Slii Idndensed Cases on Contracts. i\ ^ ASHLEY (Snrnpll IGam irliool Blibrary Cornell University Library KF 801.A7A818 Contracts lextracts, citations, condense ll|l||||!||||||l||||l|llll||l|||| 3 1924 018 823 587 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018823587 CONTRACTS. Extracts, Citations, Condensed Cases and Statements, PREPARED FOR THE USE OF STUDENTS IN THE METROPOLIS LAW SCHOOL. By CLARENCE d/aSHLEY, PROFESSOR OF LAW, Ittfc iork : P. F. McBREEN, PRINTER, 6i Beekman Street. 1898. Copyrighted, 1892, By Clarence D. Ashley. CONTENTS. PAGE. Chapter I. — Formation of Contract 5 (A.) — Mutual Assent 5 (B.) — Contracts under Seal 24 (C.) — Contracts of Record 24 (D.)— Statute of Frauds. 25 fE.) — Consideration 30 I. — From whom the Consideration must move 31 2. — What Contracts require a Consideration 33 3. — Adequacy of Consideration 35 4. — Compromise and Forbearance 38 5. — Moral Consideration • 39 6. — Gratuitous Bailment 40 7. — Subscription 42 8. — Mutual Promises 42 g. — Consideration void in part 43 10. — Executed Consideration 44 (F.) — Implied Contracts 44 Chapter II. — Parties to Contract 47 (A.) — Infants 47 (B.) — Lunatics and Drunkards 50 (C.) — Married Women 51 Chapter III. — Illegal Contracts 54 Chapter IV. — Discharge of Contract 57 (A.) — By Agreement 57 (B.) — By Alteration 59 (C.) — Impossibility of Performance. . . . ; 60 (D.)— By Breach 6i (E.) — Accord and Satisfaction 76 Chapter V. — Damages for Breach of Contract 78 CONTRACTS. Chapter I. — Formation of Contracts. (^.)— MUTUAL ASSENT. " To the existence of a contract there must be mutual assent or, in another form, offer and counter offer." "There must be the meeting of two minds in one and the same intention." An offer can always be withdrawn until accepted. The acceptance of an offer must be identical in terms with the offer, and an acceptance whicli varies the terms of tlie offer is a rejection of such offer. " The acceptance of a contract must bfe by some overt act, i. e. by word or act." " The state of mind or intention of a person can be ascertained by another person only by means of outward expressions as words and acts." Leake on Contracts, p. 12. "An act which is in itself no indication of an acceptance does not become such by an unevinced mental determination." "Acting upon the faith of an offer without an agreement to accept, creates no binding contract.'' " The Law does not regard bare volitions and pure mental abstractions. When it speaks of the operations of, the mind, it means such as have been made manifest by overt acts ; when it speaks of the meeting of minds, it refers to such a meeting as has been made known by proper acts." "If, whatever a man's real intention may be, he so conducts himself tlrat a reasona"ble man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to assent to the other party's terms." " But there must be reasonable ground to suppose there is an intention to enter into a contract." " A promise is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee." White vs. Hoyt, 73 N. Y., £05. " An offer need not be made to an ascertained person, but no contract can arise until it has been accepted by an ascertained person." Anson on Contracts, p. 24. I. A and B are talking together. A offers to sell his watch to B for $75, and on going out tells B to think it over until he returns. In half an hour A returns and upon com- ing in says, " I won't sell my watch for $75, and withdraw my offer." B replies, " That won't do, you made me the offer and I accept it." II. Oxley and Cooke were discussing the proposed pur- chase of certain tobacco by the latter from the former. Oxley proposed to sell the tobacco at a certain price, and Cooke requested Oxley to give him until 4 p. m. of that day to agree or dissent to the offer. Oxley assented thereto and offered to sell and deliver the tobacco to Cooke at the said price, if Cooke would agree to purchase at such price, and give him notice thereof before 4 p. m. of that day. Cooke did agree to purchase the tobacco at the stated price and gave notice thereof to Oxley before 4 p. M. of that day. He also requested Oxley to deliver the tobacco and tendered the purchase price. Oxley did not deliver the tobacco and Cooke brought suit. Did he have a good cause of action ? III. A offered to repair B's fence for $25, ahd said " think it over and let me know." In two or three hours B met him and said, " I accept your offer, go ahead and repair the fence." Same offer. Men met at the end of six months and same acceptance, but A in this case replied, ".No, I won't do it.'' Is there a contract in either case ? IV. A wrote to B, a carpenter, as follows : " Upon an agreement to finish the fitting up of offices 57 Broadway, in two weeks from date, you can begin at once. No reply to this note was made by B and on the next day it was countermanded by A. In the meantime and prior to the countermanding of the offer by A, B had bought timber and begun to cut it up for the fittings, thus destroying it for other purposes. B claimed that a contract was made between tnem. V. A newspaper manager sends a number of his papers to a man in his to\yn, with a letter to the effect that unless he hears from him to the contrary, he will put his name down as a subscriber, terms $3 per year. Hearing nothing from the man he continues to send the paper regularly and at the end of the year sends a bill. Is he entitled to collect it ? VI. Suppose the man replies, I have received your letter and am willing to become a subscriber as you sug- gest and will pay you $2.50 per year. Paper sent as before. What, if any thing, is the editor entitled to collect ? VII. Suppose the man subscribes for one year and at the end of the year pays his bill. Nothing is said about discontinuing the paper and the editor continues to send it regularly as before. Is the editor entitled to collect at the end of the second year ? VIII. A said to B, I want you to work for me to-mor- row and I will pay you $4. B answered, I will work for you to-morrow for $5. A made no reply. B then said, I accept your offer and will work for $4. Nothing more was said or done, B left and later refused a $5 job for the next day on account of his conversation with A. The next day at the proper time, B went to A prepared to work. A declined to give him work or pay him any thing. B tried to get work elsewhere, but cowW not, and lost the day. B sues A for $4. -Is he entitled to recover ? IX. A says to B, I will mend your fence for $5. B thinks to himself, "I accept that offer and pronaise to pay the $5," but does not show his assent by word or act and walks away. A afterwards refuses to mend the fence, and B sues him. Take the same case and suppose that A at once mends the fence, B not knowing that he is doing it. B refuses to pay for the work. Should A recover for his work, and if so, how much ? X. A writes to B, " We have on hand a fine lot of good double ply goods, and offer you ten cases at $io per case, cash on six month's delivery, April 14th." B replies, " We have your letter and accept your offer, ten cases best double ply goods at $10 per case. Delivery April 13th, cash on six months." A answers, " We note that you require delivery on April 13th, and will deliver 10 cases good double ply goods as per our prior letter.'' A tenders goods on April 13th but B refuses to take them. XI. Action for $50 on the following facts. Certain goods were put up for sale at auction. The con- ditions were those usual at auction sales. There were several bidders of whom the defendant was the last. He bid $200. The auctioneer dwelt upon, the bidding, stating that he was informed the goods weighed 1,300 cwt. He de- clined to warrant this weight and thereupon the defendant declared that he wpuld not take them, and refused to pay for them. In accordance -yvith the conditions of sale, they were resold on the following day for $150, and this action is to recover the difference. The Court being of the opinion that the defendant was at liberty to withdraw his bidding at any time before the hammer was knocked down, non-suited the plaintiff. Counsel then moved to set aside the non-suit on the ground that the bidder was bound by the conditions of the sale, to abide by his bidding, and could not retract. By the act of bidding he acceded to those conditions, one of which was, that the highest bidder should be the buyer. The hammer is suspended, not for the benefit of the bidder, or to give him an opportunity of repenting, but for the benefit of the seller; in the meantime, the person who bid last is a conditional purchaser, if nobody bids more. Other- wise, it is in the power of any person to injure the vendor, because all the former biddings are discharged by the last. The Court thought the non-suit very proper. The auc- tioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller by knocking down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus pxnitentice. Every bidding is nothing more than an offer on one side, which is not binding on either sicie till it is assented to. But according to what is now contended for, one party would be bound by the offer and the other not, which can never be allowed. XII. Jones sued Adams, alleging , the following facts in his complaint, viz.: Adams had an office at 55 Broadway, where he had a safe. He took an office in the Mills Build- ing, and desiring to have the safe moved to his new office called in Jones and said : " I will pay you $10 to move that safe and put it in my office in the Mills Building." Jones made no reply, but went out for some men, and returning, began to move the safe. In the meantime Adams found, by inquiry at the Mills Building, that he could have his safe taken up on the elevator and placed in his office for f 5. Soon after this Jones arrived at the Mills Building with the safe, and Adams at once said to him, I withdraw my offer, put the safe down. Jones paid no attention to this, but carried the safe up stairs to Jones' office and left it in the room. Adams re- fused to pay the f 10. Adams' attorneys demurred to the complaint on the ground that it did not state facts constituting a cause of action, and upon the demurrer coming on for argument his counsel contended that the alleged facts showed that there was no contract, because Adams had withdrawn his offer before performance by Jones; that to hold otherwise was to bind Adams without consideration, and that Jones was bound to nothing. The Court overruled the demurrer, being of opinion that Adams' offer was accepted the moment Jones began to move the safe, and could not therefore be withdrawn, and that moving the safe was sufificient consideration. XIII. Bliss was under contract to send a consignment of goods to London on the afternoon of a certain day. Sending for Jones, the plaintiff in the preceding case, he told him that he would pay him $50 to carry the goods at once to the steamer sailing that afternoon, and that prompt- ness was important. Jones, saying nothing, loaded the goods on to his truck and started for the steamer. On passing his warehouse, a clerk rushed out and said a man was there wanting to employ him at once on a $200 job. Jones un- packed the goods of Bliss, put them in a safe place in his warehouse, and undertook the new job, sending a postal card to Bliss to the effect that the goods were held subject to Bliss's order, and requesting him to remove them. Bliss suffered a heavy loss in consequence of the detention, and sued Jones. The Court dismissed the complaint, on the ground that Jones had not made any contract to carry the goods. XIV. Action for conversion of a horse. Pleas, not guilty and not possessed. The plaintiff was a builder. The defendant was an auc- tioneer. In December, i860, John Felthouse, a nephew of the plaintiff, being about to sell his farming stock by auc- tion, a conversation took place between the uncle and nephew respecting the purchase by the former of a horse of the latter, and on January i, 1861, John Felthouse wrote to his uncle as follows: January ist, 1861. Dear Sir: I saw my father on Saturday. He told me that you considered that you had bought the horse for ^£'30. If so, you are laboring under a mistake, for 30 guineas was II the price I put upon him, and you never heard me say less. When you said you would have him I considered you were aware of the price, as I would not take less. John Felthouse. The plaintiff on the following day replied as follows : Dear nephew: Your price I admit, was 30 guineas. I offered ^^30, never offered more ; and you said the horse was mine. Hpwever, as there may be a mistake about him I will split the difference, j^^o 15s., I paying all expenses of trans- portation. You can send him between now and March 2Sth. If I hear no more about him I consider the horse mine at ;^3o 15s. Paul Felthouse. To this letter the nephew sent no reply; and on February 25th the sale took place, the horse in question being sold with the rest of the stock for ;^33, which sum was handed over to John Felthouse. On the following day the defend- ant (the auctioneer), being apprised of the mistake, wrote to the plaintiff as follows: February 26th, 1861. Dear sir: I am obliged to acknowledge myself forgetful in the mat- ter of one of Mr. John Felthouse's horses. Instructions were given me to reserve the horse, but, by mistake, I sold him. I will do all I can to get the horse again. William Bindley. On February 27th, John Felthouse wrote to the plaintiff as follows: February 27th, 1861. My dear uncle : My sale took place on Monday last. Prior to the sale I said to Mr. Brindley, that horse (meaning the one I sold you) is sold. Mr. B. said it would be better to put it in the sale, and he would buy it in without charge. To my surprise, he knocked it down to Mr. Glover. I then went to Mr. B. and said that horse was not to be sold. He said he had quitp forgotten, but would try to get the horse back again. I am very sorry it happened. John Felthouse. On the part of the defendant it was submitted that the letter of February 27th was not admissible in evidence. The learned judge, howexef, overruled the objection. It was then submitted that the property in the horse was not vested in the plaintiff at the time of the sale by the defendant. A verdict was found for the plaintiff, damages ^33, leave being reserved by the defendant to move to enter a non- suit, if the Court should be of the opinion that the objection was well founded. A rule nisi was obtained by the defendant and plaintiff showed cause. Rule absolute. XV. A, meeting B on the street, said, come to my house at six to-night and I will give you a champagne dinner. A forgot this conversation and went out without providing any dinner. B went to A's house at the appointed time, but there being no dinner provided he was obliged to go to a restaurant, it being too late to return to his own house. B sued A for the price of his restaurant dinner. XVI. A applied to a corporation for work during fair week, as a messenger. He was employed by the directors under the following resolution : Resolved, That any ser- vice to be rendered during fair week by A shall be taken into consideration, and such remuneration be made as shall be deemed right. A accepted employment as messenger with knowledge of this resolution. The directors consid- ering his services worthless refused to pay him any thing, and he brought suit against the company for $10. 13 XVII. Action for damages for non-completion of con- tract. The complaint stated the following facts : The defendant offered by his agent to sell an estate to the plaintiff for f 6,000, which the plaintiff by his agent declined. On June 6th, the defendant wrote to his agent as follows : " I notice the refusal of your friend to give me f6,ooo for my farm. I will make one more offer, which I shall not alter, i. e., $5,000. I expect a reply by return mail, as I have another application." On receipt of this letter plaintiff's agent imme- diately called on the defendant, and, previously to accepting the offer, offered $4,750 for the farm, but the defendant wished a few days to consider. On June 27 th the defendant wrote to the plaintiff's agent that he declined the plaintiff's offer of $4,750 for the farm. This letter being received on June 29th, on the same day the plaintiff's agent wrote to the defendant as follows : Your letter of the 27th inst., informing me that you will not accept $4,750 for your farm is received. This being the case I at once agree to the terms on which you offered the farm, viz.: $5,000. Please to instruct your attorney to communicate with me at once. The complaint stated that the defendant " returned a verbal answer to the effect that he would see his attorney thereon." Demurrer. XVIII. A entered the office of an express company in Christmas week, and directed, the clerk to call for a trunk at a certain house in 33d street and carry it to a house in 43d street. New York.--, Jn a conspicuous"~place ^n the wall of the office was a notice which read : " Notice — New Rule. Owing to the press of business during the holidays trunks will be deliv- ered on the sidewalk and the front door bell rung, but the drivers will not wait for an answer to the bell. No trunks will be carried except on the express understanding that the company will not be responsible for loss after such de- livery." A paid the charge and received a card, on the 14 front side of which was printed a receipt for the transporta- tion, with blanks which the clerk filled in. On the back of the ticket was printed in small type, " Subject to the new rule as to transportation." A did not see the notice, nor did he see the printed matter on the back of the card. His attention was not called to the new rule and he knew noth- ing about it. The trunk was landed on the sidewalk and the bell rung. The expressman drove off and the trunk was stolen from the sidewalk. A sued the company. XIX. Case on appeal. The facts were as follows : The defendants advertised that they would sell at their store in New York, on April 6th, a large assortment of shawls at $3 