dnriipU Kam %l|onl IGibrara m^ 1 4 mz LAW LIBRARY Cornell University Library KF 801.H22 The general principles of tlie law of con 3 1924 018 826 663 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018826663 THE GENERAL PRINCIPLES OF THE LAW OF CONTRACT BY LOUIS L. HAMMON SAINl PAUL KEEFE-DAVIDSON COMPANY 1902 COPYRIGHT 1902 By LODIS L. HAMMON. Webb Ptjbmshing Co. Fbess, St, Paul. PREFACE. In the following pages the author has attenapted to set forth the general principles of the law of contract, with especial reference to their modern development. The whole ground of the subject is covered, from the fornaation of the contract to its discharge, including chapters on construction and operation. So far as may be done within the limits of a single volume, the subject has been treated exhaustively, and it is thought that the same matter will not elsewhere be found in any other one-volume work. Leading and ruling cases have been freely cited, and in this connection it is proper to say that advantage has been taken of the numerous selections of illustrative cases on con- tract in use in the various law schools of the country. On the well-settled principles of the subject, special attempt at exhaustive citation has not been made, but on the many ques- tions as to which the courts are in conflict a thorough align- ment of the cases will be found. lHo labor has been spared to make the contents of the book accessible, for the author has a lively appreciation of the fact that what cannot be found, though included, is the same as omitted. Black-letter text has been inserted throughout the body of the work, so as to bring into prominence the ele- mentary principles and their more important applications. Apart from this, frequent and suggestive catch-words have been inserted. The table of contents embodies all these, and forms an analysis and scheme of the entire subject. It may therefore be used as an index of principles. The index proper will be found to be unusually exhaustive. Acknowledgment has been made in the body of the work of the sources from which aid has been derived in writing the book. Particular reference should be made to the trea- tises of Sir Frederick Pollock and Sir William Anson. L. L. H. October 13, 1902. TABLE OF CONTENTS. CHAPTER I. NATURE OF CONTRACT. I. Definition and Analysis. § 1. Agreement. 2. Same — Quasi Contract. 3. Same — Estoppel to Deny Agreement. 4. Intention to Affect Legal Relations. 5. Same — Consequences as Affecting Parties ThemselTes. 6. Obligation. 7. Same^Contracts Executory and Executed. 8. Same— Incidental Obligation. II. Elements of Agreement. § 9. Plurality of Parties. 10. Certainty of Parties. 11. Community of Intention. 12. Communication of Intention. 13. Same — Express and Implied Agreements. 14. Same — Quasi Contract. III. Elements of Obligation. § 14a. In General. 15. Plurality of Parties. 16. Certainty of Parties. 17. control. 18. Deflniteness of Liability. 19. Value of Subject-Matter. IV. SouBCES OF Obligation. § 20. In General. 21. Obligations ex Contractu. 22. Obligations Quasi ex Contractu. vi TABLE OF CONTENTS. V. Quasi Contract. § 23. Distinction between Contract and Quasi Contract. 24. Origin of Cbnfusion of Contract with; Quasi Contract. 25. Sources and Classes of Quasi Contracts. VI. Void, Voidable, and Unenfobokable Ageeements. § 25a. In General. • 26. Void and Voidable Agreements. 27. Unenforceable Contracts. CHAPTEE n. OFFER AND ACCEPTANCE. I. Necessity fob Offer and Acceptance. § 28. In General. 29. Necessity for Acceptance. 30. Same — Offer under Seal. II. Form op Offer and Acceptance. § 31. In General. 32. Promise. 33. Express and Implied Offer and Acceptance. 34. Simple Assent 35. Act for Promise. 36. Promise for Act. 37. Promise for Promise. III. Communication of Offer. § 38. In General. 39. Mode of Communication. 40. Communication of Particular Terms. 41. Offer under Seal. IV. Communication of Acceptance. § 42. In General. 43. Time for Communication. 44. Place of Communication. 45. Form of Communication. 46. Mode of Communication. 47. Moment of Communication. TABLE OP CONTENTS. vii V. Implied Contracts. I 48. In General. 49. Quasi Contract. 50. Services Rendered. 51. Goods Furnished. 52. Communication of Offer and Acceptance by Conduct. VI. Same — Limits of Doctrine of "Implied Contract. § 53. Necessity for Actual Agreement — In General. 54. Same — Relationship of Parties. 55. Same — Implication of Contract from Tort. 56. Effect of Express Contract. 57. Implication of Invalid Contract. VII. Agency. § 58. In General. 59. Creation of Agency. 60. Authority of Agent. 61. Operation of Agency. 62. Termination of Agency. VIII. Revocation of Offer. § 63. In General. 64. Offer under Seal. 65. Standing Offer — Option^ — Refusal. 66. Communication of Revocation. 67. Same — Revocation of General Offer. IX. Lapse op Offer. § 67a. In General. 68. Efflux of Reasonable Time. 69. Same — Offer under Seal. 70. Noncompliance with Condition of Offer. 71. Rejection of Offer. 72. Death of Party. 72a. Insanity of Party. 73. Dissolution of Partnership. 74. Dissolution of Corporation. X. Identity op Acceptor— General Offer. § 76. In General. Viii TABLE OF CONTENTS. XI. Chabactee of Aocbptanck. § 76. In General. XII. Effect of Acceptance. § 77. In General. XIII. Revocation of Acceptance. § 78. In General. XIV. Intention to Cbeate Legal Relations. § 79. In General — Intention — Motive. 80. Gratuitous Benefits. 81. Expression of Intention as to Future Acts. 82. Social Engagements. 83. Jests. 84. Invitations to Negotiate. 85. Incomplete Negotiations. XV. Dei'initeness of Offer and Acceptance. § 86. In General. CHAPTER III. REALITY OP CONSENT. I. In General. § 86a. In General. 87. Mistake. 88. Misrepresentation. 89. Fraud. 90. Duress. 91. Undue Influence. / II. Mistake. § 92. In General. 93. Mistake as to Nature of Transaction. 94. Mistake as to Identity of Other Contracting Party. TABLE OF CONTENTS. ix III. Same — Mistakk as to Subjkct-Matteb. § 95. In General. 96. Existence of Subject-Matter. 97. Identity of Subject-Matter. 98. Nature of Subject-Matter. 99. Quality of Subject-Matter. 100. Quantity of Subject-Matter. 101. Price of Subject-Matter. IV. Same — Mistake of Law. § 102. In General. V. Effect of Mistake. § 103. In General. VI. Remedies fob Mistake. § 103a. In General. 104. Legal Bemedies. 105. Equitable Remedies. VII. Miseepresentation. § 106. Distinction between Misrepresentation and Fraud. 107. Misrepresentation as Affecting Formation and Discharge of Contract. 108. Same — Representation Distinguished from , Warranty and Condition. 109. Same — ^Rule in Equity. 109a. Same — Specific Performance. 110. Same — Setting Aside Contract. 111. Same — Estoppel in Pais. 112. Contracts "Affected by Misrepresentation. 113. Same — Contracts by Persons Standing in Relation of Confi- dence. 114. Same — Special Contracts Affected by Misrepresentation. Conveyances of Real Estate. Sales of Personal Property. Negotiable Paper. Shares of Stock. Subscriptions to Stock. Contracts of Suretyship and Guaranty. Compromises. Contracts of Insurance. X TABLE OF CONTENTS. Marine Risks. Fire Risks. Life Risks. 115. What Constitutes Misrepresentation. 116. Effect of Misrepresentation. VIIL Feaud. § H6a. In General. 117. Character of Representation — In General. 117a. Same — Nondisclosure. 117b. Same — Concealment. 117c. Same — Statement of Opinion, Expectation, or Prediction. 117d. Same — Statemeiits of Motive ot Intention and Promises. 117e. Same — Representations of Law. 117f. Same — Falsity of Representation. 117g. Same — ^Materiality of Representation. 117h. Same — ^Right to Rely on Representation. 118. Knowledge of Falsity. Actual and Constructive Knowledge. Reckless Misstatement. Statements as of Personal Knowledge. Effect of Belief in Misrepresentation. 119. Intention to Deceive. In General. Motive. Object of Intention. 120. Necessity for Deception. 121. Injury. 122. Representations of Third Persons-^Agency. IX. Effect of Fraud — Rights and Remedies. § 123. In General. 124. What Constitutes Affirmance. In General. Lapse of Time. 125. What Constitutes Rescission. 126. Limitations upon Right to Rescind. Affirmance. Lapse of Reasonable Time. Change of Circumstances. Acquisition of Rights by Third Persons. 127. Remedies for Fraud. 128. Same — After Affirmance. 129. Same — After Rescission. TABLE OF CONTENTS. xi X. DXJEESS. § 130. In General. 131. By Whom Exercised. 132. Subject of Duress. 133. Inducement to Contract. 134. Duress of Imprisonment. 135. Duress per Minas. 136. Duress of Goods. 137. Effect of Duress. XI. Undue Infiiience. § 138. In General. 139. By Whom Exercised. 140. Presumption of Undue Influence. 141. Same — Inadequacy of Consideration. 142. Same — Relationship of Parties. In General. Family Relations. Confidential Relations. Termination of Relation. 143. Mental Weakness. 144. Necessities — Distress — ■ Ignorance — Improvidence — Moral Weakness. 145. Effect of Undue Influence. CHAPTER VI. CAPACITY OF PARTIES. I. In Geneeal. § 146. In General. II. States. § 147. In General. III. Corporations. § 147a. In General. 148. Contractual Capacity of Corporations Aggregate. 149. Same — ^Agents. 150. Same — Seal. 151. Same — Charter Limitations. 152. Same — Ultra Vires Contracts. xii TABLE OF CONTENTS. IV. Infants — Conteactual Capacity. § 153. Infancy Defined. 154. Contractual Capacity. 155. Contracts Void and Voidable. 156. Valid Ct)ntracts. 157. Quasi Contracts. V. Same — Liabilitt fob Necbssaeibs. § 158. In General. 159. Necessaries Defined. 160. Same — Money Advanced. 161. Same — Necessaries as to Business. 162. Same — Necessaries as to Property. 163. Same — Counsel Fees. 164. Necessities of Infant. 165. Same — Province of Court and Jury. 166. Necessities of Infant's Family. 167. Express Contracts for Necessaries. VI. Same — Liability foe Torts Aeisino Out of Contbact. § 168. In General. VII. Same — Ratification and Avoidance — In Genital. § 169. In General. 170. Right of Election. 171. Necessity for Ratification or Disaffirmance. VIII. Same — Sufficiency of Ratification. § 172. What Constitutes Ratification. Express Ratification. Implied Ratification. Parol Ratification. Knowledge. Time of Ratification. IX. Same — Sufficiency of Avoidance, § 173. What Constitutes Disafiirmance. X. Same — Limits op Right to Disaffirm:. § 173a. In General. 174. Restoration of Status Quo. TABLE OF CONTENTS. xiii 175. Ratification or Disaffirmance in Part 175a. Time of Avoidance. XI. Same — Effect of Ratification ok Disaffibmance. § 175b. In General. 176. Rights of Third Persons. XII. Peesons Non Compotes Mentis — ^What Constitutes Menial Unsoundness. { 177. Insanity in General. 178. Weakness of Mind. 179. Idiocy. 180. Deafness — Dumbness — Blindness. 181. Senility. 182. Partial Derangement. 183. Temporary Derangement — Drunkenness. 184. Lucid Intervals. XIII. Same — Conteaotual Capacity. i 185. In General. 186. Void Contracts. 187. Same — ^Adjudication of Unsoundness. 188. Quasi Contracts. 189. Same — Contracts for Necessaries. XIV. Same — Ratification and Avoidance. { 190. In General. 191. Who may Avoid Contract. 192. Restoration of Status Quo — Innocency of Sane Party. 193. Same — Restitution of Consideration. 194. Rights of Third Persons. XIV. Spendthbu'ts. i 195. In General. XVI. Maeeied Women. J 196. Contractual Capacity at Law. 197. Same — Exceptions. Civil Death of Husband. Abandonment of Marital Rights by Husband. Divorce a Mensa et Thoro. 198. Contractual Capacity in Equity. 199. Contractual Capacity under the Married Women's Acts. xiv TABLE OF CONTENTS. XVII. Aliens. § 199a. In General. 200. Alien Friends. 201. Alien Enemies. XVIII. Convicts, Outlaws, and Excommunicants. § 202. Convicts and Outlaws. 203. Excommunicants. XIX. Slaves. § 204. In General. XX. Babkistbbs, Physicians, and Akbitbatobs. § 205. In General. CHAPTER V. LEGALITY OF OBJECT. I. In General. § 206. In General. II. Classification. § 207. In General. III. Agboeembnts Illegal by Statute — State Regulation op Right to Contract. § 208. In General. IV. Same — Consteuction of Statute. § 209. In General. V. Same — Opekation of Statute. § 210. In General. VI. Same — Paeticulae Statutoby Regulations — Professional and COMMEECIAL RE0ULATI0N& § 211. In General TABLE OF CONTENTS. VII. Same — Sunday Laws. § 211a. In General. 212. Works of Necessity and Charity. 213. Ratification of Sunday Agreements. VIII. Same — ^Waoehs. § 213a. In General. 214. Nature of Wager. 215. Validity of Wagering Contracts. 216. Same — Insurance. 217. Same — Futures. 218. Same — ^Premiums. 219. Same — ^Lotteries. IX. Same — Usubt. § 219a. In General. 220. Loan. 221. Illegal Interest. 222. Unlawful Intent. X. Same — Ultra Vires Agreements. § 223. In General. r XI. Agreements Illegal at Common Law. § 224. In General. XII. Same — ^Agreements Promotive of Crime, Sexual Immosautt-, AND Torts. § 225. Agreements Promotive of Crime. 226. Agreements Promotive of Sexual Immorality. 227. Agreements Promotive of Torts. XIII. Same — Agreements Injuriously Affecting the Public ob Private Service. § 228. Agreements Promotive of Dereliction of Public or Private Duty. 229. Agreements Involving Traffic in Offices. 230. Agreements Involving Traffic in Emoluments of Office, Pen- sions, or Public Contracts. 231. Agreements Involving the Corruption of Public Officials. xvi TABLE OF CONTENTS. XIV. Same — ^Agreements Pbomotive of Injury to the State. § 232. In General. XV. Same — Agreements Promotive or Nonofficial CoEEtrpTioir. § 233. Agreements Involving Corruption of Private Citizens with Reference to Public Matters. 234. Agreements Derogatory to the Integrity of Public Elections. XVI. Samb: — Agreements Derogatory to Pdbuo Justice. § 235. In General. XVII. Same — Compounding Crime. § 236. In General. XVIII. Same — ^Arbitration. § 237. In General. XIX. Same — Champerty and Maintenance. § 237a. In General. 238. Maintenance. 239. Champerty. XX. Same — Agreements iNJtrRiousLY Affecting the Domestic Re- lations. i 239a. In General. 240. Agreements Affecting the Marriage Relation. 241. Agreements Affecting the Parental Relation. XXI. Same — Agreements Limiting Legai Rights. § 242. In General. XXII. Same — Agreements Restricting Commercial Freedom: — Mo- nopolies AND Combinations. § 242a. In General. 243. Trades Unions. 244. Employers' Unions. XXIII. Same — ^Agreements in Restraint of Trade. § 244a. In General. 245. Consideration. 346. Trade Secrets. TABLE OF CONTENTS. xvii XXIV. Intention. § 246a. In General. 247. Knowledge of Unlawful Intention. 248. Joint Unlawful Intention. 249. Mistake of Law and of Fact. 250. Mode of Performance. XXV. Effect of IiJjEgality — Pabtial Iixbgautt. § 251. In General. XXVI. Same — Collateral Transactions. § 251a. In General. 252. Untainted Transactions. 253. Agents and Brokers. 254. Negotiable Instruments. 255. Illegality of Past Consideration. XXVII. Same — Rights of Action. § 255a. In General. 256. Action on Agreement. 257. Recovery of Money Paid or Property Delivered under Agree- ment. 258. Same — Locus Poanitentiae. 259. Same^Par Delictum. XXVIII. Conflict of Laws. § 259a. In General. 260. Lex Loci Contractus. 261. Lex Situs — Lex Loci Solutionis. 262. Exceptions. CHAPTER VI. FORM OF CONTRACT. I. In General. § 262a. In General. II. Classification of Contracts. § 263. In General. Contract — B. xviii TABLE OF CONTENTS. III. Contracts of Record. if 264. Judgment. 265. Recognizance. 266. Statutes Merchant and Staple, IV. Contracts under Seai,. S 266a. In General. 267. Necessity for Deed. V. Same — Execution of Sealed Contract. J 267a. In General. 268. Signing and Sealing. ; 269. Delivery of Deed. :270. Same — -Escrow. J71. Same — -Acceptance. ^VI. Same — Effect of Seal. § 272. Consideration. 273. Estoppel. 274. Merger. 275. Time for Enforcement. VII. Parol Contracts Required to be in Whiting. § 275a. In General. 276. Common-Law Requirements. 277. Statutory Requirements. VIII. Same — Statute of Frauds. § 277a. In General. 278. Quasi Contracts. 279. Executed Contracts. 280. New or Modified Agreements. 281. Promise to Sign Agreement. 282. Consideration. IX. Same — Promise of Executor or Administratoe. § 283. In General. X. Same — Promise to Answer for Another's Debt, Default, or Miscarriages. § 283a. In General. TABLE OF CONTENTS. xix 284. Debt must be a Third Person's — Neither Promisor's nor Promisee's. 285. Promise must be a Collateral, not an Original, Undertaking. 286. Same — Promise must Contemplate a Benefit to the Prin- cipal Debtor. 287. Same — Third Person's Liability must Continue after Prom- ise is Given. 288. Contracts of Indemnity. XI. Same — Agreement in CoNsroEBATiON op Markiage. § 289. In General. XII. Same — Contract ob Sale of Real Estate. § 289a. In General. 290. Nature of Interest Meant by Statute. 291. Same— Products of the Soil. 292. Same — Easements and Licenses. 293. Nature of Conveyance Meant by Statute. XIII. Same — ^Agreement not to be Performed within a Ye;ae. § 293a. In General. 294. Possibility of Performance. 295. Modification of Contract. 296. Intention. 297. Performance by One Party. XIV. Same — Contract for the Sale or Goods, Wares, and Mer- chandise. § 297a. In General. 298. Price or Value. 299. Nature of Property. Contract of Sale or Contract for Services. Choses in Action. Realty or Personalty. 300. Acceptance and Receipt of Part of Goods. 301. Earnest or Part Payment. XV. Same — Requisites and Sufficiency of Writing. § 301a. In General. 302. Nature and Form of Memorandum. 303. Time for Making Memorandum. 304. Contents of Memorandum. XX TABLE OF CONTENTS. In General. Designation of Parties. Statement of Consideration. Description of Subject-Matter. Statement of Terms. 305. Signature of Memorandum. Necessity for Signature. Time for Signature. SuflSciency of Signature. Signature by Agent. 806. Delivery of Memorandum. 307. Separate Writings. XVI. Same — Effect of Noncompliance with Statutb. § 307a. In General. 308. Part Performance. Estoppel. Part iperformance at Law. Part Performance in Equity. Sufficiency. Pleading and Proof. 309. Contract as a Defense. 310. Right to Urge Statute. 311. Waiver of Statute. 312. Conflict of Laws. 313. Recovery Quasi ex Contractu. Defendant in Default — Recovery for Benefits Allowed. Defendant not in Default — Recovery for Benefits not Al- lowed. CHAPTER VII. CONSIDERATION. I. HiSTOKY OP CONSIDEEATION. § 313a. In General. II. Necessity fob Consideration. f 314. In General. 315. Exceptions. Gratuitous Service. Negotiable Instruments. TABLE OF CONTENTS. ^xi Executed Contracts. Statutory Obligations. III. What Constitutes Considekation. § 316. In General. 317. Benefit to One Party or Detriment to the Other. 318. Connection between Consideration and Promise. 319. Possibility of Rendering Consideration. 320. Certainty of Consideration. 321. Legality of Consideration. 322. Movement of Consideration from Promisee. IV. Same — Mobal Obugation. § 323. In General. V. Same — Past Considebation. § 324. In General. 325. Benefit Conferred on Request 326. Benefit Voluntarily Conferred. 327. Existing Legal Obligation. 328. Waiver of Protection of Rules of Law. Infancy. Coverture. Bankruptcy. Limitations. Judgment. Usury. Negotiable Instruments. Mechanics' Liens. VI. Same — Good Considbbation. § 329. In General. VII. Same — Doing What the Law Requibes. § 330. In General. 331. Duty Imposed by Law. Public Duty. Private Duty. 332. Obligation Imposed by Contract. In General. Doing or Promising What Contract Demands. Part Payment. xxii TABLE OF CONTENTS. Performance of, or Promise to Perform, Contract with Third Person. VIII. Same — Forbearance. § 333. In General. 334. Forbearance with Reference to Right of Action. Essentials. Right of Action. Person Liable. Agreement to Forbear. 335. Same — Promise by Third Person. IX. Same — Mutual Promises. § 336. In General. 337. Mutuality of Obligation. X. Same — Compromise. § 338. In General. XI. Same — Composition with Creditor.-, § 339. In General. XII. Same — Subscriptions. § 340. In General. XIII. Adequacy of Consideration. § 341. In General. 342. At Law. 343. Same — Exchange of Fixed Values. 344. Same — Partial Insufficiency. 345. In Equity. XIV. Want or Failube of Consideration. I 346. In General. 347. What Constitutes Failure of Consideration. Inherent Deficiency of Consideration. Omissions of Promisee. Accident. 348. Effect of Want or Failure of ConsideratioD. Want of Consideration. Failure of Consideration. Quasi Contractual Remedies. TABLE OF CONTENTS. xxiii CHAPTER VIII. OPERATION OP CONTRACT. I. Operation op Contract. § 348a. In General. II. Limits of Contractual Rkiation. § 349. In General. III. Same — Imposing Liabiuty on Thikd Person. § 350. In General. IV. Same — CONrERBiNG Right on Third Person. I 351. In General. 352. Exceptions, Real and Apparent. 353. Statutory Changes. V. Assignment of Contract. § 354. In General. VI. Assignment by Act of the Parties — Liabilities. § 355. In General. VII. Same — ^Assignment of Rights at Law. § 366. In General. VIII. Same — ^Assignment op Rights in Bquitt. § 357. In General. Nature of Right. Partial Assignment. Form of Assignment. 358. Conditions of Assignability. In General. Notice. Title and Equities. IX. Same — ^Assignment of Rights under Statute. § 359. In General. XXiv TABLE OP CONTENTS. X. Same — ^Assignment of Rights Abising fbom Negotiable Iw- STEUMENTS. i 360. In General. 361. Consideration. 362. Notice. 363. Title and Equities. XI. Assignment by Operation of Law. J 364. In General. XII. Same — ^Assignment by Tkansfek of Land. i 365. In General. 366. Covenants Affecting Leasehold Interests. Assignee of Leasehold. Assignee of Reversion. 367. Covenants Affecting Freehold Interests. XIII. Same — Assignment by Markiage. § 368. In General. XIV. Same — Assignment by Death. i 369. In General. XV. Same — Assignment by Bankkcjptcy. § 370. In General. XVI. Joint and Sevebal Contracts. § 371. In General. XVII. Same — Joint Contracts. § 372. In General. 373. Joint Promisors. All Liable. All Suable Jointly. Release of One. Death of One. 374. Joint Promisees. AH Entitled, and must Sue Joinilj'. Release by One. Death of One. TABLE OF C0NTB3NTS. xxv XVIII. Same — Sevekax Contracts. § 375. Several Promisors. 376. Several Promisees. XIX. Same — Contkacts Both Joint and Several. § 377. In General. 378. Joint and Several Promisors. All Bound and Suable Together or Sepaiately. Release of One. Death of One. 379. Joint and Several Promisees. XX. Same — Construction op Contract. § 380. In General. 381. Construction as to Promisors. 382. Construction as to Promisees. XXI. Same — Contribution between Joint Debtors. I 383. In General. CHAFTEB IZ. CONSTRtrCTION OF CONTRACT. I. In General. § 384. In General. 385. Province of Court and of Jury. 386.. Caution. II. Intent Governs. § 387. In General. 388. General and Particular Intent 389. Intent not Fully or Truly Expressed III. Same — Parol Bvidencb. § 390. In General. 391. Unexpressed Terms. 392. Collateral Agreement. 393. Application of Terms. Parties. XXvi TABLE OP CONTENTS. Subject-Matter. Nature of Obligation. 394. Custom and Usage. IV. Favorable Construction. § 395. In General. 396. Legality. 397. Reasonableness. V. Contemporaneous Construction. § 398. In General. VI. Practical Construction. § 399. In General. VII. Subject-Matter to be Considered. § 400. In General. VIII. Whole Contract to be Regarded. I 401. In General. 402. Grammar. 403. Punctuation. 404. Clerical Errors. 405. Correlative Documents. 406. Entire Contract to be Given Effect. 407. Surplusage. IX. Conflicting Clauses. § 408. Of Incompatible Clauses, the First Prevails. 409. Restriction of General Words. 410. Writing Controls Printing. 411. Conditions, Exceptions, Reservations, and Provisos X. Meaning of Particular Teems. § 412. Popular and Literal Meaning. In General. Exceptions. Technical Words. Usage. 413. Ambiguous Words. In General. Exceptions and Qualifications. CHAPTER X. DISCHARGE OF CONTRACT. Discharge of Contract — In Generai.. TABLE OF CONTENTS. xxvii II. DiSCHABOE BY OpEEATION OF LiAW — In GENERAL. § 414. In General. III. Same — Impossibility of Febfobmance. § 415. In General. 416. Exceptions. 416a. Same — Impossibility Arising from a Change In the Law. 416b. Same — Impossibility Arising from Destruction of the Sub- ject-Matter. 416c. Same — Impossibility Arising from Death or Disability of Promisor. 416d. Same — Effect of Discharge — Quasi Contract. IV. Same — Mebqee. § 417. In General. v. Same — ^Alteration oe Loss of Instbument. § 418. Alteration of Instrument. Alteration by Stranger. Intent. Alteration by Consent. Materiality of Alteration. 419. Loss of Instrument. VI. Same — Bankeuptoy. § 420. In General. VII. DiSCHAEGE BY OPBEATION OF TEBMS OF CONTBACT. § 421. In General. 422. Conditions Subsequent. 423. Options to Determine Contract. VIII. Dischabqe by New Contbact. § 424. In General. 425. Waiver or Rescission. 426. Substitution of Contract. 427. Form of New Contract. IX. Discharge by Performance. § 428. In General. xxviii TABLE OF CONTENTS. X. Same — Payment. § 429. In General. 430. Negotiable Instrument as Payment. 431. Same— Negotiable Obligation of Third Person. 432. Presumption of Payment. 433. Payment by Volunteer. 434. Appropriation of Payment. XI. Same — Tender. i 435. In General. 436. By Whom and to Whom Tender Must be Made. 437. Time, Place, Mode, Amount, and Means of Tender. 438. Conditional Tender. 439. Keeping Tender Good. 440. Effect of Tender. XII. Same — Substantial and Satisfactoet Pbbfobmancb. § 441. In General. 442. Substantial Performance. 443. Performance to Satisfaction of Promisee. XIII. Same — Time of Perfobmance. § 444. In General. 445. Time as Essence of Contract. Rule at Law. Rule in Equity. XIV. Same — ^Alteenative Pbomises. § 446. In General. 447. Election by Promisor. 448. Election by Promisee. 449. Time of Election. 450. Effect of Election. XV. Disohakge by Breach — In General. § 451. In General. 452. Rights and Remedies of Innocent Party upon Discharge ot Contract. XVI. Same — Repudiation of Contbaot. § 453. ■ In General. TABLE OF CONTEKfTS xxix 454. Repudiation by Promisor. 455. Repudiation by Promisee. 456. Limits of Rule. XVII. Same — Prevention of Pebfoemancb. S 457. In General. 458. Breach by Promisor. 459. Breach by Promisee. XVIII. Same — Failuee of Perfoemance — In Genbeal. § 460. In General. XIX. Same — Independent Promises. { 461. In General. 462. Absolute Promises. 463. Divisible Contracts. 464. Subsidiary Promises. XX. Same — Conditional Peomises. § 465. Concurrent Conditions. 466. Conditions Precedent — Vital and Suspensory Conditions. 467. Same — Failure of Consideration. 468. Same — Conditions Proper. 469. Same — Waiver of Condition. XXI. Same — Remedies foe Bkeach of Conteact — In General. { 470. In General. XXII. Same — Remedies at Law. § 471. Liquidated Damages. 472. Unliquidated Damages. XXIII. Same — Remedies in Equity. § 473. In General. 474. Specific Performance. 475. Injunction. XXIV. Same — Dischaege of Right of Action. XXV. Same — Dischaege by Consent. i 4,76. Release. 477. Accord and Satisfaction. XXX TABLE OF CONTENTS. XXVI. Same — Dischakge by Jxjdgment. ' § 478. In General. 479. Arbitration and Award. XXVII. Same- — Discharge by Lapse or Time. § 480. In General. 481. Revival of Right of Action. EEEATA. Page 113, line 15 from top, for "hnj-" substitute "sell-." Page 197, center line, in capitals, omit "s" from "In- fluences." Page 311, note 316, par. 3, line 1, substitute "covert" for "sole." Page 599, § 305, catch-words, omit final "s" from "Signa- tures." LAW OF CONTRACT. INTRODUCTORY NOTE. Following the lines laid down by Sir William Anson, I divide the subject of contracts into five parts, namely : (1) The nature of contract. (2) Its formation. (3) Its operation. (4) Its construction. . (5) Its discharge. Nature of contract. The first thing to be considered is the relation of contract to other legal conceptions, not the least important of which is quasi contract. The ascertainment of this will define and to some extent explain the subject of our inquiry. Formation of contract. ^ Having ascertained the particular features of contract as a juristic conception, the next step is to consider how a con- tract is made. The analysis of contract will have shown us that there are three elements of the conception, namely: (a) An agreement; (b) an intention of the parties to affect their legal relations; and (c) an obligation created by that agree- ment and intention. Now, the first two elements in this analysis depend for their existence solely upon the will of the parties, but the third element cannot come into exist- ence except under certain circumstances prescribed by law. In determining how a contract may be made, then, we may separate the question into two parts, and regard, first, requi- sites depending solely upon the will of the parties, and, sec- ond, requisites essential to the creation of an obligation, intract — 1 ( J ) INTRODUCTORY. Requisites Depending Solely upon the Will. •— ^ Offer and acceptance. , The first two elements of contract — ^that is, agreement and intention to affect legal relations — are closely allied, and may conveniently be considered together under the title, "Of- fer and Acceptance." p Reality of consent. As would naturally be supposed, the consent expressed in offer and acceptance must be genuine, else there is no agree- ment, and consequently no contract. There may be various causes for unreality of consent, namely: (a) Mistake; (b) misrepresentation; (c) fraud; (d) duress; and (e) undue influence. These causes will therefore next be considered. Requisites Essential to Creation or Obligation. Having disposed of the elements of contract depending for their existence solely upon the will of the parties, it next becomes necessary to ascertain under what circumstanees the third element, namely, obligation, may come into being. The circumstances prescribed by law as conditions precedent to the creation of an obligation are these, namely: (a) That the parties shall be capable of contracting ; (b) that the object of the contract shall be lawful; (c) that, in certain classes of cases, the contract shall assume a prescribed form ; and (d) that, in certain classes of cases, the contract shall be based upon a sufficient consideration. ■ Capacity of parties. The first of these prescribed circumstances to be consid- ered is capacity of parties. We shall see that there are cer- tain persons whom the law regards as incapable of entering into a valid contract. This incapacity may arise from va- rious causes, of which infancy, unsoundness of mind, cov- (2) INTRODUCTORY erture, and alienage are the most important. These several causes of incapacity will therefore next be considered. Legality of object. Certain objects of agreement are discouraged or forbid- den by law; and even where all the other requisites of the formation of a valid contract are complied with, yet, if these objects are in contemplation of the parties when the engage- ment is made, the law will not enforce it. The legality of the object of contract may therefore next be discussed. Form of contract. In the absence of statute, a contract may ordinarily be entered into either orally or in writing, either expressly or by implication, and the courts will enforce it. The parties may, however, of their own volition, give their engagement greater dignity by reducing it to writing and executing it Tinder their seals. In this event, the contract becomes a deed or specialty, and is governed by a different set of rules, in many respects, from those controlling contracts not under seal. Again, the law may require certain classes of con- tracts to be made in writing in order that they shall be en- forceable by the courts. The most important requirements in this respect are imposed by the statute of frauds. The next subject of inquiry, therefore, will be these formal con- tracts. Consideration. Excepting contracts which are executed under seal, the law requires that all contracts shall have a sufficient considera- tion; that is to say, in the case of a promise, there must be some gain to the promisor arising from the act or forbear- ance, given or promised, of the promisee, else the promise is voluntarv, and the promisor is not bound to perform it. (3) INTRODUCTOKY. Consideration will next be discussed, being tbe last of the requisites of the formation of a valid contract. Operation of contract. Having ascertained the nature of contract, and considered the requisites necessary to its formation, we now come to consider the operation and effect of a valid contract when formed. This question may be said to concern — First. The limits of the contractual obligation, with reference to con- ferring rights or imposing obligations on persons who are not parties to the contract. Second. The assignment of the contract, or the transfer of the rights and liabilities arising from it. Third. The operation and effect of a contract hav- ing several parties on one or both sides, with reference to the rights of the parties inter sese. Construction of contract. After considering the nature of contract, its formation, and its operation, it seems proper next to treat of those rules of law which control the court with reference to ascertaining the intention of the parties froru the expressions which they have used in making the engagement. These are termed "rules of construction." Discharge of contract. All that remains to be considered is the mode in which a contract may be discharged; and, in dealing with this part of the subject, we shall consider not only the mode in which the contract itself may be extinguished, but also, in the case of its discharge by breach, the mode in which the right of action thereupon arising may be extinguished. (4) PART I. CHAPTER I. NATURE OF CONTRACT. 