith in the breach of a contract to
employ the defendant to cultivate a farm on the shares.

In Hunter wv. Land,’ it was held that the plaintiff could
recover for loss of profits for the breach of a contract to
enter into a partnership to buy and sell horses.

Specific performance.

In certain cases specific performance of a contract will
be enforced, where it is to do something; and where it
is to forbear to do something, by an injunction. Under
what circumstances specific performance will be decreed
is a matter which properly falls under the head of equity,
and there are a good many rules applicable to the grant-
ing of such relief, which do not fall within the law of
contracts. Generally it may be said, that equity will
not decree specific performance where there is an adequate
remedy at law; nor where it cannot ensure performance.’

A common illustration of where it will decree specific
performance is a contract relating to land ;3 because one
piece of land is not like another piece of land,—the
neighborhood in which it is, and the quality of the land
are things peculiar to that particular piece of property
itself and cannot be very well compensated for in dam-
ages; and the same has been said to be true of stocks
where they are not marketable, or have no market value.4
Where a contract is for personal service, specific perform-

181 Pa. St. 296.

2 Ryan v. Mutual Tontine Ass’n, (1893) 1 Ch. 126.

3Horton v. McKee, 68 Fed. 404; White v. Mooers, 86 Me. 62; Roberge v.
Waine, 144 N. Y. 709.

*See Clinan v. Cooke, and Sutherland v. Briggs, Campbell’s Rul. Cas., Vol.
VI, pp. 721, 733 and notes. While damages can usually be adjusted to com-
pensate for a failure to supply goods, in the case of chattels possessing a special
beauty, rarity or interest specific performance will bedecreed. Anson on Con-
tracts, 8th ed. p. 379 and note. See also Cuddle wv. Rutter, Campbell’s Rul.
Cas. Vol. VI, p. 640, with Eng. and Am. Notes. For statutory requirements, see
56 and 57 Vict. c. 71, 3 52.
DISCHARGE OF CONTRACT. 537

ance cannot be decreed, because equity cannot compel
the performance of the services. The most it can do is
to enforce a negative performance, as for instance, an
agreement that a person will not sing at any other than
a certain place, will be enforced to this extent: that he
will be prevented from singing at any other place, but
he cannot be compelled to sing at that particular place.
The leading case on this subject is Lumley v. Wagner,’
in which case the defendant had agreed to perform at
plaintiff’s theatre and nowhere else. He was restrained
from performing at any other place than the plaintiff’s
theatre, though he could not be compelled to perform
there. This overruled the earlier cases of Kimble vw.
Keene and Kimberly v. Jennings, in which the opposite
rule had been laid down. In the note to the American
reprint of this note will be found the English cases in
which the rule laid down in Lumley v. Wagner has been
followed, and it is cited as an authority in Peabody ».
Norfolk, where it was held that, a contract having been
made between the plaintiff and an engineer to employ
the engineer at a salary, and it was also agreed that a
secret process used by complainant in his mill should not
be disclosed by the engineer, the Court would restrain
the defendant from entering into a contract to work where
this secret process was to be used, although they might
not be able to force him to act as engineer for the plaintiff.

DISCHARGE OF A RIGHT OF ACTION ARISING FROM A
BREACH OF CONTRACT.

Wherever there has been a breach of the contract, the
party who has been guilty of the breach is liable to an

1 See generally Gervais v. Edwards, and Lumley v. Wagner, Campbell’s Rul.
Cas., Vol. VI, p. 647, with Eng. and Am. notes, pp. 660 e¢ seg. Canary v.
Russell, 30 N. Y. S. 122; Wilkinson v. Colley, 164 Pa. St. 35; Phila. Ball Club
v. Hallman, 8 C. C. Rep. 57; Harrisburg Ball Club v. Athletic Ass’n, ib. 337.

£1 DeG., M. & G. 604.
538 LAW OF CONTRACTS.

action for damages. This right of action which accrues
to the other party by the breach may be discharged in
any one of three ways:*

(1) By the consent of the parties; (2) By a judgment
of a court of competent jurisdiction, and (3) By a lapse
of time.

I. Discharge of right of action by agreement.

Where the right of action is discharged by the
consent of the parties it may occur in one of two ways;
either by a release or an accord and satisfaction.

(a) Release.

The general rule at Common Law is that a release
must be under seal.? A release is succinctly defined in
Wharton on Contracts,3 to be a discharge of a claim.
We are, however, concerned only with the release of a
right of action arising from a breach of contract. The
reason why a release had to be under seal was that
otherwise it was a promise to forbear to press the right
of action, or to enforce the right of action, without any
consideration. ‘The seal took the place of a considera-
tion and made such a promise, when under seal, valid.

To the general rule that a release must be under seal,
there is said to be, and there is in England, an exception.‘
A right of action on promissory notes and bills of ex-
change may be renounced by parol. In Foster v. Daw-
ber,’ Baron Parke said: ‘Now, it is competent for both

1 Anson on Contracts, * p. 315.

? Chitty on Contracts, 1145.

3 3 1031.

‘Kidder uv. Kidder, 33 Pa. St. 268; Hale v. Spaulding, 145 Mass. 482.

5 Anson on Contracts, * pp. 275 and 315.

6 This exception is not recognized in the United States, save when the note
or bill is surrendered, in which case the surrender operates as an executed gift.
Anson on Contracts, 8th ed., pp. 335 and 383, notes. Also Bragg v. Danielson,.
I41 Mass. 195; Slade v. Mutrie, 156 Mass. 19; Jaffray v. Davis, 124 N. Y. 164..

16W. H. & G. (Ex. Ch.) 839.
DISCHARGE OF CONTRACT. ‘539

parties to an executory contract, by mutual agreement,
without any satisfaction, to discharge the obligation of
that contract. But an executed contract cannot be dis-
charged except by release under seal, or by performance
of the obligation, as by payment, where the obligation is
to be performed by payment. But a promissory note or
a bill of exchange appears to stand on a different footing
to simple contracts. . . . The rule of law has
been so often laid down and acted upon, although there is
no case precisely on the point as between immediate
parties, that the obligation on a bill of exchange may be
discharged by express waiver, that it is too late now to
question the propriety of that rule.”

In re Campbell’s Estate,’ Chief Justice Gibbon said:
“The notes in question could have been discharged only
by a sealed release, or a parol gift of them.” In that
case a man about to die told his wife to destroy the notes.
And in Albert’s Executors v. Ziegler’s Executors,’? where
a man had written on a bond, “This within obligation
after my decease shall be of no effect, but till then to be
and remain in full force and virtue,” and retained the
bond, it was held that the debt created by the bond was
not discharged. The Court charged that such writing
did not amount to a release, and the Supreme Court said:
“ This was correct, for although the bond could be released
in equity by parol, it could only be done by delivery and
upon sufficient consideration.” It is true this was the case
of a bond and not of a note, but the weight of authority in
America is against the doctrine of Foster v. Dawber.3

No particular form is necessary to a release. A cove-
nant not to sue for an indefinite time has been held to be
a release.*

17 Barr (Pa.) 100.

226 Pa. St. 50.

3 See note of Sharswood, J., to Byleson Bills, * p. 198.
4 Chitty on Contracts, p. 1146, note é}.
540 LAW OF CONTRACTS.

A release of a debt by one of several joint creditors is
a discharge of the debt. In Wetherell v. Langston," the
reasoning upon which the decision rests is this: that the
promisee agreed to be liable to two jointly, and that ifone
could sue upon the contract it would be enforcing against
the promisee a different obligation from that which he had
assumed.

In the particular case the defendant had covenanted
with the plaintiff and another. ‘The other never executed
the deed or claimed any interest under it, and it was held
that the plaintiff could not sustain an action.

But a covenant of one of two joint creditors not to sue
the debtor, though equivalent to a release, will not pro-
tect the debtor from a suit by the joining creditors. ‘The
creditor who has covenanted not to sue is liable tothe debtor
for a breach of his covenant. In Walmesley wv. Cooper,’
the Court said: “ But a covenant not to sue has been held
equivalent to a release on no other principle than that of
avoiding circuity of action, z. ¢., the scandal and absurdity
of allowing A to recover against B, in one action, the
identical sum which B has a right to recover in another
against A. The law, when it clearly detects the possi-
bility of such a waste of the suitor’s money and its own
process, as well as of the public time, will interpose to
prevent its happening. But if the parties thus opposed
in interest are not the same, the principle cannot apply.
If one of two plaintiffs covenants not to sue for a joint
debt, he may be liable for a breach of that covenant if both
parties afterward sue. But if he is then sued by the
debtor for breach of covenant, he alone must answer for it.
The two will have recovered according to defendant’s
obligation to them; but that one only will be compellable
to refund who has entered into a counter obligation with

17 W.H. & G. 634.
*11 Ad. & E. 216.
‘DISCHARGE OF CONTRACT. 541

their debtor not to sue him. The subject matter of the
two actions may be called the same, being the same in
amount, in one sense; but the parties are different ; the
partnership losing nothing by the separate contract of one
of the partners, who, however, has made himself personally
liable for not performing it.”

The release of one joint debtor releases all at common
law... And a parol agreement that such a release should
not operate to discharge the other debtors would not be
effectual to control the deed, because it would vary the
effect of a sealed instrument. But if in the deed itself
a reservation of rights against the other debtor was made,
then the release would only operate as to the parties to
it, like a covenant not to sue.

In North v. Wakefield,’ the Court said: ‘The reason
why a release to one debtor releases all jointly liable is,
because, unless it was held to do so, the co-debtor, after
paying the debt, might sue him who was released for
contribution, and so in effect he would not be released ;.
but that reason does not apply where the debtor released
agrees to such a qualification of the release as would
leave him liable to any rights of the co-debtor. So a
covenant not to sue one joint debtor has been held not.
to discharge the others.3

The case of Solly v. Forbs* has been followed in Penn-
sylvania by Burke v. Noble,’ where a release against a
one-seventh owner of a steamboat for a claim against
the owners which contained a provision that the others.
were not to be released, was held not to be a bar in a
suit brought by the releasing creditor against the whole

1 Leake on Contracts, p. 799.

2173 Ad. E., N.S. (66 E.C. L. R.) 536.

3Solly v. Forbs, 2 Brod. & Bing. 38, which was a release of one joint debtor,
reserving the right of a creditor against the other.

42 Brod. & Bing., 38.

5 48 Pa, St. 168.
542 LAW OF CONTRACTS.

seven owners; and it was suggested in that case that
perhaps the way to do justice would be after the suit was
brought to enter a xolle prosequz by release of the Court
against the releasee. This subject is regulated in this
State by the Act of the twenty-second of March, 1862,*
which provides that one joint debtor may be released
without discharging the others, and that such release
should be deemed a payment of the creditor to the extent
of the interest of such joint debtor.

(4) Accord and satisfaction.

Accord and satisfaction is an agreement, which need
not be under seal, whereby the right of action possessed
by one party to that agreement is discharged.’

To constitute a good accord and satisfaction, the fol-
lowing particulars seem to be necessary: (1) “The matter
agreed to be received in satisfaction must be something
of legal value to which the creditor was not before en-
titled.” (2) “Every part of the matter agreed to be received
as satisfaction must be effectual, so that if part fail to
take effect, the whole agreement is bad.” (3) “‘ The accord
must be executed; and a mere executory agreement by
the debtor can never be pleaded by the debtor as an
accord and satisfaction.” 3

Any new interest or right, no matter how small, which
by virtue of the agreement of accord and satisfaction the
creditor acquires, is sufficient to discharge the debt if it
was received in satisfaction of the debt.

Judge Sharswood says, in the case of The Bank of
Harrisburg v. Huston:* “It is too clear for argument

1p. L. 167.

2 See Anson on Contracts, * p. 315.

?Notes to Cumber v. Wane, 1 Sm. L. Cas. 644. Anson on Contracts, 8th
red., p. 384, notes. Smith v. Cranford, 84 Hun. 318; Barton v. Hunter, 59 Mo.
App. 610.

411 W. N.C. 389.
DISCHARGE OF CONTRACT. 543

that if a release of a debt not under seal must have a
consideration to support it, then payment of part of an
acknowledged indebtedness can be no consideration for
a release of the remainder. While this is so it is equally
well settled that the acceptance of a collateral thing,
without regard to its value, is a good accord and satis-
faction.” And it was held in that case that a com-
promise of a debt for three-fourths of its value, part to
be paid in cash and part in the notes of the debtor, was
a discharge of the debt. The ground upon which the
argument for the defendant in error was placed in this
case was this: that where the creditor agrees to accept
and receive anything to which he was not before legally
entitled, such as chattels, where chattels are given, or
payment, where payment is made, it is presumed, since
it is satisfactory to him, to be beneficial, and is a good
satisfaction. And this ground was sustained by the
Court. In Savage v. Everman,’ an agreement to take
land in payment of a judgment, followed by the convey-
ance of the land by means of a purchase under a sheriff’s
sale, though less was paid for the land than the amount
of the judgment, was held to be a good accord and
satisfaction. But as the consideration must be some
new thing, the payment of a smaller sum of money
in the same manner as the debtor was bound to pay
the whole amount is not a good accord and satisfac-
tion.” :
“A plea of accord, to be a good plea, must show an
accord which is not executory at a future day, but which
ought to be executed, and has been executed, before the

1970 Pa. St. 315.

2 D’Olier v. The Bank, 4 Law. Gaz. 66, 1 Chester Co. Rep. 373. See also
Heintz v. Pratt, 54 Ill. App. 616; Swope v. Bier, 10 Ind. App. 613. As to the
effect of the creditor retaining a check purporting to be ‘‘in full payment,”
compare Reynolds v. Empire Lumber Co., 85 Hun. 470, and Van Dyke v.
Wilder, 66 Vt. 579.
544 LAW OF CONTRACTS.

action brought." The accord is in the nature of a mere
negotiation or offer which the creditor may refuse or with-
draw, and during the pendency of which he may com-
mence an action; and which the debtor may execute or
not, as he pleases, nor will an action lie against him for
the non-execution.” ”

In order to be a discharge, there must not only be an
agreement, but the thing for which that agreement was to.
be given as the consideration for the discharge of the
rights to sue must be given.’ If it is a chattel, the
chattel must be delivered, if it is a contract the ‘contract
must be delivered. An instance of the latter kind is a
composition whereby the creditors of a debtor agree
mutually to take less than the full amounts of their
claims. This is a good accord and satisfaction, because
each creditor in consideration of giving up his right to.
sue for the whole, has the obligation of every other
creditor to give up his right to sue. So that all get a
certain percentage of their debt, where, in the absence of
their agreement, any particular one might fail to get his.
debt altogether.‘

In the case of /z ve Hatton,’ Judge Mellish says: “At
common law, where a body of creditors accept a com-
position, they may either agree to take the promises of the
debtor with or without a surety in satisfaction of the debts,
or they may agree that payment shall be a condition
precedent, and that if the debtor pays the composition at
a certain time and place the creditors will accept that
composition in satisfaction of their debts.” But where the

1eake on Contracts, 878. Hosler v. Hursh, 151 Pa. St. 415; Allen v. Thurber,
149 Mass. 271.

2Leake on Contracts, 879.

3 Vickers v, Chicago, B. & Q. R. Co., 71 Fed. 139; Shaver v. Pennsylvania Co.,.
71 Fed. 931. :

* Anson on Contracts, 8th ed., p. 108, n. 1.

57 Ch. App. Cases 723.
DISCHARGE OF CONTRACT. 545

creditors agree to a composition, the debtor is not dis-
charged unless he pays the sums stipulated for in such
agreement.

In Hern vw. Kiehl,* Judge Woodward says: “It is not
enough that there be a clear agreement or accord, and a
sufficient consideration, but the accord must be executed.
The plea must allege that the matter was accepted in
satisfaction. Mere readiness to perform the accord, or a
tender of performance, or even a part performance and
readiness to perform the rest, will not do. Such is the law
between creditor and debtor. The exception to these
rules is where a number of creditors agree to accept of a
common debtor a composition amounting to less than
their entire demand.”

