QJortifll Cam i>rl|nol ICibtara Cornell University Library KF 801.A7A93 Authorities, deductions and notes In the 3 1924 018 827 398 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018827398 AUTHORITIES DEDUCTIONS and NOTES IN CONTRACTS \ <5i (., rrJM i PRINTED BY Ube llinivetsits ipcees UINNBAPOLIS 1900 Copyright 1900 BY Ibe TRnivetsit;; presa of i»fnne0ota INTRODUCTION. JURISPRUDENCE. " Law, in its most general and comprehensive sense, signi- fies a rule' of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or ir- rational. Thns we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations." Blackstone, Vol I, § 39. Jurisprudence. Positive law, or Jurisprudence, is a gen- eral term, and includes all the rules of action which are enforc- ible by the courts of the land. Courts do not undertake to enforce all the laws of the universe; but only such laws as, from the nature of persons and things, it is possible and proper for thera to enforce. If a person does not love God, as he is commanded to, the court will not issue a writ of mandamus to compel him to do so, or if a person hates his neighbor con- trary to the moral law the courts will not restrain him from so doing by a writ of injunction. Jurisprudence is the science which classifies and illustrates those laws which the courts of the land endeavor to enforce in the affairs of mankind. The laws which courts attempt to enforce, or human laws, as they are sometimes called, are very few when compared with all the laws of the Universe, but it is those few laws announced and enforced by the courts of the land that are taught in the schools as the Science of Jurisprudence. Roman Civil Law. The civil law, as it is generally called, comprised the laws of ancient Rome. It has only an indirect influence upon our laws in America. The Common Law. As a system of law was developed at Rome, and was called the Civil Law, so another system of Jur- isprudence was later developed in England, which is known as the Common Law. The Common Law of England "is proper- ly distinguishable into two kinds: 1. General customs, which are the universal rule of the whole kingdom, and form the com- 2 AUTHORITIES AND DEDUCTIONS mon law, in its stricter and more usual signification. 2. Par- ticular customs; which, for the most part, affect only the inhabitants of particular districts. 3. Certain particular laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction. 1. As to general customs, or the common law, properly so called; this is that law, by w^hich proceedings and determi- nations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance ; the manner and form of acquiring and transferring property ; the solemnities and ob- ligations of contracts; the rules of expounding wills, deeds and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences ; with the manner and de- gree of punishment; and an infinite number of minuter partic- ulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the Chan- cery, the King's Bench, the Common Pleas, and the Exchequer; that the eldest son alone is heir to his ancestor; that prop- erty may be acquired and transferred by writing ; that a deed is of no validity unless sealed and delivered ; that wills shall be construed more favorably, and deeds more strictly; that money lent upon bond is recoverable by action of debt ; that breaking the public peace is an oflfence, and punishable by fine and imprisonment; all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law for their support." Blk. Vol. I, §§ 67-8. Written and Unwritten. This body of English Common I/aw was called by Blackstone the unwritten law, "because their original institution and authority are not set down in writing as acts of Parliament are, but they receive their bind- ing power, and force of laws, by long and immemorial usage, and by their universal reception throughoutthekingdom," but statutes and acts of Parliament and the edicts of the crown were known as the written law, because they were reduced to writing before they took effect. IN CONTRACTS. 3 The Common Law in America. When our forefathers came to America, they brought with them this body of English com- mon law, and so far as that law was applicable to their new conditions, it became the common law of the colonies. As new States have come into the Union since the Revolution, this body of English common law as modified and amended by English statutes up to the time of the Revolution has become the common law of those States respectively, excepting the State of Louisiana, where the civil law prevailed. Sackett vs. Sackett, 8 Pick. 309. Coburn vs. Harvey, 18 Wis. 156. American Jurisprudence. The study of law, like charity, should begin at home. We shall begin by investigating the legal rights and dtlties of men, women, and children in Minne- sota and the other States or Territories of America. We shall postpone our generalizations and classifications of the law until we have discovered and examined the facts. We shall commence our study with the subject of contracts, l;>ut as the terms "torts" and "crimes" will be frequently employed, we must first understand their meaning. A Tort, in a general way, may be said to be a wrongful act or omission of one party, resulting in damage to another, a.^ where "A" wrongfully goes upon the land of "B" and there girdles the trees, destroys the crops, or does some other dam- age. • " A Crime is an act, committed or omitted, in violation of public law, either forbidding or commanding it." Bl. Vol. 4, § 5. As where "A" wrongfully kills "B," or steals the property of "C," or sells liquor to a minoi- contrary to law. CONTRACTS. A contract has been defined as "an agreement, enforcible at law, made between two or more persons, by which rights are acquired by one or more, to acts or forbearance on the part of other or others." Anson on Con. Part 1, § 2. Justice vs. Lang, 42 N. Y. 493. 4 AUTHORITIES AND DEDUCTIONS The essential elenaeuts of a contract are expressed or nec- essarily implied in the following definition : "A contract is an agreement, enforcible at law, whereby a party undertakes to do or not to do some particular thing." First of all we must notice that a contract is an " agree- ment." The word agreement is generic, and the term contract is but a species of agreement. There are many agreements which are not contracts. Sage vs. Wilcox, 6 Conn. 81-85. I. In order that an agreement may ripen into a contract, it must be made with the intention of changing the legal rela- tions of the parties respecting each other. *McClurg vs. Terry, 21 N. J. Eq. 225. Higgins vs. Lessig, 49 111. App. 459. • Keller vs. Holderman, 11 Mich. 248. II. In order to become a contract the agreement must also rest upon a consideration. That is, the promise by one party, must be given in exchange for something regarded in law as good or valuable. There must be a quid pro quo ; otherwise the agreement is called a nudum pactum. If " A " prdmise to pay "B" $1,000 in thirty days, and " B " does nothing in return for that promise, that is, does not cause " A " in some way to have an equivalent in law, then the agreement to pay the same is not a contract. *Fink vs. Cox, 18 John. 145. But if the agreement is reduced to writing and sealed by the party making it, the promise is then valid, upon the ground that a. seal conclusively implies a consideration, even though there be no consideration in fact. *McMillan vs. Ames, 33 Minn. 257. Van Valkenburg vs. Smith, 60 Me. 97. Bunn vs. Winthrop, 1 John. Ch. 329. Exception. There is one exception to the doctrine that a seal conclusively implies a consideration. It is in the case of a deed of bargain and sale conveying lands. In addition to the seal there must, as a general rule, be an actual consideration. This matter will be further considered under the head of con- sideration, and in the subject of real property. Bishop on Con., §§ 42, 124. IN CONTRACTS. 5 A seal is an impression on wax, or paper, or some other tenacious substance, capable of being impressed. 4 Kent's Com. 452. 2 Bl. Com. 305. III. Again, in order that an agreement may ripen into a contract, it must be definite and certf^in, so that the court when enforcing it can see clearly what the parties intended to bind themselves to do. Marble et. al. vs. Standard Oil Co., 48 N. E. 783. Sherman vs. Kitsmiller, 17 Serg. and R. 45. IV. And again, an agreement in order to ripen into a con- tract must not be in violation of any law— common, statutory — or against public policy. *Hatch vs. Mann, 15 Wend 45. *Sternberg vs. Bowman, 103 Mass. 325. *Eaton vs. Kegan, 114 Mass. 433. Bisbee et. al vs. McAllen, 39 Minn. 143. Tngersoll vs. Randall, 14 Minn. 400. "Sterling vs. Sinnickson, 5 N. J. L. 871. V. In order that the agreement of the parties may become a contract, the assent of the parties must be expressed, so that each may know that the other intends to be bound — a secret assent is not sufficient. *White vs. Corliss, 46 N. Y 467. (a) The assent of the parties may be expressed by con- duct as well as by words, as when an auctioneer brings down his hammer as an indication that he has accepted a bid. *Payne vs. Cave, 3 T. R. 148. In this case the court says : "The auctioneer is the agent of the vendor, and the assent of both parties is necessary to make a contract binding ; this is signified on the part of the seller by knocking down the hammer, which was not done here until the defendant had retracted. The auction is not in- aptly called locas poenitentise. For, bidding is nothing more than an offer on one side, which is not binding on the other side until 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." 6 AUTHORITIES AND DEDUCTIONS (b) Even silence on the part of the offeree, under circum- stances where he is bound to speak, might amount to an ac- ceptance of an offer, and therefore be a sufficient expression of assent ; but from mere silence, where a person is not bound to speak, no inference can be drawn that the person who is silent assents to the offer made him. Royal Ins. Co. vs. Beatty, 12 Atl. 607. O'Neal vs. Knippa, 19 S. W. 120. VI. Notwithstanding the fact that the agreement was made by the parties with intent to change their legal relations to each other, and the promise by one was given in exchange for something of value moving from the other, and notwith- standing the thing to which they have agreed is definite and certain in all respects, and not contrary to law or public pol- icy, and the assent of the parties has been sufficiently expressed by each to the other, yet the agreement may not ripen into a contract, which the courts will enforce, unless it be reduced to w^riting, as is required in certain cases by the Statute of Frauds. Where the statute requires the agreement to be in writing it must be so reduced to writing before it will be en- forcible. CONTRACTS CLASSIFIED. Having seen how^ agreements may ripen into contracts, w^e will now see how contracts are classified. A Simple or Parol Contract. A simple or parol contract is an agreement whereby a party undertakes, upon a sufficient consideration, to do or not to do a particular thing, and is not under seal. Oral Contract. An oral contract is one expressed by word of mouth. Written Contract. A written contract is one all of whose terms have been reduced to writing. A Specialty. A specialty is a contract under seal. A Contract of Record. A contract of record is one made and entered of record before a judicial tribunal. Executed Contract. An executed contract is one where the particular thing agreed to has been wholly performed. IN CONTRACTS. 7 Executory Contract. An executory contract is one where the particular thing agreed to has not been wholly performed. An Express Contract. An express contract is one, all of w^hose terms have been positively and expressly assented to by the parties to the contract. An Implied Contract. An implied contract is one, some or all of whose terms have not been expressly assented to by the parties to the contract, but are inferred by the law from the conduct and situation of the parties. Quasi-Contracts. Obligations imposed by law upon cer- tain persons, and enforcible in an action ex-contractu, are sometimes called "contracts implied in law," or "quasi-con- tracts," though they lack the essential element of actual assent of the parties. Strictly speaking such obligations are not con- tractual, but are treated, so far as the remedy is concerned, as if they were. Such are the so-called contractual obligations of insane persons, and the obligation of a husband to pay for necessaries furnished his wife, and the obligation a person is under to re- turn money received from another by mistake. IN CONTRACTS. PART I. PARTIES. As every contract presupposes an agreement, 'so every agreement presupposes the existence of two or more parties competent to agree. There can be no contract with but one party; a person cannot contract with himself. The presumption is that all natural persons may enter in- to contracts ; but as a matter of fact some persons are disqual- ified by law, and others are disqualified by a lack of mental power. Therefore, capacity to contract is of tw^o kinds, natural and legal, and these must concur in all the parties in order that they may be bound by their agreement. By natural capacity is meant a competent measure of mental power, and by legal capacity is meant the law's per- mission to use one's natural capacity. For example: A boy, twenty years of age, may have natural capacity sufficient to make valid contracts ; but as the law^ does not permit him to make valid contracts, except in certain cases, he lacks the legal capacity. While another person, being thirty years of age, w^ould have the law's permission to contract, but if he were insane he would lack the natural capacity. We will begin our investigation of this subject, as to who may make valid contracts, with the general proposition that all persons may contract, except those whom the law^ disqual- ifies partly or entirely. INFANTS. The law disqualifies an infant in part from entering into contracts. It will enforce his contracts for necessaries, if he have no parent or guardian who supplies them for him, but it' will not, as a general rule, enforce against his will, any other of his agreements. The common law regards as an infant any person under tv;fenty-one years of age; but in many of the states of the Union the statutes regard males under fhe age of twenty-one 10 AUTHORITIES AND DEDUCTIONS years, and females under the age of eighteen, as minors or in- fants. The first question to be considered, therefore, is the time at which a natural person arrives at majority, and this ques- tion we find discussed in the following cases. *Bardwell vs. Purrington, 107 Mass. 425. Howard's Case, 2 Salkeld 625. Fitzhugh vs. Bennington, 2 Ld. Ray. 1094. Wells vs. Wells, 6 Ind. 447. Ross et. al. vs. Morrow et. al., 16 L. R. A. 542; 19 S. W. 1090. Minnesota Statutes 1894, § 4534. Cogel vs. Raph, 24 Minn. 194. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION -' ■^"'"y- ■^^ ISSUE LAW FACTS DECISION IN CONTRACTS. 11 Deductions and dicta from cases examined. From the foregoing authorities we deduce the following propositions : (1) That a person at common law^ reaches his majority at the earliest moment of the day preceding the twenty-first anniversary of his birth, but by statute in some states on the day preceding the eighteenth anniversary in the case of females. ;_ (2) On this day, preceding such anniversary, a person is of full age; consequently he can make contracts, vote, execute a w^ill, and should one sell liquor to such a person on that day he would not be violating the law prohibiting the sale of liquor to infants or minors. (3) Reason for the Rule. The reason for this rule is tech- nical, in that the common law recognizes no fractions of a day. 12 AUTHORITIES AND DEDUCTIONS Classification of Infants' Contracts The contracts of infants have generally been classified as valid, void and voidable. His contracts for necessaries have generally been held as valid; his power of attorney has been pronounced void ; and his other contracts are generally pro- nounced voidable. As a void contriact is no contract what- ever, the propei- classification would beinto valid and voidable. A valid contract is one which binds all the parties tliereto ; a voidable contract is one which may be avoided by one or more of the parties. In the case of a contract between an in- fant and an adult, the infant may avoid it on the ground of his infancy, while the adult is incapable of avoiding it on that ground. VALID. Having seen when a minor reaches majority, let us now consider the valid .contracts which the law permits him to make. I. Contracts for Necessaries. As to the doctrine of valid contracts made by infants, we will examine the following cases. *Gay vs. Ballou, 4 Wend. 403. *Strong vs. F'oote, 42 Conn. 203. *Randall vs. Sweet, 1 Denio 460. *Guthrie vs. Murphy, 4 Watts 80. In Re Besondy, 32 Minn. 385. Sharp vs. Cropsey, 11 Barb. 224. Middlebury College vs. Chandler, 16 Vt. 683. Werner's Appeal, 10 Norris (Pa.) 222 (91 Pa. St.) Angel vs. McLellan, 16 Mass. 28. Anderson vs. Smith, 33 Md. 465. Peters vs. Fleming, 6 M. & W. 42. Davis vs. Caldwell, 12 Cush. 512. Swift vs. Bennet, 10 Cush. 436. Conn. vs. Coburn, 7 N. H. 368. Haine vs. Tarrant, 2 Hill (S. C.) 400. Wailing vs. Toll, 9 John. 141. *Chapple vs. Cooper, 13 M. & W. 252-8. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW BRACTS "AC DECISION ACTION ISSUE LAW --^- FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW PACTS DECISION ACTION ISSUE LAW "FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS «S DECISION IN CONTRACTS. 13 Deductions and dicta from cases examined. From the foregoing cases and others cited and examined, we deduce the following propositions : (1). An infant may make a valid contract for necessaries, provided he has no parent or guardian who supplies them for him. (2) As to what are necessaries Coke says: "An infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and other such necessaries ; and likewise for his good teaching or instruction, w^hereby he may profit him- self afterwards." (3) What are necessaries must be determined by having regard to the infant's condition, estate, and circumstances in life ; and they must be for the comfort and advantage of the in- fant himself. (4) The question w^hether a specific thing can ever be a necessary for an infant is a question of law for the court, but whether any specific thing is a .necessary in a particular case, is a question of fact for the jury to decide. (5) Among those things which the courts have held to be necessaries are the following : (a) A livery for the servant of an infant officer in the army, who was required to have an attendant. Hands vs.Slaney, 8 T. R. 578. The case last cited was decided in 1800 ; and it was an ac- tion against an infant captain in the army, for a livery which he had ordered for his servant, and for some cockades he had ordered for some of his soldiers. The court below left it for the jury to say whether or not these were necessaries under the. circumstancesof the case, and the jury held they were; but Lord Kenyon, chief justice, said in the court above that the cock- ades could not be necessaries and ought not to. have been in- cluded in the damages. But regarding a livery the judge said, that it might be necessary for an officer to have a servant, and if necessary to have a servant, then a livery for the servant might be a necessary. (b) Regimental clothes may also be a necessary for an in- fant who is a member of a volunteer corps. Coates vs. Wilson, 5 Esp. 152. 14 AUTHORITIES AND DEDUCTIONS (c) The courts have intimated that a horse might, under proper circumstances, be a necessary. Harrison vs. Fane, 1 M. & G., 550. (d) The services rendered by a sister to her two sick, in- fant brothers, who died intestate, and her further services in preparing their bodies for interment, were held by the court to be necessaries, and properly chargeable to the estate of the minors. Werner's Appeal, 10 Norris (Pa.), 222. (e) Services rendered by a dentist upon the teeth of a mi- nor are properly regarded as necessaries. (f ) Boarding, lodging, schooling, clothing and physician's bills may be necessaries. (g) The necessaries of a w^ife may be the necessaries of an infant husband. Turner vs. Trisby, 1 Str. 168. (h) The funeral expenses of a deceased husband have been held as necessaries of the infant's widow, when his estate was insolvent. *Chapple vs. Cooper, 13 M. & W., 252. (i) A room occupied by an infant while in college has been recognized by the courts as a necessary. Gregory vs. Lee, 30 Atl., 53. In this last case the court said: "Under the facts stated it must be decided that this room at the time defendant hired it, and during the time he occupied it, comes within the class called necessaries, and also that to him during said period it was an actual necessary, for lodging comes clearly within the class of necessaries." (j) The services rendered by an attorney in defending an infant against a criminal charge have been regarded as a neces- sary, the reasonable value for which a minor may bind himself by contract to pay. Askey vs. Williams, 11 S. W., 1101. Among the things which the courts have held as not neces- saries are the following : (a) Dinners, confectionary, or fruit; soda-water, lozenges, jelly and similar things,, supplied to an infant while an under- IN CONTRACTS. 15 graduate in Trinity College, Cambridge, were held by the court not to be prima facie necessaries, Brooker vs. Scott, 11 M. & W., 67. (b) Tobacco, including pipes and cigars, has been held as never, except in very special circumstances, a necessary for an infant. Bryant vs. Richardson, 12 Jurist N. S., 300. (c) Money is not a necessary in its technical sense, so one who loans money to an infant cannot recover it at common law, even though the infant expends it for necessaries. Darby vs. Boucher, 1 Salk., 278. Price et al. vs. Sanderson et al., 60 Ind., 310. In the last above case it is stated in the syllabus that "an infant is not liable at law on his promissory' note or other con- tract, for money by him thereby obtained, to be used in im- provinjj;, repairing, or working his farm ; nor is he liable there- on though the money obtained be expended for necessaries. The indebtedness for necessaries for which an infant is liable must be created directly for the necessaries." (d) But the rule seems to be otherwise in equity, and an infant is liable for money, which he has bon'owed and actually applied to the payment of necessaries. Marlow vs. Pitfeild, 1 Pere Wms. 558. i In this last case, after stating that money loaned to an in- fant and by him expended for necessaries cannot be recovered of the infant in an action at law if the infant setup his infancy, yet the court says : "It is, however, otherw^ise in equity; for if one loans money to an infant to pay a debt for necessaries, and in consequence thereof the infant does pay the debt, here although he may not be liable at law he must, nevertheless, be so in equity ; because in this case the lender of the money stands in the place of the person paid, viz.: the creditor for necessar- ies, and shall recover in equity as the other should have done at law." Other Valid Contracts. (1) Besides his contracts for neces- saries, the infant may make a valid contract of marriage. At the common law infants could marry, males at the age of four- 16 AUTHORITIES AND DEDUCTIONS teen, and females at the age of twelve, and the consent of their parents was not necessary to the validity of the marriage. Bennett vs. Smith, 21 Barb. 439. (2) The contract of enlistment made by an infant may be valid. In Re Higgins, 16 Wis. 351. In Re Morrissey, 137 U. S. 158. Commonwealth vs. Gamble, 11 S. & R. 92. United States vs. Blakeney, 3 Gratt. 405-11-13. (3) And contracts authorized by statute, as assignment for the benefit of creditors. People Ts. MulHn, 25 Wend. 698. (4) An infant can also make a valid contract to do what the law would compel him to do, as in a case where he has committed a tort. Here being liable in damages, he may make a valid contract to pay such damages. Ray vs. Tubbs, 50 Vt. 688. Nordholt vs. Nordholt, 26 Pac. 599. In this last case a minor induced his mother to convey land to him to hold in trust for his brother, promising his mother that he would convey the same to him. Afterwards, while yet a minor, he did convey the same land to his brother, intending ho.wever to subsequently disaflSrm it on the ground of infancy. Later he attempts to disaffirm this deed on the ground of infancy but the court says : "If the re- spondent took and held the legal title in trust for appellant, he cannot disaffirm or avoid his deed in execution of that trust on the ground of minority, since the execution of the trust v^as a duty which a court of equity w^ould have compelled him to perform notwithstanding his infancy." And in another case it was held that as an infant was bound under the statutes to maintain his illegitimate child, that his contract for necessaries suitable for tha,t child w^ould be a valid contract, the court saying: " Where an infant is under a legal obligation to do an act, he may bind himself by a fair and reasonable contract made for the purpose of dis- charging the obligation." People vs. Moores, 4 Denio 518. Prouty vs. Edgar, 6 la. 353. Starr vs. Wright, 20 Oh. St. 97. IN CONTRACTS. 17 The contracts hereinbefore mentioned, for necessaries, of marriage and enlistment and such others as are permitted by statute, comprise the valid agreements which the courts will enforce against an infant. To this extent he is able to con- tract as an adult, and all such contracts may properly be called valid ; while all others w^hich he may make are voidable. FURTHER DEDUCTIONS ANto DICTA. ac"iu^Mi ' -.w IN CONTRACTS. 19 YOID. An infant's contract, creating a power of attorney to con- -vey real estate, or to confess a judgment, and his contract of marriage before seven years of age, have been called void con- tracts. They are in fact contracts in form only, but are a nullity in essence. A void contract is no contract. Neither party, in the case of such agreements, is under any legal obli- gation arising out of the same. It seems, therefore, useless to speak of such agreements as contracts at all. And in the state of Minnesota an infant's power of attorney has been classed among the infant's voidable contracts. *Coursolle vs. Weyerhauser, 69 M. 328 ; 72 N. W. 697. «^rOIDABI.E. Having now considered an infant's valid contracts, and having seen that his so-called void contracts areno contracts at all, it follows that the proper classification of an infant's con- tracts is into those which are valid, and those w^hich are void- able; and we must now^ consider those which are voidable. (1) Voidable. A voidable contract is one which maj- be avoided, or disaffirmed by one or more of the parties. For the law applying to an infant's voidable contracts, we will con- sult the following cases : *Hunt vs. Peake, 5 Cowan, 475. *Goodsell vs. Myers, 3 Wend., 479. *Bigelow vs. Grannis, 2 Hill 120. *Henry vs. Root, 33 N. Y. 526. *Welch vs. Bunce, 83 Ind. 382. *Baker vs. Kennett, 54 Mo. 82. *D.ixon vs. Merritt, 21 Minn. 196. *Goodnow vs. Em. Lbr. Co., 31 Minn. 468. *Dawson vs. Helmes, 30, Minn. 107. *Logan vs. Gardner, 186 Pa. St. 588. McCarty vs. Woodstock Iron Co., 92 Ala. 463. Folds vs. Allardt, 35 Minn. 488. Bool vs. Mix, 17 Wend. 119. Weaver vs. Jones, 24 Ala. 420. Nightengale vs. Withington, 15 Mass. 271. 20 AUTHORITIES AND DEDUCTIONS Harner vs. Dipple, 31 Oh. St. 72. Owen vs. Long, 112 Mass. 403. Patchin vs. Cromach, 13 Vt. 330. Lawrence vs. McArter, 10 Oh. 38. *Stromberg vs. Rubenstein, 44 N. Y. S. 405. *Coursolle vs. Weyerhauser, 72 N. W. 697. Tucker vs. Moreland, 10 Pet. 56. Ctimmings vs. Powell, 8 Texas 80-88. Ferguson vs. Houston, etc., Ry., 73 Tex. 344. Gillespie vs. Bailey et al., 12 W. Va. 70. Hale vs. Gerrish, 8 N. H. 374. Carthy vs. Nicrosi, 72 Ala. 332. Walsh vs. Powers, 43 N. Y. 23. Irvine vs. Irvine, 9 Wall. 617-27. Ford vs. Phillips, 1 Pick. 202. Thompson vs. Lay, 4 Id. 47. Irvine vs. Irvine, 5 Minn. 61. ' Hastings vs. Dollarhide, 24 Cal. 195. Bozeman vs. Browning, 31 Ark. 264. McCormic vs. Leggett, 8 Jones N. C. 425. Stafford vs. Roof, 9 Co wen, 626. Roberts vs. Wiggin, 1 N. H. 73. Boody vs. McKenney, 23 Me. 517. Callis vs. Day, 38 Wis. 643. Ellis vs. Alford, 64 Miss. 8. Green vs. Green, 69 N. Y. 553. Craig vs. Van Bebber, 100 Mo. 584. Chandler vs. Simmons, 97 Mass. 508. Manning vs- Johnson, 26 Ala. 446. Kerr vs. Bell, 44 Mo. 120. Folts vs. Ferguson, 77 Tex. 301. *Shipman vs. Horton, 17 Conn. 481. Adams vs. Bcall, 67 Md. 53. Hoyt vs. Wilkinson, 57 Vt. 404. Towle vs. Dresser, 73 Me. 252. Willis vs. Twambly, 13 Mass. 204. Carr vs. Clough, 26 N. H. 280. Carpenter vs. Carpenter, 45 Ind. 142. Boody vs. McKenny, 23 Me. 517. Farr vs. Sumner, 12 Vt. 28. Dunton vs. Brown, 31 Mich. 182. IN CONTRACTS. 21 *Chapin vs. Shafer, 49 N. Y. 407. Cogley vs. Cushman, 16 Minn. 397. *Conrad vs. Lane, 26 Minn. 389. Merriam vs. Cunningham, 11 Cush. 40. Wieland vs. Kobick, 110 111. 16. Sims vs. Everhardt, 102 U. S. 300. *Miller vs. Smith, 26 Minn. 248. Price vs. Fiirman, 27 Vt. 268. Brandon vs. Brown, 106 111. 519. Chandler vs. Simmons, 97 IV^ass. 508. Green vs. Green, 69 N. Y. 553. Reynolds vs. McCurry, 100 111. 356. *Boyden vs. Boyden, 9 Mete. 519. *Gaffney vs. Hayden, 110 Mass. 137. Ray vs. Haines, 52 111. 485. Yehue vs. Pinkham, 60 ^e. 142. Whitmarsh vs. Hall, 3 Denio, 375. *Vent vs. Osgood, 19 Pick. 572. *Derocher vs. Continental Mills, 58 Me. 217. *Rush vs. Wick, 31 Oh. St. 521. Hunt vs. Peake, 5 Cowen 475. *Johnson vs. N. W. Mut. Ins. Co., 56 Minn. 365; 59 N. W. R. 992. ACTION ISSUE LAW FACTS DECISION ACTION X,.^, ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ESSUE LAW FACTS DECISION ACTION ISSUE LAW L«g|l l !l i < r ;ul FACTS DECISION ACTION ISSUE LAW i FACTS DECISION ACTION ISSUE ■ — — — #- LAW Mf.fjtjN^Ct j fc - FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS ft5«*~ DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISStfB LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ,.n IN CONTRACTS. 