1. Definition and Analysis. § 1. Agreement. 2. Same — Quasi Contract. 3. Same — Estoppel to Deny Agreement. 4. Intention to AfEect Legal Relations. 5. Same — Consequences as AfEecting Parties Themselves. 6. Obligation. 7. Same — Contracts Executory and Executed. 8. Same — Incidental Obligation. II. Elements of Agreement. § 9. Plurality of Parties. 10. Certainty of Parties. 11. Community of Intention. 12. Communication of Intention. 13. Same — Express and Implied Agreements. 14. Same — Quasi Contract. III. Elements of Obligation. I 14a. In General. 15. Plurality of Parties. 16. Certainty of Parties. 17. Control, 18. Deflniteness of Liability. 19. Value of Subject-Matter. (5) NATURE OF CONTRACT. [Ch. IV. SouBCEs OF Oblicatiojst. § 20. In General. 21. Obligations ex Contractu. 22. Obligations Quasi ex Contractu. V. Quasi Contract. § 23. Distinction between Contract and Quasi Contract. 24. Origin of Confusion of Contract with Quasi Contract 25. Sources and Classes of Quasi Contracts. VI. Void, Voidable, and Unenforceable Agreements. § 25a. In General. 26. Void and Voidable Agreements. 27. Unenforceable Contracts. I. Definition and Analysis. A contract is an agreement by which at least one of the coneurring parties acquires a right to an act or a forbearance upon the part of the other or others.^ - 1 A contract "is an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others." Anson, Cont. (4th Ed.) 9. This definition is objectionable in introducing the feature of enforceability, since an agreement may be a contract, and yet be unenforceable. See page 33, infra. "A contract is a promise from one or more persons to another or others, either made in fact or created by the law, to do or refrain from some lawful thing; being also under the seal of the promisor, or being reduced to a judicial record, or being accompanied by a valid consideration, or being ex- ecuted, and not being in a form forbidden or declared inadequate by law." Bishop, Cont. § 22. This definition is objectionable as including quasi contract. See page 23, infra. A contract is "an agreement, upon sufficient consideration, to do or not to do a par- ticular thing." 2 Bl. Comm. 442; 2 Kent, Comm. 449. This defini- tion is faulty in mentioning consideration as an element. Some con- tracts require no consideration. See page 530, infra. "A contract Is an agreement in which a party undertakes to do or not to do a particular thing." Per Marshall, C. J., in Sturges v. Crowninshield, 4 Wheat. (U. S.) 197; HufCcut & W. Am. Cas. Cont. 674; Mete. Cont. 1. This definition is too broad. All agreements to do or to forbear do not constitute contracts, as will appear in the following pages (6) Ch. 1] DEFINITION AND ANALYSIS. g 1 The elements of contract/ as a juristic conception, are these, namely : (a) An agreement between parties. (b) An intention of the parties to affect their legal rela- tions. (c) An obligation directly created by that agreement and intention. § 1. A^eement. The elements of agreement will be considered in another place.^ It is enough, in this connection, to say that, as used in this work, "agreement" means simply mutxial assent, — ■ conscious meeting of minds in a common intention. Thus stripped of all legal fictions, it has a wider meaning than "contract," and should not be- confused with that term. All contracts, generally speaking, are the result of agreement, but all agreements do not result in contract. We are here concerned with agreement only in its relation to contract. It may be laid down as a general rule that agreement is a necessary element of contract. Unless the luinds of the par- of this chapter. "A 'contract,' in the strict sense of the word, may be briefly defined as an agreement between two or more persons which gives rise to a legal obligation." Morey, Rom. Law, 352. A contract is "an agreement between two or more parties for the doing or the not doing of some particular thing." 1 Parsons, Cont. 6. This definition is subject to the same objection as Chief Justice Mar- shall's, given above. "Every agreement and promise enforceable by law is a contract." Pollock, Cont. 2. This definition, if it is in- tended as such, is too narrow. Some unenforceable agreements are contracts. See page 33, infra. 2 Savigny's analysis of contract, substantially accepted by the ma- jority of the more recent German authorities, is to the following ef- fect: Its constituent elements are, he says, (1) several parties; (2) an agreement of their wills; (3) a mutual communication of this agreement; (4) an intention to create a legal relation between the parties. System, iii., p. 308, as quoted by Holland, Juris. 228. 3 Page 14, infra. § 3 NATURE OF CONTEACT. [Ch. 1 ties meet in a common intention, a contract cannot ordinarily arise.* § 2. Same — Quasi contract. A confusion in terminology has given rise to an apparent exception to this rule in the case of the so-called contract implied in law. The exception is not real, however, since this so-called contract is not a true contract, but a quasi con- tract, as will be fully explained in another connection.® § 3. Same — ^Estoppel to deny agreement. There is a real exception, however, to the rule that agree- ment is a necessary element of contract. It arises where a party expresses himself contrary to his real intention, there- by leading the person addressed into an apparent agreement with him which does not in fact exist. In such a case, the wrongdoer will not be allowed to say that he did not express his real intention.'^ l^ot only this, but the other party also is bound by the apparent agreement. It is not competent for him lo establish the actual nonagreement.^ lliis question of estoppel, loosely speaking, has been stated here as an exception to the rule that agreement is an element of contract; but it must be admitted that there is much rea- son for treating the matter as the rule, rather than an ex- ception, and laying it down broadly, in reference to the ne- * Anson, Cont. (4th Ed.) 1; Peerless Glass Co. v. Pacific Crockery & Tinware Co., 121 Cal. 641; McGavock v. Morton, 57 Neb. 385. 5 See page 23, infra. 6 Anson, Cont. (4th Ed.) 9; Leake, Cont. (1878) 12; Pollock, Cont. 4; Holland, Juris. 228; Freeman v. Cooke, 2 Exch. 654; Pickard v. Sears, 6 Adol. & B. 469; Smith v. Hughes, L. R. 6 Q. B. 607; Cornish V. Abington, 4 Hurl. & N. 549; Garst v. Harris, 177 Mass. J72; Bohn Mfg. Co. V. Sawyer, 169 Mass. 477; Phillip v. Gallant, 68 N. Y. 256. A party's obligations must be measured by his overt a<^ Mansfield V. Hodgdon, 147 Mass. 304. , Ws 7 Holland, Juris. 228. (8) Ch. 1] DEFINITION AND ANALYSIS. § 4 cessity for agreement, that the law looks, not at the will itself, but at the will as voluntarily manifested, in order to ascer- tain whether a contract exists, so that actual agreement is not necessarily an element of contract. "When the law en- forces contracts," says Dr. Holland, "it does so to prevent dis- appointment of well-founded expectations, which, though they usually arise from expressions truly representing in- tention, yet may occasionally arise otherwise."^ And he finds it "hard to see how it can be supposed that the true [actual] consensus of the parties is within the province of law, which must needs regard, not the will itself, but the will as expressed by one party to the other."® The rule suggested by the same eminent authority as the true one is that "the legal meaning of such acts on the part of one man as induce another to enter into a contract with him is not what the former really intended, nor what the latter really supposed the former to intend, but what a 'reasonable man,' i. e., a judge or jury, would put upon such acts."^'' If this is true, actual agreement is not necessarily an element of contract. It is sufficient if there is an expression of an apparent agree- ment. § 4. Intention to aifect legal relations. In order to create a contract, it is not enough that the par- ties arrive at an agreement, — they must also intend to af- fect their legal relations. Their agreement must have refer- ence to the assumption of legal rights and duties, as opposed to agreem.ents which do not contemplate a legal result.-^* Thus, a contract does not arise from mere social engagements, nor from things said or done in jest. In neither case is there 8 Holland, Juris. 228. 9 Holland, Juris. 230. 10 Holland, Juris. 232. "Anson, Cont. (4tli Ed.) 2; Pollock, Cont. 1; Leake, Cont. 13; Holland, Juris. 228, 243; Savigny, System, ill., p. 308. t'O) § 6 NATURE OF CONTRACT. [Ch. 1 an intention to aifect the legal relations of the parties, and therefore no contract results.-^^ § 5. Same — Consequences as affecting parties themselves. Moreover, the legal relations sought to he affected by the parties in coming to an agreement must he their own, — the consequences of the agreement must affect the rights and duties of the parties themselves.^ ^ Thus, the verdict of a jury or the judgment of a court in hanc is not a contract, since, for one reason, the judges in the one case and the jurors in the other do not, in arriving at their agreement, contemplate an alteration in their own legal relations. The rights and duties affected are those of strangers to the agree- ment. § 6. Obligation. As used in this work, the word "obligation" means a legal obligation, as distinguished from a natural or moral obliga- tion ; that is to say, the term is used to signify an obligation that will be enforced by law, as opposed to obligations of which the courts cannot take cognizance. Thus limited, an obligation may be defined as a legal bond, whereby, accord- ing to the laws, of the state, one person is bound to act or forbear on behalf of another person. The elements of obli- gation will be considered in another place,^* where it will ap- pear that an obligation is a right in personam, as distin- guished from a right in rem; that is, it is not a right to a thing, but a right to control the future conduct of a definite person in a particular respect. An agreement coupled with an intention of the parties to affect their legal relations does not result in contract, proper- 12 See page 84, infra. 13 Anson, Cont. (4tli Ed.) 3; Pollock, Cont. 3; Holland, Juris. 243. 11 Page 17, infra. ^ (10) Ch. 1] DEFINITION AND ANALYSIS. g 7 ly speaking, unless an obligation is created. Accordingly, an agreement the effect of which is concluded so soon as the par- ties to it have expressed their common consent is not a real contract. Instances of this kind of agreement are simple conveyances and gifts wherein the agreement of the parties effects at once a transfer of rights in rem^ and leaves no ob- ligation subsisting between them.^** § 7. Same — Contracts executory and executed. In this connection, we may note that contracts are said to be either executory or executed. An executory contract is one m which the thing agreed upon is not done at the time the agreement is made, an obligation being assumed by one party or both parties as to future acts or forbearances.^®"^ An executed contract may be one of two things : First, a con- tract in which everything contemplated by the parties is done upon the making of the agreement, no obligation being as- sumed by either party as to future acts or forbearances;^^-' 15 Anson, Cent. (4th Ed.) 3. 16 Fletcher v. Peck, 6 Cranch (U. S.) 87, 136, Huffcut & W. Am. Gas. Cont. 696. See Bishop, Cont. § 624; 2 Bl. Comm. 443; Bouv. Law Diet. "Executory Contract." Anson stands alone in his definitions of executed and executory contracts, the one as "a contract performed wholly on one side," and the other as a contract "which is either wholly unperformed, or in which there remains something to be done on loth sides." (Italics mine.) Anson, Cont. (4th Ed.) 13, note. "A contract performed on one side only is not an executed con- tract." Chicago, M. & St. P. Ry. Co. v. Wabash, St. L. & P. Ry. Co., 27 U. S. App. 1. A contract may be executed as to one party, and executory as to the other, as where goods are delivered under a contract to pay a certain price for them at a future day, and the day has not arrived or the price been paid. 17 Bouv. Law Diet. "Executed Contract." See, also, note 16, supra. In Fletcher v. Peck, 6 Cranch (U. S.) 87, 136, HufEcut & W. Am. Cas. Cont. 696, after defining an executed contract as "one in which the object of contract is performed," Chief Justice Marshall says: "A (11) § 7 NATURE OF CONTRACT. . [Ch. 1 and, second, a contract which, while executory in its incep- tion, has been wholly executed, i. e., performed.-^® The specific mark of a true contract is the creation of a right, not to a thing, but to another man's conduct in the future. It creates a right in personam, not a right in rem. ISTow, in the case of an executed contract in its first sense, no obligation is created, since all that is agreed upon is im- mediately done. An illustration of this is the case of a bar- gain and sale of goods without warranty, for cash, and with immediate delivery. Here no obligation is assumed, noth- ing remains to be done, and, in a proper sense, there is no contract. The right of the buyer is not a right in personam, resulting from obligation, but a right in rem to the enjoy- ment of the property passed. So, in the case of an executed contract in its second sense, while an obligation was created when the contract was entered into, yet the contract has been performed, and the obligation thereby discharged. Thus, if a contract for the erection of a building for a certain sum is carried out by the parties, — if the structure is erected, and the money paid, — neither party is entitled to any further act contract executed, as well as one whicli is executory, contains obli- gations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by his own grant." This language seems to be open to criticism so far as it says that an executed simple conveyance creates an obligation. An obligation Is a right in personam, or the cor- relative duty of the obligor to perform. The right acquired by the grantee in a simple conveyance is a right in rem, and the cor- relative duty of the grantor is a negative one, imposed upon all per- sons in general, of noninterference with the grantee's right. Con- sequently, it is inaccurate to say that an executed contract by way of grant creates an obligation. This negative duty of noninterfer- ence is not contractual, strictly speaking, for, as will be seen, a true contract creates rights in personam,, not rights in rem. See Leake, Cont. 3; Holland, Juris. 165, 212, 224; Pollock, Cont. p. ix. IS Bouv. Law Diet. "Executed Contract" ; Robinson v. Robinson, 44 Ala. 227, 23.5; Frazer v. Robinson, 42 Miss. 121. (12) Ch. 1] DEFINITION AND ANALYSIS. § 8 or forbearance upon the part of the other, since all that was contemplated is done. An obligation no longer exists be- tween the parties, and accordingly there is no longer a "con- tract," in the proper sense of that term. An executory contract is the only true contract. In this case, all is not done that is agreed upon, and an obligation exists to do the rest. It may be illustrated by an agreement for the sale of property in the future. Here the property is not presently transferred, — the seller is under obligation to transfer it at a future time. The buyer's right is not a right m rem to the enjoyment of the property, but a right in 'per- sonam to have the seller transfer the property to him. There is agreement resulting in obligation, and a true contract ac- cordingly appears.^® i 8. Same — Incidental obligation. Agreements which create obligations only as incidentaLto transactions of a different and wider sort do not result lA contract, even though coupled with an intention of the par- ties to affect their legal relations. These have the character- istic, previously referred to,^'* of effecting their main object immediately upon the expression of the intention of the par- ties, but they differ from simple conveyance and gift, not only in creating obligations between the parties, but sometimes in providing for the coming into existence of further obliga- tions, and those not between the original parties to the agree- ment. "Marriage, for instance," says Sir William Anson, "effects a change of status from the moment the consent of the parties is expressed before a competent authority. At the same time it creates obligations between the parties which are incidental to the transaction, and to the immediate, objects 19 Anson, Cent. (4th Ed.) 3; Pollock, Cont. p. Ix.; Holland, Juris. 224. =0 Page 11, supra. (13) § 9 NATURE OF CONTRACT. [Ch. 1 of their expression of consent. So, too, a settlement of prop- erty in trust for persons born and unborn effects much more than the mere conveyance of a legal estate to the trustee; it imposes on him incidental obligations, some of which may not come into existence for a long time; it creates possibili- ties of obligation between him and persons who are not yet in existence." These obligations are the result of agreement contemplating a change of the legal relations of the parties thereto ; yet they are not contracts.^^ "It is no doubt possi- ble," continues the same author, "that contractual obliga- tions may arise incidentally to an agreement which has for its direct object the transfer of property. In the case of a conveyance of land with covenants annexed, or the sale of a chattel with a warranty, the obligation hangs loosely to the conveyance or sale, and is so easily distinguishable that one may deal with it as a contract; but in cases of trust or mar- riage, the agreement is far reaching in its objects, and the obligations incidental to it are either contingent, or at any rate remote from its main purpose or immediate operation." In order to make a contract, the parties must have one object in view, namely, to create an obligation. ^^ II. Elements of Agbeement. Agreement is the conscious concurrence of the minds of two »r more persons in a distinct, common Intention. Its elements are, therefore — (a) Plurality of parties. (b) Certainty of parties. (c) Community of intention. (d) Communication of intention. § 9. Plurality of parties. Since agreement is the result of consenting minds, the idea 21 Anson, Cont. (4th Ed.) 3. See Hamer v. Sidway, 124 N. Y. 538, Huffcut & W. Am. Cas. Cont. 143. 22 Anson, Cont. (4th Ed. I 3. 8. (14) Ch. 1] ELEMENTS OF AGREEMENT. § 12 of plurality of parties is essential to it. A person cannot enter into an agreement with, himself. There may be more than two parties to an agreement, but two, at least, there must be.i's § 10. Certainty of parties. Moreover, the notion of agreement includes a definite num- ber of parties. If any uncertainty exists as to either of or both the parties to an alleged agreement, it cannot be said that there is a meeting of minds, and accordingly there is no agreement, and hence no contract.^* ^ § 11. Community of intention. To arrive at an agreement, the parties must have a distinct intention common to both. There must be neither doubt nor difference between them. Thus, if one person asks an- other if he will buy certain property, and the latter answers, "Possibly," there is doubt. Again, if one person offers to sell property to another for a specified sum, and the latter says he will give a less sum, there is difference. In neither case, therefore, do the parties reach an agreement.*" § 12. Communication of intention. An agreement cannot result from a common intention, un- 23 Anson, Cont. (4th Ed.) 2; Pollock, Cont. 2; 2 Bl. Comm. 442. See, also, page 19, infra. 24 Pollock, Cont. 190; Squire v. Whltton, 1 H. L. Cas. 333, 358; Wlnslow V. Wlnslow, 52 Ind. 8; Webster v. Bla, 5 N. H. 540; Mar- shall V. White's Creek Turnpike Co., 7 Cold. (Tenn.) 252. A promise by or to an indefinite number of persons is unenforceable. Clark v. Great Northern Ry. Co. (C. C.) 81 Fed. 282. The case of an offer made to the public generally does not form an exception to this rule. See page 75, infra. 25 Anson, Cont. (4th Ed.) 2. See page 77, infra. Whether the par- ties assented to a contract is a question of law, where the facts are not disputed. McPherson v. Fargo, 10 S. D. 611, 66 Am. St. Rep. 723. (15) § 13 NATURE OF CONTRACT. [Ch. 1 less that intention is communicated. A secret acceptance of an offer does not result in agreement. The determination to accept must be manifested to the offerer.^® Since the word "agreement" imports a previous communication of a com- mon intention, the law judges of an agreement between two persons exclusively from those expressions of intention which are communicated between them. It must needs do so, for the state of mind or intention of a person can be ascertained by another person only by means of outward expressions, as words and acts;*'' and consequently, if an intention is not commimicated,^* or if it is withdrawn before communica- tion,** or communicated only to a third person,^" it does not effect an agreement. ! 13. Same — Express and implied agreements. Concurrence in a common intention may be manifested by conduct, as well as by language. When the parties declare their intention openly by words, spoken or written, the agree- ment thus reached is said to be express ; but when the inten- tion is shown by the conduct of the parties, or by the conduct of one of the parties taken in connection with the words of the other, the agreement is said to be implied. Express and implied agreements give rise to express and implied contracts. If an agreement is express, the contract founded upon it is 26 Anson, Cont. (4th Ed.) 2; Leake, Cont. 12. See page 46, infra. 27 Leake, Cont. 12. See, also, page 8, supra. 28 Browne v. Hare, 3 Hurl. & N. 484, 495, 27 Law J. Bxch. 376, per Bramwell, B. In regard to an unexpressed intention. Lord Blackburn, in Brog- den V. Metropolitan Ry. Co., 2 App. Cas. 692, quotes Brian, C. J. (17 Edw. IV.), as saying: "Your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is." 29 Cox V. Troy, 5 Barn. & Aid. 474. 30 Browne v. Hare, 3 Hurl. & N. 484, 495, 27 Law J. Bxch. 376, per Bramwell, B. (16) Ch. 1] ELEMENTS OF OBLIGAtlON. § 14 called an "express contract." If the agreement is implied, the contract is termed an "implied contract." The subject of implied contracts is dealt with in another connection.^^ § 14. Same — Quasi contract. Care should be taken not to confuse implied agreement with the so-called contract implied in law. This latter, as will be seen in another place,^^ is not a contract, but a quasi contract. What is said upon this subject in treating of im- plied contracts®^ is applicable also in the present connection. III. Elements of Obligation. Obligation is a legal bond, whereby constraint is laid upon a person or a group of persons to act or forbear on behalf of another person or group.^* ■■• Its elements are: (a) Plurality of parties. (b) Certainty of parties. (c) Control exercisable by one person over another. (d) Definiteness of liability. (e) Money value of subject-matter. 31 Page 53, infra. 3^ Page 23, infra. 33 Page 54, infra. 34 Anson, Cont. (4tli Ed.) 5. And see Savigny, Obi. c. 1, §§ 2-4; Holland, Juris. 213. "Obligation is the legal relation existing between two certain per- sons, whereby one (the creditor) is authorized to demand of the oth- er (the debtor) a certain performance which has a money value. In this sense, 'obligation' signifies not only the duty of the debtor, but also the right of the creditor. The fact establishing such claim and debt, as also the instrument evidencing it, is termed 'obligation.' " Mackeldey, Rom. Law, § 360. "By 'obligation' we mean the relation that exists between two per- sons, of whom one has a private and peculiar right (that is, not a merely public or official right, or a right incident to ownership or a permanent family relation) to control the other's actions by call- ing upon him to do or forbear some particular thing." Pollock, Cont. 4. (17) Contract — 2 § 14a NATURE OF CONTRACT. [Ch. 1 § 14a. In general. The legal rights comprehended in the term "property," used in its largest significance as including, according to the terminology of the English law, all real and personal estate (jiLS rerum, in Koman law), are commonly divided by the jurists into the two classes of rights in things and rights against persons, or, using the more familiar terms of the civil law, jura in rem and jura in personam. "Eights to things, jura in rem," says Mr. Leake,^^ "have a material subject, as land or goods, and are exercised upon the subject by using or disposing of it according to the meas- ure and extent of the right. The right subsists in the owner by virtue of a correlative negative legal duty, imposed gen- erally upon all persons, to forbear from interfering with the owner in the use or disposal of the subject in any manner permitted by his right; and the full exercise and enjoyment of the right by the owner does not require the active inter- vention of any other determinate person. An infringement of the right by any determinate person constitutes an injury, for which the law provides a remedy by action. Bights against a person, jura in personam, have for their subject an act of some certain and determinate person, as the delivery of goods, the payment of money, the doing or not doing of some particular thing by that person, and are exercised or enjoyed by requiring him to perform the act which forms the subject of the right. This right subsists by force of a cor- relative positive legal duty imposed upon the determinate person to act in the manner prescribed ; and the exercise and enjoyment of the right depends immediately upon his due performance of that duty. The right is secured by law by means of an action given for any deviation from that per- formance which forms the subject of the right." 35 L&ake, Cont. 1. (18) Ch. 1] ELEMENTS OF OBLIGATION. § 15 ISTow, a legal obligation is a personal right, — a right against the person; a right in personam. It must be distinguished, in the first place, from those general negative obligations which are correlative to the rights of property, and which rest upon the world at large, — rights in rem. It miTst also be distinguished from those natural or moral obligations which, though resting upon particular persons, and though some- times having a legal significance, are not made compulsory by a legal action. The distinctive features of a legal obliga- tion is the fact that it rests upon a particular person, and is enforceable by a legal action.^® More particularly defined, an obligation "is a control exercisable by definite persons over definite persons for the purpose of definite acts or forbear- ances reducible to a money value."*^ These characteristics will be examined in detail. § 15. Plurality of parties. As in case of agreement,^^ so it is with obligation; there must be two parties in order that it may arise. "A man cannot be under an obligation to himself, or even to him- self in conjunction with others."^'' And even though a per- son sustains a representative character, yet he may not, as an individiial, enter into a contract with himself in his offi- cial capacity.*" 3« Morey, Rom. Law, 342. 37 Anson, Cont. (4th Ed.) 7. 38 See page 15, supra. 39 Anson, Cont. (4th Ed.) 5; 2 BI. Comm. 442; Faulkner v. Lowe, 2 Exch. 595; Walker v. City of Springfield, 3 Ohio Dec. 567; Price v. Spencer, 7 Phila. (Pa.) 179. But see Morley v. French, 2 Cush. (Mass.) 130. 