What is called by Judge Woodward an exception to the
rule is not an exception to the rule, because the accord in
such a case is executed when the composition of agreement
is executed by the creditors. What each creditor agrees
is that he will take less if the others take the same
amount. When they agree to take the same amount by a
paper which can be enforced against them, that paper has
become an executed contract as to each particular creditor.
In the note to Cumber v. Wane,” it is said that the
accord must be executed, yet if the creditors were to
accept in satisfaction an executory obligation, and the
accord be executed by giving such obligation, there seems
to be no reason why it should not be good. The case of
The Bank v. Huston,’ is an instance of this. There the
creditor took the promissory note of the debtor, and it was
held a good accord and satisfaction. And in the English
note to Cumber v. Wane, Mr. Smith says: “The reason-
able distinction seems to be that if the promise is received

138 Pa, St. 147. See McCreery v. Day, 119 N. Y. 1.
2 Supra.
3 Supra.

35
546 LAW OF CONTRACTS.

in satisfaction it is a good satisfaction, but if the per-
formance, not the promise, was intended to operate in
satisfaction, there shall be no satisfaction without per-
formance.” And the law is summed up in the English
note very tersely as follows:

“The general doctrine in Cumber v. Wane, and the
reason of all the exceptions and distinctions which have
been engrafted on it, may perhaps be summed up as
follows: viz., that a creditor cannot bind himself by a
simple agreement to accept a smaller sum in lieu of an
ascertained debt of larger amount, such an agreement
being xudum pactum, but if there be any benefit to the
creditor thrown in, that additional weight will turn the
scale, and render the consideration sufficient to support
the agreement. . . . Carried to its full extent, the
doctrine of Cumber v. Wane embraces the exploded
notion that in order to render valid a contract not under
seal the adequacy, as well as the existence of the
consideration, must be established.”

An accord and satisfaction made with and accepted by
one of several joint creditors, discharges the debt as against
all, because one of the joint creditors being barred, he
cannot recover jointly with the others in rescission of his
own act." Accord and satisfaction made by one of several
parties jointly liable, or jointly and severally liable for the
same debt, and accepted by the creditor, discharges all.”

This has been changed by the statute already referred
to in this State which provides for a composition with
partnership debtors who are joint debtors.

IT. Discharge by the judgment of a Court of competent
jurisdiction.

Where an action is brought for a breach of the con-
tract and the plaintiff recovers a judgment, the right
1Leake on Contracts, pp. 883, 905. :
DISCHARGE OF CONTRACT. 547

of action for the breach of the contract is discharged
by merger into the judgment. The law on’ this subject
is reviewed in the judgment of Field, J., in the case of
Mason v. Eldred.’ This case was a suit on a note made
by a partnership consisting of three persons. One of
the partners alone was served and pleaded non-assumpsit,
and on the trial, the note having been offered in evidence,
the defendant offered the record of the judgment by a
Court of the same State showing that the plaintiff had
already brought suit in that Court on the same note
against the partnership, and that only one partner was
served and that a different one from the defendant in
suit ; that a judgment had been entered against all the
defendants, and the question whether such a record was
admissible as a bar to the action was certified to the
Supreme Court, and the Court held that at common law
it would have been, but by virtue of the statute in the
State of Michigan, where the suit was brought, that it
was not; and after reviewing the cases their result is
given as follows: “The general doctrine maintained in
England and the United States may be briefly stated.
A judgment against one upon a joint contract of several
persons, bars an action against the others, though the latter
were dormant partners of the defendant in the original
-action, and this fact was unknown to the plaintiff when the
action was commenced. When the contract is joint, and not
joint and several, the entire cause of action is merged in the
judgment. The joint liabilities of the parties not sued with
those against whom the judgment is recovered being extin-
guished, their entire liability is gone. They cannot be sued
separately, for they have incurred no several obligation; they
cannot be sued jointly with the others, because judgment
has been already recovered against the latter, who would
otherwise be subjected to two suits for the same cause.”
16 Wall. 231. See Vanuxem v. Burr, 151 Mass. 386.
548 LAW OF CONTRACTS.

In the case of Smith vw. Black,’ Judge Duncan says:
“No principle is better settled than that a judgment
once rendered absorbs and merges the whole cause of
action, and that neither the matter nor the parties can be
severed, unless indeed where the cause of action is joint
and several, which certainly actions against partners are
not.” And he adds: “JI am of opinion that where the
cause of action is a joint one that a judgment once
rendered extinguishes the original cause of action, and
is a bar, not only to a subsequent action brought against
the same persons, but against all others; that the judg-
ment puts an end to all litigation on the subject matter
of the action, and that a discovery of a new party, or the
happening of new damages does not give a new cause of
action.” Now, this doctrine is unquestionably true of all
domestic judgments, but the question has arisen whether
a foreign judgment so far discharges the right of action
that the plaintiff who has procured the foreign judgment
cannot sue on the original cause of action in another
forum.’

The question was decided in England in the case of
Smith v. Nicolls; where Chief Justice Tyndal said:
“This is an action which is brought to recover damages
for seizing and taking the ship and boat of the plaintiff,
and certain goods that were therein; and the answer
that is set up by the fifth plea is, that the plaintiff brought
an action against the present defendant in the Vice
Admiralty Court in the Colony of Sierra Leone, and has
recovered in that action the sum of £596 by default,
there being no appearance.” The plea was held bad on
the ground that the right of action was not in such a
case merged in the judgment. The same rule has been

19S. & R. (Pa.) 142.
2See note 1, Anson on Contracts, 8th ed., p. 58. Bank v. Beebe, 53 Vt. 177.
35 Bingham N. C. 208.
. DISCHARGE OF CONTRACT. 549

followed in this country with respect to foreign judg-
ments, but as to judgments between the different States
the rule is different, so that where a plaintiff obtains a
judgment in one State he cannot sue on the same cause
of action in another State; the reasons of the decisions
being that a judgment recovered in any one State is to be
treated in any other State as a domestic judgment.’

Corbet v. Evans,’ is an instance of the merger of a
claim into a judgment. The defendants bought goods
from the plaintiff and agreed to pay for them, partly in
cash and partly in good obligations. They handed over
certain obligations, did not pay the cash, and the plaintiff
brought an action of assumpsit for the balance due and
recovered a judgment. They then brought an action for
the amount represented by the obligations handed over,
the obligors in those obligations having turned out to be
insolvent, and it was held that the first action was a bar.
In order to avoid the effect of the common law rule, that
the right of action is merged in the judgment where the
judgment is obtained by the plaintiff, in cases where
an action is brought against one of two or more joint
promisors, statutes have been enacted in this State pro-
viding that a judgment obtained against one shall not
discharge the liability of the others.’

A judgment in favor of the defendant discharges the
right of action by estoppel.‘

In Cromwell v. The County of Sac,> Field, J., gives the
opinion on the effect a judgment has on the right of
action arising from the breach of the contract. The

1 Baxley v. Linah, 4 Harris (Pa.) 241.

225 Pa. St. 310.

3See the Act of April 6, 1830, P. L. 277; Act of April 11, 1848, P. L. 536,
and Purdon’s Digest.

‘ Ex parte Bank of England, (1895) 1 Ch. 37. See Gould v. Sternberg, 128
Til. 510; N. C. & St. L. R. Co. v. United States, 113 U. S. 261. So long as the

judgment stands it is binding.
594 U.S. 351.
550 LAW OF CONTRACTS.

action was on four bonds of the County of Sac in the
State of Iowa, each for $1000, and four coupons attached:
to them for interest, each for $100. To defeat the action
the defendant relied upon the estoppel by a judgment
rendered in favor of the county in a prior action brought:
by another person upon certain earlier maturing coupons on
the same bonds given with proof that the plaintiff was at
the time the owner of the coupons in that action and that
the action was prosecuted for his sole use and benefit.
In delivering the opinion, Justice Field said: “In con-
sideration of the operation of this judgment, it should be
borne in mind, as stated by counsel, that there is a differ-
ence between the effect of a judgment as a bar or estoppel
against the prosecution of a second action upon the same
claim or demand, and its effect as an estoppel in another
action between the same parties upon a different claim
or cause of action. In the former case, the judgment,
if rendered upon the merits, constitutes an absolute bar
to a subsequent action. It is a finality as to the claim
or demand in controversy, including parties and those in
privity with them, not only as to every matter which was
offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which
might have been offered for that purpose. Thus, for
example, the judgment rendered upon a promissory
note is conclusive as to the validity of the instrument
and the amount due upon it, although it be subsequently
alleged that perfect defences actually existed, of which.
no proof was offered, such as forgery, want of considera-
tion, or payment. If such defences were not presented
in the action, and established by competent evidence,
the subsequent allegation of their existence is of no
consequence. The judgment is as conclusive, as far as
future proceedings at law are concerned, as though the
defences never existed. The language, therefore, which
DISCHARGE OF CONTRACT. 551

is so often used, that a judgment estops not only as to
every ground of recovery or defence actually presented
in the action, but also as to every ground which might
have been presented, is strictly accurate, when applied
to the claim or demand in controversy. Such demand
or claim, having passed into judgment, cannot again be
brought into litigation between the parties in proceed-
ings at law upon any ground whatever. But where the
second action between the same parties is upon a differ-
ent claim or demand, the judgment in the prior action
operates as an estoppel only as to those matters in issue
or points controverted, upon the determination of which
the finding or verdict was rendered. In all cases, there-
fore, where it is sought to apply the estoppel of a
judgment rendered upon one cause of action to matters
arising in a suit upon a different cause of action, the
inquiry must always be as to the point or question
actually litigated and determined in the original
action, not what might have been thus litigated and
determined.' Only upon such matter is the judgment
conclusive in another action.”

But no right other than that actually involved and
passed upon in the suit resulting in a judgment is
discharged by such judgment. This is illustrated in
the case of Russell v. Place,’ in which suit was brought
on a patent containing two claims, and a judgment
rendered on the ground of infringement; and then ina

1 Where, however, it is shown that the issues are identical, though the subse-
quent suit is based on a different cause of action, it will be determined by the
prior judgment. Gardner v. Buckbee, 3 Cow. (N. Y.) 127; Bouchard v. Dias,
3, Denio(N. Y.) 238; Babcock v. Camp, 12 Ohio St. 11. See also Johnson Co. v.
Wharton, 152 U. S. 252. That a judgment may be pleaded in estoppel when on
either of two grounds on which it may have been decided, though without
stating on which ground it was decided, it would conclude the second action, see
Castle v. Noyes. 14 N. Y. 329, and Jaros Underwear Co. uv, Fleece Underwear
Co., 65 Fed. Rep.424, and cases there cited. See Quiz in Pa. Law Series, Vol. I,
No. 4.

‘294 U. S. 606.
552 LAW OF CONTRACTS.

subsequent suit to restrain infringement, by the same
defendant, it was held that he was not precluded from
contesting the validity of the patent because it did not
conclusively appear in the first judgment upon which
claim recovery was ‘had, and the patent might have
been valid as to one claim and invalid as to the other.
In giving the opinion of the Court, Justice Field said:

“Tt is undoubtedly settled law that a judgment of a
court of competent jurisdiction upon a question directly
involved in one suit is conclusive as to that question
in another suit between the same parties. But to this
operation of the judgment.it must appear, either upon
the face of the record or be shown by extrinsic circum-
stances, that the precise question was raised and deter-
mined in the former suit. If there be any uncertainties
on this head in the record—as, for example, if it appear
that several distinct matters may have been litigated,
upon one or more of which the judgment may have
passed, without indicating which of them was thus liti-
gated, and upon which the judgment was rendered—
the whole subject matter of the action will be at large
and open to a new contention, unless the uncertainty
be removed by extrinsic evidence showing the precise
point involved and determined. To apply the judg-
ment, and give effect to the adjudication actually made
when the record leaves the matter in doubt, such evi-
dence is admissible.

“Thus, in the case of Washington, Alexandria &
Georgetown Steam Packet Company z. Sickles, reported
in 24 Howard, a verdict and judgment for the plaintiff
in a prior action against the same defendant on a dec-
laration, containing a special count upon a contract, and
the common counts, was held by this Court not to be
conclusive of the existence and validity of the contract
set forth in the special count, because the verdict might
DISCHARGE OF CONTRACT. 553

have been rendered without reference to that count, and
only upon the common counts. Extrinsic evidence
showing the fact to have been otherwise was necessary
to render the judgment an estoppel upon those points.

“When the same case was before this Court the
second time, Packet Company v. Sickles, 5 Wall. 580,
the general rule with respect to the conclusiveness of a
verdict and judgment in a former suit between the
same parties, when the judgment is used in pleading as an
estoppel, or is relied upon as evidence, was stated to be
substantially this: that, to render the judgment conclusive,
it must appear by the record of the prior suit that the
particular matter sought to be concluded was neces-
sarily tried or determined—that is, that the verdict in
the suit could not have been rendered without deciding
that matter; or it must be shown by extrinsic evidence,
consistent with the record, that the verdict and judgment
necessarily involve the consideration and determination
of the matter.

“Tested by these views, the question presented by
the plaintiff in this case, upon the effect as evidence
of the verdict and judgment in the action at law, is of
easy solution. The record of that action does not dis-
close the nature of the infringement for which damages
were recovered. The declaration only avers that the
plaintiff was the original and first inventor of new and
useful improvements in a preparation of leather, and
that he obtained a patent for the same, and, on its
‘surrender, a new patent, with an amended specification,
without describing with other particularity the nature
and operation of the invention; and alleges as the
infringement complained of, that the defendants have
made and used the invention, and have caused others
to make and use it. The patent contains two claims:
one for the use of fat liquor generally in the treatment
554 LAW OF CONTRACTS.

of leather, and the other for a process of treating bark-
tanned lamb or sheepskin by means of a compound
composed and applied in a particular manner. Whether
the infringement for which the verdict and judgment.
passed consisted in the ‘simple use of fat liquor in the
treatment of leather, or in the use of the process speci-:
fied, does not appear from the record. A recovery for an
infringement of one claim of the patent is not of itself
conclusive of an infringement of the other claim, and:
there was no extrinsic evidence offered to remove the
uncertainty upon the record; it is left to conjecture
what was in fact litigated and determined. The verdict:
may have been for the infringement of the first claim;
it may have been for an infringement of the second ;
it may have been for an infringement of both. The
validity of the patent was not necessarily involved,
except with respect to the claim which was the basis.
of the recovery. A patent may be valid as to a single
claim and not valid as to the others. ‘The record wants,
therefore, that certainty which is essential to its opera-
tion as an estoppel, and does not conclude the defend-
ants from contesting the infringement or the validity
of the patent in this suit.

“The record is not unlike a record in an action for
money had and received to the plaintiff’s use. It would
be impossible to affirm from such a record, with cer-
tainty, for what moneys thus received the action was
brought, without extrinsic evidence showing the facts,
and, ‘of course, without such evidence a verdict and
judgment would conclude nothing except as to the
amount of indebtedness established.”

And the same doctrine was reiterated in Campbell v.
" Rankin,’ by Miller, J., in delivering the opinion, where he
says, ‘““Whatever may have been the opinion of other

199 U. S. 261.
DISCHARGE OF CONTRACT. 555

Courts, it has been the doctrine of this Court in regard
to suits on contracts ever since the case of the Wash-
ington, Alexandria & Georgetown Packet Company vz.
Sickels, 24 Howard 333, and in regard to actions affect-
ing real estate, since Miles v. Caldwell 2 Wall. 35, that
whenever the same question has been in issue and tried,
and judgment rendered, it is conclusive of the issue so
decided in any subsequent suit between the same parties ;
and also, that where, from the nature of the pleadings, it
would be left in doubt on what precise issue the verdict
or judgment was rendered, it is competent to ascertain
this by parol evidence on the second trial. ‘The latest
expression of the doctrine is found in Cromwell v. County
of Sac, 94 U. S. 351; Davis v. Brown, id. 423.”

The class of cases in which a judgment is not a bar
to another action, is divided as follows :' (1) Where the
plaintiff fails for want of jurisdiction in the Court to hear
his complaint or to grant him relief; (2) Where he has
misconceived his action; (3) Where he has not brought
the proper parties before the Court; (4) Where the decision
was on demurrer and the plaintiff in the second suit sets
forth the cause of action in proper form; (5) Where the first
suit was prematurely brought; (6) Where the matter in the
first suit is ruled out as inadmissible under the pleadings.

Kane v. Fisher,‘ decides that one action in which instal-
ments -of purchase money already due and to become due

1Freeman on Judgments, 33 263 eZ seg. and cases cited. As to the effect of
a judgment on a demurrer, see Gould v. Evansville & C. R. Co., 91 U.S. 526.
That “ pendency of action in one State does not bar an action in another State,

or in the Federal Courts, see Pierce v. Feagans, 39 Fed. Rep. 587; Stanton
wv. Embery, 93 U. S. 548.

22 Watts (Pa.) 246. The rule laid down in the cases just cited from the
Supreme Court of the United States as to the question of an estoppel by record
are in substance stated as the ground of the decision of the Supreme Court of
Pennsylvania in Tams v. Lewis, 42 Pa. St. 402. See the opinion of Justice
Strong on page 410.

And on this subject generally, see note to Duchess of Kingston’s Case, 2 Sm.
Cas. pp. 913 to 964, on the subject of estoppel by record.
556 LAW OF CONTRACTS.

were sued for, and in which a recovery was had only of
those that were due, is not a bar to another action to
recover the instalments which were not due when the
first action was brought, but which fell due before the
second action was brought.

ITT, Discharge by lapse of time.