each. The plaintiff reading the advertisement and wishing to buy one of the shawls at that rate, took a train from her home in Orange, went to the store and asked for one of the shawls. Defendants' clerk informed her that those shawls had been withdrawn from sale. The plaintiff brought this action claiming damages for the expenses of her trip and loss of time. She recovered judg- ment, and the defendants having duly excepted, appealed. XX. A had a very important engagement in Buffalo, at 10 A. M., July 6th. On July 5 th he was in New York City, and being anxious to stay there as late as possible, con- sulted the current time table of the New York Central Railroad Company, and found by it that a certain train left for Buffalo at 10 p. m. Relying upon the time table he went to the depot shortly before 10, but at the ticket office they refused to sell him a Buffalo ticket, telling him the 10 P. M. train had been discontinued that afternoon and that there was no other train to Buffalo until the next morning. Upon the above state of facts A sued the company --and-- obtained a verdict of $10,000 damagesr XXI. An auctioneer advertises goods to be sold " with- out reserve,'' meaning thereby to the highest bidder. Some one present bids $100, which is the highest bid at the IS time, but the auctioneer does not let the hammer drop and it is bid in at $102 on behalf of the auctioneer and not as a sale. Is the auctioneer bound by the bid of $100 ? XXII. A lost his watch and advertised, offering a reward of $50 for its return. B, not having seen the advertisement, and knowing nothing about the offered reward, found the watch which had A's name inside. B looked up A's address in the directory, took one hour's time to go to A's house, and on reaching there delivered the wa) that as an infant the contract of marriage did not bind him and his wife and could not" obligate him. VI. Action for work labor and services. On the trial it appeared that the plaintiff, before his majority, had worked for the defendant, and that the value of his'Vork was $70. The defendant proved that the work was done in part per- formance of a covenant, by which he agreed to sell and con- vey to the plaintiff a certain house and lot for $600, of which $150 was to be paid by work, and that the work for which the action was brought was done in pursuance of said covenant. On coming of age the infant disaffirmed his covenant and sued as above. VII. A, an infant, appeared to be twenty-five years of age. B was about to enter into a coptract with A for the 49 sale of a horse, and by chance asked him, if he was of age. A replied that he was twenty-four years old, and going to his room produced a Bible in which his birthday was entered as twenty-four years before. A had himself prepared this entry as to his age. The contract was closed and A took the horse under agreement to pay $300 for him six months later. Before the six months had elapsed, A killed the horse by fast driving. On an action by B for the purchase price, A set up his infancy in defense. B replied, setting forth the fraudulent statements of A as to his age. VIII. A, an infant, hired a horse for a drive. During the drive he abused the horse, by beating, and over driving, until the horse fell dead. The owner of the horse brought an action in tort against the infant for the value of the horse. IX. A, an infant in New York city, hired a horse to drive to Central Park. He drove the horse to Yonkers instead, causing the death of the horse by over driving. The owner of the horse brought an action in tort against A. X. Brown, being insolvent, made a general assignment for the benefit of his creditors and preferred his three chil- dren for amounts justly due to them on account of monies received from their mother. In 1844, the mother of the children made an ante-nuptial agreement whereby she con- veyed all her real estate to a Trustee to receive the rents and apply the same to her own use during life. It was also provided that she might dispose of her property by will. During her married life she and her husband oc- cupied and enjoyed the property and its income, and she annually executed to the Trustee receipts in full. She made a will leaving the property to her children. The husband, as executor, took all the rents. All the above took place in New York State. The question now arises between several banks as cred- itors, and the children as to the amounts preferred. so .The banks contend that, as the mother of the children was an infant when the ante-nuptial agreement was made, it will not stand. XI. One George Chapin, an infant, being indebted to the defendants, gave them a chattel mortgage upon a horse. On the same day he sold the horse to Mary Gray, and delivered it to her. He refused to deliver the horse on the mortgage to the defendants. When the mortgage was due the defendants took the horse from plaintiff's' possession, and she brought this action therefor. In August thereafter, directly after Chapin came of age, he ratified the bill of sale to Mary Gray by endorsement thereon. XII. A, an infant, purchased a yacht under contract to pay for the same in one year thereafter. Eight months later he came of age, and thereafter, and prior to the expiration of the year, he sold the yacht to a third person. At the end of the year the vendor of the yacht sued A for the purchase price. A set up the defense of infancy at the time the contract was made. (5.)