40 Allin V. Shadburne's Ex'r, 1 Dana (Ky.) 68; Eastman v. Wright, 6 Pick. (Mass.) 316, 321; Gorham's Adm'r v. Meacham's Adin r, 63 Vt. 231, Huffcut & W. Am. Cas. Cont. 88. But see Howe v. Striker, 5 Misc. Rep. 309, 25 N. Y. Supp. 1107. (19) i^ 18 NATURE OP CONTRACT. [Ch. § 16. Certainty of parties. To create an obligation, the parties to be affected by it must be definite. "A man cannot be obliged or boimd to the entire community. His liabilities to the political society of which he is a member are matter of public or criminal law. jSTor can the whole community be under an obligation to him. The correlative right on his part would be a right m rem, — would constitute property, as opposed to obliga- tion." The term "obligation" is not properly applicable to the general duty imposed by law upon all persons to respect such rights as the law sanctions. "Whether the right is to personal freedom or security, to character, or to those more material objects which we commonly call property, it im- poses a corresponding duty on all to forbear from molesting the right. Such a right is a right in rem; but it is of the essence of obligation, that the liabilities which it imposes are imposed on definite persons, and are tnemselves definite. The rights which it creates are rights in personam/'*'^ § 17. Control. To constitute an obligation, there must be "a control ex- ercisable by one or both of two persons or groups over the conduct of the other. They are thus bound to one another by a tie which the Jloman lawyers called vinculum juris, until the objects of the control are satisfied, when their ful- fillment effects a solufio obligation is, — an unfastening of the legal bond."^- § 18. Definiteness of liability. "The liabilities of obligation relate to definite acts or for- bearances. The freedom of the person bound is not gener- *i Anson, Cont. (4th Ed.) 5. See, also, Holland, Juris. 214. ■12 Anson, Cont. (4tli Ed.) 5. And see Pothier, Obi. 191 [173]; Holland, Juris. 213. (20) Ch. 1] SOURCES OP OBLIGATION. § 20 ally curtailed, but is limited in reference to some particular act, or series or class of acts." A general control over the conduct of another would affect his status as a free man, and this obligation does not do.*** Thus, a person's indi- vidual freedom is generally unlimited and indefinite. He may do what he likes, so long as he does not infringe upon the rights of others. But if he contracts to do work for an- other by a certain time, his general freedom is abridged by the special right of the other to the performance of the stip- ulated work, and the promisee is likewise bound to receive the work and pay for it. This right, as has been said, is a right in personam, as distinguished from a right in rem. § 19. Value of subject-matter. The subject-matter of the obligation— that is, the thing to be done or forborne — ^must possess or be reducible to a money value; otherwise, no obligation exists, since courts can deal only with matters to which the parties have attached an im- portance estimable by a known standard of value.** IV. SOUKCES OF OBLIGATIOiV. Obligations arise either ex contractu or ex delicto, or quasi ex contractu or quasi ex delicto. § 20. In general. Obligations may arise in many ways. Some are estab- lished by a contract ; that is, an agreement whereby one per- son legally binds himself to render something to another. These are termed "obligations ex contractu." Others are established by a delict (tort) ; that is, a private wrong, Avhere- by one person is legally bound to make compensation for the injury done to another. These are called "obligations ex *3 Anson, Cent. (4th Ed.) 6; Holland, Juris. 208. *i Anson, Cont. (4th Ed.) 6; Mackeldey, Rom, Law, § 360. (21) § 22 NATURE OF CONTRACT. [Ch. 1 delicto." Obligfitions may also arise from several other causes, which are, hojyever, from their peculiar features, as- similated either to those arising from contract or to those arising from delict. These are termed "obligations quasi ex contractu" and "obligations qua,si ex delicto," respectively.*^ The only obligations that we are concerned with here are those arising out of either true contract or quasi contract. § 21. Obligations ex contractu. When obligation arises from agreement, a contract results. An offer is made by one person, and accepted by the other, so that the minds of the parties meet, the one intending_and the other expecting the same thing. The result of this agree- ment, if the parties intended to affect their legal relations, is a legal tie binding the parties to one another in respect of some future act or forbearance.*^ As has been shown,*'^ however, obligation may spring from agreement, and still be different from contract. Sxich, for instance, are the obliga- tions incidental to trusts and marriage. To give rise to a contract, the one object which the parties have in view in entering into an agreement must be the creation of an ob- ligation.*® § 22. Obligations quasi ex contractu. In addition to the obligations that arise from contracts, properly so called, there are others that grow out of certain relations existing between persons, whereby they become bound to each other by duties similar to those arising from ^sMorey, Rom. Law, 351; Mackeldey, Rom. Law, § 491; Anson, Cont. (4th Ed.) 7. For a discussion of the distinction between obli- gations Dx contractu and obligations ex delictu, see Rich v. New York Cent. & H. R. R. Co., 87 N. Y. 382. *6 Anson, Cont. (4th Ed.) 7. *' Page 13, supra. *8 Anson, Cont. (4th Ed.) 8. (22) Ch. 1] QUASI CONTRACT. § 23 contract. Such obligations are said to arise qitasi ex con- tractu.*^ V. Quasi Contkact. ftuasi contract is an obligation which grows out of certain relations between persons, whereby they become bound to each other, without regard to their consent, by duties similar to those arising from contract.^'' ^ § 23. Distinction between contract and quasi contract. As has been said, a contract is the result of the concur- rence of agreement and obligation. As there may be agree- ment without obligation, so there may be obligation without agreement ; but in neither of these cases does a contract exist. Agreement and obligation must concur to make a contract. In many cases, the law_imj)oses obligations upon a person, without regard to his will, which it permits to be enforced by the remedies applicable to contracts. These obligations may be termed "quasi contracts. "^^ They differ from true con- tracts in that the element of agreement is wanting. True contract, as we have seen, is based upon the concurrence of the minds of the parties in a common intention. It cannot come into being except by the will of the parties. Quasi con- tract, on the other hand, may arise without agreement. It is purely a creature of the law. To illustrate: A judgment may be sued upon as a contract creating a debt, and yet, if the defendant did not consent to its being rendered against 49Morey, Rom. Law, 371; Anson, Cent. (4th Ed.) 8. 50 Morey, Rom. Law, 371. "An obligation similar in character to that of a contract, hut which arises, not from an agreement of parties, but from some relation between them, or from a voluntary act of one of them." Bouv. Law Diet. "Quasi Contractus." 51 They are also termed "constructive contracts," and, improperly, "contracts implied in law." People v. Speir, 77 N. Y. 144; Hertzog V. Hertzog, 29 Pa. 465, HufEcut & W. Am. Cas. Cent. 1. (23) e 23 NATURE OF CONTRACT. [Ch. 1 him, it does not constitute a contract. It is a quasi con- tract.^2 Again, a liability may be imposed by statute upon one person in favor of another, and the law may allow it to \ \ be enforced by a remedy applicable to contracts, and yet no /A contract truly exists, since there is no agreement. The lia- bility is quasi contractual.^^' So, if a father abandons his minor child, and a third person supplies it with the neces- saries of life, the law holds the father liable to pay therefor ; and this liability exists, even though the father expressl2,^iQi::;_/ bade the necessaries being furnished. The law creates a promise to pay, regardless of the will of the party to be bound, and accordingly the liability is not contractual, but . qvMsi contractual.^* In many books, even those of modern times, quasi contracts are identified with true contracts, and endless confusion has resulted. "This treatment of quasi contracts," says Pro- fessor Keener,^^ "is, in the opinion of the writer, not only unscientific, and therefore theoretically wrong, but is also de- structive of clear thinking, and therefore vicious in practice." Upon this theory, contracts are usually divided into three classes, viz.: First, simple contracts; second, contracts un- der seal; and, third, contracts of record, under which are placed judgments of a court of record. And where this clas- sification is made, simple contracts are subdivided into (1) 52 Keener, Quasi Cont 16; Bidleson v. Whytel, 3 Burrow, 1545, 1548; State v. City of New Orleans, 109 U. S. 285; Rae v. Hulbert, 17 111. 572; O'Brien v. Young, 95 N. Y. 428, Hufflcut & W. Am. Gas. Cont. 76. 53 Keener, Quasi Cont. 16; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. (U. S.) 450; Inhabitants of Milford v. Com., 144 Mass. 64; Woods V. Ayras, 39 Mich. 345; McCoun v. New York Cent. & H. R. R. Co., 50 N. Y. 176. 54 Keener, Quasi Cont. 23; Gilley v. Gilley, 79 Me. 292; Cromwell V. Benjamin, 41 Barb. (N. Y.) 558. See, also, Pierpont v. Wilson, 49 Conn. 450; Sceva v. True, 53 N. H. 627. 55 Keener, Quasi Cont. 3. (24) Ch. 1] QUASI CONTRACT. § 2^ express contracts and (2) implied contracts; the lattei* being again divided into (a) contracts implied in fact and (b) con- tracts implied in law. This classification is faulty in two respects, viz.: First, so far as it includes, as a contract of record, a judgment rendered against a party otherwise than with his consent; second, in identifying with contracts the so-called contract implied in law.^^ A judgment rendered in invitum is not a true contract, since^ it lacks the element of agreement ; and, for the same reason, a so-called contract im- plied in law cannot be regarded as a true contract. The dis- tinction between express _andTraplied>contracts, and between contracts implied in fact and so-called contracts implied in law, is of importance. An express -gpntract is one which is actually and formally made;: whjreinjjie parties declare in positive terms whalTfg" to be-done or jomitted. A contract im- plied in fact, on the other hand, is not declared in positive terms. It is based upon the actual agreement of the parties, however, and differs from an express contract only in the mode which the parties adopt for communicating their agree- ment to one another. A contract implied in law, so called, differs from both. It is not a contract at all. It is not based upon agreement. On the contrary, it may rise against the dissent of the party to be bound. Like a judgment en- tered in invitum, it is not a contract, but a quasi contract.^ ^ An express contract is instanced where one person offers, liv word of mouth or by writing, to sell goods to another for a stated sum, and the latter accepts the offer in so many words, whether verbally or by writing. A contract implied ni fact is illustrated where one person orders goods to be de- livered to him without saying anything as to payment. Upon '<<> Keener, Quasi Cont. 3 et seq. 57 Keener, Quasi Cont. 3 et seq.; Woods v. Ayres, 39 Mich. 345; Sceva V. True, 53 N. H. 627; Hertzog v. Hertzog, 29 Pa. 465, Hiiffdii & W. Am. Cas. Cont. 1. (25) ^ 24 NATURE OF CONTRACT. [Ch. 1 delivery of the goods, he becomes bound to pay for them, be- cause, the courts say, his conduct in ordering and accepting the goods, and the conduct of the other person in delivering the same, show an intention, mutually concurred in by the parties, that the goods shall be paid for. An example of the so-called contract implied in law exists where one person takes and sells another's goods, believing them to be his own. In such a case, the law creates an obligation upon the part of the seller to pay over the proceeds of the property to the right- ful owner, if he so elects. That there is no agreement here is perfectly obvious, and consequently a true contract does not exist. The obligation bears a resemblance to contract, however, and it may be enforced by an action ex contractu, and accordingly it may be termed a quasi contract.^* The doctrine of implied contracts is further discussed in other connections.^® *"■■ § 24. Ori^n of confusion of contract with quasi contract. "In dealing with form and consideration," says Sir Wil- liam Anson, "we mentioned that an informal acquisition of benefit by one party at the expense of another, creating a liability to make a return, seemed to be at the root of the con- tract Be in Koman law, and the contract arising upon ex- ecuted consideration®'* in English law." "It is not improb- 58 Keener, Quasi Cont. 24, 159 ; Foster v. Stewart, 3 Maule & S. 191; Hudson v. GillUand, 25 Ark. 100; Gilmore v. Wilbur, 12 Pick. (Mass.) 120. See, also, Sceva v. True, 53 N. H. 627; Lawson's Bx'r V. Lawson, 16 Grat. (Va.) 230. 69 Page 53, infra. 60 Where the benefit in contemplation of which a promise is made is conferred at the same time that the promise acquires a binding force, — where it is the doing of an act that concludes the contract, — then the act so done is called an executed or present consideration for the promise. Where a promise is given for a promise, each form- ing the consideration for the other, such a consideration is said to be executory or future. Anson, Cont. (4th Ed.) 13. (26) Ch 1] QUASI CONTRACT. § 24 able," he continues, "that the relation which we call quasi contract, or 'contract implied in law,' and the genuine con- tract arising upon consideration executed, sprang alike from this notion of the readjustment of proprietary rights. It may well be that the idea of agreement expressed in offer and acceptance was not applied at first to that which we now call contract arising upon consideration executed, and that such genuine contracts were only by degrees disentangled from quasi contract." And he cites a passage from Gains in sup- port of his suggestion, and says that the application in Eng- lish law of the action of debt indicates a similar connection, in early law, of the two sources of liability.®^ However this may be, contract and quasi contract bear a strong superficial analogy, which readily accounts for the early confusion of the two conceptions in English jurisprudence. Thus, in the case of quorsi contract, as well as the case of contract, the duty of the obligor is usually a positive one, — ^that is, a duty to act. In this respect they both differ from obligations the breach of which constitutes a tort, where the duty is nega- tive, — that is, a duty to forbear.®^ And "another considera- tion would also suggest the analogy of contract, rather than of tort," says Professor Keener.®^ "'Not only in most cases where a quasi contractual obligation is imposed has the de- fendant not acted in violation of a right in rem, in conse- quence of which the law coiild impose an obligation, but in many cases he has either not acted at all, — as, for example, where an absent husband, who is ignorant of the death of his wife, is obliged to reimburse one who has defrayed the expenses attendant upon her burial, — or, if he has acted, has acted with the consent, and perhaps the co-operation, of the 01 Anson, Cont. (4th Ed.) 362. 02 Ames, Hist. Assump., 2 Harv. Law Rev. 63; Keener, Quasi Cont. 15. 63 Keener, Quasi Cont. 15. (27) § 24 NATITRB OP CONTRACT. [Ch. 1 plaintiff; as, for example, where a defendant is obliged to refund money which he has received from the plaintiff, both parties acting under a misapprehension." Inasmuch as it has been customary in England to regard all obligations as arising either ex contractu or ex delicto, these considerations make it apparent why quasi contractual obligations should have been treated as contracts.''"' But what has contributed mainly to investing the so-called con- tract implied in law with so much of the outward aspect of agreement is the change in remedy, in English law, from debt to assumpsit.®" The only forms of personal action known to the common law were actions ex contractu and ac- tions ex delicto. If a party's rights were based upon a con- tract, his remedy was an action ex contractu. If they were based upon a tort, his remedy was an action ex delicto. If his case did not fit one or another of these forms of action, he was without redress, unless the facts would support a bill in equity.'^^ And it may be added, parenthetically, that, as a rule, the rights based on quasi contract were not of a char- acter which would render them cognizable in a court of equity. Now, at common law, the action of debt was the remedy for cases of breach of a promise made upon a consid- eration executed, where the breach resulted in a liquidated or ascertained money claim, and later it came to be applied to any breach of contract resulting in a similar claim. This action was also the remedy in cases where statute, common law, or custom laid a duty upon one to pay an ascertained sum to another.*^ The action of assumpsit, on the other hand, was primarily an action to recover an unliquidated sum, or such damages as the breach of a promise had occasioned 04 Ames, Hist. Assump., 2 Harv. Law Rev. 63. 65 Anson, Cont. (4th Ed.) 363. 66 Keener, Quasi Cont. 14. 67 Anson, Cont. (4tli Ed.) 363; Pollock, Cont. 139; Andrews' Ste- phen, Plead, p. 77. (28) Ch. 1] QUASI CONTRACT. § 25 to the promisee.^^ There were certain inconveniences at- taching to the action of debt, which need not be mentioned here, and, as the technical rules of pleading made it impossi- ble to include in the same suit an action of debt and an action of assumpsit, the field of the former action was gradu- ally encroached upon by the latter, until the scope of the ac- tion of assimipsit was so enlarged that the action would lie in any case where debt might be employed, except when thf obligation sought to be enforced was based either upon a rec- ord or upon a contract under seal.^^ Agreement is not an element of quasi contract, as ^ve have already seen. In the action of assumpsit, however, a prom- ise must always be alleged, and at one time a promise had to be proved.''*' Accordingly, in order to allow this remedy to be employed to enforce quasi contractual obligations, the courts were obliged to supply a promise where none in fact existed, and this they did by holding that, in the cases speci- fied, the law woiild "imply" a promise upon the part of the defendant to perform the obligation imposed upon him.^-' And thus the distinction between contract and quasi contract, never theretofore appreciated in England, became the more obscured, and the so-called contract implied in law came into being. § 25. Sources and classes of quasi contracts. The law of quasi contracts is a subject in itself, and it has been ably, if not comprehensively, treated by Professor Keen- er. It is therefore beyond the scope of the present work to touch upon the subject, except so far as to distinguish quasi us Anson, Cont. (4th Ed.) 363; Andrews' Stephen, Plead, p. 85. •■■'■'Anson, Cont. (4th Ed.) 363; Ames, Hist. Assump., 2 Harv. Law Rev. 53 et seq. T" Chitty, Plead. 301; Ames, Hist. Assump., 2 Harv. Law Rev. 64. ^1 Keener, Quasi Cont. 14; Woods v. Ayres, 39 Mich. 345; Sceva v. True, 53 N. H. 627; Lawson's Bx'r v. Lawson, 16 Grat. (Va.) 230. (29) i^ 25i NATURE OP CONTRACT. [Ch. 1 contract from true contract. Indeed, in view of the reforms in procedure that have been so commonly adopted, it would be rather in deference to its historical connection with con- tract, than to actual propriety of arrangement, that the vari- ous kinds of quasi contract should be stated and discussed in an elementary work on contracts. VI. Void, Voidable, and Unenfobceable Agreements. A void agreement is one which is destitute of legal effect. A voidable contract is one which is capable of being af- firmed or rejected, at the option of one of the parties. An unenforceable contract is one which is valid, but never- theless incapable of proof pending the fulfillment of certain conditions.'^ 2 § 25a. In general. The requisites needful to the formation of a valid contract have already been enumerated, and will be fully dealt with in succeeding chapters. They will be remembered as : (1) A genuine agreement, made with the object of creat- ing an obligation. (2) Parties capable in law of entering into a contact. (3) A valid object which the agre'einent is-intendsi^o ef- fect. \ (4) A sufBcient outward form, where the law prescribes a form. ; (5) A sufficient consideration, where a consideration is required by law. Where all these elements coexist, a contract is the result. If any one of them is absent, the agreement is in some cases merely unenforceable ; in some, voidable at the option of one of the parties ; in some, absolutely void. 72 Anson, Cont. (4th Ed.) 204. (30) Ch. 1] VOID AND VOIDABLE. t^ 36 § 26. Void and voidable agreements. The distinction between void and voidable transactions is a fundamental one, though it is often obscured by careless- ness of language. Text-book writers, judges, ^nd legislators are often alike at fault in this regard, and there- is no safe guide to the distinction apart ffdm the actual decisions.''^ An agreement which is void has frdm~-thej)eginning no legal effect at all, save so far as any party to it incurs penal con- sequences, as may happen where a special prohibitive law both makes the act void and imposes a penalty. Otherwise, no person's rights, whether he be a party or a stranger to the agreement, are affected.^* Being destitute of efPect from the beginning, the agreement never results in contract, and it is therefore improper to refer to a void agreement as a void contract. When the facts that make an agreement void are latent, — when the grounds of nullity do not appear on the face of the transaction, — then, of course, the party desiring to avoid the agreement must put the facts in evidence, else the agreement will be enforced. Having no knowledge of its in- validity, the court could not do otherwise than enforce it. But even though the party fails to defend, yet, if the grounds of nullity in any way come to the knowledge of the court, the agreement will not be enforced. The whole trjjinsaction falls when the grounds of nullity appear, and neither party can coniirm or enforce the agreement.^^ 73 Pollock, Cont. 7, 53; Mallns v. Freeman, 4 Bing. N. C. 395; Matthews v. Baxter, L. R. 8 Exch. 132, 133; Ewell v. Daggs, 108 U. S. 143; Bennett v. Mattingly, 110 Ind. 197; Van Shaack v. Rob- bins, 36 Iowa, 201; AUis v. Billings, 6 Mete. (Mass.) 415, 417; Fuller V. Hasbrouck, 46 Mich. 78, 82; Kearney v. Vaughan, 50 Mo. 284, 287; State V. Richmond, 26 N. H. 232; Den d. Inskeep v. Lecony, 1 N. J. Law, 111; Anderson v. Roberts, 18 Johns. (N. Y.) 515, 528; Terrill V. Auchauer, 14 Ohio St. 80, 84; PearsoU v. Chapin, 44 Pa. 9; Seylar V. Carson, 69 Pa 81; Bromley v. Goodrich, 40 Wis. 131, 139. 74 Pollock, Cont. 7; Anson, Cont. (4th Ed.) 204. 75 Anson, Cont. (4th Ed.) 204; Zouch v. Parsons, 3 Burrow, 1794, 1805; Pearson v. Chapin, 44 Pa. 9, 15. (31) § 26 NATURE OF CONTRACT. [Ch. 1 A voidable agreement, on the other hand, takes its ftiU and proper legal effect unless and until it is disputed and set aside by some person entitled to do so.''® The agreement re- sults in contract, which may be enforced or rejected, at the option of one of the parties." Such an agreement may properly be referred to as a voidable contract. It will be noticed that, where the grounds of nullity are latent, and solely within the knowledge of the parties to a void agreement, the party defendant has an option, to a limited extent, of either avoiding the agreement, or permitting it to be enforced against him. But this does not make the agree- ment a voidable one, properly speaking, for, as we have seen, a voidable contract is one which may not only be avoided at the option of one of the parties, but may also be coniirmed or ratified by him, so as to make it binding; whereas a void agreement cannot be confirmed, whether or not the grounds of nullity are latent, and will not be enforced if the court discovers the facts.''* Another distinction between void agreements and voidable contracts lies in the fact that third persons may acqiiire rights under the latter, but not under the former.'® A void agree- ment is instanced where one person sells goods to another on credit, under a mistake as to his identit}', and the buyer re- sells to a stranger. The contract is void on the ground of mistake, and the latter acquires no right to the goods.*" An illustration of a voidable contract arises in case one person sells goods to another upon the fraudulent misrepresentations of the latter. If the buyer resells to a hona fide purchaser, the latter acquires title to the goods, and the original seller -<■• Matthews v. Baxter, L. R. 8 Exch. 132 ; Hughes v. Palmer, 19 C. B. (N. S.) 393, 11 Jur. (N. S.) 876; Pearsoll v. Chapln, 44 Pa. 9. "Pollock, Cent. 7; Anson, Cent. (4th Ed.) 204. 78 Anson, Cont. (4th Ed.) 204. "Anson, Cont. (4th Ed.) 205. s" Cundy v. Lindsay, 3 App. Cas. 459. See page 101, infra. (32) Ch. 1] UNENFORCEABLE CONTRACTS. § 27 is left to his remedy against his fraudulent vendee by the action of deceit.^^ In the first illustration, the complete nullity of the agreement prevents any rights arising under it, if the mistaken party chooses to make knovyn the ground of nullity. In the second instance, there is a contract, and one capable of creating rights, and the person defrauded has but a limited right to set it aside.*^ § 27. Unenforceable contracts. An unenforceable contract is distinguishable from both void and voidable agreements. It cannot be set aside at the option of one of the parties to it ; nor do the obstacles to its enforcement touch the existence of the contract. They only set difficulties in the way of an action being brought thereon, or proof being given of it. Such is a contract which fails to comply with the provisions of the Statute of Frauds, which requires certain contracts to be in writing ;** or a con- tract which has become barred by the Statute of Limitations, which prescribes a time within which contracts must be en- forced at law, if at all.** The defects in such contracts are 81 Babcock v. Lawson, 4 Q. B. Div. 394, 400; Rowley v. Bigelow, 12 Pick. (Mass.) 307. And see Benjamin, Sales (Tth Am. Ed.) 402, 475; Kranert v. Simon, 65 111. 344. 82 Anson, Cont. (4tli Ed.) 205. 83 The Statute of Frauds affects not the contract, but simply the remedy for breach thereof, according to the* better and later doc- trine. Leroux v. Brown, 12 C. B. 801, 823; Maddison v. Alderson, 8 App. Cas. 467, 488; Cooper v. Hornsby, 71 Ala. 62; Swanzey v. Moore, 22 111. 63; Fowler v. Burget, 16 Ind. 341; Kleeman v. Collins, 9 Bush (Ky.) 460; Bird v. Munroe, 66 Me. 337, 343, HufEcut & W. Am. Cas. Cont. 92; Crane v. Gough, 4 Md. 316; Townsend v. Har- graves, 118 Mass. 325, 334; Sims v. Hutchins, 8 Smedes & M. (Miss.) 328; Rickards v. Cunningham, 10 Neb. 417; Benton v. Pratt, 2 Wend. (N. y.) 385; Minns v. Morse, 15 Ohio, 568; Philbrook v. Belknap, 6 Vt. 383. But see Swift v. Swift, 46 Cal. 267; Wilkinson v. Heaven- rich, 58 Mich. 574; Koch v. Williams, 82 Wis. 186. 84 Higgins v. Scott, 2 Barn. & Adol. 413 ; Mills v. Fowkes, 5 Bing. (33) Contract — 3 § 27 NATURE OP CONTRACT. [Ch. 1 not irremediable. A writing may be supplied by the obligor to satisfy the Statute of Frauds, or the contract obligation may be duly acknowledged by the obligor, so as to remove the bar of the Statute of Limitations.*^ They are properly termed "unenforceable" rather than "voidable" contracts.®^ N. C. 455; Sparks v. Pico, 1 McAU. 497, Fed. Cas. No. 13,211; Dis- tributees of Knight V. Godbolt, 7 Ala. 304; Armistead v. Brooke, 18 Ark. 521; Belknap v. Gleason, 11 Conn. 160; Elkins v. Edwards, 8 Ga. 325; Payne v. Pusey, 8 Bush (Ky.) 564; Joy v. Adams, 26 Me. 330; Thayer v. Mann, 19 Pick. (Mass.) 535; Wilkinson v. Flowers, 37 Miss. 579; Wood v. Augustine, 61 Mo. 46; Cookes v. Culbertson, 9 Nev. 199; Hodgdon v. White, 11 N. H. 208; Johnson v. Albany & S. R. Co., 54 N. Y. 416; Fisher's Ex'r v. Mossman, 11 Ohio St. 42; Richmond v. Aiken, 25 Vt. 324; Whipple v. Barnes, 21 Wis. 327. 85 Anson, Cont. (4th Ed.) 205. 86 Anson, Cont. (4th Ed.) 271. And see Pollock, Cont. 8. (34) PART II. CHAPTER II. OFFER AND ACCEPTANCE. I. Necessity foe Offer and Acceptance. § 28. In General. 29. Necessity for Acceptance. 30. Same — Offer under Seal. II. Form of Offer and Acceptance. § 31. In General. 32. Promise. 33. Express and Implied Offer and Acceptance. 34. Simple Assent 35. Act for Promise. 36. Promise for Act. 37. Promise for Promise. III. Communication of Offer. § 38. In General. 39. Mode of Communication. 40. Communication of Particular Terms. 41. Offer under Seal. IV. Communication of Acceptance. § 42. In General. 43. Time for Communication. 44. Place of Communication. 45. Form of Communication. 46. Mode of Communication. 47. Moment of Communication. V. Implied Contracts. § 48. In General. (35) OFFER AND ACCEPTANCE. [Ch. 2 49. Quasi Contract. 50. Services Rendered. 51. Goods Furnished. 52. Communication of Offer and Acceptance by Conduct. VI. Same — Limits of Docteine of Implied Contract. § 53. Necessity for Actual Agreement — In General. 54. Same — Relationship of Parties. 55. Same — Implication of Contract from Tort. 56. Effect of Express Contract. 57. Implication of Invalid Contract. VII. Agency. § 58. In General. 59. Creation of Agency. 60. Authority of Agent. 61. Operation of Agency. 62. Termination of Agency. VIII. Revocation of Offer. § 63. In General. 64. Offer under Seal. 65. Standing Offer — Option — Refusal. 66. Communication of Revocation. 67. Same — Revocation of General Offer. IX. Lapse or Offer. § 67a. In General. 68. Efflux of Reasonable Time. 69. Same — Offer under Seal. 70. Noncompliance with Condition of Offer. 71. Rejection of Olfer. 72. Death of Party. 72a. Insanity of Party. 73. Dissolution of Partnership. 74. Dissolution of Corporation. X. Identity of Acceptor — General Offer. I 75. In General. XI. Character of Acceptance. § 76. In General. XII. Efpect of Acceptance. § 77. In General. (36) Ch. 2] NECESSITY. § 28 XIII. Revocation of Acceptance. § 78. In General. XIV. Intention to Ckeate Legal Relations. § 79. In General — Intention — Motive. 80. Gratuitous Benefits. 81. Expression of Intention as to Future Acts. 82. Social Engagements. 83. Jests. 84. Invitations to Negotiate. 85. Incomplete Negotiations. XV. Definiteness of Offer aso Acceptance. § 86. In General. I. Necessity foe Offeb and Acceptance. In order to create a contract, an offer must be made by one party, and accepted by the other. § 28. In general. According to Sir William Anson, "every expression of a common intention arrived at by two or more parties is ul- timately reducible to question and answer," — that is, as ap- plied to contract, reducible to offer and acceptance.