As a general rule, the rights arising from a contract are
‘permanent, and are not affected by the lapse of time
unless the contract itself contains some provision about
their duration, or unless the subject matter is one which
implies some limitation of the duration of the rights
created. A case which illustrates this principle very
clearly is Llanelly Railway & Dock Co. v. The London
& Northwestern Railway Company.’

In this case two railway companies made an agree-
ment by which one of them was to run over a certain
portion of the line of the other, and there were provis-
ions in the agreement for having the staff of both
‘companies at a common terminus, and for interchange
of traffic on certain terms. There was no provision, how-
ever, in the agreement as to the length of time for
which it should continue. One of the companies gave
the other a three months’ notice that it had elected to
terminate that contract and the other company refusing
to cease running its trains, as compliance with the notice
would have required, a bill was filed to enjoin them from
running, and the bill was dismissed, the Court holding
that the contract was a continuing one. In giving the
opinion in the House of Lords, Lord Selborne said: “ An
agreement de futuro, extending over a tract of time which,
on the face of the instrument, is indefinite and unlimited,
must (in general) throw upon any one alleging that it is
not perpetual, the burden of proving that allegation,

1L,R.7E. & I. App. 550, L. R. 7H. L. 567.
DISCHARGE OF CONTRACT. 557

either from the nature of the subject, or from some rule
of law applicable thereto. So far as the words go,
there is here no limit; and if any limit, or the power of
fixing a limit, is to be implied, it can only be in one
or other of these two ways. In the present case,
the character of perpetuity attaches both to the legal
personality of each of the contracting parties, and to the
legal character and use of the subject matter, the rail-
way; and the objects of the agreement are favorably
regarded by the law; all such companies have express
statutory power to contract (without any necessary limit
of time) for such objects, and being (in the absence of
contract) to some extent always under legal obligations,
actual or potential, of a like general character. All these
considerations, so far from introducing any implication
from the nature of the subject matter, or from any rule
of law, against the natural import of the unlimited
terms (as to time) in which this particular agreement
is expressed, tend to confirm the Jrzma facie conclusion
that an agreement expressed in such indefinite terms is
to have unlimited duration.” The remarks in favor of
the right to terminate the contract had been rested
upon two grounds; first, the hardship of the contract, or
want of mutuality in it, and, second, it was sought to treat
it as a partnership contract. On these two points the
remarks of the Lord Chancellor, Lord Cairns, are well
worth reading. He disposes of them in a very few words.
It was not a partnership contract at all, and therefore you
could not apply to it the rules of law which are settled
with respect to partnerships; and as to the hardship, if
it was a hard contract in some of its operations, that was
something the parties themselves ought to have foreseen
and provided for, and it was no reason for their breaking it.

But while the rights of parties arising from contracts
are permanent, the remedies for the breach of a contract
558 LAW OF CONTRACTS.

have been taken away by statute." These statutes are
called Statutes of Limitation.” They do not destroy the
right, but they provide that after a certain time after the
right has been created it shall not be enforced by an
action. ‘They are founded partly upon the presumption
that after a long lapse of time, the right of action has
probably been satisfied in some way, and partly upon a
rule of public policy, that it is unwise to allow an old
claim to be set up after a long lapse of time. There are
two things to be specially noted with regard to the Statute
of Limitations generally and these are, first, as I have
already remarked, that they do not destroy the right
arising from a breach of the contract, they simply take
away the remedy; consequently, if the right can be
enforced without bringing an action, as by the enforce-
ment of an existing lien, it may be done. In the second
place, the right may be revived by a new promise and
acknowledgment, or part payment.‘

1See Campbell v. Holt, 115 U.S. 620. Cf. Pierce v. Seymour, 52 Wis. 272.

2For a collection of these statutes, see Wood’s Limitation of Actions,
Appendix.

3See Anson on Contracts, 8th ed., pp. 386 ez. seg. and notes.

s Ante, ‘‘Contracts of Imperfect Obligation.” :
CHAPTER XVI.

‘THE DISCHARGE OF CONTRACTS BY IMPOSSIBILITY OF
PERFORMANCE.

Impossibility of performance, in order to discharge,
must arise after the contract has been formed; but as a
general rule, where a contract becomes impossible of per-
formance, whether or not it was the fault of the person
who does not perform it, he is not discharged from his
obligation under it.?’ If he makes his performance con-
ditional upon the possibility of performance, and it
becomes impossible to perform the contract, then the
contract is discharged by the agreement of the parties
which makes the impossibility of performance a condition
subsequent, on the happening of which the contract is to
end. If, however, the promisor makes his promise uncon-
ditionally, he takes the risk, and if performance becomes
impossible he is liable just the same.’

The leading case on this subject is that of Paradine v.
Jane,? in which the rent was due on a lease, the landlord
sued for it and the tenant set up that he had been kept
out of possession of the land by a hostile army of aliens.
‘The Court held that this was no excuse, and laid down

1See Brown v. Royal Ins. Co., and Taylor v. Caldwell, Campbell’s Rul. Cas.,
‘Vol. VI, pp. 597 and 603, Eng. and Am. notes, pp. 611, 613; McIlquham v.
‘Taylor, 8 Reports 740, (1895) 1 Ch. 53.

2As to charter parties, see Theis v. Byers, 1 Q. B. D. 244; Budgett v. Binnington,
(1891) 1 Q. B. 35. That where no definite time is fixed, a dock strike will extend
tthe ‘‘reasonable time’’ allowed by law, see Castlegate SS. Co. v. Dempsey,
(1892) 1 Q. B. (C. A.) 854; Geismer v. Lake Shore & M.S. R., 102 N. Y. 563;
Pittsburg Ry. v. Hollowell, 65 Ind. 188; Anson on Contracts, 8th ed., p. 392
and note.

3 Aleyn 26.

(559)
560 LAW OF CONTRACTS.

this rule: That where a charge is created by an act of
the law and the party is disabled from performing it,
without any fault of his own, he is not liable for non-
performance ; but where a charge is created by the act of
the party who is disabled from performing it afterward,
without any fault of his own, he is nevertheless liable,
because he might have provided in the contract against
such a contingency. And the instances were put of the
case of a tenant who was under an obligation by law not.
to commit waste, who was nevertheless not liable where.
the house was destroyed by a tempest; and the case of a
tenant who covenanted himself to repair a house, in such
a case he would be bound to repair, although it was
destroyed by lightning.

The rule in this case has been generally followed in
this country. The leading case is The Harriman.* In
this case a vessel had been chartered in San Francisco to
carry goods to Valparaiso, or to the captain of a Spanish
fleet then supposed to be investing Valparaiso. It was
provided in the letter of instructions that the vessel might
call at certain islands, twelve hundred miles short of Val-.
paraiso and inquire for the fleet. ‘The vessel got as far as.
these islands and there learned that after the bombard-.
ment of Valparaiso, the fleet having been pretty well
damaged, had sailed away for parts unknown and had not.
been heard of. The vessel never went past the islands to.
look for the fleet, but came back to San Francisco and
asked for freight, which not being paid the goods were
sold. It was decided that the owner of the goods could
recover back their value together with the advance of
freight he had made. In giving the opinion of the.
Court, Justice Swayne said: “‘ When the party by his.

19 Wall. 161. See, generally, Kenwood Bridge Co. v. Dunderdale, 50 Ill. App..
581; Beatie v. Coal Co., 56 Mo. App. 221; Market Co. v. New Orleans, 47 La.,
Ann. 205; Smith Organ Co. wv. Abbott, 11 C. C. Rep. 319.
DISCHARGE OF CONTRACTS. 561

own contract creates a duty or charge upon himself he
is bound to make it good if he may, notwithstanding
any accident by inevitable necessity, because he might
have guarded against it by his contract.’ Such has
always been the rule of the common law. If a lessee
covenanted to repair, and the house is burned down, he
is bound to rebuild. If a party covenanted to build a
bridge and keep it in repair for a specified time, and it
be swept away by an extraordinary flood before the time
expires, he must replace it. A party agreed to secure in
England for another the exclusive right to make, use
and vend in the Canadas a machine covered by a patent,
from the United States. It was found that this could
only be done by an Act of the British Parliament. As
such a grant, however improbable, was not impossible, it
was held that the case was within the rule laid down in
Paradine v. Jane, and that the covenantor was liable for
the breach of his agreement. If the condition be to do
a thing which is impossible, as to go from London to
Rome in three hours, it is void; but if it be to doa
thing which is only. improbable or absurd, or that a
thing shall happen which is beyond the reach of human
power, or that it will rain to-morrow, the contract will
be upheld and enforced.

“The principle deducible from the authorities is, that
if what is agreed to be done is possible and lawful, it
must be done. Difficulty or improbability of accom-
plishing the undertaking will not avail the defendant.
It must be shown that the thing cannot by any means
be effected. Nothing short of this will excuse non-per-
formance. ‘The answer to the objection of hardship in
all such cases is that it might have been guarded against
by a proper stipulation. It is the province of the Court
to enforce contracts—not to make or modify them.
When there is neither fraud, accident nor mistake, the

36
562 LAW OF CONTRACTS.

exercise of dispensing power is not a judicial func-
tion.”

In Hill v. Sughrue,’ there was a charter party under
which the owner undertook to supply the charterer with
a full cargo of guano, from one of the guano islands on
the west coast of Africa, and the charterer was to supply
certain bags, etc. The declaration set out the contract
and averred that the vessel had gone to the place where
it was to receive its cargo and waited a reasonable time,
but a full cargo was not furnished, and the plea was
that the reason a full cargo was not furnished was that
unexpectedly there was no guano to be found there. It
was held that the plea was bad and that the defendant
was bound to load a full cargo. Baron Parke said: “It
is a positive obligation to procure and load a cargo;
and the case resembles The Marquis of Bute v. Thomp-
son, 13 M. & W. 487, where there was an absolute cove-
nant, by a lessee, to raise a certain quantity of coals in
each year, and it was held to be no answer that no coals
could be got. Our judgment will therefore be for the
plaintiff.”

In McDermott v. Jones,” a builder agreed to build a
house for another on the soil of that other, and that the
work should be executed, finished and ready for use and
occupation, and be delivered over so finished and ready
for occupation by the owner at a day named. It was
held that he was not excused from performing that
covenant, though there was a latent defect in the soil,
in consequence of which the wall had sunk and cracked
and the house having become uninhabitable and danger-
ous had to be taken down and rebuilt. In giving the
opinion of the Court, Mr. Justice Swayne said: “That
covenant it was his duty to fulfill, and he was bound to

115 M. & W. 252.
22 Wall. 1. See Robson vw Mississippi River Logging Co., 71 Fed. Rep. 893.
DISCHARGE OF CONTRACTS. 563

do whatever was necessary to its performance. Against
the hardship of the case he might have guarded by a
provision in the contract. Not having done so, it is not
in the power of this Court to relieve him. He did not
make that part of the building ‘fit for use and occupa-
tion.” It could not be occupied with safety to the lives
of the inmates. It is a well settled rule of law, that if
a party by his contract charge himself with an obligation
possible to be performed, he must make it good, unless
its performance is rendered impossible by the act of God,
the law, or the other party. Unforeseen difficulties, how-
ever great, will not excuse him. The application of
this principle to the class of cases to which the one
under consideration belongs is equally well settled. If
a tenant agree to repair, and the tenement be burned down,
he is bound to rebuild. A company agreed to build a
bridge in a substantial manner, and to keep it in repair
for a certain time. A flood carried it away. It was held
that the company was bound to rebuild. A person con-
tracted to build a house upon the land of another. Before
it was completed it was destroyed by fire. It was held
that he was not thereby excused from the performance
of his contract. A party contracted to erect and com-
plete a building on a certain lot. By reason of a latent
defect in soil the building fell down before it was com-
pleted. It was held (School Trustees v. Bennett, 3
Dutcher 513, a case in New Jersey, cited by counsel)
that the loss must be borne by the contractor. The
analogies between the case last cited and the one under
consideration are very striking. There is scarcely a
remark in the judgment of the Court in that case that
does not apply here. Under such circumstances equity
cannot interpose. The principle which controlled the
decision in the cases referred to rests upon a solid founda-
tion of reason and justice. It regards the sanctity of
564 LAW OF CONTRACTS

contract. It requires parties to do what they have agreed
to do. If unexpected impediments lie in the way, and
a loss must ensue, it leaves the loss where the contract
places it. If the parties have made no provisions for a
dispensation, the rule of law gives none. It does not
allow a contract fairly made to be annulled, and it does
not pérmit to be interpolated what the parties themselves
have not stipulated.”

In Bussman v. Ganster,' it was decided that a lease
of land, on which there was a building, with an express
covenant to pay rent, that the destruction of the building
by fire, although the lessor had received the insurance
money, was no defence in an action by the lessor against
the lessee for the rent. And again, in the case of Hoy
v. Holt,? the rule laid down in Paradine v. Jane was
applied in the case of what is known in Pennsylvania
as a timber lease, that is, where the timber is paid for
at fixed rates and such a possession of the premises is
given as is necessary to remove it. In this particular
case the defendant covenanted “to put a sawmill in good
repair and good running order, and the same so keep,
and when all said timber is sawed into lumber and
manufactured into shingles, to deliver said sawmill to
the plaintiff in reasonable good condition and repair.”
The mill was destroyed by fire, without any default of
the defendant, and it was held nevertheless that he was
bound to rebuild. In delivering the opinion, Mr. Justice
Paxson said: “For while it is undoubtedly the general
rule in case of bailments, that if the thing hired is lost
or injured by inevitable casualty, or by superior force,
and without any fault of the hirer, he is exonerated from
all risk: Story on Bailments, § 408. Yet the rule is
laid by the same eminent authority, that bailees may be

172 Pa, St. 285.
291 Pa. St. 88.
DISCHARGE OF CONTRACTS. 565

responsible for accidents by special contract: Id. 29.
If the defendants were bailees of the mill, they were so
by special contract, with a special covenant to repair,
and the cases cited of common law bailments do not
apply. The one raises a duty created by the party, the
other a duty created by the law. The distinction between
them is well defined by Sergeant Williams in his
edition of Sir Edward Saunder’s Reports (2 Saund. 69);
Walton v. Waterhouse, Id. 422, note 2, ‘When the law
creates a duty, and the party is disabled to perform it
without any default in him, and he has no remedy over,
the law will excuse it, as in waste, if a house be de-.
stroyed by tempest or by enemies, the lessee is excused;
so in escape, if a prison be destroyed by tempest or
enemies, the gaoler is excused; but when the party, by
his own contract, creates a duty or charge upon himself,
he is bound to make it good, if he may, nothwithstand-
ing any accident by inevitable necessity, because he
might have provided against it by his contract. And, there-
fore, if a lessee covenanted to repair a house, though
it be burned by lightning or thrown down by enemies
yet he is bound to repair it.’”

Such being the general rule, there are certain excep-
tions to it which must be considered.

(1) Where the performance of the contract becomes
zmpossible in law, the promtisor ts discharged."

The leading case on this subject is Baily v. De Cres-
pigny,’ where the defendant had demised certain premises
to the plaintiff and had covenanted that neither he nor
his assigns would, during the term, permit any messuage
to be erected on a paddock fronting the demised premises.

1See Anson on Contracts, 8th ed., p. 393, 0. 1; Jamieson v. Ind. Nat. Gas Co.,
128 Ind. 555; Rogers v. Davidson, 142 Pa. St. 436.
7. R. 4 Q. B. 180.
566 LAW OF CONTRACTS.

A railroad company under the provisions of an Act of
Parliament, which gave it compulsory power to take
property conveniently necessary for its use, took the
paddock and erected a station upon it. In an action for
the breach of the covenant the defendant pleaded this
compulsory taking by the railroad, and it was held that
the plea was a good plea. In delivering the opinion of
the Court, Judge Hannen said: “The substantial ques-
tion, therefore, raised on this record is whether the
defendant is discharged from his covenant by the subse-
quent Act of Parliament, which put it out of his power
to perform it. We are of the opinion that he is so dis-
charged on the principle expressed in the maxim ‘ lex
non cogit ad tmposstbilta.’ We have first to consider what
is the meaning of the covenant which the parties have
entered into. There can be no doubt that a man may
by an absolute contract bind himself to perform things
which subsequently became impossible, or to pay damages.
for the non-performance, and this construction is to be
put upon an unqualified undertaking, where the event
which causes the impossibility was or might have been
anticipated and guarded against in the contract, or where
the impossibility arises from the act or default of the
promisor. But where the event is of such a character
that it cannot reasonably be supposed to have been in
the contemplation of the contracting parties when the
contract was made, they will not be held bound by general
words which, though large enough to include, were not
used with reference to the possibility of the particular
contingency which afterward happened. It is on this
principle that the act of God is in some cases said to
excuse the breach of a contract. This is in fact an
inaccurate expression, because, where it is an answer to
a complainant of an alleged breach of contract that the
thing done or left undone was so by the act of God, what
DISCHARGE OF CONTRACTS. 567

it means is that it was not within the contract; for, as it
is observed by Maule, J.,in Canham wv. Barry (15 C. B.
619), a man might by apt words bind himself that it
shall rain to-morrow or that he will pay damages. This
is the explanation of the case put by Lord Coke in
Shelley’s case (1 Rep. 98): ‘If a lessee covenants to
leave a wood in as good a plight as the wood was at the
time of the lease and afterward the trees are blown down
by tempests, he is discharged of his covenant,’ because it
was thought that the covenant was intended to relate only
to the tenant’s own acts, and not to an event beyond his
control, producing ‘effects not in his power to remedy.
(See Shep. Touch. 173). It is on this principle that it
has been held that an impossibility, arising from an act
of the legislature subsequent to the contract, discharges
the contractor from liability. Again, to quote an obser-
vation of Maule, J., in Mayor of Berwick v. Oswald (13
E. & B. 665; 23 L. J.), ‘there is nothing to prevent
parties from binding themselves by a contract as to any
future state of the law, . . . but people in general
_must always be considered as contracting with reference
to the law as existing at the time of the contract.