— LUNATICS AND DRUNKARDS. I. X, as heir of John Hall, brought ejectment against B for certain real estate in New York. B put in evidence his title under a deed executed by C, under a power of attorney given to C by said John Hall, and unrevoked at the time of the execution of the deed. X, under exception by B, proved John Hall to have been insane when he gave the power. This being uncon- tradicted, a verdict was directed for X. B now appeals on his exceptions. II. A was insane. B, in good faith, and in ignorance of A's insanity, entered into a contract with him to sell him a race horse for f i,ood. B delivered the horse to A SI who took it, and by hiis negligence caused its death. A was soon thereafter declared insane and a committee of his property appointed. B sued this committee on the con- tract, claiming $i,ooo damages for breach thereof. Defense — Insanity of A at time of making contract. III. A, being on a certain occasion so drunk that he did not know what he was doing, entered into a contract of service with B, whereby B agreed to employ A for one month, at $30, and A agreed to serve. When A became sober he learned of this contract through friends, and ten- dered his services to B, which were declined. A sued B for breach, of contract. Defense — That as A was too drunk to know what he was doing, there was no contract, it being void ab initio. IV. B was drunk, and while in that state one Miss X married him. The next day B was astonished to learn that he had been married, and brought an action to have the contract of marriage set aside and declared void, on the ground of his being drunk and not conscious of what he was doing. (C.)— MARRIED WOMEN. I. C, a married woman, entered into an agreement with D, who did not know she was married, for the purchase of a piano. The piano was delivered, but not paid for. C's husband died, and D brought his action against C on the contract for the purchase price. Defense — Coverture at the time of the agreement. II. D and F, his wife, conveyed certain premises to H by deed, containing full covenants and warranty. H conveyed to K, who thereafter brought an action of ejectment against F, the wife. At the trial F offered to prove, in defense, title in other parties prior to that of the grantor H. This evidence was objected to, on the ground 52 that F was estopped by her deed, and the covenants therein. Objection overruled, judgment for defendant, and appeal by plaintiff. III. D, a married woman, made her promissory note to the order of T, and going to him asked him to discount it. T at first refused, on the ground that she was married. On her assurance that she was unmarried, T discounted the note, which was not paid at maturity. T brought suit on the note, and the defense of coverture was set up. T re- plied setting up D's statement and claimed an estoppel. IV. M, being about to marry, her father placed funds in the hands of Trustees to invest, and hold the same for her sole and separate use, and pay the income monthly to M while she lived, without power of anticipation. After M's marriage, her husband became financially involved, and ■ asked B to discount his notes. Upon B's refusal, M went to him and promised to pay over to him her income as it accrued, until he was repaid, in case her husband did not meet his notes. An agreement was then prepared and signed by M, promising to pay over the said income to B until he should be repaid therefrom in case her husband did not pay the notes.and directing her Trustees to pay the income to B, and thereupon B discounted the notes. The notes were not paid at maturity, and as M's trustees under her direction refused to pay over the income to B, he brought his bill in equity against her Trustees praying for a decree directing payment to him. V. H was married in New York city in 187 1, and had a large separate estate. In 1872, she wished to help a poor friend, who was buying a piano, and to induce the manu- facturer to let her friend have the piano on credit, signed an agreement to pay for the piano if her friend did not. The piano was not paid for and the manufacturer brought this action against H. She plead coverture as her defense. S3 VI. B, a married woman, residing in New York city, made her promissory note in form following, viz : $500. New York, May i, 1876. Three months after date I promise to pay to the order of D five hundred dollars — Value received. B. She procured this note to be discounted, and the same was not paid at maturity. She had a large separate estate Being sued on the note by D, she set up her coverture. Chapter III.— Illegal Contracts. " Ex turpi causa, non oritur actio." I. A hires B to act as decoy to his gambling den, and promises to pay him $ioo per month. B performs his duties as such decoy. At the end of the month A refuses to pay the $roo. Has B a cause of action for non-payment ? II. C engaged in counterfeiting, employs B to do domes- tic work at his home during the day, and to help him in his counterfeiting work evenings. He promises to pay B $20 per month for the day work and $10 extra per month for the evening work. B does all the required work day and evening but at the end of the month C refuses to pay him. B brings an action for %^ His complaint sets forth above facts, alleging breach of contract for non-payment of $20, .and- further breach for non-payment of $1,0. . Should..he recover ? III. A engaged Mrs. B as his housekeeper, and agreed to pay her $50 to keep his house, and give him illicit con- nection. Mrs. B brought an action against A on this contract and A defended on the ground that the consideration was illegal. Should this defense be sustained. IV. A agreed to supply B with a new brougham on hire, till the purchase money should be paid on installments in a period which was not to exceed twelve months ; B to have the option of purchase as aforesaid and to pay $250 down ; and in case the brougham should be returned before a second installment was paid, a forfeiture of $75 was to be paid, and 55 also any damage except fair wear. B returned the brougham before a second installment was paid, in a damage^ condi- tion. A brought an action against B for the $75 and the damage to the brougham which he set at $150. B put in an answer alleging that at the time of making the supposed contract she, B, was a prostitute, and that the same was made for the supply of a brougham to be used by her as such prostitute, and to assist her in carrying on her im- moral vocation, as part of her display, to attract men, and that all these facts were well known to A at the time of entering into the supposed contract. A