-^ The simple illustration in the case of contract is where one per- son asks another whether he will do or refrain from doing a certain thing, and the other answers in the affirmative. In the case of a contract of employment, the employe, at some stage of the negotiations, may be regarded as having asked the employer whether he would pay for the services to be rendered, and the latter ranj be regarded as having answered, "I will." Though the question and answer may not have been formally expressed, nevertheless, in the na- ture of the transaction, they must have been in the minds of the parties. Again, a merchant who displays his wares 1 Anson, Cont. (4th Ed.) 11. See Thurston v. Thornton, 1 Gush. (Mass.) 89; Melick v. Kelley, 53 Neb. 509. (57) § 29 OFFER AND ACCEPTANCE. [Ch. 2 may be deemed to ask whether any one will buy the goods at his price, and a person who takes the goods thereby an- swers, consenting to do so. Difficulty sometimes arises in applying the rule above quoted to cases in which the con- sent of the parties is declared in a set form, as where they execute a written agreement, especially where the parties do not intend to be bound until the writing is signed.^ But there is no doubt that, in actual practice, question and an- swer are, in the form of offer and acceptance, the normal and most important elements of the general conception of contract.^ § 29. Necessity for acceptance. It follows from what has been said that, an offer is not binding upon the offerer until it is accepted, since, without an acceptance, there can be no agreement in a common in- tention.* Nor is an unaccepted offer binding upon the per- = Pollock, Cont. 4. 3 Pollock, Cont. 9. *Gilkes V. Leonino, 4 C. B. (N. S.) 485; Stitt v. Huidekopers, 17 Wall. (U. S.) 384; First Nat. B^nk v. Hall, 101 U. S. 43, 49; Crocker V. New London, W. & P. R. Co., 24 Conn. 249, 261; Etheredge v. Barkley, 25 Fla. 814; McKinley v. Watkins, 13 111. 140; Demoss v. Noble, 6 Iowa, 530, 533; Walker v. Walker, 104 Iowa, 505; Burton V. Shotwell, 13 Bush (Ky.) 271; Belfast & M. L. Ry. Co. v. In- habitants of Unity, 62 Me. 148; Hand v. Evans Marble Co., 88 Md. 226; Boston & M. R. Co. v. Bartlett, 3 Cush. (Mass.) 224, Langdell, Cas. Cont. 103; Thurston v. Thornton, 1 Cush. (Mass.) 89; Bronson V. Herbert, 95 Mich. 478; Graff v. Buchanan, 46 Minn. 254; Brown V. Rice, 29 Mo. 322; Houghmont v. Boisaubin, 18 N. J. Eq. 315; Corning v. Colt, 5 Wend. (N. Y.) 253; Bower v. Blessing, 8 Serg. & R. (Pa.) 243; Bruce v. Bishop, 43 Vt. 161; Fidelity Loan & Trust Co. V. Engleby (Va.) 37 S. B. 957, 3 Va. Sup. Ct. Rep. 101; Johnson V. Pilkington, 39 Wis. 62, This rule applies to an offer in the form of an option, as well as to other offers. Wiles v. People's Gas Co., 7 Pa. Super Ct. 562; Abbott v. '76 Land & Water Co. (Cal.) 53 Pac'. 445. It applies also to the contract of guaranty. See note 22, infra. If an offer is made to several persons jointly, all must accept (38) Oh. 2] FORM. § 31 son to whom it is made. A man cannot be forced to ac- cept a benefit.^ i 30. Same — Offer under seal. As will be seen in another connection,® an offer made under seal is irrevocable. It binds the maker absolutely, without regard to acceptance, and thus seemingly consti- tutes an exception to the rule that, in order to create a con- tract, an offer must be accepted, but the exception is only apparent. While an offer imder seal is binding upon the maker Avithout acceptance, nevertheless it creates no obliga- tion upon the part of the person to whom it is made unless he gives his assent. To convert it into a contract binding both parties, the offer must be accepted.'' II. FOEM OF OFFBK and ACCEPTANCE. A contract may originate: (a) In the offer of a promise and its acceptance by simple assent, in case the offer is under seal. (b) In the offer of an act for a promise. (c) In the offer of a promise for an act. (d) In the offer of a promise for a promise. § 31. In general. An offer may consist either in the offer of a promise or in order to turn it into a contract. Pratt v. Prouty, 104 Iowa, 419, 65 Am. St. Rep. 472. 5 Anson, Cont. (4th Ed.) 12; Melchers v. Springs, 33 S. C. 279, 282. And see Townson v. Tickell, 3 Barn. & Aid. 31, 37. See, also, cases cited in note 4, supra. An acceptance wil sometimes be presumed in favor of a minor. Richards v. Reeves (Ind. App.) 45 N. B. 624. Also in favor of a lunatic. McCartney v. McCartney (Tex. Civ. App.) 53 S. W. 388, judgment reversed (Tex.) 55 S. W. 310. See page 527, infra, as to acceptance of deeds. 6 Page 67, infra. T Anson, Cont. (4th Ed.) 12; Butler & Baker's Case, 3 Coke, 24b, 26b; Xenos v. Wickham, L. R. 2 H. L. 296. (39) g 33 OFFER AND ACCEPTANCE. [Ch. 2 the offer of an act. An acceptance may consist either in giv- ing a promise or in doing an act. An acceptance may also consist in simple assent, where the offer is made under seal. It has been seen that an offer is ultimately reducible to the form of a question, but in actual practice, of course, it does not always take that form. Thus, it constitutes an offer in law where a person tells another that he will work for him upon a certain salary, and accordingly a contract arises by an acceptance of the terms proposed. So, also, there is an offer in law where a person requests another to do certain -work for him, and, if the latter accepts, the former is bound to pay for the services. Again, an offer may consist in the offer of a promise. § 32. Promise. In this connection it may be said that a promise by one party to another, or by two or more parties to one another, to do or forbear from doing specified acts, is generally re- garded as an essential feature of contract. The word "prom- ise" means, in legal terminology, a binding promise, as dis- tinguished from a mere offer of a promise, termed in the civil law a "pollicitation." Generally speaking, an offer of a promise must be accepted before it becomes binding on the offerer.® I 33. Express and implied offer and acceptance. i^either the offer nor the acceptance need take the form of spoken or written words. Either may be implied from the conduct of the parties.^ Thus, if a merchant sends goods to an individual's house unasked, it amounts to an offer to sell the goods ; and if the latter keeps the goods and uses 8 See cases cited in note 4, supra. 9 Bank of Lemoore v. Gulart (Cal.) 54 Pac. 1111; Marshall v. Old (Colo. App.) 59 Pac. 217. (40) Ch. 2] FORM. § 36 them as his own, it constitutes an acceptance of the offer. In such a case, the offer and acceptance are said to be im- plied, to distinguish them from offer and acceptance ex- pressed in words, either spoken or written. This is the dis- tinction between express and implied contracts. An express contract is one which is openly declared in words, either spoken or written. An implied contract is one which the law infers as a matter of fact from the conduct of the par- ties, or from the conduct of one party, taken in connection with the words of the other. § 34. Simple assent. The simplest form of offer and acceptance applies only to contracts made under seal. This limited application is the result of the rule of law that no promise that is not sealed is valid unless it is based on a consideration ; that is, unless the promisor receives some benefit in return for the prom- ise, or the promisee suffers some detriment in reliance upon it. Accordingly, if a promise to do an act is made under seal, the promisee need only assent to the offer in order to turn it into a binding contract.-'*' § 35. Act for promise. If a person offers to render services to another, the lat- ter, by acquiescing in the work being done, promises to pay for it. This is the offer of an act for a promise. The ac- ceptance here consists in acquiescence, and the contract is therefore implied, not express. And the contract is also unilateral, as distingTiished from bilateral, since there is but one promise, namely, that to pay for the services. § 36. Promise for act. This form of offer and acceptance is well illustrated in a 10 See authorities cited in note 7, supra. (41) § 38 OFFER AND ACCEPTANCE. [Ch. 2 case where a person offers a reward for the doing of an act, such as returning a lost article. It is the offer of a promise for an act, and, upon performance of the act, the promise becomes binding. Here, also, the contract is im- plied, because the acceptance is not expressed in words, and, there being only one promise, the contract is unilateral. i 37. Promise for promise. If one person promises to pay a sum of money to an- other if the latter will perform certain services in the. fu- ture, and the other promises to do the work, it creates a contract binding each party; the one to render the services, and the other to accept the same and pay for them. In this case, the contract rests wholly in the words of the parties, and is therefore express, not implied, and, there being re- ciprocal promises, the contract is bilateral. III. COMMUIflCATIOK OF OFFER. An offer must be communicated, else it cannot be turned into a contract by acceptance. § 38. In general. If there were not decisions in effect to the contrary, it would seem to be a self-evident proposition that a person cannot accept an offer of whose existence he is not aware, so as to make it binding on either the offerer or himself.-'^ To constitute a contract, there must be mutuality of assent ; and how can a person assent to something that he has never heard of? According to the better view, an offer must be 11 A party cannot accept a contemplated offer before it is com- municated to him, even if he is aware of It. Benton v. Springfield Y. M. C. A., 170 Mass. 534; James v. Marion Fruit Jar & Bottle Co., 69 Mo. App. 207. If a contract is made between two persons for the benefit of a third, who is a lunatic or a minor, the law puts in an acceptance for him. even though he is ignorant of the existence of the contract. See note 5, supra. (42) Ch. 2] COMMUNICATION. communicated or manifested before it can become suscepti- ble of acceptance. Thus, if an offer is made by performing services for another without his knowledge, an acceptance of the offer as a matter of fact cannot be implied, so as to create a promise to pay for the benefits received.-'^ And so, if a reward is offered for the doing of an act, a person who does the act cannot, in the better view, claim the reward, where he acted in ignorance of the offer.^^ § 39. Mode of commvinication. The offerer may adopt such means as he sees fit to com- 12 Taylor v. Laird, 25 Law J. Bxch. 329, 332; Davis v. School Dist. No. 2, 24 Me. 349; Thornton v. Village of Sturgis, 38 Mich. 639; Holmes v. Board of Trade, 81 Mo. 137; Bartholomew v. Jack- son, 20 Johns. (N. Y.) 28, HufEcut & W. Am. Gas. Cont. 14; Hort v. Norton, 1 McCord (S. C.) 22. 13 Williams v. West Chicago St. R. Co., 191 111. 610; Chicago & A. R. Co. V. Sebring, 16 111. App. 181; Ensminger v. Horn, 70 III; App. 605; Ball v. Newton, 7 Cush. (Mass.) 599; City of Hoboken v. Bailey, 36 N. J. Law, 490; Fitch v. Snedaker, 38 N. Y. 248, HufCcut & W. Am. Cas. Cont. 62; Howland v. Lounds, 51 N. Y. 604; Stamper v. Temple, 6 Humph. (Tenn.) 113; State v. Brown, 20 Wis. 287. See Larimer v. McLean County Sup'rs, 47 111. 36; Rea V. Smith, 2 Handy (Ohio) 193; Morgan v. Chester County, 56 Pa. 466; Reif v. Paige, 55 Wis. 496, 503. Contra, Drummond v. United States, 35 Ct. CI. 356; Eagle v. Smith, 4 Houst. (Del.) 293; Everman V. Hyman, 3 Ind. App. 459; Dawkins v. Sappington, 26 Ind. 199, HufE- cut & W. Am. Cas. Cont. 65; Auditor v. Ballard, 9 Bush (Ky.) 572, overruling Lee v. Trustees of Flemingsburg, 7 Dana (Ky.) 28. See Neville v. Kelly, 12 C. B. (N. S.) 740, 104 E. C. L. 740. Russell v. Stewart, 44 Vt. 170, has been cited as contrary to the better rule as set forth in the text, but it is of doubtful authority. In that case, a reward for the arrest and conviction of a criminal was claimed by two persons, — one a person who had been specially employed to detect the criminal, the other a person who had ar- rested the criminal at the former's instance. Both acted without knowledge of the reward, but the offerer, being willing to pay it, filed a bill of interpleader against the two claimants. The court held that, of the two, the person making the arrest was entitled to the reward. See notes 159, 161, in^ra. r4.r) § 40 OFFER AND ACCEPT ANCE. [Ch. 2 municate his proposal, but he, of course, takes the risk of making the communication effectual, as will be inferred from what has been said concerning the necessity for com- munication of the offer. This rule does not prevail without qualification, however, in the case of an offer made by telegraph. . The sender of a telegram constitutes the company his agent for the trans- mission of the message, it is true, but to this extent only: the agency extends to sending the message as the sender writes it. Accordingly, by the better opinion, if an offer is altered by the company in transmission, the sender is not bound by it as received by the addressee, and hence no con- tract results from an acceptance of the offer in its altered form.^* § 40. Communication of particular terms. If an offer contains on its face the terms of a complete contract, the acceptor is not bound by other terms intended to be included in it by the offerer, unless he either knew of the nature of those terms, or had their existence brought to his knowledge, and was capable of informing himself of their nature.^ ^ Thus, a printed stipulation at the head of an hotel register does not become a part of the contract between the innkeeper and a guest who registers, unless it was seen ' or assented to by the guest. ^® And the rule applies also to " Henkel v. Pope, L. R. 6 Exch. 7 ; Pegram v. Western Union Tel. Co., 100 N. C. 28; Pepper v. Telegraph Co., 87 Tenn. 554. Contra, semble, "Western Union Tel. Co. v. Shotter, 71 Ga. 760; Ayer v. West- ern Union Tel. Co., 79 Me. 493; sevible, Ashford v. Schoop, 81 Mo. App. 539. See Anheuser-Busch Brewing Ass'n v. Hutmacher, 127 111. 652; Barons v. Brown, 25 Kan. 410; Wilson v. Minneapolis & N. W. R. Co., 31 Minn. 481; Howley v. Whipple, 48 N. H. 487; Durkee v. Vermont Cent. R. Co., 29 Vt. 127; Loveland v. Green, 40 Wis. 431. 15 Anson, Cont. (4th Ed.) 16. Nor can he impose other terms on the offerer, where he did not know of them when he accepted the offer. Tichnor v. Hart, 52 Minn. 407. 1'' Bernstein v. Sweeny, 1 Jones & S. (N. Y.) 271. See. also Hunt- (44) Ch. 2] COMMUNICATION. § 40 the familiar case of printed conditions on passenger tickets. In this connection the rule may be stated as follows: If the person receiving the ticket does not see or know that there is any writing upon it, he is not bound by the con- ditions.^'' If he knows there is writing, and also knows or believes that the writing contains conditions, then he is bound by the conditions.'* If he knows there is writing on the ticket, but does not know or believe that the writing con- tains conditions, he is bound or not bound, according as to whether or not the jury are of the opinion that the deliv- ering of the ticket to him in such a way that he could see that there was writing upon it was reasonable notice that the writing contained conditions.'® In all these cases, the question is whether the terms of the offer have been fully communicated to the acceptor. And the tendency of judi- cial decision is towards a general rule that, if a man ac- cepts a document which pxirports to contain the terms of an offer, he is bound by all those terms, though he may not inform himself of their tenor, or even of their existence.^" ley V. Bedford Hotel Co., 56 X P. 53; Bodwell v. Bragg, 29 Iowa, 232. 17 Henderson v. Stevenson, L. R. 2 H. L. Sc. 470; Malone v. Bos- ton & W. R. Corp., 12 Gray (Mass.) 388, Huffcut & W. Am. Cas. Cont. 19; Blossom v. Dodd, 43 N. Y. 264. See Parker v. Southeast- ern Ry. Co., 2 C. P. Div. 416, 423. But see note 20, infra'. IS Harris v. Great Western Ry. Co., 1 Q. B. Div. 515. See Parker V. Southeastern Ry. Co., 2 C. P. Div. 416, 423. 19 Parker v. Southeastern Ry. Co., 2 C. P. Div. 416, 423. 20 Anson, Cont. (4th Ed.) 18; Burke v. Southeastern Ry. Co., 5 C.P. Div. 1; Watkins v. Rymill, 10 Q. B. Div. 178; McKay v. Jackman (C. C.) 17 Fed. 641; Campbell v. Larmore, 84 Ala. 499; Black v. Wabash, St. L. & P. Ry. Co., Ill 111. 351, 53 Am. Rep. 628; Keller v. Orr, 106 Ind. 406; Gulliher v. Chicago, R. I. & P. R. Co., 59 Iowa, 416; ' Allen V. Whetstone, 35 La. Ann. 846; Rice v. Dwlght Mfg. Co., 2 Cush. (Mass.) 80; Breese v. United States Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526. See page 98, mfra. In the absence of fraud, con- cealment, or improper practice, the legal presumption is that stipu- lations limiting the common-law liability of common carriers, con- (45) § 42 OFFER AND ACCEPTANCE. [Ch. 2 § 41. Offer under seal. An offer made under seal is effectual from the moment of making, without acceptance or even knowledge of its ex- istence by the other party. While this is so, yet there is no contract between the parties until the offer is accepted. Until acceptance, the offerer is not bound by contract; he is simply unable in law to revoke his offer. And the person to whom the offer is made is not bound unless he accepts it.^* IV. Communication of Acceptance. The offerer may prescribe conditions as to the time, place, form, and mode of communication of the acceptance. If no time is fixed for acceptance, the offer must be accepted within a reasonable time. If no mode of communicating an acceptance is prescribed, it may be sent by the same means that brought the offer. The moment of communication of an acceptance is the mo- ment of its proper dispatch, regardless of whether it is ever received by the offerer. § 42. In general. An acceptance, as well as an offer, must be manifested by some means in order to render it effectual. An une- vinced determination to accept an offer is of no effect. It must be communicated to the offerer, either by word or by conduct.^^ In another connection it will be seen that the talned in a receipt given by them for freight, were known and as- sented to by the party receiving it. Zimmer v. New York Cent. & H. R. R, Co., 137 N. Y. 460; Ballou v. Earle, 17 R. I. 441. And the same is true of a passenger ticket, where it takes the form, not of a mere check to indicate the route, but of a contract cover- ing the rights of the parties. Boylan v. Hot Springs R. Co., 132 U. S. 146, Keener's Cas. 30; Fonseca v. Cunard S. S. Co., 153 Mass. 553, Huffcut & W. Am. Cas. Cont. 15. 21 See page 67, infra, as to revocation of offer. 22Felthouse v. Bindley, 11 C. B. (N. S.) 869; Brogden v. Metro- politan Ry. Co., 2 App Cas. 666, 688, 691, 697; Hebb's Case, L. R. (46) Ch. 2] COMMUNICATION. § 42 offerer may waive express communicatioii of the acceptance, so that the acceptance may be sufBciently manifested by 4 Eq. 9, Langdell, Cas. Cont. 42; Trounstine v. Sellers, 35 Kan. 447; Jenness v. Mount Hope Iron Co., 53 Me. 20; Caton v. Shaw, 2 Har. & G. (Md.) 13; McCulloch v. Eagle Ins. Co., 1 Pick. (Mass.) 278, Langdell, Cas. Cont. 72; McDonald v. Boeing, 43 Mich. 394; Beck- with V. Cheever, 21 N. H. 41; Perry v. Dwelling House Ins. Co., 67 N. H. 291, 68 Am. St. Rep. 668; White v. Corlies, 46 N. Y. 467, Huff- cut & W. Am. Cas. Cont. 7; Mactier's Adm'rs v. Frith, 6 Wend. (N. Y.) 103, Langdell, Cas. Cont. 77. If the offerer knows of the acceptance, it is equivalent to com- munication thereof. Bascom v. Smith, 164 Mass. 61, Keener's Cas. 39. The law sometimes puts in an acceptance in favor of a minor or a lunatic, without any word or act on his part. See note 5, supra. Ordinarily, there is no occasion to notify the guarantor of the ac- ceptance of an offer of guaranty, for the doing of the act specified in the offer is a sufficient acceptance. But when the guarantor would not know, of himself, from the nature of the transaction, whether the offer had been acliepted or not, then he is entitled to notice of acceptance. Bishop v. Eaton, 161 "Mass. 496. If the guaranty is signed by the guarantor at the request of the other party, or if the latter's agreement to accept is contemporaneous with the guaranty, or if the receipt from him of a valuable con- sideration, however small, is acknowledged in the guaranty, mutual assent appears, and the delivery of the guaranty to him or to an- other for his use completes the contract without any notice of ac- ceptance. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future credit to be given to the principal debtor, the guaranty is in legal effect a mere offer on the part of the guarantor, and, in order that a contract may result, the other party must accept it, and inform the guarantor of the acceptance. Davis Sewing Mach. Co. v. Richards, 115 U. S. 524. And see Barnes Cycle Co. v. Schofield, 111 Ga. 880. A notice of ac- ceptance is necessary only where the so-called guaranty amounts to a mere offer of guaranty. Davis v. Wells, 104 U. S. 159; Powers V. Bumcratz, 12 Ohio St. 273. And see Douglass v. Howland, 24 Wend. (N. Y.) 35; Union Bank of Louisiana v. Coster's Ex'rs, 3 N. Y. 203. It has been held that notice of acceptance is necessary even where the guaranty is given upon a previous request. Evans V. McCormick, 167 Pa. 247. A contract arises in that place where the acceptance is made (47) § 43 OFFER AND ACCEPTANCE. [Ch. 2 conduct of the acceptor. ^^ But the offerer cannot dispense with the necessity for communicating the acceptance by one means or another, so as to bind the person to whom the offer is made upon his failure to expressly reject it. Thus, a person offered by letter to buy a certain horse at a specified price, adding that, if he heard no more about the matter, he should consider the horse his at the price mentioned. The owner of the horse made up his mind to accept the sum offered, but he did not communicate his intention to the offerer. The court held that there was no contract.^* An apparent exception to the rule requiring an acceptance to be communicated to the offerer exists in the case of an offer made to the public generally. Here, the acceptor turns the offer into a binding contract by acting upon it without other- wise giving notice of the acceptance to the offerer.^® § 43. Time for communication. ^ In making an offer, a person may impose a condition as to the time for acceptance, and, if he does so, the offer must be accepted, if at all, within the time limited.^^ Accord- and put in the way of communication. Bennett v. CosgrifE, 38 Law T. (N. S.) 177; Taylor v. Jones, 1 C. P. Div. 87; Newcomb v. De Roos, 2 El. & EI. 271; Cowan v. O'Connor, 20 Q. B. Div. 640; Boit v. Maybin, 52 Ala. 252. See Evans v. Nicholson, 32 Law T. (N. S.) 778. 23 Page 56, infra. =4 Felthouse v. Bindley, 11 C. B. (N. S.) 869, 875. 25 Wilson V. McClure, 50 111. 366; Harson v. Pike, 16 Ind. 140; Hayden v. Souger, 56 Ind. 42, 26 Am. Rep. 1; Reif v. Paige, 55 Wis. 496. 26Carr v. Duval, 14 Pet. (U. S.) 77; Larmon v. Jordan, 56 111. 204; Cannon River Manufacturers' Ass'n v. Rogers, 42 Minn. 123; Eagle Mill Co. v. Caven, 76 Mo. App. 458; Potts v. Whitehead, 20 N. J. Eq. 55; Britton v. Phillips, 24 How. Pr. (N. Y.) Ill; Long- worth V. Mitchell, 26 Ohio St. 334. An offer closing, "Wire us at our expense on receipt of this," calls for an immediate reply by telegraph. Home v. Niver, 168 Mass. 4. See, also, James v. Marion Fruit Jar & Bottle Co., 69 Mo. App. 207. While the offerer may prescribe a time for acceptance, yet he cannot prescribe a time for (48) Ch. 2] COMMUNICATION. § 43 ingly, an offer by letter calling for an answer "now" must be accepted by return mail,^^ and, when an answer by re- turn mail is requested by the offerer, the acceptance must ordinarily be dispatched by the next return of post.^^ Un- der some circumstances, especially where there are several mails a day, this may not be necessar^' f^ but in any event the acceptance must be sent promptly, when it is demanded by return mail. A delay of several days is fatal.^" "Where the party making the offer prescribes no time within which it must be accepted, the acceptance must be dispatched within a reasonable time, else it is of no effect.^^ The question of what constitutes a reasonable time, within the meaning of this rule, depends upon the circumstances of the particular case ; especially upon the nature of the offer, and the mode refusal, so as to fix a contract on the person addressed, if he does not reject the offer within thqAtime limited. Felthouse v. Bindley, 11 C. B. (N. S.) 869, 875. 2" Batterman v. Morford, 76 N. Y. 622. 28 Dunlop V. Hlggins, 1 H. L. Cas. 381, 387, Langdell, Cas. Cont. 21; Tinn v. Hoffmann, 29 Law T. (N. S.) 271; Carr v. Duval, 14 Pet. (U. S.) 77, 83; Maclay v. Harvey, 90 111. 525, 32 Am. Rep. 35, Huffcut & W. Am. Cas. Cont. 41; Bernard v. Torrance, 5 Gill & J. (Md.) 383; Taylor v. Rennie, 35 Barb. (N. Y.) 272, 22 How. Pr. (N.Y.) 101. 29 Palmer v. Phoenix Mut. Life Ins. Co., 84 N. Y. 63, 71. 30 Maclay v. Harvey, 90 111. 525, 32 Am. Rep. 35, Huffcut & W. Am. Cas. Cont. 41; Bernard v. Torrance, 5 Gill & J. (Md.) 383; Tay- lor V. Rennie, 35 Barb. (N. Y.) 272, 22 How. Pr. (N. Y.) 101. 31 Ortman v. Weaver (C. C.) 11 Fed. 358; Martin v. Black's Ex'rs, 21 Ala. 721; Trounstine v. Sellers, 35 Kan. 447; Stone v. Harmon, 31 Minn. 512; Bruner v. Wheaton, 46 Mo. 363; Barker v. Barker, 16 N. H. 333; Hallock v. Commercial Irs. Co., 26 N. J. Law, 268; Chicago & G. E. Ry. Co. v. Dane, 43 N. Y. 240; Keck v. McKinley, 98 Pa. 616. A general or public offer must be accepted within a reasonable time, in the absence of revocation, the same as private offers. Lor- Ing V. City of Boston, 7 Mete. (Mass.) 409, Langdell, Cas. Cont. 99; Matter of Kelly, 39 Conn. 159, 163. When the offer is under seal, it need not be accepted within a reasonable time. See page 71, infra. Contract— 4 (49) CORNE.'X UNIVERSITY NOV 1 4 1902 § 46 OFFER AND ACCEPTANCE. [Ch. 2 of its communication.^^ The circumstances being sho^vn, the determination of the question is for the court.^^ § 44. Place of communication. The offerer may fix the place at which he will receive an acceptance, if he so desires, and, if the place is specified as a condition of the offer, an acceptance communicated at a diiferent place does not create a contract; and this is true, even though the acceptance is actually received by the of- ferer.^* § 45. Form of communication. The person making an offer may impose a condition as to the form in which the acceptance must be communicated, as, for instance, in writing, and, if he does so, the acceptor must adopt that form, else the acceptance will be ineffectual.^^ § 46. Mode of communication. The party making an offer may also prescribe the man- ner in which the acceptance may be communicated to him, and, if he does so, that mode must be adopted by the ac- 32 Ramsgate Victoria Hotel Co. v. Monteflore, L. R. 1 Excli. 109, Langdell, Cas. Cont. 40; Kempner v. Cohn, 47 Ark. 519, 58 Am. Rep. 775; Moxley's Adm'rs v. Moxley, 2 Mete. (Ky.) 309; Mizell v. Bur- nett, 49 N. C. 249, 69 Am. Dec. 744. If the offer is delayed through failure of the means of communi- cation adopted by the maker, it may be accepted when received, even though what would otherwise be a reasonable time for acceptance has elapsed since its dispatch. Adams v. Lindsell, 1 Barn. & Aid. 681, Langdell, Cas. Cont. 4. 38 Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372. See Aymar v. Beers, 7 Cow. (N. Y.) 705, 17 Am. Dec. 538. 3*Eliason v. Henshaw, 4 Wheat. (U. S.) 225, Huff cut & W. Am. Cas. Cont. 38. 35 Pollock, Cont. 25. See, also, Brogden v. Metropolitan Ry. Co., 2 App. Cas. 666, 691; Briggs v. Sizer, 30 N. Y. 647. (50) Ch. 2] COMMUNICATION. § 46 ceptor in order to create a contract.'*^ If the offerer imposes no conditions, then the offer may be accepted in any reason- able or usual manner.^^ The question of reasonableness de- pends upon the circumstances of the particular case, es- pecially upon the mode in which the offer was communicat- ed; and, in reason, the rule would seem to be that, where the mode of communicating the acceptance is not prescribed, any commonly used mode is suiHcient which is as safe and expeditious as the mode adopted for communicating the of- fer.^^ In any event, if no conditions are imposed by the offerer, the acceptance may, aB a rule, be communicated by the same means that brought the offer. Accordingly, if the offer is sent by mail, and nothing is said as to mode of ac- ceptance, the acceptor may, in return, communicate his in- tention by the same means. ^® And the same is true where the offerer employs other means of communication, such as the telegraph, or a" special messenger.'*" ssEIiason v. Henshaw, 4 Wheat. (U. S.) 225, Huffcut & W. Am. Gas. Cont. 38. 37 Henthorn v. Praser [1892] 2 Ch. 27. 38 Pollock, Cont. 25. See, also, Trounstine v. Sellers, 35 Kan. 447, 454; Bernard v. Torrance, 5 Gill & J. (Md.) 383, 405; Mactier's Adm'rs v. Frith, 6 "Wend. (N. Y.) 103, 119, Langdell, Cas. Cont. 77; Howard v. Daly, 61 N. Y. 362, 365. If the parties live in different towns, an acceptance may ordinarily be given by mail, even though the offer was communicated hy word of mouth. Henthorn v. Fraser [1892] 2 Ch. 27. An offer requesting a reply "by return of post" does not require exclusively a reply by letter by return of post. A reply by telegram, or by verbal message, or by any means not less expeditious than a letter sent by post, would be equally sufficient. Tinn v. Hoffmann, 29 Law T. (N. S.) 271. 39 Household Fire & Carriage Ace. Ins. Co. v. Grant, 4 Exch. Div. 216, 221; Mactier's Adm'rs v. Frith, 6 Wend. (N. Y.) 103, Langdell, Cas. Cont. 77. This rule was based on the doctrine of agency in the English case above cited; that is to say, the offerer, by adopting a certain means of communication, thereby makes such means his agent, not only to deliver the offer, but also to receive the acceptance. This theory is criticised by Sir Frederick Pollock (Cont. 32). 40 Trevor v. Wood, 36 N. Y. 307; Mactier's Adm'rs v. Frith, 6 Wend. (N. Y.) 103, 119, Langdell, Cas. Cont. 77. (51) § 47 OFFER AND ACCEPTANCE. |_Ch 2 § 47. Moment of communication. If an acceptance is dispatched by proper means, it imme- diately becomes effective. A contract thereupon arises, which exists from the moment of dispatch ;*^ and this is true, even though, the letter of acceptance is delayed or lost in transmis- sion.""