And the words showing a contrary intention ought to.
be pretty clear to rebut that presumption.’ To hold a
man liable by words, in a sense affixed to them by legis-
lation subsequent to the contract, is to impose on him a
contract he never made. ‘This is the principle of that
which was laid down in Brewster v. Kitchell (1 Salk.
198), that ‘where H. covenants not to do an act or thing
which was lawful to do, and an act of Parliament comes
after and compels him to do it, the statute repeals the
covenant. So if H. covenants to do a thing which is
lawful, and an act of Parliament comes in and hinders
him from doing it, the covenant is repealed.’ To apply
the foregoing observations to the present case: ‘The
568 LAW OF CONTRACTS.

defendant has covenanted that his “assigns” shall not
build. The word “assigns” is a term of well-known
signification, comprehending all those who take either
immediately or remotely from or under the assignor,
whether by conveyance, devise, descent, or act of law:
Spencer’s case (5 Rep. 16). The defendant when he
contracted used the general word “assigns,” knowing
that it had a definite meaning, and he was able to see
and guard against the liabilities which might arise from
the contract so interpreted. The legislature, by com-
pelling him to part with his land to a railway company,
whom he could not bind by any stipulation, as he could
an assignee chosen by himself, has created a new kind
of assign, such as was not in the contemplation of the
parties when the contract was entered into. To hold
the defendant responsible for the acts of such an assignee
is to make an entirely new contract for the parties.’ ”

The case of Semmes v. The Hartford Insurance Com-
pany,’ exhibits a curious application of this rule. In this
case a policy of insurance had provided that no suit
should be sustained on it unless brought within twelve
months from the time of loss, and in case the action
should be brought more than twelve months next after
the loss, lapse of time should be taken and deemed as
conclusive evidence against the validity of the claim. Suit
was brought more than twelve months after the loss; in
fact, it was six years after. The plea set up the agree-
ment and averred that suit had not been brought within
twelve months from the time of the loss, to which there
was a replication that the. plaintiff had been prevented
by the civil war from bringing suit, by reason of the fact
that he was a citizen of the State of Mississippi and the
defendant a citizen of Connecticut during the time of
the war. The Court below decided in favor of the defendant,

113 Wall. 158.
DISCHARGE OF CONTRACTS. 569

applying the rule which is applied in the case of the
Statute of Limitations. They determined what length
of time the war had existed and deducted that time from
the time that had passed between the loss and the bring-
ing of the action, and having found that after that deduc-
tion the time left was more than twelve months, they held
that the plaintiff could not recover. The Supreme Court
said, in substance, Mr. Justice Miller giving the opinion,
that the rule applied in the case of the Statute of Limita-
tions was not applicable in this case. In the case of the
Statute of Limitations the law imposed the limitation
and the law imposed the disability, and therefore it was
but right that they should deduct one period from the
other; but in the present case the parties themselves had
created the disability and that consequently the Court
below had no right to change the terms of the contract,
and that there was held a strict legal right to have the
action brought within twelve months from the time of
the loss unless there was a legal disability which dis-
charged the party from that obligation, and if that legal
disability was shown, then the covenant of the contract was
discharged altogether and could not be revived, and that the
existence of the war did make the performance of that cove-
nant legally impossible, and therefore after the war had
ended that covenant had ceased to exist, and the only bar
there was to a right of action was the Statute of Limitations.

(2) Where the continued extstence of a thing 1s necessary
to the performance of the contract, tts destruction
without the fault of either party, acts as a discharge."

In Taylor v. Caldwell,? A agreed with B to give him
the use of a music hall on certain specified days, for the

1 Anson on Contracts, 8th ed., p. 394, u. 1. And see Butterfield v. Byron, 153
Mass. 517; Wilmington Trans. Co. v. O'Neil, 98 Cal. 654. Cf. Powell v. Rail-
road Co.; 12 Ore. 488; Clark v. Collier, 110 Cal. 256.

24 B. & S. 826; Campbell’s Rul. Cas., Vol. VI, p. 603, Eng. and Am. notes,

‘pp. 611, 613.
570 LAW OF CONTRACTS.

purpose of holding concerts, with no express stipulation
for the event of the destruction of the music hall by fire.
And it was held that the destruction of the hall by fire,
before the time when it was to be used for concerts, dis-
charged both parties from the contract. In delivering the
judgment of the Court, Blackburn, J., said: “There
seems no doubt that where there is a positive contract to
do a thing, not in itself unlawful, the contractor must
perform it or pay damages for not doing it, although in
consequence of unforeseen accidents the performance of
this contract has become unexpectedly burthensome or
even impossible. The law is so laid down in x Roll. Abr.
450, Condition, and in the note to Walton v. Waterhouse,
2 Wm. Saund. 421, a, 6th ed., and is recognized as the
general rule by all the judges in the much discussed case
of Hall v. Wright, E. B. & E. 746, (E. C. L. R. Vol. 96).
But this rule is only applicable when the contract is
positive and absolute, and not subject to any condition
either express or implied; and there are authorities.
which, as we think, establish the principle that where,
from the nature of the contract, it appears that the parties
must from the beginning have known that it could not be ful-
filled unless when the time for the fulfilment of the contract
arrived some particular specified thing continued to exist,
so that, when entering into the contract, they must have
contemplated such continuing existence as the foundation
of what was to be done; there, in the absence of any express.
or implied warranty that the thing shall exist, the contract
is not to be construed as a positive contract, but as subject to
an implied condition that the parties shall be excused in
case, before breach, performance becomes impossible from
the perishing of the thing without default of the contractor.”

In Lovering v. The Buck Mountain Coal Company,’ a
coal company under its charter constructed a railroad to.

154 Pa. St. 291.
DISCHARGE OF CONTRACTS. 571

connect with the Lehigh Navigation Company, which
thus notoriously became indispensable for the transpor-
tation of its coal. It entered into a contract with the
plaintiffs for the delivery of a large quantity of coal
within a certain time. Before the time for delivering
the coal a freshet swept away all the works of the Nav-
igation Company, so that the Coal Company was pre-
vented from fulfilling its contract, and it was held that
this was a defence to an action for the failure to deliver
the coal.

In Ward v. Vance,’ A had agreed with the defendant
to furnish the defendant’s hotel with water, through the
same pipes then used for such purpose. The defendant
afterward leased the hotel to the plaintiff and covenanted
that the hotel should be supplied with spring water in
the same way that it was then supplied under the
defendant’s agreement with A. The plaintiff sued the
defendant for breach of the covenant, and the Court
instructed the jury that the fact that the spring from
which the water had always been taken had run dry
was no defence, and the judgment was reversed for a
misdirection, upon the ground that all the lessor had
stipulated to do was to furnish water in the way it was
supplied at the time of making the contract: to wit.,
from a certain spring, and that ceasing to exist he was
discharged from his covenant for the time being. The
rule was applied in the case of The Tornado,’ where a
vessel before she started on her voyage, but after she
had been loaded, was so injured by fire that she was
unseaworthy, and it was held that the owners of the
vessel were not entitled to freight. The Court said,
“The shipowner was entitled to freight only for carrying
the cargo and delivering it at Liverpool, with the

193 Pa. St. 499.
#108 U. S. 342.
572 LAW OF CONTRACTS.

implied covenant that this particular vessel was to take
it on board and enter on the voyage. Before that event
occurred this vessel was substantially put out of ex-
istence by no fault of the shipper, and he had and
could have no benefit from the contract. He had a
right, therefore, to treat the contract rescinded, so far
as any liability for freight was concerned.” *

It is a well established rule of law that where there
has been a sale of personal property to be delivered at
a future day, and the title has passed, if the property
is destroyed and ceases to exist, through no fault of
the vendor, he is discharged from his obligation to
deliver it;* and the same rule holds as to goods which
are bailed or loaned. If they are destroyed without any
fault of the bailee or borrower, he is discharged from
his obligation to return them.

(3) Where the contract ts for the rendering of personal
service, death or incapacity arising from sickness
releases thé promzsor#

One of the leading cases on this subject is Robinson
v. Davison,‘ in which the plaintiff made a contract with
the defendant that the defendant’s wife should play the
piano at a concert to be given by the plaintiff on a
specified day. On the day in question, she was sick and
could not play. The plaintiff sued the defendant for
damages and it was held that his wife’s sickness was a
good defence. In giving the opinion of the Court,
Kelly, C. B., quoted the opinion of Pollock, C. B.,
in the case of Hall v. Wright,> as follows: ‘Now it

1See also the case of Wells v. Calnan, 107 Mass. 514, where a large number
of cases are collected in an opinion by Judge Gray.

2 See Sale of Goods Act, 56 and 57 Vict. c. 71 2 7.

3 Anson on Contracts, 8th ed., p. 395.and note.

4L. R. 6 Exch. 369; and see Campbell’s Rul. Cas., Vol. VI, p. 612.
5K. B. & E. 746.
DISCHARGE OF CONTRACTS. 573

must be conceded on all hands that there are contracts
to which the law implies exceptions and conditions which
are not expressed. All contracts for personal services
which can be performed only during the lifetime of the
party contracting are subject to the implied condition
that he shall be alive to perform them; and, should he
die, his executor is not liable to an action for the breach
of contract occasioned by his death. So a contract by
an author to write a book within a reasonable time, or
by a painter to paint a picture within a reasonable time,
would, in my judgment, be deemed subject to the con-
dition that, if the author became insane, or the painter
paralytic, and so incapable of performing the contract
by the act of God, he would not be liable personally in
damages many more than his executors would be if he
had been prevented by death.” And Lord Bramwell in
giving his opinion in Robinson v. Davison, said: “This
is a contract to perform a service which no deputy could
perform, and which, in case of death, could not be per-
formed by the executors of the deceased; and I am of
opinion that by virtue of the terms of the original bar-
gain incapacity either of body or of mind in the per-
former, without default on his or her part, is an excuse
for non-performance. Of course the parties might ex-
pressly contract that incapacity should not excuse, and
thus preclude the condition of health from being annexed
to their agreement. Here they have not done so; and
as they have been silent on that point, the contract must
in my judgment be taken to have been conditional, and
not absolute. This is the conclusion I come to upon
principle and the cases cited seem to be in accordance
with it.”

In the case of Harrington wv. Fall River Iron Works
Company,’ a servant, who by his contract agreed that he

1119 Mass. 82.
574 LAW OF CONTRACTS.

would give ten days’ notice before leaving, and in default
thereof forfeit all his wages up to that time, was pre-
vented from recovering his wages, though kept away
from his work by sickness.’

1Cf. Lakeman v. Pollard, 43 Me. 463 and Dewey z. School District, 43 Mich.

480, where it is held that the existence of an unforeseen peril muy discharge a
contract.
CHAPTER XVII.
DISCHARGE OF CONTRACT BY OPERATION OF LAW.

Under well-recognized and defined conditions, contracts
will be discharged by operation of law in the case of (1)
merger, (2) the alteration or loss of a written instrument
and (3) bankruptcy.’

(7) Merger.

“Tt is a general rule of law, that a party, by taking
or acquiring a security of a higher nature in legal
operation than the one he already possesses, merges and
extinguishes his legal remedies upon the minor security
or cause of action.” By taking a bond or covenant
under seal for a simple contract debt, the remedy upon
the simple contract is extinguished ;* by recovering judg-
ment upon a simple contract, bond or specialty, the
remedy upon the cause of action is merged in the judg-
ment, which, being matter of record, is a security of
higher efficacy. “The policy of the law is, that there
shall not be two subsisting remedies, one upon the cove-
nant and another upon the simple contract by the same
person against the same person for the same demand.””*

In order that one security shall be tne merged and
extinguished in another it is necessary :5

1 Anson on Contracts, Part V, Ch. V.

2 Harmon v. Harmon, 51 Fed. 113; Clifton v. Jackson Iron Co., 74 Mich. 183.
3 Ante, Part IV, Ch. 3. Owen v. Homan, 3 Mac. & G. 407.

‘Price v. Moulton, 10 C. B. 574. See Leake on Contracts, Ch. IX, p. 804.

5 Anson on Contracts, * p. 326.

(575)
576 LAW OF CONTRACTS.

(1) That the two securities shall be different in their
legal operation and the one of a higher efficacy than the
other. A second security taken in addition to one similar
in character will not affect its validity, unless there be dis-
charge by substituted agreement.’ Where the securities.
are of equal degree—as a bond taken for a bond or for a
covenant, or a bond or covenant taken for payment of rent,
which is also a specialty debt—no merger takes place.’

(2) The subject matter of the two securities must be
identical. The securities must be co-extensive.? But
merger may be effected of part of a claim, if the
superior security be specially appropriated to that part.*

(3) The parties must be the same.

In Wodock wv. Robinson,’ the Supreme Court of
Pennsylvania adopts the language of Thayer, J., as
follows: “‘ For it is as true now as it ever was, and is
a rule too firmly rooted in justice and honesty to be
easily eradicated from any system of wise laws, that all
negotiations, all conversations, all oral promises, all ver-
bal agreements, are forever merged in, superseded and
extinguished by, the sealed instrument which is the
final outcome and result of the bargaining of the parties.
The written instrument will stand as the sole exponent
of the minds of the parties.”

1 Higgin’s Case, 6 Co. Rep. 45 b.

2 Branthwait v. Cornwallis, Cro. Car. 85; Price v. Moulton, 10 C. B. 574;
Kidd v. Boone, L. R. 12 Eq. 89.

3 Holmes v. Bell, 3 M. & G. 213; Norfolk Ry. v. McNamara, 3 Exch. 628.

‘Price v. Moulton, 10 C. B. 561; Cox v. Henry, 32 Pa. St. 18; Close v. Zell,
141 Pa. St. 390; McGowan v. Bailey, 146 Pa. St. 572. See Chitty on Contracts,.
tith Am. ed., Vol. I, p. 9, n.j. That merger in equity is often determined by
the intention of the parties, see Carrow v. Headley, 155 Pa. St. 96.

S White v. Cuyler, 6-T. R. 176; Holmes v. Bell, 3 M. & G. 213 Ansell v.
Baker, 15 Q. B. 20. :

6148 Pa. St. 503, and cases there collected.

™See Dubuque Nat. Bank v. Weed, 57 Fed. 513; Megrath wv. Gilmore, 19
Wash. 339. See, however, Uhlig v. Barnum, 43 Neb. 584; Calley v. Loomas, 56
Mo. App. 322.
DISCHARGE OF CONTRACT. 577

(2) Alteration or loss of a written instrument.

When a contract in writing, either with or without a
seal, is altered in a material part by the promisee, with-
out the consent of the promisor, as by interlineation,
addition or erasure, it is so far avoided by the alteration,
that the promisee is deprived of all benefit of it, as
ground either of action or of defence.’ In order that
alteration shall discharge a contract it is necessary:

(1) That the alteration be made by a party to the
contract, or by a stranger while the document is in the
possession of a party to the contract and for his benefit.’
“Alteration by accident or mistake occurring under
such circumstances as to negative the idea of intention
will not invalidate the document,” but the party claim-
ing under it must prove the accident and the original
state of the instrument.’