23 Deductions and Dicta from Cases Examined. From the foregoing cases, and others cited and examined, we deduce the following propositions respecting an infant's voidable contracts regarding realty, personalty, services, and his personal relations. Ratification. The voidable contracts of an infant may be ratified by him after he has attained his majority but not be- fore, it requiring the same degree of mental and legal capacity for him to render a voidable contract valid, as is reqtiired to make a valid contract in the first instance. Any attempt on the part of the minor before reaching majority to ratify his voidable contract wotild, of course, itself be voidable or a nullity. Goodsell vs. Meyers, 3 Wend. 479. Bigelow vs. Grannis, 2 Hill 120. How Ratified. The voidable contracts of an infant may be ratified by word of mouth, or by conduct ; and any acts or con- duct which are incojnsistent with an intent to disaffirm, are evidence of its ratification. "If after coming of age he retains the property for his own use, or sells or otherwise disposes of it, such detention, use, or disposition— which can be conscientiously done only on the assumption that the contract of sale was a valid one and by it the property becomes his own — is evidence of an intention to affirm the contract, from which a ratification may be inferred. Henry vs. Root, 33 N. Y. 526. Boyden vs. Boyden, 9 Mete. 519. (a) The various acts by which an infant, after coming of age, may evince an intention to ratify his voidable contracts, made while an infant, are of course innumerable. Thus, a minor having purchased a plow and after reaching majority retaining ^.nd using the same for two or three years, it was held that he had ratified the contract of purchase. Boyden vs. Boyden, 9 Mete. 519. (b) And, in another case, where an infant purchased land and gave his note for the purchase money and after reaching his majority continued in possession of the land, exercising N'V 24 ■ AUTHORITIES AND DEDUCTIONS over it acts of ownership and even selling a portion of it to other parties, it was held that he had affirmed the contract of purchase. Henry vs. Root, 33 N. Y. 526. Ratification — Effect of. Ratification of a voidable contract renders the same absolutely binding ab initio, and this is true whether the ratification is by express words or implied from conduct; and if an action is begun for its breach it must be upon the original contract. Hastings vs. Dollarhide, 24 Cal. 195. • Minock vs. Shortridge, 21 Mich. 303-315. Houlton vs. Manteuffel, 51 Minn. 185. Hall, et al. vs. Jones, et al., 21 Md. 439. Disaffirmance of Voidable Contracts. An infant may dis- affirm his voidable contract respecting realty, on the ground of infancy, after he has reached his majority but not before ; but his contracts respecting personalty, his personal services, and his various relations may be disaffirmed by him on that ground, either before or w^ithin a reasonable time after his majority. This difference between the rule respecting realty and that respecting the other subject matter of his contracts is fully recognized and maintained by the authorities. Inasmuch as the minor can, on reaching his majority, dis- affirm his contract for the sale of his land and claim all the rents and the profits, having arisen therefrom from the time of the sale until its disaffirmance, he is supposed to be sufficiently protected ; but as his personal property is perishable, the law has permitted him to disaffirm his contract respecting it, at any time, either before or within a reasonable time after cpming of age. Welch vs. Bunce, et al., 83 Ind. 382. Baker vs. Kennett, 54 Mo. 82. Shipman vs. Horton, 17 Conn. 481. Vent vs. Osgood, 19 Pick. 572. Derocher vs. Continental Mills, 58 Me. 217. Hunt vs. Peake, 5 Cowen 475. A minor may plead infancy in an action for goods sold the firm of which he was a member at the time of the sale. Folds vs. Allardt, 35 Minn. 488. . IN CONTRACTS. 25 When Disaffirmed. There is a conflict of authorities as to how long after reaching majority is allowed a person within which to disaffirm his former conveyance, on the ground of in- fancy at the time he executed it. Some cases have held that he might have the full statutory period of limitations within which to exercise his right ; but the modern rule, quite general- ly adopted in the staters of our Union, permits such former in- fants only a reasonable time after coming of age, within which to disaffirm his conveyance. Goodnow vs. Em. Lbr. Co., 31 Minn. 468. 37 Cent. Law Jour. §19 p. 378. Some cases hold that an infant's partnership agreement cannot be disaffirmed during his minority. Dunton vs. Brown, 31 Mich. 182. Mow Disaffirmed. These voidable contracts of an infant may be disaffirmed by him by any word or act w^hich clearly evinces to the other party that the infant totally renounces the contract ; and after reaching majority he must not only re- frain from any acts of affirmance, biit he must perform some positive act of disaffirmance. Dixon vs. Merritt, 21 Minn. 196. Chapin vs.. Shafer, 49 N. Y., 407. Vent vs. Osgood, 19 Pick. 572. (a) In the case of Dixon vs. Merritt, 21 Minn. 196, an in- fant having mortgaged his land did, after reaching his major- ity, convey the same land to another, which last deed of con- veyance was regarded as sufficient evidence of a disaffirmance of the mortgage. (b) And also in the case of Chapin vs. Shafer, 49 N. Y. 407^ it was held that a minor who, having mortgaged certain chattels, afterwards gave a bill of sale of the same chattels to another, did by that act of sale disaffirm the mortgage which he had before given. (c) And also in the case of Vent vs. Osgood, 19 Pick. 572, a minor, w^ho had contracted to make a sea voyage and while on the voyage deserted the ship and refused to go further, did by such act of desertion clearly evince his intention not to stand by his former contract, and he thereby disaffirmed it. 26 AUTHORITIES AND DEDUCTIONS Formerly it was held that the act of disaffirmance 'must be of the same solemn character as the original act which was' to be disaffirmed, i. e., if the original contract was a deed it could only be disaffirmed by a deed ; but now, a formal notice of dis- affirmance, or any act evincing a purpose to disaffirm, is, as already stated, sufficient. Heath vs. West & A., 26 N. H., 191196. Vallandingham vs. Johnson, 85 Ky. 288. Scranton vs. Stewart, et ah, 52 Ind. 68-93. Peterson vs. Laik, 24 Mo. 541. Haynes vs. Bennett, 53 Mich, 15., Dixon vs. Merritt, 21 Minn. 196. White vs. Flora and Cherry, 2 Overt. (Tenn.) 426. Return of Consideration. The former infant may disaffirm his conveyance, on the g,round of infancy, without placing his grantee in statu quo by returning the consideration or other- wise, and the same rule holds true in regard to his contract respecting personalty. The mere act of disaffirmance does not require the return of the consideration, which the minor has re- ceived, nor even an offer to return it, as a condition precedent to such act of disaffirmance; but as a general rule, if the minor has the consideration in specie and he brings an action to re- cover that which he has parted w^ith, the courts will require that he return to the defendant that which he received ; but if he has lost that, which he received or has squandered it, or if he has disposed of it in any way before reaching his majority, he may, nevertheless, recover that which he seeks without a re- turn of that which he has received, according to the weight of common law authority. Dawson vs. Helmes, 30 Minn. 107. Conrad vs. Lane, 26 Minn. 389. Miller vs. Smith, 26 Minn. 248. Carpenter vs. Carpenter, 45 Ind. 142. The question as to the return of the consideration arises in various w^ys : (a) If the voidable contract is executory on both sides, then the question as to the return of the consideration cannot arise, upon disaffirmance by the infant, and, more than this. IN CONTRACTS. 27 such disaffirmance discharges both parties — the infant and the adult — from all obligation and liability. Hunt vs. Peake, 5 Cowen 475. Rush vs. Wick, 31 Oh. St. 521. (b) If the contract be executed, however, by the infant (as where the infant has delivered the property sold by him, or has paid the money which the contract calls for), but executory on the part of the adult, then the infant may recover his property so parted with, or the reasonable value of his services, or thfe restoration of his money, upon the disaffirmance of his con- tract. In such case, also, the question as to the infant's return of the consideration received cannot arise, for he has received none. Gaffiiey vs. Hayden, 110 Mass. 137. Vent vs. Osgood, 19 Pick. 572. Derocher vs. Continental Mills, 58 Me. 217. Robinson vs. Weeks, 56 Me. 102. (c) If the contract has been executed by the adult, as where he delivers goods or money to the minor, and the minor only responds in an executory promise to pay therefor ; then the minor may avoid the contract, but if he still has the prop- erty received, in specie, he must surrender it or the adult may gain possession of it by action. Bloomer vs. Nolan, 36 Neb. 51 ; 53 N. W. 1039. In this last case an adult had sold and delivered building material to a minor, for which the minor had not paid, and in an action to recover upon a mechanic's lien the minor set up infancy, and the court said : " The rule is well settled that one w^ho seeks to avoid a contract, on the ground of infancy, will be required to make restitution only of so much of the consid- eration as is retained by him when he attains his majority, or when he elects to disaffirm. The law, which is designed to pro- tect the'young and inexperienced, would be ineffectual if an in- fant were required as a condition of relief to return an equiva- lent of the property wasted or squandered." But if the minor declines to pay for the property which he has received, and for which he has given his promise to pay, the adult may replevy that property, if the minor has it in specie; if not the adult is without remedy. Tyler on Infancy, § 37. 28 AUTHORITIES AND DEDUCTIONS If the minor has exchanged the property he received for other property, or if he has lost that which he has received but still has other property, must he return an equivalent for what he received from the adult? The weight of authority is to the eiFect that he need not return an equivalent. Harvey vs. Briggs, 10 L. R. A. 62. Brantley vs. Wolf, 60 Miss. 420. In this last case the court says : " If the minor has. lost or squandered the consideration, during minority, it is nothing more than the law^ expects of him, and he cannot be required to purchase the right of reclaiming his own by still further ab- stractions from his estate. Such a rule would practically strike down the shield which the law^, by reason of his inexper- ience and youth, throws around him." Ewell's Leading Cases, 126. Mustard vs. Wohlford's heirs, 15 Qratt. 329. Manning vs. Johnson, 26 Ala. 446. (d) If the contract is executed on both sides, as where the ' adult delivers property to the minor for cash or other prop- erty, then, if after disaffirmance the minor would reclaim the property which he delivered to the adult, he must restore to the adult what he got if he has it in specie, if not the adult is without remedy. Green vs. Green, 69 N. Y. 553. In this case, a minor sold a farm to his father, receiving cash, and having spent it before he reached his majority, and having no other property with which to replace it, the court permitted the former minor to recover his farm. Carpenter vs. Carpenter, 45 Ind. 142. In this case, a minor entered into a horse trade with an adult, giving to the adult a gelt horse in exchange for a stal- lion. It would seem from the case that the plaintiff, a minor, injured the stallion and afterwards rescinded his_ contract and demanded the return of the horse with which he' parted. The court says respecting the rights of the parties : " We have con- cluded, upon looking into the question, that the plaintiff was not bound to make any tender at all of the stallion before he could maintain his action (for the value of the horse he parted IN CONTRACTS. 29 with). Upon the avoidance of the contract by the plaintiff the case stood as if none had been made, and his right to the pos- session of his gelding, or the value of him, became at once com- plete and perfect. Upon the avoidance of the contract, the plaintiff still having the stallion, the defendant became without doubt entitled to him, whatever condition he m^ght be in, but it does not follow that the plaintiff -was bound to make a ten- der of him before bringing his action. If the stallion received injury while in the possession of the plaintiff the remedy of de- fendant therefor, if the law furnishes any remedy, is an action for the tort. Says Mr. Parsons, 'if during infancy he has de- stroyed or parted w^ith the property purchased before demand made for it subsequent to his disaffirmance, the seller, as we have said, may be remediless; unless possibly he does it in such a way, or under such circunistances, as to amount to a tort. But if he destroys or disposes of the property after com- ing of age, this must be regarded as a confirmation of the con- tract.' " Tucker vs. Moreland, 10 Peters 58-74. Chandler vs. Simmons, 97 Mass. 508. Price vs. Furman, 27 Vt. 268. Craig vs. Van Bebber, 100 Mo. 584. Lacy vs. Pixler, 25 S. W. 206. False Representation as to Age. The fact that an infant falsely represents that he is of full age, will not render his con- tract valid, nor will it in law estop him from avoiding the con- tract, though it may perhaps constitute a cause of action for a tort. Carpenter vs. Carpenter, 45 Ind. 142. Conrad vs. Lane, 26 Minn. 389. Rice vs. Boyer, 9 N. E. R. 420. Effect of Disaffirmance. The effect of disaffirmance, on the ground of infancy, is to annul the contract on both sides ab initio, and the parties revert to the same situation as if the contract had not been made. If, for instance, a minor refuses to pay the price for goods he has purchased, as he may do, this annuls the contract of sale, and the title to the goods reverts at once in the vendor. So in regard to real estate, if he pur- chases real estate and the conveyance transferring the title to 30 AUTHORITIES AND DEDUCTIONS him is subsequently disaffirmed on reaching majority, ipso fac- to the title to the land revests in the infant's former grantor. Boyden vs. Boyden, 9 Met. 519. Mustard vs. Wohlford's heirs, 15 Grat. 329. Hoyt vs. Wilkinson, 57 Vt. 404. French vs. McAndrew, 61 Miss. 187. McCarty vs. Woodstock Iron Co., 92 Ala. 463. Personal Privilege. Disaffirmance by an infant is a person- al privilege, and cannot be taken advantage of bj' a stranger. Alsworth vs. Cordtz, et al., 31 Miss. 32. Disaffirmance Cannot be Witlidrawn. If after majority the infant ratifies his contract, he cannot afterwards disaffirm it; and if he disaffirms, a.fter majority in case of real estate, and any time in case of personal property, he cannot after- wards evade his disaffirmance and ratify. McCarty vs. Woodstock Iron Co., 92 Ala. 463. Disaffirmance in Toto. A disaffirmance goes to the whole contract, and if a part is disaffirmed the whole must be. A party cannot avoid that part of the contract which is unfavor- able to himself, and ratify the other part which may be of an advantage to him. Cogley vs. Cushman, 16 Minn. 397. Heath vs. West & A., 8 Foster, 101. French vs. McAndrew, 61 Miss. 187. Trover for Destruction of Property. While an infant is liable for his torts generally, yet the breach of his contract will not be treated as a tort, so as to make him liable. Jennings vs. Rundall, 8 Term Rep. 336. In the last mentioned case a minor hired the plaintiff's mare for a ride, and in the course of the journey an accident happened whereb3' the mare was injured ; whereupon the plaintiff brought an action for damages, and the court refused to entertain such action. But there is a recognized distinction between torts con- nected with a contract and torts independent of a contract ; and it has been held in a recent case, " that the only logical and defensible conclusion is that he is liable to the extent of the loss actually sustained for his tort, where a recovery can IN CONTRACTS. 31 be had without giving effect to the contract. The test, and the only satisfactory test, is supplied by the answer to the ques- tion, Can the infant be held liable without directly or in directly enforcing his contract?" Rice vs. Boyer, 9 N. E. 420. Recapitulation. Englebert vs. Troxell et. al., 58 N. W. 852. The opinion in the above entitled action is an extensive and quite accurate recapitulation of the essential principles connected with the voidable contracts of infants, as will be seen from the syllabus, which is as follow^s : 1. All contracts of an infant, except those for necessaries, are voidable by him, at his election, made within a reasonable time after he becomes of age. 2. The validity of a contract made by an infant does not depend upon a ratification thereof by him after his minority ends; but, to invalidate such contract, he must, by some act clear and unmistakable in its character, disaffirm the same. 3. The bringing of a suit in equity by a party to cancel a deed made by him while a minor, and on that ground, is an unequivocal and sufficient disaffirmance of such deed. 4. What is a reasonable time for one, after becoming of age, to disaffirm a contract made by him during his minority, is a mixed question of law and fact, to be determined from the cir- cumstances of each particular case, 5. The meaning of the term "necessaries" cannot be de- fined bj' a general rule applicable to all cases. The question is a mixed one, of law and fact, to be determined in each case from the particular facts and circumstances in such case. 6. Under the evidence in this case, held, that services per- formed by the guardian ad litem of an infant in defending a suit brought to foreclose a real estate mortgage executed by the infant's ancestor, were not necessaries. 7. One who seeks to disaffirm a contract on tiie ground that he was an infant at the time of its execution is required to return so much of the consideration received by him as re- mains in his possession at the time of such election, but is not required to return an equivalent for such part thereof as may have been disposed of by him during his minority. (36 Neb. 51 followed). 32 AUTHORITIES AND DEDUCTIONS 8. An infant conveyed his real estate to one "P" in consid- eration of $240 in cash paid by "P" to the infant's father. The father purchased a piano for the infant with the money. The infant, on coming of age, had in his possession the piano,, and disaffirmed the deed. Held, that the quondam infant, as a condition precedent to his right to disaffirm the deed, was under no legal obligation to tender or surrender the piano to "P," nor repay "P" the money which he had paid the infant's father. 9. A deed made by an infant to his guardian ad litem in consideration of services rendered or to be rendered by him as such guardian ad litem is voidable, at the election of such in- fant, on his becoming of age. 10. The statute makes it the duty of an attorney atlaw^ to act as the guardian ad litem of an infant in any suit pend- ing against him, when appointed for that purpose by an order • of the court; and for performing the duties of an attorney ad litem the attorney must look, and look only, for the amount of his compensation, to the court. The compensation allowed the attorney as guardian should be taxed as part of the costs in the proceeding, and collected as such, and no other, differ- ent, or greater amount can be collected than that so allow^ed. Minnesota Doctrine. The preceding doctrines regarding an infant's voidable contracts have been modified in Minne- sota by the decision in the case of Johnson vs. N. W. Mutual Life Ins. Co., 56 Minn. 365 ; 59 N. W. R. 992. In this case an infant took out a policy on his own life in the N. W. Mut. Life Ins. Co. for the sum of $1,000, and in con- sideration he paid a premium of $23.29 and semi-annually a like sum until he reached his majority, having made eight semi- annual payments amounting to $186.32. On reaching major- ity he gave the company notice in writhing that he had become of age, and that he elected to avoid the contract of insurance and offered to return the policy to thecompany, and demanded the return of the moneys which he had paid, which the com- pany refused to return to him, and for the recovery of this money he brings this action. On a re-argument of this case, the question considered was simply this : " Can the plaintiff recover back what he has paid, assuming that the contract was in all respects fair and reason- IN CONTRACTS. 33 abje?" And after a fair and thorough examination of the cases the judge gives the majority opinion of the court in this language: "Our conclusion is that where the personal contract of an infant, beneficial to himself, has been wholly or partly executed on both sides, but the infant has disposed of w^hat he received, or the benefits recovered by him are such that they cannot be restored, he cannot recover back what he has paid, if the contract was a fair and reasonable one and free from any fraud or bad faith on the part of the other party, but the bur- den is on the other party to prove that such w^as the char- acter of the contract; that if the contract involve elements of actual fraud or bad faith the infant may recover all he paid or a part of it, but if the contract involve no such elements and w^as otherwise reasonable and fair, except that what the infant paid w^as in excess of the value of what he received, his recov- ery should be limited to such excess. It seems to us that this will sufficiently protect the infant, and at the same time do jus- tice td the other party." In this case the infant was allowed to recover, upon the ground that the company had not sufficiently proved that its contract was fair and reasonable, and that the defendant had entered into it in good faith in all respects with the infant. To the samegeneral effect is the holdingin Adams vs. Beall, 6 Atl. 644. Rights of Innocent Third Parties. When an infant sells either real or personal property and it passes from the hands of his vendee into the hands of an innocent third party, the in- fant may nevertheless disaffirm his contract in accordance with the previous rules and retake the property. (a) Real Estate. Jenkins vs. Jenkins, 12 la. 195. Miles vs. Lingerman, 24 Ind. 385. Sims et al. vs. Smith et al., 86 Ind. 577. (b) Personalty. Downing vs. Stone, 47 Mo. App. 144. In this last case one Downing exchanged with one H. a mare for certain patent rights, $45 in cash, and an order for some patent churns. Subsequently H. sold the mare to one 34 AUTHORITIES AND DEDUCTIONS Stone, who did not know of Downing's infancy and who gave value for the mare. Before maturity Downing rescinded the contract with H., tendered him the $45 and the other property which he had received, and demanded the mare. H. refused the tender and then Downing brought action against Stone for the conversion of the mare, he having refused to give her up. Thecourt held in this case the following. (1) Disaffirmance was rightly made to H., with whom Downing had contracted, and not to Stone, who had themare. (2) That Downing could follow the mare into the hands of an innocent third party and rightfully claim it as his own, and (3) That it was not necessary to tender anything to Stone. FURTHER DEDUCTIONS AND DICTA. IN CONTRACTS. 35 PERSONS NON COMPOS MENTIS. A second class of persons whom the law disqualifies in part from entering into valid contracts consists of those who are known as non compos mentis, i. e., persons who have not a competent measure of mental power to understand the nature and effects of their agreements, and whom the law therefore protects as it does infants by regarding their so-called con- tracts valid or voidable as the case may require. Persons with no reason whatever can, of course, make no agreement, because an agreement consists in the assent of two or more minds to the same thing; but persons that have a cer- tain degree of mental power, but who are incapacitated by in- sanity ^lunacy, drunkenness, weakness of mind from old age and other causes, may enter into the form of a contract with some degree of understanding perhaps, but not with a sufficient de- gree to comprehend the nature and effects of their agreements, and consequently such incapacitated persons are held by the law to be incapable of making valid contracts generally, as persons of sound mind are permitted to do. As we shall see hereafter, their agreements in form are not contracts, but only quasi-contracts. We shall now consider in order those persons known as noa compos mentis whosic agreements may ripen into con- tracts, either valid or voidable according to the capacity, the conditions and circumstances of the person aflfected with such infirmity. And for the purpose of ascertaining how far such persons may make contracts we shall examine the following cases. *LaRue vs. Gilkyson, 4 Pa. St. 375. *Lancaster Bank vs. Moore, 78 Pa. St. 407. *Allis vs. Billings, 6 Met. 415. *Hovey vs. Hobson, 53 Me. 451. *Arnold vs. Richmond Iron Works, 1 Gray 434. *Boyer vs. Berryman, 123 Ind. 451. *Dexter vs. Hall, 15 Wall. 9. *Inh., Middleborough vs. Rochester, 12 Mass. 364. Burnham vs. Kidwell, 113 111. 425. *Henderson vs. McGregor, 30 Wis. 78. *Stone vs. Wilbern, 83 111. 105. 36 AUTHORITIES AND DEDUCTIONS *Brown vs. Fisher, 4 John. Ch, 440. *Gore YS. Gibson, 13 M. &. W. 623. *Carpenter vs. Rogers, 61 Mich. 384. *Williams vs. Inabnet, 1 Bailey 343. *Joest vs. Wilhams, 42 Ind. 565. *Wadsworth vs. Sharpsteen, 8 N. Y. 388. Abbott vs. Creal, 56 la. 175. Mattiiiessen vs. McMahon, 38 N. J. L. 537. Shoulters vs. Allen, 51 Mich. 529. Young vs. Stevens, 48 N. H. 133. Lilly vs. Waggoner, 27 111. 395. Carrier vs. Sears, 4 Allen 336. Hallett vs. Oakes, 1 Cush. 296. Valpey vs. Rea, 130 Mass. 384. Howe vs. Howe, 99 Mass. 88. Gibson vs. Soper, 6 Gray 279. Scanlan vs. Cobb, 85 111'. 296. Eaton vs. Eaton, 37 N. J. L. 108. Griswold vs. Butler, 3 Conn. 227. Wait vs. Maxwell, 5 Pick. 217. • VanDeusen vs. Sweet, 51 N. Y. 378. In re'Desilver, 5 Rawle 111. Farley vs. Parker, 6 Ore. 105. Buckey vs. Buckey, 18 S. E. 383. Bush vs. Breinig, 113 Pa. St. 310 ; 6 Atl. 86. Reinskopf vs. Rogge, 37 Ind. 207. Flach vs. Gottschalk, 41 Atl. 908. Haines vs. Scott, 54 N. Y. S. 844. Hosier vs. Beard, 43 N. E. 1040. *Molton vs. Camroux, 6 Eng. Rul. Cases, 71. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION .-44^,^ ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION LSSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION [SSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LA"^ FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW . FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 37 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined we deduce the following propositions regarding the contracts which may be entered into by persons non compos mentis. Valid Contracts. (1) All persons belonging to this class, if not under guardianship, may make valid contracts for neces- saries, and what are necessaries may be determined by the sta- tion, estate, conditions and circumstances of the infirm person. La Rue vs. Gilkyson, 4 Pa. St. 375. Van Horn vs. Hann, 39 N. J. L. 207. (2) This class of persons may also make valid contracts for necessaries, even though they are under guardianship, if the guardian fails or neglects to provide such necessaries for them. Sawyer vs. Lufkin, 56 Me. 308. Sceva vs. True, 53 N. H. 627. (3) When persons non compos mentis enter into aconti-act with other persons, and such other persons do not know of their infirmity, and such infirmity has not been judicially de- clared, and such contract is in all ways fair and reasonable and so far executed that ttie parties cannot be put in statu quo, then such an agreement cannot be disaffirmed by the in- firm party, and consequently it is a valid and binding contract, Lancaster Bank vs. Moore, 78 Pa. St. 407. Schaps vs. Lehner, 54 Minn. 208. Gribben vs. Maxwell, 34 Kan. 8; 7 Pac. 584. Young vs. Stevens, 48 N. H. 133. Molton vs. Camroux, 6 Eng. Rul. Cases 71. Flach vs. Gottschalk Co., 41 Atl. 908. Fay vs. Burditt, 81 Ind. 433. Some coiirts go so far as to say that even if the parties can be put in statu quo, and the insane party offers to return all that he received, yet if the contract has been wholly executed it will not be set aside at the instance of the insane person and hence it is valid. Rhoades vs. Fuller, 40 S. W. R. 760. Haines vs. Scott, 54 N. Y. S. 844. 38 AUTHORITIES AND DEDUCTIONS But there are other cases, not now generally followed, which hold that even if the sane party does not know of the other's insanity, and has dealt fairly with him, yet the party of unsound mind may avoid the contract even Ayithout return- ing the consideration, on the ground that the ignorance of the sane party cannot make up for the incapacity of the insane one. Gibson vs. Soper, 6 Gray 279. Rea vs. Bishop, et. al., 59 N. W. R. 555. Hovey vs. Hobson, 53 Me. 451. Voidable Contracts. All the other conti-acts entered into by persons non compos mentis are regarded by the law as voidable. (1) If a party enters into an agreement with an insane person know^ing of his insanity at the time of the transaction, such contract may be avoided by the insane person, his heirs and legal representatives, without putting the other party in statu quo. Crawford vs. Scovell, 94 Pa. St. 48. Gibson vs. Soper, 6 Gray 279. (2) Theexecuted contract of aperson non compos mentis, made in good faith on the part of the other party, is neverthe- less voidable If the insane person can and w^ill put- the other party in statu quo. Schaps vs. Lehner, 54 Minn. 208. (3) A promissory note signed by a person under such dis- ability, though negotiable in form, is not protected in the hands of bona fide holders for value against the defense of in- sanity. The purchaser takes such note charged with notice of the maker's disability. Hosier vs. Beard, et. al., 43 N. E. 1040. Ratification— When. The insane party, within a reason- able time after restoration to soundness of mind, may either ratify or disafl&rm his voidable contracts. Arnold vs. Richmond Iron Works, 1 Gray 434. Cummings vs. Henry, 10 Ind. 109. Ratification— How. The ratification, or disaffirmance, by an insane person after his restoration, may be effected by any IN CONTRACTS. 39 words or acts which evince clearly his purpose to stand by hig contract or to annul it. Hovey vs. Hobson, 53 Me. 451. Arnold vs. Richmond Iron Works, 1 Gray 434. It is the act of disaffirmance which destroys the voidable contract, and not the proceedings which may be taken to give force and eflfect to the disaffirmanpe after it has been made. Ashmead vs. Reynolds, 127 Ihd. 441 ; 26 N. E. 80. Louisville Ry.Co. vs.Herr, 135 Ind. 591; 35 N. E. 556. Effects of Disaffirmance. (1) The effect of the disaffirm- ance of such contracts, upon the parties themselves, is to leave them in the same relation to each other, respecting their prop- erty rights, as they would have been had no such contract ever been made. (2) The effect of such disaffirmance as to third persons, even bona £de purchasers of the property, is to authorize the insane person, his heirs or legal representatives, to retake such property as though no original contract had been made. Hovey vs. Hobson, 53 Me. 451. Tucker vs. Moreland, 1 Am. Lead. Cases, 225-259. Somers & A. vs. Pumphrey et. al., 24 Ind. 231-238. Dewey vs. Algire et. a^., 55 N. W. R. 276, But some courts have held that buying land from an in- sane person is a fraud upon him, and therefore that third par- ties are protected against him when his original contract is disaffirmed ; but the cases seem to overlook the important fact that while there may be fraud on the part of the sane party, the insane person has no capacity to guard against the fraud. Odom et. al; vs. Riddick et. al, 7 L. R. A. 118. Void. While we have seen in the case of iufdnts and also in the case of persons tion compos mentis that their so-called void contracts are no contracts at all, yet we find many cases considering what the judges term void contracts, and there are many of them, especially in connection with persons non compos mentis. (1) Such a person's contracts are declared tobevoid when the person is legally under the guardianship of another. Wadsworth vs. Sharpsteen et. al., 8 N. Y. 388. Carter vs. Beckwith et. al., 128 N. Y, 312. 