^ In order that the dispatch of a letter of acceptance shall complete the contract, two things are necessary : First, the acceptor must adopt proper means of communication, and, second, he must place the letter irrevocably beyond his control. As to means of communication, it has already been shown what modes may be adopted by the acceptor. All that remains to be said is that, if he fails to adopt the proper mode, the acceptance does not conclude the contract until its actual receipt by the offerer.*^ For instance, if the offer is sent by telegraph, and the acceptor sends an answer by mail, 41 Adams v. Lindsell, 1 Barn. & Aid. 681, Langdell, Cas. Cont. 4; Henthorn v. Eraser [1892] 2 Ch. 27; Potter v. Sanders, 6 Hare, 1, Langdell, Cas. Cont. 15; Taylor v. Merchants' Fire Ins. Co., 9 How. ■ (U. S.) 390, Hutfcut & W. Am. Cas. Cont. 29; Levy v. Cohen, 4 Ga. 1; Farrier v. Storer, 63 Iowa, 484; Stockham v. Stockham, 32 Md. 196; Brauer v. Shaw, 168 Mass. 198, overruling McCulloch v. Eagle Ins. Co., 1 Pick. (Mass.) 278; Abbott v. Shepard, 48 N. H. 14; Perry V. Mount Hope Iron Co., 15 R. I. 380. An interesting argument to the contrary in a case decided in the French court of cassation is reported in S v. F , Langdell, Cas. Cont. 156, Keener's Cas. Cont. 149; Merlin, Repertoire de Jurisprudence, tit. Vente, I. art. III., No. XI. bis. As to revocation of acceptance, see section 78, infra. 42 Household Fire & Carriage Ace. Ins. Co. v. Grant, 4 Exch. Div. 216, overruling British & American Tel. Co. v. Colson, L. R. 6 Exch. 108, Langdell, Cas. Cont. 45; Duncan v. Topham, 8 C. B. 225; Min- nesota Linseed Oil Co. v. Collier White-Lead Co., 4 Dill. 431, Fed. Cas. No. 9,635, HufCcut & W. Am. Cas. Cont. 46; Haas v. Myers, 111 111. 421; Commercial Ins. Co. v. Hallock, 27 N. J. Law, 645; Hallock V. Commercial Ins. Co., 26 N. J. Law, 268; Vassar v. Camp, 11 N. Y. 441, Langdell, Cas. Cont. 110; Trevor v. Wood, 36 N. Y. 307; Col- lege Mill Co. V. Pidler (Tenn. Ch. App.) 58 S. W. 382, 384; Wash- burn V, Fletcher, 42 Wis. 152. is See section 46, supra. (52) Ch. 2] IMPLIED CONTRACTS. § 48 the moment of acceptance is the moment of actual receipt of the acceptance by the offerer, and not the moment of its tlispatch. In regard to the sufficiency of the act of dispatch, it may be said that the acceptance, in order to conchide the parties, must be placed entirely out of the acceptor's con- trol. Thus, if the post is adopted as the means of com- munication, the letter of acceptance must be sufficiently stamped, properly directed, and duly posted.** The rule that the moment of acceptance is the moment of dispatch may be avoided by the oiferer, if he so desires, by making the offer conditional upon his actual receipt of an acceptance within a prescribed time. In that event, the offer would lapse if the acceptance either wholly miscarried or arrived later than the time specified.*^ V. Implied Conteacts. Either offer or acceptance, or both, may be communicated by the conduct of the parties, thereby resulting in what is termed an "implied contract." § 48. In general. From what has been said as to the possible forms of offer and acceptance, it will he seen that a contract may arise from conduct of the parties, as well as from words or writ- ing. Thus, the offer may be express, and the acceptance be implied, as where one person asks another to work for «Averill v. Hedge, 12 Conn. 424, 433, Langdell, Cas. Cent. 90; Maclay v. Harvey, 90 111. 525; Blake v. Hamburg Bremen Fire Ina. Co., 67 Tex. 160. Deposit in a street mail box is sufficient posting. "Wood V. Callagban, 61 Mich. 402, 411; Greenwich Bank v. De Groot, 7 Hun (N. y.) 210. Delivery to a letter carrier while on his rounds Is also sufficient. Pearce v. Langfit, 101 Pa. 507. Not so in England. In re London & Northern Bank, 69 Law J. Ch. 24, 81 Law T. (N. S.) 512. 45 Pollock, Cont. 37; Haas v. Myers, 111 111. 421; Lewis v. Brown- ing, 130 Mass. 173; Vassar v. Camp, 11 N. Y. 441, 448, Langdell, Cas. Cont. 110. (53) § 49 OFFER AND ACCEPTANCE. [Ch. 2 him for hire, and the latter, instead of expressly accepting the offer, proceeds to do the ys^ork. Again, the offer may be implied, and the acceptance be express, as where one per- son sends goods to another's house, and the latter then says he ^vill pay for them. Lastly, both offer and acceptance may be implied, as where one person does work for an- other under such circumstances that no reasonable man would suppose he meant to do it for nothing, and the person ben- efited acquiesces in the doing of the work. Another instance of offer and acceptance both implied would arise in the sec- ond illustration given above, if the recipient of the goods, instead of expressly promising to pay for them, should keep and use the goods in silence. § 49. Quasi contract. The term "implied contract" should be limited in mean- ing to what is more often spoken of in the books as "con- tract implied in fact," as distinguished from "contract im- plied in law." It is important to note the distinction be- tween the two. Contract implied in fact is based upon agree- ment between the parties. A contract cannot be implied in fact unless the conduct of the parties shows that, while they did not express themselves by word or writing, yet they in- tended to enter into the contract relation.*® The only dif- ference between contract implied in fact and express con- tract lies in the way in which the parties manifest their agreement.*^ In the case of express contract, the agreement is shown by a definite offer and acceptance, either in word or writing. Where the contract is implied in fact, however, either the offer or the acceptance, or both, is shown by con- 40 See page 58, infra. i^ Church v. Imperial Gas Light & Coke Co., 6 Adol. & El. 846, 860; Marzetti v. Williams, 1 Barn. & Adol. 415, 423; Bixby v. Moor. 51 N. H. 402, HufEcut & W. Am. Cas. Cont. 378; Chilcott v. Trimble,. 13 Barb. (N. Y.) 502. (54) Ch. 2] IMPLIED CONTRACTS. § 50 duct. A so-called contract implied in law is not a true con- tract. There the law creates an obligation which may be enforced by the same remedy as a contract, but no contract in fact exists. The obligation is purely the creature of the law. It does not depend upon agreement of the parties ; on the contrary, it frequently arises against the express will of the obligor.*® To avoid confusion, as well as for the sake of accuracy, the so-called contract implied in law has come to be termed "quasi contract," while implied contract is limited in scope to its proper meaning, — that is, to contract implied as a matter of fact. Illustrations of implied con- tract have been given above. A quasi contract is instanced where one of several joint debtors pays the entire debt. The law allows him to recover from the other debtors their proportionate share of the debt, although they did not re- quest him to pay it.*'' Another illustration of qiMsi con- tract is where a parent refuses to provide necessaries for a minor child, and they are furnished by a stranger. The par- ent is liable for their reasonable worth; and this is so, even though he expressly forbade their being furnished."" § 50. Services rendered. If one person asks another to work for him for hire, pre- scribing no form for acceptance, the latter may accept the offer simply by doing the work, and the former must pay for it.'^ Again, if one person allows another to work for him 48 Pollock, Cont. 9-12 ; Keener, Quasi Cont. 5. loGolsen v. Brand, 75 111. 148; Chaffee v. Jones, 19 Pick. (Mass.) 260, 264. 50 Gilley v. Gilley, 79 Me. 292; Cromwell v. Benjamin, 41 Barb. (N. Y.) 558. siJolinson V. The Frank S. Hall (D. C.) 38 Fed. 258; Ryer v. Stockwell, 14 Cal. 134; Harson v. Pike, 16 Ind. 140; Blaisdell v. Gladwin, 4 Cush. (Mass.) 373; Port Jervis Water Works Co. v. Vil- lage of Port Jervis, 151 N. Y. Ill; Gracy v. Bailee, 16 Serg. & R. (Pa.) 126. A general offer of reward is accepted by doing the act (55) § S3 OFFER AND ACCEPTANCE. [(Jh. 2 under such circumstances that no reasonable man would suppose that the latter meant to do the work for nothing, the former will be liable to pay for it.^^ § 51. Goods furnished. If a person orders goods of a tradesman, and prescribes no form for acceptance, the latter may accept the offer simply by furnishing the goods, and the customer will be liable to pay for them.^^ And if a tradesman sends goods to an in- dividual's house without an order having been given, and the latter keeps and uses the goods as his own, he is liable to pay what they are worth.®* § 52. Communication of offer and acceptance by conduct. In order that a contract may be implied from conduct, both offer and acceptance must be communicated, the same as in case of offer and acceptance expressly made."''® The only difference between express and implied contracts in this re- spect lies in the means of comnumi cation ; that is, in the manner in which the intent to enter into a contract is mani- called for, without giving express notice to the offerer. Reif v. Paige, 55 Wis. 496. saPaynter v. Williams, 1 Gromp. & M. 810, 3 Tyrw. 894; De Wolf V. City of Chicago, 26 111. 444; Day v. Caton, 119 Mass. 513; McClary V. Michigan Cent. R. Co., 102 Mich. 312; Crane v. Baudauine, 55 N. Y. 256; Baillard v. Rowan, 21 Misc. Rep. (N. Y.) 324; Blount v. Guthrie, 99 N. C. 93; Wheeler v. Hall, 41 Wis. 447. 53 Ward v. Powell, 3 Har. (Del.) 379; White v. Elgin Creamery Co., 108 Iowa, 522; Dent v. North American Steamship Co., 49 N. Y. 390; Beardsley v. Davis, 52 Barb. (N. Y.) 159; Crook v. Cowan, 64 N.C. 743; Adams v. Columbian Steam Boat Co., 3 Whart. (Pa.) 75. 54 Kinney v. South & N. A. R. Co., 82 Ala. 368; Orme v. Cooper, 1 Ind. App. 449; Clore v. Johnson, 21 Ky. Law Rep. 1685, 56 S. W. 5; Rosenfield v. Swenson, 45 Minn. 190; Fogg v. Proprietors of Ports- mouth Atheneum, 44 N. H. 115, Huff cut & W. Am. Cas. Cont. 10; Indiana Mfg. Co. v. Hayes, 155 Pa. 160. 55 Anson, Cont. (4th Ed.) 15. (56) Oh 2] IMPLIED CONTRACTS. § 52 fested. It is the mark of an express contract that the offer and acceptance are made by direct means of communication, as by word or by writing. The implied contract is char- acterized by an indirect means of communicating an inten- tion to contract, as by conduct of the parties. It was noted in the case of express contracts that it is not always essential that the acceptance shall actually reach the offerer before a contract can arise. It was said to be suffi- cient if the acceptance is dispatched by a proper means of communication, even though it never reaches the offerer in fact. So it is with implied contracts. It is not necessary that the conduct relied upon as showing an acceptance should come to the actual knowledge of the offerer. It is enough if the acceptor, by overt act, puts his acceptance in the way of communication to the person making the offer, so that, by the exercise of common diligence, the latter may learn that the offer is accepted.®'' In order to amount to a manifesta- tion of an intention to accept an offer, conduct must take the form of an act of a kind fitted to make the contractual inten- tion known to the offerer. And not only must it be signiii- oant of acceptance, but it must also be overt, — done openly. An act done in secret, though upon an intention to accept, is not sufficient to communicate that intention to the offerer, so as to conclude a contract.®'^ !N"or can mere silence, of itself, be construed as an acceptance. To have that effect, it must be silence under such circumstances as to amount to acquies- ■cence, in which case it may amoimt to acceptance.^® se Mactier's Adm'rs v. Frith, 6 Wend. (N. Y.) 103, Langdell, Cas. ■Cont. 77. See First Nat. Bank v. Watkins, 154 Mass. 385; Patton's Ex'r V. Hassinger, 69 Pa. 311. 57 Warner v. Willington, 3 Drew. 523, 533; Trounstine v. Sellers, 35 Kan. 447; Beckwith v. Cheever, 21 N. H. 41; White v. Corlies, 46 N. Y. 467, Huffcut & W. Am. Cas. Cont. 7. 58 Anson, Cont. (4th Ed.) 15; Huck v. Flentye, 80 111. 258, 262; Whit- man Agricultural Co. v. Hornbrook, 24 Ind. App. 255; Hohhs v. Massa- :Soit Whip Co., 158 Mass. 194, Huffcut & W. Am. Cas. Cont. 24; Royal (57) g S3 OFFER AND ACCEPTANCE. [Ch 2 VI. Same — Limits of Doctrine of Implied Cotstteact. A contract will not be implied as a matter of fact : (a) Where the conduct of the parties does not show an actual agreement. (b) Where the matter in question is fully covered by an express contract. (c) Where the law requires a contract upon the subject to be in writing. § 53. Necessity for actual agreement — In general. It has been seen that, in order to create a contract, the parties must concur in a common intention. It follows from this that a contract may not be implied unless the con- duct of the parties shows that their minds met in a common intent.^" It is to be observed, however, that a party's in- tention is to be inferred from his conduct, and, accordingly, if he so acts as to lead another to believe he is making or accepting an offer, he is bound by his conduct, regardless of a secret intention inconsistent with his acts.^" With this qualification, it may be laid down as a riile that a contract cannot be implied as a fact where the parties did not con- cur in an intention to enter into the contract relation. It follows from this that a contract cannot be implied to pay for benefits conferred upon a person without his knowledge or consent. Thus, a person is not liable to pay for services rendered for his benefit, where he did not know what was being done, and could not, therefore, reject them before per- Ins. Co. v. Beatty, 119 Pa. 6, HufEcut & W. Am. Cas. Cont. 21. See Victors V. Davies, 12 M. & W. 758, Langdell, Cas. Cont. 430; Harts v. Emery, 184 111. 560. 50 Keener, Quasi Cont. 4; Saul v. Busenbark, 83 111. App. 256, re- versed on another ground in Busenbark v. Saul, 184 111. 343; People v. Speir, 77 N. Y. 144; Hertzog v. Hertzog, 29 Pa. 465, Huffcut & W. Am. Cas. Cont. 1. 80 Leake, Cont. 12; Bohn Mfg. Co. v. Sawyer, 169 Mass. 477; Bail- lard V. Rowan, 21 Misc. Rep. (N. Y.) 234. See page 8, supra. (58) Ch. 2] IMPLIED CONTRACTS. § 54 formance.*'^ And so, if a man orders goods of one person, he is not liable to another, who furnishes the goods, where the buyer supposes they are being furnished by the person of whom he ordered them.®^ § 54. Same — Eelationship of parties. The relationship existing between the ■ parties is an im- portant factor in determining whether a contract may be im- plied to pay for services rendered or sxipport furnished. As between parent and child, a contract to pay for the benefits received will not ordinarily be implied,''^ and the same is true where the parties, though not in fact such, stand in the relation of parent and child.^* The rule is also applied as between more distant relatives,^^ and in many courts even 61 Taylor v. Laird, 25 Law J. Exch. 329, 332; Shaw v. Graves, 79 Me. 166; Earle v. Coburn, 130 Mass. 596; Holmes v. Board of Trade of Kansas City, 81 Mo. 137; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28, Huff cut & W. Am. Cas. Cont. 14; Glenn v. Savage, 14 Or. 567; Hort v. Norton, 1 McCord (S. C.) 22. A contract cannot arise from the action of one party in rendering services, where the other has no power to prevent his action. Thornton v. Village of Sturgis, 38 Mich. 639. 62 Bolton V. Jones, 27 Law J. Exch., 117, 2 Hurl. & N. 564; Boston Ice Co. V. Potter, 123 Mass. 28, Huffcut & W. Am. Cas. Cont. 243. See, also, Schmaling v. Thomlinson, 6 Taunt. 147; Belfield v. Nation- al Supply Co., 189 Pa. 189. 63 Cohen v. Cohen's Ex'r, 2 Mackey, D. C. 227; Bradley v. Kent's Bx'r, 7 Houst. (Del.) 372; Hudson v. Hudson, 90 Ga. 581; Cowan V. Musgrave, 73 Iowa, 384; Perry v. Perry, 2 Duv. (Ky.) 312; Bantz v. Bantz, 52 Md. 6L6; Howe v. North, 69 Mich. 272; Erhart v. Diet- rich, 118 Mo. 418; Hey wood v. Brooks, 47 N. H. 231; Young v. Her- man, 97 N. C. 280; Houck's Ex'rs v. Houck, 99 Pa. 552; Hatch v. Hatch's Estate, 60 Vt. 160; Pellage v. Pellage, 32 Wis. 136. 6-4Larsen v. Hansen, 74 Cal. 320; Stock v. Stoltz, 137 111. 349; Wyley v. Bull, 41 Kan. 206; Harris v. Smith, 79 Mich. 54; Gillett v.. Camp, 27 Mo. 541; Hudson v. Lutz, 50 N. C. 217; Ormshy v. Rhoades, 59 Vt. 505. 65 State V. Connoway, 2 Houst. (Del.) 206; Neeley v. Rich, 7 111. App. 116; HefEron v. Brown, 155 HI. 322; Oxford v. McFarland, a (59) § 55 OFFER 'AND ACCEPTANCE. [Ch. 2 as between persons not related,*^" where they occupy the po- sition of members of the same family, and the benefits for which a recovery is sought relate to the family connection. It should be borne in mind, however, that the presumption against the existence of a contract in these cases is not con- clusive. It is. a presumption of fact, merely, and may be rebutted by evidence of circumstances showing that the par- ties mutually intended that compensation should be made.''^ § 55. Same — Implication of contract from tort. A contract cannot be implied as a matter of fact from con- duct amounting to a tort. It is impossible, from the nature of the case, first, because, if the contractual element of con- sent appears, the conduct does not constitute a tort;*"* and, second, because, if there is no consent, a necessary element of contract is lacking."^ In some cases, however, the law creates an obligation upon the part of a tort feasor which may be enforced as a contract; but this obligation is not a true contract, — it is quasi contractual.'''*' Ind. 156; Shepherd v. Young, 8 Gray (Mass.) 152, 69 Am. Dec. 242; Tumiltz V. Tumlltz, 13 Mo. App. 444; CoUyer v. Collyer, 113 N. Y. 442; Wilkes v. Cornelius, 21 Or. 341; Hall v. Pinch, 29 Wis. 278, 9 Am. Rep. 559. «o Collar V. Patterson, 137 111. 403; Medsker v. Richardson, 72 Ind. 323; Windland v. Deeds, 44 Iowa, 98; Cooper v. Cooper, 147 Mass. 370, 9 Am. St. Rep. 721; Felertag v. Feiertag, 73 Mich. 297; Ryan V. Lynch, 9 Mo. App. 18; Schaedel v. Reibolt, 33 N. J. Eq. 534; Wil- cox V. Wilcox, 48 Barb. (N. Y.) 327; Gerz v. Weber, 151 Pa. 396; Schrimpf v. Settegast, 36 Tex. 296. <57 Morton v. Rainey, 82 111. 215, 25 Am. Rep. 311; Huffman v. Wyrick, 5 Ind. App. 183; Thurston v. Perry, 130 Mass. 240; Wood- ward V. Bugsbee, 2 Hun (N. Y.) 128, 4 Thomp. & C. (N. Y.) 393; Briggs V. Briggs' Estate, 46 Vt. 571. And see cases cited in the four notes next preceding. OS Churchill v. Baumann, 104 Cal. 369; Howland v. George F. Blake Mfg. Co., 156 Mass. 543, 570, 1 Ames & S. Lead. Cas. 422; Ellis v. Cleveland, 54 Vt. 437. 60 See page 7, supra. 70 Keener, Quasi Cont. 24, 159; Neate v. Harding, 6 Exch. 349; (60) Ch. 2] IMPLIED CONTRACTS. § 56 § 56. Eifect of express contract. Since two inconsistent contracts cannot coexist, and since there is no need for two contracts that coincide, it follows that a contract cannot be implied as a matter of fact, where an express contract exists between the same parties in refer- ence to the same subject-matter.'^^ To make the rule appli- cable, not only must the parties and the subject-matter be the same, but the express contract must be complete in all its terms, so that its provisions may be regarded as super- seding any implications arising merely from the conduct of the parties ; otherwise, an implied contract may arise.''- For instance, if a person asks another to work for him, and the latter promises to do so, nothing being said as to compensa- tion, the law implies a promise to pay what the work is rea- sonably worth.'^^ Again, though there be an express con- tract for the performance of specified services at a stipulat- ed compensation, yet, if extra work be done in carrying out the contract, there may arise an implication of an agreement Catts V. Phalen, 2 How. (U. S.) 376; Puller v. Duren, 36 Ala. 73; Balch V. Patten, 45 Me. 41; Jones v. Hoar, 5 Pick. (Mass.) 285. 71 Perkins v. Hart, 11 Wheat. (U. S.) 237, 6 L. Ed. 463; Vincent V. Rogers, 30 Ala. 471; Baldwin v. Lessner, 8 Ga. 71; Walker v. Brown, 28 111. 378: Cranmer v. Graham, 1 Blackf. (Ind.) 406; Mor- ford V. Ambrose, 3 J. J. Marsh. (Ky.) 688; Charles v. Dana, 14 Me. 383; Watkins v. Hodges, 6 Har. & J. (Md.) 38; Whiting v. Sullivan, 7 Mass. 107; BuUerfield v. Seligman, 17 Mich. 95; Bond v. Corhett, 2 Minn. 248 {Gil. 209); Morrison v. Ives, 4 Smedes & M. (Miss.) 652; Chambers v. King, 8 Mo. 517; Streeter v. Sumner. 19 N. H. 516; Voorhee.s v. Combs, 33 N. J. Law, 494; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 317; Lawrence v. Hester, 93 N. C. 79; Halloway v. Davis, Wright (Ohio) 129; Suber v. Pullin 1 Rich. (S. C.) 273; Gammage v. Alexander, 14 Tex. 414; Maynard v. Tidbail, 2 Wis. 34. 72 Commercial Bank v. Pfeiffer, 22 Hun (N. Y.) 327. And see cases cited in next preceding note. 73 Peters' Adm'rs v. Craig, 6 Dana (Ky.) 307; Naughton v. Ci.y of Sioux Falls, 3 S. D. 90. And see cases cited in note 51, supra. (61) § 58 OFFER AND ACOBPTANCE. [Ch. 2 to pay therefor.'^^ It should be noticed in this connection that, if an express contract has been wholly performed by the plaintifF, or performed by him as to any one distinct, sep- arable subject included in it, or if performance has been prevented by the wrong of the defendant, or if the contract has been rescinded, then the plaintiff may recover as upon an implied contract; the recovery in the two latter alternatives being in quasi contract.^ ^ § 57. Implication of invalid contract. While the law will sometimes create a quasi contractual obligation on the part of a person who has received a ben- efit under a void contract to make compensation to the other party,' '^ yet it will not imply, as a matter of fact, a con- tract which the parties themselves could not make without a M'riting.''''' VII. Agency. Either party may enter into a contract through the instru- mentality of another having power to act for him, and called his agent. § 58. In general. While the agreement of the parties must be expressed to 7* CMIds V. Somerset & K. R. Co., Brunner, Col. Cas. 593, Fed. Cas. No. 2,682; Aikin v. Bloodgood, 12 Ala. 221; Bachelder v. Blck- ford, 62 Me. 526; Childress v. Smith (Tex. Civ. App.) 37 S. W. 1076. ■s Perkins v. Hart, 11 Wheat. (U. S.) 237, 6 L. Ed. 463; Vincent V. Rogers, 30 Ala. 471; Walker v. Brown, 28 111. 378, 81 Am. Dec. 287; Morford v. Ambrose, 3 J. J. Marsh. (Ky.) 688; ButterHeld v. Seligman, 17 Mich. 95; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 317; Suber v. Pullin, 1 S. C. 273. And see Gibbs V. Bryant, 1 Pick. (Mass.) 118; Princeton & K. Turnpike Co. v. Gulick, 16 N. J. Law, 161. T6 Keener, Quasi Cont. 24, 258, 267; White v. Franklin Bank, 22 Pick. (Mass.) 181; Slater Woolen Co. v. Lamb, 143 Mass. 420; Duval V. Wellman, 124 N. Y. 156. 77 Chase v. Second Ave. R. Co., 97 N. Y. 384. Nor will a contract (62) Ch. 2] AGENCY. i^ 59 one another, yet they need not be face to face at the time. They may communicate by conduct as well as by words, and, when words are employed, the agreement may be communi- cated either by post or telegraph, or by messenger or agent.''* An agent is a person intrusted with a certain amount of dis- cretion to act in behalf of another, who is termed the "prin- cipal."^® The giving of this authority on the one hand, and its acceptance on the other hand, constitute a special con- tract, resulting in mutual rights and duties between the prin- cipal and the agent, to treat of which is beyond the scope of the present work. We are now concerned with agents only as being, for the purposes of all contracts alike, capable of giving binding expression to the will of their principals. Either party to a contract may be represented by an agent, as a rule;*" and each is bound by his agent's acts, if what the agent does is within the limits of the apparent authority conferred upon him.*^ § 59. Creation of agency. Agency may arise either ex contractu or quasi ex contrac- tu.^^ An agent may, in general, be appointed without any be implied from unlawful acts. Dodson v. Harris, 10 Ala. 566; Short V. Bullion-Beck & C. Min. Co., 20 Utah. 20. 7s Holland, Juris. 239. If an offerer acts by agent, the communi- cation of the acceptance to the agent completes a contract, though the agent fails to notify his principal of the acceptance. Hough- wont V. Boisaubin, 18 N. J. Eq. 315, 322. "9 "Agency is a legal relation, founded upon the express or im- plied contract of the parties, or created by law, by virtue of which one party — the agent — is employed and authorized to represent and act for the other — the principal — in business dealings with third persons. The distinguishing features of the agent are his repre- sentative character and his derivative authority." Mechem, Agency, § 1. 80 Mechem, Agency, § 18; Story, Agency, § 6. 81 See cases cited in note 92, infra. 82 Anson, Cont. (4th Ed.) 332-335; Mechem, Agency, § 80; Bast- land V. Burchell, 3 Q. B. Div. 432. (63) § f,0 OFFER AND ACCEPTANCE. [Ch 2 formality, ^^ excej)t that an agent empowered to execute a deed must be appointed by deed.^* Apart from this exception, agency may be created either by word, spoken or written, on the one hand,*^ or by conduct or estoppel on the other.^* And a person who, at the time, had no authority to act for another, may be retrospectively made his agent by ratifica- tion. This occurs where the person in whose behalf the act was done adopts it as his own act, either by word or by conduct.®^ § 60. Authority of agent. Agents are said to be "general" when their authority is defined by their character or business, as in the case of fac- tors, brokers, or partners.** They are termed "special" when their authority is limited by the terms of their appoint- ment.*® And they are called "universal" when they are au- thorized to do all acts which the principal might do, and which he may lawfully empower another to do.®'' The agent must obey his principal's instructions, and act within the scope of his authority,®' though it should be said that no 83 Mechem, Agency, § 88; Story, Agency, § 47. Si Shuetze v. Bailey, 40 Mo. 69; Hanford v. McNair, 9 Wend. (N. Y.) 54. 8= Shaw V. Nudd, 8 Pick. (Mass.) 9; Bank of North America v. Embury, 33 Barb. (N. Y.) 323. 86 Anson, Cont. (4th Ed.) 335; Mechem, Agency, § 83; Pickering v. Busk, 15 East, 38; Pennsylvania R. Co. v. Atha, 22 Fed. 920; Benja- min V. Benjamin, 15 Conn. 347; Fenner v. Lewis, 10 Johns. (N. Y.) 38; Emerson v. Miller, 27 Pa. 278. 87 Jones V. Atkinson, 68 Ala. 167; Breed v. First Nat. Bank, 6 Colo. 235; Goss v. Stevens, 32 Minn. 472; Sheldon Hat Blocking Co. V. Eickemeyer Hat Blocking Mach. Co., 90 N. Y. 607. ss Holland, Juris. 241; Mechem, Agency, §§ 6, 283. 80 Holland, Juris. 241; Mechem, Agency, §§ 6, 283. 90 Mechem, Agency, § 6. 91 Bell V. Cunningham, 3 Pet. (U. S.) 69; Whitney v. Merchants' Union Exp. Co., 104 Mass. 152; Scott v. Rogers, 31 N. Y. 676 (64) Ch. 2] AGENCY. g 62 private instructions, contrary to the apparent authority with which the agent is clothed, can limit the liability of the prin- cipal as against third persons innocently dealing with the agent.®' As a rule, an agent cannot delegate his authority to another, so as to authorize the latter to act in behalf of the principal."* § 61. Operation of agency. It follows from the nature of agency that a contract made by an agent is regarded in law as the contract of the prin- cipal, who alone, therefore, as a rule, may sue or be sued upon it.** § 62. Termination of agency. The relation of principal and agent may be terminated by agreement;*^ by the act of one of the parties alone, in re- voking or renouncing the agency, in violation of the contract conferring the authority ;''® or by operation of law.*'' !>2Maddick v. Marshall, 16 C. B. (N. S.) 387; Pickering v. Busk, 15 East, 38; Butler v. Maples, 9 Wall. (U. S.) 766; Minor v. Me- chanics' Bank, 1 Pet. (U. S.) 46; Home Life Ins. Co. v. Pierce, 75 111. 426; Talmage v. Bierhause, 103 Ind. 270; Williams v. Mitchell, 17 Mass. 98; Munn v. Commission Co., 15 Johns. (N. Y.) 44, 8 Am. Dec. 219; Adams v. Pittsburgh Ins. Co., 95 Pa. 348, 40 Am. Rep. 663. 93 De Bussche v. Alt, 8 Ch. Div. 286, 310; Warner v. Martin, 11 How. (U. S.) 209, 223; Emerson v. Providence Hat Mfg. Co., 12 Mass. 237; Lyon v. Jerome, 26 Wend. (N. Y.) 485. 8* Bickerton v. Burrell, 5 Maule & S. 383; Lehman v. Feld (C. C.) 37 Fed. 852; Seery v. Socks, 29 111. 313; Gilmore v. Pope, 5 Mass. 491; Jefts v. York, 4 Cush. (Mass.) 371; Rathbon v. Budlong, 15 Johns. (N. Y.) 1; Gunn v. Cantine, 10 Johns. (N. Y.) 387; Hall V. Hun toon, 17 Vt. 244; McCurdy v. Rogers, 21 Wis. 199. 95 Gundlach v. Fischer, 59 111. 172; Benoit v. Inhabitants of Con- way, 10 Allen (Mass.) 528. 96 Walker v. Denison, 86 111. 142; Allen v. Watson, 16 Johns. (N. Y.) 205; Blackstone v. Buttermore, 53 Pa. 266; Tucker v. Lawrence, 56 Vt. 467; Johnson v. Youngs, 82 Wis. 107. 97 Charnley v. Winstanley, 5 East, 266; Minett v. Forester, 4 (65) liaw of Cont. — 5. § 63 OFFER AND ACCEPTANCE. [Ch. 2 VII L Revocation of Offer. An offer may be revoked at any time before acceptance — {a) Unless it is made under seal. ~ ) § 101 REALITY OF CONSENT. [Ch. 3 party may evade performance of it by the simple statement that he has made a mistake^* § 101. Price of subject-matter. The principle of mistake as to quantity preventing the formation of a contract applies to mistake as to the price of a thing sold or hired. Accordingly, if the parties, though coming to an apparent agreement, are at odds as to the price to be paid for the subject-matter of the contract, there is no real agreement, and no contract is created.'^^ Thus, where the owner of a mare asked $165 for her, and the buyer un- derstood the price asked to be $65, and took the mare, and refused to pay more, there was no sale.^® Again, there was no contract where shingles were sold at $3.25, and there was a dispute between the parties as to whether the $3.25 was for a bunch or for a thousand.'^'' For like reasons, error as to the price may justify relief when it is founded upon mis- 7i Tamplin v. James, 15 Ch. Div. 215 ; McKenzie v. Hesketh, 7 Ch. Div. 675. 75 Pollock, Cent. 435; Phillips v. Bistolli, 2 Barn. & C. 511; Greene V. Bateman, 2 Woodb. & M. 359, Fed. Cas. No. 5,762; Rovegno v. Defferari, 40 Cal. 459, Huff cut & W. Am. Cas. Cent. 261; Hartford & N. H. R. Co. V. Jackson, 24 Conn. 514, 63 Am. Dec. 177; Rupley v. Daggett, 74 111. 351; Clay v. Ricketts, 66 Iowa, 362; Sherwood v. Walker, 66 Mich. 568, 576, Huffcut & W. Am. Cas. Cont. 249; Fuller- ton V. Dalton, 58 Barb. (N. Y.) 236; Harrell v. De Normandie, 26 Tex. 120. See Easton v. Strother, 57 Iowa, 506; Coles v. Bowne, 10 Paige (N. Y.) 526. Where a man asked a railroad clerk the freight rate to B., and the clerk understood him to say M., and gave him a less rate than was charged to B., and goods were shipped accord- ingly, there was no contract, since, through mistake, the minds of the parties did not meet as to the rate to be charged. Rowland v. New York, N. H. & H. R. Co., 61 Conn. 103. See page 107, supra, as to the right of an offeree to snap up an offer containing a mistake as to price. 'c Rupley V. Daggett, 74 111. 