demurred, and the case comes up on argument of the demurrer. V. By the terms of a United States Statute Railway Companies were forbidden to give a rebate to any shipper from the advertised rates of their roads. The N. Railway Company, a Corporation organized in the United States, agreed with C to carry his goods to Quebec at the regular rates. By a separate contract the Railroad Company agreed that upon the arrival of C's goods in Quebec over its lines, it would pay to C in Quebec a sum equal to what a certain rebate would have been. A large amount of C's goods arrived in Quebec over the Company's lines, but the Com- pany refused to pay the agreed sum. C brought suit in Chicago for the amount promised, and the Company pleaded that the contract was illegal, being an evasion of the U. S. Statute. VI. Mutual agreements by which A promised B never to marry, and B promised to pay him $1000. On suit against B for $1000, he defended on the ground that the contract was void as against public policy. VII. A was engaged in the grocery business, and sold out his store, good will and fixtures to B, and as part of the transaction promised not to carry on the grocery business S6 iagain during his life. A, moved to another city and opened a grocery store. B brought an action against him for breach of his contract, and prayed for an injunction restraining A from going into the grocery business. VIII. D was a druggist and sold out his business to K, promising as part consideration for the sale not to open a drug shop within half a mile of where his old store was located. As soon as the sale was completed he opened a new store directly opposite to his old one. K brought an action to enjoin him from continuing his business within the half-mile limit. IX. R was engaged in the manufacture of friction matches in the state of New York, and sale of the same throughout the United States. He sold his manufacturing stock, trade, trade marks and good will to the S Com- pany, a corporation. The bill of sale executed by R to the S Company contained the following covenant, "That he shall and will not, at any time or times within ninety-nine years, directly or indirectly engage in the manufacture or sale of friction matches (excepting in the capacity of agent or em- ployee of said S Company), within any of the several States of the United States of America, or in the territories thereof or within the District of Columbia, excepting and reserving however the right to manufacture and sell friction matches in the State of Nevada and in the Territory of Montana." • The S Company at and prior to the time when the above covenant was made, was engaged in the manufacture and sale of friction matches throughout the United States. Three years after executing the above bill of sale R again went into the business of manufacturing and selling friction matches throughout the United States. This action is brought by the S Company to restrain R from such manufacture and sale. Chapter IV.— Discharge of Contract. {A.)— BY AGREEMENT. I. Action by A against B for breach of promise to marry. The complaint set forth the facts alleging mutual promises tomarry(-|^ demanded a delivery of the chest, and produced the amount agreed to be paid and offered to pay it upon receiving the chest. C told him that the chest was destroyed and B replied that the matter was at an end. On action brought by C for the price of the chest, B put in a plea of tender. XXVIII. By the terms of a contract between A and B it was agreed that B should deliver certain goods to A on June 30th then next. It chanced that said June 30th fell on Sunday. B tendered the goods on Monday, July ist, and A refused to receive them. Thereafter A brought an action against B for breach of the above contract and A set up the defense of performance. 75 XXIX. H agreed to deliver to K ten barrels of flour at $8 per barrel. At the proper time and place H tendered twelve barrels of flour, which K refused to receive. H brought suit against K for breach of the contract. XXX. A ordered from B a large quantity of tea of a specified kind. B delivered the tea in chests at A's store just before the close of business hours. The next morning A had the tea taken from the chests for examination by his experts. They found that the tea was "of an inferior quality to that ordered and so reported. A at once notified B and refused to accept the tea, directing him to take it away and that it was at his risk. B declined to take the tea and that night it was destroyed by fire. B brought suit against A for the price of the tea and A answered, setting forth the above facts. XXXI. A made and delivered to B his bond for $20,000 payable in five years, and secured by mortgage upon real estate. By the terms of the bond and mortgage if A failed to pay interest within thirty days after the same fell due, B was entitled at his option to declare the total amount due. Ten days after the first installment of interest fell due, A tendered to B his certified check drawn to the order of B, for the full amount of interest due. B refused to receive this check, and upon the expiration of the thirty days after the interest fell due, began an action of foreclosure, setting forth in his complaint that he elected to consider the princi- pal sum as due. A put in an answer setting forth the above facts to show a tender of the interest within thirty days after it fell due. At the trial A tendered in open court, in gold coin, the interest due, which B declined to receive. A verdict was given for the plaintiff and judgment of foreclosure and sale entered thereon. The case now comes up on appeal. XXXII. Brown was under contract to deliver 1,000 tons of pig iron to Ives on April 13th. Ives relying upon this con- tract for his supply of iron, made various other contracts to 76 supply other people with his manufactured articles. By April 13th iron had risen in price and Brown refused to deliver. Ives was obliged to purchase at once in the general market, and pay a very much higher price. On April 20th the price fell and Brown at once tendered the iron, which Ives refused to receive. Ives brought suit and Brown put in a plea of tender of the iron. • (G.)