40 AUTHORITIES AND DEDUCTIONS (2) So the power of attorney executed by a person non compos mentis has been declared to be void. Dexter vs. Hall, 15 Wall. 9. (3) So in some States, the deed of an insane person has been held to be absolutely void. In Re Desilver, 5 Rawle 111. Farley vs. Parker, 6 Ore. 105. Van Deusen vs. Sweet, 51 N. Y. 378. (4) The marriage contracts of persons non compos mentis are held to be void, and children born of such a marriage are illegitimate. Inhab. of Middleborough vs. Inhab. of Rochester, 12 Mass. 364. (5) And it has been held that no action is necessary to annul such marriage contract in order to restore the parties to their original position . Yet it may be wise to have it annulled in order to protect property rights. Rawdon vs. Rawdon, 28 Ala. 565. Town of Mountholly vs. Town of Andover, 11 Vt.226. Inhab. of Goshen vs. Inhab. of Richmond, 4 Allen 458. The contracts of marriage being held absolutely void, they cannot of course be ratified. Ward ct al. vs. Dulattey et al., 23 Miss. 410-33. Contra Cole vs. Cole, 5 Sneed (Tenn.) 57. 1 Bish. Mar. & Div. 139. But by statute in some states such marriages are made voidable, and hence must be set aside. Wiser and wife vs. Lockwood's Est., 42 Vt. 720. General Statements. Where the guardianship of a person has been practically abandoned, though not officially, and the ward contracts after becoming sane, such agreement has been held to be binding notwithstanding the guardianship. Thorpe et al. vs. Hanscom et al., 66 N. W. R. 1. Elston vs. Jasper, 45 Tex. 409. IN CONTRACTS. 41 Torts. Persons non compos mentis are, like infants, re- sponsible for their torts. Morse vs. Crawford, 17 Vt. 499. Lucid Interval. If the insane person has a lucid interval, his contract made during such interval is, of course, valid, so far as the question of his capacity can affect it. Lilly vs. Waggoner, 27 111. 395. Monomania. And if the party is insane on one subject only and is sane upon other' subjects, he may contract respecting the latter while he would be disqualified from doing so in matters pertaining to the former subject. Lozear vs. Shields. 23 N. J. E. 509. Burgess vs. Pollock, 53 la. 273. West vs. Russell, 48 Mich. 74. Riggs vs. km. Tract Society, 95 N. Y. 503. Drunkards. It is generally conceded that a drunkard's contracts for necessaries are valid ; and by analogy and some dicta it also seems that a contract made by a person in a, state of intoxication, which intoxication is unknown hj the other party and the intoxicated person has been dealt fairly with and is not under guardianship at the time that the contract w^as made, w^ill not be set aside at the instance of the drunk- ard unlesS' he can and will put the other party in statu quo. In other words the rule applicable to insane persons applies to intoxicated persons, and hence the drunkard's contract made under such circumstances, where the sober party cannot be put in statu quo, is valid and hence will not be set aside by the court. Youn vs. Lamont, 56 Minn. 216. But if land, conveyed by a person while intoxicated, passes into the hands of an innocent third party, such innocent party will be protected by the courts, the case being analogous to the one where a person through fraud or duress is induced to convey land which subsequently comes into the hands of inno- cent third parties. Youn vs. Lamont, 56 Minn. 216. Deputy vs. Stapleford and Willis, 19 Cal. 302. 42 AUTHORITIES AND DEDUCXIONS In the case of the voidable contracts of a drunkard, before he can recover his property, he must rescind his contract by returning or offering to return the consideration which he re- ceived. Carpenter vs. Rogers, 61 Mich. 384. Bush vs. Breinig, 113 Pa. St. 310 ; 6 Atl. 86. McGuire vs. Callahan, 19 Ind. 128. Joest vs. Williams, 42 Ind. 565. But a, contract made by a person so intoxicated as not to know^ vsrhat he is doing, whereby the other party with knowl- edge of the drunkard's condition and for a grossly inadequate consideration gets possession of the drunkard's property, will be set aside in equity ; and if without any fault of the drunkard he is unable to restore the consideration, provision for its re- payment may be made in the final decree, but the return of said consideration is not a condition precedent to his recover- ing what he has parted with. Trackrah vs. Hass, 119 U. S. 499. Query: Suppose the drunkard, in such contract, wastes the money he receives before becoming sober, and has no other property. Shall the drunkard stand the loss, or the sober party, who put the money into the drunkard's hands knowing him to be drunk at the time ? FURTHER DEDUCTIONS AND DICTA. ^ IN CONTRACTS. 43 ALIENS AND OTHERS. Besides infants and the various classes of persons non com- pos mentis and drunkards, the common law also disqualified aliens to a certain extent from entering into contracts with citizens of another state; and also the common law disquali- fied married women, outlaws, persons attainted, persons ex- communicated, convicts, and some others, from making valid contracts. How far these parties are disqualified by common law and statute we shall learn from examining the following cases : *Taylor vs. Carpenter, 3 Story's Rep. 463. *Scholefield vs. Eichelberger, 7 Peters 586. *McCrillis vs. Bartlett, 8 N. H. 569. *Tra.cy vs. Keith, 11 Allen 214. *N. W. Mut. Life Ins. Co. vs. Mary C. Allis, 23 Minn. 337. Flynn vs. Messenger, 28 Minn. 208. Wagner vs. Nagel, 33 Minn. 348. Bergh vs. Warner, 47 Minn. 250. Farrar vs. Bessey and wife, 24 Vt. 89. Griswold vs. Waddington, 16 John. 438. Ins. Co. vs. Hillyard et al., 37 N. H. 444. Zacharie vs. Godfrey et al. Admr's., 50 111. 186. Cohen vs. Ins. Co. 50 N. Y. 610. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE EAW FACTS DECISION ACTION ISSUE LAW FACTS DE(p:SION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS - — kit^. DECISION ACTION ISSUE LAW FACTS DECISION ,^^^^, IN CONTRACTS. 45 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined we deduce the follo\sring propositions : Alien Friends, (a) As a general role alien friends may contract on the same basis as citizens, and the protection of the courts is afforded them. (b) Alien friends could not hold real estate at the common law except to a very limited extent, but that matter is now generally regulated by statute in the states of the American republic. Alien Enemies, (a) The doctrine is not to be questioned at this day that, "during a state of hostilities the citizens of the hostile states are incapable of contracting with each other." (b) Whether an alien enemy can make a valid contract for necessaries, or for money to enable him to get to his own coun- try, has not been authoritatively settled. (c) All commerce and voluntary intercourse between cit- izens of the insurrectionary states and districts of the Union during the recent civil war were suspended and any acts of in- tercourse inconsistent with the state of hostilities were unlaw- ful. Married Women, (a) At the common law as a general rule, w^ith some exceptions, the attempted contract of a married w^oman was absolutely void. Jackson vs. Vanderheyden, 17 John. 167. Tracy vs. Keith. 11 Allen 214. Smith vs. Plomer, Sheriff, 15 East 607. Morris and wife vs. Norfolk & A., 1 Taunt. 212. Howe & Al. vs. Wildes et Ux., 34 Me. 566. Pond vs. Carpenter & Al., 12 Minn. 430. (b) It has also been held that it makes no difference whether she is living with her husband Or not ; but where the husband compels the wife to live separate from him, by aban- doning her or forcing her away, and such separation is perma- nent and the wife is unprovided for by the husband, it has been 46 AUTHORITIES AND DEPUCTIONS held that she might contract in regard to her personal services and property. Harris et al. vs Taylor, 3 Sneed (Tenn.) 536. Love et al. vs. Moynehan, 16 111. 277. (c) If the wife has wilfully deserted her husband and is living in open adultery with another person, this fact even will not render her contracts valid ; and if after her husband's death she promises to pay the debt she so endeavored to contract, the promise is without consideration and will not be enforced. A void contract cannot be ratified. Meyer vs. Haworth, 8 Adolph & Ellis 467. (d) But where, however, the husband deserts his wife ab- solutely and leaves the state, it has been held in this country quite generally that she might then contract, sue, and be sued as a single woman. Gregory vs. Pierce,- 4 Mete. 478. Cheek vs. Bellows, 17 Tex. 613. Rogers vs. Phillips & wife, 8 Ark. 366. (e) If she receive money by gift or in payment for her services and lend it, her husband and not she herself has a right to recover it ; and so if she sell anything her husband has a right to recover the price. "In general whatever she earns is as a servant and for him, for in law her time and her labor as well as her money are his property." Legg vs. Legg, 8 Mass. 99. Winslow vs. Crocker & Trustee, 17 Me. 29. McDavid et al. vs. Adams, 77 111. 155. Yopst vs. Yopst, 51 Ind. 61. (f) And it has been held that the proceeds of their joint labor belong to the husband and not to the wife, extending even to her personal apparel purchased with the earnings of both parties. Reynolds vs. Robinson et al., 64 N. Y. 589. Hawkins vs. Providence & Worcester Railroad, 119 Mass. 596. (g) But while al; the common law as a general rule mar- ried women could not make valid contracts, the various states IN CONTRACTS. 47 of the Union have generally emancipated her from this disabil- ity, and now allow her to contract in most cases as though she w^ere a single woman. N. W. Mut. Life Ins. Co. vs. Allis, 23 Minn. 337. Gen. St. '73 c. 69, § 2. Outlaws. Outlaws, persons attainted, and persons ex- communicated, were at the common law disqualified in part at least from making valid contracts; but such persons not being known in our country this common law disability need not be considered. 1 Parsons on Contracts, § 423. Seamen. The United States has passed laws for the protection of seamen, securing to them certain rights and priv- ileges, and practically disqualifying such persons from con- tracting in violation of the rights so secured. 1 Parsons on Contracts, § 427. Metcalf on Contracts, § 111. U. S. Rev. St., § 4509 et seq. Convicts. It has been stated by some authors that a person convicted of treason, or felony, w^as at common law in- capable of making valid contracts during the continuance of his conviction, and that his contracts made previous to his conviction could not be enforced by him, but that they might be enforced by an administrator appointed for the purpose by the crown. But this does not seem to be the case in the United States, where the matter is generally regulated by state con- stitutions and legislation. Platner vs. Sherwood et al., 6 John. Ch. 118. In re Estate of Nerac, 35 Cal. 392. Willingham et al. vs. King et al., 2 So. 851. The Dade Coal Co. vs. Haslett, 83 Ga. 549. ■ A convict in prison under a proper sentence may in the ab- sence of any statutory restrictions enter into contracts, and sue or be sued thereon ; but m some states where it is provided that a person under sentence is deprived of his civil rights, or is civilly dead, he will be incapable of making contracts, or of suing or being sued. Willingham et al. vs. King et al., 2 So. 851. Williams et al. vs. Shackleford, 11 S. W. 222. 48 AUTHORITIES AND DEDUCTIONS In Minnesota a life sentence robs a person of all his civil rights, except that his person is protected by law ; from which it would follow that a person sentenced for life in the peniten- tiary would be incapable of contracting, but that persons sen- tenced for a terra less than life wpuld not be affected w^ith that disability. Minn. Penal Code, § 526-27. • Corporations. Public and private corporations, called artificial persons, and joint-stock companies are authorized by statute to make contracts under certain circumstances and within the extent of his statutory permission they are enabled to contract, to sue and be sued. How far these artificial per- sons are permitted to contract will be considered when these subjects are brought before the class for investigation. FURTHER DEDUCTIONS AND DICTA. _...i..,,.- IN CONTRACTS. 49 PART II. ASSENT. An agreement implies parties and also the mutual assent of those parties to the same thing in the same sense. Having considered what persons can enter into agree- ments, we will now consider the assent of those parties essen- tial to a contract. In the formation of a contract there must be an offer from one party, accepted in every particular by the other. This oflfer and acceptance constitute the assent of the parties; and this assent must be mutual, free. from fraud, duress, mistake, and other vitiating facts, and also concurrent. We will con- sider these three characteristics of that assent, necessary in the creation of a contract. MUTUAL ASSENT. By mutual assent is meant the meeting of the minds of the parties to the same thing in the same sense ; and for the va- rious doctrines of assent, and the rules of law governing offers and acceptances, we will consider the following cases : *Bruce vs. Bishop, 43 Vt. 161. *Minn. etc. R. R. Co. vs. Mill Co., 119 U. S. 149. *Bruce vs. Pearson, 3 Johns. 534. *EsmaY vs. Gorton, 18 111. 483. *McClurg vs. Terry, 21 N. ]. Eq. 225. *White vs. Corlies, 46 N. Y. 467. *Day vs. Caton, 119 Mass. 513. *Reif vs. Paige, 55 Wis. 496. *Wentworth vs. Day, 3 Mete. 352. *Taylor vs. Mer. Fire Ins. Co. 9 How. 390. * *Lewis vs. Browning, 130 Mass. 173. *Trevor vs. Wood, 36 N. Y. 306. *Weiden vs. Woodruff, 38 Mich. 130. *Shuey vs. U. S. 92 U. S. 73. *Payne vs. Cave, 3 T. R. 148. 50 AUTHORITIES AND DEDUCTIONS Gibbs vs. Linabury, 22 Mich. 479. Corning vs. Colt, 5 Wend, 254. Brown vs. R. R. Co., 44 N. Y. 79. Corcoran vs. White, 117 111., 118; 7 N. E. 525. Harlow vs. Curtis, 121 Mass. 320. Maclay vs. Harvey, 90 111. 525. Keller vs. Holderman, 11 Mich. 248. Huck vs. Flentye, 80 111. 258. Pierson vs. Morch, 82 N. Y. 503. 1st Nat. Bk. vs. Hart, 55 111. 62. Howard vs. Daly, 61 N. Y. 362. Washburn vs. Fletcher, 42 Wis. 152. Haas vs. Myers, 111 111. 421. Tucker vs. Lawrence, 56 Vt. 467. Quick vs. Wheeler, 78 N. Y. 300. Lee vs. Flemingsburg, 7 Dana 28. Russell vs. Stewart, 44 Vt. 170. Dawkins vs. Sappington, 26 Ind. 199. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE I LAW • FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION rssuE !■ LAW I FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION /J)i ISSUE LAW : FACTS DECISION /.m^ll ACTION ISSUE LAW FACTS DECISION ACTION rssuE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION • ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE ; LAW FACTS DECISION ACTION ISSUE LAW PACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION , ' i IN CONTRACTS. 51 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined, we deduce the following propositions : Every contract is the result of an offer and acceptance. The assent of the parties— the aggregatio mentium— is an ab- solutely indispensable element in an actual contract. Minn. etc. R. R. Co. vs. Mill Co., 119 U. S. 149. Assent or Aggregatio Mentium. The assent of the parties must be expressed, so that each party may know that the other intends to be bound by the agreement. .White vs. Corlies, 46 N. Y. 467. How Expressed. (1) By words. The offer and acceptance may both be expressed by words, wben the contract is known as an express contract. Tayloe vs. Mer. Fire Ins. Co., 9 How. 390. In order that a contract may result the offer and accept- ance must be expressed in terms that are clear and certain, or capable of being reduced to certainty. Marble et al. vs. Standard Oil Co., 48 N. E. R. 783. Erwin vs. Erwin, 25 Ala. 236. Sherman et al. vs. Kitsmiller, 17 Serg. & Rawle 45. In this last case, an intestate had promised his niece that if she would live with him until her marriage he would give her one hundred acres of land, but did not indicate its locality or value. The niece assented to this offer and seeks to enforce it, whereupon the court decides that the contract is void for uncertainty. • Intention. The assent must be expressed seriously, with the' intention of the parties to change their legal relations ; otherwise the agreement cannot ripen into a contract. McClurg vs. Terry, 21 N. J. Eq. 225. When their assent is clearly expressed in words by the par- ties with intent of changing their legal relations to each other there is such mutuality of assent as is necessary to constitute an express contract. 52 AUTHORITIES AND DEDUCTIONS (2) By Conduct. The "aggregatio mentium," or assent of the parties, may be inferred wholly or in part from their con- duct, and then the contract is said to be implied. The distinc- tion between express and implied contracts "relates simply to the manner in which the parties have expressed their agree- ment, and consequently affects the nature of the evidence by which the agreement can be proved rather than the nature of the contract itself" Day vs. Caton, 119 Mass. 513. Hobbs vs. Massasoit Whip Co., 158 Mass. 194. Cicotte vs. St. Anne's Church, 60 Mich., 552. City Council, etc. vs. Water Works, 77 Ala. 248. Parsons, Vol. 1, 6, n. From the foregoing cases it appears that in order that a contract may result the following facts are necessary : 1st. He wjio makes an offer hj rendering services, supply- ing goods, or by conferring a benefit in any other manner upon the offeree, must do so expecting a compensation therefor; oth- erwise, being gratuitous, the benefaction is a gift. 2d. The other party, or offeree, must know, or have rea- son to believe that compensation w^as expected, otherwise there could be no inference that he intended to pay for it. 3d. And the offeree must either make no objection to hav- ing the benefits conferred upon him, or if he does object but ac- cepts the thing offered, then his assent is suflUciently expressed and he is bound by an implied contract. Cooper vs. Cooper & Al., 147 Mass. 370. Knowlton vs. Inhabs. of Plantation No. 4, 14 Me. 20. * Contra, Higgins vs. Breen, Ad., 9 Mo. 493. Parent and Child. But where the parties to the transac- tion are parent and child, or members of the same family, the presumption is that the services rendered by one to the other are gratuitous. Curry vs. Curry, 114 Past. 367; 7 Atl. 61. Hall vs. Finch, 29 Wis. 278. Pellage vs. Pellage, 32 Wis. 136. Tyler vs. Burrington, Ad., 39 Wis. 376. IN CONTRACTS. 53' Wells vs. Perkins, 43 Wis. 160. Mills vs. Joiner, 20 Fla. 479. Morton vs. Rainey, 82 111. 215'. Reward. Again an offer may be made, as in the case of a reward offered for finding lost property or for the apprehen- sion of a criminal, and the acceptance may be expressed by doing the thing for which the reward was offered. Reif vs. Paige, 55 Wis. 496-503. Wentworth vs. Day, 3 Mete. 352. Gilmore vs. Lewis, 12 Oh. 281. Furman vs. Parke, 21 N. J. L. 310. Silence or Non=action. An acceptance cannot be inferred from mere silence, or non-action, except where circumstances make it one's duty to speak or act ; then from his silence or non-action his assent may be properly inferred. Royal Ins. Co. vs. Beatty, 12 Atl. 607. O'Neal vs. Knippa, 19 S. W. R. 1020. In this case, the plaintiff having bought the defendant's lands, told the defendant that he might leave his large herd of cattle thereupon for $100 per month. The defendant replied that that was too much, but never took the cattle away. It was held that by leaving the cattle there he accepted plaintiff's offer. In case of implied contracts the assent of the parties is just as indispensable as it is in the case of express contracts. The evidence by which an express contract is proved consists in the words used by the persons making it, and in case of an implied contract the evidence consists in the conduct of the parties under the existing circumstances. Offer. As before seen, the assent of the parties, the aggre- gatio mentium, implies an offer on the one side and an accept- ance on the other. The offer may be made by word or by conduct. An order for goods, sent to a merchant, is in effect an offer to buy ; the time-schedules published by a railroad company are offers to transport passengers according to the terms of the advertise- ment; a bid, made at an auction, is an offer; the operating of street-cars is an offer to any one, that the company will carry •54 AUTHORITIES AND DEDUCTIONS the person for the usual fare ; taking a seat at a hotel table is an offer to pay the usual price for the meal ; the publication of a promise of reward for the apprehension of a criminal, or for doing anything else, is an offer to pay the sum named for the performance of the services designated. Levy vs. Green, 8 E. & B. 575. Denton vs. G. N. Ry. Co., 5 E. & B. 860. Sears vs. Eastern Ry. Co., 14 Allen 433. Payne vs. Cave, 3 T. R. 148. Day vs. Caton, 119 Mass. 513. Fogg vs. Portsmouth Atheneum, 44 N. H. 115. Shuey vs. U. S., 92 U. S. 73. Williams vs. Carwardine, 4 B. & Ad. 621. V Revocation. An offer may be withdrawn at any time be- fore acceptance, or it may lapse by death or insanity of either party, or by the expiration of the time allowed in the offer for an acceptance, or by its non-acceptance w^ithin a reasonable time after the offer is made, or by failure to accept in the man- ner prescribed in the offer as to the place of acceptance or otherwise. The offer may be withdrawn by a formal notice of withdrawal, or by a sale of the thing offered if the sale is known to the other party, or by other acts evincing the oflB- cer's intention to withdraw it. Weiden vs. Woodruff, 38 Mich. 130. Pratt Admx. vs. Trustees, etc., 93 111. 475. Potts vs. Whitehead, 20 N. J. Eq. 55. Loring & Al. vs. City of Boston, 7 Mete. 409. Eliason et al. vs. Henshaw, 4 Wheat. 225. Stevenson etc. vs. McLean, 5 Q. B. D. 346. 1879-80. Dickinson vs. Dodds, 2 Ch. D. 463. 1875-6. Coleman vs. Applegarth, 68 Md. 21 ; 11 Atl. 248. Gillespie vs. Edmonston, 11 Hump. 553. And in case the offer is made through the public press, it may also be revoked in the same public manner, at any time before the offer is fully acted upon. Shuey vs. U. S., 92 U. S. 73. An offer, accompanied with a promise to keep it open for a specified time, may nevertheless be revoked before the time ex- IN CONTRACTS. . 55 pires, if not accepted, and if there is no consideration for the promise. Routledge vs. Grant, 4 Bing. 653. Head vs. Diggon, 3 Man. and Ryland 97. Cooke vs. Oxley, 3 T. R. 653. Stensgaard ys. Smith, 43 Minn, 11. But the revocation must be actually communicated to the offeree, in order to nullify the offer. Tayloe vs. Merchants Fire Ins. Co., 9 How. 390. Patrick vs. Bowman, 149 U. S. 411. Kemper vs. Cohn, 47 Ark. 519 ; 1 S. W. R. 869. Coleman vs. Applegarth, 11 Atl. 284. Rejection. If the offer is not revoked and does not lapse, it may then be either rejected or accepted by the offeree. He may reject it expressly by word, or he may reject it by making a counter proposal, or by any action or non-action which evi- dences his dissent. Minn. etc. Ry. vs. Col. Roll. Mill, 119 U. S. 149. Hackley vs. Batrick, 3 John. 534. Acceptance. If not revoked or rejected the offer may be accepted ; and the acceptance may be made by words, or by any act which expresses to the offerer an un-qualified assent to the proposal, as sending goods in response to an order con- taining an offer for them, paying taxes for another at his re- quest accompanied with a promise for Ijis reimbursement, and the performance of work requested w^ith a promise of reward. Crook vs. Cowan, 64 N. C. 743. Briggs vs. Sizer, 30 N. Y. 647-652. Allen vs. Chouteau, 14 S. W. R. 869. Wentworth vs. Day, 3 Mete. 352. Reif vs. Paige, 55 Wis. 503. Dent et al. vs. North Am. Steamship Co. 49 N. Y. 390. General Propositions. The offer, revocation, rejection, or acceptance may be made through the medium of the public mail, telegraph, or telephone. Telegraph— Tayloe vs. Mer. Fire Ins. Co., 9 How. 390. Trevor vs. Wood, 36 N. Y. 306. 56 AUTHORITIES AND DEDUCTIONS Alford vs. Wilson, 20 Fed. 96. Trench vs. Hardin Co. Canning Co., 48 N. E. R. 64. Brauer et al. vs. Shaw et al., 46 N. E. R. 617. Telephone — Bank of Lemoore vs. Gulart, 54 Pac. R. 1111. Stillwell vs. Ocean Steamship Co., 39 N. Y. S. 131. Oskamp vs. Gadsden, 52 N. W. R. 718. If the offer is made by mail, the contract is concluded when the acceptance is despatched, duly addressed and stamped ; and if the offer is made by wire, the contract is concluded when the acceptance is duly delivered to the telegraph company, in the absence of any request or agreement to communicate other- wise. Tayloe vs. Mer. Fire Ins. Co., 9 How. 390. Brauer et al. vs. Shaw et al., 46 N. E. R. 617. Query : If, however, the offer is made by mail and accepted by wire, or made b5' wire and accepted by mail, is the contract concluded when the acceptance is despatched, or when it is re- ceived by the offerer, in the absence of any request or agree- ment as to how the negotiation shall be conducted ? Perry vs. Mt. Hope Iron Co., 5 Atl. 632. Stevenson, etc. vs. McLean,, 5 Q. B. Div. 346. Phenix Ins. Co. vs. Schultz, 80 Fed. 337. Where an offer is made by letter sent from one state to an offeree in another state, and there accepted by the offeree by letter, the contract is regarded as completed in the state where the acceptance is given, and is controlled by the laws of that state, in the absence of any other controlling fact. And on principle the same rule would hold as to contracts made by telegraph, and perhaps by telephone. Mclntyre vs. Parks et al., 3 Mete. 207. If the offer and revocation are both received at the same time, and are both read before an acceptance is posted, the revocation is effectual; but if the offer is read and duly accepted before the withdrawal is read, on principle it would seem that the acceptance concluded the contract. Dunmore vs. Alexander, 9 Shaw, Dunlap and Bell 190. IN CONTRACTS. 57 An offer may be made to a specific person, or to the public in general, as in case of a reward offered for the return of lost property. Wentworth vs. Day, 3 Mete. 352. If a specific sum is offered as a reward for the return of lost property, the finder has a lien upon the property so found ; but if a liberal reward is offered, then he has no such lien. Wentworth vs. Day, 3 Mete. 352. Wilson vs. Guyton, 8 Gill 213. Wood & Al. vs. Pierson, 45 Mich. 313. How Accepted. This general offer can be accepted, so the assent of the minds, essential to a contract, is complete, only by the acceptor's full performance of the work for which the re- ward is offered. Loring & Al. vs. City of Boston, 7 Mete. 409-412. Where the court says, " The offer of a reward is a proposal made by one party, and does not become a contract until acted upon by the performance of the service by the other, which is the acceptance of such offer, and constitutes the agreement of minds essential to a contract." This offer, like others, must be accepted within a reason- able time after the offer is made. Loring & Al. vs. City of Boston, 7 Mete. 409. Shank vs. City of Lancaster, 26 Atl. 1067. But in the state of Connecticut it has been held that the offer of rew^ard for the apprehension of a criminal is good until the Statute of Limitations runs against the crime committed. In the matter of Kelly, 39 Conn. 159. But the person who accepts this offer of reward, by doing that for which the reward is offered, must know at the time he renders the service that this offer of reward has been made. Howland vs. Lounds et al., 51 N. Y. 604. Fitch & Al. vs. Snedaker, 38 N. Y. 248. C. & A. R. R. Co. vs. Sebring, 16 111. App. 181. Stamper vs. Temple et al., 6 Humph. 115. Contra The Auditor vs. Ballard, 9 Bush. 573. Dawkins vs. Sappington, 26 Ind. 199. 58 AUTHORITIES AND DEDUCTIONS Pro Rata. Again, where one offered a reward of $200 for the return to him of a roll .of bank bills, and one-half of them were returned, the court held that the finder should receive his reward pro rata. Symmes vs. Frazier, 6 Mass. 344. But w^here a reward was offered for the apprehension of two criminals, and one was apprehended, the court held that as the offer was for both, the apprehension of one w^as not an acceptance of the offer and that the person apprehending the criminal should receive no part of the rew^ard. Blain et al. vs. Pacific Exp. Co., 6 S. W. R. 679. \J Consideration. The consideration for the promise to pay a reward offered is the performance of that for which therew^ard was offered ; until that is done there can be no contract. Gilmore vs. Lewis, 12 Oh. 281. Furman vs. Parke, 21 N. J. L. 310-313. In this last case the court says : "' Prior to the perform- . ance of the services there was no contract, and the defendant was at liberty to retract his offer. But the performance of the services, however trivial or however inadequate in point of value to the remuneration offered, constituted in itself a val- uable consideration for the contract and rendered the offer, which was before voluntary, binding upon the defendant, and the performance a legal duty." Train vs. Gold, 5 Pick. 379-384. y Assignment. An offer cannot be assigned by the person to whom it is made without the consent of the offerer. Boulton vs. Jones & Al., 2 H. & N. 564. , Boston Ice Co. vs. Potter, 123 Mass. 28.. FURTHER DEDUCTIONS AND DICTA. •,»> Tt>. '. '.-'•,'?" IN CONTRACTS. 59 ASSENT— FREE OR RECIPROCAL. The assent necessary to a valid contract must be, not only mutual, but jt must be free from duress, mistake, undue in- fluence, misrepresentation and fraud. Duress. Duress consists in actual or threatened imprison- ment of or other harm to the person or property of the one upon whom it is practiced. Hence it is of two kinds, duress by imprisonment, and duress per minas. Duress by imprisonment consists in the actual imprison- ment of the party by restraining his personal liberty, either in prison or in some other manner. The gist of duress of impris- onment consists in the unlawful restraint placed upon the per- son ; and if he assents to an offer to relieve himself from this unlawful restraint, such assent is not free and can only result in a voidable contract. Duress per miiias consists in such fear, aroused by threats to imprison a person, or to do him personal violence, or to in- flict some other harm upon him or his property, as is sufficient to overcome the will of him upon whom the duress is practiced. For the purpose of ascertaining the principles of law, per- taining to the subject of duress, we shall examine the following cases : *Fosha5' vs. Ferguson, 5 Hill 154. Taylor vs. Jaques, 106 Mass. 291. Tapley vs. Tapley, 10 Minn. 448. Moore vs. Adams, 8 Oh. 372. Bush vs. Brown, 49 Ind. 573. Seymour vs. Prescott, 69 Me. 376. *Brown vs. Pierce, 7 Wall. 205. *Eddy vs. Herrin, 17 Me. 338. Taylor vs. Cottrell, 16 111. 