351. TT Greene v. Bateman, 2 Woodb. & M. 359, Fed. Cas. No. 5,762. (116) Ch. 3] MISTAKE. § 102 take as to a collateral fact.''^ And even where the price is agreed upon in amount, yet there is no contract if the par- ties have a different understanding as to the terms of pay- ment.''® IV. Same — Mistake of Law. As a rule, relief will not be granted because of ignorance or mistake of law. The above rule does not apply where the error is based on ignorance or mistake as to particular private rights depending upon questions of mixed law and fact, or upon the true con- struction of a particular instrument. ^ 102. In general. While mistake of fact often prevents the formation of a contract, as we have seen, it is generally otherwise in regard to mistake of law. Citizens of a state are presumed, for all public purposes, to know the law of their domicile, or rather, to speak more properly, they are not allowed to allege igno- rance of it as an excuse for their acts.*" Accordingly, it may fswheadon v. Olds, 20 Wend. (N. Y.) 174; French v. Townes, 10 ■Grat. (Va.) 513. '"> Hogue V. Mackey, 44 Kan. 277. 80 Pollock, Cont. 405; Kerr, Fraud & Mistake, 396; Upton v. Tribil- cock, 91 U. S. 45, 50. A limitation upon the rule that ignorance of the law is no ground for relief is made in cases where the error Is in reference to foreign law. Keener, Quasi Cont. 92 ; Norton v. Mar- den, 3 Shep. (Me.) 45; Haven v. Foster, 9 Pick. (Mass.) 112; Vinal v. Continental Construction & Imp. Co., 53 Hun (N. Y.) 247; Bank of Chillicothe v. Dodge, 8 Barb. (N. Y.) 233; Curtis v. Leavitt, 15 N. Y. 9, 193; King v. Doolittle, 1 Head (Tenn.) 77. The law of another state of the Union is a foreign law in this sense. Upton v. Bnglehart, 3 Dill. 496, 501, Fed. Cas. No. 16,800; Haven v. Foster, 9 Pick. (Mass.) 112; Wood v. Roeder, 50 Neb. 476; Bank of Chilli- cothe v. Dodge, 8 Barb. (N. Y.) 233; King v. Doolittle, 1 Head (Tenn.) 77. As to when a question is to be regarded as a question of law, and when one of fact, see Keener, Quasi Cont. 96; Birkhauser V. Schmitt, 45 Wis. 316, 320. rii7) §,102 REALITY OF CONSENT. [Ch. 3 be laid down as a rule that a mistake as to the effect of a contract into which the parties enter arising out of their ig- norance or misapprehension of the law does not defeat the contract.*^ The rule precluding relief from mistake of law is not without its limitations and exceptions; yet it is diffi- cult to say just what these are, for the cases are in serious conflict.*^ Since we are concerned here with the question only when the mistake relates to the intention of the parties, and not when it refers to the expression of their intention, it is important to note only one apparent exception to the general rule as stated above. It is this : In the maxim, "Ig- noranlia juris haud excusat," the word "jus" denotes general law, — the ordinary law of the country. When the word "jus" is used in the sense of denoting a private right, depending upon questions of mixed law and fact, or upon the true con- struction of a particular instrument, that maxim has no appli- cation.*^ Accordingly, if an apparent agreement is entered into under a mutual mistake of the parties as to their relative and respective right, either party is entitled to have the agree- ment set aside, since ignorance of particular private rights is equivalent to ignorance of fact.** 81 Hunter v. Walters, 7 Ch. App. 75; Hunt v. Rhodes, 1 Pet. (U. S.) 1; Wheaton v. Wheaton, 9 Conn. 96; Rice v. Dwight Mfg. Co., 2 Cusb. (Mass.) 80; Mellish v. Robertson, 25 Vt. 603. Ignorance of law means only ignorance of a general rule of law, not ignorance of a right depending upon questions of mixed law and fact, or upon the true construction of a particular instrument. Pollock, Cent. 393. 82 Story, Eq. Jur. §§ 116, 137; Bishop, Cont. § 704. S3 Pollock, Cont. 393; Cooper v. Phibbs, L. R. 2 H. L. 149, 170. 84 Pollock, Cont. 405; Kerr, Fraud & Mistake, 399; Bingham v. Bingham, 1 Ves. Sr. 126; Broughton v. Hutt, 3 De Gex & J. 501; Cooper V. Phibbs, L. R. 2 H. L. 149, 170; Jones v. Clifford, 3 Ch. Div. 779; Earl Beauchamp v. Winn, L. R. 6 H. L. 223; Baker v. Massey, 50 Iowa, 399, 404; Neal v. Coburn, 92 Me. 139, 69 Am. St. Rep. 495; King v. Doolittle, 1 Head (Tenn.) 77; Toland v. Corey, 6 Utah, 392; Webb v. City of Alexandria, 33 Grat. (Va.) 168, 175, Ch. 3J MISTAKE. § 102 Ignorance or mistake as to private rights is of two kinds: First, ignorance or mistake in point of fact as to the ex- istence or nonexistence of any right or title in the party ; and, second, all the facts being known, ignorance or misapprehen- sion of the law having application to those facts.^'^ As to the first kind, if an apparent contract is made in ignorance of the fact of the existence of a right or title which forms the subject-matter of the agreement, then the agreement is void, even though the error results from mistake of law.^® And a contract is defeated also where the parties, erroneously supposing a right or title to exist, enter into an agreement concerning the same.^^ As to the second kind, the rule, as settled in the United States, is that an ignorance or a mis- apprehension of the law, whether or not the principles are plain and settled, and a consequent mistake as to private right or title, does not avoid the contract, if the party has full knowledge of the facts constituting his right or title.®^ 176. See Wason v. Wareing, 15 Beav. 151. It Is submitted by Sir Frederick Pollock that an erroneous fundamental assumption made by both parties even as to a general rule of law may well prevent a valid agreement being formed. Cent. 446. To have this effect, the mistake must directly affect the substance of the transac- tion. A common mistake as to a collateral matter of law does not defeat a contract. Eaglesfield v. Marquis of Londonderry, 4 Ch. Div. 693; Stone v. Godfrey, 5 De Gex, M. & G. 76. 85 Story, E(j. Jur. §§ 122, 130; Trigg v. Read, 5 Humph. (Tenn.) 528, 533, 537. s" Story, Bq. Jur. § 122; Trigg v. Read, 5 Humph. (Tenn.) 528> 536. ST Biakeman v. Blakeman, 39 Conn. 320; Fitzgerald v. Peck, 4 Litt. (Ky.) 125; Martin v. MeCormick, 8 N. Y. 331; Gross v. Leber, 47 Pa. 520; Lawrence v. Beaubien, 2 Bailey (S. C.) 623; King v. Doolittle, 1 Head (Tenn.) 77. But see Birkhauser v. Schmitt, 45 Wis. 316. See Pollock, Cont. 399, 400; Marshall v. Collett, 1 Younge & C. Bxch. 232. SI Story, Eq. Jur. § 120; Bank of United States v. Daniel, 12 Pet. (U. S.) 32; Good v. Herr, 7 Watts & S. (Pa.) 253; Trigg v. Read, 5 Humph. (Tenn.) 528, 533, 535; Osburn v. Throckmorton, 90 Va. (119) § 103 REALITY OP CONSENT. [Ch. 3 While a renunciation of rights under a mistake as to par- ticular applications of the law is not conclusive/® the de- liberate renunciation or compromise of doubtful rights is, -of course, binding.®" And if a compromise is deliberately entered into under advice, the party's advisers having the question fully before them, the contract cannot be set aside because a particular point of law was mistaken or over- looked.®^ V. Effect of Mistake. Where mistake has any effect at all, it prevents the forma- tion of a contract. ^ 103. In general. The effect of mistake, where it has any operation at all, is to avoid the apparent contract. This rule is based upon the necessity of agreement as an element of contract. When the mistake prevents a real agreement, it goes to the essence of the transaction, and the apparent contract is not merely void- able, but absolutely void.®^ Where mistake of one party is induced by misrepresentation or fraud on the part of the ■other, the latter is estopped to deny the validity of the trans- action if the mistaken party sees fit to afiirm it f^ but it does not follow from this that the contract is only voidable at the ■option of the party misled, and not void in its inception.®* 311; Birkhauser v. Schmitt, 45 Wis. 316. Contra, Lowndes v. Chis- liolm, 2 McCord, Eq. (S. C.) 455. 88 Pollock, Cont. 407; Cann v. Cann, 1 P. Wms. 723, 727. 80 Pollock, Cont. 407; Story, Eq. Jur. §§ 121, 131; Rogers v. Ing- ham, 3 Ch. Div. 351; Cann v. Cann, 1 P. Wms. 723, 727; Stewart v. Stewart, 6 Clark & F. 911; Union Bank of Georgetown v. Geary, 5 Pet. (U. S.) 99, 114; Stover v. Mitchell, 45 111. 213; Trigg v. Read, 5 Humph. (Tenn.) 528, 534, 543; Smith v. Penn, 22 Grat. (Va.) 402. 81 Stewart v. Stewart, 6 Clark & F. 911. 82 Anson, Cont. (4th Ed.) 135; Pollock, Cont. 392. 83 Pollock, Cont. 448 ; Gardner v. Lane, 98 Mass. 517, 520. 94 Pollock, Cont. 448; Gardner v. Lane, 12 Allen (Mass.) 39. (120) Oh. 3] MISTAKE. t; 104 If this were so, the iault of the other party would put the mistaken party in a worse position as regards third persons than he would be placed in by simple mistake, unaccom- panied by fraud or misrepresentation ; for, if a contract is merely voidable, third persons may treat it as valid until it is rescinded, while, if it is void, they can acquire no rights under it.'^ VI. Remedies fok Mistake. A party to an apparent contract which is void for mistake may obtain relief either at law or in equity. At law, if the contract is executory, he may successfully de- fend an action brought upon it by the other party, and, if it has been performed by him, he may recover in quasi contract. In equity, he may resist specific performance of the contract when it is soug^ht to be enforced against him, or he may sue to have the apparent contract declared void. § 103a. In general. Relief from the effect of mistake may be granted both at law and in eqiiity. § 104. Legal remedies. At law, a party to an agreement which is void because of mistake has two remedies. If the contract is wholly execu- tory — that is, wholly unperformed — upon his part, at the time he demands relief, he may repudiate it, and successfully defend ah action brought upon it by the other party.®* If, on the other hand, he has performed his part of the contract, either by paying money to the other party pursuant to its terms, or by performing services or furnishing goods for his 95 Pollock, Cont. 448; Gardner v. Lane, 12 Allen (Mass.) 39. 96 Anson, Cont. (4th Bd.) 135; Fleetwood v. Brown, 109 Ind. 567; Jenks V. Fritz, 7 Watts & S. (Pa.) 201. (121) § 105 REALITY OF CONSENT. [Ch. 3 benefit, he may recover back the money so paid,®^ or recover the reasonable value of the goods furnished, or of the services rendered.*^ The right to recover back money so paid,^® and the right to recover for benefits so conferred,^"" are quasi contractual, not contractual. § 105. Equitable remedies. The forum of equity also affords two remedies to a person who has entered into an apparent contract through mistake. The mistaken party may, as defendant, resist specific per- formance of the contract when it is sought to be enforced by the other party; and he may sometimes do this successfully, even where he might not be able to defend an action at law for breach of the contract. ^"^^ The mistaken party may also maintain an equitable suit to have the apparent contract de- clared void, and to be freed from his liabilities in respect of it.-^"^ To entitle a party to relief in equity because of mis- 87 Anson, Cont. (4th Ed.) 135; Pollock, Cont. 450; Keener, Quasi Cont. 112, 130; Kelly v. Solari, 9 Mees. & W. 54; Cox v. Prentice, 3 Maule & S. 344, 348; Martin v. Sitwell, 1 Show. 156; McGoren v. Avery, 37 Mich. 120; McDonald v. Lynch, 59 Mo. 350; Wood v. Shel- don, 42 N. J. Law, 421; Martin v. McCormick, 8 N. Y. 331. s>8 Turner v. Webster, 24 Kan. 38; Tucker v. Preston, 60 Vt. 473. For analogous cases, see Nugent v. Teachout, 67 Mich. 571; Little V. Martin, 3 Wend. (N. Y.) 219. 09 Keener, Quasi Cont. 23, 26; Anson, Cont. (4th Ed.) 482. 100 Keener, Quasi Cont. 330; Turner v. Webster, 24 Kan. 38; Tuck- er V. Preston, 60 Vt. 473. 101 Anson, Cont. (4th Ed.) 135; Pomeroy, Spec. Pert. Cont. § 229 et seq. : Webster v. Cecil, 30 Beav. 62; Thwing v. Hall & Ducey Lum- ber Co., 40 Minn. 184; Trigg v. Read, 5 Humph. (Tenn.) 528. 102 Anson, Cont. (4th Ed.) 135; Pollock, Cont. 450. The right to sue in equity to correct mistakes made in drafting the contract, so as to make it express the intention of. the parties, does not concern mis- take affecting the formation of a contract, and consequently it is not treated of here. See Thwing v. Hall & Ducey Lumber Co., 40 Minn. 184. (122) Ch 3] MISREPRESENTATION. g 106 take, lie must not have been guilty of laches in asserting his rights."^ VII. Misrepresentation. Misrepresentation is an innocent misstatement or nondis- closure of facts which induces a contract, but does not form a part of its terms. It differs from fraud in that the latter consists in state- ments known to be false, or made in reckless ignorance of their truth or falsity. It differs from a condition in that the latter is a statement or promise which forms the basis of the contract. It differs from a warranty in that the latter is an independ- ent subsidiary promise, the breach of which gives to the prom- isee a right of action for the damages sustained by reason of the promisor's failure to fulfill his obligation. Thus defined, misrepresentation affects the formation of a con- tract only in certain special cases, and in some of these only to a limited extent. These cases are : (a) Contracts by persons standing in a relation of confi- dence to each other. (b) Conveyances of real estate. (c) Sales of personal property, including negotiable pa- per and shares of stock. (d) Subscriptions to shares of stock. (e) Contracts of suretyship and guaranty. (f) Contracts of insurance, including marine and fire and possibly life risks. Tlie effect of misrepresentation, when it has any operation at all, is to render the contract not void, but voidable at the election of the party misled. § 106. Distinction between misrepresentation and fraud. A misstatement inducing a party to enter into an apparent i"3 Dodge V. Essex Ins. Co., 12 Gray (Mass.) 65, 71; Thomas v. Bartow, 48 N. Y. 193, 200. (123) § 106 REALITY OF CONSENT. [Ch. 3 contract may be made either witli knowledge of its falsity, and with an intent to mislead, or with reckless ignorance of its truth or falsity. In both these cases, the making of the statement is wrongful, morally as well as legally, and the con- duct of the party making it is termed "fraud." On the other hand, an untrue statement which misleads the other party may be made by mere carelessness or misadventure, or with an actual belief in its truth, which belief may or may not be reasonably entertained. In this class are the state- ments included in the term "misrepresentation," as the term is here used.^"* In many text books and decisions these in- nocent misstatements are termed a legal or constructive fraud. There is no need for this forced terminology, and nothing but confusion can result from it, and consequently it "may be discarded as a worse than useless figment."^"^ "The practical test of fraud as opposed to misrepresentation is that the first does, and the second does not, give rise to an action ex delicto. The first is a wrong, and may be treated as such, besides being a vitiating element in contract. The second may invalidate a contract, but will not give rise to the action ex delicto, — the action of deceit."^"® In order to give rise to the action of deceit, the person making the misstate- ment need not entertain a dishonest motive, if he knows that the statement is untrue ; and, on the other hand, he need not have clear knowledge of the falsity of the statement, in order to subject him to an action for deceit, if his motives are dishonest or self-seeking. The action ex delicto will lie if a person makes representations which he knows to be false, 104 Pollock, Cent. 479. 105 Pollock, Cont. 480. The courts have not discarded it, how- ever. 106 Anson, Cont. (4th Ed.) 136. A false representation believed to he true by the party making it will not give rise to the action of de- ceit. Anson, Cont. (4th Ed.) 138; Benjamin, Sales, §§ 429, 461a. See page 162, in^ra. (124) Ch. 3] MISREPRESENTATION. § 107 and injury to another ensues, even though the motives from which the representations proceeded were not bad.^"'^ In like manner, as suggested, false statements, upon which it is in- tended that another shall act, may subject their maker to the action of deceit, if they were made recklessly, and with no reasonable ground of belief.^''^ Thus it will be seen that neither an intent to defraud nor a deliberate assertion of un- truth is a necessary element of fraud. The distinction be- tween misrepresentation and fraud seems to be that the for- mer is an innocent misstatement or nondisclosure of facts, while the latter consists in representations known to be false, or made in such reckless ignorance of their truth or falsity as to entitle the injured party to the action of deceit.^"'' § 107. Misrepresentation as affecting formation and discharge of contract. Thus defined, a misstatement which induces a contract, but which is not such as to create a liability ex delicto, may affect the formation or the discharge of the contract only in the following cases, namely :^^'' (1) When the misstatement is itself a term or integral part of the contract. (2) When it occurs in the case of certain special contracts. It is the policy of the law to exclude representations from affecting a contract unless they form a part of its terms. The reason of it is that "the process of coming to an agree- ment is generally surrotmded by a fringe of statement and discussion, and the courts might find their time occupied in endless questions of fact if it were permitted to a man to i"7 See page 163, infra. 108 See page 159, infra. 109 Anson, Cont. (4th Ed.) 139. 110 Pollock, Cont. 485; Anson, Cont. (4th Ed.) 136; Behn v. Bur- ness, 3 Best & S. 751, Langdell, Cas. Cont. 556. (125) § 107 REALITY OF CONSENT. [Ch. 3 repudiate his contract, or bring an action for the breach of it, upon the strength of words used in conversation preceding the agreement.""^ Accordingly, when the validity of the contract is called in question, or the liabilities of the parties are said to be affected by reason of representations made at the time the contract was entered into, the effect of such rep- resentations depends, in the absence of fraud, upon, first, whether the statements in question were a part of the terms of the contract, and, second, if not, whether the contract in- duced by the misstatements is one of those which may be called contracts uherrimae fideij — that is, a contract which must be made in abundant good faith, as the phrase goes. If both these questions are answered in the negative, the mis- representation has no effect, in the absence of fraud, upon either the formation or the discharge of the contract.^^^ ''If a representation forms an integral part of the contract, it is virtually placed on a level with a promise." If it proves untrvie, the falsity does not affect the formation of the con- tract, but constitutes a breach which either discharges the injured party from his liabilities under the contract, or gives him a right of action for damages, as upon the failure of a promise.^ ^^ In the present connection we are concerned with misrepre- sentation only so far as to determine when it affects the formation of a contract. It becomes necessary, therefore, to distinguish representation which affects the formation of a contract from representation which affects the performance or discharge of a contract. 111. Anson, Cont. (4th Ed.) 145. 112 Anson, Cont. (4th Ed.) 145; Zimmerman v. liTorrow, 28 Mian. 367; Jalass v. Young, 3 Pa. Super. Ct. 422, 40 Wkly. Notes Cas. 40. This rule is not undisputed, however. See page 131, infra. ii:! Anson, Cont. 136, 147; Pollock, Cont. 485; Bannerman v. White, 10 C. B. (N. S.) 844, 859. (126) Ch. 3] MISREPRESENTATION. § 108 § 108. Same — Representation distinguished from warranty and condition. Properly speaking, a representation is a statement or as- sertion made by one party to the other, before or at the time of the contract, of some matter or circumstance relating to it. Though it is sometimes contained in the written agree- ment, it is not an integral part of the contract, and conse- quently the contract is not broken even though the repre- sentation proves to be untrue ; nor, except in the case of cer- tain special contracts, is such untruth any cause of action, nor has it any efficacy whatever unless the representation is made fraudulently, either by reason of its being made with a knowledge of its untruth, or by reason of its being made dishonestly, with a reckless ignorance of whether it is true or untrue. Though representations are not usually contained in the instrument of contract, yet they sometimes are; but to insert them in the instrument does not alter their nature. Whether stipulations in a contract constitute mere representa- tions which are noneffective, or whether they amount to conditions or warranties, is a question of construction depend- ing upon the intention of the parties. ■'^■^* "Conditions are either statements or promises which form the basis of the contract," and, "when a term in the contract is ascertained to be a condition, then, whether it be a statement or a prom- ise, the untruth or the breach of it will entitle the party to whom it is made to be discharged from his liabilities under 114 Behn v. Burness, 3 Best & S. 751, Langdell, Cas. Cent. 556; Bannerman v. White, 10 C. B. (N. S.) 844, 859; Glaholm v. Hays, 2 Man. & G. 257, Langdell, Cas. Cont. 492; Seeger v. DutWe, 8 C. B. (N. S.) 45; Tarrabochia v. Hickie, 1 Hurl. & N. 183, Langdell, Cas. Cont. 681; Lowber v. Bangs, 2 Wall. (U. S.) 728; Davison v. Von Lingen, 113 U. S. 40, HufiEcut & W. Am. Cas. Cont. 265. See Hop- kins v. Tanqueray, 15 C. B. 130, 80 E. C. L. 129; Torkelson v. Jorgen- son, 28 Minn. 383; Morrill v. Wallace, 9 N. H. Ill; Kinley v. Fitz- patrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; Foggart v. Blackweller, 26 N. C. 238; Baum v. Stevens, 24 N. C. 411. (127) § 109a REALITY OF CONSENT. [Ch. 3 the contract. '-^^^ '" 'Warranties,' used in 'tlie narrower sense,' are independent subsidiary promises, the breach of which does not discharge the contract, but gives to the injured party a right of action for such damage as he has sustained by the failure of the other to fulfill liis promise."^ ^^ Sir William Anson mentions what he terms ex post facto warranties. "A condition may be broken," he says, "and the injured party may not avail himself of his right to be discharged, but con- tinue to take benefit under the contract, or at any rate to act as though it were still in operation. In such a ease the con- dition sinks to the level of a warranty, and the breach of it, being waived as a discharge, can only give a right of action for the damage sustained. ""'^ § 109. Same — Rule in equity. The rule that misrepresentation is without effect has not ahvays been strictly applied by the cotirts of equity.-'^* §1 109a. Same — Specific performance. Thus, the falsity of an innocent statement made by one of the contracting parties to another has been held to constitute a defense to a suit for specific performance of the contract, even though the statement was not a term of the contract, 11= Anson, Cont. (4th Ed.) 142. no Anson, Cent. (4th Ed.) 142. See House v. Port, 4 Blackt (Ind.) 293. 117 Anson, Cont. (4th Ed.) 143. See Avery v. Willson, 81 N. Y. 341. lis Anson, Cont. (4th Ed.) 145; Newman v. H. B. Claflin Co., 107 Ga. 89; Mitchell v.McDougall, 62 111. 498; Prenzel v. Miller, 37 Ind. 1, 18; Huhhard v. Weare, 79 Iowa, 678, 686; Wilcox v. Iowa Wesleyan University, 32 Iowa, 367, 374, Huffcut & W. Am. Cas. Cont. 268; Da Lee v. Blackburn, 11 Kan. 190, 205; East v. Matheny, 1 A. K. Marsh. (Ky.) 192; Baughman v. Gould, 45 Mich. 481; Kountze v. Kennedy, 147 N. Y. 124, 29 L. R. A. 360; Weller v. Bartlett, 45 N. Y. Supp. 626; Henderson v. San Antonio & M. G. R. Co., 17 Tex. 560; Grosh v. Ivanhoe Land & Imp. Co., 95 Va. 161; Grim v. Byrd, 32 Grat. (Va.) 293. But see Brooks v. Hamilton, 15 Minn. 26 (Gil. 10). (128) Cb. 3] MISREPRESENTATION. § HI and the contract "was not one of the class termed "contracts uberrimae fidei."^^^ § 110. Same — Setting aside contract. So, too, it has been held to be ground for setting aside a contract that a representation believed to be true when made has proved to be false ; and this, not on the ground that the contract was broken by failure of a vital condition, but that an attempt to enforce or to resist the avoidance of a contract induced by statements which have turned out to be untrue is a sort of ex post facto fraud.^^" § 111. Same — ^Estoppel in pais. Again, a misrepresentation, though made in good faith, and not constituting a term of the contract, may operate as an estoppel preventing the person making it from denying its truth as against persons whose conduct has been influenced by it.-^^^ Such estoppels are termed "equitable," not, how- ever, because their recognition is peculiar to equitable tri- bunals, but because they arise upon facts which render their application in the protection of rights equitable and just. Courts of equity recognize them in cases of equitable cogni- zance, but the courts of common law do so as readily and as freely; and it is never necessary to go into equity for the mere purpose of obtaining the benefit of an equitable estop- 119 Pomeroy, Spec. Perf. Cont. § 217; Lamare v. Dixon, L. R. 6 H. L. 414, 428. 120 Traill v. Baring, 4 De Gex, J. & S. 318, 33 Law J. Ch. 521; Redgrave v. Kurd, 20 Ch. Div. 1, 12; Woodruff v. Garner, 27 Ind. 4; Trimble v. Reld, 97 Ky. 713, 718; Prewitt v. Trimble, 92 Ky. 176; Gunby v. Sluter, 44 Md. 237; Brooks v. Hamilton, 15 Minn. 26 (Gil. 10); Davis v. Heard, 44 Miss. 50; Hammond v. Pennock, 61 N. Y. 145; Lewis v. McLemore, 10 Yerg. (Tenn.) 205. 121 Anson, Cont. (4th Ed.) 146; Pollock, Cont. 484; Alderson v. Maddison, 5 Bxch. Div. 293. (129) Law of Cont. — 9. § 112 REALITY OF CONSENT. [Ch. 3 pel, when the case is not otherwise of equitable jurisdic- tion. ^^^ Equitable estoppel may create a species of contract of the executed sort, and the representation out of which it arises may be considered a term of the contract. "A state- ment may be binding by way of estoppel, quite apart from any promise or agreement ; but where it is part of the trans- actions constituting a contract, it seems needless to assume an estoppel. The estoppel is merged in the contract."^^^ As defined by Bishop, the doctrine is that, "whenever one per- son sustains to another a relation wherein social or legal duty demands of him to disclose a fact, and, either by silence or by words, he willfully, or even through culpable careless- ness, misleads the other, who, in reliaxice thereon, does some act detrimental but for such fact, the fact will, as between the parties and persons claiming under them, be conclusively held to be as thus represented."^^* It will be noticed that, as thus defined, this estoppel is based upon representations that are known to be false when made, or that are made in reck- less ignorance of their truth or falsity.^ ^^ There are some cases, however, where iona fide misrepresentations may found an estoppel.^ ^* § 112. Contracts affected by misrepresentation. As suggested, there are certain special contracts which form an exception to the rule that mere misrepresentation or nondisclosure of facts does not avoid a contract. It remains to consider these. 122 Barnard v. German American Seminary, 49 Mich. 444. 123 Pollock, Cont. 482; Bishop, Cont. § 283. 124 Bishop, Cont. § 284. See Pence v. Arbuckle, 22 Minn. 417. 126 Brant T. Virginia Coal & Iron Co., 93 U. S. 326; Trenton Bank- ing Co. V. Duncan, 86 N. Y. 221. 126 Coverdale v. Eastwood, L. R. 15 Eq. 121, 131; Stevens v. Lud- lum, 46 Minn. 160, 24 Am. St. Rep. 210, HufEcut & W. Am. Cas. Cont. 280. See Beebe v. Wilkinson, 30 Minn. 548; Blair v. "Wait, 69 N. Y. 113. (130) Ch. 3] MISREPRESENTATION. § 113 § 113. Same — Contracts by persons standing in relation of confidence. If the parties to a contract occupy a relation of trust or confidence, by reason of which one of them reposes a special confidence in the other, actually or in contemplation of law, the latter is under both a legal and an equitable duty to dis- close all material facts which are peculiarly within his own knowledge, and to state them truly ; and if he remains silent, knowing that the other party is ignorant of the facts, the lat- ter may avoid the contract. Contracts made between persons standing in a confidential relation are said to be uberrimae fidei because they call for abundant good faith.^^'' The most important illustrations are contracts made between trustee and beneficiary,^^* prin- cipal and agent,^^® attorney and client,^ ^^ physician and pa- tient,^*^ priest and parishioner,^'^ partners^'^ or qiiasi part- ners,^'* persons affianced,^'^ parent and child,^'® and guard- ian and ward.^'^ 12T Anson, Cent. (4th Ed.) 148. i28Dalbiac v. Dalbiac, 16 Ves. 116; Cook v. Sherman (C. C.) 20 Fed. 167; Brown v. Cowell, 116 Mass. 461. 129 Jeffries v. Wiester, 2 Sawy. 135, Fed. Cas. No. 7,254; Mason v. Bauman, 62 111. 76; Porter v. Woodruff, 36 N. J. Bq. 174. 130 Baker v. Humphrey, 101 U. S. 494; Miller v. Whelan, 158 111. 544; McCormick v. Malin, 5 Blackf. (Ind.) 509; Ryan v. Ashton, 42 Iowa, 365. 131 Dent V. Bennett, 4 Mylne & C. 269. See Bussian v. Milwau- kee, L. S. & W. Ry. Co., 56 Wis. 325. 132 Finegan v. Theisen, 92 Mich. 173. 133 Pollock, Cont. 507; Bennett v. McMillin, 179 Pa. 146, 57 Am. St. Rep. 591; Sexton v. Sexton, 9 Grat. (Va.) 204. 134 Purslow V. Jackson, 93 Iowa, 694. 135 Van Houten v. Morse, 162 Mass. 414, 44 Am. St. Rep. 373; Gring v. Lerch, 112 Pa. 244, 56 Am. Rep. 314. 136 Bergen v. Udall, 31 Barb. (N. Y.) 9. The relation of son-in- law and mother-in-law is not necessarily confidential, so as to re- quire a full disclosure on his part. Fish v. Cleland, 33 111. 238, Huffcut & W. Am. Cas. Cont. 288; Cleland v. Fish, 43 111. 282. 137 Archer v. Hudson, 7 Beav. 551; Hall v. Cone, 5 Day (Conn.) 543; Nickiser v. Cook, 85 111. 68. (131) g 1X4 REALITY OF CONSENT. [Ch. 3 5 114. Same — Special contracts affected by misrepresentation — Conveyances of real estate. Even where the parties deal at arm's length, the vendor of real property is bound to disclose defects in his title^*^ and incumbrances on the property ;^^^ and he must also disclose a deficiency in quantity,^*" and facts affecting the quality and value of the estate, where such are peculiarly within his knowledge. ■'^^ Further than this, however, he need not go ;^*^ and the purchaser, on the other hand, is not bound to inform the vendor of the presence of minerals in the land, or to dis- close other facts affecting the value of the property. -^^^ In the case of a lease of real estate, the lessor must disclose ma- terial facts which are peculiarly within his knowledge, but only such. Thus, the landlord is guilty of fraud if he fails to disclose that the premises are subject to a nuisance prej- udicial to life or health, where he is aware of that fact.