— ACCORD AND SATISFACTION. I. A broke a certain contract which he had made with B. Thereafter he made an arrangement with B to pay him $1,000 in satisfaction of the breach. Subsequent to this arrangement, but prior to payment of any part of the f 1,000, B brought an action for the original breach of contract, claiming $5,000 damages. Plea by A of accord and satis- faction. II. Baldwin having failed to deliver a horse in accord- ance with the terms of a contract with Dean, they held some conversation upon the subject, and Dean agreed to accept from Baldwin, in satisfaction of the claim, a new edition of Webster's Dictionary, which Baldwin duly delivered to him. Thereafter Dean brought suit for breach of the contract to deliver a horse and Baldwin put in a plea of accord and satisfaction. III. H failed to pay C $1,000 on May istin accordance with the terms of a contract. Thereafter H acquiesced in a proposition to receive $10 in satisfaction of the claim, which C then paid. On suit by H for the $t,ooo, C put in a plea setting up the above facts as a bar. IV. A having a claim against B, made an executory ar- rangement for the adjustment of her claim by which she was to receive B's notes for one-third of the amount and the bond of C, for the remainder, and on the notes and 77 bond being executed and delivered to her she agreed to release B. The notes and bond were executed and ten- dered, but A refused to accept them. V. Black failed to perform his part of a contract whereby he was under obligation to supply Pavey with certain elec- tric machines. After breach of said contract Black pro- posed to pay $i,ooo in satisfaction of the breach. This proposition was accepted by Pavey. Black then promised to pay $i,ooo in satisfaction and Pavey promised. to receive the same — subsequently, but prior to payment of the $i,ooo Pavey brought ,an action for the breach of contract. Black put in a plea of accord and satisfaction. Chapter V. — Damages for Breach of Contract. '' The broad general rule in such cases is, that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained ; and this rjile is subject to but two conditions. The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract ; that is such as might naturally be expected to follow its violation ; and they must be certain, both in their nature and in respect to the cause from which they proceed. " The familiar rules on the subject are all subordinate to thfese. For instance : that the damages must flow directly and naturally from the breach of contract, is a mere mode of expressing the first ; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or contingent, are different modifi- cations of the last.'' Griffin vs. Colver, i6 N. Y., 489. I. A was under contract to deliver to B, on December ist, 1,000 bushels of white potatoes, at 80 cents a bushel, but failed to do so. On December ist white potatoes sold at 90 cents a bushel and continued to increase in price up to December isth, at which time they sold at $1.25 per bushel in the open market. After that date the price fell off until January 2d, when they were only worth 75 cents per bushel. On January 2d B sued A for breach of the contract. The above facts were proved, and the question arose as to what damages B was entitled. II. H owned a steam mill, in which the engine shaft broke. He ordered a new shaft from an engineer in a neighboring city, and contracted with B, a carrier, to call for the broken shaft and deliver the same to the engineer as a model. On making the contract, B was informed that the mill was stopped and that the shaft must be sent imme- diately. B called for the broken shaft, but unreasonably 79 delayed its delivery to the engineer, and in consequence thereof the completion and delivery of the new shaft was put back a considerable time, causing the mill to lie idle during such additional period. H sued B for breach of his contract in not delivering the broken shaft promptly, and claimed special damages for the loss of profits while the mill was kept idle. III. A was engaged in the business of building elevators, and contracted with B to place four elevators in the latter's new office building, then in process of erection, and to have them finished and in running order in said building by May ist, then next. The building was ready for occupa- tion on May ist, but the elevators were not ready in place until June ist. In an action by A for the contract price of the elevators, B counterclaimed, setting up damages for breach of contract in non-delivery. B offered evidence to show that his building had been greatly damaged, by not having the elevators running during the renting season, and that the tendency had been to keep tenants away. The Court rejected this testimony, but offered to allow B to prove that he had lost any specific tenant on account of lack of elevators. B excepted to this ruling and after judgment in A's favor for the full contract price, duly appealed. IV. Jones expected to engage in an extensive wheat speculation in May, and on April isth, leased an office on the eighth floor of the building described in the last case. B covenanted that the building should be ready for occupa- tion by May ist, >Vith four elevators regularly running. Jones moved in on May ist, but the failure to run elevators interfered with his business to such an extent that he was Unable to carry through his wheat speculation. Jones brought an action against B, claiming damages for the loss of profits which he had expected to make from his speculation. 