(2) The alteration must be made without the consent
of the other party. If made with his consent it amounts
to a novation.‘

(3) The alteration must be made in a material part.
A material alteration is one which affects the contract
or any rights or remedies under it; or which affects
the use of the instrument for its proper purpose An
alteration may be material, therefore, which does not
affect the contractual rights set forth in it.°

1 Leake on Contracts, Part IV, Ch. II, p. 696, Pigot’s Case, 11 Co. Rep. 27 6;
Master v. Miller, 2 H. Bl. 140, 1 Sm. L. Cas., oth ed., p. 825; Page v. Krekey,
137 N. ¥. 307. See, however, City of Orlando v. Gooding, 34 Fla. 244. ‘

2 Pattison v. Luckley, L. R. 10 Exch. 330; Davidson v. Cooper, 13 M. & W. 352.

3 Anson7on Contracts, 8th ed., p. 397, and notes 1 and 2. Bolton v. Carlisle,
2H. Bl. 263.

4 Ante, Part IV, Ch. I.

6 See Suffell v. Bank of England, L. R. 9 Q. B. D. 555, that the alteration of
the number of a Bank of England note is material. Contva, Com. v. Emigrant .
Bank, 9 Mass. 12; Elizabeth v. Force, 29 N. J. Eq. 587.

6 Suffell v. Bank of England, L. R. 9 Q. B. D. 555, which was affirmed in Leeds
Bank v. Walker, 11 Q. B. D. 84, notwithstanding Stat. 46 and 47 Vict. c. 61,
$64; Davidson v. Cooper, 13 M. &. W. 343.

37
578 LAW OF CONTRACTS.

An alteration, however, if made to conform the writing
to the intention of the parties, and in a manner to
negative the idea of fraud, will not avoid the instru-
ment.’ So, too, an alteration made in ignorance and
corrected before delivery of the instrument is imma-
terial;? and when an alteration is made under an
honest mistake of right, and not with a view to gain
an improper advantage, a recovery may be had on
the original contract. While, the unauthorized and
material alteration of an instrument by the promisee, or
with his privity, after execution, unexplained, is pre-
sumptively fraudulent and vitiates the contract;‘* an
alteration, though unauthorized, if innocently made,
without any fraudulent or improper motive, will not
avoid.5

The loss or accidental destruction of a deed or written
instrument does not in general affect the rights of the
parties depending uponit, further than occasioning a diffi-
culty in proving the contents.© An exception to this
rule exists in the case of bills of exchange and prom-
issory notes. “The custom (of merchants) in this respect
is that the holder of a bill shall present the instrument
at its maturity to the acceptor, demand payment of the
amount, and upon receipt of the money deliver up the
bill. The acceptor paying the bill has a right to the
possession of the instrument for his own security, and
as his voucher and discharge fro ¢anto in his account

1 Foote v. Hambrick, 70 Miss. 51; Campbell’s Rul. Cas., Vol. VII, p. 615, and
collected cases.

2 Rogers v. Shaw, 59 Cal. 260; Kountz v. Kennedy, 63 Pa. St. 187.

3 State Sav. Bank v. Shaffer, 9 Neb. 1; Hunt v. Gray, 35 N. J. L. 227.

‘Russell v. Reed, 36 Minn. 376; Vogel wv. Ripper, 34 Ill. 100; Todd vw. Led-
erach, 4 Pa. Dist. R. 173. See Lilly v. Person & Riegel, 168 Pa. St. 219.

5 Milbery v. Stover, 75 Me. 69; Crosswell v. Labree, 81 Me. 44; Davis v.
Campbell, (Iowa) 61 N. W. 1053. ;

6 Leake on Contracts, p. 107; Haydon v. Williams, 7 Bing. 163, cf. Nichol z.
Bestwick, 28 L. J. Exch. 4. See Burr v. Kase, 168 Pa. St. 81; Brighton v. Lake
Shore & M.S. Ry. Co., 61 N. W. 550.
DISCHARGE OF CONTRACT. 579

with the drawer." An action may be maintained on a
lost note, however, if the party primarily liable upon it
be offered an indemnity against possible claims.’

(3) Bankruptey2

An adjudication of bankruptcy operates as an assign-
ment in law of all property of a debtor for a division
amongst his creditors, and effects a statutory release
from debts and liabilities probable under the bankruptcy,
when the bankrupt has obtained from the Court an
order of discharge. A State bankruptcy discharge, how-
ever, has no effect upon debts contracted prior to. the
passage of the statute,’ nor upon the claims of foreign
creditors unless the creditors become parties to the
proceeding.®

In the event of bankruptcy, the property of the bank-
rupt passes to his trustee, who, as far as rights ex con-
tractu are concerned, can exercise the rights of the
bankrupt, and further, can even repudiate contracts if
they appear unprofitable.’ But a trustee cannot sue for
personal injuries arising out of a breach of contract,
even though a consequential damage to the personal
estate follows upon the injury to the person.°

1 Per curiam, Hansard v. Robinson, 7 B. & C. 94.

2 Conflaus Quarry Co. v. Parker, L. R. 3 C. P. 1; Hedricks v. Whitecotton, 1
Mo. App. Rep. 268. See Reisinger v. Magee, 158 Pa. St. 280. If an instrument
is wilfully destroyed, no action, can be maintained. Blade v. Noland, 12 Wend.
(N. Y.) 173; Terwilliger v. Terwilliger, 27 N.Y. S. 284; cf. Steele v. Lord, 70
N. Y. 280.

3 See Leake on Contracts, Pt. VI, Chap. VI, p. Iog!.

4See Huntingdon v. Saunders, 64 Fed. 476; Nelson v. Guffy, 37 Pa. L. J. 65.

§ Sturges v. Crowninshield, 4 Wheat. 122.

6 Gilman v. Lockwood, 4 Wall. 409; Guernsey v. Wood, 130 Mass. 503.

7 Beall vy. Dushane, 149 Pa. St. 439. No general bankruptcy act has been in
force in the United States since Sept. 1, 1878. For the Pa. Statutes, see Pepper
& Lewis’ Digest, title ‘‘ Assignments.” For Eng. Statutes, see 46 and 47 Vict.
c. 52, and 53 and 54 Vict. c. 71.

8 Drake v. Beckham, 11M. & W. 319; Rogers v. Spence, 13 M. & W. 571.
580 LAW OF CONTRACTS.

When a bankrupt obtains an order of discharge he is
discharged from all debts provable under the bankruptcy,
whether or not they were proved, and even if the creditor
was in ignorance of the bankruptcy proceedings.* In
no case, however, is the bankrupt discharged from lia-
bility incurred by fraud or fraudulent breach of trust
exercised by him.’

1 Heather v. Webb, 2 C.P. D. 1; Jw ve Starr 56 Fed. 142; 46 and 47 Vict. c. 52,
3 28.
2Ib. 3 30; Weaver v, Weaver, 1 Northampton Co. Rep’r (Pa.), 373; Roby z.

Colehour, 146 U. S. 153. See Ewell v. Pitman, 27 S. W. 870; Stern v. Meyer,
29 N. Y. S. 34.
 

A.
; : PAGE,
ACCEPTANCE, of proposal... .... 0.0.00 ee 8
must beunqualifed ........0.... 000 eee oe, oe
of offer or proposal is general form of agreement ........ 9, 13
expressorimplied. . 2... Ue ee se we ee + IO, 15, 139
must be communicated ........ 5 al fe) Ge ees wd « 10, 13
must be by an ascertained person ....... ete 8) Ja: ere Sa IL
When IN HME ke ww wide ens <12
when contract is made by correspondence. ....... ef ese) 6 I4
when by telegram. . 2... 2... i eee IG
by conduct as well as by words, must becertain. ....... . 15
PEQUISIEESIOR cose yee G8 a MS we we Rs ey we 5
examples of insufficient acceptance. ........2. eater - 15
examples of sufficient acceptance. ........ Si eis) nas GOP, a A 15
of continuing offer 2... ee ee ae gle aioe + 127
of billiofexchange. hides Goh e ec od we a GS LR 317
stranger cannot accept ...... eee ee ee oe ee Se we 317
acceptance for honor, supra protest ........... see ae 317
oral promise to accept existing bill. ..........0. oe + « 318
statutory provisions requiring written acceptance .......... 318
need not be in any particularform ............ Seow we RVD
may be qualified . 3... Re 4 2 6 oe B28
time of acceptance. 2. we. et ose ee 324
complete,without delivery... .- ....... aw Re B84

‘ (Seé BILL OF EXCHANGE.)
ACCORD AND SATISFACTION, discharge of right of action by . . 542, 546

TEqQuUISIteSiOf, | s. sooo. Go ye ee Sw eg Oe es «+ 542 sgq.
ACQUIESCENCE, as a bar to rescinding contract on ground of fraud . . 187
on ground of undue influence .........0.0.-.. Bi Eee 220
ACT OF GOD, definitionof. .......0...0..2. 2.8002 ne + 440
when.an excepted TISK 5g 608 ene ce OR ee we 439
ACTION, right of, springs from breach of contract ....... oe + 467
how discharged. ........ ieee Gabon echas Shes 537
ADVERTISEMENT, contract by ..........- ae ee Il, 12
AGENCY, arising from a service executed on request .......... 6

ratification by principal, of contract made by one holding himself out as

BM AR ESUE see siy si ge aap aes LC RR en Bice
who may ratify. ...... My Sol Gatch, Uke oad Ae sot eee ee 69 sqq.
arising from the acceptance of an executed consideration ...... 69
when agent is personally liable ......-...5-.4. 69, 77, 78, 80.

liability of undisclosed principal where agent contracts in hisown name, 69
ratification of agent’s acts must be by one who might have been origi-

nallybound........ fee 68 ee ee a 7
in equity a corporation may ratify a contract made in its behalf before

itcameinto existence... ... 2+. ee eens ioe a 92
an illegal act cannot be ratified ©... .- eee eee ee ceee 72
arising from express contract . 1... 1 +e ees i Guten Sate Se Se PG) 73
authority of agent, how revoked. ....... BER ia a fe Gis ee asses 9G
582 INDEX.

PAGE,
AGENCY—Continued.
effect of death of principal on subsequent contracts of agent before
notice ..... pene re cen rr era re eee

contracts by authorized agent known tobesuch. ......... 76,79
how agent’s liability may be excluded or limited when he contracts in
his own name. . Bees Ue Mise Ge da" letmay Gaensler ot ded 3 77
rights of undisclosed principal where agent is zo¢ known tobe such . 78
rights of the other contracting party .. 1... 2.22... sees 78
election to sue principal or agent... .. 0 2... ee ee eee 78
position of professed agent who has no authority: where a principal is
UAC ia is) ge Ca el Sey Cee lshe ad Salome ae ge da AD Ged ep eae Bao eee 37D
where no principalis named. . 2 1. eee ee ee
liability of third parties directly toagents ........+54.2... 81
principal responsible for fraudulent representation ofagent ..... 182
when agent deals on own account in business of agency, principal may
TEPUGIAte: oe Se a ey Se a ROW ae a SR ae aS 238
AGREEMENT, definition of . 2... . 1. ee ee ee et ws 5
both parties must be bound ...........0828.8., wee: 27
theory of, as accepted proposal. . 2... 0-1 wwe ee ee ee Io
(See CONTRACT; PROPOSAL; ACCEPTANCE; CONSENT.)
NOt tO Sle 4 wp Pe ese ek eo ee Sea ee ES 128
lacking, when nature of transaction mistaken. .....--+-... 149
(See MISTAKE.)
illegal on ground of statutory prohibition ....... saa Se Go. 228
(See UNLAWFUL, AGREEMENTS.)
of imperfect obligation, defined ........6. Mabie Gay Aah tay Sapte 272
rulesinregard to... . 0 2... ee ee ee se ee © 285, 286
discharge of contract by. ©. 1 6 1c ee we ee ee ee ee 430
effect o: oben anew party.to ...... oiler sve eo BY ew ae AZO
form necessary for discharge by ........40+ 5005 + . 442 sgq.
as to substituted mode of performance. ....... Sew ew ew 448
ALIEN, power of, tocontract . 2... 6 1 we tt te ee 16
ALTERATION OF INSTRUMENT, when it effects discharge ..... 577

must be by party to contract, in a material part and without consent . 577
when made to conform instrument to the intention of the parties, it

willnotavoid....... id aan oa istieah teh GO “ay aR Gy Woh UB See - 578
ARBITRATION, infants contract of, voidable ........4.-. e:8  2E
ASSIGNMENT, liabilities cannot be assigned ........-..0. 295

erformance by third party where personal skill not involved . . . . 295
Penedit of contract not assignable at common law. ...... « . « 296
except bya novation . 2... 1 ee ee ee ew 296
in equity rights are assignable... 2. 1 1. ee eee ee ee 298
of after acquired ppm and future interests ........00- 298
notice to person liable not necessary to complete assignment. . . . . 299
notice necessary, however, to bind debtor ...........4.. 300
in England, equitable titles have priority according to priority of
HOUCE> eee ow ee Be 18 ww ee we ee FOO
various decisions in the United States . 1... 2 ee ee ee eee 302
assignee takes subject to equities .......-..64 ee ee ee 302
assignment bystatutein England ............0.20- + 306
statutory provisions in the United States. ...... $8 & eos Gee 307
general principles of assignment summarized. ..... es ee es 307
by operation of law .. 0 1 1 we ee ee eee eee eee. 391
of interests in land, Spencer’scase. . 2... ee ep ee eee 391, 410
by marriage and death .. 1... 1... fe ee eee ee 4ir
by Dankmiptey «coco Gk Bodie eae Sh = ars SOU ert wel 412

(See COVENANT; EQuity; NEGOTIABLE INSTRUMENTS; NOTICE. )
ATTORNEY-AT-LAW, capacity of, to sue for services . ..... . 17, 280
contingent fees to, valid in Pennsylvania... 1... +. eee eee 249
AUCTION, sale by, confirmation of contractin. ......0e++.., &Of
B.

BAILMENT, consideration for promise ......,... CR ee ew we TST
BANKRUPTCY, its effect in assigning property of bankrupt. ..... 579

its effect in discharging contract. 2. ......2,.2..22.~. 579, 580
BILLS OF EXCHANGE at common law must be in writing ... . > Tor
what constitutes ... 2... ..--.... 00.0. 0002.08 .% 310
must contain order to pay, not merely a request. . . . . aie ee SE 310
promise or order must be unconditional ....... Ra a aes 311
must be payable in money ..... ......., is Sarre Neate Ge 312
must not contain independent agreement. ..... WR RR a eS 312
effect of commission dave ce eR ee eS eae 8 eee ces Bee, B12
promise to pay out of particularfund ...........0.0... 314
amount must bedefinite.. ...........,04 eee we BIA
certainty as to parties essential. -.. 2... ae 1s oe 8 ee BTS
delivery necessary 0. be a ee ee em C8 Goer BIS
acceptance defined, .. 46 eee eS! wR Se 317
stranger cannot accept ... 1... 2.2.02. cee eae ee 8 ee B17
acceptance supra protest Bye AS as ERIE RE er Ge Se en vy We Sw ee 317
oral promise to accept existing bill. 2.2... eee 318
statutory provisions requiring written acceptance .......... 318
need not bein any particular form. .. 2... .....202.000. 320
may be-qualined. ain cc yg aed bw aR Sw eR we ee 323
time of acceptance: 3 2 6 8 is BM aK HH EE we we 324
complete without delivery... 2... eee eee eee ee es 324
presentment for acceptance, when necessary ........2.0045 357
how to bedmnadé: ae Sg Ye GR ae 358
(See NEGOTIABLE INSTRUMENTS.)

BILL OF LADING, description of ............. + « + 375, 390
effect of endorsement of... ...-... .w.eee ai Ge fae a cage 377
intention of parties in case of endorsement .........-. es 379
how unpaid vendor may secure himself. .....-+... + « « 380, 383
right of stoppage zm tramsitu 2 1 ww et ee 384 °
consideration of assignment of... 2... fee ee ee ee ee 384
doctrine of bona fide purchaser ......... 246 os. 385, 387

BREACH OF CONTRACT isa form of discharge ........... 467
rights of discharged party... 2 ee ee eee ee ee ee ee
gives cause of action ...........2-- oe 2 © © ©» © 467, 470
renunciation before performance. ..°...---...e.00. 471, 476
right of discharged party where renunciation is accepted as a dis-

charge... . BNE 1B hia Sr as sat ctor ae (Ay RAG a Paces. aie tet Se oe oe AIT
impossibility created by one party ..- 2. ...-+-+ e220. 481

decisions upon breach through impossibility created by one party . 2
402 59g.

impossibility created during performance... ....... . 483
failure of performance .. 1.1... ee ee ee te ee ee o . . 488
effect of independent promises. .....+.--+.. oe ee = 488

effect of mutually dependent promises .......... ~. . 488

rules as to averring performance .......-- eee eee. 489

by breach of concurrent condition... .......-. oa a STS

by failure of consideration. . 2. 1 2 ee eee eee oe. 518

by breach of vital condition .......+.+.. aS we 8 ee ee 523
remedies for... 1... eee eee eee eevee 6 BE cals Hence 526

c.