-^** But he is not bound to disclose to a prospective lessee the fact that the premises are unfit for immediate occupation, even 13S Alvarez v. Brannan, 7 Cal. 503, 68 Am. Dec. 275; Peebles v. Stephens, 3 Bibb (Ky.) 324, 6 Am. Dec. 660; Cook v. Grant, 16 Serg. 6 R. (Pa.) 198, 16 Am. Dec. 564. isoCullum V. Branch of State Bank, 4 Ala. 21, 37 Am. Dec. 725; Barnard v. Duncan, 38 Mo. 170, 90 Am. Dec. 416; Napier v. Elam, 6 Yerg. (Tenn.) 108. i40Doggett V. Emerson, 3 Story, 700, Fed. Cas. No. 3,960; Busch V. Wilcox, 82 Mich. 315, 336, 21 Am. St. Rep. 563; Baughman v. Gould, 45 Mich. 481; Bedford v. Hickman, 5 Call (Va.) 236, 2 Am. Dec. 590. 141 Flight V. Booth, 1 Bing. N. C. 370; Doggett v. Emerson, 3 Story, 700, Fed. Cas. No. 3,960; Mitchell v. McDougall, 62 111. 498. 142 Turner v. Harvey, Jacob, 169, 178; Marriner v. Dennison, 78 Cal. 202; McCall v. Davis, 56 Pa. 431, 94 Am. Dec. 92. 143 Williams v. Spurr, 24 Mich. 335; Livingston v. Peru Iron Co., 2 Paige (N. Y.) 390; Neill v. Shamburg, 158 Pa. 263; Harris v. Ty- son, 24 Pa. 347, 64 Am. Dec. 661. 114 Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; Cesar v. Karutz, 60 N. Y. 229. (132) Ch. 3] MISREPRESENTATION. § 114 though he knows they are required for such ; and according' ly he is not liable to the lessee in an action for deceit.^*' Sales of personal property. The seller of personal property must disclose defects in his title^*® and incumbrances thereon/*'' and also latent defects in the quality of the goods ;^** but he need not inform the buyer of facts equally accessible to both parties.^*^ The buy- I'lsKeates v. Cadogan, 10 C. B. 591, 70 E. C. L. 591. See Lucas V. Coulter, 104 Ind. 81. i^speto V. Blades, 5 Taunt. 657, 1 E. C. L. 338; Bartholomew v. Warner, 32 Conn. 98, 85 Am. Dec. 251; Abbott v. Marshall, 48 Me. 44. liTMerritt v. Robinson, 35 Ark. 483; Firestone v. Werner, 1 Ind. App. 293. 148 Waters v. Mattingley, 1 Bibb (Ky.) 244; French v. Vining, 102 Mass. 132; Cecil v. Spurger, 32 Mo. 462; Grigsby v. Stapleton, 94 Mo. 423, Huff cut & W. Am. Cas. Cent. 285; Stevens v. Fuller, 8 N. H. 463; Hoe v. Sanborn, 21 N. Y. 552, 566; Brown v. Gray, 51 N. C. 103, 72 Am. Dec. 563; Cardwell v. McClelland, 3 Sneed (Tenn.) 149; Maynard v. Maynard, 49 Vt. 297; Paddock v. Strobrldge, 29 Vt. 470; Dowling v. Lawrence, 58 Wis. 282. But see Campbell v. Kinlock, 9 Rich. Law (S. C.) 300. Contra, Benlnger v. Corwln, 24 N. J. Law, 257. A seller need not disclose information of the un- soundness of the article sold which he has received from a third person, unless he believes it to be true. Gerkins v. Williams, 48 N. C. 11; McEntire v. McBntire, 43 N. C. 297. If a person takes a domestic animal to a public market to be sold, even though he does not warrant it to be sound, yet he thereby represents that, so far as his knowledge goes, the animal is not suffering from any infectious disease, and, if the animal is in fact so afflicted, the seller is liable to the buyer in an action for deceit. Bodger v. Nicholls, 28 Law T. (N. S.) 445; Marsh v. Webber, 13 Minn. 109 (Gil. 99); Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518. Contra, Hill v. Balls, 2 Hurl. & N. 299. As to sales "with all faults," see Whitney V. Boardman, 118 Mass. 242; Ward v. Hobbs, 3 Q. B. Dlv. 160, 4 App. Cas. 14. 1*8 Laidlaw v. Organ, 2 Wheat. (U. S.) 178, Huffcut & W. Am. Cas. Cont. 282; Kohl v. Lindley, 39 Hi. 195, 89 Am. Dec. 294; Dean v. Morey, 33 Iowa, 120; Rockafeilow v. Baker, 41 Pa. 319, 80 Am. Dec. 624. (133) § 114 REALITY OF CONSENT. [Ch. 3 er, on the other hand, is under no obligation to disclose facts affecting the value of the property, and this is true, even though such facts are peculiarly within his knowledge.^"" As a rule, a person is under no duty to disclose his own in- solvency ;^^^ but undisclosed insolvency of a buyer of goods, coupled with an intention on his part not to pay for them, renders the sale voidable.-' °^ Same — ^Negotiable paper. The seller of negotiable paper is bound to disclose all ma- terial facts which affect its validity and value, where they are peculiarly within his knowledge.^ °^ — Same — Shares of stock. Sales of stock by a shareholder are governfed by the same 150 Bench v. Sheldon, 14 Barb. (N. Y.) 66; Butler's Appeal, 26 Pa. 63. 151 Morrill v. Blackman, 42 Conn. 324; Kelsey v. Harrison, 29 Kan. 143; Powell v. Bradlee, 9 Gill & J. (Md.) 220, 275; Bidault v. Wales, 19 Mo. 36; Nichols v. Pinner, 18 N. Y. 295, 23 N. Y. 264; Talcott V. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Rodman v. Thal- helmer, 75 Pa. 232; Garbutt v. Bank of Prairie du Chien, 22 Wis. 384. 152 Ex parte Whittaker, 10 Ch. App. 446; Donaldson v. Parwell, 93 U. S. 631; Farwell v. Hanchett, 120 111. 573; Whitten v. Fitz- water, 129 N. Y. 626; Talcott v. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Dalton v. Thurston, 15 R. I. 418. Contra, Wilson v. White, 80 N. C. 280; Smith v. Smith, 21 Pa. 367. To avoid a sale on this ground, it is not enough that the buyer knew himself to be in- solvent, and had no reasonable expectation of being able to pay the price. Biggs v. Barry, 2 Curt. 259, Fed. Gas. No. 1,402; Houghtaling V. Hills, 59 Iowa, 287. This matter is further considered in an- other connection. See page 142, infra. 153 Prentiss v. Russ, 16 Me. 30 ; Hoopes v. Newman, 2 Smedes & M. (Miss.) 71; Brown v. Montgomery, 20 N. Y. 287, 75 Am. Deo.' 404. But see Ex parte Hammond, 6 De Gex, M. & G. 699, 709; Peo- ple's Bank of City of New York v. Bogart, 81 N. Y. 101, 37 Am. Rep. 481. (134) Ch. 3] MISREPRESENTATION. § 114 rules which apply in the case of sales of other personal prop- erty, with regard to disclosure of facts.^^* Subscriptions to stock. Promoters of a corporation who solicit or invite subscrip- tions to stock are bound to state the material facts with scru- pulous accuracy. When a company issues a prospectus, a person contracting to take shares on the strength of the state- ments therein contained has a right not only not to be misled by any statements actually false, but also to be informed of all the facts the knowledge of which might reasonably leter him from taking the shares. And if the prospectus in that sense contains misrepresentation, or the absence of true rep- resentation, the contract will not be enforced in favor of the company.^®^ Contracts of suretyship and guaranty. As a rule, mere nondisclosure does not affect the formation of a contract of suretyship or guaranty,^^® but, under some circumstances, the person procuring the contract is bound to disclose all material facts, else the contract may be avoided. ^^'^ i°* Tippecanoe Co. Com'rs v. Reynolds, 44 Ind. 509; Crowell v. Jackson, 53 N. J. Law, 656. 155 New Brunswick & C. Ry. & Land Co. v. Muggeridge, 1 Drew. & S. 363; Central Ry. Co. of Venezuela v. Kiscli, L. R. 2 H. L. 99; Coles V. Kennedy, 81 Iowa, 360, 25 Am. St. Rep. 503; Brewster v.' Hatch, 122 N. Y. 349; Virginia Land Co. v. Haupt, 90 Va. 533, 44 Am. St. Rep. 939. 15S Anson, Cont. (4tli Ed.) 151; Pollock, Cont. 495; Hamilton v. Watson, 12 Clark & P. 109 ; Davies v. London & P. Marine Ins. Co., 8 Cli. Div. 469; North British Ins. Co. v. Lloyd, 10 Exch. 523; Booth v. Storrs, 75 111. 438; Ham v. Greve, 34 Ind. 18; American Credit-Indem- nity Co. V. Wimpfheimer, 14 App. Div. (N. Y.) 498; Atlas Bank v. Brownell, 9 R. I. 168. 157 Davies v. London & P. Marine Ins. Co., 8 Ch. Div. 469; Gris- wold V. Hazard, 141 U. S. 260, 284; Guardian Fire & Life Assur. Co. V. Thompson, 68 Cal. 208; Graves v. Lebanon Nat. Bank, 10 (135) § 114 REALITY OF CONSENT. [Ch, 3 Compromises. Persons negotiating for a compromise of disputed claims are under no obligation to disclose facts affecting the validity or the extent of the claims, unless a relation of confidence otherwise exists.^®® Contracts of insurance — Marine risks. In reference to contracts of marine insurance, not only mis- representation, but nondisclosure of a material fact, though there be no fraudulent intention, renders the policy voidable at the insurer's election.^ ^^ In the meaning of this rule, a material fact does not, on the one hand, mean only such a fact as is material to the risk, considered in its own nature ; nor, on the other hand, does it include everything that might influence the insurer's judgment. The rule is, as stated by Professor Parsons, "that all should be disclosed which would affect the judgment of a rational underwriter, governing him- self by the principles and calculations on which underwriters do in practice act.'"^®" However, the insured is not bound Bush (Ky.) 23, 19 Am. Rep. 50; Franklin Bank v. Cooper, 36 Me. 179; Dinsmore v. Tidball, 34 Ohio St. 411. 158 Jackson v. Miner, 101 111. 550; Mills' Heirs v. Lee, 6 T. B. Mon. (Ky.) 91, 17 Am. Dec. 118. As to family settlements and compromises, the rule is otherwise, since a relation of confidence exists. Pollock, Cont. 507. 159 Pollock, Cont. 489; lonides v. Pender, L. R. 9 Q. B. 531; Mc- Lanahan v. Universal Ins. Co., 1 Pet. (U. S.) 170; Fiske v. New England Marine Ins. Co., 15 Pick. (Mass.) 310; Stocker v. Merri- mack Marine & Fire Ins. Co., 6 Mass. 220; Ely v. Hallett, 2 Caines (N. Y.) 57; Howell v. Cincinnati Ins. Co., 7 Ohio, 276; Union Ins. Co. V. Stoney, Harp. (S. C.) 235. 160 Parsons, Ins. 495; Pollock, Cont. 489; lonides v. Pender, L. R. 9 Q. B. 531; StriWey v. Imperial Marine Ins. Co., 1 Q. B. Div. 507; Rivaz v. Gerussi, 6 Q. B. Div. 222; Maryland Ins. Co. v. Ruden's Adm'r, 6 Cranch (U. S.) 338; Vale v. Phoenix Ins. Co., 1 Wash. C. C. 283, Fed. Cas. No. 16,811; Rosenheim v. America Ins. Co., 33 Mo. 230; Lexington Fire, Life & Marine Ins. Co. v. Paver, 16 Ohio, 324. (136) Ch. 3] MISREPRESENTATION. § 114 to communicate anything which is such matter of general knowledge that he is entitled to assume that the insurer knows it already.^ ®^ Same — Fire risks. The rule we have just been considering in reference to marine insurance applies to contracts of fire insurance as well, though to a less extent. -^^^ Thus, the innocent nondis- closure of material facts vitiates the policy,^ ®^ and the con- tract is avoided also by a false representation of a material fact, even though it was innocently made.-'^* But where the policy is based upon an application containing specific in- quiries and answers thereto, as is the present practice, the contract is not avoided by an innocent nondisclosure of facts about which the insured was not asked.-' ®^ 161 Morrison v. Universal Marine Ins. Co., L. R. 8 Exch. 40; Fol- som v. Mercantile Mut. Ins. Co., 8 Blatchf. 170, Fed. Cas. No. 4,902; De Longuemere v. New York Fire Ins. Co., 10 Johns. (N. Y.) 120. But see Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485; Moses V. Delaware Ins. Co., 1 Wash. C. C. 385, Fed. Cas. No. 9,872. 162 Pollock, Cont. 492; Anson, Cont. (4th Ed.) 148; Bufe v. Turner, 6 Taunt. 338, 1 E. C. L. 406; Darrell v. Tibbitts, 5 Q. B. Div. 560; Be- bee V. Hartford County Mut. Fire Ins. Co., 25 Conn. 51; Walden v. Louisiana Ins. Co., 12 La. 134, HufCcut & W. Am. Cas. Cont. 273; Bur- ritt V. Saratoga County Mut. Fire Ins. Co., 5 Hill (N. Y.) 188; Hart- ford Protection Ins. Co. v. Harmer, 2 Ohio St. 452. See McLanahan v. Universal Ins. Co., 1 Pet. (U. S.) 170, 185; Goddard v. Monitor Mut. Fire Ins. Co., 108 Mass. 56; Alston v. Mechanics' Mut. Ins. Co., 4 Hill (N. Y.) 329, 334. 163 New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Wend. (N. Y.) 359. 164 Armour v. Transatlantic Fire Ins. Co. of Hamburg, 90 N. Y. 450. But see National Bank v. Union Ins. Co. of San Francisco, 88 Cal. 497. 165 Clark v. Manufacturers' Ins. Co., 8 How. (U. S.) 235; Wash- ington Mills Emery Mfg. Co. v. Weymouth & B. Mut. Fire Ins. Co., 135 Mass. 503; North American Fire Ins. Co. v. Throop, 22 Mich. 146; Browning v. Home Ins. Co. of Columbus, 71 N. Y. 508. (13Y) § 114 REALITY OF CONSENT. [Ch. 3 Same — ^Life risks. In England, the contract of life insurance differs from those of marine and fire insurance in respect to misrepre- sentation and nondisclosure, and untruth in the statements made to the insurer will not affect the validity of the policy, in the absence of fraud, unless the truth of the statements is made a condition of the contract.^"* In America, there is a dearth of authority on this question, and it is hard to recon- cile what little there is. In West Virginia, the English rule seems to be the law.^*'^ In Massachusetts, the contrary view leewheelton v. Hardisty, 8 El. & Bl. 232, 296. This case virtu- ally overrules Llndenau v. Desborough, 8 Barn. & C. 586, 3 Car. & P. 353. The language of Jessel, M. R., in London Assur. v. Han- sel, 11 Ch. Div. 363, 41 Law T. (N. S.) 225, seems at first sight to throw doubt on this distinction, but the facts in that case show a statement fraudulent in itself, and made to the office by the party insured, as against whom the policy was set aside. Anson, Cont. (4th Ed.) 149, note (a). 167 Schwarzbach v. Ohio Valley Protective Union, 25 W. Va. 622, 657. "The conflict of authorities on the ctuestion whether there must be fraud in a misrepresentation of a fact in order to avoid a policy [of life insurance] has arisen principally from a failure to distinguish between actual fraud — that is, a misstatement of a fact made with the intention of deceiving — and legal fraud, which is a misstatement of a matter within the personal knowledge of the insured, or of such a character that the insured [insurer] must have regarded it as within the personal knowledge of the insured. Such a misstatement of a matter of this char- acter is a legal fraud, though it was not made with intent to deceive." "A misrepresentation of a fact made by the insured, whether such misrepresentation be an actual fraud or a legal fraud, will avoid a policy; but if there be an absence of all fraud, legal or actual, in the misrepresentation of a fact, such misrepresenta- tion will not avoid a policy." Schwarzbach v. Ohio Valley Pro- tective Union, 25 W. Va. 622, 657, 658. Moulor v. American Life Ins. Co., Ill U. S. 335, has been cited as adopting the English rule, but it does not do so. The decision was based upon provisions in the policy which were held to require nothing more than that the insured should observe good faith in making his answers. (138) Ch. 3] MISREPRESENTATION. § 114 seems to prevail,^®^ and this is probably true, also, in Penn- sylvania.^*^ Some text writers consider that the English rule is not supported by the weight of authority in Amer- ica.^'^'^ If the contract of fire insurance is dependent upon the truth of the insured's representations, regardless of the question of good faith, there would seem to be no reason why the. law should be less stringent in reference to a contract of life insurance. In fact, it should be more stringent, if dif- ferent at all, for knowledge concerning the subject-matter of a fire risk is more easily obtained than facts concerning the 16S Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381. "An untrue statement or denial of a material fact, preceding or contemporaneous with the contract of [life] insurance, prevents the policy that is based upon it from taking effect as a contract, whether the statement was made ignorantly and in good faith, or other- wise." Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381. It is to be observed in respect of this case, first, that all the au- thorities cited by the court in support of its decision are cases of either fire or marine insurance, and, second, that the policy in suit expressly provided that the untruth of the representations made by the insured to the company should avoid the policy. A similar policy was the subject of suit in McCoy v. Metropolitan Life Ins. Co., 133 Mass. 82, q. v. 1S9 Lefavour v. Insurance Co., 1 Phila. (Pa.) 558. "There was, at the time of the proposals, a concealment by [the insured] of a fact material to the risk, which avoids the contract of insurance. There is no doubt that this is the law in life policies, as well as in policies of marine insurance. Good faith is required on the part of the assured. He knows, and the underwriter is not presumed to know, whatever is material, and he is not confined to the war- ranties contained in the policy." Per Sharswood, in Lefavour v. Insurance Co., 1 Phila. (Pa.) 558. 170 Bliss, Life Ins. §§ 52-54; Knowlton's Ans. Cont. 149, note 1. The following cases have been cited by different authors as bearing upon this question, but they will be found to be inapt, being ground- ed upon the particular terms of the policy: Aetna Life Ins. Co. v. Prance, 91 U. S. 510; Phoenix Mut. Life Ins. Co. v. Raddin, 120 U. S. 183, Huffcut & W. Am. Cas. Cont. 275; Goucher v. Northwestern Traveling Men's Ass'n (C. C.) 20 Fed. 596; Mutual Benefit Life Ins. Co. V. Wise, 34 Md. 582. ■ (139) § 116 REALITY OP CONSENT. [Ch. 3 subject-matter of a life risk. So that, in reason, the English rule should not prevail.^ '^^ So far as strict weight of au- thority goes, however, the English rule seems to be the stronger. § 115. What constitutes misrepresentation. Even in contracts uberrimae fidei, there is a limit to the effect of statements made with reference to the subject-mat- ter of the contract. ^'^^ We shall see, in treating of the char- acter of representation as an element of fraud, that a mis- representation must possess certain features in order to give it effect as a vitiating element in contract. Much of what is said there applies with equal or stronger reason here; and accordingly it is sufficient to say in this connection that a misrepresentation, in order to render a contract voidable, must in general be a statement of fact as distinguished from a statement of opinion, expectation, or prediction,^^^ or a statement of motive or intention or a promise,^'^* or a rep- resentation of law.-'^' Also that the misrepresentation must be material to the transaction under consideration,^'^® and of such a nature as to justify reliance upon it.-'^'^ It may be said, further, that to give a right to relief, the misrepre- sentation must have been relied upon by the complaining party,^^® and acted upon to his injury.^'^® § 116. Effect of misrepresentation. The effect of misrepresentation, when it has any operation "iSee McLanahan v. Universal Ins. Co., 1 Pet. (U. S.) 170, 185. 172 Anson, Cent. (4tli Ed.) 152. 173 See page 146, infra. 174 See page 149, infra. 175 See page 150, infra. 176 See page 153, infra. 177 See page 154, infra. 178 See page 166, infra. 170 See page 168, infra. (140) Ch. 3] FRAUD. § 116 at all, is to render the contract not absolutely void, but only- voidable at the option of the party misled.^®" VIII. Fbaud. Fraud is a false representation of fact, made with knowledge of its falsehood, or in reckless disregard whether it is true or false, with the intention that it shall be acted upon by the other party, and actually inducing him to act upon it to his injury. Fraud generally includes misrepresentation. Therefore, mere nondisclosure of facts does not, as a rule, amount to fraud. If nondisclosure is coupled with an active attempt to deceive, however, either by a statement which is false in itself, or by a representation, true so far as it goes, but accompanied with such a suppression of facts as makes it convey an erroneous impression, or by the taking of means to prevent the other party from learning a material fact, it is termed "conceal- ment," and this constitutes fraud. In order to amount to fraud, a misrepresentation must be a misstatement either of a past event or an existing fact, or an affirmation of a matter in the future as a fact. Therefore, fraud does not ordinarily include statements of opinion, expectation, or prediction, nor statements of motive or intention, nor prom- issory statements, nor misrepresentations of the law. Again, the misrepresentation must be false in fact, and it must be material, and of such a nature that the other party has a right to rely upon its truth. A misrepresentation, in order to constitute fraud, must be made, either with knowledge of its falsity, or in ignorance of its truth, and with reckless disregard of whether it is true or false. If the person making the misrepresentation believes, upon reasonable grounds, that it is true, he is not guilty of fraud. To amount to fraud, a misrepresentation must be made with the intention that it shall be acted upon by some one; and, if 180 Anson, Cent. (4th Ed.) 137, 142; Morrison v. Universal Marine Ins. Co., L. R. 8 Excli. 197. a4i) § 117 REALITY OP CONSENT. [Ch. 3 this intention exists, it is immaterial that the motive of the party making the false statement is not bad. Subject to this rule, the representation need not be made directly to the per- son who subsequently acts upon it. To have any operation in law, a misrepresentation must be acted upon by the other party, and acted upon to his injury. Ordinarily, a contract may not be avoided on the ground of fraud because of false representations made by a person not a party to the contract; but misrepresentations made by an agent in the course of his employment have the same effect on a contract made by him for the principal as misstatements made by the principal himself. § 116a. In general. Reality of consent may be affected by ignorance of facts caused by act of the other party with wrongful intention. This is fraud. •'*^ More particularly defined, "fraud is a false representation of fact, made with a knowledge of its falsehood, or in reckless disregard whether it be true or false, with the intention that it should be acted upon by the com- plaining party, and actually inducing him to act upon it" to his injury.^ ^^ § 117. Character of representation — In general. Fraud generally includes misrepresentation. There are some instances of fraud, however, in which it cannot be said that there is a misrepresentation except by a forced use of language. Thus, it is fraudulent to enter into a contract with the design of using it as an instrument of wrong or de- ceit against the other party.^^^ Again, it is fraudulent to make a contract with an intention not to perform it,^®* as 181 Pollock, Cent. 391. 182 Anson, Cont. (4tli Ed.) 153. 183 Evans v. Carrington, 2 De Gex, F. & J. 481, 501. 184 Old Colony Trust Co. v. Dubuque Light & Traction Co. (C. C.) (142) Ch. 3T FRAUD. § 117a where goods are purchased on credit, with an intention not to pay for them.^*® Misrepresentation may be made either by word or by conduct, and it may consist either in the posi- tive assertion or suggestion of that which is false, or in the concealment of something material to be known to the other party for the purpose of enabling him to decide whether he shall enter into the contract.^*® The simple form of mis- representation is where a false statement is made of specific facts. This is illustrated in a case where a person is induced to become a partner in a business by false accounts of its position and profits.^®''' Again, the false statement may refer to a general state of things. Thus, it is a fraud to induce a person to enter into a particular arrangement by an incor- rect and unwarrantable assertion that such is the usual mode of conducting the kind of business in hand.^** § 117a. Same — Nondisclosure. As a rule, mere nondisclosure of facts does not amount to fraud. While in some cases nondisclosure may constitute a 89 Fed. 794; Lawrence v. Gayetty, 78 Cal. 126; Russ Lumber & Mill Co. V. Muscupiabe Land & Water Co., 120 Cal. 521; Smith v. Parker, 148 Ind. 127; American Hosiery Co. v. Baker, 18 Ohio Cir. Ct. R. 604, 10 Ohio Cir. Dec. 219; McFarland v. McGill, 16 Tex. Civ. App. 298. 185 Ferguson v. Carrington, 9 Barn. & C. 59 ; Load v. Green, 15 Mees. & W. 216, 15 Law J. Bxch. 113; Donaldson v. Farwell, 93 U. S. 631; Carnahan v. Bailey (C. C.) 28 Fed. 519; Thompson v. Rose, 16 Conn. 71; Brower v. Goodyer, 88 Ind. 572; Oswego Starch Fac- tory V. Lendrum, 57 Iowa, 573; Jordan v. Osgood, 109 Mass. 457, 461; Shipman v. Seymour, 40 Mich. 274; Sprague v. Kempe, 74 Minn. 465; Fox v. Webster, 46 Mo. 181; McCready v. Phillips, 56 Neb. 446; Stewart v. Emerson, 52 N. H. 301; Wright v. Brown, 67 N. Y. 1; Mulliken v. Millar, 12 R..I. 296. This matter is considered also in another connection. See page 134, supra. 186 Pollock, Cont. 513. 187 Rawlins v. Wickham, 3 De Gex & J. 304. For another illus- tration, see Canham v. Barry, 15 C. B. 697, 24 Law J. C. P. 100. 188 Reynell v. Sprye, 1 De Gex, M. & G. 660, 679. (143) § 117a REALITY OF CONSENT. [Ch. 3 misrepresentation which will render the contract voidable, as we have seen,^^* it does not ordinarily found an action for deceit/^" unless it is coupled with an active attempt to deceive, either by a statement which is false in itself, or by the taking of means to prevent the other party from learn- ing a material fact, or by a representation true so far as it goes, but accompanied with such a suppression of facts as makes it convey an erroneous impression, or by contributing by conduct to the formation of an erroneous belief, upon which the other party is allowed to act.-'^-' And this is true, even though silence is maintained with an intent to reap a benefit from the other party's ignorance.^^^ ITondisclosure of this active, aggressive, or industrious kind may be termed "concealment," to distinguish it from simple nondisclos- ure.-^** Under some circumstances, the law imposes an obligation upon a person to disclose all material facts known to him, and not known to the other party. In such a case, nondis- closure amounts to fraud. This principle has been discussed and illustrated in treating of misrepresentation.^^* What is said there applies with equal or stronger reason here. In ordinary cases, it is not the duty of one party to a contract to correct a misapprehension of the other to which he has done nothing to contribute, even though he may be aware of it. Passive acquiescence in the other party's self-decep- 189 Page 130, supra. 190 Anson, Cont. (4th Ed.) 154; Peek v. Gurney, L. R. 6 H. L. 377, 403; Ward v. Hobbs, 3 Q. B. Div. 150, 4 App. Cas. 13; Keates v. Ca- dogan, 10 C. B. 591; Laidlaw v. Organ, 2 Wheat. (TJ. S.) 178, Huffcut & W. Am. Cas. Cont. 282; Saltonstall v. Gordon, 33 Ala. 149; Matthews V. Bliss, 22 Pick. (Mass.) 48; Williams v. Spurr, 24 Mich. 335; Peo- ple's Bank v. Bogart, 81 N. Y. 101; Harris v. Tyson, 24 Pa. 347. 101 See section on concealment, infra. 192 See cases cited in note 190, sxipra. 193 Stewart v. Wyoming Cattle Ranche Co., 128 U. S. 383. 194 Page 130, supra: (144) Ch. 3] FRAUD. § 117b tion cannot be put upon the same footing as an active en- couragement of it whicli has the nature of aggressive de- ceit.i^^ § 117b. Same — Concealment. The term "concealment" may be said to include three classes of conduct, namely: (1) Taking means to prevent the other party from learning a material fact; (2) making a statement true in terms so far as it goes, but keeping silence as to other things which, if disclosed, would alter the whole effect of the statement, so that what is in fact told is a half truth, equivalent to falsehood; or (3) allowing the other party to proceed on an erroneous belief to which one's acts have contributed. Each of these amounts to fraud.^®® The first sort of concealment is exemplified where a seller of goods uses a contrivance of some kind to hide defects there- in.^ ^^ The second sort of concealment exists where there is such a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false.-^®* The third sort of concealment ex- 195 Smith V. Hughes, L. R. 6 Q. B. 597, 603; Keates v. Cadogan, 10 C. B. 591; Damhmann v. Schulting, 75 N. Y. 55. But see page 146, infra. Neither party to a proposed contract of sale is bound to communicate knowledge of extrinsic facts affecting the price, where the means of knowledge are equally open to both parties, even though one knows of the other's ignorance. Laidlaw v. Or- gan, 2 Wheat. (U. S.) 178, Huffcut & W. Am. Gas. Cont. 282; Kint- zing V. McEirath, 5 Pa. 467. 19S Pollock, Cont. 514. 197 Benjamin, Sales, § 430; Udell v. Atherton, 7 Hurl. & N. 172; Roseman v. Canovan, 43 Cal. 110; Singleton's Adm'r v. Kennedy, 9 B. Mon. (Ky.) 222; Croyle v. Moses, 90 Pa. 250, 35 Am. Rep. 654. 198 Peek V. Gurney, L. R. 6 H. L. 377, 391, 403; Loucks v. Taylor, 23 Ind. App. 245; Coles v. Kennedy, 81 Iowa, 360, 25 Am. St. Rep. 503; Newell v. Randall, 32 Minn. 171, 50 Am. Rep. 562; Hadley v. Clinton County Importing Co., 13 Ohio St. 502, 513; Mallory v. Leach, 35 Vt. 156; Childs v. Merrill, 63 Vt. 463. (145) Law of Cont. — 10. § 117c REALITY OF CONSENT. [Ch. 3 ists where one party knowingly assists in inducing the other to enter into the contract by leading him to believe that which is known to be false.^®^ It exists also where one party has made a false representation innocently, and, upon dis- covering the error, does nothing to undeceive the other party j^"" or where one party, upon being questioned by the other as to the existence of a material fact, falsely denies all knowledge in the premises,^"^ or gives an evasive answer.^"^ Even though a representation is true when made, yet, if subsequent events render it false, the person who made it must disclose such events, else he is guilty of fraud, the same as if the statement had been untrue when made.^°^ i 117c. Same — Statements of opinion, expectation, or predic- tion. In order to constitute fraud, a false statement must be a misrepresentation of either a past event or an existing fact, or an affirmation of a matter in the future as a f act.^°* The 199 Hill V. Gray, 1 Starkle, 434, as explained in Keates v. Cadogan, 10 C. B. 591, 600; Lee v. Jones, 17 C. B. (N. S.) 482, 507, 34 Law J. C. P. 140; Fitzmaurioe v. Hosier, 116 Ind. 363, 368; Mizner v. Kussell, 29 Mich. 229; Manter v. Truesdale, 57 Mo. App. 435; Lower- son V. Johnston, 47 N. J. Eq. 312; Clark v. Clark, 55 N. J. Eq. 814; Remington Sewing Mach. Co. v. Kezertee, 49 Wis. 409. 2ooReynell v. Sprye, 1 De Gex, M. & G. 660, 709; Davies v. Lon- don & P. M. Ins. Co., 8 Ch. Div. 469, 475; Loewer v. Harris, 14 XJ. S. App. 615, 57 Fed. 368, 6 C. C. A. 394. But see page 145, supra. If the error is not discovered until after the contract is made, how- ever, the misrepresentation will not found an action of deceit. Pet- tigrew V. Chellis, 41 N. H. 95. 201 Smith, V. Beatty, 37 N. C. 456, 40 Am. Dec. 435. 202 Croyle v. Moses, 90 Pa. 250; Baker v. Seahorn, 1 Swan (Tenn.) 54, 55 Am. Dec. 724; Howard v. Gould, 28 Vt. 523, 67 Am. Dec. 728. 