93. Wilcox vs. Howland, 23 Pick 167. Kelley vs. Noyes, 43 N. H. 209. Soule vs. Bonney, 37 Me. 128. Smith vs. Atwood, 14 Ga. 402. Felton vs. Gregory, 130 Mass 176. 60 AUTHORITIES AND DEDUCTIONS Prichard vs. Sharp, 51 Mich. 432. Crowell vs. Gleason, 10 Me. 325. *Schommer vs. Farwell et al., 56 111. 542. Bowker vs. Lowell et al., 49 Me. 429. *Guilleaume vs. Rowe et al., 94 N. Y. 268. Alexander vs. Pierce, 10 N. H. 494. Fisher vs. Shattuck, 17 Pick. 252. Davis vs; Luster, 64 Mo. 43. *Watkins vs. Baird, 6 Mass. 506. *Seiber vs. Price, 26 Mich. 518. Meek vs. Atkinson, 1 Bailey (S. C.) 84. Bane vs. Detrick, 52 111. 19. Richardson vs. Duncan, 3 N. H. 508. Shaw vs. Spooner, 9 N. H. 197. Hackett vs. King, 6 Allen 58. *Harnion vs. Harmon, 61 Me. 227. *Spaids vs. Barrett et al., 57 111. 289. Miller vs. Miller, 68 Pa. St. 486. Williams vs. Williams, 63 Md. 371. Adams vs. Stringer, 78 Ind. 175. *Inhab. Whitefield vs. Longfellow; 13 Me. 146. Flanigaft vs. Minneapolis, 36 Minn. 406. Perkins vs. Trinka, 30 Minn., 241. *Hackley vs. Headley, 45 Mich. 569. Cable vs. Foley, 45 Mirin. 421. *First Nat. Bank vs. Bryan, 62 la. 42. Town of Sharon vs. Gager, 46 Conn. 189. *Robinson vs. Gould, 11 Cush. 55. *Harris vs. Carmody, 131 Mass. 51. Osborn vs. Robbins, 36 N. Y. 365. Veach vs. Thompson, 15 la. 380., Worcester vs. Eaton, 13 Mass. 369. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION rSSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS jsfe__„ DECISION ISSUE LAW 'ACTS 5CISI0N ACTION ISSUE LAW FACTS ■ DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION X IN CONTRACTS. 61 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined we deduce the following propositions : Duress of Imprisonment. Duress of imprisonment, such as will vitiate the assent necessary to a valid contract, may be accomplished by unlawfully putting the person in actual con- finement behind bolts and bars, by unlawfully restraining his personal movements by superior physical force, or by any other unlawful restraint upon his personal freedom. This im- prisonment or restraint must be unlawful and it may be in- flicted either without or by means of legal process. Without Legal Process. The assent given to a contract, in order to throw off such unlawful restraint inflicted without legal process, is not free, but is given under duress. Foshay vs. Ferguson, 5 Hill. 154. Magoon vs. Reher et al., 45 N. W. R. 112. With Legal Process. If one is arrested by an ofiicer under a warrant issued without probable cause, his assent to a con- tract, given in order to escape such restraint, is not free, but. given under duress. Watkins vs. Baird, 6 Mass. 506. Strong vs. Grannis & Brown, 26 Barb. 122. Void Process. If one is arrested by an oflicer, under a Toid or unlawful process, though issued for probable cause, and he gives his assent to a contract in order to escape such restraint, such assent is not free, but given under duress. Guilleaume vs. Rowe et al., 94 N. Y. 268. Improper Purpose. If a person is arrested by an ofiicer, un- der a lawful process, issued on a probable cause, but for, the improper purpose of inducing him to give his assent to a con- tract, then the assent so given in order to escape the restraint thus inflicted upon him, is not free. It is unlawful to use a criminal process to enforce a civil right. Schommer vs. Farwell, 56 111. 542. Seiber vs. Price, 26 Mich. 518. Richardson vs. Duncan, 3 N. H. 508. Phelps & Johnson vs. Zuschlag et al., 34 Tex. 371. 6a AUTHORITIES AND DEDUCTIONvS It may also be noticed, that, if one is arrested by an officer under a lawful warrant issued for probable cause and for prop- er purpose, but while thus in lawful custody he enters into a contract with any one in order to effect his escape from the custody of the law, such contract is absolutely void, not upon the ground of duress, though often put upon that ground, but rather on the ground of illegality of consideration. Hackett vs. King, 6 Allen 58. Henderson vs. Palmer, 71 111. 579. Duress per Minas. As in duress of imprisonment it is the unlawful physical restraint that vitiates the assent, so in duress per minas it is the fear generated by the threats that vitiates the assent. At common law threats, in order to vitiate assent to a con- tract, must have excited in the mind of the person threatened a fear of loss of life, of loss of member, a fear of mayhem, or fear of imprisonment. The cases are numerous which hold that a threat to take one's life will vitiate the assent given to a contract in order to avoid such a result. Brown vs. Pierce, 7 Wall 205. Dimmitt vs. Robbins, 12 S. W. 94. The authorities which lay down the rule that a threat to rob one of a member, or to commit mayhem upon him, are text-book assertions quite largely, unsupported by any well- defined legal decisions bearing clearly upon the point. But the doctrine that a threat to put one in prison may awaken such fear in the mind of the person menaced as will vitiate his assent to a contract made to escape such a result is well established by judicial holdings. And the threat to im- prison may be made when a warrant has already been issued, and hence the imprisonment is immediate ; or such threat may be made without a warrant having been issued, when the imprisonment must of necessity be more remote. Without Warrant Issued. Where one threatens to prose- cute another on a criminal charge, but no legal process has been issued, no duress can result according to some cases, be- cause the imprisonment is too remote to excite such fear as vitiates consent. , Buchanan vs. Sahlein, 9 Mo. App. 552. IN CONTRACTS. 63 In this case the court says: "We do not think that a threat to prosecute, addressed to a man conscious of his inno- cence, is such a threat as to induce in any man of ordinary firmness an overwhelming fear of immediate imprisonment * * * . We are not aware of any case in which threats of imprisonment have been held to constitute duress, where the threat was not accompanied at least with the statement that prosecution had been begun * *, « ^^d the means were immediately at hand of procuring the instant arrest and imprisonment of the person threatened." Harmon vs. Harmon, 61 Me. 227. Higgins vs. Brown, 78 Me. 473; 5 Atl. 269. Certain cases also hold that if a party be charged wth a crime of which he knew he was not guilty, he could not be put under duress by threats to prosecute or imprison him. Knapp vs. Hyde, 60 Barb. 80. Buchanan vs. Sahlein, 9 Mo: App. 552. The weight of modern authority, however, is to the effect that a threat to prosecute a person, or any member of his fam- ily, either with probable cause or without it, which excites such fear in the mind of the party menaced as to make his assent to a contract involuntary, will constitute such duress as will make that contract voidable. Cribbs vs. Sowle, 87 Mich. 347; 49 N. W. R. 587. Morse vs. Woodworth, 155 Mass. 233. Schultz vs. Culbertson, 46 Wis. 313. McCormick Har. M. Co. vs. Hamilton, 73 Wis. 486. Bryant vs. Peck & Whipple Co., 154 Mass. 460. Hensinger vs. Dyer, 48 S. W. R. 912. But see, Davis vs. Luster, 64 Mo. 43. Adams vs. Irving Nat. Bank, 116 N. Y. 606. Thompson et al. vs. Niggley, 26 L. R. A. 803. With Warrant Issued. When one assents to a contract through fear that if he does not so sign it he, or a member of his family, will be arrested as threatened, under a warrant al- ready issued, such fear will vitiate the assent. Bane vs. Detrick, 52 111. 19. Inhab.' Whitefield vs. Longfellow, 13 Me. 146. 64 AUTHORITIES AND DEDUCTIONS But a threat made by letter to prosecute a person has been held not sufficient to awaken that fear which constitutes du- ress. King vs. Southerton, 6 East. 125. At common law the duress must have been practiced upon the contracting party himself. Spaulding vs. Crawford, 27 Tex. 156. Robinson vs. Gould, 11 Cush. 55. But see, Strong vs. Grannis and Brown, 26 Barb. 1^2. Development of Duress. While at common law^ duress per minas was confined to cases where one feared a loss of life, or limb, or feared mayhem, or imprisonment, it has now been so extended as to include fear excited by threats to do other harmful acts to one's person or property. Personal Violence. Threats of personal violence, in other respects than those already mentioned, may excite fear such as will vitiate assent. United States, etc. vs. Huckabee, 16 Wall. 414-432. In this case the court says : " Positive menace of battery, or of trespass to, lands, or a destruction of goods, may un- doubtedly be * * * sufficient to overcome the mind and will of a person entirely competent in all other respects to contract, and it is clearly established that a contract made under such circumstaiices is as utterly without a voluntary assent of the party menaced, as if he w^ere induced to sign it by actual violence." McGowen vs. Bush, 17 Tex. 196. Foshay vs. Ferguson, 6 Hill 154. Mann vs. Lewis, 3 W. Va. 215. Bogle vs. Hammons et al., 2 Heisk. 136. Loomis vs. Buck et al., 56 N. Y. 462. Central Bank, etc. vs. Copeland & ux., 18 Md. 305. Destruction of Property. Threats to wrongfully destroy another's property may excite such fears asw^ill vitiate assent. Walker vs. Parker, 5 Cold. 476. IN CONTRACTS. 65 Detention of Property. Threats to wrongfully detain one's goods or other property may excite such fear as will vitiate as- sent. Spaids vs. Barrett et al., 57 111. 289. Oliphant vs. Marklin, 79 Tex. 543. Motz vs. Mitchell, 91 Pa. St. 114. Cobb vs. Carter, 32 Conn. 358. White vs. Heylman, 34 Pa. St. 142. Chase vs. Dwinal, 7 Me. 134. Fuller vs. Roberts, 17 So. 359. Necessitous Condition. So when one person connives and gets another into a necessitous condition financially, or knows of his embarrassments but has not himself brought it about, and then secures an unconscientious contract with the embar- rassed party through his fears of the loss of his property, such fear has been held to vitiate the assent necessary to a valid contract. Hough vs. Hunt, 2 Oh. 495. Vyne vs. Glenn, 41 Mich. 112. See also, Hackley vs. Headley, 45 Mich. 569. Money Extorted Colore Officii. So, where money has been extorted under color of office, or to prevent unlawful seizure, or for the payment of excessive fees, the same may be recov- ered as having been paid under duress. Clinton vs. Strong, 9 John. 370. Walker vs. Ham, 2 N. H. 238. McMillan vs. Vischer, 14 Cal. 232. Ordinary Firmness. At the common law only such threats as would overcome the mind of a person of ordinary firmness would constitute duress, but now such threats as do actually excite fear, such as will render the assent involuntary, seem to be sufficient to constitute duress. Parmentier vs. Pater, 13 Ore. 121 ; 9 Pac. R. 59. Cribbs vs. Sowle, 87 Mich. 347 ; 49 N. W. 587. Landa vs. Obert, 14 S. W. R. 297. 14 Am. L. Reg. (N. S.) 201. 15 Cent. Law Jour. 232. 66 AUTHORITIES AND DEDUCTIONS Principal and Agent. The fears of the agent are the fears of the principal, and will vitiate assent in contracts made by ' the agent. Cummings vs. Ince & Ux., 11 Q. B. 112. McPherson vs. Cox, 86 N. Y. 472. A. & E. Enc. L., V. 6 p. 80. So threats made by the plaintiff's agent may produce du- ress. As where plaintiff procured the signature of a woman to the note sued on by informing her through the agency of her brother, that the brother would be prosecuted if she did not sign it. Zimmerman vs. Chambers, 47 N. W. R. 946. Voidable. All such contracts, whether made under duress of imprisonment or under duress per minas, are voidable and not void. Doolittle vs. McCullough, 7 Oh. St. 299. Lyon vs. Waldo, 36 Mich. 345. Ratified. Hence they may be ratified or disaffirmed, either by words or acts, a,s in the case of other voidable contracts. Doolittle & Al. vs. McCullough, 7 Oh. St. 299. Lyon vs. Waldo, 36 Mich. 345. Miller vs. Minor Lbr. Co., 57 N. W. R. 101. Sanford vs. Sornborger, 41 N. W. R. 1102. Personal Privilege. In all cases of duress, the duress is a •personal privilege, and hence can be taken advantage of only by the person himself, his heirs and personal representatives. Lewis vs. Bannister, 16 Gray 500. The duress must be practiced by the other party to the contract, or by some one acting by his connivance. Fairbanks vs. Snow, 145 Mass. 153 ; 13 N. E. R. 596. Fightmaster vs. Levi, 17 S. W. R. 195. Sherman vs. Sherman, 20 N. Y. S. 414. Innocent Third Parties. Bona fide purchasers of property are, as a general rule, protected against the defense of duress, in case of conveyances of land and in case of negotiable instru- ments, but not so in the sale of personal chattels. IN CONTRACTS. 67 As to deeds given under duress see, Deputy vs. Stapleford and Willis, 19 Cal. 302. Cook vs. Moore et al., 39 Tex. 255. Contra, Inhab. Worcester vs. Eaton, 13 Mass. 369. First Nat. Bank of Nevada vs. Bryan et al., 62 la. 42. Notes, Clark vs. Pease, 4l N. H. 414. Farmers' and Mechanic' Bank vs. Butler, 48 Mich. 192. Hogan vs. Mpore.et al., 48 Ga. 156. Fairbanks vs. Snow, 145 Mass. 153. Griffith et al. vs. Sitgreaves, 90 Pa. St. 161. Chattels, Belote vs. Henderson, 5 Cold. 471. General Propositions. In order to vitiate the assent to a contract it must have been entered into by the party upon whom the duress is practiced by reason of the imprisonment or the threats. Flanigan vs. City of Minneapolis, 36 Minn. 406. Schwartz vs. Schwartz, 29 111. App. 516. A threat by a judgment creditor to obtain satisfaction by a levy upon the property of his debtor will not constitute du- ress, it being but the exercise of his legal right. Wilcox vs. Rowland, 23 Pick. 167. Perkins vs. Trinka, 30 Minn. 241. Further deductions and dicta. 68 AUTHORITIES AND DEDUCTIONS Mistake. Mistake, in Jurisprudence, is of two kinds, (1) Mistake of Fact, (2) Mistake of Law; and to ascertain the principles applicable to these two kinds of mistake we will ex- amine the following authorities : *Hewitt vs. Jones, 72 111. 218. *Boston Ice Co. vs. Potter, 123 Mass. 28. Scanlon vs. Alexander, 74 N. W. R. 146. Cundy vs. Lindsay, L. R. 3 App. Cases 459. Gregory vs. Wendell, 40 Mich. 432. Randolph Iron Co. vs. Elliott, 34 N. J. L. 184. *Gibson vs. Pelkie, 37 Mich. 380. *Gardner vs. Lane, 9 Allen 492. Kyle vs. Kavanagh, 103 Mass. 356. *Sherwood vs. Walker, 66 Mich. 568. Thwing vs. Hall & Ducey Lbr. Co. 40 Minn. 184. *Rupleif vs. Daggett, 74 111. 351. Goltra vs. Sanasack, 53 111. 456. Upton vs. Tribilcock, 91 U. S. 45. Dodge vs. Ins. Co., 12 Gray 65. Gordere vs. Downing, 18 111. 492. Haven vs. Foster, 9 Pick. 112. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ^i; 'It ■\-:l .f' ACTION ISSUE LAW FACTS DECISION .ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 69 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined, we deduce the following propositions. ilistake of Fact. The assent necessary to a contract must not only be mutual, and free from duress, but it must also be given by the parties intelligently. Mistake on the part of one or more parties to the agreement, as to the nature of the transaction, or the identity of one or more of the parties, or as to the existence, identity, or essential elements of the sub- ject-matter, or as to the price of the thing sold, will so vitiate the assent that no contract can result therefrom. Mistalce as to Existence of Subject=natter. A mistake as to the existence of the subject-matter, at the time the agreement is made, so vitiates the assent that no contract results ; as where a negro was sold, which both parties supposed to be living at the time of the sale, but it afterwards appeared that he had cut his throat before the contract w^as entered into. Franklin and Armfield vs. Long, 7 Gill & John. 407. Hastie et al. vs. Couturier et al., 9,Exch. 102. flistalce as to the Nature of Transaction. In the absence of negligence, assent given under the influence of a mistake as to the nature of the transaction, is insufficient to constitute a contract ; as where one signs a bond believing it to be a peti- tion, or signs a deed believing it to be a lease, or endorses a bill of exchange believing it to be a guaranty, or signs a note believing it to be a contract of agency. In such cases the mind does not assent to what the hand subscribes, and there is no contract whatever, even in the hands of innocent third par- ties. Schuylkill County vs. Copley, 67 Pa. St. 386. McGinn vs. Tobey & AL, 62 Mich. 252. Foster vs. Mackinnon, L. R. 4 C. P. 704. Hewitt vs. Jones, 72 111. 218. Distinction. The distinction must be borne in mind be- tween inducing a party to sign an instrument whose contents he knows, by falsely representing to him some extrinsic fact. 70 AUTHORITIES AND DEDUCTIONS and inducing a party to sign an instrument by misrepresent- ing to him its actual contents. In the former case the contract may be voidable, in the absence of negligence, as to the inno- cent party, on the ground of fraud, while in the latter case the contract is, absolutely void for the lack of assent. Green vs. North Buffalo Tp., 56 Pa. St. 110. Schuylkill County vs. Copley, 67 Pa. St. 386. Foster vs. Mackinnon, L. R. 4 C. P. 704. Edwards vs. Brown et al., 1 Cromp. & Jer. 307. Mistake as to the contents of an instrument need not be mutual in order to render the contract vqidable. Moore vs. Copp, 51 Pac. 630. Mistake Caused by a Stranger. Where a stranger to the contract misinforms and misleads the grantor as to the quan- tity of land his deed conveys, stating that it conveys much less than it actually does ; and reasonably relying upon this statement the grantor executes and delivers a deed to the grantee, who acts in good faith and intending to purchase all the description includes, the grantor may nevertheless have the deed cancelled in equity on the ground that there w^as no mutual assent. The mind was assenting to the transfer of one quantity of land ; while the hand was transferring a much larger quantity. The offer and acceptance varied. There was no concensus of minds. De Perez vs. De Everett, 11 S. W. 388. Mistake as to Identity of Party. If one enters into an agree- ment under the influence of a mistake as to the identity of the person with whom he is negotiating, such agreement is as a general rule void, and this is true whether the agreement is express or implied. Express. ' Cundy vs. Lindsay, L. R. 3 App. Cases 459. Boulton vs. Jones, 2 Hurl & N. 564. In this last case, " The defendants, who had been in the habit of dealing with B.sent a written order for goods directed to B. The plaintiff, who on the same day had bought B's busi- ness, executed the order without giving the defendants any notice that the goods were not supplied by B. Held, that the . IN .CONTRACTS. ' 71 plaintiff could not maintain an action for the price of the goods against the defendants. Implied. Boston Ice Co. vs. Potter, 123 Mass. 28. Randolph Iron Co. vs. Elliott, 34 N. J. L. 184. In this last case it is substantially held, that if A purchases ore of B, and C without the knowledge or consent of A delivers his ore in the fulfillment of the contract of B, the relation of ven'dor and purchaser does not exist between A and C, and in such case after demand and refusal, or actual conversion of the property by A, or after he has sold the same, the tort may be waived and assumpsit maintained by C ; but there cannot be, in such case, a contract either express or implied. Contracts Through Agents. If one is induced to make a contract by a party, who falsely represents himself as an agent of either a disclosed or undisclosed principal, such agreement is void. Disclosed Principal. Winchester vs. Howard, 97 Mass. 303. Barker vs. Dinsmore, 72 Pa. St. 427. Peters Box & Lbr. Co. vs. Lesh, 119 Ind. 98. Hamet vs. Letcher, 37 Oh. St. 356. In this last case H, the owner of certain chattels, relying on the representation of R that he was the agent of L, agreed' to sell this property to L on credit ; and H believing that R was such agent delivered the chattels to him when in fact he was not the agent of L nor in fact had he any authority to purchase this property for L. On these facts it w^as held that the property in the chattels did not pass from H, and that L, who bought the chattels of R and converted them to his own use without knowledge of the fraud, was liable to H for their value; and the further fact that R at the time that the chattels were delivered to him paid H a part of the purchase-price therefor would make no difference except as to the amount of recovery against L. Undisclosed. Rodliff vs. Dallinger, 141 Mass. 1. In this case one Rodliff refused to sell a quantity of wool to one C,but afterwards C purchased the same as an agent for 72 ■ AUTHORITIES AND DEDUCTIONS his undisclosed principal, and R shipped the wool to C for such principal. C, receiving the property, pledged it to the Boston Trust Co., when it became known to R that there was no un- disclosed principal, but that C claimed that he had bought the property himself. On these facts it was held that there was no contract, and that R could recover the wool from the Trust Co., who of course had no title. So also where one 'Of the parties sells property as his own, when in fact he is the agent of the true owner, and the prop- erty is delivered to the purchaser by the agent, the true owner cannot maintain an action for the purchase-price, for there is no contract between him and the purchaser. There was no consensus of their minds. Winchester vs. Howard, 97 Mass. 303. A person who signs a contract, or causes the same to be signed on his behalf, is bound to know its contents, and if he cannot read the instrument himself he should procure some one else to read it to him ; and neglecting to do this he w^ill be bound by the contract as a general rule. Exception. "But if the person, who asks another to sign a paper, induces him to omit reading it and to rely upon the faith of his representations, and the one signing does thus rely upon these representations and signs the instrument, that ex- cuses him from the obligation of reading it ; and if the repre- sentations are false the contract is voidable as to him so de- ceived." Alexander vs. Brogley et al., 4-1 Atl. 691. False Personation. Where one falsely impersonates another and thereby induces a person to enter into an agreement with him, the agreement so entered into is void. Thurston vs. Blanchard, 33 Am. Dec. 702 Note. Hardman vs. Booth, 1 H. & C. 803. Loeffel vs. Pohlman, 47 Mo. App. 574. In this case it was practically held that where one falsely impersonates a third person, and thus induces the owner to sell goods to him in the belief that he is such third person, no sale or transfer of title is affected; and no act of rescission is necessary in order to entitle such owner to reclaim the goods. IN CONTRACTS. 73 But see, Edmunds et al. vs. Mer. Des. Tr. Co., 135 Mass. 283. Mutual nistake as to Essential Element, Etc. Assent given under the influence of a mutttal mistake as to the existence, identity, or essential elements of the subject-matter, is insufii- cient to constitute a contract. Existence. Gibson vs. Pelkie, 37 Mich. 380. Couturier vs. Hastie, 5 H. L. Cases 673. Strickland vs. Turner, 7 Exc. 208. Identity. Raffles vs. Wichelhaus, 2 Hurl. & C. 906. Gardner vs. Lane, 9 Allen 492. Kyle vs! Kavanagh, 103 Mass. 356. Irwin vs. Wilson, 15 N. E. R. 209. Essential Elements. Sherwood vs. Walker, 66 Mich. 568; 33 N. W. 919. Thwing vs. Hall & Ducey Lbr. Co., 40 Minn. 184. Mistake as to Price. Assent given by the parties, under the influence of a mutual mistake as to the price, is insufficient to constitute a contract. Rupley vs. Daggett, 74 111. 351. Mummenhoff et al. vs. Randall, 49 N. E. R. 40. ilistake as to Quantity. It may also be added that where • there is a mutual mistake as to the quantity of land or chat- tels sold, and the difference between the actual and estimated quantity is so great as to warrant the conclusion that had the truth been known the parties would not have made the trans- fer, the contract is at least voidable and may be rescinded. Ptatt et al., vs. Bowman et al., 17 S. E. R. 210. Newton vs. ToUes, 19 Atl. 1092. Wheadon vs. Olds, 20 Wend. 174. nistake as to Quality, But mistake as to the quality of the thing sold does not vitiate the contract. For one is supposed to examine the property himself and to rely upon his own judgment, and the principle of caveat emptor strictly applies, and especially so since the buyer could in all cases protect himself by a warranty. Kyle vs. Kavanagh, 103 Mass. 356. 74 AUTHORITIES AND DEDUCTIONS Mistake of Law. Mistake as to the law of the state where the contract is made does not invalidate the contract, upon the ground that every man is conclusively presumed to know the law of his own state. Upton vs. Tribilcock, 91 U. S. 45-51. Goltra vs. Sanasack, 53 111. 456-458. Legal Effect. Nor will a mistake as to the legal effect of the terms employed in a contract invalidate it. Dodge vs. Ins. Co., 12 Gray 65-72. Gordere vs. Downing, 18 111. 492. Hall vs. Wheeler, 37 Minn. 522. Foreign State. While every one is presumed to know^ the law^ of his own state, he is not presumed to know the law^ of any foreign state: The law of a foreign state is a fact to be alleged and proved ; and so money paid by mistake through ignorance of the law of another of the United States may be recovered. Haven vs. Foster, 9 Pick. 112. FURTHER DEDUCTIONS AND DICTA. IN CONTRACTS. 75 Undue Influence. As physical restraint is the essential ele- ment in duress of imprisonment, and fear in duress per minas, so moral constraint is the essential element in undue influence, as A?vhere a person is induced by importunity to assent to an agreement which he would not have assented to had he been left to act uninfluenced and freely according to his own wish. When assent to an agreement is procured by importunity, flattery, by the force of a superior will or character upon a weaker one, or by other similar means, or is induced by the relations and circumstances of the partiep— such as parent and child, guardian and w^ard, attorney and client, trustee and beneficiary, and many others — so that the assent is forced and not the free act of the person assenting, such agreement is said to be procured by undue influence, and is insufficient to consti- ttite a valid contract. The constraint upon the mind caused by such means is the vitiating element. If such constraint exists the assent is not free; if it does not exist, then, there is no undue influence in the legal sense of that term. Whether it exists or not, in any par- ticular case, is a matter of fact to be determined by the condi- tions, circumstances and available evidence in each particular case ; and for the law pertaining to this subject we will exam- ine the following cases : *Nelson's Will, 39 Minn. 204. *Graham vs. Burch, 44 Minn. 33. Swisshelm's Appeal, 56 Pa. St. 475. Golding vs. Golding, 82 Ky. 51. Stiles vs. Stiles, 14 Mich. 72,. Taylor vs. Taylor, 8 How. 183. Rau vs. Von Zedlitz, 132 Mass. 164. *Jenkins vs. Pye, 12 Pet. 241. Miskey's Appeal, 107 Pa. St. 611. Berkmeyer vs. Kellerman, 32 Oh. St. 239. *Wickiser vs. Cook, 85 111. 68. Ashton vs. Thompson, 32 Minn. 25. Wade vs. Pulsifer, 54 Yt. 45. *Jennings vs. McConnel, 17 111. 148. Ryan Bros. vs. Ashton, 42 la. 365. *Spencer & Newbold's Appeal, 80 Pa. St. 317. Jones vs. Lloyd, 117 111. 597 ; 7 N. E. 119. Marx vs. McGlynn, 88 N. Y. 357. 76 AUTHORITIES AND DEDUCTIONS Connor vs. Stanley, 72 Cal. 556; 14 Pac. 306. Audenreid's Appeal, 89 Pa. St. 114. Woodbury vs. Woodbury, 141 Mass. 329. Smith vs. Kay, 7 H. L. Cases 750. Leighton vs. Orr, 44 la. 679. Hanna vs. Wilcox, 53 la. 547. *Rider vs. Miller, «6 N. Y. 507. Oard vs. Oard, 59 111. 46. Moore vs. Mopre, 56 Cal. 89. Allore vs. Jewell, 94 U. S. 506. *Hougli vs. Hunt, 2 Oh. 495. Kelly vs. Caplice, 23 Kan. 337. Boynton vs. Hubbard, 7 Mass. 112. Parsons vs. Ely, 45 III. 232. ACTION ISSUE LAW PACTS DECISION ACTION ISSUE LAW WAGTS " " -" ' — )KCISI0N . ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION -^- AQTION IS^UE LAV FACTS DECISION ACTION ISSUE LAW FACTS DECISION __ ACTION ISSUE LAW .FACTS „:lA'i«A>1^' '■■Ij ■ '\.-U (■)■ V DECISION ' ■ ■■'.i'i'TSf ACTION ■ ; , ■ . ■ g |' . - ^^-^^.— v—- ^~— w,-*...~«» - . i — «» — »...w,.. -. -y ~ -~— — ..-.■ i .*. w. .> — rt . .-i.,^--,-, -«_«_j™«„™„™»,„™,™*_ -_^^..^.~-...,— I , 1 ., ■■■.M i ll,,! rn i l i _.r. I l l , , f t 1 ^ ISSUE l^,? ,. LAW FACTS DECISION ,..,_, ACTION ISSUE LAW FACTS DECISION M> ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 77 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined we deduce the following propositions. Definition. Undue influence is that power exerted bj one person over the mind of another, by means of importunity, superior will force, family, fiduciary, confidential, or other similar relationships, which constrains the person to assent to a legal instrument against his own preference ; but the influ- ence exerted over the mind of a person "by modest persuasion and arguments addressed to the understanding, or by mere appeals to the affections, cannot properly be termed undue in- fluence in the legal sense." Sturtevant vs. Sturtevant, 6 N. E. R. 428. Beith vs. Beith, 41 N. W. R. 371. In re Disbrow's Estate, 24 N. W. R. 624. But that influence w^hich one exerts upon the mind of an- other by means of importunity, superiority of will, or by selfish persuasions, constraining- the person to do against his will what he otherwise would not do, is what the law condemns as undue influence. Graham vs. Burch, 44- Minn. 33. • Rider vs. Miller, 86 N. Y. 507. Undue influence, such as vitiates assent in contractual transactions, is most frequently found to .exist betw^een per- sons sustaining to one another the following relations : Parent and Child. Transactions between parent and child, even if the child may have just passed majority, will be care- fully scrutinized by courts of equity, and if there is., any evidence of pressure, or of influence, unduly exercised, the transaction will be set aside at the instance of the party thus influenced. Taylor vs. Taylor, 8 How. 183. Miller vs. Simonds, 72 Mo. 669. White et al. vs. Ross, 43 N. E. R. 336. Graham vs. Burch, 44 Minn. 33. Hart vs. Hart et al., 42 Atl. R. 153. Disch et al. vs. Timm et al., 77 N. W. R. 196. 