CARRIERS, when responsible for safety of goods .......+645- 440
CHAMPERTY, definitionof. .. 1... 1 1 ee et te we ee 248
agreements of, illegal . 2. 2 2 1 ee eee eee gee RVR AS as eed

contingent fees not affected by rule, in Pennsylvania ........ 249
(See PUBLIC PoLIcy.)
584 INDEX.

PAGE

CHARTER-PARTY, excepted risksin. ......- Ba Wee et Pe ABO
recovery upon, for part performance. ........ oe wees » 495
‘construction of ©. 1 1 1 ee ee ee te ee ee ws 496

CIVIL DEATH, wife of person civilly dead can sue alone. ....... 50

‘COMPOSITION WITH CREDITORS, consideration for. ....... 544

CONDITIONS, definition of ©... 0 fee ee ee ee 163,
breach of, will discharge PONE eh ea Glew eee 164

(See DISCHARGE.)
precedent, what are. 1 6 ee et et ee « + . «497, 512, 2
subsequent. 2. 6 6 eee te ee ee es sh ihe os eae cod sae ae
concurrent’ ao go HS ew a ee oo ies Wee Sas aia
implied insaleof goods . - +... eee ee ee tt et ee ee 512
how conditional promise discharged .. 2... 1... we tee eee 513

CONSENT, how declared enya OSE Oe Gena esl a) diy acy a dos oe
for legal agreement, requisites PED dn te fem nee a ah ave 6, 8
consequences of, must affect parties themselves ........---. 7
definition of 6-5. 60 ee ee Re Re SO we Be Ee See ee we 8
ways of declaring... 20 ww we ee ee ee ee ee 9
conditions affecting validity Ofc eres wee we Gh ie Se ed Sl 142 sqgq.
true consent excluded by mistake ........-. Oi. Se » . 147

(See MISTAKE.)

CONSIDERATION, general character of . 2. 2... ee ee eee eee 8
definition of “a3 #4 ye. * 2 eee ee a wwe ee ey as 123
necessary to validity of simple Contract: 26 6 66 ee ee . 123
bills of exchange and promissory notes an exception torule..... 124
must be something of value .. 1... 0 1 eee ce ee ew ee 124, 125
adequacy notinquiredinto ....... 1 ee ee tt te ee 124
bad, if inadequacy appears by computation. .....-...:. .' 124
EXECULOE Yo ay eee aye ey 18a Fa hy Gags es RL a gh el eS ae 126, 127, 138
where promise isconditional .. 2... 0. ee . 2. 128
executed ..... Gis deed © cosh wee ep a Ad sein oh Get Bar SO OLG), Ge 128
forbearance of rights .. 2... 1. eee ee re et we 128, 130, 131
motive regarded as consideration . 2... .-. ee eee eee 132
promises founded on moralduty ... 2... 2 ee ee ee eee 133
thing promised must be possible and definite ....... 5.0... 135
promisor must be legally competent to perform ........... 136
must be something more than can rightfully be demanded ..... 136
promise or performance of existing contract ..........0.6 137
exectitedson request’: 4. wie se me Be we GS a A Re aS 138
past consideration will not support subsequent promise ....... 139
unless consideration at request of promisor ............ 139
voluntarily doing what anotherisboundtodo ........... 140
promise to pay debt, no longer enforcible ............. 140

(See CONTRACT; PROMISE; BAILMENT; IMPOSSIBLE AGREEMENTS;
CREDITORS. )
tnay be questioned in suit on illegal agreement ........... 226
. (See UNLAWFUL AGREEMENTS.)
promise to pay debt barred by Statute of Limitations is a good consid-

‘eration. 2... . a EE Be ae Go ee aS 273
when past consideration AE dra Glas tok ences 4 WEIN A on 283
what consideration necessary for discharge of contract by waiver . . 430
for discharge of retiring partner... 2... wee ee 438

CONTRACT, basis of the obligation ...............204 3
definition ODE A sas sigs sie Boe g "Secon ee sar tg Re wu”, dat de Roel eet Bie staat co 5
may be void for uncertainty POR OU ee aa he ee ae pw Ve 6
damplied > sy) secgeeks gen ey Aes we ak I ed ca 10

; (See QUASI-CONTRACTS, ).
by letter or telegram 1... .....
INDEX. 585

PAGE,

CONTRACT—Continued.
capacity of partiesto 2... kk. ee 16 sq.
(See INFANTS; MARRIED WoMEN; Lunatic; Corporation; AGENCY;
ALIEN; DRUNKENNESS; PHYSICIAN; ATTORNEY-AT-Law.)
by performing conditions of public offer or advertisement - ILsgq.
(See PROPOSAL; ACCEPTANCE; CONSENT; AGREEMENT; FoRMAL COoN-

. TRACTS; STATUTE OF FRAUDS. )
effect of mistake on

SOS Soh, WD AR) Cade Tey oat a “iggy Geen actin ae Sls 143, I
(See MisTaKE; MIsREPRESENTATION; FRAUD; DuRESS; UNDUE Isms |
void on account of illegality ............ ~=...~, 228 sqq.
(See UNLAWFUL, AGREEMENTS; PUBLIC PoLICy; RESTRAINT OF TRADE.)

void on ground of impossibility ..... |... ....... 270 sqq.

: _(See ImpossIBLE AGREEMENTS.)

modes of discharging... .......... 0... 04 eee, 429
renunciationof ... 2... 0... te tt tt ee 471, 476

(See Divistp_e ContTRACcts. )
CONTRACT UNDER SEAL, in equity, failure of consideration is defence
to a suit on a sealed contract

TRON, BPN oe wah Ged Mawel Irn hes bs 97
how discharged by agreement. ........... Earar te 2 5qq.
CORVOR ONG eo ee ee %
how-Created. ie ee ee cs Sw ws KR us ae ee ee 82
canactonlybyagent ©... .... eee ee ee 83
cannot incur strictly personal liabilities ...........0024 84
responsible, however, for acts of theiragents. ........ -. 84
theories as to corporate powers conferred by charter. ......., 87 sqq.
ultra vires contractsof ..... deat “oes te slya as iohs haat Hoy NO ta Us 88, 89
negotiable iustrumentsof .. 2... 2... ee ee ee go
in general can only contract under seal. . . . . . dinseiee aa, SP AE de au es 98
exceptionstothe rule... . 2. ......28... Oe aL 98
COVENANT, covenants connected witha demise ......... 391-395
those not arising out of ademise .........022.0008 397
when made with owner, run with land ............. 397, 398
those made by owner, do notrunwithland ............ 399
reason fordistinction .. 1... 2... eee ee eee es 399-400
decisions illustrating rule... 2.2... 2.2.55 50 2... eee 400-403
exception where benefit dependent upon burden =... 11... 403
covenants by owner enforced in equity where there is notice... .. 403
cases under equitable doctrine discussed aS inet -eaait ar tay ane ("aR ghig 403, 407
equitable rule confined in England to restrictive covenants ..... 407
distinction between remedy in equity andatlaw.......... 408
covenants amounting to easements bind assignee ........-.. 409
rights that can be the subject matter of a grant, may be created by
covyetant.. « ¢ 6s 4 ee we « as ee ) 410
CREDITORS, composition with, as consideration ........... 137
D.
DAMAGES, rules relating to . 2... .- see ee eee 484 sqq., 528 sqq.
loss of profits as part of damages ...--..+-.-5e 531 59g.
DEATH, revocation of proposalby ..- 1. - eee eet eee ee 13
of principal, revocation of agents’ authority ............ 75
of promisor, discharges contract for personal services ........ 572
DEED, voluntary, is exception to rule that acceptance of proposal must be
communicated . 1. 2 - e e t ee ee t e e  e e e w  t 15
definition Of: seb 8 Re BOS BE 2 ew oe 93
peculiarity of promises made by .. 2. - / ee ee ee ee es 93
at common law need not besigned .. 1... 2.2.2 eee eee . 93
what constitutes seal and delivery ...-.- 2... ee eeu 93 Sgg-
escrow - +e... eet te es 1 Pipe ANON Gahes nce tou Da anaemia 94.

(See CONTRACT UNDER SEAL; SEAL; FoRMAL CONTRACTS.)
586 INDEX.

PAGE.
DELIVERY, of goods .......+.50-02+ 205 Be Recie ae ee ace! ee) ASO
DISCHARGE) avs gob i de ik BRAY en OS we Be), ee or re ae 429:
(See AGREEMENT; BREACH; IMPOSSIBILITY; OPERATION OF LAW;
PERFORMANCE.)
DIVISIBLE CONTRACTS, general rules .............0.4 446
DRUNKENNESS, contract of drunkard voidable, not void .......
may be set up as defence between parties to a promissory note . . . 45, 47
DURESS, definition of, atcommonlaw .... ......... 188, 190
imprisonment, threat or process must be unlawful to constitute... 188
classification iOf «6s i3 5 kee Oa ew SR RHE O w G  B I90
duress:per minas:. 25 0 «2s ayd ee & ae oad oe he we 191
Of S00dSis 2 Ge ea ak So ke St Dw @ ek ee ee 192
rule hinted sa We GSE BEG as at nay Ge OES aa Ris carl Ahab. iar hee Ges laee aayvee 194
recovery of money paid under compulsion . .........44. 195
what constitutes unlawful detention of property. .......... 196
E.
ELECTION, to keepcontract alive 2... ...... 08+ eee eee 476
ENDORSEMENT, of negotiable paper... ....-.0.0.000- 326, 327
what constitutes endorsement ........50+0 2+ eevee 330, 332
irregularendorsement ...-. 2... ee eee eee eee 333, 335
conditionalendorsement .... 2... ee eet ee ee eee 335
of billiof lading i we ee BR ee a a a ees 377; 379
(See NEGOTIABLE INSTRUMENTS. )
EQUITY, infant liable in equity for money borrowed if laid out in neces-
GATIOS sho 05 Ss lye ete ea bo ae erg ne es GS ae OL RS Bae Me ee 29
contracts between husband and wife enforciblein ........ 60 sgq.
in equity a corporation may ratify contract made in its behaif before it
came intoexistence.....- 2... eee ee ee ee ee 72
in equity, failure of consideration is a defence to a suit on a sealed con-
tract! seo ee ae a we ee ee aes Be eS 7
will reform mistake of partie in expressing agreement ....... ae
(See MISTAKE. )
will set aside a contract on ground of undueinfluence. ....... 213

(See UNDUE INFLUENCE.)
equitable rule in sustaining contract to convey land when partly per-

formed, though informal under Statute of Frauds... ...... 278
doctrine of, in regard to limits of contractual obligation... .... 294
permits assignment Ofrights oa. a ee Aa a pe 298
notice, as affecting title by’ assignment .... . ee ee ee ee 300, 301
assignee takes subject to equities. ©... 1... ee eee ee 302
remedy in, for enforcing covenants by owner ofland ........ 403,
confined to cases of restrictive covenants .......6.....06-4 407
distinction between remedy in equity andatlaw .......... 408

jurisdiction of in cases of mistake in, apy aes Bt fer en iS ay il igen aah Oe 425
ESTOPPEL, by deed, general principlesof ........ ee eee 95
by negligence, in ‘mistaking nature of transaction. . ........ I50
by conduct, in rescinding contract on ground of fini ake $e ce 6 187
when a judgment Operates DY! 2s apg se oe ajo se a we Ger lets 549

EVIDENCE, parol evidence not * sdimiisei ble to vary written contract . Ior, 119
extrinsic evidence inadmissible to vary or add to written contract 415, 416

or to prove intention of parties... 1. ........ 416
but admissible to prove existence of document ........... 416
to connect parts of contract .. 1... 2... ..04. 417
to prove fact of agreement... ......-..-..4 417
to prove facts rendering agreement non-enforcible . . 417
to show supplementary or collateral terms se ee AIQ

to explain terms or identify parties. .......2.. 421
INDEX. 587

EVIDENCE—Continued. ccm

to introduce usages Sab OWE GE: GR ay es a we
in equity, to prove mistake . .
(See INTERPRETATION.)

424
425

F.
FORM, of agreement for discharge of contract . . . : + 442 sqq.
FORMAL CONTRACTS, their importance in Roman and early English
AWE AS a ee sa Yo Sy ae de ob. tS es ioe atonics saad ated a I
forms of contract recognized atcommon law ............, a
requirements of form now the exception. .....,..., - 91
contracts of record ......... PRS wae ee ee ae Be aa 92)
contract under seal, requisitesof. ... . BN Raia eos se ge me QB
characteristics of contract underseal. ....... ar 95 599.
cases where forms specially required ...........8. - 98
definition of simple or parolcontract ..-. 1... .....00, 100
difference in proof of written and verbal contracts ... IOI
(See DEED; SEAL; CONTRACT UNDER SEAL; STATUTE oF Fravps.)
FRAUD, deGnitom ole ky a hema o kee kee A Ce ‘ 175
in order to constitute, there must be false representation ...... 176
rule as to silence and non-disclosure ..... 1... » 177, 178
the representation must be of fact, not of opinion or intention. . .. 179
rule as to misrepresentation of lepcs Be eke Ge acer 180
the representation must be knowingly false, or disregard the truth. . 180
(See MISREPRESENTATION.)
the representation must be made with intention that it be acted upon. 181
it must be made by the party tothe contract... ...... . . 182
it must actually deceive ........--. 6 ee aR ee we ee F82
@ffectof ca a eae ee ae ee ewe pie eo oh we we IBF
(See RESCISSION. )
renders contract illegal, preventing suit by party Spoetes fraud. . 233
FRAUD, STATUTE OF, fourth section of . 2... +... + + +. IOK, 116
as to special promise by executors ...... slag at Naess eka we OZ
asto guarantees... . 2... 1 1 ee eee 22 DS Be eR we 103
contracts of indemnity are within the statute... .......+-.. 106
as to agreements upon consideration of marriage... ....... 107
astointerestsinland ...........-4.-. ai Galea en a Se ae 107
as to agreements not to be performed within a year Bi On a es 108
seventeenth section of. . 2... 1. 1 ee eee oe ae ee a 10g
as to note or memorandum . . ew SS ew STOO
executory contracts of sale are within BR a Be a De es ee ee IIo
what are contracts for sale of goods ...--..- ++. ++. 109 S99.
theories of the decisions on this subject ...-.......-. Ilo sgq.
what constitutes acceptance and receipt of goods sufficient to
Satisfy” soa 6 eae oe oe 8 eo oe Wee ee MS ol we FIZ IGG:
what constitutes part payment . os eRe ks 4 Oe Se ee a 115
essentials of memorandum of bargain. ©... 1 6 ee ee ee + T1659.
memorandum must set forth consideration ...-..-+-+...+..+. IQ
this rule as modified by the decisions. ...... és 120
effect of memorandum under fourth section signed by one € party only . 120
whomaysign..-...... ee ee ee MRE
informal agreements within fourth section not PyOId, aw ee vow eee Men
conflict of authorities as to seventeenth section ........-. 122, 275
money paid under an informal agreement cannot be recovered back 275
statutes cannot be set up collaterally ©... +--+ +. ++ 276
performance of informal agreement, prevents the other party treating
it asanullity. ©... 0 ee ee 277
part performance in conveying land, precludes a plea of the statute 277
the doctrine in equity stated. © 6. ee ee ee ee es . 278
588 INDEX.

G.
PAGE,
GAMING, agreements null and void ......... bi eo be i we 229
See PUBLIC PoLicy; UNLAWFUL AGREEMENTS.
GOODS. (See SALE oF Goons. )
GUARANTY, with in Statute of Frauds ........... oes ¥i pe, AOS
H.
HUSBAND AND WIFE. (See MARRIED WoMEN.)
I.
IDIOT, definitionof. .........6. 6 sh a Ge ea, ISS Be ad Me ta 39
deed of, voidable. . 1... ....202 2.2020. ee eh eee % 40
may be ratified, . «3 ee Me a ee dee a ew ee Bee tens AT

ILLEGALITY. (See UNLAWFUL AGREEMENTS. )
IMPLIED ‘PROMISE, recovery upon, in discharge by breach. ... . . 486

of quality, in executory sale of goods .......-+..-..08. 519
IMPOSSIBILITY OF PERFORMANCE, in order to discharge, must arise

after formation of contractact. ... 0... e 2 ee ee ee 559

effect of, in general to discharge... ......-4-5+.0.22-.4 559

if promise made unconditionally, the possibility is at risk of promisor 559
is todo a thing patently impossible in fact or law it is void 561
(See IMPOSSIBLE AGREEMENTS.) |

where there is doubt as to possibility rule isotherwise........ 561
difficulty of performance will not discharge... .......-..- 563,
where performance becomes impossible in law, the promisor is dis-
charged... 7... ww. Bi ig 5 oad files wel Sat a ee, Bee 565
destruction of thing necessary to performance, discharges. . . .. . 569

(See UNLAWFUL AGREEMENTS.)
death or incapacitating sickness discharges contract for personal ser-

VICES 0 ib ue a SO. ee Ga Sa eee @ Re ee Ge, Be es 572
created by act of one party, a form of breach. .... BPA! Ga ee he ac 481
during performance... 2... eee te tt eee 8
IMPOSSIBLE AGREEMENTS, no consideration where object patently
ATH POSSUDIE: ye ie fas se ae 1s Seg Re He ae ae Se oe Sa a ig te 135
Classification, Ofj. ace Re ela ae sa ee le a Be we 270
impossibility known to both parties renders agreement void. .... 270
‘ unknown to both, void on ground of mistake. .... 270
where performance may or may not be possible, it is a question of
HnteNtOts <6 Sw eR Ra we eS Rl RGR Re a Bm eee s 271
impossibility known to promisor only, agreement is binding. . ... 271
(See IMPOSSIBILITY OF PERFORMANCE.)