8o V. Action for non-delivery of i,ooo tons of scrap iron. A, the plaintiff, was a manufacturer of nails, and required the scrap iron for this purpose. Scrap iron in sufificient quantities could not be obtained without contracting in advance for the supply. .The contract price was $i6 per ton. At the time for delivery the market price of scrap iron was $22 per ton, and plaintiff bought 400 tons at this rate, but could not obtain more. In order to get a sufficient supply of iron, A was obliged to use 500 tons of iron rails. The market price of iron rails was $25 per ton, and it cost $3 per ton more to manufacture the nails from them. What amount of damage was A entitled to recover on the above facts ? VI. B was a concert manager, and proposed to give a concert in Boston, Mass. With this end in view he secured the services 6f a noted prima donna, Miss N, under a con- tract, by the terms of which B agreed to furnish a new piano for the accompaniment, to be made by K, a noted manufacturer, under instructions from Miss N ; and it was specially stipulated that Miss N should not be called upon to sing unless such piano was supplied. B and Miss N called upon K, explained to him fully what was required informing him of the terms of the contract with Miss N and that the piano was required for a concert to be given on October i6th, and that the concert could not be given unless the piano was ready. K agreed to deliver the speci- fied piano on October i6th, at the Music Hall, in Boston, and thereupon B engaged the hall, advertised the concert, sold every seat in advance, and paid Miss N in advance as required by his contract. K failed to deliver the piano Miss N refused to sing, and B was obliged to give up the concert and refund the money for the seats. On an action against K for breach of contract for non- delivery, B claimed damages for all his expenses in refer- ence to the concert and also for his loss of profits on the tickets sold, and on certain tickets he expected to sell, claiming that he should certainly have filled all the standing room, which would have made three hundred tickets. K answered, setting up as a defense that his factory burned down on October 13th, destroying the piano in question, making it impossible for him to deliver. On the trial the above facts were proved, and the Court directed a verdict for the plaintiff in the full amount claimed. K duly excepted, and the case now comes up on appeal. VII. P brought an action against D to recover damages for a breach of the following agreement, to-wit : "That if P shall succeed in selling fifty of D's sewing machines to one firm or party in the Republic of Mexico during the next trip of his agent to that country, then about to be made, he, P, for every fifty machines so sold shall have the sole agency for the sale of D's machines in that locality, and D shall furnish to P machines at the lowest net gold prices." P at once entered upon the per- formance of the agreement, purchased a sample machine of D, caused his agent to be instructed in its mechanism and management, and then sent him to Mexico. After reaching there he sold fifty machines to one M, of S, on his promise to M that he should be the general agent of D for that locality. The order for fifty machines was sent to D, filled by him, the machines forwarded to Mexico and paid for. Shortly thereafter P's agent made another sale of fifty machines for another locality in Mexico, and an order f'or those machines was sent to D, which he absolutely refused to fill. He then refused to fill any further orders from P or his agents, and repudiated his agreement. Upon the trial P made various offers of evi- dence to show the value of his contract with D, the most of which were excluded. In his charge to the jury the judge held as matter of law that P could recover damages only for the refusal of D to fill the orders actu- ally given ; and P's profits having been shown to be $4 82 on a machine, his recovery was thus limited to $200. P excepted to the rule of damages thus laid down, and the sole question for determination is what, upon the above facts, was the proper rule of damages ? Was P confined to the damages suffered by him in consequence of the refusal of D to fill the order for fifty machines, or was he entitled also to recover the damages which he sustained by a total breach of the agreement on the part of D ? The judge limited the damages, as stated in his charge, because any further allowance of damages for the breach of the agree- ment would, as he claimed, be merely speculative and imagi- nary. The case now comes up on appeal. VIII. Miss C brought an action for breach of promise of marriage against H. In his answer H set up in justification the unchastity of Miss C. On the trial, counsel for Miss C put in evidence under objection, facts showing the wealth of H and Miss C's reasonable expections of worldly advantage from a perma- nent home and good establishment ; injury to her affections and her mortification and distress of mind resulting from H's refusal to marry ; the length of time of her engagement and her wounded and insulted feelings arising from H's desertion. She further proved the outlay in preparing her trousseau, and then proceeded to prove that H had mali- ciously alleged unchastity in his answer, knowing the allega- tion to be false. The judge instructed the jury that they might consider all these facts in estimating Miss C's damages, to all of which exception was duly taken by counsel for H. The jury brought in a verdict of $40,000 and an appeal was duly taken from the judgment entered therein. IX. A and B contracted for the construction of a bridge by A, the bridge to be completed on July ist, and a penalty of $100 per day to be paid by A for every day after July ist that the bridge remained unfinished. The bridge was not finished until July loth. This caused an actual loss to 83 B of $5 per day. B sued A for f i,ooo. Should he recover that amount? X. A was employed to work for B for forty weeks at $20 per week. At the end of two weeks B paid him $40 and discharged him without cause. There was much demand for workmen, and A could easily have obtained employ- ment at the same price, and of the same kind, but made no effort to do so. At the end of the forty weeks he sued B for $760. Should he recover that amount ? s.-«^W -S«!s»SSSW^S^^N