78 AUTHORITIES AND DEDUCTIONS Undue influence is often found to exist where the family re- lationship is other than that of parent and child, such as brother and sister, nephew and uncle, and even where one party stands in loco parentis to the other. Kennedy's Heirs vs. Kennedy's Heirs, 2 Ala. 571. Sears et al. vs. Shafer & A., 6 N. Y. 268. Smitli et al. vs. Smith, 134 N. Y. 62. Undue influence will avoid a deed not only as to the grantee who exerts the influence unduly, but as to other inno- cent grantees in the same transaction, who did not exercise undue influence and who did not pay a valuable consideration. Graham vs. Burch, 44 Minn. 33. Whelan vs. Whelan, 3 Cow. 537. Guardian and Ward. Contracts between guardian and ward during the continuance of that relation, and even imme- diately after its conclusion, will be scrutinized in equity with great care; and if the contract takes the form of a gift from the ward to the guardian it will rarely, if ever, be sustained. Ashton vs. Thompson, 32 Minn. 25. Cowee vs. Cornell et al., 75 N. Y. 91. In this last case the court says : " Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is well settled. * * * * r^Yit law presumes in the case of guardian and ward, trustee and cestui que trust, attorney and client, and perhaps physician and patient, from the relation of the parties itself that the^r situation is unequal and of the character I have defined ; and that relation appearing itself throws the burden upon the trustee, guardian, or attorney, of showing the fairness of his dealings." IN CONTRACTS. 79 Attorney and Client. Transactions, and especially con- tracts and donations, between attorney and client will be sub- jected to the most rigid judicial scrutiny, and the burden of proof lies upon the attorney to show that there was no undue influence, and this is true even if the relation of attorney and client has ceased,, if the influence of the relationship still con- tinues. Undue influence on the part of the attorney is pre- sumed, and hence the contract is presumably voidable. Roby vs. Colehour, 135 111. 300 ; 25 N. E. R. 777. Cunningham -vs. Jones, 37 Kan. 477; 15 Pac. 572. Ross vs. Payson, 160 111. 349; 43 N. E. R. 399. Beedle vs. Crane, 91 Mich. 429; 51 N. W. R. 1070. Henry vs. Raiman, 25 Pa. St. 354. Trustee and Cestui Que Trust. The relationship of trustee and beneficiary is also one of peculiar confidence, and any con- tract between these parties while the relationship continues, or immediately after its conclusion if the influence thereof continues, is as a general rule voidable as to the beneficiary. "Smith vs. Townshend et al., 27 Md. 368. Richards vs. Pitts et al., 124 Mo. 602; 28 S. W. R. 88. Cole vs. Stokes, 113 N. C, 270 ; 18 S. E. R. 321. Spencer's and Newbold's Appeal, 80 Pa. St. 317. Where one person holds simply a legal title as trustee for another he is called a dry trustee and the contracts between him and the beneficiary are subject to the ordinary rules of the buyer and seller. There is no presumption of undue influence. Inlow vs. Christy et al,, 187 Pa. St. 191; 40 Atl. 823. Executors and Administrators. The same rule as that which exists between trustee and beneficiary applies to all other persons who sustain fiduciary relations, such as cxccut tors and administrators and many others. Richardson's Executor vs. Green, 133 U. S. 30. Other Fiduciary Relations. There are other fiduciary rela- tions, diffiering somewhat from those hereinbefore mentioned, but from w^hich relationships when they have once been estab- lished undue influence may Be presumed by a court of equity. Husband arid Wife. The wife may make a contract with her husband which will be upheld in equity, but the courts al- 80 AUTHORITIES AND DEDUCTIONS ways examine such transactions with great watchfulness and with jealous care, and if such contract is a sale the burden rests upon the stronger party to show that no advantage was taken. Farmer's Executor vs. Farmer et al., 39 N. Eq. 211. Disch et al. vs. Timm et al., 77 N. W. R. 196. Darlington's Appeal, 86 Pa. St. 512. Ilgenfritz vs. Ilgenfritz, 22 S. W. R. 786. Physician and Patient. Contracts between a physician and his patient are also w^atched with jealous care and have often been set aside upon the ground of undue influence. Woodbury vs. Woodbury, 141 Mass. 329 ; 5N. E. R. 275. Cadwallader et al. vs. West et al., 48 Mo. 483. Crispell vs. Dubois, 4 Barb. 393. Spiritual Advisers. The relation between spiritual advis- ers and those whom they advise often assumes the relation- ship of confidence ; and transactions, as contracts, made with spiritual advisers, or gifts bestowed upon them, under these circumstances, will often raise the presumption of undue influ- ence exerted over the weaker party. • Marx vs. McGlynn, 88 N. Y. 357. AUcard vs. Skinner, L. R. 36 Ch. Div. 145. Newman vs. Smith et al., 77 Cal. 22 ; 18 Pac. 791. Pinegan vs. Theisenet al., 92 Mich. 173 ; 52 N. W. R. 619. Spiritual Mediums. The relation of confidence has been found sometimes to exist between spiritual mediums and per- sons brought under their influence. Connor vs. Stanley, 72 Cal. 556; 14 Pac. 305. Illicit Relations. So in other cases where one person ac- quires such an influence over another that he can control his wishes and induce him to do whatever he desires, contracts be- tween them will be set aside as procured by undue influence, — as where women of loose character have got conveyances to themselves from their weak-minded victims. Leight6n vs. Orr, 44 la. 679. Hanna vs. Wilcox, 53 la. 547. Other Relationships. And so it may be said that this prin- ciple of undue influence as vitiating the assent applies to all IN CONTRACTS. 81 cases "where influence is acquired and abused ; where confi- dence is reposed and betrayed," as where the strong-minded overpower the mentally weak, and w^here the unconscientious Jake advantage of another's financial embarrassments. Fisher vs. Bishop et al., 108 N. Y. 25 ; 15 N. E. R. 331. Todd vs. Grove etc., 33 Md. 188. Hanson vs. Berthelson, 27 N. W. R. 423. Williams vs. Collins et al., 25 N. W. R. 682. Sands vs. Sands, 112 111. 225. Rider vs. Miller, 86 N. Y. 507. Moore vs. Moore, 56 Cal. 89. Hough vs. Hunt, 2 Oh, 495. Keeley vs. Caplice, 23 Kan. 337. Presumptions. When the relationship of guardian and ward, parent and child, attorney and client, trustee and bene- ficiary, has been established and a benefit under a contract or gift moves from the latter persons to the former, the presump- tion of undue influence arises, and the burden of proving fair- ness and the absence of undue influence devolves upon the former parties. Aiid it may be said as a general rule, that whenever the relationship of confidence and trust is estab- lished between two persons, the one in whom that trust and confidence is reposed will be called upon by the court to prove that the transaction was honest, fair and just. Clark vs. Clark, 34 Atl. 610-617. FURTHER DEDUCTIONS AND DICTA. IN CONTRACTS. 83 MISREPRESENTATION AND FRAUD. Assent necessary to the existence of a valid contract must not be given under the vitiating influence of misrepresentation or fraud, and for the law governing this subject we will con- sult the following cases : Misrepresentation. *Mulvey vs. King, 39 Oh. St. 491. Brook^ vs. Hamilton, 15 Minn. 26. Baughman vs. Gould, 45 Mich. 481. Wickham vs. Grant, 28 Kan. 370. Mitchell vs. McDougall, 62 111. 498. Tuck vs. Downing, 76 111. 71. Slaughter vs. Gersoii, 13 Wall. 379. *Burritt vs. Saratoga etc. Ins. Co., 5 Hill 189. N. Y. Bow. Ins. Co. vs. N. Y. Fire Ins. Co., 17 Wend. 359. McLanahan vs. Ins. Co., 1 Pet. 170-185. Baker vs. Humphrey, 101 U. S. 494. Fraud. *Murwin vs. Arbuckle, 81 111. 501. *Humphrey vs. Merriam, 32 Minn. 197. *Starr vs. Bennett, 5 Hill 303. Ins. Co. vs. Reed; 33 Oh. St. 283. Drake vs. Latham, 50 111. 270. Fish vs. Cleland, 33 111. 237. *Mooney vs. Miller, 102 Mass. 217. Warren vs. Doolittle, 61 111. 171. Gordon vs. Parmelee, 2 Allen 212. Gordon vs. Butler, 105 U. S. 553. Geddes vs. Pennington, 5 Dow. 159. *Croyle vs. Moses, 90 Pa. St. 250. Kenner vs. Harding, 85 111. 264. *Laidlaw vs. Organ, 2 Wheat. 178. ♦Harris vs. Tyson, 24 Pa. St. 347. Williams vs. Spurr, 24 Mich. 335. AOTJpN ' ISSqE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION 'Aim ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION 1 ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 85 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined we deduce the following propositions. riisrepresentation. Misrepresentation of a material fact, innocently made by one party to a contract, which is believed and reasonably acted upon by the other party to his injury, so far affects the assent given to an agreement as to make the contract voidable, so that the injured party is entitled to re- lief, either by a rescission of the contract, or by a recoupment in the suit brought to enforce it. Misrepresentation differs from fraud in that it lacks the element of fraudulent intent, but in order to vitiate assent tcT an agreement the follow^ing facts must be made to appear : (1) The misrepresentation must be of a material fact af- fecting the identity, value, or character of the subject-matter of the contract. (2) It must have been reasonably relied upon by the other party. (3) The other party must have entered into the contract by reason of it, and (4) He must have sustained injury thereby. The misrepresentation must be of such a "character as to destroy the assent necessary to the validity of a contract." Brooks vs. Hamilton, 15 Minn. 26. Slaughter's Adm. vs. Gerson, 13 Wall. 379. The non-disclosure of a fact material to the contract by one w^hose duty it is to disclose it by reason of the fiduciary or confidential relation he sustains to the other party will vitiate the assent so that the contract will be voidable as to the party injured. Burritt vs. Saratoga Ins. Co., 5 Hill 189. Fraud. Fraud consists in inducing a person to act under the influence of some, untrue statement or i-epresentation in- tentionally made for that purpose. Fraud renders the con- tract voidable ab initio both at law and in equity. Jones vs. Emery, 40 N. H. 348. 86 AUTHORITIES AND DEDUCTIONS Elements of Fraud. (1) There must be a false representa- tion respecting, a material fact. (2) It must be made intentionally or negligently by the defrauding party for the purpose of inducing the other party to act. (3) It must be reasonably relied and acted upon by the defrauded party. (4) The defrauded party must have sustained damage by so acting. Derry et al. vs. Peek, L. R. 14 App. Cases 337. Rules Respecting the Scienter. (1) If one makes a state- ment knowing that it is false, this lays the foundation for fraud. (2) If one makes an untrue representation as of his own knowledge, not knowing whether it is true or false, this too lays the foundation for fraud. Bullitt vs. Farrar, 42 Minn. 8. (3) Where one makes an untrue statement respecting a matter which is peculiarly within his own knowledge he will be held chargeable therefor, and such statement will lay the foundation for fraud. Kiefer vs. Rogers, 19 Minn. 32. (4) Where one makes an untrue representation, but the other party has an equal opportunity to ascertain its truth or falsity, the principle caveat emptor will apply, and fraud will not result from such a representation. Mamlock vs. Fairbanks, 46 Wis. 415. The assent necessary to a valid contract must be procured by honest means. If procured by fraud in any of its forms, the contract may be avoided by the party upon whom the fraud is practiced, or by his legal representatives. Murwin vs. Arbuckle, 81 111. 501. Humphrey vs. Merriam, 32 Minn. 197., Misrepresentation as to a point of law is not a fraud unless accompanied with some confidential relationship be- tween the parties. Starr vs. Bennett, 5 Hill 303. IN CONTRACTS. 87 . Misrepresentation as to a matter of opinion does not constitute fraud such as will vitiate assent. Mooney vs. Miller, 102 Mass. 217. Misrepresentation as to an immaterial fact, in no way affects the assent and consequently will not amount to fraud. Geddes vs. Pennington, 5 Dow. 159. Artful devices by which one party conceals a material fact respecting the subject-matter, or by which he prevents the other party from discovering such fact, are fraudulent, and hence vitiate the assent to the contract making it voidable ab initio. Croyle vs. Moses, 90 Pa. St. 250. The non-disclosure of extrinsic facts which may affect the price of a commodity, is not such a fraud on the part of him who knov\rs but does not reveal them as to render the contract voidable as to the other party. Laidlow vs. Organ, 2 "Wheat. 178. Harris vs. Tyson, 24 Pa. St. 347. Williams vs. Spurr, 24 Mich. 335. Latent Defects. • In the sale of property the law presumes that the vendee reposes confidence in 'the vendor to disclose all defects in the subject-matter not within reach of ordinary ob- servation, and therefore the law imposes the duty upon the vendor to disclose such defects. Ordinarily the vendor reposes no such confidence in the vendee, and hence the vendee is not bound to disclose any facts respecting the subject-matter which he may possess, but of which the vendor is ignorant. But such vendee must not in any way mislead or deceive the vendor respecting such undisclosed facts. Bench vs. Sheldon, 14 Barb. 66. Harris vs. Tyson, 24 Pa. St. 347. Williams vs. Spurr, 24 Mich. 335. There may be circumstances where silence even on the part of the vendor respecting latent defects' amounts to conceal- ment, and will lay the foundation for fraud. Grigsby vs. Stapleton, 92 Mo. 423; 7 S. W. R. 421. 88 ■ AUTHORITIES AND DEDUCTIONS FURTHER DEDUCTIONS AND DICTA. ■rtn n^ IN CONTRACTS. 89 CONCURRENT ASSENT. Thus far we have seen that, in order to constitute a eon- tract, there must be, first, two or more parties; second, an offer by one and an acceptance by the other, amounting to a legal agreement; third, that the agreement must be clearly ex- pressed by language, oral, written, or symbolical; fourth, that the assent of the parties must be both mutual and reciprocal ; and now in conclusion we must add that the offer and accept- ance must be concurrent. *Mactiervs. Frith, 6 Wend. 103. ACTION ISSUE LAW FACTS ft m. DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ISSUE LAW FACTS DECISION W. IN CONTRACTS. 91 CONSTRUCTIVE OR QUASI CONTRACTS. In both express and implied contracts the assent of the minds, or the aggregatio mentiutn, is found to exist as a fact ; but there is another class of quasi-contracts, so called, where there is no assent of the minds whatever. Such are the con- tracts made -with insane persons, who have no natural capac- ity to contract, and the contracts whereby the husband is bound to pay for his wife's necessaries, and in all other cases where the law presumes an assent, or promise, by a party, when as a matter of fact there is no such assent or promise. Justice often requires the adjustment of the relations of persons who lack natural capacity to contract, or upon whom the law imposes positive obligations, even against their will, and as such adjustment is allowed in an action ex contractu these relations have often been called contractual relations. Lacking the element of assent, the transactions whereby these relations are established are not contracts at all, but are prop- erly classed by themselves as quasi-contracts. For the law upon this subject w^e will examine the folio wing authorities : Plate vs. Durst, 32 L. R. A. 404-7. *Sceva vs. True, 53 N. H. 630. State vs. Mayor of New Orleans, 109 U. S. 285. *Hudson vs. Gilliland, 25 Ark. 100. Steamship Co. vs. Joliffe, 2 Wall. 450. Cunningham vs. Reardon. 98 Mass. 538. Eiler vs. Crull, 99 Ind. 375. Pierpont vs. Willson, 49 Conn. 450. Watkins vs. De Armond, 89 Ind. 553. Ferren vs. Moore, 59 N. H. 106. Heffron vs. Brown, 54 111. App. 377. Merchant's Bank vs. National Bank, 139 Mass. 513. Cobb vs. Cole, 44 Minn. 278. Rheel vs. Hicks, 25 N. Y. 289. *Hertzog vs. Hertzog, 29 Pa. St. 465. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION '*SS^H-.- ■*~'*ts#^ ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION '.■ vm Mlk'-''^-:- ,'/('' .'( ACTION ISSUE LAW FACTS ,(.. .] . DECISION ACTION ISSUE LAW FACTS DECISION '401 ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 93 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined, we deduce the following propositions. Courts often sustain an action ex contractu, where, as a matter of fact, no contract was ever made by the parties, but where the law, for certain reasons, conclusively presumes a promise to have been made by the party charged with an obli- gation. Judgment. In case a tort is committed, the plaintiff may procure judgment against the defendant for damages, against his protest and opposition ; but if the judgment is not paid the plaintiff may sue thereupon in an action ex contractu, and as the law implies a promise on the part of the defendant to pay the judgment, this action ex contractu will be maintained. State vs. Mayor of New Orleans, 109 U. S. 285. Waiver of Tort. Again if A wrongfully obtains property belonging to B, and sells it as his ow^n, receiving the money for it, B may waive the tort and bring an action ex contractu for the money ; and the law will imply a promise on A's part to pay it to B. Hudson vs. Gilliland, 25 Ark. 100. Terry et ql. vs. Hunger, 121 N. Y. 161. But see, Jones vs. Hoar, 5 Pick. 285. Statutory Liability. So where a statute imposes a duty upon one going in and out of a harbor to employ a licensed pilot, and the shipmaster refuses the services of such pilot w^hen tendered, the court will hold such shipmaster liable for one-h&lf the regular pilot fees, as the law provides, in an action ex contractu. Steamship Co. vs. Joliffe, 2 Wall. 450. In this case the court said : " The transaction in this case between the shipmaster and the pilot cannot be termed a con- tract, but it is a transaction to which the law attaches similar consequences. It is a quasi-contract. The absence of assent 94 AUTHORITIES AND DEDUCTIONS on the part of the master of the vessel does not change the case." Common Law Liability. As the common law imposes upon the husband the duty to provide necessaries for his wife, so it implies a promise on his part to pay for those necessaries when they are properly furnished by another. Cunningham vs. Reardon, 98 Mass. 538. Eiler vs. Crull, 99 Ind. 375. The same is true though the husband give notice, either general or special, that he will not be responsible for his wife's supplies. Pierpont vs. Willson, 49 Conn. 450. Watkins vs. De Armond, 89 Ind. 553. Where the husband gives his express written consent that his wife may commit adultery with anpther man, in consider- ation of her relieving him from all liability for her support, he will nevertheless be held liable for her necessaries m an action ex contractu. Ferren vs. Moore, 59 N. H. 106. EstoppeL Again, where one furnishes good^ or services to another, expecting compensation for them, and the other party knows that compensation is expected, but he fully in- tends not to pay for them, so that there is no actual assent on his part to the offer contained in the services rendered ; yet if he does not object to receiving them, or if he does object but finally accepts the services or goods, he will be held to pay for them in an action ex contractu. Plate- vs. Durst, 32 L. R. A. 407. Heffiron vs. Brown, 54 111. App. 377. In this last case the court says : "The question whether the services rendered were intended to be gratuitous is not a question of law, but of fact; and the parties need not have had the same intention to entitle a person to recover. If a party expects to be paid, and if the other party knows or believes such to be the fact, and by his language or conduct encour- ages the party to entertain such expectation, then he must pay even if he did not intend to." IN CONTRACTS. 95 rioney Paid Under flistake of Pact. Where money is paid under a mistake of fact the plaintiffmay recover the same in an action ex contractu. Merchant's Bank vs. National Bank, 139 Mass. 513. Cobb vs. Cole, 44 Minn. 278. Rheel vs. Hicks, 25 N. Y. 289. In this last case it was held that money paid by a person charged as the father of an unborn bastard, to a superintend- ent of tlie poor, may be recovered upon its appearing that the supposed mother was not in fact pregnant. FURTHER DEDUCTIONS AND DICTA. l-~- i w !€' IN CONTRACTS, 97 PART III. CONSIDERATION. Consideration is that in exchange for which a promise is given; and it must exist either actually or by implication in every contract. The principles governing this essential element are numer- ous and most important, and in order that we may fully understand the law bearing upon this subject we will consult the following authorities : *Thomas vs. Thomas, 2 Q. B. 851. *McMillan vs. Ames, 33 Minn. 257. Van Valkenburgh vs. Smith, 60 Me. 97. Dorr vs. Munsell, 13 John. 430. Paige vs. Trufant, 2, Mass. 159. Good Consideration. *Stovall vs. Barnett's Ex'rs, 4 Littell .208. Mclntire vs. Hughes, 4 Bibb. (Ky.) 186. Hanson vs. Buckner's Ex., 4 Dana (Ky.) 251. Bell vs. Scammon, 15 N. H. 381. Stafford vs. Stafford, 41 Tex. 111. Jackson vs. Sebring, 16 John. 515. *Fink vs. Cox, 18 John. 145. Smith vs. Kittridge, 21 Vt. 238. Philips vs. Frye, 14 Allen 36. Whitaker vs. Whitaker, 52 N. Y. 368. Valuable Consideration. *Washband vs. Washband, 27 Conn. 424. Keys vs. Test, 33 111. 317. De Lancey vs. Stearns et al., 66 N. Y. 157. *Burnet vs. Bisco, 4 John. 235. Conover vs. Stillwell, 34 N. J. L. 54. Ames vs. Taylor, 49 Me. 381. Dorwin vs. Smith, 35 Yt. 69. Newhall vs. Paige, 10 Gray 366. 98 AUTHORITIES AND DEDUCTIONS lasu&ciency . *Worth vs. Case, 42 N, Y. 362. Hubbard vs. Coolidge, 1 Met. 84-93. Earl vs. Peck, 64 N. Y. 596. McArtee vs. Engart. 13 111. 242-8. Eyre vs. Potter, 15 How. 42-59. Marriage. *Peck vs. Vandemark, 99 N. Y. 29. Wright vs. Wright, 54 N. Y. 437-440. Rockafellow vs. Newcomb, 57 111. 186-191. Frank's Appeal, 59 Pa. St. 190. Smi1;h vs. Allen, 5 Allen 454. Moral Obligation. *Mills vs. Wyman, 3 Pick. 207. Cook vs. Bradley, 7 Conn. 57. *Keener vs. Crulffe Wife, 19 111. 189. Higgins vs. Dale, 28 Minn. 126. Reed vs. Batchelder, 1 Met. 559. Little vs. Blunt, 9 Pick. 488. Young vs. Perkins, 29 Minn. 173. Brisbin vs. Farmer, 16 Minn. 215. Promise. *Funk vs. Hough et al., 29 111. 145. Porter vs. Rose, 12 John. 209. Coleman vs. Eyre, 45 N. Y. 38. Philpot vs. Gruninger, 14 Wall. 570. Executed. *Dearborn vs. Bowman, 3 Met. 155. Bartholomew vs. Jackson, 20 John. 28. Allen vs. Bryson, 67 la. 591. Legal Obligation. *Jenmngs vs. Chase, 10 Allen 526. Harriman vs. Harriman, 12 Gray 341. Impossibility. *Beebe vs. Johnson, 19 Wend. 500. Stees vs. Leonard, 20 Minn. 494. ' Clifford vs. Watts, L. R. 5 C. P. 577-588. The Harriman, 9 Wall. 161-172. Voluntary Payments. *Gleason vs. Dyke, 22 Pick. 390. Doty vs. Wilson, 14 John. 378-82. IN CONTRACTS. 99 Abstinence. *Talbott vs. Stemmons' Ex., 89 Ky. 222. Hamer vs. Sidway, 124 N. Y. 538; 27 N. E. R. 256. Illegal Cqnsideration. *Hanks vs. Naglee, 54 Cal. 51. *Paddock vs. Robinson, 63 111. 99. *Eaton vs. Kegan, 114 Mass. 433. Bisbee vs. Mc Allen, 39 Minn. 143. ■ Johnson vs. Clark, 51 N. Y. S. 238. *Dillon & Palmer vs. Allen, 46 la. 299. IngersoU vs. Randall, 14 Minn. 400. Unlicensed Attorney. Ames vs. Oilman,' 10 Mete. 239. Harland vs. Lilienthal, 53 N. Y. 438. Unlicensed Physician. Bibber vs. Simpson, 59 Me. 181. Richardson vs. Dorman's Ex., 28 Ala. 679. Coyie vs. Campbell, 10 Ga. 570. Ruckman vs. Bergholz, 37 N. J. L. 437. Usuty. *Ormund vs. Hobart, 36 Minn. 306. Jordan vs. Humphrey, 31 Minn. 495. Early vs. Mahon, 19 John. 147. Hammond vs. Hopping, 13 Wend. 505. Sunday Contracts. *Block vs. McMurry, 56 Miss. 217. Hanchett vs. Jordan, 43 Minn. 149. First Nat. Bk. vs. Kingsley, 84 Me. Ill ; 24 Atl. 794. Adams vs. Gay, 19 Vt. 358. Plaisted vs. Palmer, 63 Me. 576. Day vs. McAllister, 15 Gray 433. Russell vs. Murdock, 44 N. W. R. 237. Reynolds vs. Stevenson, 4 Ind. 619. Durant vs. Rhener, 26 Minn. 362. Sunday Subscription. Bryan et al. vs. Watson, 127 Ind. 42; 26 N. E. R. 666. Third Parties. Varney vs. French, 19 N. H. 233. Foster vs. Wooten, 7 So. R. 501. Jameson vs. Carpenter, 36 Atl. 554. 100 AUTHORITIES AND DEDUCTIONS Lotteries. *Seidenbender vs. Charles' Adm., 4 S. & R. 151. State vs. Moren, 48 Minn. 555. Wagers. *Johnson vs. Fall, 6 Cal. 359. Beadles vs. Bless, 27 111. 320. Mulford vs. Bowen, 9 N.J. L. 315. Smith vs. Smith, 21 111. 244. American Rule. *Love vs. Harvey, 114 Mass. 80. *Wilkinson vs. Tousley, 16 Minn. 299. Cooper vs. Brewster, 1 Minn. 94. Bates vs. Clifford, 22 Minn. 52. Bernhard vs. Taylor, 23 Ore. 416 ; 31 Pac. 968. Gilmore vs. Woodcock, 69 Me. 118. Trespass. *Hatch vs. Mann, 15 Wend. 45. Praud. *Sternberg vs. Bowman, 103 Mass. 325. Huckins vs. Hunt, 138 Mass. 366. Public Policy. *Sterling vs. Sinnickson, 5 N. J. L. 871. '*Johnson's Adm. vs. Hunt, 81 Ky. 321. Crawford vs. Russell, 62 Barb. 92. Restraint of Trade. *Bishop vs. Palmer, 146 Mass. 469. Alger vs. Thacher, 19 Pick. 51. Craft vs. McConoughy, 79 111. 346. *Oregon Stm. Nav. Co. vs. Winsor, 20 Wall. 64. Oilman vs. D wight, 13 Oray 356. Chappel vs. Brockway, 21 Wend. 157. Futures. *Mohr vs. Miesen, 47 Minn. 228. Irwin vs. Williar, 110 U. S. 499. Cobb vs. Prell, 22 Am. L. Reg. 609 note. Public Service'. *Nichols vs. Mudgett, 32 Vt. 546. Trist vs. Child, 21 Wall. 441. Houlton vs. Nichol, 67 N. W. R. 715. IN CONTRACTS. 101 Public Justice. *Friend vs. Miller, 52 Kan. 139; 34 Pac. 397. Janis vs. Roentgen, 52 Mo. App. 114. Wegner vs. Biering, 22 S. W. R. 258. Small vs. Williams, 13 S. E. R. 589. Morals. *Brovs-n vs. Tuttle, 80 Me. 162; 13 Atl. 583. Failure. *Rice vs. Goddard, 14 Pick. 293. Thompson vs. Wheeler, etc., Mfg. Co., 29 Kan. 340. Partial Failure. *Stevens vs. Johnson, 28 Minn. 172. Want of. *Pearson vs. Pearson, 7 John. 25. Unlawful. *McBratney vs. Chandler et al., 22 Kan. 482. *Goodwin vs. Clark et al., 65 Me. 280. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION . ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION 4 ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW r- — FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION . .,._._^„ ,.^; i/i^i ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION >4) ACTION ISSUE '* LAW FACTS 'DECISION ACTION ISSUE LAW FACTS DECISION ,j ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ■/;< ISSUE LAW "nv-Vi^l^ii"'.;" FACTS ;RAJ's;^i • • DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION . 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It is not, therefore, a specific thing of value, given in exchange for a promise, as is the case with a valuable consid- eration ; but, in a conveyance of land, the blood relationship within certain limits between the grantor and grantee has been held by the courts as equivalent to a valuable considera- tion, and hence suflScient to support that particular convey- ance known as a "covenant to stand seized." This seems to be the only purpose for which a jgootf consideration is eflfectual, "and not only is it effectual for this purpose, but a "covenant to stand seized " can only be supported by the relationship of blood or of marriage, as the following cases will illustrate. (a) An example of a "covenant to stand seized" is found in the case of Smith vs. Risley and others, 3 Croke's Rep. 529. There one Paul Risley, who was seized in fee of certain lands, covenanted w^ith Thomas Risley and three other persons not related by blood to the covenantor, that, in consideration of " affection which he did bear to his wife and children " he stood seized of his said lands, and would so stand seized in the future, to the use of himself, Paul Risley, for the term of his life, and after his death to the use of his wife, and after fier death to the use of the said covenantors and their heirs, upon condition that they execute certain trusts specified. The court held that the covenant between Paul Risley and his brother Thomas, was supported by a sufficient consideration, though their relationship was not mentioned in the deed ; but that no use could arise to the other three covenantees. (b) In the case of Rollins vs. Riley, 44- N. H. 9, appears a " covenant to stand seized ; " where the consideration of love and affection was held sufficient to sustain it. 104 AUTHORITIES AND DEDUCTIONS A father and mother covenanted to stand seized of their homestead to the use of their son in consideration of love and affection, on condition that he would maintain them during their lives. He sold his interest in the land without the con- sent of the covenantors and his grantee breaks the close and the plaintiff, one of the covenantors, sues in trespass and re- covers a verdict. While the consideration was sufficient the grantee could not assign the personal covenant in the deed to maintain his parents. (c) In Jackson vs. Sebring, 16 John. 515, one Hunt and v\rife bargained and sold land to Davidson "in consideration of the premises and for divers other causes and considerations," in trust, however, for themselves during their lives, and in trust for certain other persons after their death. Davidson was in no way related by blood or marriage to the grantors nor to the beneficiaries. The only heirs at law of Mrs. Hunt, after the death of the grantors, bring this action of ejectment against the defend- ants, who were in possession under the deed to Davidson. The court held, first, that this deed could not stand, as a deed of bargain and sale, as it lacked a valuable consideration; second, that it could not be sustained as a covenant to stand seized, because it lacked the consideration of blood or of mar- riage; and hence the heirs at law of Hunt and wife were seized of the fee, and could maintain the action. (d) In the case of Gale vs. Coburn, 18 Pick. 397, the grantor had conveyed land to his son-in-law, reserving " the right to use, occupy and enjoy the same during his life," free of all rent. The wife of the son-in-law died leaving two children, and one of the heirs of the grantor, after his death, brings action to recover these lands, on the ground of insufficiency of the deed referred to, in that it endeavored to create an estate to take effect in futuro. The court held, first, that the deed could not be sustained as a deed of bargain and sale; second, that as the relationship of grandfather and grandchildren existed between the grantor and the heirs of the grantee, the deed could be sustained as a "covenant to stand seized to uses," though love and affection was not stated in the deed as a consideration. IN CONTRACTS. 