INDEPENDENT PROMISES, whatare.......... ee ee why 488
rules of Sergeant Williams as to... . 2... 6 ee ee ees -.. 489
absolute promises... 1. 1 0 1 wee ee ee te ee « + + 490, 515
promises divisible in respect of performance. ........... 493
English and American decisions on this subject ........ 497 S¢q.
tendency of modern decisions to construe covenants, if possible, as

dependent ....... Nes CHSUNO EE hy doo Meas Ser teeth! weiadse Satna Serko atta ode 491
certain dependent promises may be treated as independent... .. 495
subsidiary promises... 2... . 2.06 000 tw ee ee - » 508

INFANTS, generally incapable of binding themselves by contract .. .. 17
contracts of, as classified in the early English and American case . . 18
the earlier rule as laid down by Addison. .......... 19 SY
general statement of law as laid down in the later decisions. . . 18, 21
criticism of the earlier rule... . . DO, 1 od, catenin teat cents 19
contracts of, which were once held void but are now voidable. . 20, 21

present attitude of courts as to contracts of, against interest... .. 21
INDEX. 589

INFANTS—Continued. ea
contracts of,how made binding. ..........080--+..,.. 22
where disaffirmance at majority is necessary. .........26. 21
at what time contract of, may be ratified. © ........28. 22
general rule as to affirmance of executory contracts of. ....... 22
at what time contracts of, may be avoided. ........+.4. 23
confirmation of deeds of realestateby...........048.4 24
who may avoid contractsof ... 2... ee ee ee ee Oh
consequence of avoidance by... 2. 1... ee tee 25 Sq.
where contract is executed and the infant has parted with the consider-

ation he may stillrescind. . 2... 00 6 ee wee ee ee ee 8G
contracts absolutely binding upon. ...... se ee ee ee 26
liable when contract for hisbenefit. ............00888 26
for necessaries. .......0.86 a? Ye ep Bae ee oe ee A BT
what are necessaries... .. Be ae Ryan oe aise ion us eit os Gas sar fee 27 SQQ.
liable for necessaries furnished his wife and children. ...... 30
only on implied, not on expressed contract for necessaries. . 27, 31

in equity for money borrowed if laid out in necessaries. . . . 29

what are necessaries is a mixed question of law and fact 4 + 30
liable on contract to do what the law would compel him todo. ... 31
for ante-nuptial debtsof his wife... ..........4. 32

not liable for wrong when cause of action is substantially on contract 32
legal effect of representing himself of fullage.. ..:..... 34
infant’s power of attorney generally held void... 1... ++ +++ 35
theories in English and American authorities .. ...... . 35599.
warrant of attorney of, under seal, absolutely void. ........ 37

INSANITY. (See LUNATIC.)

INSURANCE, marine insurance, how affected by misrepresentation’. . . 167
fire insurance, how affected ............. os el as eee OT
how affected by non-disclosure. . 2... 1 1 ee eee . 2 + 168
life insurance, how affected ..-...... bw eRe eae ee TO

, (See MISREPRESENTATION. )
contracts of, permitted on grounds of public policy ......... 229
statutes in regard to marine and life insurance ........ + 4 4 229
(See PuBLic PoLicy; UNLAWFUL AGREEMENTS.)
agreements to refer to arbitration, not binding ......... +. 247
marine insurance invalid unless policy in due from ........ . 280
INTERPRETATION, statutes to be construed according to intent of enact-

ing parliament 2. 1 6 1 ee ee ee ee ee 222
general rules of construction ...... 4 Sa) a 8) Apis toe ey 222
question of intention, whether agreement is conditional on its possi- a

PiGY. oy oe co es LS ae ee, a ee 2
accie ascertaining common intent of parties .....++-.. 413
function of court and jury; ..---+--+ +: Dt ee ee ee te ATA
admissibility of extrinsic evidence in cases of written contracts . . 415-425
rules of contruction ....--- 1+ ese eee oo Ween a, 4 425
valueof precedents ...... woe Ge ast Ge. Veh) SOS aS dG sg wee G42
time as essence of acontract . 6 6. ee ee ee ee es « @ & « AQF
distinction between penalty and liquidated damages... .. +--+. 427

(See EVIDENCE.)
J.

JUDGMENT, as discharging right of action... -- ++ eee ees 546
its operation by estoppel, - . - 6 ep ee ee ee ee es S49
when judgment not a bar to another action - . + + +e eee ees 555

: L
LAND. (See SALE OF LAND.) se

LEASE, statute of fraudsasto, ... +++ a a Ie ee le ie a
590 INDEX.

PAGE.

LEGALITY OF OBJECT. (See UNLAWFUL AGREEMENTS.)

LIMITATION, STATUTES, operationof -........0.6 a ig Se ef 273
no lien is lost as resultof the statute. ........ oe ee Kh we we 272

statute good as replication to plea of set-off. ....... es = @ 273
creditor’s remedy may be revived by action of the debtor... .. . 273-
acknowledgment of the debt sufficient in Pennsylvania. ...... 274
statute is strictly alawof thefornm ...........++e+.. 274
when remedy specially provided by statute, the term of limitation will

be strictly enforced... 2... 0... COU tt et et 285
relation to rescission of contracts ........ 0 eee wees 186
astoextinction of remedy by ............02.2., 8684 558

LOSS OF WRITTEN INSTRUMENT, wherein it affects rights. . . 578, 579

LUNATIC, who are persons om compos mentis. .. 2... 0 eee 39
defendant in an action on contract may set up lunacy asa defence . . 39
what degree of mental incapacity is necessary. ......... : 39
deed of, in general voidable, not void .......-...0+6 - 40
different doctrines on the subject... 2... 0 1 2 ee ee ee 40 sqq.
letter of attorney of, under seal, absolutely void .........-. 41
simple contracts of, voidable not void ........5050088- 42
different doctrines onthe subject... 2... eee ee ees 42 Sqq.
where the contract is executed and lunatic is unable to return the con-

sideration, the contract is binding upon him ..... bo a we > 43

different doctrines held .. 2... 2 we et te te ee es 44
liable for necessaries 2... 1... et te es 45
marriage of, void, but may be validated after restoration of sanity . . 45
liable for necessaries supplied to his wife... ......-+0... 6&7

M.

MAINTENANCE, definition of .... . cane meer Oy artes Satay Ay oP fourae 248

agreements of, illegal . 2... 1. 0 1 eee ee ee oe ee es 248
(See Pusiic PoLicy.)

MARRIAGE, marriage settlement of infant, voidable ........-. 21
of lunatic, void line h Who ter sank Bic cle ae Wed ty te Shes Silas el wees aloe 46
within prescribed degrees of affinity, illegal ...... oe ee ow © 240
agreements in restraint of illegal 2... 1... ee ee ee ee 251

(See PUBLIC PoLicy; UNLAWFUL AGREEMENTS.)

MARRIED WOMEN, cannot contract undercommon law ....... 47

theory of common law on this subject...) 00 1 1. ee ee
exception to incapacity: English and American rules as to a married

woman’s power over her equitable estate... . a) gota, anaes 48
exception where she has supplied the consideration ......... 49
where husband is civillydead ........0..64.. 50

by custom of London as to feme sole traders. . 1... .. 50

statutory exceptionsto incapacity of... . 1. + eee eee ee 51 Sgq.
liable under Penna, Act 1848 for necessaries for support of her family . 52
; for repairs to her separate property. ............ 52 Sqq.
additional powers conferred by Penna. Act 1887. ........, 53 S9q-
under certain circumstances held competent to conduct business . . . 54
liability for necessaries, how altered by Penna. Act 1887... ... 55
for management of her separate estate .......-.. 55 S9q-
capacity to dispose of her chosesin action ........5.20.. 56
power to make notes, bonds, ete. ©. 0 6 ww ee tt te ee 56

may, under Penna. Act 1887, appoint an attorney or agent. .... .
whether powers of contracting given in this Act can be exercised only
where wife has separate property... .
Penna. Act 1893 and decisions interpreting it
wife alone can set up disability of coverture. ...... Sb aA a 59
how far purchase-money obligations of, are binding ..... eee ese 59
INDEX. 591

PAGE.
MARRIED WOMEN—Continued.
contracts between husband and wife void at law unless made before
marriage to be performed after marriage has ended

ante-nuptial contracts wberrima fides... 6. 1 6 ee 62
post-nuptial contracts... 2... ee eee tae 60, 62
husband liable for wife’s contracts where she is hisagent ...... 63
is liable, independent of agency, on his wife’s contract for
NECESSATICS: | og) Boing oe dal FOS ESS Ue ES ee ee eS 64
theories of the decisions on this subject ©... ...-.....0. 64 sgq-
MASTER AND SERVANT, performance of service is condition precedent
toright of compensation ..-. 2.) 2 ewe eevee 518
MERGER, discharge of contract by .. 2.2... 2... et eee ee 575

of lesser security ina greater. 2 2. 2... ee
securities must be different in legal effect, and deal with same subject

matter between the same parties So ah pL he ae TARP Ge oe oe ae 576

of contracts, depends on intention of parties .........4-- 95
MISREPRESENTATION, definition andeffectof ......-..-.46.. 157
’ distinguished from fraud . 6 21 1 ee ee ee ee ee ee le 158
effect of, in equity. ©. 6 6 0 ee ee ee te ee 165

in contracts wberrimae fidet 2... eee eee ee es 166

in insurance Be ae he oc eg a ee ser hse a Sane ee EA SM 167, 174
rule in life insurance distinguished. ........... too a a E69
in contract of suretyship. 2 6 6. 6 ee et ee ee te es 170
forsale ofland........+4-6-+--. a ena! fos a fon Gah 171

of family settlements. ©... 66 ee eee eee . 172

of partnership ee ee tea ee O72

by promoters in dealing with corporation. ......-+ ++ ..-. 173

(See INSURANCE; SURETY; PARTNERSHIP; SALE OF LAND; RESCISSION.)
MISTAKE, nature of . 2. 1 ee ee ee ee ee

effectof .....--. De ee ee es , « 143, 157
in general, does not avoid liability... +--+. . eee ees 143
exceptions to rule ec 143, 144
does not alter existing rights ......-. ot ee Aus en - Tad!
effect of, in construction of contract, by parties .....+.. oo . 145
cases in which itis of importance ©... 6 1. / ee ee ee es 145
mistake of lawand fact . 60-0 we eee ee es 146
province of court of equity in reforming mistake'. .... see « 146
money paid under mistake of fact can be recovered ..+++--- 146
mistake as excluding true consent ©  . ++ e+e sees 5 a 147
mistake as to nature of the transaction . - - . 1 +. se eee i as eee TAF
as to legal character, whether loan or gift... 2+ ++ +++ ees 150
as to person of other party © 2. 0 ett ee et te ees I51
as to subject matter of contract ©. se eee et ee es we nS! Aap oe 2
where subject matter has ceased toexist ....-+.- op i SG BUA 153
mistake as to identity of subject matter 2. 1. 6 ee ee te es 154
mistake in quality of subject matter © 2. 1 ee te ee es 155
MUTUAL PROMISES, performance of one no discharge ........ 446
(See PROMISES.)
N.
NEGOTIABLE INSTRUMENTS, of infants, voidable .........- 20
of corporations .... ++ ee eee te BG ale Aerie AY go
given as security for payment, under an illegal agreement, must be
proved to be held innocently 2... 6-65 tee ee te ee 265
(See ae eee oe

distinguished from assignable contracts .. 1. ee et tts
coperties derived from Law Merchant .. «+++ eet rrcs 309
include bills of exchange and promissory notes .. +++ ++ -++:- 310

bills and notes defined .- +--+ eee eee Ag es er eae. 310
592 INDEX.

PAGE.

NEGOTIABLE INSTRUMENTS—Continued.
must contain order to pay, not merely arequest ...... ie ee BIO
promise or order must be unconditional ........-+-+.+0- 31L
must be payable in money .. 1... 1 ee eee ete ee ee 312
must not contain independent agreement ......+.-.-++.-. 312
effect of commission clause . 2... ww ee ee ht ee ee ee et 312
promise to pay out of particularfund ......+....20.2.6- 314
amount must bedefinite .. 1.1... ee ee ee ee ee eee 314
certainty as to parties essential ..... ee ee ee ee ee as 315
delivery necessary . 2... 6-11 ee ee ete te th we te es 316
words necessary to make instrument negotiable ......... 325
transfer may be by endorsement or delivery ....... oe eee 326
endorsement necessary when payable to ‘“‘order” ......... 327
effect of endorsement after delivery ..........-0028-2. 327
when transfer by delivery sufficient ..........2626.20+02- 329
necessary to entitle holder to sue in hisown name ......... 329
what constitutes endorsement ........0 28 eee eee 330, 332
irregular endorsement ....... +e ee ee eee ewes 333, 334
endorsement of overdue paper .....++- +e hie wae el 335
conditional endorsement .....- . 2 ee wee ee en 335
transfer by delivery of instrument payable to ‘‘bearer”? ....... 336
liability of transferrer by mere delivery ........-+-+.. 337, 339
doctrine of warranty of title 2... ... 2 eee eee eee 340
what constitutes dbova fide holder forvalue .....-....-- 341, 343
defences available against dona fide purchaser ......... 343, 344
what is meant by value... 2 2. ee we ee eee ee ee 345
note given as collateral for existing debt... ........... 347
rights of holder of such security .. 2-11 we ee ee eee 350, 351
notice of illegality or fraud . 2... 2... ee et te ee ee 352, 353
bad faith necessary to affect title ........250506. we 354
doctrine of constructive notice... 2... 1. ee ee ee + 354, 357
presentment for payment, requisitesof........ + + + + 359, 363
When SZCused save —S.co lie ay gy ade deeds (Ga Gs ae eee 365
PTOCESt. x, eee 26) i ee a el ae ae ad ag sel Te gatas, a J -.. 36
notice of dishonor, requisites of, .. .......2+0 20 + - 368, 373
waiverof notice ios. el sy Be nw A eR we ee we + 374
dock warrants, warehouse receipts, etc. ......... ew «= 387
statutes relating thereto... 0 © © 2. 1) wee ee en 388, 389

(See BILL OF EXCHANGE; BILL OF LADING.)
discharge of, by waiver... 1 1 1 ee ee ee ee ee ee ew 431
eftect of giving, in payment .. 2... .. 2 eee eee +» . 461 sgg.

NOTICE, doctrine of, in cases of assignment inequity ....... 299, 301
as affecting enforcement of covenants made by landowner. .... . 403,
in connection with law of negotiable instruments. ....... 352, 357

NOVATION, discharge of contract by .... . 2... eee eens 433,

Oo.