105 (e) In the case of Stovall vs. Barnett's Exr., 4 Littell 208, the grantor conveyed two slaves to his granddaughter "in con- sideration of good will and affection," and the granddaughter not receiving the property after the grantor's death brings action of covenant against his executor. Demurrer was inter- posed and sustained by the court below; but the supreme court held that the plaintiff could recover, as the consideration was sufficient. . As to the degree of relationship between covenantor and covenantee, which will constitute a good consideration suffi- cient to sustain such a conveyance, Mr. Spence in his Equity Jurisprudence says : " If a man covenanted to stand seized to the use of his wife, or his son, or brother (and their wives were within the rule), or of his kindred within the degree of nephew or cousin, that was sufficient to raise an use to them respect- ively." Spence Eq. Juris., Vol. 1, § 450. But the American decisions upon this point are not entirely harmonious. The relation between parent and child, grand- parent and grandchild, brother and brother, are unquestion- ably sufficient ; but whether a conveyance from a father-in-law, or mother-in-law, to his, or her, son-in-law, in consideration of love and affection, there is a diversity of opinion. Bell vs. Scammon, 15 N. H. 382. Doe vs. Hines, 1 Busbee 343. Contra, Corwin et al. vs. Corwin, 6 N. Y. 342. Jackson vs. Cadwell, 1 Cowen 622. In Massachusetts it has been held that a good considera- tion is not absolutely essential to support a covenant to stand seized, but that a valuable consideration will be sufficient; but this is contrary to the general current of American authorities at the present time. Trafton vs. Hawes, 102 Mass. 533. Closely connected with the consideration of blood was the fact that a covenant to stand seized would also be supported by the relationship of marriage. The covenantor could bind himself in consideration of the marriage relation to stand 106 AUTHORITIES AND DEDUCTIONS seized to the use of his wife. Hence the doctrine was estab- lished "that a covenant to stand seized to uses must be sup- ported by a consideration of blood or marriage." Thompson et al. vs. Thompson, 17 Oh. St. 650. In some modern conveyances between husband and wife the consideration of love and aflfection is held sufficient. Tillaux vs. Tillaux, 47 Pac. 691. Brown vs. Brown ct al., 22 S. E. R. 412, Edwards et al. vs. Thomas, 32 Atl. R. 580. Third Parties. Conveyances supported by a good consid- > eration merely are regarded as voluntary, conveyances, and will be set aside by courts of equity wherever they break in upon the legal rights of creditors, on the ground that no man should prefer the claims of affection to those of justice. Jackson vs. Seward, 5 Cowen 67. Wickes vs. Clarke et al., 8 Paige 161. Doe vs. Hurd et al., 7 Blackford 509. Jackson vs. Garnsey, 16 John. 189. Gale vs. Gould & Hammond, 40 Mich. 515. Snyder vs. Free et al., 21 S. W. R. 847. Read et al. vs. Mosby et al., 11 S. W. R. 940. Voluntary conveyances are good as against the grantor, and any subsequent grantee, mortgagee or subsequent cred- itor of the grantor. Gale vs. Gould & Hammond, 40 TNdich. 515. is) ^ "good consideration " being confined v^rholly to ex- ecuted contracts under seal for the transfer of realty, it was never sufficient to sustain a simple, executory contract, even the executory covenants contained in a conveyance. Matter of Wilbur vs. Warren, 104 N. Y. 192 ; 10 N. E. R. 263. Whittaker et al. vs. Whittaker, 52 N. Y. 368. Smith vs. Kittridge, 21 Vt. 238. Hadley vs. Reed, 12 N. Y. S. 163. Valuable Consideration. A valuable consideration in the language of Blackstone " is such as money, marriage, or the like, which the law esteems an equivalent given for the grant, and is therefore founded in motives of justice." IN CONTRACTS. loV The surrender of personal rights, such as abstaining from the use of tobacco, intoxicating liquors, and the playing of billiards, the assignment of property real or personal, includ- ing choses in action, the performance of labor, the rendering of professional services of all kinds, postponement of civil actions, dismissal of causes, extension of time of payment on demands that are due, and countless other acts which are a benefit to the promisor or which constitute a disadvantage or injury to the promisee, have been held a sufficient considera- tion to sustain an agreement, quite as effectually as money or marriage. Talbott vs. Stemmons' Ex., 89 Ky. 222. Washband vs. Washband, 27 Conn. 424. Worth vs. Case, 42 N. Y. 362. Peck vs. Vandemark, 99 N. Y. 29. Funk vs. Hough et al., 29 111. 145. The Seal. A seal imports a consideration. The courts pre- sume from its presence upon an instrument containing a prom- ise, that there w^as a sufficient consideration for the promise. The act of affixing a seal to an instrument implies thought and reflection, a.nd the courts have uniformly refused to permit partie's, who have performed the solemn act of placing a seal upon their contracts, to afterwards show that there was no consideration for their agreement. At common law the seal was an impression upon wax, or paper, or some other tenacious substance, capable of being im- pressed. 4 Kent's Com. 452. 2 Blk. Com. 305; Tasker & Al! vs. Bartlett & Al., 5 Gush; 359. Pease vs. Lawson et al., 33 Mo. 35. Inmany states of the Union a scroll or device used as a seal upon any deed conveyance or other instrument has been given by statute the effect of a seal attached thereto and im- pressed thereon; and in some states the use of private seals in written contracts has been abolished altogether. Gen. Stat. Minn. '94, §4190. Gen. Laws Minn. '99, c. 86. 108 AUTHORirmS AND DEDUCTIONS When, at common law, a seal is affixed to a written agree- ment, it implies, as has been stated, a consideration, and the instrument thus sealed is called a deed or specialty. State Ys. Thompson et al., 49 Mo. 188. But to make a deed a binding contract upon the parties, it must not only be signed, and sealed, but it must also be de- livered. A deed is an instrument, containing an agreement, signed when so required by law, sealed, and delivered. How- ever perfect the contract may be in other respects, it takes eifect and becomes binding upon the parties thereto only by delivery. Cook vs. Brown, 34 N. H. 460. Thompson vs. Easton, 31 Minn. 99. Fay, etc. vs. Richardson, 7 Pick. 91. The delivery may be made by the one executing the deed, by his handing it to the other party, or to a stranger for his benefit, or by such words as indicate the intention of the per- son executing the instrument that it shall become binding though retained in his possession, or by any other w^ords, con- duct, or even silence which clearly indicates that the person executing the instrument intends to irrevocably part with his control over the same; for in all cases there must be an inten- tion to deliver in order to make the delivery effectual. Bogie vs. Bogie, 35 Wis. 659. Peavey vs. Tilton, 18 N. H. 151. Ruckman vs. Ruckman, 32 N. J. Eq. 259. Richmond vs. Morford, 30 Pac. 241. Acceptance. That an instrument may be effectually deliv- ered by one party, there must be an acceptance thereof by the other, though such acceptance will be presumed if the instru- ment is clearly beneficial to such party. (a) Acceptance. Moore vs. Flynn et al., 25 N. E. R. 844. Coiner vs. Baldwin, 16 Minn. 172. Den vs. Baxter, 1 Busb. [N. C] 341. (b) Presumption. Peavey vs. Tilton, 18 N. H. 151. Wall et al. vs. Wall, 30 Miss. 91. IN CONTRACTS. 109 Delivery and acceptance fix the time when the instrument becomes a valid contract, no matter what date the instrument may bear ; though the presumption is that it was delivered on the day of its date. McMichael vs. Carlyle, 53 Wis. 504; 10 N. W. R. 556. Moats vs. Moats, 19 Atl. 965. Dawson vs. Hall et al., 2 Mich. 390. Escrow. The delivery may be made to a third party, to be by him delivered to the other contracting party, upon his per- forming certain acts, and when these acts are performed the deed takes effect at once without further delivery. This is called a delivery in escrow^, and the deed is called an escrow. Lindley vs. Graff et al., 37 Minn. 338. White Star Steamboat Co. vs. Morange, 8 So. R. 867. But see, Harkreader vs. Clayton, 56 Miss. 383. A person executing a deed cannot create an escrow by making a conditional delivery thereof to the other party, or his agent. In such case the delivery is held to be effective at once, because a delivery in fact outweighs verbal conditions. Hubbard vs. Greeley etal., 24 Atl. 799. Execution in Blank. If a material part of the deed, such as the name of the grantee, be omitted, with the intention that it shall subsequently be filled in, the instrument is void; though it be duly signed, sealed and delivered. But the doc- trine of estoppel may preclude a party from taking advantage of such fact where it would be a fraud upon innocent parties for him to do so. Weeks vs. Maillardet, 14 East 568. Hudson vs. Revett, 5 Bing. 368. Dobbin vs. Cordiner, 41 Minn. 165. Conveyances of Land. The development of the doctrine of a valuable consideration in conveyances of realty seems to be as follows : (1) At common law a feoffment was valid without a con- sideration in consequence of the fealty incident to every such transfer of land. Green vs. Thomas, 11 Me. 318. no AUTHORITIES AND DEDUCTIONS (2) When the Statute of Uses came into effect, the courts of equity decided that, in order to sustain a "covenant to stand seized," there must be in addition to the seal a good consideration, and in case of a conveyance of bargain and sale a valuable consideration must accompany the seal. Jackson vs. Sebring, 16 John. 515. Murray vs. Klinzing, 29 Atl. 244. Wood vs. Chapin, 13 N. Y. 509. (3) But in modern times and in those states where stat- ' utes have been enacted to the effect that " all conveyances of land, signed and sealed by the grantor, having good authority to convey, shall be valid to pass the same, without any other act or ceremony whatever," then no consideration ex- pressed or implied, is necessary to sustain such conveyance as between the parties thereto. Such deed is equivalent to a feoff- ment, with the livery of seizen omitted. Laberee vs. Carlton & Al., 53 Me. 211. Green vs. Thomas, 11 Me. 318. Randall et al. vs. Ghent & Al., 19 Ind. 271. Rogers vs. Hillhouse, 3 Conn. 398. Jackson et al. vs. Cleveland et al., 15 Mich. 94. Comstock vs. Son, 154 Mass. 389 ; 28 N. E. R. 296. Thompson vs. Thompson, 9 Ind. 323. The consideration imported by the seal is insufficient to sustain the conveyance, as against the grantor's existing cred- itors, but it is sufficient as against his subsequent creditors. Washband vs. Washband, 27 Conn. 424. Mohawk Bank vs. Atwater, 2 Paige 54. Gale vs. Gould and Hammond, 40 Mich. 515. Illustrations of Valuable Consideration. Marriage, and even a promise to marry, are regarded and held to be valuable con- siderations. Frank's Appeal, 59 Pa. St. 190. Smith vs. Allen, 5 Allen 454. Snell & Al. vs. Bray, 56 Wis. 156. Peck vs. Vandemark, 99 N. Y. 29. So, work and services are esteemed in law as a valuable and sufficient consideration to sustain a promise. Lewis vs. Trickey, 20 Barb. 387. IN CONTRACTS. Ill A transfer and assignment of property, including choses in action, are a sufficient valuable consideration to sustain a promise. Whittle vs. Skinner, 23 Vt. 531. The abstaining from the exercise of personal rights, such as the right to use tobacco, intoxicating liquors, the plaj'ing of billiards and other similar exercises, has been held sufficient and valuable consideration to sustain a promise. Talbott vs. Stemmons' Ex., 89 Ky. 222. Hamer vs. Sidway, 124 N. Y. 538. Forbearance to enforce any legal or equitable right is a valuable consideration sufficient to sustain a promise. Leverenz vs. Haines, 32 111. 357. Stevens vs. Fisher, 20 Wend. 181. Wheeler vs. Slocumb, 16 Pick. 52. A moral obligation, which was once a legal obligation, is sufficient to sustain a promise. Hence claims, voidable be- cause of infancy, or barred by the statute of limitations, or by bankruptcy proceedings, are a valuable consideration sufficient for a promise to pay such claims. Keener vs. CruU and wife, 19 111. 189. Higgens vs. Dale, 28 Minn. 126. Reed vs. Batchelder, 1 Mete. 559. Dodge vs. Adams, 19 Pick. 429. A promise on the part of one person to do, or not to do, a certain act, is a valuable consideration and sufficient to sus- tain a promise from the other party to the contract to do or not to do some specific act. Funk vs. Hough et al., 29 111. 145. Missisquoi Bank vs. Sabin, 48 Vt. 239. Mutual and simultaneous promises are held to be each a valuable and sufficient consideration for the other. Earle vs, Angell, 32 N. E. R. 164. Flanders vs. Wood et al., 18 S. W. R. 572. Appleton vs. Chase et al., 19 Me. 74. M'Neill vs. Reid, 9 Bing. 68. Wightman vs. Coates, 15 Mass. 1. Hutton vs. Mansell, 3 Salk. 16. 112 AUTHORITIES AND DEDUCTIONS But a promise is not a consideration for a promise, unless there is an absolute mutuality of agreement, so that each party has the right at once to hold the other to a positive agreement. Bailey vs. Austrian, 19 Minn. 535 (G. 465) ; Same 203. Chicago etc. Ry. vs. Dane, 43 N. Y. 240. Hurd vs. Gill, 45 N. Y. 341. Robson vs. Miss. Log. Co., 61 Fed. R. 893. Mutual promises that the performance of a contract shall be postponed to a certain day are each a valuable considera- tion for the other, or others. McNish vs. Reynolds, etc., 95 Pa. St. 483. Goss vs. Nugent, 5 B. & Ad. 58. And in case of mutual promises one promise may be ex- press and f he other implied ; and, in certain cases, one may be written and the other oral. Jones vs. Binford, 74 Me. 440. Dicken vs. Morgan, 54 la. 684. Subscription. Where several persons subscribe and promise to pay money for some special purpose, as to build a court- house, or a church, and on the strength of such promise the promisee has made expenditures of money, or incurred liabil- ities, then such expenditure or assumption of liability is suf- ficient to make the promise of each binding, on the ground that it would be bad faith and unequitable to induce one party to make expenditures by a promise and then decline to fulfil it. Holmes vs. Dana, 12 Mass. 190. Comstock vs. Howd, 15 Mich. 237. And, if one person subscribe alone to such public or chari- table purpose, any act, such as expending money on ' the strength of such subscription or promise, will constitute a suf- ficient consideration to sustain the promise. Cottage St. Church vs. Kendall, 121 Mass. 528. Me. Central Institute vs. Haskell, 73 Me. 140. Presbyterian Society vs. Beach, 74 N. Y. 72. Simpson College vs. Bryan, 50 la. 293. IN CONTRACTS. 113 But the death, or insanity, of a subscriber, before the pledge has been acted upon, acts as a revocation of the sub- scription or promise. Pratt vs. Baptist Society, 93 111. 475. Beach vs. First M. E. Church, 96 111. 177. Helfenstein's Estate, 77 Pa. St. 328. A.S to whether the promise of one subscriber may be re- garded as a consideration for the promise of the other sub- scribers there is a diversity of opinion between the older and the more recent cases. That one promise is a consideration for the other promise, or promises, has been held by the follow- ing cases: George et al. vs. Harris, 4 N. H. 533. Cong/- Society vs. Perry, 6 N. H. 164. Trustees etc. vs. Stetson, 5 Pick. 506. But see, Trustees etc. vs. Davis, 11 Mass. 113. Culver et al. vs. Banning, 19 Minn. 303. An act done by request of ithe promisor is. a sufficient con- sideration to sustain a promise of recompense therefor, made either before or after the performance of the act. Dearborn vs. Bowman, 3 Mete. 155. Mills vs. Wyman, 3 Pick. 207. Loomis vs. Newhall, 15 Pick. 159. Where one voluntarily does for another that which the other was legally bound to do for himself, a subsequent prom- ise of recompense by the party thus benefited will be equiva- lent to a previous request, and hence based upon a sufficient consideration. Gleason vs. Dyke, 22 Pick. 390. Where the consideration is partly past and partly execu- tory, a promise founded upon both, will be supported by the part which is executory, as where a father agreed to pay for his son's board for the future and also for the past, provided the plaintiff would continue to board the son. Loomis vs. Newhall, 15 Pick. 159. Under certain circumstances the consideration must be fully executed before it will be sufficient to sustain a promise. 114 AUTHORITIES AND DEDUCTIONS as where a reward is offered for the return of lost property, the property must be returned before the promise is binding, as until that time there is no consideration for the promise. Gilmore vs. Davis, 12 Oh. 281. Furman vs. Parke, "21 N. J. L. 310. Trust and confidence reposed in a person is sufficient con- sideration to sustain a promise, on the part of the person so trusted or confided in, as where one pays money into the hands of another, who promises to deposit the same in the bank, or to make other disposition thereof. The trusting the money to the person is the consideration for his promise to so dispose of it. Coggs vs. Bernard, 2 Ld. Ray. 909-19. Rutgers vs. Lucet, 2 Johns. Cas. 92 (n). Doorman vs. Jenkins, 2 A. & E. 256. Bainbridge vs. Firmstone, 8 A. & E. 743. Jenkins vs. Bacon, 111 Mass. 373. Prevention of Litigation. The courts favor the prevention of litigation ; and hence when one person surrenders a part of his disputed claim by way of compromise, in consideration of a promise by the other party to pay the balance, the surrender of that part is a valuable consideration and sufficient to sup- port a promise, whether executory or executed, as where A, holding a tax deed on B's land, by way of compromise quit- claimed one-half the land to B, and B quit-claimed the other half to A, though it finally proved that the tax deed was void. Hall vs. Wheeler, 37 Minn. 522. Van Dyke et al. vs. Davis et al., 2 Mich. 145. Hoge vs. Hoge, 1 Watts 163-217. Barlow vs. Ocean Ins. Co., 4 Mete. 270. Northern Lib. Market Co. vs. Kelly, 113 U. S. 199. But the claim so compromised must be made by one party against the other in good faith, with color of right; otherwise the consideration would not be sufficient, being tinctured with fraud. Gates vs. Shutts, 7 Mich. 126. Headley vs. Hackley, 50 Mich. 43. O'Brien vs. Mayor etc., 55 N. Y. S. 50. IN CONTRACTS. 115 In a composition contract, by an insolvent debtor with his creditors, the surrender by each creditor of a part of his claim and forbearance to insist upon full payment is a suffi- cient consideration to sustain the promise of the other credit- ors to do likewise, and also the promise of the debtor to pay the sum which the creditors have agreed to accept. Good vs. Cheesman, 2 Barn. & Ad. 328-335. Perkins vs. Lockwood, 100 Mass. 249. Brown vs. Farnham, 48 Minn. 317 ; 51 N. W. R. 377. White vs. Kuntz et al., 107 N. Y. 518. But in an agreement between a debtor and a single cred- itor, whereby the debtor is to pay less than the full amount of his debt, the promise by the creditor to take such lesser sum is without consideration, while such an agreement between a debtor and two or more creditors by way of composition w^ould be- valid. Pierson vs. McCahill, 21 Cal. 123. Perkins vs. Lockwood, 100 Mass. 249. Arbitration is also looked upon w^ith favor by the courts, and hence mutual submission of demands to arbitration is binding upon the parties, as the mutual promises are a consid- eration, each for the other. Hodges vs. Saunders, 17 Pick. 470. Penn vs. Lord Baltimore, 1 Ves. Sr. 444. Jones vs. Boston Mill Corporation, 4 Pick. 507. Jones vs. Boston Mill Corporation, 6 Pick. 148. From the foregoing illustrations of valuableconsideration, we deduce the following well settled rule of law : " That if a benefit accrues to him who makes the promise ; or if any loss or disadvantage accrues to him to whom it is made, and accrues at the request or on motion of the promisor, althotigh without benefit to the promisor, in either case the considera- tion is sufficient to sustain assumpsit." Things Not a Valuable Consideration Sufficient to Sustain an Executory Promise. A mere moral obligation has been held insufficient, as a consideration, to support an executory prom- ise. Mills vs. Wyman, 3 Pick. 207. Cook vs. Bradley, 7 Conn. 57. 116 AUTHORITIES AND DEDUCTIONS A past consideration is not sufBcient to support a subse- quent executory promise, as where one promises to pay for services already performed. Roscorla vs. Thomas, 3 Q. B. 234. Parr vs. Jev^rell, 17 C. B. 584-711. Dearborn vs. Bowman, 3 Mete. 155. Nor will a past consideration, preceded by a request, not implying a promise of recompense, be suflBcient to sustain a subsequent promise, as where one requests services to be per- formed for him, both parties understanding them to be gratu- itous, though afterwards the party benefitted promises to pay therefor; Allen vs. Bryson, 67 la. 591. Nor will a promise to do, or the actually doing of, that which one is legally obliged to do be a sufficient consideration to sustain a promise. Jennings vs. Chase, 10 Allen 526. There are certain things, or actions, which cannot consti- tute a valuable consideration because of the impossibility of their performance. ' Impossibility in Fact. If the thing agreed to be done by either party is absolutely impossible at the time the agreement is made, and was known to be by all parties, no contract can result because the parties could not have intended to change their legal relations with respect to one another by perform- ing the act, as where in a charter party, executed on March 15th, it was stipulated that a certain ship should sail on Feb- ruary 12th preceding. Hall vs. Cazenove, 4 East 477. If the parties are ignorant of the impossibility of perform- ing the. act agreed upon, the question often arises, whether they intended the act to be performed conditionally or uncon- ditionally. If one undertakes to sell and deliver a chattel on a certain day, and at the time of the agreement the chattel no longer exists, but both parties are ignorant of that fact, it is generally held that the parties contracted on the basis of the existence of the thing, anc^that there is an implied condition IN CONTRACTS. 117 that if the perforraaticeis impossible, because of its non-exist- ence, no contract was intended. Hastie vs. Qouturier, 9 Exch. 102. Taylor vs. Caldwell, 3 fe. & S. 826. Franklin and Armfield vs. Long, 7 Gill. & John. 407. Ward vs. Vance, 93 Pa. St. 499, Walker et al. vs. Tucker et al., 70 111. 527. But if a person undertakes absolutely to do a certain thing, clearly taking all risks against the impossibility of per- formance, he will not be excused for non-performance because of the impossibility of doing what he has covenanted to do. Franklin and Armfield vs. Long, 7 Gill. & John. 407. Anderson vs. May, 50 Minn. 280. Thornborow vs. Whitacre, 2 Ld. Ray. 1164. And where the performance of a promise becomes abso- lutely impossible after the agreement has been entered into, the general rule is now well established that the contract is binding upon the party, who has undertaken to do that which has subsequently become absolutely impossible, upon the ground that the party has an opportunity to protect himself against such misfortune by a stipulation in his contract ; and if he fails to do so the courts will not make a better contract for him than he has seen fit to make for himself. Stees vs. Leonard, 20 Minn. 494. The Harriman, 9 Wall. 161. Bacon fet al. vs. Cobb et al., 45 111. 47. But, if the promisee has made the performance of the thing agreed to be done impossible by his own act, then, of course, the promisor is excused. Holme vs. Guppy, 3 M. & W. 387. Goodwin vs. Holbrook, 4 Wend. 377. But, if the promisor himself renders the thing to be done impossible, he is, of course, not excused from liability. Bigland vs. Skelton, 12 East 436. Beswick vs. Swindells, 3 A. & E. 868. Impossibility in Law. Where the matter of the agreement is legally impossible, no valid contract can be made by the 118 AUTHORITIES AND. DEDUCTIONS parties, because both are presumed to know the law, which they are undertaking to violate. Harvey vs. Gibbons, 2 Lev. 161. Stevens vs. Coon, 1 Pinney (Wis.) 356. Faulkner vs. Lowe, 5 Exch. 595. If, after the contract is made, the thing agreed to be done becomes impossible in law, the promisor is excused from per- formance. Cordes vs. Miller, 39 Mich. 581. Adequacy of Consideration. As we have seen, there must be some consideration to sustain a promise, but the courts permit the parties to decide, as a general rule, what is suffi- cient ; and hence the inadequacy of consideration is not as a rule a ground for avoiding a contract. Worth vs. Case, 42 N. Y. 362. Hubbard vs. CooHdge, 1 Mete. 84-93. Clark vs. Sigourney, 17 Conn. 510. Thompkins vs. Philips, 12 Ga. 53. Molyneux vs. Collier, 17 Ga. 46. Woolford vs. Powers, 85 Ind. 294. Lawrence vs. McCalmont et al., 2 How. 426. Exceptions. The doctrine that inadequacy of considera- tion will not as a rule vitiate a contract does not apply to a mere exchange of sums of money, the values of which are exactly fixed. Schnell vs. Nell, 17 Ind. 29. So courts of equity will enquire into the adequacy of con- sideration, and refuse to enforce specific performance of a con- tract, if the consideration is so inadequate as to make it unconscientious . Wollums vs. Horsley, 20 S. W. R. 781. Harrison vs. Town & Dixon, 17 Mo. 237. From Whom riust Consideration Pass. The general rule of law is that a person, who is not a party to a simple con- tract, from whom no consideration moves, cannot sue on the contract, and consequently a promise made by one person to IN CONTRACTS. 119 another for the benefit of a third person, who is a stranger to the consideration, will not support ah action by the latter. Exchange Bank vs. Rice, 107 Mass. 37. Wheeler vs. Stewart, 94 Mich. 445. Wheeler vs. Stewart, 54 N. W. R. 172. Adams vs. Kuehn, 13 Atl. R. 184. Price vs. Easton, 4 B. & Ad. 433. Crow vs. Rogers, 1 Strange, 592. Exceptions. But there are important exceptions to this rule, " one of them and by far the most frequent one is the case where, under a contract between two persons, assets have come to the promisor's hands, or under his control, which in equity belong' to a third person. In such a case it is held that the third person may sue in his own name. But, then, the suit is founded rather on the implied undertaking the law raises from the possession of the assets than of the express promise. Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money, or to deliver some valuable thing, to a third person. But where a debt already exists from one per- son to another, the promise by a third person to pay such debt being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no nova- tion), he has a right of action against the promisor for his own indemnity ; and if the original creditor can also sue, the promisor would be liable to tv^ro separate actions, and there- fore the rule is that the original creditor cannot sue." National Bank vs. Grand Lodge, 98 U. S. 123. This seems to be the rule in England, in the Federal courts, and in some State courts of this country; but in a large major- ity of the States this rule is repudiated, and it is held that "an action lies on a promise made by the defendant, upon valid consideration by a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration * * * as where A loaned money to the defendant, upon his promise to pay it to the plaintiff, to whom A stated that he owed and had promised to pay a like sum, there being no other evidence of the fact than such declaration." , Lawrence vs. Fox, 20 N. Y> 268. Maxfield vs. Schwartz, 43 Minn. 221. 120 AUTHORITIES AND DEDUCTIONS Barnes vs. Heckla Fire Ins. Co., 57 N. W. R. 314. Bristow et al. vs. Lane et al., 21 111. 194. Bohannan.vs. Pope & al., 42 Me. 93. Wood vs. Moriarty, 9 Atl. R. 427. Shamp vs. Meyer, 20 Nebr. 223 ; 29 N. W. R. 379. Coleman vs. Whitney, 62 Yt. 123 ; 20 Atl. 322. Illegality of Consideration. An agreement to do any act forbidden by law will not be enforced by the courts, and this is true whether the act be in violation of a statute, or common law, or contrary to public policy. The object of a contract may be lawful, while the consid- eration is unlawful, as where one person promises to marry another in consideration of illicit intercourse. Marriage is law^ful but such a consideration is unlaw^ful. Hanks vs. Naglee, 54 Cal. 51. And, on the other hand, the object of a contract may be unlawful, while the consideration involved may not be in viola- tion of any law,,as where two persons already married may promise to marry each other. Mutual promises to marry are lawful and valid considerations, one for the other; but where the object is bigamy the agreement is unlawful and void. Paddock vs. Robinson, 63 111. 99. Statute. A statute may forbid the performance, or omis- sion, of an act by express prohibition or implication, and in either case an act in violation thereof is not a sufficient consid- eration to sustain a promise, as in the case of a directory statute without any penalty being provided for its violation. Eaton vs. Kegan, 114 Mass. 433. And the same is true whether the statute iscommandatory and accompanied with a penalty. Ingersoll vs. Randall, 14 Minn. 400. Dillon & Palmer vs. Allen, 46 la. 299. Usury. In Minnesota and in many other states, certain agreements are declared to be void, such as agreements tainted with usury. Jordan vs. Humphrey, 31 Minn. 495. Ormund vs. Hobart, 36 Minn. 306. IN CONTRACTS. 121 Sunday Contracts. At common law a contract made on Sunday was valid; but in many states of the Union, agree- ments made upon that day are either expressly, or by implica- tion, made unlawful. Hanchett vs. Jordan, 43 Minn. 149. First Nat. Bank vs. Kingsley, 84 Me. Ill; 24Atl.R794. Plaisted vs. Palmer, 63 Me. 576. In this last case A horse was sold on Sunday and a note given therefor, which however was not delivered until Monday; but the court held that the contract being made on Sunday could not be ratified on a week day, and that there must be a full, new contract in order to be valid. Pope vs. Linn, 50 Me. 83. Tillock vs. Webb, 56 Me. 100. But as to ratifying a note, which is void because made on Sunday, some jurisdictions go to the exteint of claiming that the same' may be ratified on a week day. Williamson vs. Brandenberg, 32 N. E. R. 1022. Russell vs. Murdock, 44 N. W. R. 237. An agreement made on Sunday, by which property is transferred to the vendee, is void, and such property cannot be recovered by the vendor, nor by his creditors. , Foster vs. Wooten, 56 Miss. 217; 7 So. R. 501. As the parties are in pari delicto, neither has any remedy against the other on the agreement ; and the courts will not lend their aid to help either party, who has tried to violate and has violated the law. Smith vs. Bean, 15 N. H. 577. Varriey vs. French, 19 N. H. 233. Lotteries. Lotteries were early made unlawful by statute in England, and are generally so in America. Seidenbender vs. Charles' Adm., 4 Ser. & Rawle 151. State vs. Moren, 48 Minn. 555. Wagers. A wager is a contract conditioned upon an event in which the parties have no interest except that which they create by the wagering 'agreement; but at common law such 122 AUTHORITIES AND DEDUCTIONS contracts were enforceable, while by statute they are generally prohibited. Good vs. Elliott, 3 T. R. 693. The English rule was that a wager should be upheld unless (1) it was prohibited by statute, or (2) unless it were against public policy, or (8) unless it was calculated to affect the inter- ests, character and feelings of third parties ; and in California the English rule was early adopted. Johnson vs. Fall; 6 Cal. 859. Headless vs. Bless, 27 111. 820. Smith vs. Smith, 21 111. 