OBLIGATION, limits of, confined to contracting parties ........ 288
agency noexception torule.....-.-...04- soa See 288
liability of third party for inducing breach of contract ....... 289
rights under a contract limited to partiesthereto .......... 290.
one for whose benefit contract is made may sue in United States . . . 291
exceptions to generalrule . 2. 6 60. De ee ee ee ee ee 292
decisions in Pennsylvania ..........0608 BE Bae BR 292
tule in equitysame asatlaw. .....---.. 20s are tee Sa GE ecm 294

(See PARTIES; PERFORMANCE. )
OFFER (See PROPOSAL).
OPERATION OF LAW, discharge of contract by ....-..... 575 S9q.
(See MERGER; ALTERATION OF WRITTEN INSTRUMENT; BANKRUPTCY.)
INDEX. 503
PAGE,
P. :
PARTIES, to action on contract made by agent... ee ee ee ee 76599.
obligation of contract limited to contracting patties cee ee et + 288
liability of third party for inducing breach © 2... ....... 289
rights of third parties... 2... ....... +e 2 © © © 290, 294, 295.
change of, as mode of discharge ..... oe ee ew ee + 433, 436
PARTNERSHIP, infant’s contract of, voidable ........480++.. = 20
infant’s liability for losses of Ne Cake xte ee dot. Ge ee em rae ee ee
misrepresentation in contracts of. .......4 pete et ee 173
discharge of retiring partner from firm liability. ....... + + 436
change of partners, its effect on contracts made with partnership » » 436
_ PAYMENT, a form of discharge... . 0... 1... ee + 451, 460
negotiable TNStHUMENtS AS! a6 ce) Bee Re A eee 461
PERFORMANCE, acceptance of, by third party cannot be eeerence . » 289
except in case of a novation... - +. ak ee ae ans oe © 289
liability for interference with, by third party ........,... 289
by third party where personal skill not involved ,.......4-. 295
discharge of contract by ........--- he ba eek ae a5 + 445 Sqq.
must be according to terms of contract. ....... tee ee ee 445
what is meant by substantial performance ......... + + 447, 449
place of, where none stipulated in contract. ..... oe ee 449 S99.
time of, where none fixed by contract ©... ee eee ee ee 452
tender or delivery must be in the exact quantity contracted for .. . 456
decisions qualifying thermle ......--+..., oe 8 ee © 457 SQG.
promises divisible asto . 2... 00 1+ wee ee ee vee ee ee 493
PHYSICIAN, could not sue for services at common law. .....:--. 17
PRESENTMENT, of bill for acceptance .....+-.. BW wes ee 3570358
for payment, requisites of . 2. 2. 1. ee ee et ee + 359; 363
whed GXCUSEG. «4.6 ei a a a ay ee we cn B05
(See NEGOTIABLE INSTRUMENTS.)

PRINCIPAL AND AGENT. (See AGENCY.)
PROMISE, definition of .. 2... 7 1 we ee et ee eas 5
mere declaration of intention not a promise. ...... lee a 6
too vague to be enforced. ....-..... Sa PS ee 6
by deed, binding without acceptance ........ 7
founded’ on moral duty, not binding without valuable consideration . 8
to pay for past services rendered on request... ....--+. on 8
inferred in factorimplied bylaw ..... 2... 2.2.2 ee eeee Io
by advertisement or general announcement, nature and limits of . 12
not to enforce a right is a good consideration. ....... . 128
how far promise to perform existing duty can be consideration . . 136, 137

(See IMPLIED PROMISES; INDEPENDENT PROMISES; MUTUAL PROMISES;

WARRANTY.)

PROMISSORY NOTES, definition of ........4. eho a ay 310

requisites of 2... ee ee te te ee ee « 310, 315
(See NEGOTIABLE INSTRUMENTS.)

PROPOSAL, as element of contract ........-. cee ee I, 8 SG.
express orimplied ©. 2 - ee ee eee ee Boss ca ES errr bay SEO
must be communicated ........2+24. aa et ee Ee. Gi edd ET
addressed generally to all to whom it comes... 0... oe 6 6 TL SQQ.
conditions of, as to time, mode of acceptance, etc... 1... 1. 12
distinguished from invitation of ...... 4.4 Sah ie ides as 2
when it may be revoked iki ra> wok ah vaya dn Gon ie ees Ae catia de Bs Ae Bea
revocation must be communicated ........ S26, ei ee ea 13
is revoked by death of proposer before acceptance... 1... +s 13

PUBLIC POLICY, trading with enemies... ... a aby aa en les Gu 17
agreements void which pervert... ... +++ ese oS ga. ea 226
contracts of insurance... 1. 1 6 et te te ee ia ae 5229)

(See INSURANCE; UNLAWFUL AGREEMENTS.)
38
‘594 INDEX.

: PAGE
PUBLIC POLICY—Continued.
wagering contracts . 2 61 1 et te te ee ee ee ts 231
theories respecting agreements contrary to... ee wee es .+ 241°
agreements which prejudice the state in its foreign relations, are void. 242
revenue laws an exception torule ... 1... + eee oe ee 244
agreements adversely affecting the public service are illegal oe veo 24H
compounding offences. . 2... ee ee ee ee es 246
agreements to refer to arbitration ........--. 2.2. eee 247
maintenance and champerty. .. 2. - ee. eee eee es 248
affecting | the custody of children and insuring seamen’s wages illegal . 249
agreements in restraint of marriage .. 1... 1 eee ee ee 251
to influence testator ......... fp Ses 2. 251
in restraint oftrade ......... ek we ee Se Sg 252
(See RESTRAINT OF TRADE.)
Q.
QUANTUM MERUIT, when it may be suedon ........ + - - 468, 484
recovery upon, in ‘discharge by breach . Beh 8 laa Be ee oe 484, 487
QUASI-CONTRACTS, general principlesof .. 1... 1. ee: 10
husband’s liability for necessaries furnished his wife is quasi-contractual 67
R.
RAILROAD COMPANY, liability of, as to correctness of time-table .. iI
RECORD; contractSof 2.40 26 6 FH BER Se He Re SES 92
RELEASE, general rules relating te ie te ea ae SH % oe se 538
discharge of tight of action. by: a «eke eee ae ee ew 538 sqq.
POPE NOL ise ea Gea vas Ge See ar nas St be Rh By FD aes SB eG GS - 539
REMEDIES, for breach of contract .. 0 2... ee ee 483, 526
for breach of warranty in sale of goods . bb Sodan Sor thy oN cas dea aha haah 1S Gee 522
RESCISSION, option to affirm orrescind ..........-. eee. 183
election, once made, isfinal ©... 1... 24 e eee een 184
right of, is lost, if inflicting great injury on party making misrepresen-
Gath ed ied oe oe ae ee a ee ee 185
tight of, lost, if third party has acquired rights ......-.+... 186
rescission must be within reasonable time: . 1... 1 1. ew ee 186
reasonable time, in Pennsylvania, not a question of statute of limita-
LOTS choice 5 eo Sav 8s cay hs ios Bi gal woe (SRA GE en Se eae, oe ae Tor 187
(Sce MISREPRESENTATION; FRAUD; DURESS; UNDUE INFLUENCE. e
RESTRAINT OF TRADE, in general, such contracts are unlawful . . 252

(See PUBLIC PoLIcy.) |
agreenienits by manufacturers to regulate output or wages .. . . - . 252

agreements in partial restraint of trade lawful ........ 5c hs = 3
such agreements must be reasonable as to time and space ..... .

generally, though indefinite in point of time, such contracts are lawful Be
rule otherwise 1 in respect of space 2... 1 et ee ee 255

(See'PuBLic POLICY; UNLAWFUL AGREEMENTS.)
REVENUE LAWS, agreements to defeat revenue laws of a country are

Valid: © af oa eG oe ee Re Ba See ee Cee ah ag wee 244
marine itistirance invalid, unless policy i in accotdance with ...: . 280
REVOCATION, of general Bi Go a epee ane ea pws ww, TZ
‘communication of. 2... ee fa ee Ba a ew TZ

of proposal, whedih time... ...... re ee eo

: (S¢e PROPOSAL.)
Ss.

SALE OF GOODS, Statute of Fraudsasto ..... 4... ++ + 109, 112
where delivery isto bein instalments ...- 1... ee eee ee, 497
English and American decisions on this subject. . 2... .., 497 sqq.

bysample ..... go a OR rw ec aes Beles cay ae We Ya eos 519
INDEX. . 595

PAGE.

SALE OF LAND, by or to infant, voidable ...........086 20

Statute of Fraudsasto  ........ Go Be a ee WH ee, OF

effect of misrepresentation in contractfor ...........08. 170

SATISFACTION, as discharging right of action ............ 544.
SEAL, grant under, exception to rule that both parties to an agreement

must be bound .........-5.+0. 0008 © Coe ea ae 7,15

what constitutes seal 2. ok tt ee +. 93

necessity of, in contracts of corporations... ..........0.% 8

(See ForMaL Contracts; DEED; CONTRACT UNDER SEAL.)
SHARES OF STOCK, transfer of, by blank powers of attorney under seal. 73
sales of, held by American decisions to be within seventeenth section

 

Statute of Frauds... 6. hea hw ae eS IIr
effect of mistake in regard to... 1 1. ee ee ee ee 152
dealings in futuresim 2 gi ky We we ER es 231

SPECIFIC PERFORMANCE, of contract for sale of land, notwithstand-

ing misrepresentation ... 1-0 1 ee ee ee te ee 17I
when refused on account of undue influence 212
where time is of essence of contract ..... 0.0.0.2 0 22 eae 525
general rules sais a wh we ee a o%@ a + 536
of contract for saleof land .........2.00 20 oe ee. 536
of contract for personal servicess. . .. 1.2.2... Scat AOS A oe 537

STATUTES, rules of construction of, in relation to unlawful agreements. 222
(See INTERPRETATION; UNLAWFUL AGREEMENTS; PUBLIC POLICY;
FRAUDS, STATUTE OF; LIMITATION, STATUTES OF; REVENUE

Laws. ;
SUBSIDIARY PROMISES, whatare ......... eG ewe Re eho 508
(See PROMISES.)

SUNDAY, rule as to contracts falling dueon ..... SR ae te de ae 455
SURETY, effect of misrepresentation in contractsof .......... 170
when discharged by subsequent dealings of creditor and debtor . . . 233
entitled to stand on exact terms of obligation. .. 2... +... ee 234
release of principal debtor discharges. .......... oe eee 236
T.
TENDER, of goods. .... oe Sap ie acoae: Sate By ta to eS rn nN ve 456 sqg.
a form of performance ....+....-. oie ae SG ee ee 465
of goods 2. eee et et ee tt ee eh ees oe 465
Of MONEY. oj ek es Ha eee ee eee ee we we bs wi ABS
TIME, when of essence of the contract. . 2... ....--+22.0008 455
mile ofequity asto ........+85 Danii fa tap WCU Gaeveh cae aoa 456
aN (See SUNDAY.)
lapse of, a form of discharge... .. 2... 20 wag che eee 556
where of essence of contract... 6. ee ee ee ee oe + 525
TRANSFER, of negotiable paper, how effected... ...-...-- 326-336
liability of transfer by delivery. ........... se ee . 337) 339
warranty of title ©. wee ee ee 340
what constitutes boma fide holder for value. .......... 341-345
note as collateral security for existing debt. ....-+..... 347, 351
notice of illegality orfraud ....... ener te) gs ay) GS! we ai ok 352, 353
doctrine of constructive notice. ......-. eee ew ws 354, 357
transfer of billof lading... .. 0 - ew eee ee ee es 375) 387
(See NEGOTIABLE INSTRUMENTS; ENDORSEMENT.)
Uz
UNDUE INFLUENCE, definition of. ....... ah oie ac Fee Oe . 2. 196
what constitutes . 2... ete ee ee te ee eer eee ee 197
may be proved or presumed... - - 1 - eee ees Sine BE eer se LOT

once established, is presumed tocontinne ....... + s+ + 198, 210
596 INDEX.

PAGE,

UNDUE INFLUENCE—Continued.
rule astowills ......- po ah Nay Ai Hoe ibe Yon ey eb 198
scrutiny in case of gift more rigorous than in contract . a 200
in case of gift, the rule seeks to inquire how intention was produced . 201
where not presumed from relationship, it may be proved ...... 201

(See DuREss. )
what relationships raise presumption... . 6+ + eee eee. e+ 204
in the case of parent and child. ..... Boye ER RS ed ee: 2 QOH.
husband and wife ..... BER nen ee eRe Gp ee ims et Cacia 1205
doctor and patient... .......5+5.0.6.. . 206
lawyerand client ... 2. ee ee eee ee eee 207
confessor and penitent. ........-. ee: Bi 4 Sa 208)
guardian and ward. ..... ce ee ew ew ee es 208
trustee and cestuz que trust... 6 6 1 2 ee ee ee 209
inadequacy of consideration is evidence of .......-+.+.+4.. 210
when sufficient to prevent specific performance... ........ 212
rule in regard to expectant heirs... . . tote eee ee we 213
as to reversionary interests, and ‘catching bargains’ SOS tr Gg es as er Gs 216
burden of proof in regard to . . stapes wie ae - » 216
rescission of contract on ground of undue influence . | oe ble God 218
right of, not affected by mere lapse of time... .... fe wey! 2IO
may be ‘lost by genuine acquiescence. . . 1... 2.462644 220
(See RESCISSION. )

UNLAWFUL AGREEMENTS, classification of .......+.++.... 221
agreements illegal from statutory prohibition .........4... 222
rules of construction .. 2... +. ee ee ee ee 4 ew we 222

(See INTERPRETATION. )
whether recovery canbe had on . 2... 1... et et ee es 224
agreements void which tend to defeat statutes for protection of public 226
rule otherwise in strictly revenue statutes... ... 0 2 ..... 227
agreements made on Sunday, usurious and ean agreements ... 228
wagering contracts, lawful atcommon law ............. 229
otherwise in Pennsylvania See Be OID oe, a eh ste we gi 229
(See PuBLIc PoLicy; INSURANCE.)
dealingsinfutures ........-04. we a le be fH ee oe 1230
agreements contrary to positivelaw .....+-... eee ety ase 232
to commit crime or civil wrong. ...... 2 RS) EO e282
between creditor and debtor to prejudice of surety a Jats tat an Sau ek 239
(See SURETY. )
by agent, dealing in business of agency on own account. ..... . 238
(See AGENCY.)
agreements contrary to good morals ....... oe te ee ewe 240
contrary to public policy. . ... be Se Be ee ew 241
effect of illegality in an agreement... ...-...-.. ee 256
where promises are independent, the lawful ones enforcible . . . . . 256
where one of several considerations for a promise is illegal the contract
ASFVOIG: asl cf cee be de hehe ae OLA hee wee Deel Bb, ae ee Aa? Fae ee 258
where immediate object is illegal, the agreement is et ler in bigheo 259
unlawful intention of both parties, or of one known to other,
agreement IS‘VOId: oan ee ee RE diode te aren eae ee a 259
limitations of the rule. «2... 2. eee wee es 262
a contract founded or an obligation growing out of an illegal transac-
tion, is lawful 262

where the immediate: object i is ‘lawful, yet agreement designed to further
anillegal purpose... - 2.) eee eee.
rule respecting securities for panicnt of money due upon ‘an illegal

COMIYACE « ¢ ey ¢ 4 Ge we Fe we ew
payment or delivery under an pilawial eee cannot be recovered
ACK sees Bede a ae BE Re ee ea es

263
264
265
INDEX. 597

PAGE.

UNLAWFUL AGREEMENTS—Continued.
effect of illegality in agreements where parties are not i” pari delicto. 268
where there is a locus poenitentie . 268

USURIOUS AGREEMENTS, void on ground of illegality ....... 228
: (See UNLAWFUL AGREEMENTS. )
when ee no longer exists, a loan, void on ground of usury, will
be good consideration fora new promise ........-+..:. 283,

Vv.

VOLUNTARY SETTLEMENTS, question as to burden of proof on donee, 200
(See UNDUE INFLUENCE.)
in fraud of marital rights, illegal

emwsts Var op Sabet tesg ANE Cuetar oat Aes Been 2 ae 239
w.

WAGERS, definition of. 2. 6 6. ee ee ee tt ee 228
lawful at common law... 1... 1 1 eee ee te te ts 229
tule in Pennsylvania . 2... 1-1 ep te te ee ee ewe es 229

‘WAIVER, of notice of dishonor of billor note ............. 374

(See NEGOTIABLE INSTRUMENTS. )
discharge of contract-by . . 6 6-6 ef ee ete ee es 430 Sqq.
SWAB AS nos deo cee ae a coecity NIE tetra ah ee ay ene a We ea, Se! 430
of executed, as distinct from executory contract. ...-.. eee. 430
of rights under negotiable instrument = .....- ea ay Be ts 431
POLE Of kos te i eS a wa hae race, eh Se ds Se ae a 433

WARRANTY, no warranty of quality in sale of goods. .....- I55, 156 2.
warranty defined =... 1.42 we eees ea we 161
no warranty implied in sale of goods... . +s... e+ eee eee 162
tulein Pennsylvania . 2... 2 eee tt et ee ee te et 163
eflectof .4:6% 6. £ 5 @*© bees & Ww Rae Ga wa Sw Re 163
asubsidiary promise 2... ee 0 ee te es 510
in contracts of sale 2... 1 ww et ee ee tt ee et 510
definition of ....-+-+..2.see eee ae Sei Gaelngcal Sap aay eters teh Se af i) Gay Se S528
of quality in sale of goods by sample... .. 2... + eee tees 519

‘WILL, agreements to influence testator, illegal... ... a 8 ee ee 251

(See PuBLIc PoLIicy.)
WRITING, contracts in, nota special class . 1... ee ee ee eee Too

cannot be varied by parol... .....--- ee ee ee IOI
2 ne el

KF 801 H74

 

' Author

 

 

 

Hollingsworth, Smauel E ba
Title
A Treatise on the law of”
ontracts
Date Borrower's Name