244. But other American courts have held the contrary doc- trine, and have refused to enforce wagering contracts or bets. Love vs. Harvey, 114 Mass. 80. Wheeler vs. Spencer, 15 Conn. 27. Cooper vs. Brewster, 1 Minn. 94. Wilkinson vs. Tousley, 16 Minn. 299. In the last case cited Wilkinson and Farmer bet on a horse- race, and put the money into Tousley's hands. The plaintiff lost, and before Tousley paid over the money to Farmer, plaintiff demanded the part which he had thus put up, but Tousley refused to return it to him and the plaintiff sues for its recovery. The court holds that the agreement was void, and that the plaintiff could recover the money while it was yet in the hands of the stakeholder, or after he had paid it over provided the plaintiff had demanded it while it was still in the stakeholder's hands. The stakeholder is not regarded as a party to the illegal agreement, but as a mere depositary of both parties for the money deposited by them respectively, with a naked authority to deliver it over on the proposed con- tingency, and if the authority is actually revoked before the money is paid over it remains a naked deposit to the use of the depositor. To the same effect see, Gilmore vs. Woodcock, 69 Me. 118. Eldred vs. Malley, 2 Col. 820. Winchester vs. Nutter, 52 N. H. 507. Thomas vs. Cronise, 16 Oh. 54. West vs. Holmes, 26 Vt. 530. * IN CONTRACTS. 123 Insurance Policies. A contract for marine, fire, or life insur- ance, where the assured has no interest in the subject insured, and where as usual the assured agrees to pay a certain sum of money in consideration of a larger sum of money to be paid by the insurer in case of loss, is void as a w^agering contract. riarine. At common law^ marine insurance was good, without interest in the thing insured, until it was forbidden by statute ; but this is not generally true in America. Amory vs. Oilman, 2 Mass. 1. Fire. A contract of insurance against fire, on property in which the assured has no interest, is void. Sweeney vs. Franklin Fire Ins. Co., 20 Pa. St. 337. Life. The same is true regarding life insurance. The per- son taking out the insurance must have an insurable interest in the life insured, as a child in the life of a parent, or a parent in the life of a child, or a husband in the life of his wife. But it is impossible to lay down an absolute rule by which one can tell positively when one person has such insurable interest in the life of another ; but where any such interest is lacking the so-called contract of insurance is void. Forbes vs. Am. Mut. Life Ins. Co., 15 Gray 249-254. (The subject of Insurance is largely regulated by statute, and will be considered in a separate course of lectures here- after.) Common Law. So, an agreement to commit a common law crime, or any indictable offense, such as to commit big- amy, arson, or trespass, is void. Paddock vs. Robinson, 63 111. 99. Henderson vs. Palmer, 71 111. 579. Hatch vs. Mann, 15 Wend. 45. Sternburg vs. Bowman, 103 Mass. 325. And it is immaterial whether the things forbidden, at the common law or by statute, are malum in se or malum prohib- itum. Penn vs. Bornman et al., 102 111. 523. Against Public Policy. There are many acts which are not crimes, either at common law or by statute, yet thecourts hold 124 AUTHORITIES AND DEDUCTIONS them as contrary to public policj' ; and agreements to commit such acts cannot ripen into valid contracts. Contracts in Restraint of Marriage. Contracts in restraint of marriage have been looked .upon from the earliest days as contrary to public policy, and the courts have refused to enforce them. Hartley vs. Rice, 10 East. 22. Chalfant vs. Payton et al., 91 Ind. 202. Shackelford vs. Hale, 19 111. 211-215. And so agreements to bring about a marriage for a reward are looked upon equally with disfavor, being known as mar- riage brokerage contracts. Johnson's Adm. vs. Hunt, 81 Ky. 321. Crawford vs. Russell, 62 Barb. 92. So an agreement between husband and wife, providing for a possible separation in the future, is void, as it tends to facil- itate such separation. Parties having assumed the marriage relation, the law fixes certain rights and liabilities, which it is impossible for the parties to change by contract, and all agree- ments in violation of these rights and duties are void. The People vs. Mercein, 8 Paige 47-68. Restraint of Trade. Agreements in general restraint of trade are held to be void, on the ground that they deprive the public of useful services and encourage enforced idleness. Alger vs. Thacher, 19 Pick. 51. Bishop vs. Palmer, 146 Mass. 469. Arnot vs. Pittson and Elmira Coal Co., 68 N. Y. 558. Craft vs. McConoughy, 79 111. 346-348. Palmer vs. Stebbins, 3 Pick. 188-191. Collins vs. Plantern, 1 Smith's Ld. Cas. 646. But contracts in partial restraint of trade are frequently upheld. There is no established rule by which one can deter- mine what is reasonable and unreasonable restraint of trade. That question must be determined very largely by the facts and circumstances of each particular case. Oregon, etc. Co. vs. Winsor, 20 Wall. 64. Oilman vs. Dwight, 13 Gray 356. Chappel vs. Brockway, 21 Wend. 157. Wiley vs. Baumgardner, 97 Ind. 66, (n). IN CX)NTRACTS. 125 Competition at Auction. - Agreements to suppress competi- tion at auctions are void, on the ground that they are a fraud on the person whose property is being sold and generally harmful as against public policy. Gardiner vs. Morse, 25 Me. 140. Loyd et al. vs. Malorie et al., 23 111. 41. Wooten vs. Hinkle, 20 Mo. 290. Atcheson vs. Mallon, 43 N. Y. 147. Futures. Agreements for the sale of goods to be delivered in the future, with the understanding by the parties that no delivery shall be made, but the difference betw^een the price agreed upon and the market price on the day of delivery shall be paid to the party in w^hose favor it is, are void as against public policy. Mohr vs. Miesen, 47 Minn. 228. Irvin vs. Williar, 110 U. S. 499. Cobb vs. Prell, 22 Am. Law Reg. 613 n. Public Service. Agreements which tend to the injury of the public service are also void, on the ground that they are against public policy, such as an agreement to use one's influ- ence to elect another person to office, or to use his influence for the appointment of one to a public office, or an agreement to lobby for legislation, or to secure a pardon for a convict, or to w^ork for judicial clemency, or to secure the favorable action of any public servant. The law looks to the general tendency of such agreements, and closes the door to temptation by refusing to enforce them. Nichols vs. Mudgett, 32 Vt. 546. Gray vs. Hook, 4 N. Y. 449. Elston's Trustee's vs. Hines, 5 Pa. St. 452. Mairshall vs. Baltimore & Ohio Ry., 16 How. 814. Trist vs. Child, 21 Wall. 441. Hatzfield vs. Gulden, 7 Watts. 152. Kribben vs. Haycraft, 26 Mo. 396. Moyer vs. Cantieny, 41 Minn. 242. Buck vs. First Nat. Bank of Paw Paw, 27 Mich. 293. Meguire vs. Corwine, 101 U. S. 108. Tool Co. vs. Norris, 2 Wall. 45-56. So agreements tending to obstruct the course of public justice are void, such as agreements to prevent the prosecution 126 AUTHORITIES AND DEDUCTIONS of a criminal, the spiriting aw^ay of witnesses, the destruction of testimony. Henderson vs. Palmer, 91 111. 579-583. Kennedy vs. Hodges, 25 S. E. R. 493. Also agreements tending to encourage litigation, such as maintenance and champerty, which were both common law offenses, w^ere void at common law^. 2 Parsons on Contracts, 891. So agreements involving sexual immorality, or the doing of any act contrary to good morals, are void, the courts refusing absolutely to enforce theim. Hanks vs. Naglee, 54 Cal. 51. Brown vs. Tuttle, 80 Me. 162 ; 13 Atl. 583. Consideration Void in Part. If any part of the considera- tion for a promissory note, or other entire contract, be illegal, the agreement is void ab initio. Woodruff vs. Hinman, 11 Vt. 592. Deering vs. Chapman, 22 Me. 488. Tow^n of Hinesburg vs. Sumner, 9 Vt. 23. Loomis vs. Newhall, 15 Pick. 159. Crawford vs. Morrell, 8 Johns. 253. McBratney vs. Chandler et al., 22 Kan. 482. But if the contract is not entire, so it can be separated, and one part is legal and the other part is illegal, the legal part shall stand and the illegal fall. Carradine vs. Wilson, 61 Miss. 573. Goodwin vs. Clark et al., 65 Me. 280. Failure of Consideration. Where the consideration wholly fails, the agreement is said to be a nudum pactum, and the contract will not be enforced. Rice vs. Goddard, 14 Pick. 293. Thompson vs. Wheeler Mfg. Co., 29 Kan. 340. But if there is a partial failure of consideration, the courts wll generally take that fact into consideration in adjusting the rights of the parties, by way of reduction of damages for a breach of the Contract or in some other manner. Stevens vs. Johnson, 28 Minn. 172. IN CONTRACTS. 127 Harrington vs. Stratton, 22 Pick. 510. Torinus vs. Buckham, 29 Minn. 128. But where there is an utter want of consideration for an agreement there is no contract, as between the parties to such agreement, though there might be in the case of negotiable paper in the hands of innocent third parties. , Pearson ts. Pearson, 7 John. 25. FURTHER DEDUCTIONS AND DICTA. IN CONTRACTS. 129 LEX LOCI CONTRACTUS. It has been observed in the foregoing cases that a contract may be valid in one jurisdiction but void in another. Parties capable of contracting in one state may not be able to con- tract in another, and a consideration which is valid in one state may not be valid in another. According to what laws then is the validity of a contract to be determined? For the discussion of this question we will examine the following authorities : *Hyde vs. Goodnow, 3 N. Y. 266. Tyler vs. Trabue, 8 B. Mon. 306. Stacy vs. Baker, 1 Scam. 417. Smith & Co. vs. McLean, 24 la. 322. Hoyt vs. Thompson's Ex., 19 N. Y, 207. Knowlton vs. The Erie Ry. Co., 19 Oh. St. 260. Bond vs. Cummings, 70 Me. 125. Kennedy vs. Cochrane, 65 Me. 594. Wilson vs. Stratton, 47 Me. 120. Stevenson vs. Payne, 109 Mass. 378. Banchor vs. Mansel, 47 Me. 58. Merchant's Bank vs. Griswold, 72 N. Y. 472. Benners vs. Clemens, 58 Pa. St. 24. Suit vs. Woodhall, 113 Mass. 391. Bigelow vs. Burnham, 57 N. W. R. 865. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS )IflOlSION ACTION ISSUE LAW frV FACTS DECISION ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 131 Deductions and Dicta from Cases Examined. Contracts are often executed in one state to be performed elsew^here, and the question frequently arises in such cases, whether the contract is to be governed by the laws of the state where the contract is executed, or the laws of the state where it is to be performed. Hence it becomes necessary to determine whether the contract is really made in the one state or the other. As a general rule contracts are regarded as being made in the state or country where they are to be per- formed, and if they are valid in that state they are valid every- where, and if they are void in that state they are void every- w^here. Hyde vs. Goodnow, 3 N. Y. 266. Some cases hold that promissory notes are made in the state where they are payable, and are controlled by the laws of that state. Tyler vs. Trabue, 8 B. Mon. 306. Stacy vs. Baker, 1 Scammon 417. And when an offer is made by a person in one stkte to a person in another, the place where the offer is accepted is gen- erally regarded as the place where the contract is made. Andrews vs. Herriot, 4 Cowen 508. Bigelow vs. Burnham, 57 N. W. R. 865. 1 Wharton on Contracts, §20. (This subject will be pursued further in the study of Priv- ate International Law.) FURTHER DEDUCTIONS AND DICTA. ^^ — - — IN CONTRACTS. 133 PART IV. STATUTE OF FRAUDS. Notwithstanding there are parties competent to contract, and their mutual, free and concurrent assent is given to the act to be done or omitted, and the consideration involved in their agreement is in all respects valid and sufficient, yet such agree^ ment w^ill not ripen into a contract maintainable and enforce- able at law^ in certain cases, unless it is reduced to w^riting and signed by one or more of the parties thereto. Contracts may be enforceable, though oral, unless the law requires them to be in writing ; and the law^ which makes this requirement in a great majority of cases is known as the "statute of frauds" which was enacted in England in 1677, to prevent frauds and perjuries, and is designated 29 Car. II, C, 3. The two sections of this statute particularly affecting simple contracts are as follows : § 4. "That no action shall be brought whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; or to charge any person upon any agreement made upon consideration of mar- riage; or upon afiy contract, or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed w^ithin the space of one year from the making thereof; 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 other person thereunto by him lawfully authorized." § 17. "That no contract for the sale of any goods, wares, and merchandise, for the price of 10 lbs. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give 134 AUTHORITIES AND DEDUCTIONS something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bar- gain be made and signed by the parties to be charged by such contract, or their agents thereunto authorized." This statute has been abopted in a modified form in most, if not all of the states of the Union; and in Minnesota the stat- ute is in part as follows : § 4209. No action maintainable on agreement, when. No action shall be maintained in either of the following cases, upon any agreement, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by th*e party charged therewith : First. Every agreement that by its terms is not to be per- formed within one year from the making thereof; Second. Every special promise to answer for the debt, de- fault or doings of another ; Third. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promise to marrv. § 4210. Contract for the sale of goods void, when. Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, shall be void unless. First. A note or memorandum of such contract is made, in writing, and subscribed by the parties to be charged there- with ; or Second. Unless the buyer accepts and receives part of such goods, or the evidences, or some of them, of such things in action ; or. Third. Unless the buyer, at the time, pays some part of the purchase-money. § 4213. Conveyance, etc., of land to be in writing. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or con- cerning lands, or in any manner relating thereto, shall here- after be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the parties creating, granting, assign- ing, surrendering or declaring the same, or by their lawful agent thereunto authorized by writing. IN CONTRACTS. 135 § 4215. Leases for more than one year— Contracts for sale of land. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorand- um thereof, expressing the consideration, is in writing, and subscribed by the party by whom the lease or sale is to be made, or by his lawful agent thereunto authorized, in writing; and no such contract, when made by such agent, shall be en- titled to record unless the authority of such agent be also re- corded. For a further investigation of this statute w^e will examine the following cases : *Stone vs. Dennison, 13 Pick. 1. McCue vs. Smith, 9 Minn. 252. *La Du-King Mfg. Co. vs. La Du, 36 Minn. 473. Kriger vs. Leppel, 42 Minn. 6. Philbrook vs. Belknap, 6 Vt. 383. Galvin vs. Prentice, 45 N. Y. 162. Swanzey vs. Moore, 22 111. 63. Lockwood vs. Barnes, 3 Hill 128. Rogers vs. Stevenson, 16 Minn. 68. *Brown vs. Sanborn, 21 Minn. 402. Memorandum . *Clampet vs. Bells, 39 Minn. 272. *Peck vs. Yandemark, 99 N. Y. 29. Atwood vs. Cobb, 16 Pick. 227. Tice vs. Freeman, 30 Minn. 389. Sanborn vs. Nockin, 20 Minn. 178. *The Argus Co. vs. Mayor of Albany, 55 N. Y. 495. Tufts vs. The Plymouth Co., 14 Allen 407. Chase vs. City of Lowell, 7 Gray 33. Moss vs. Atkinson, 44 Cal. 3. Spangler vs. Danforth, 65 III. 152. *Osborne vs. Baker, 34 Minn. 307. *Morin vs. Martz, 13 Minn. 191. Wemple vs. Knopf, 15 Minn. 440. Justice vs. Lang^ 42 N. Y. 493. W. U. Tel. Co. vs. Ry. Co., 86 III. 246. § 4209. *Cowles vs. Warner, 22 Minn. 449. 136 AUTHORITIES AND DEDUCTIONS Heath vs. Heath, 31 Wis. 223. Kent vs. Kent, 62 N. Y. 560. Fenton vs. Emblers, 3 Burrows 1278. Curtis vs. Sage, 35 111. 22. Worden vs. Sharp, 56 111. 104. *Jellett vs. Rhode, 43 Minn. 166. Young vs. Dake, 5 N. Y. 463. *Cole vs. Hutchinson, 34 Minn. 410. *Mallory vs. Gillett, 21 N. Y. 412. *Cardell vs. McNeil, 21 N. Y. 336. Davis vs. Patrick, 141 U. S. 479. Scott vs. White, 71 111. 287. Prime vs. Koehler, 77 N. Y. 91. Leonard vs. Vredenburgh, 8 John. 28. *Nichols vs. Weaver, 7 Kan. 373. Siemens vs. Siemens, 65 Minn. 104; 67 N. W. R. 802. Henry vs. Henry, 27 Oh. St. 121. Clark vs. Pendleton, 20 Conn. 495. Derby vs. Phelps, 2 N. H. 515. Hanson vs. Marsh, 40 Minn. 1. Brown & Haywood Co. vs. Wunder, 64 Minn. 450 ; 67N. W. E.357. Phipps vs. McFarlane, 3 Minn. 109. Russell vs. Ry. Co., 39 Minn. 145. *Paine vs. Fulton, 34 Wis. 83. *Fontaine vs. Bush, 40 Minn. 141. Brabin vs. Hyde, 32 N. Y. 519. Stone vs. Browning, 51 N. Y. 211. Dow vs. Worthen, 37 Vt. 108. Cooke vs. Millard, 65 N. Y. 352-66. Combs vs. Bateman, 10 Barb. 573. Simmon's Hard. Co. vs. Mullen, 33 Minn. 195. Sharp vs. Carroll, 27 N. W. R. 833. Ortloff vs. Klitzke, 43 Minn. 154. Simpson vs. Krumdick, 28 Minn. 352. Gaslin vs. Pinney, 24 Minn. 322. *Hunter vs. Wetsell et al., 57 N. Y. 375. Affecting Realty. *Scanlon vs. Oliver, 42 Minn. 538. Delivery of Deed. Fay vs. Richardson, 7 Pick. 91. IN CONTRACTS. 137 Heffron vs. Flanigan, 37 Mich. 274. Regan vs. Howe, 121 Mass. 424. Fisher vs. Hall, 41 N. Y. 416. Stevens vs. Hatch, 6 Minn. 64. Jackson vs. Sheldon, 22 Me. 569. Blanchard vs. Blackstone, 102 Mass. 343. Westman vs. Krumweide, 30 Minn. 313. Marvin vs. McCullum, 20 John. 288. ACTION ipSUE LAW FACTS ..1.. -X - DECISION ACTION ISSUE ■• ,■■ LAW FACTS DECISION ACTION ISSUE LAW FACTS It- decision .„...,„^. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE p*— ^ $&- LAW I FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW •FACTS «*. DECISION ■;/f ACTION ISSUE LAW FACTS DECISION ■ ■A'i^'m'J!'Vr _AfiIiQS- ISSUB LAW FACTS ii&> DECISION ACTION ■■■>--.<^^S^i;3 r . ISSUE ' "- ; ■ — '- -• ~ ' LAW • § ''" 1 m -. ■ ' ■ FACTS < DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS r ¥A — -.. DECISION .iC ACTION ISSUE LAW FACTS DECISION ACTION . ^ m ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ^ ..-^.^,. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS W^ DECISION ACTION ISSUE LAW FACTS DECISION IN CONTRACTS. 139 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined, we deduce the following notes and deductions. Executed Contracts. This statute does not apply to con- tracts which have been wholly executed. Stone vs. Dennison, 13 Pick. 1. McCue vs. Smith, 9 Minn. 252. flodification. Nor can a parol modification of a written contract, within the statute, be shown ; bfcause a contract partly written and partly oral is an oral contract. Brown vs. Sanborn, 21 Minn. 402. Construction. While a contract within Section 4209 of the statute cannot be made the basis of a demand, if oral, it may nevertheless be used as a defense. Kriger vs. Leppel, 42 Minn. 6. La Du-King Mfg. Co. vs. La Du, 36 Minn. 473. Philbrook vs. Belknap, 6 Vt. 383. Galvin vs. Prentice, 45 N. Y. 162. Swanzey vs. Moore, 22 III. 63. Lockwood vs. Barnes, 3 Hill 128. Contra, King vs. Welcome, 5 Gray 41. Not Void. The agreement is not void, under this section, though not in writing, as it may be used for various purposes, such as a defense in actions upon a quantum meruit, regulat- ing the rights of the parties so far as it has been executed; and it may also determine the rights of the parties in other re- spects, as where one goes into possession of land under a parol lease for years and is sued as a trespasser, he may use such oral contract as a defense. Philbrook vs. Belknap, 6 Vt. 383. Memorandum. The contract need not be reduced to a formal writing under this statute, but a note or memorandum thereof will be sufficient, and what will constitute a sufficient memorandum may be learned from the following cases : 140 AUTHORITIES AND DEDUCTIONS (a) The note or memorandum, for instance, need not be made at the time the contract is entered into, but at any time before the action is brought upon it. Lerned vs. Wannemacher, 9 Allen 412-416. Bill vs. Bament, 9 M. & W. 36. (b) The memorandum need not pass between the parties to the agreement. It may be a letter written by the party to be charged to some third person, as where A wrote a letter to B saying he had purchased certain lands from C, describing them and mentioning the terms of sale. Moss vs. Atkinson, 44 Cal. 3. Spangler vs. Danforth, 65 111. 152. (c) It niay even consist of an entry made in the books of the party to be charged, if it sufficiently set forth tlie terms of the agreement and is signed by the proper party. The Argus Co. vs. Mayor of Albany, 55 N. Y. 495. Tufts vs. The Plymouth Co., 14 Allen 407. Chase vs. City of Lowell, 7 Gray 33. (d) The memorandum may be contained in more papers than one, and if but one of the papers is signed the others must be in some way referred to, so as to show that they all have reference to the same transaction. Morton vs. Dean, 13 Mete. 385. Peck vs. Vandemark, 99 N. Y. 29. (e) Or one paper, containing a part of the contract, may be attached to another properly signed and so made a part of it. Tallman vs. Franklin, 14 N. Y. 584. (f) But the memorandum must show who are the parties to the contract, either by naming them, or by so describing them that they can be identified. McConnell vs. Brillhart, 17 111. 354. (g) And such memorandum must also show the substance of the agreement with reasonable certainty. Atwood vs. Cobb, 16 Pick. 227. (h) And where one paper, constituting a part of the agree- ment, is referred to in another paper, which is signed by the IN CONTRACTS. 141 party, the part so referred to may be identified by parol evi- dence. Beckwith vs. Talbot, 95 U. S. 289-292. (i) And so parol evidence is admissible to identify the subject-matter to which the writing refers. Barry vs. Coombe, 1 Peters 640. Consideration. In some states it is not necessary that the consideration should be expressed in the memorandum ; but in Minnesota this is required, and it has been held that the ex- pression of a consideration is sufficient, though the actual con- sideration is not mentioned, so the words "for value received" have been held a sufficient expression within the statute. Osborne vs. Baker, 34 Minn. 307. Signing. Ordinarily the signing of an agreement consists in the party's signature virritten at the end of the memorandum ; but it may consist in simply his initials, or even his mark, even though he can write. Sanborn vs. Flagler, 9 Allen 474. Brown vs. The Bank, 6 Hill 443. Baker vs. Dening, 8 A. & E. 94. So a person's name may even be printed on the written agreement, or stamped, or engraved, or photographed, so long as it appears that he has adopted such signature as his own. Weston vs. Myers, 33 111. 424. Brayley vs. Kelly, 25 Minn. 160. Bennett vs. Brumfitt, L. R. 3 C. P. 28-30. The signature may also appear at the beginning or end of •the writing or elsewhere, if the signer recognizes the paper as one which he intends to be bound by. Clason vs. Bailey, 14 John. 484. Nor is it necessary that the writing be signed by both par- ties as a written offer verbally accepted will be binding upon the one who has signed it, except as herein^after noticed. Morin vs. Martz, 13 Minn. 191. But this case must be distinguished from a contract to sell land, where under our statute a written offer orally accepted 142 AUTHORITIES AND DEDUCTIONS will not suffice, as both parties must sign such contracts. Lanz vs. McLaughlin, 14 Minn. 72. The fact that one party may be bound under such con- tracts, while the other one is not bound, seems to be an excep- tion to the general principle that contracts must be mutual; but this exception is only apparent. The party who has pro- cured his written evidence is simply in a better position than the other party who has neglected to procure such evidence. Justice vs. Lang, 42 N. Y. 493. Judicial Construction. Having so far examined the form- alities of these agreements, w^e will now take the statute up section by section. The following agreements must be reduced to writing in order that an action may be maintained upon them. First Clause. " Everj' agreement that by its terms is not to be performed within one year from the making thereof." Cowles vs. Warner, 22 Minn. 449. This clause does not refer to contracts which may possibly be performed within one year, and which may possibly con- tinue for a longer pet-iod. In other w^ords contingencies as to time are not within the statute. Fenton vs. Emblers, 2 Burrows, 1278. .Heath vs. Heath, 31 Wis. 223. Kent vs. Kent, 62 N. Y. 560. Curtis vs. Sage, 35 111. 22. An agreement, which cannot by its terms be performed within one year, such as a contract for three years' services, is within the statute, and must be in writing in order to form the basis of a demand ; but even if not in writing the oral agreement may be used for certain purposes. First. If one person employ another for the term of three years, and the employer should discharge the employee with- out cause, such employee may maintain an action on quantum meruit for the reasonable value of his services, and the em- ployer cannot invoke the statute to his aid. Wm. Butcher Steel Works vs. Atkinson, 68 111. 421. Second. But if the employee leaves the employer's service without cause, he cannot maintain an action on a quantum IN CONTRACTS. 143 meruit, and the employer can avail himself of the statute as a defense. Kriger vs. Leppel, 42 Minn. 6. But if the employee should leave the employer's service for good cause, as in case of sickness, he can maintain an action on a quantum meruit, and recover his wages pro rata. La Du-King Mfg. Co. vs. La Du, 36 Minn. 473. Clark vs. Terry, 25 Conn. 395. So a parol lease of real estate for the term of one year to commence in the future is invalid in Minnesota. Jellett vs. Rhode, 43 Minn. 166. 5econd Clause. "Every special promise to answer for the debt, default, or doings of another." Such a promise is usually termed a guaranty. The plain object of the statute is to require more certain evidence in or- der to charge the party for the debt of another person than might be required in order to charge a person for a debt of his own. (a) The words "special promise" mean a promise in fact, as distinguished from a promise implied by law. Sage vs. Wilcox, 6 Conn. 81-85. Goodwin & Al. vs. Gilbert & Al., 9 Mass. 510. (b) The phrase "debt, default, or doings of another" in- cludes any liability, present or future, arising out of contract or tort. There must exist a liability in the present, or the prospect of one in the future, before a person can answer for it. Matson vs. Wharam, 2 T. R. 80. Mead, Mason & Co. vs. Watson, 57 Yt. 426. (c) The words "another person" mean some person other than either of the parties to the agreement, i. e., a third per- son, as if A promise B to pay B's debt, this would not fall within the statute ; but if A promise B to pay C's debt, that would fall within the statute. Minor vs. Walter, 17 Mass. 236. Barker vs. Bucklin, 2 Denio 45-60. Examples, (a) If goods are sold to A upon his credit, and B promises to answer for the debt to the vendor, such 144 AUTHORITIES AND DEDUCTIONS promise is within the statute, and must be in writing and signed by the party to be charged. Cahill vs. Bigelow, 18 Pick. 369. Cole vs. Hutchinson, 34 Minn. 410. Matson & A. vs. Wharam, 2 T. R. 80. Jones vs. Cooper, 1 Cowper 227. (b) The real question in such case is, to whom was the credit given. If the credit is given to the person receiving the goods, and some other party promises to answer for that debt, then such agreement is of course within the statute. Cole vs. Hutchinson, 34 Minn. 410. Chase vs. Day, 17 John. 114. (c) But a promise to pay the debt of another, in consid- eration of that other's release from the debt, is not within the statute, because there remains no debt of "another" to answer for. Yale vs. Edgerton, 14 Minn. 194-202. Eddy et al. vs. Roberts, 17 111. 505. Wood vs. Corcoran, 1 Allen 405. (d) A promise to the debtor himself to pay his debt is not within the statute, because it is not the debt of a third person, as where A promises B to pay B's debt to another. Eastwood vs. Kenyon, 11 A. & E. 438. Alger vs. Scoville, 1 Gray 391. Stariha vs. Greenwood, 28 Minn. 521. Holbrook vs. Jackson & A., 7 Cush. 136. (e) So the promise to save one harmless from the results of a transaction, into which he enters at the request of the promisor, is not within the statute, for it is not an answer for the debt of a third person. Aldrich vs. Ames, 9 Gray 76. Barry vs. Ransom, 12 N. Y. 462. ( f ) So where the leading purpose of the promisor is to promote some end of his own, in such case the promise is not within the statute, although the debt of a third person is inci- dentally guaranteed, as whether the holder of a promissory IN CONTRACTS. 145 note transfers it guaranteeing its payment at maturity to further some enterprise of his own. Nichols, etc. vs. Allen, 22 Minn. 283. Cardell vs. McNeil, 21 N. Y. 336. Sheldon vs. Butter & A., 24 Minn. 513. Wilson vs. Hentges, 29 Minn. 102. (g) And also where a del credere agent undertakes, for an increased commission, to sell the goods of his employer, and guarantees the solvency of the purchaser, such promise is not within the statute of frauds. Osborne & Co. vs. Baker, 34 Minn. 309. Swan et al. vs. Nesmith et al., 7 Pick. 220. (h) "So where the purpose of the promise to pay the debt of a third person is to secure the benefit to the promisor by re- lieving his property from a lien, or securing or confirming his possession, the promise is original and not collateral, and is not w^ithin the statute of frauds," as where A purchases prem- ises subject to a mortgage, the payment of w^hich he does not assume, but the interest falling due A verbally promises the holder of the mortgage that if he will not foreclose he will pay all the interest in arrear, to which the holder of the mortgage assents. Prime vs. Koehler, 77 N. Y. 91. Scott vs. White, 71 111. 287. Conclusions. From the foregoing examination we observe the following classes of cases : First. Where the promise to pay is made at the same time or before the credit is given or the debt incurred, as in the sale of goods, the agreement is within the statute, and must be in writing. Cole vs. Hutchinson, 34 Minn. 410. Second. Where the promise to pay is made after the debt has been contracted (and in which case the promise must rest upon some new consideration in connection with the original debt, as a forbearance to enforce a legal claim), the agreement is within the statute, and must be in writing. Mallory vs. Gillett, 21 N. Y. 412. 146 AUTHORITIES AND DEDUCTIONS Third. Where the promise to pay is made after the origi- nal debt has been incurred, but is made upon a consideration passing to the promisor from the promisee, then the agree- ment is not within the statute, and may be oral. Cardell vs. McNiel, 21 N. Y. 336. Leonard vs. Yredenburg, 8 John. 28. Walker vs. McDonald, 5 Minn. 455. Third Clause. "Every agreement, promise, or undertak- ing, made upon consideration of marriage, except mutual promises to marry." (a) If a person promise to do some act, in consideration that the promisee marry him, such promise is of course within the statute, and must be in writing. Henry vs. Henry, 27 Oh. St. 121. (b) The mutual promises to marry are not within this clause of the statute; but if one promise to marry another in two years from date of the engagement, so that the agreement by its terms cannot be performed within one year from the time that it is made, the first clause of this statute then ap- plies, and to be valid the agreement must be in writing. Clark vs. Pendleton, 20 Conn. 495. Nichols vs. Weaver, 7 Kan. 373. Derby vs. Phelps, 2 N. H. 515. Sale of Goods. Section 4210 of the Minnesota statutes has reference to the sale of goods, and declares that "Every con- tract for the sale of any goods, chattels, or things in action, for the price of $50 or more shall be void unless ; First. A note or memorandum of such contract is made in writing, and subscribed by the parties to be charged there- with." (a) As to what are goods, chattels, and things in action, is not always easy to determine. Where one agreed to furnish, material, and to construct it into certain movable houses of certain dimensions and deliver them at a certain place, it was held that this contract was not for the sale of material in solido, but that it blended together the price of the material sold and compensation for work performed, and consequently was not a sale of goods. Phipps vs. McFarlane, 3 Minn. 109. IN CONTRACTS. 147 (b) But where one promised by parol to furnish railroad ties, it was held that it was a sale of goods, and the contract fell within the statute of frauds. Russell vs. Ry. Co. 39 Minn. 145. (c) Parol evidence is not admissible to show that at the time that the agreement was entered into there w^as an oral understanding that the party signing the same might revoke the agreement by notifying the other pary of the revocation, as this oral modification would reduce the whole agreement to an oral agreement. Wemple vs. Knopf, 15 Minn. 440. (d) The note or memorandum in this section must be signed by the party to be charged, though it may not be signed by the other party. Morin vs. Martz, 13 Minn. 191. (e) This note or memorandum also must state the price of the goods sold; otherwise an esseutial element of the con- tract is omitted. Hanson vs. Marsh, 40 Minn. 1. Irvine vs. Stone, 6-Cush. 508. "Second. Unless the buyer accepts and receives part of such goods, or the evidences, or some of them, of such things in action." (a) This second clause provides that the agreement of sale must be in writing, unless the purchaser both accepts and receives part of the goods sold. Either acceptance or receipt alone is not sufficient; there must be both receipt and accept- ance. Gaslin vs. Finney, 24 Minn. 322. Ortloff vs. Klitske, 43 Minn. 154. Cooke vs. Millard, 65 N. Y. 352. Stone vs. Browning, 51 N. Y. 211. Fontaine vs. Bush, 40 Minn. 141. (b) A delivery of the goods for transportation, to a com- mon carrier selected by the seller, will not take the agreement from under the statute. Simmons H. Co. vs. Mullen, 33 Minn. 195. 148 AUTHORITIES AND DEDUCTIONS " Third. Unless the buyer, at the time, pays some part of the purchase-money." (a) Under the third clause it is provided that such a con- tract of sale shall be valid, even though not in writing, if a part of the purchase price has been paid at the time the con- tract is made. A payment at any subsequent time, unless there is practically a new contract made, will not be sufficient. Hunter vs. Wetsell et al., 57 N. Y. 375. Paine vs. Fulton, 34 Wis. 83. (b) Part payment, by an agreement to offset an existing debt, is not sufficient to meet the requirements of the statute. Walker vs. Nussey, 16 M. & W. 302. M. & W. Refining Co. vs. McMahon's Adm., 38 N. J. L. 536. Artcher vs. Zeh, 5 Hill 200-205. (c) It is not necessary that money should pass from the vendee to the vendor, but there must be an actual payment at that time in some form. An agreement to pay or offset a debt, still leaves the agreement in words simply. Dow vs. Worthen, 37 Vt. 108, Cotterill vs. Stevens, 10 Wis. 422. Brabin vs. Hyde, 32 N. Y. 519-523. (d) The payment required under this section may be made by offset, by exchange of property, by giving one's check, or transferring the note of a third party, or even the surrender of an existing note held by the vendee against the vendor. Combs vs. Bateman, 10 Barb. 573. Sharp vs. Carroll, 27 N. W. R. 832. The other sections of the Minnesota statute, requiring cer- tain agreements to be in writing, will be considered under the subjects to which they refer. We will simply state here the very important section 4215, which requires that: "Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, ex- pressing the consideration, is in writing, and subscribed by the party by whom the lease or sale is to be made, or by his lawful agent thereunto authorized in writing; and no such IN CONTRACTS. 149 contract when made by such agent shall be entitled to record, unless the authority of such agent is also recorded." (a) Under this section all the necessary elements of a con- tract must be found in the memorandum. Clampet vs. Bells, 39 Minn. 272. Scanlan vs. Oliver, 42 Minn. 538. (b) Nor should there be any uncertainty as to the subject- matter of the agreement. George vs. Conhaim, 38 Minn. 338. (c) And after the memorandum is made, containing all the essential elements of a contract, it must also be delivered. Comer vs. Baldwin, 16 Minn. 172. Parker vs. Parker, 1 Gray 409-411. FURTHER DEDUCTIONS AND DICTA. IN CONTRACTS. 151 ASSIGNHENT. Having now seen how contracts may be made, and how they are required in certain cases to be reduced to writing, w« will next consider the assignability of contracts, and to this end we will examine the following cases : *City of St. Louis vs. Clemens, 42 Mo. 69. Devlin vs. Mayor of N. Y., 63 N. Y. 8. Wetmore vs. San Francisco, 44 Cal. 294. Philadelphia vs. Lockhardt, 73 Pa. St. 211. Lett vs. Morris, 4 Simons 607. *Sears vs. Conover, 3 Keyes 113. Tyler vs. Barrows, 6 Robt. (N. Y.) 104. *Inhab. of Clinton vs. Fly, 10 Me. 292. *Palo Pinto County vs. Gano & Sons, 60 Tex. 249. Hay vs: Willis, 4 Daly (N. Y.) 259. Chapin vs. Longworth, 31 Oh. St. 421. Bryant Vs. Erskine, 55 Me. 153. Joslyn vs. Parlin, 54 Vt. 670. Bethlehem vs. Annis, 40 N. H. 34. Burger vs. Rice, 3 Ind. 125. Davis vs. Coburn, 8 Mass. 299. Flanders vs. Lamphear, 9 N. H. 201. Hardy Imp. Co. vs. Southbend Ir. W., 31 S. W. R. 599. Liabilities. *Lansden et al. vs. McCarthy, 45 Mo. 106. *Ark. Val. Smelt. Co. vs. Belden M. Co., 127 U. S. 379. Rappleye vs. Racine Seeder Co., 79 la. 220- Torts. Hunt vs. Conrad, 47 Minn. 557. Cooper vs. St. Paul City Ry., 55 Minn. 134. Butler vs. N. Y. &JErie Ry., 22 Barb. 110. Jordan vs. Gillen, 44 N.-H. 424. Tyson vs. McGuineas, 25 Wis. 656. Dix vs. Cobb, 4 Mass. 507. Weed vs. Jewett, 2 Mete. 608. State vs. Williamson, 118 Mo. 146. *Pease vs. Rush, 2 Minn. 107. 152 AUTHORITIES AND DEDUCTIONS Shaw vs. Ry. Co., 101 U. S. 557. Odell vs. Gray, 15 Mo. 337. Walker vs. Ocean Bank, 19 Ind. 247. New vs. Walker, 108 Ind. 365; 9 N. E. R. 386. *Kernochan vs. Murray et al.. Ill N. Y. 306. Chamberlain vs. Dunlop, 126 N. Y. 45. Drummond vs. Crane, 159 Mass. 577. Wright vs. Holbrook, 32 N. Y. 587. Allen vs. Baker, 86 N. C. 91. Chase vs. Fitz, 132 Mass. 359. Janin vs. Browne, 59 Cal. 37. •*Wills vs. Summers, 45 Minn. 90. Trask vs. Graham, 47 Minn. 571. Mason vs. Smith, 131 Mass. 510. Overman et al. vs. Sanborn et al., 27 Vt. 54. Spear vs. Fuller, 8 N. H. 174. Fisher vs. Deering, 60 111. 114. _ ACTION ISSUE LAW » FACTS DECISION ACTION ISSUE LAW FACTS DECISION ; lO ACTION ISSUE LAW FACTS DECISION ACTION ISSUE ; LAW I- FACTS DECISION ACTION ' ^ ISSUE LAW FACTS DECISION ACTION ISSUE LAW DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION 5t* ISSUE I LAW FACTS DECISION '^., ACTION ISSUE LAW FACTS ;__.._u_.....:-? j|r^- DECISION ACTION ISSUE- •W LAW FACTS DECISION IN CONTRACTS. 153 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined, we make the following notes and deductions. Contracts and the rights arising under them may now^, as a general rule, be assigned, unless they involve some relation of public trust or confidence, or unless such rights are accom- panied with legal liabilities. Formerly choses in action could not be assigned ; but by virtue of statutes and the principles of equity they are now generally assignable ; and the assignment of contracts may be made either by the act of the parties there- to, or by operation of law. By Act of Parties. A party to a contract may assign his rights thereunder to a third person as a general rule, provided there is no element of trust or confidence reposed in him by the other party to the contract. City of St. Louis vs. Clemens, 42 Mo. 69. Devlin vs. Mayor of N. Y. 63 N. Y. 8. Wetmore vs. San Francisco, 44 Cal. 294. Philadelphia vs. Lockhardt, 73 Pa. St. 211. And the third person to whom such contract is assigned may maintain an action upon such contract in his own name, as the assignor might have done had no assignment been made. City of St. Louis vs. Clemens, 42 Mo. 69. And contracts for the sale of personal property, in the ab- sence of any element of trust or credit, are assignable, and the assignee may maintain an action upon them. Sears vs. Conover, 3 Keyes 113. But where contracts involve the element of trust and con- fidence, as where a son enters into a contract to care for his parents, the contract in such case is not assignable, without the consent of the other party to the contract. Inhab. of Clinton vs. Fly, 10 Me. 292. Palo Pinto County vs. Gano & Sons, 60 Tex. 249. 154 AUTHORITIES AND DEDUCTIONS So articles of agreement between a master and his appren- tice, w^hereby the master stipulates to teach and instruct his apprentice, is not such a contract as can be assigned. Davis vs. Coburn, 8 Mass. 299. And so contracts coupled with liabilities are not assign- able, as where one agrees to sell property and to give credit to the purchaser for the purchase price thereof. The vendee in such case cannot assign the agreement. Lansden et al. vs. McCarthy, 45 Mo. 106. Ark. Val. Smelt Co. vs. Belden Co., 127 U. S. 379. It should be noticed, however, that debts incurred for goods sold, or wages earned or to be earned under an existing contract, are subject to assignment. Dix vs. Cobb, 4 Mass. 508. Augur vs. N. Y. Belting and Packing Co., 39 Conn. 536. Weed vs. Jewett, 2 Mete. 608. But the unearned salary of a public officer is not assign- able, upon the ground that such assignment is against public policy and consequently void. State vs. Williamson, 118 Mo. 146. State Nat. Bank vs. Fink et al., 24 S. W. R. 256. In the absence of statute a breach of promise to marry does not survive the death of either party to the agreement where no special damage is alleged. Stebbins vs. Palmer, 1 Pick. 71. Chase vs. Fitz, 132 Mass. 359. Allen vs. Baker,*86 N. C. 91. Chamberlain Adm. vs. Williamson, 2 M. & S. 408. Contracts Assignable Under the Law Merchant. Of course under the law merchant those particular kinds of contracts, known as negotiable instruments, including notes, bills, and bonds of various kinds, are assignable. Pease vs. Rush, 2 Minn. 107. Shaw vs. Ry. Co., 101 U. S. 557. Odell vs. Gray, 15 Mo. 337. It may be further stated that all those rights, arising from torts, which do not survive to the personal representative, are not assignable ; but if they do survive, such as those rights IN CONTRACTS. 155 arising from injuries to personal property, or trespass on land, or fraud in the sale of realty, they are assignable. Trash vs. Graham, 47 Minn. 571. Cooper vs. St. Paul Ry., 55 Minn. 134. Butler vs. N. Y. & Erie Ry., 22 Barb. 110. Jordan vs. Gillen, 44 N. H. 424. Tyson vs. McGuineas, 25 Wis. 656. Graves vs. Spier, 58 Barb. 349. By Operation of Law. Contract rights and liabilities are often assigned by operation of law, as is the case when a party to the contract dies and his legal representatives are held liable, and also in the case of covenants in a lease that run with the land, which pass with the lease into the hands of the covenantee's representatives. Kernochan vs. Murray, 111 N. Y. 306. Wills vs. Summers, 45 Minn. 90. FURTHER DEDUCTIONS AND DICTA. IN CONTRACTS. 157 RULES OF CONSTRUCTION. Inasmuch as the language employed by the parties in re- ducing their contracts and assignments to writing is often ambiguous, it becomes necessary to interpret and construe such language in order to ascertain the real meaning of the parties, and for that purpose certain rules of construction have been adopted ; for a statement of which rules we will ex- amine the follow^ing cases : *Mathews vs. Phelps, 61 Mich. 327. *Green Bay etc. Co. vs. Hewett Jr., 55 Wis. 96. Walker vs. Douglass, 70 111. 445. Flagg vs. Eames, 40 Yt. 16. Gray vs. Clark & Putnam, 11 Vt. 583. *Haywood vs. Perrin, 10 Pick. 228. Collins vs. Lavelle, 44 Vt. 230. Makepeace vs. Harvard College, 10 Pick. 298. Morse vs. Salisbury, 48 N. Y. 636. Walker vs. Boynton, 120 Mass. 349. Reed vs. Lammel, 28 Minn. 306. *Stearns et al. vs. Sweet et al., 78 111. 446. Hawes vs. Smith, 12 Me. 429. Stettauer vs. Hamlin, 97 111. 312. Rindskoff vs. Barrett, 14 la. 101. Morey vs. Homan, 10 Yt. 565. Hancock vs. Watson, 18 Cal. 138. Chadsey vs. Guion, 97 N. Y. 333. Ward vs. Whitney, 8 N. Y. 442. Adams vs. Hill, 16 Me. 215. Buck vs. Burk, 18 N. Y. 337. Lindley vs. Groff, 37 Minn. 338. Fowler vs. Woodward, 26 Minn. 347. Butler vs. Bohn, 31 Minn. 325. Wells vs. Atkinson, 24 Minn. 161. St. Paul & D. R. Co. vs. Blackmar, 44 Minn. 514. Hill vs. City of Duluth, 58 N. W. R. 992. First Nat. Bank vs. Jagger, 41 Minn. 308; 43 N. W. R. 70. ACTION ISSUE LAW FACTS fefi DECISION ACTION .r „ . ._ . , V!f ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS j3r DECISION ACTION ISSUE . LAW PACTS DECISION ACTION ISSUE LAW .FACTS DECISION ACTION ISSUE LAW FACTS DECISION ;^(. ACTION ISSUE LAW FACTS DECISION ACTION ISSUE t LAW I ^ t FACTS DECISION ,U IN CONTRACTS. 159 Deductions and Dicta from Cases Examined. After contracts have been reduced to writing, and assigned in writing where assignable, it often becomes necessary to construe and interpret the language employed by the parties in such original contract, or the assignment, or both. Whether there is a contract at all or not is a matter of fact for the jury to determine, but what is meant by the contract is a matter of law for the judge; and for his assistance the following rules of construction have been established : (1) To discover the mutual intention of the parties, and to give that intention effect, is the first and controlling princi- ple of interpretation. Lindley vs. Grofif et al., 37 Minn. 338. ' , Mathews vs. Phelps, 61 Mich. 327. Flagg vs. Eames, 40 Vt. 16. Green Bay Co. vs. Hewett Jr., 55 Wis. 96. (2) The contract is to be considered in entirety, and each part will be so construed with reference to all the other parts that if possible all may have some effect. Goosey et al. vs. Goosey et al., 48 Miss. 210-217. Haywood vs. Perrin, 10 Pick. 228^ (3) The plain, ordinary and popular meaning of the words employed in a contract should be allowed to prevail. Stearns et al. vs. Sweet et al., 78 111. 446. Hawes vs. Smith, 12 Me. 429. Bullock vs. Consumers' Lbr. Co., 31 Pac. R. 367. (4) But if words employed in a contract have acquired a special meaning by usage, such meaning must be givt-n them in the construction >of the contract. Callahan vs. Stanley, 57 Cal. 476. (5) Besides considering the language employed in the contract the court will also consider the situation of the par- ties, the subject-matter of the contract, and the purposes and objects to be accomplished by it in order to ascertain the in- tention and meaning of the parties. Field et al. vs. Woodmancy, 10 Cush. 427-31. 160 AUTHORITIES AND DEDUCTIONS (6) Technical words in a written contract will be inter- preted to mean what they are usually understood to mean by the profession which usually employs them, unless some other meaning is clearly evident. Ellmaker vs. Ellmaker, 4 Watts 89. Jackson vs. Myers, 3 John. 388. (7) Where there are two or more instruments, as a deed and a mortgage, employed by the parties in the same trans- action, they will all be construed as one instrument and con- stituting one contract, and w^ill be interpreted accordingly. Holbrook vs. Finney, 4 Mass. 566-9. (8) Where words are employed in a contract which are plainly contrary to the object the parties had in view, as where the word "not" is used in a bond, which makes the bond meaningless, such words are to be rejected. Hibbard vs. McKindley, 28 111. 240. Wells vs. Tregusan, 2 Salk. 463. (9) So if a contract is partly written and partly printed, if these parts are repugnant to each other, the written part will control the printed portion. Chadsey vs. Guipn, 97 N. Y. 333. (10) So when a'contract is open to two constructions one of which is lawful and the other of which is unlawful, the former in such case must prevail. Hobbs vs. McLean, 117 U. S. 567. United States vs. Central Pacific, 118 U. S. 235. Wells vs. Atkinson,, 24 Minn. 161. (11) The conduct of the parties in pursuance of a con- tract whose language is ambiguous, has great weight in determining what they understood the contract to mean. Topliff vs. Topliff, 122 U. S. 121. (12) As a general rule the language employed in a con- tract, in case of ambiguity, will be taken most strongly against the party employing it, as the words of an offer against the offerer, and words in an acceptance against the acceptor, and words in a promissory note against the maker. Noonan vs. Bradley, 9 Wall. 394. i ■ 1-^ ) f i; I \"\ ' IN CONTRACTS. 161 (13) Courts of both law and equity will correct the mis- takes in grammar and w^riting which clearly appear to be such. Fowler vs. Woodward, 2Q Minn. 347. Moray vs. Homan, 10 Vt. 565. The County of De Soto vs. Dickson, 34 Miss. 150. FURTHER DEDUCTIONS AND DICTA. :■,„■ '•!!/■■■ 'i>"^-iM:'^^:«i:.z::L IN CONTRACTS. 163 DISCHARGE OF CONTRACTS. Having seen how contracls may be made, assigned and interpreted, we must now consider, finally, how^ they may be discharged ; and to this end we will examine the following cases : *Kelly vs. Bliss, 54 Wis. 187. King vs. Gillett, 7 M. & W. 55. *Rollins vs. Marsh, 128 Mass. 116. Siebert vs. Leonard, 17 Minn. 433. Miinroe vs. Perkins, 9 Pick. 298-304. Renard vs. Sampson, 12 N. Y. 561. 111. Cent. Ry. vs. Read, 37 111. 485. *Cordes vs. Miller, 39 Mich. 581. *Dexter vs. Norton, 47 N. Y. 62. Wells vs. Calnan, 107 Mass. 514. Spalding vs. Rosa, 71 N. Y. 40. Drake vs. White, 117 Mass. 10. Taylor vs. Caldwell, 3 B. & S. 826. *Stees vs. Leonard, 20 Minn. 494. *Meye'r vs. Huneke, 55 N. Y. 412. Neff vs. Horner, 63 Pa. St. 327. Hunt vs. Adams, 6 Mass. 519. *Burtis vs. Thompson, 42 N. Y. 246. Howard vs. Daly, 61.N. Y. 362. McCormick vs. Basal, 46 la. 235. Parker vs. Russell, 133 Mass. 74. Sheahan vs. Barry, 27 Mich. 217. *Wayman vs. Cochrane, 35 111. 152. Clark vs. Bowen, 22 How. 270. *Litchfield vs. McDonald, 35 Minn. 167. ACTION ISSUE LAW FACTS •f^pm*- >Xr^ "H '' .'fl^-'?ll DECISION ACTION ISSUE LAW FACTS )ECtSION ACTION ISSUE i — — LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW f. FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW FACTS DECISION ACTION ISSUE LAW L FACTS DECISION IN CONTRACTS. 165 Deductions and Dicta from Cases Examined. From the foregoing cases and others cited and examined we deduce the following propositions. Mutual Agreement. Parties to a contract may discharge their liabilites thereunder by mutual agreement so to do, as in case of a contract to marry, where the parties may discharge each other by mutual consent. King vs. Gillett, 7 M. & W. 55. New Contract. So contract liabilities may be discharged by the parties substituting a new contract for the old one, or by a release made by one party to the other, under seal, or based upon a valuable consideration. 111. Cent. Ry. vs. Read, 37 111. 485. Renard vs. Sampson, 12 N. Y. 561. Rollins vs. Marsh, 128 Mass. 116. Surrender. The liability on a promissory note may be terminated by a surrender of the note, with intent to discharge the liability. Larkin vs. Hardenbrook, 90 N. Y. 333. If one party to a contract has executed his part of it, an agreement then by the parties to release the one who has not performed his part would be w^ithout consideration. Kidder vs. Kidder et al., 33 Pa. St. 268. Change of Terms. So the liabilities under a contract may be discharged by a change in the terms of the contract, where- by a new one is in effect substituted for the old. Rollins vs. Marsh, 128 Mass. 116. Mutual Releases. The release of one of the parties from liability under the original agreement is a sufficient considera- tion for the release of the other from his liability, and hence the mutual releases are considerations each for the other. Cutter vs. Cochrane, 116 Mass. 408. Hewitt vs. Brown, 21 Minn. 163. 166 AUTHORITIES AND DEDUCTIONS In the last case it is said : "It is competent for the parties to a written agreement not within the statute of frauds, at any time before breach of it, by a new contract not in writing in any manner to add to or subtract from or vary or qual- ify the terms of it, and thus make a new contract, w^hich is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted on what would then be left of the written contract." Inconsistent Terms. If the parties to one contract make a new^ one about the same subject-matter, and the terms of the new one are inconsistent with those of the old, the latter will be considered as changing the former terms. Stow vs. Russell, 36 111. 18. Renard vs. Sampson, 12 N. Y. 561. Oral Agreement. So a contract under seal may be dis- charged by an oral agreement fully performed, or if acted upon so far that the parties cannot be put in statu quo. Munroe vs. Perkins, 9 Pick. 298. Siebert vs. Leonard, 17 Minn. 433. Dearborn vs. Cross, 7 Cowen 48. Canal Co. vs. Ray, 101 U. S. 522-527. Contracts w^hich are within the statute of frauds cannot be modified by a subsequent parol agreement, because the altering of a written contract by parol makes it all parol. Brown vs. Sanborn, 21 Minn. 402. Hill vs. Blake, 97 N. Y. 216. Vicary vs. Moore, 2 Watts. 451. But a contract required to be in writing bj' the statute of frauds may he discharged by an oral contract fully performed. Norton vs. Simons, 124 Mass. 19. Novation. A contract may be discharged by a change in the parties thereto, whereby a new party is substituted for one of the others, by agreement of all. This is known as novation. Blunt vs. Boyd, 3 Barb. 209. Malcrone vs. Lbr. Co., 55 Mich. 622. Cornwall vs. McGinnis, 39 Minn. 407. In the last case the court says : "To constitute a nova- IN CONTRACTS. 167 tion of parties there must be an extinguishment of the old debt, by mutual agreement between all the parties, whereby it becomes the obligation of the new debtor. The discharge of the old debt must be contemporaneous w^ith, and result from, the consummation of an arrangement with the new^ debtor." An illustration of novation is found in the case "where A owes B $1000, and B owes C $1000, and the three parties agree between themselves that A shall pay C $1000, and that B's debt to C shall be extinguished." "In the case supposed C gives a consideration for the promise of A to him in the satisfaction and discharge of the debt of B, and receives a consideration for his discharge of B in the promise to A. A receives a consideration for his promise to C in the satisfaction and discharge of his debt to B. B receives consideration for his debt to A in the satisfaction and discharge of his debt to C." McKinney vs. Alvis, 14 111. 33. Butterfield vs. Hartshorn, 7 N. H. 345. Eeid et al. vs. Degener et al., 82 111. 508. This change of parties to a contract and discharge of lia- bilities may be effected by an implied novation, as w^ell as by an express one, as "where a co-partner, after a dissolution of the firm, gave his individual note and the note of a third per- son to adjust and settle a partnership debt, it was held an ex- tinguishment of the demand against the other partners, the creditors having agreed to receive the same in payment of such demand." Waydell vs. Luer, 3 Denio 410. Contingency Expressed. So a contract may contain a pro- vision for its own determination, as where the buyer of prop- erty has the privilege of returning it within a specified time if not found to be as represented by the seller ; and also where the parties agree that their respective liabilities shall termi- nate upon the happening of some event, as is the case in a bond, where if the condition is fulfilled the bond is void. Ray vs. Thompson, 12 Cush. 281. Head vs. Tattersall, L. R. 7 Exch. Cases 7. Performance. Contracts may also be discharged and the 168 AUTHORITIES AND DEDUCTIONS parties relieved from their liabilities thereunder by a perform- ance of the contract in accordance with its terms, as where the maker of a promissory note discharges his liability by pay- ment. Impossibility of Performance. Contracts may be discharged in certain cases by the impossibility of their performance, but as a general rule if a man binds himself by a positive and ex- press contract, to do an act in itself possible to be performed, he must perform his engagement unless prevented by the law, or the act of the other party; and no hardship, or unforeseen hindrance and difficulty will excuse him from doing what he has expressly agreed to do. Stees vs. Leonard, 20 Minn. 494. The Harriman, 9 Wall. 161. Jones vs. United States, 96 U. S. 24. Harmony vs. Bingham, 12 N. Y. 99. Anderson vs. May, 50 Minn. 280. But there are some apparent exceptions to this rule, where the impossibility of performance will relieve one from liability. (a) Where a specific thing, whose continued existence is essentialto the performance of the contract, is destroyed with- out fault of the promisor, he is not bound to make compensa- tion in damages for its non-performance, as where a hall is rented for a concert on a certain day, and is destroyed by fire before that day arrives. Taylor vs. Caldwell, 3 B. & S. 826. Dexter vs. Norton, 47 N. Y. 62. Wells vs. Calnan, 107 Mass. 514. The Tornado, 108 U. S. 342. Stewart vs. Stone, 127 N. Y. 500. (b) And again where a contract is for the personal serv- ices of the promisor, and the performance of such services be- comes impossible bj' reason of his death, insanity, or sickness, t|ie person so incapacitated is relieved from liability. Spaulding vs. Rosa, 71 N. Y. 40. Robinson vs. Davison, L. R. 6 Exch. Cases 269. Martin vs. Hunt, 1 Allen 418-419. (c) So if the performance of a contract becomes impossi- IN CONTRACTS. 169 ble by reason of law, then the person failing to perform is relieved from liability. Baily vs. De Crespigny, L. R. 4 Q. B. Cases 180. Cordes vs. Miller, 39 Mich. 581. Jones vs. Judd, 4 N. Y. 413 . People YS. Ins. Co., 91 N. Y. 174. Semmes vs. Hartford Ins. Co., 13 Wall. 158. (d) If by a contract a person stipulates to perform his part thereof in either one of two ways, and one way becomes impossible, he is bound in such case to perform it in the other way. State vs. Worthington, 7 Oh. 171. Drake vs. White, 117 Mass. 10. Operation of Law. Again, contracts are often discharged by operation of law, as, in the case of merger, where a person takes a security of a higher nature for the same debt and from the same person as the old one the latter is merged in the former, and all liabilities thereunder are extinguished. Jones vs. Johnson, 3 W. & S. 276. Banorgee vs. Hovey, 5 Mass. 11. And the same result follows when a contract debt or other claim has been reduced to a judgment, the claims under the contract are all merged in the liabilities under the judgment. Bangs vs. Watson, 9 Gray 211. Sweet vs. Brackley, 53 Me. 346. And so if one party to a contract intentionally alters it in any material part, without the consent of the other party, such other party is thereby relieved from all liability there- under, upon the ground that public policy demands the pro- tection of legal instruments against secret alterations, Meyer vs. Huneke, 55 N. Y. 412. And this rule holds true even though the alteration. is ben- eficial to the party who is not instrumental in effecting the alteration. Wyman vs. Yeomans, 84 111. 403. Crawford vs. Bank, 100 N. Y. 50. But an alteration which does not aflfect a material part of the contract, or an alteration made by a stranger to the in- 170 AUTHORITIES AND DEDUCTIONS strument, or an alteration made with the consent of the other party, does not have the effect of discharging the other party from his liability because of the alteration. Hunt vs. Adams, 6 Mass. 519. Tompkins vs. Corwin, 9 Cowen 255. Kendall vs. Kendall, 12 Allen 92. Breach of Contract. • Contracts may also be discharged by their breach, so that the party not violating the contract may be relieved of his liability thereunder. (a) As where one party renounces his obligation under a contract before the time of performance, and declares that he will, not be bound by it, in such case the other party may if he sees fit treat the contract as broken and bring his action at once, even before the time of performance. Fox vs. Kitton, 19 111. 519-33. Howard vs. Daly, 61" N. Y. 362-74. Ferris vs. Spooner, 102 N. Y. 10. Hochster vs. De La Tour, 2 E. & B. 678. This is furthv illustrated in the case where a man engaged himself to marry a lady after the death of his father, and before the father died the defendant married another woman. Burtis vs. Thompson, 42 N. Y. 246. Holloway vs. Grifiith, 32 la. 409. It is clear that this rule would not apply to a unilateral contract, like a promissory note, where the maker declares that he will not pay it when due. Burtis vs. Thompson, 42 N. Y. 246-250. (b) So a contract may be broken by an act that renders the contract impossible of performance. This may be done also before the time of performance arrives, as where one agrees to lease land at a future day, but before that day he leases it to another person; or where he agrees to marry a woman on a future day, but before that day marries another. Hawley vs. Keeler, 53 N. Y. 114. Sheahan vs. Barry, 57 Mich. 217. Derby vs. Johnson, 21 Yt. 17. IN CONTRACTS. 171 (c) And this breach may be made also by utter failure of performance, as whfere in a sale of goods a party fails to de- liver the same according to his agreement, in which case he can maintain no action for the purchase price, as he himself has not performed his part of the contract. Smith vs. Le-wis, 26 Conn. 110. McMillan vs. Yanderlip, 12 John. 165. Wyncoop vs. Cowing, 21 111. 570-85. Taylor vs. Longworth, 14 Peters 172-4. Statute of Limitations. Again contracts may be discharged by the expiration of the time allowed under the statute of lim- itations for bringing an action to enforce them, and also by bankruptcy proceedings. Litchfield vs. McDonald, 35 Minn. 167. FURTHER DEDUCTIONS AND DICTA. /?, ^^^^ 7It I 1 ,*i KF 80U7 A93 Author Vol. Authorities deductions and notes Tain contracts copy Date Borrower's Name