203 Traill v. Baring, 4 De Gex, J. & S. 318; Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368; Lindauer v. Hay, 61 Iowa, 663; Cortland Mfg. Co. V. Piatt, 83 Mich. 419. See Janes v. Mercer University, 17 Ga. 515. 204 Lawrence v. Gayetty, 78 Cal. 126; Beard v. Bliley, 3 Colo. App. (146) Ch. 3] FRAUD. § 117c expression of an unfounded opinion does not affect the for- mation of a contract.^"® Thus, statements of the value of the subject-matter of a contract of sale are mere expressions of opinion, and the fact that they prove to be unfounded does not render the contract voidable for fraud.^"® And so, un- 479; Esterly Harvesting Mach. Co. v. Berg, 52 Neb. 147; Closius v. Reiners, 13 App. Div. (N. Y.) 163; Peck, Phillips & Wallace Co. v. Stevenson, 6 Pa. Super. Ct. 536, 42 Wkly. Notes Cas. 119; Owens v. Boyd Land Co., 95 Va. 560; Sheldon v. Davidson, 85 Wis. 138, Huff- cut & W. Am. Cas. Cent. 295. 20B Haycraft v. Creasy, 2 East, 92; Anderson v. Pacific F. & M. Ins. Co., L. R. 7 C. P. 65; Gordon v. Butler, 105 U. S. 553; Huber v. Guggenheim (C. C.) 89 Fed. 598; Livingston v. Maryland Ins. Co., 7 Cranch (U. S.) 506; Stevens v. Alabama State Land Co., 121 Ala. 450; Sherwood v. Salmon, 2 Day (Conn.) 128; Emmerson v. Hutch- inson, 63 111. App. 203; Neidefer v. Chastain, 71 Ind. 363; McClana- han V. McKinley, 52 Iowa, 222; Holbrook v. Connor, 60 Me. 578, 11 Am. Rep. 212; Tucker v. White, 125 Mass. 344; Mooney v. Miller, 102 Mass. 217; Myers v. Alpena Loan & Building Ass'n, 117 Mich. 389; Cowley v. Smyth, 46 N. J. Law, 380; Duffany v. Ferguson, 66 N. Y. 482, reversing 5 Hun, 106; Kane v. Chester Traction Co., 186 Pa. 145, 42 Wkly. Notes Cas. 366; Lyons v. Briggs, 14 R. I. 222; Warner v. Benjamin, 89 Wis. 290. See, however, Nevada Bank of San Francisco v. Portland Nat. Bank (C. C.) 59 Fed. 338; Gifford v. Carvill, 29 Cal. 589; Allin v. Millison, 72 111. 201; Teachout v. Van Hoesen, 76 Iowa, 113, 14 Am. St. Rep. 206, 1 L. R. A. 664; Crane V. Elder, 48 Kan. 259, 15 L. R. A. 795. Commendatory expressions of dealers stand in a class with statements of opinion, and do not constitute representations. Warren v. Doolittle, 61 111. 171; Miller V. Craig, 36 111. 109; Kimball v. Bangs, 144 Mass. 321; Gordon v. Parmelee, 2 Allen (Mass.) 212; Ellis v. Andrews, 56 N. Y. 83, 15 Am Rep. 379. But see Smith v. Land & House Property Corp., 28 Ch. Div. 7; Burr v. Wlllson, 22 Minn. 206; Handy v. Waldron, 18 R. I. 567; Adams v. Soule, 33 Vt. 538. While the general rule is that opinions do not stand on the same footing as facts, yet some- times they are meant and understood on both sides to be relied upon to determine action, and, where this Is so, they may found an ac- tion of deceit if they are false. Jackson v. Collins, 39 Mich. 557; McClellan v. Scott, 24 Wis. 81. 206 Patten v. Glatz (C. C.) 87 Fed. 283; Taylor v. Ford, 131 Cal. 440; Gustafson v. Rustemeyer, 70 Conn. 125, 39 L. R. A. 644; Noet- (147) § 117c REALITY OP CONSENT. [Ch. 3 founded predictions made by the seller of property that the vendee will be able to reap a profit if he buys do not render the contract inoperative. Such statements are in a class with statements of opinion.^"'^ And this is so, even though the person making the statements knows them to be untrue, and makes them with intent to deceive.^"^ It is otherwise, how- ever, and an action for deceit will lie, if the means of knowl- edge as to value are not equally accessible to both parties,^"® or if some artifice is used to prevent a discovery of the true value.^^° Misstatements of the seller as to the cost of an ling V. Wright, 72 111. 390; Shade v. CreTiston, 93 Ind. 591; Poland V. Brownell, 131 Mass. 138; Buxton v. Jones, 120 Mich. 522; Dal- rymple v. Craig, 149 Mo. 345; Chrysler v. Canaday, 90 N. Y. 272; Saunders v. Hatterman, 24 N. C. 32; Graham v. Pancoast, 30 Pa. 89; Long v. Gilbert (Tenn. Ch. App.) 59 S. W. 414. But see Hor- ton V. Lee, 106 Wis. 439. A misrepresentation as to the market price of an article of general commerce, made falsely and fraudu- lently by one party to induce a sale, and relied upon by the other party, will not avoid the contract. Graffenstein v. Epstein, 23 Kan. 443. But see Smith v. Countryman, 30 N. Y. 655, 682, 684. 207 Vernon v. Keys, 12 Bast, 632, 638; Bellairs v. Tucker, 13 Q. B. Div. 562; Sawyer v. Prickett, 19 Wall. (U. S.) 146; Tuck v. Down- ing, 76 111. 71; Bishop v. Small, 63 Me. 12; Stumpf v. Sargent, 21 Misc. Rep. (N. Y.) 674; Fisher v. Budlong, 10 R. I. 525, 527. But see Hay v. Landis, 17 Ind. App. 91; Horton v. Lee, 106 Wis. 439. Representations as to past profits of a business sold may avoid the sale, if false. Old Colony Trust Co. v. Dubuque Light & Traction Co. (C. C.) 89 Fed. 794; Markel v. Moudy, 11 Neb. 213; Somers v. Richards, 46 Vt. 170. Contra, Poland v. Brownell, 131 Mass. 138. And see Cornwall v. McParland Real Estate Co., 150 Mo. 377. 208 Van Vechten v. Smith, 59 Iowa, 173; Manning v. Albee, 11 Allen (Mass.) 520, 522; Chrysler v. Canaday, 90 N. Y. 272. Contra, Whit- ney v. Richards, 17 Utah, 226. And see Vilett v. Moler, 82 Minn. 12. 209 Allen V. Hart, 72 111. 104; Picard v. McCormick, 11 Mich. 68; Vilett v. Moler, 82 Minn. 12; Griffin v. Farrier, 32 Minn. 474; Corn- wall V. McFarland Real-Estate Co., 150 Mo. 377; Simar v. Canaday, 53 N. Y. 298, explained in Chrysler v. Canaday, 90 N. Y. 272; Saun- ders V. Hatterman, 24 N. C. 32; Bower v. Fenn, 90 Pa. 359; Mc- Clellan v. Scott, 24 Wis. 81. 210 Gustafson v. Rustemeyer, 70 Conn. 125, 39 L. R. A. 644; Grif- (148) Ch. 3] FRAUD. § llVd article offered for sale stand in the same category with ex- pressions of opinion, and do not found an action for deceit in favor of the buyer. ^^^ § 117d. Same — Statements of motive or intention and promises. Putting aside the cases already mentioned, in Avhich the substance of the fraud is not misrepresentation, but a wrong- ful intention going to the whole matter of the contract,^-' ^ the rule is that the formation of a contract is not affected by a false representation of motive or intention, not amounting to an assertion of existing facts.^^^ A false representation which will give rise to a right of action for deceit is also to be distinguished from a promise to do something in the future. The latter is not a representation of fact, and the fin V. Farrier, 32 Minn. 474; Smith v. Countryman, 30 N. Y. 655, 681, per Mullin, J.; Saunders v. Hatterman, 24 N. C. (2 Ired. Law) 32. See note 241, infra. 211 Tuck V. Downing, 76 111. 71, 91; Richardson v. Noble, 77 Me. 390; Cooper v. Lovering, 106 Mass. 77. But see Lindsay Petroleum Co. V. Kurd, L. R. 5 P. C. 221, 243; Mayo v. Wahlgreen, 9 Colo. App. 506. If the buyer has no opportunity to ascertain the value of the property, and is induced to rely on an overstatement of value by the seller's false statement of the cost of the property, it consti- tutes fraud. Weidner v. Phillips, 39 Hun (N. Y.) 1. A misstate- ment by the purchaser of the price he had paid another person for like property may constitute fraud. Per Mullin, J., in Smith v. Countryman, 30 N. Y. 655, 681. A false statement by the seller that a third person has offered and stands ready to give a certain sum for the property is sufficient to found an action for deceit. Ives V. Carter, 24 Conn. 392; Strickland v. Graybill, 97 Va. 602. And see Kenner v. Harding, 85 111. 264; Potter v. Potter, 65 111. App. 74; Hay v. Landis, 17 Ind. App. 91. Contra, Cole v. Smith, 26 Colo. 506. 212 Page 142, supra. 213 Anson, Cont. (4th Ed.) 156; Pollock, Cont. 522; Vernon v. Keys, 12 East, 632, 4 Taunt. 488; Lawrence v. Gayetty, 78 Cal. 126; Gage v. Lewis, 68 111. 604; People's Sav. Bank of Woonsocket v. James, 178 Mass. 322; Milwaukee Brick & Cement Co. v. Schoknecht, 108 Wis. 457. (149) § ll7e REALITY OF CONSENT. [Ch. 3 failure of the promisor to perform it does not constitute fraud."* § 117e. Same — ^Representations of law. As a rule, a misrepresentation of law will not found an action for deceit; nor can a party avoid a contract as for fraud because he was induced to enter into it by a false statement of its legal effect. ^^® This rule does not apply in 2" Ex parte Burrell, 1 Ch. Div. 537, 552; Sawyer v. Prickett, 19 Wall. (U. S.) 146; Fenwick v. Grimes, 5 Cranch, C. C. 439, Fed. Cas. No. 4,733; Huber v. Guggenheim (C. C.) 89 Fed. 598; Birmingham Warehouse & Elevator Co. v. Elyton Land Co., 93 Ala. 549; Law- rence V. Gayetty, 78 Cal. 126; Russ Lumber & Mill Co. v. Muscupiabe Land & Water Co., 120 Cal. 521; Gage v. Lewis, 68 111. 604; Burt V. Bowles, 69 Ind. 1; Smith v. Parker, 148 Ind. 127; Hazlett v. Burge, 22 Iowa, 535; Long v. Woodman, 58 Me. 49; People's Sav. Bank of Woonsocket V. James, 178 Mass. 322; Perkins v. Lougee, 6 Neb. 220; Esterly Harvesting Mach. Co. v. Berg, 52 Neb. 147; Fisher v. New York Common Pleas, 18 Wend. (N. Y.) 608; Sheldon v. Davidson, 85 Wis. 138, 141, HufEcut & W. Am. Cas. Cont. 295. "A statement, promissory in its character, that one will thereafter sell goods at a particular price or time, will pay money, or do any similar thing, or any assurance as to what shall thereafter be done, or as to any future event, is not properly a representation, but a contract." Ac- cordingly, the remedy for a violation thereof is an action on con- tract, not an action for deceit. Dawe v. Morris, 149 Mass. 188, Huffcut & W. Am. Cas. Cont. 292. It has been said that, if a per- son enters into a contract or makes a promise with an intention not to perform his obligation, it constitutes a false representation. This seems to be forcing the use of the term. However, such an intention makes the contract voidable for fraud. See. page 142, supra. 215 Lewis V. Jones, 4 Barn. & C. 506; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 44 L. Ed. 1088; Upton v. Tribilcock, 91 U. S. 45; Martin v. Wharton, 38 Ala. 637; People v. Supervisors of San Francisco, 27 Cal. 655; Cooper v. Hunter, 8 Colo. App. 101; Fish V. Cleland, 33 HI. 238; Drake v. Latham, 50 111. 270; Indiana Ihs. Co. V. Brehm, 88 Ind. 578; Thompson v. Phoenix Ins. Co., 75 Me. 55; Jaggar v. Winslow, 30 Minn. 263; Wood v. Roeder, 50 Neb. 476; Starr v. Bennett, 5 Hill (N. Y.) 303; Unckles v. Hentz, 18 Misc. Rep. (N. Y.) 644; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Gormely v. Gymnastic Ass'n, 55 Wis. 350. (150) Ch. 3] FRAUD. § ll7f all cases, however. The circumstances and the position of the parties are sometimes such as to justify the one in rely- ing upon the representations of the other as to the law,^^® as where the parties stand in a relation of confidence,^^'' or where one, by reason of his unfamiliarity with legal trans- actions, is compelled to rely upon the superior knowledge of the other.^^* In determining when a misrepresentation is of a matter of law, and when of a matter of fact, we are con- fronted with the same difficulty as that which we met in con- sidering mistake of law and mistake of fact. What was said there doubtless applies here.^-'® i 117f. Same — Falsity of representation. To avoid a contract for fraud, the representation must he false in fact.^^"' If the statement was true, the fact that the party making it supposed it to be false does not affect the contract, or give rise to an action for d6ceit.^^^ A repre- sentation may be false in fact, even though it is true upon 218 Pollock, Cont. 522. But see Hirschfeld v. London, B. & S. C. Ry. Co., 2 Q. B. Div. 1. 2i7Townsend v. Cowles, 31 Ala. 428; Sims v. Ferrill, 45 Ga. 585; Stumpf V. Stumpf, 7 Mo. App. 272; Allen v. Frawley, 106 Wis. 638. 218 Lehman v. Shackleford, 50 Ala. 437; Ross v. Drinkard's Adm'r, 35 Ala. 434, Huffcut & W. Am. Cas. Cont. 291; Kinney v. Dodge, 101 Ind. 573; Berry v. Whitney, 40 Mich. 65; Cooke v. Nathan, 16 Barb. (N. Y.) 342; Moreland v. Atchison, 19 Tex. 303. 219 Anson, Cont. (4th Ed.) 157. See page 117 et seq., supra. Whether a particular piece of land is covered by a deed of convey- ance is ordinarily a question of fact, not of law. Dashiel v. Harsh- man (Iowa) 85 N. W. 85. Whether certain goods have been levied upon is ordinarily a question of fact. Burns v. Lane, 138 Mass. 350. 220 Moens v. Hey worth, 10 Mees. & W. 147; Southern Development Co. V. Silva, 125 U. S. 247; Belden v. Henriques, 8 Cal. 87; Hicks V. Deemer, 187 111. 164. If representations are true as to matters of fact, an untrue conclusion drawn therefrom by the party making them, and stated to induce a contract, does not constitute fraud. Stevens v. Rainwater, 4 Mo. App. 292. 221 Babcock v. Libbey, 53 How. Pr. (N. Y.) 255, 267, 268. (151> § 117f REALITY OF CONSENT. [Ch. 3 a literal interpretation.^^^ Thus, a true statement, accom- panied by conduct which is intended to make the statement create an untrue impression, may be regarded as false.^^^ And so, if a true statement is given a false meaning by the party to whom it is made, and the party making it knows of the misunderstanding, and fails to correct it, it is the same as if the statement were false in fact.^^* An ambig- uous statement cannot be treated as fraudulent, however, merely because it is false in some one of its possible senses. To entitle him to relief, the party asserting fraud must show that he understood and acted upon the statement in the sense in which it was false.^^^ A representation may be true so far as it goes, and yet create a false impression by reason of its fragmentary character. This is one form of falsity. The prominent feature of the case, however, is the suppres- sion or concealment of facts, and the matter has been dealt with in connection with concealment.^^® It is not necessary that the representation shall have been false when made, if afterwards, and before it is acted upon, it is rendered false by subseqtient events. This qtiestion also has been treated in dealing with the question of concealment, since the main feature is the suppression of information of the subseqvient events. ^^''' If representations, false when made, are ren- dered true in fact by subsequent events, before they are acted upon, it would seem that the falsity should neither affect the validity of the contract nor found an action for deceit. ^^* 222 Clarke v. Bickson, 6 C. B. (N. S.) 453, 95 B. C. L. 453. 223 Lester v. Mahan, 25 Ala. 445, 60 Am. Dec. 530; Mlzner v. Kus- seU, 29 Mich. 229. 224Moens v. Hey worth, 10 Mees. & W. 147, 159; Lomerson v. John- ston, 47 N. J. Eq. 312, 24 Am. St. Rep. 410. 225 Pollock, Cent. 524; Smith v. Chadwick, 9 App. Cas. 187, 199, 201. 226 See page 145, supra. 227 See page 146, supra. 228 Hamburger v. Lusky (Tenn. Ch.) 56 S. W. 24. In Reeve v. Dennett, 145 Mass. 23, 30, the court doubts the con- (152) Ch. 3] FRAUD. § 117g This should result from the rule, subsequently to be con- sidered,^^® that, in order to entitle him to relief on account of fraud, the party misled must have been damaged or preju- diced by the deception. § 117g. Same — Materiality of representation. In order to constitute fraud, a false representation must be such as to induce the contract. In other words, the misrep- resentation must be material.^^" "But to make this quite accurate," says Sir Frederick Pollock,^^^ "it should be stated in the converse form, namely, that a material representation elusion stated in the text, supra, citing Bales v. Weddle, 14 Ind. 349. In that case a buyer of property, to be delivered in the future, advanced money to the seller on account of the price, upon the sell- er's false statement that he then had the property on hand, and it was held that the buyer might rescind the contract before de- livery of the property, and recover back his advances. It will be noticed that, in this case, the buyer acted on the false representa- tion before the statement was made good by the seller's buying property to enable him to fulfill his contract; but, even so, this case would seem to be against the weight of authority. The rule is that the falsity of a representation when made does not ordinarily afford ground for relief, even though it has been acted upon, if the statement is afterwards made good, so as to prevent damage. Ball V. Farley, 81 Ala. 288; Davidson v. Moss, 5 How. (Miss.) 673; Bar- ber V. Kilbourn, 16 Wis. 485. See Spratt v. Wilson, 94 Ala. 608; Beard v. Bliley, 3 Colo. App. 479; Armstrong v. Breen, 101 Iowa, 9; Hunt V. McConnell, 1 T. B. Men. (Ky.) 219; Nye v. Merriam, 35 Vt. 438. And see note 221, supra. 229 See page 168, infra. 280 Green v. Gosden, 3 Man. & G. 446, 42 B. C. L. 237; Geddes v. Pennington, 5 Dow, 159; Farnsworth v. Duffner, 142 U. S. 43; Win- ter V. Bandel, 30 Ark. 362; Young v. Young, 113 111. 430; Palmer V. Bell, 85 Me. 352; McAleer v. Horrsey, 35 Md. 439; Dawe v. Mor- ris, 149 Mass. 188, 14 Am. St. Rep. 404, 4 L. R. A. 158, Huffcut & W. Am. Cas. Cont. 292; Collins v. Jackson, 54 Mich. 186; Winston V. Young, 52 Minn. 1; Curtiss v. Howell, 39 N. Y. 211, 214; Brown V. Dobson, 198 Pa. 487; Fulton v. Hood, 34 Pa. 365, 75 Am. Dec. 664. Concealment, to amount to fraud, must be of a material fact. Camp v. Pulver, 5 Barb. (N. Y.) 91. 231 Pollock, Cont. 527. (153), § li7h REALITY OP CONSENT. [Ch. 3 may be presumed to have in fact induced the contract; for a man who has obtained a contract by false representations cannot afterwards be heard to say that those representations were not material. * * * It is enough that an untrue statement has been made which was likely to induce the party to enter into the contract, and that he has done so."^*^ The question of what constitutes a material representation de- pends, of course, upon the circumstances of the particular case.^*^ The author just quoted defines a material fact to be "anything which would affect the judgment of a reason- able man, governing himself by the principles on which men in practice act in the kind of business in hand."^^* While a false representation may ordinarily be considered to be material if it is such that, without it, the contract would not have been entered into,^^° yet the fact that it is so acted upon is not conclusive of its materiality.^^® i 117h. Same — TLight to rely on representation. In order to afford ground for avoiding a contract, or to 232 The presumption as to whether a representation induced the contract is more fully considered in another connection. See page 167, infra. 233 Hall V. Johnson, 41 Mich. 286, 289. See, also, Reid v. Cowdu- roy, 79 Iowa, 169, 173; Hedden v. Griffin, 136 Mass. 229, 49 Am. Rep. 25; Gerner v. Yates (Neb.) 84 N. W. 596; Putman v. Bromwell, 73 Tex. 465. Whether or not a false representation is material is a question for the Jury; but in many cases the jury cannot answer the question without instructions from the court. 2 Parsons, Cont. 770; Westbury v. Aberdein, 2 Mees. & W. 267; Lindenau v. Des- borough, 8 Barn. & C. 586; Huguenin v. Rayley, 6 Taunt. 186; Mc- Aleer v. Horsey, 35 Md. 439. If the facts are undisputed, the ques- tion whether the misrepresentation is so material as to amount to fraud is one for the court. Dawe v. Morris, 149 Mass. 188, 14 Am. St. Rep. 404, 4 L. R. A. 158, Huffcut & W. Am. Cas. Cont. 292. 234 Pollock, Cont. 528, citing lonides v. Pender, L. R. 9 Q. B. 531, 539. 235 Shackelford v. Handley's _Ex'rs, 1 A. K. Marsh. (Ky.) 496, 10 Am. Dec. 753; McAleer v. Horsey, 35 Md. 439. 236 Hall V. Johnson, 41 Mich. 286. (154) Ch. 3] FRAUD. § ll7h found an action for deceit, a false representation must be such as to induce a contract. It must be of such a nature that the other party has a right to rely upon its truth.^^'^ And a party must act with reasonable prudence in entering into a contract. If he is guilty of negligence in not opening his eyes to the truth, he can neither avoid the contract nor recover damages because the facts were falsely stated to him.^** In the case of positive false statements, however, it 237 Vernon v. Keys, 12 Bast, 632, 4 Taunt. 488. Statements of in- tention: Fulton V. Hood, 34 Pa. 365, 75 Am. Dec. 664. See, also, page 149, supra. Promissory statements: Fromer v. Stanley, 95 Wis. 56. See, also, page 149, supra. Statements of opinion: South- ern Development Co. v. Silva, 125 U. S. 247; Nounnan v. Sutter County Land Co., 81 Cal. 1; Fromer v. Stanley, 95 Wis. 56. See, also, page 146, supra. Statem.ents of expectation: Tuck v. Down- ing, 76 111. 71. See, also, page 146, supra. Representations of value: Dillman v. NadlehofEer, 119 111. 567; Poland v. Brownell, 131 Mass. 138, 41 Am. Rep. 215; Ellis v. Andrews, 56 N. Y. 83, 15 Am. Rep. 379, and note; Farr v. Peterson, 91 Wis. 182. See, also, page 147, supra. Dealers' talk: Dimmock v. Hallett, 2 Ch. App. 21; Strubhar V. Shorthose, 78 111. App. 394; Deming v. Darling, 148 Mass. 504. See, also, page 146, supra. Misrepresentations of law: Clem v. Newcastle & D. R. Co., 9 Ind. 488; Fish v. Cleland, 33 111. 238, Huff- cut & W. Am. Cas. Cont. 288; Aetna Ins. Co. v. Reed, 33 Ohio St. 283. See, also, page 150, supra. Qualified representations: Hough v. Richardson, 3 Story, 659, Fed. Cas. No. 6,722; Bristol v. Braid- wood, 28 Mich. 191. Aisurd or impossible representations: McGar V. Williams, 26 Ala. 469, 62 Am. Dec. 739. See page 165, infra, as to the right to rely on statements made in a previous transaction. 238 parnsworth v. Duftner, 142 U. S. 43; Slaughter's Adm'r v. Gerson, 13 Wall. (U. S.) 379; Dunham Lumber Co. v. Holt, 123 Ala. 336; Hicks v. Stevens, 121 111. 186; Pence v. Young, 22 Ind. App. 427; Honsucle v. Ruffin, 172 Mass. 420; Davis v. Phoenix Ins. Co., 81 Mo. App. 264; Nicol v. Young, 68 Mo. App. 448; Long v. War- ren, 68 N. Y. 426; Geddes' Appeal, 80 Pa. 442; Prince v. Overholser, 75 Wis. 646; South Milwaukee Boulevard Heights Co. v. Harte, 95 Wis. 592. Only ordinary prudence is required, however. Camp v. Camp, 2 Ala. 632, 36 Am. Dec. 423; Jackson v. Collins, 39 Mich. 557; Gerner v. Mosher, 58 Neb. 135; Messer v. Smyth, 59 N. H. 41; City of Tacoma v. Tacoma Light & Water Co., 17 Wash. 458. (155), § 117h REALITY OF CONSENT. [Ch. 3 has been held that it is no answer, in an action either for damages or for rescission of the contract, to say that the party complaining of the misrepresentation had the means of making inquiries that would have led to a discovery of the truth, and failed to take advantage of them.^^® In any event, if a person makes statements as of his own personal knowledge, and the facts are peculiarly within his knowl- edge or present means of knowledge, the other party may rely upon such statements as true, and he is not guilty of negligence in failing to avail himself of an opportunity to ascertain the truth for himself.^*" A party who has induced 239 Dyer v. Hargrave, 10 Ves. 506, 509; Price v. Macaulay, 2 De 'Gex, M. & G. 339, 346; Central Ry. Co. of Venezuela v. Kisch, L. R. 2 H. L. 99, 120; Upton v. Englehart, 3 Dill. 496, 501, Fed. Cas. No. 16,800; Lovejoy v. Isbell, 73 Conn. 368; McBride v. Macon Tel- egraph Pub. Co., 102 Ga. 422; Linington v. Strong, 107 111. 295; Matlock V. Todd, 19 Ind. 130; Carmichael v. Vandebur, 50 Iowa, 651; McKee v. Eaton, 26 Kan. 226; David v. Park, 103 Mass. 501; Olson V. Orton, 28 Minn. 36; Oswald v. McGehee, 28 Miss. 340; Cald- well V. Henry, 76 Mo. 254; Olcott v. Bolton, 50 Neb. 779; Alexander v. Brogley, 62 N. J. Law, 584; Mead y. Bunn, 32 N. Y. 275; Delano V. Rice, 21 Misc. Rep. (N. Y.) 714; Fargo Gas & Coke Co. v. Fargo Gas & Electric Co., 4 N. D. 219; Lake v. Weber, 6 Pa. Super. Ct. 42; Labbe v. Corbett, 69 Tex. 503. Thus, though the title to real estate appears upon the public records, a fraudulent misrepresenta- tion concerning it may found an action for deceit. Hunt v. Barker, 22 R. I. 18, 84 Am. St. Rep. 812. 2i0Barr v. Doan, 45 Up. Can. Q. B. 491; Smith v. Richards, 13 Pet. (U. S.) 26; Old Colony Trust Co. v. Dubuque Light & Traction Co. (C. C.) 89 Fed. 794; Senter v. Senter, 70 CaL 619; Lahay v. City Nat. Bank of Denver, 15 Colo. 339, 22 Am. St. Rep. 407; Beck- with v. Ryan, 66 Conn. 589; Wilson v. Nichols, 72 Conn. 173; Nolte V. Reichelm, 96 111. 425; Exchange Bank of Kentucky v. Gaitskill, 18 Ky. Law Rep. 532, 37 S. W. 160; Braley v. Powers, 92 Me. 203 Lewis V. Jewell, 151 Mass. 345, Huffcut & W. Am. Cas. Cont. 306 Andrews v. Jackson, 168 Mass. 266; Eaton v. Winnie, 20 Mich. 156 Union Nat. Bank v. Hunt, 76 Mo. 439; Schumaker v. Mather, 133 N. Y. 590; Lefever v. Lefever, 30 N. Y. 27; Hunt v. Barker, 22 R. I. 18; Roberts v. Holliday, 10 S. D. 576; Risch v. Von Lillienthal, 34 Wis. 250. (156) Ch. 3J FRAUD. § 118 a contract by false representations cannot urge that the other party was guilty of negligence in relying upon them, where, by artifice, he prevented the latter from ascertaining the truth for himself ;^*-^ nor where, at the time he made the false statements, he stood in a relation of trust or confidence with the party misled.^*^ § 118. Knowledge of falsity — Actual and constructive knowl- edge. In order to affect the formation of a contract, or to give rise to a right of action for deceit, a false representation must be made with knowledge of its falsity.^*^ But positive 2*1 Henderson v. Henshall (C. C. A.) 54 Fed. 320; Strand v. Grif- fith (C. C. A.) 97 Fed. 854; Roseman v. Canovan, 43 Cal. 110; Gus- tafson V. Rustemeyer, 70 Conn. 125, 39 L. R. A. 644; Kenner v. Harding, 85 111. 264, 28 Am. Rep. 615; Way v. Ryther, 165 Mass. 226, 229; Stewart v. Stearns, 63 N. H. 99, 56 Am. Rep. 496; Chrysler V. Canaday, 9(ysr. Y. 272. See note 210, supra. 242jeferie3 v. Wiester, 2 Sawy. 135, Fed. Cas. No. 7,254; Colton V. Stanford, 82 Cal. 351, 16 Am. St. Rep. 137; Baum v. Holton, 4 Colo. App. 406; Gustafson v. Rustemeyer, 70 Conn. 125, 39 L. R. A. 644; Nolte v. Reichelm, 96 111. 425; Bunn v. Schnellbacher, 163 111. 328; Manley v. Felty, 146 Ind. 194; Edelman v. Latshaw, 180 Pa. 419; Teachout v. Van Hoesen, 76 Iowa, 113; Cheney v. Gleason, 125 Mass. 166; Seeley v. Price, 14 Mich. 541; Pomeroy v. Benton, 57 Mo. 531; Smith v. Smith, 134 N. Y. 62; Bower v. Fenn, 90 Pa. 359; Wells v. McGeoch, 71 Wis. 196. 243 Dickson v. Renter's Telegram Co., 3 C. P. Dlv. 1; Morton v. Scull, 23 Ark. 289; Elwell v. Russell, 71 Conn. 462; Terrell v. Ben- net, 18 Ga. 404; Merwin v. Arbuckle, 81 111. 501; Gregory v. Schoe- nell, 55 Ind. 101; Da Lee v. Blackburn, 11 Kan. 190; Kingsbury v. Taylor, 29 Me. 508; Tucker v. White, 125 Mass. 344; King v. Eagle Mills, 10 Allen (Mass.) 548; Faribault v. Sater, 13 Minn. 223 (Gil. 210) ; Sims v. Eiland, 57 Miss. 607; Mahurin v. Harding, 28 N. H. 128; Unckles v. Hentz, 45 N. Y. Supp. 894; Gem Chemical Co. v. Young- blood, 58 S. C. 56, 582. Contra, Holcomb v. Noble, 69 Mich. 396; Johnson v. Gulick, 46 Neb. 817, 50 Am. St. Rep. 629; Field v. Morse, 54. Neb. 789. And see note 258, infra. Positive proof of knowledge of the falsity of the representations is not required. It may be in- ferred from other facts in evidence. Jacobs v. Marks, 83 111. App. 156, affirmed 183 111. 533. (157), § lis REALITY OF CONSENT. [Qh. 3 knowledge is not essential to characterize a false representa- tion as fraudulent. It is enough to show that the statement was made as being true, within the speaker's own knowledge, with a view to securing some benefit to himself, or to de- ceiving a third person, and without believing it to be true.*** If a man does not honestly believe his representations to be true, he is guilty of fraud in making them.^*^ Constructive knowledge of falsity involves the same consequences as actual knowledge. Thus, if a person makes a false statement, not knowing that it is untrue, but knowing facts sufficient to put him upon inquiry as to its truth, his representation amounts to fraud.**^ And so, if a fact is ascertainable, and the per- son misrepresenting it has the means of knowledge, so that he is presumed to know the truth, his false statement may avoid the contract, or subject him to liability in damages in an action for deceit.**'^ If a person misstates a fact which 24* Pollock, Cont. 515; Taylor v. Ashton, 11 Mees. &*W. 401; Evans V. Edmonds, 13 C. B. 777; Derry v. Peek, 14 App. Cas. 337. 245 Da Lee v. Blackburn, 11 Kan. 190; Humphrey v. Merriam, 32 Minn. 197; Howard v. Gould, 28 Vt. 523. The fact that a man has reason to believe his statements to be false does not amount to fraud, if in fact he believes the reverse. The question is whether he entertains a fraudulent intent, and, in such a case, the question is for the jury. Salisbury v. Howe, 87 N. Y. 128. But see Craig V. Ward, 1 Abb. Dec. (N. Y.) 454, affirming 36 Barb. 377. In Michigan it is held that, if a person, not knowing the facts, has reason to believe his representations to be untrue, he is guilty of fraud, the same as if he entertained an actual belief in their falsehood. Stone v. Covell, 29 Mich. 359. But this holding would not apply in many other states, since it is the result of the rule, peculiar to Michigan, and perhaps a few other states; that innocent misstatements may amount to fraud. Holcomb v. Noble, 69 Mich. 396. 246 Gordon v. Irvine, 105 Ga. 144; Dulaney v. Rogers, 64 Mo. 201; Wakeman v. Dalley, 51 N. Y. 27; Craig v. Ward, 1 Abb. Dec. (N. Y.) 454, affirming 36 Barb. 377. But see Salisbury v. Howe, 87 N. Y. 128. 247Scholfield Gear & Pulley Co. v. Scholfield, 71 Conn. 1; Ruff V. Jarrett, 94 111. 475; Frenzel v. Miller, 37 Ind. 1, 17; Thomas v. (158) Cll. 3] FRAUD. 5 118 was once within his knowledge, and which it was his busi- ness to remember, he cannot excuse himself by showing that he had forgotten it when he made the statement.^** Keckless misstatement. Mere ignorance as to the truth or falsity of a statement which turns out to be untrue is equivalent to actual knowl- edge of its untruth.^*^ A false statement recklessly made without knowledge of its truth is the same as a false state- ment made with knowledge of the falsity.^^" In the lan- guage of Lord Cairns :^^^ "If persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they knew to be untrue." McCann, 4 B. Mon. (Ky.) 601; Brooks v. Hamilton, 15 Minn. 26 (Gil. 10); Davis v. Nuzum,. 72 Wis. 439; Cotzhausen v. Sinion, 47 "Wis. 103. 248 Burrowes v. Lock, 10 Ves. 470 ; Slim v. Croucher, 1 De Gex, F. & J. 518, 525; Chatham Furnace Co. v. Mofeatt, 147 Mass. 403, HufCcut & W. Am. Cas. Cont. 298; Bacon v. Bronson, 7 Johns. Ch. (N. Y.) 194, 11 Am. Dec. 449. 249 Rawlins v. Wickham, 3 De Gex & J. 804, 316; Smith v. Rich- ards, 13 Pet. (U.S.) 26; Doggett v. Emerson, 3 Story, 700, Fed. Cas. No. 3,960; Lynch v. Mercantile Trust Co. (C. C.) 18 Fed. 486; Wil- cox V. Iowa Wesleyan University, 32 Iowa, 367, Huffcut & W. Am. Cas. Cont. 268; Frenzel v. Miller, 37 Ind. 1, 17; Davis v. Heard, 44 Miss. 50; Leavitt v. Sizer, 35 Neb. 80; Miner v. Medbury, 6 Wis. 295. A false statement fraudulently made, though in ignorance of the falsity, constitutes fraud. Eibel v. Von Fell, 63 N. J. Law, 3. 250 Derry v. Peek, 14 App. Cas. 337; Cooper v. Schlesinger, 111 U. S. 148; Simon v. Goodyear Metallic Rubber Shoe Co. (C. C. A.) 105 Fed. 573; Henry v. Allen, 93 Ala. 197; Smith v. Newton, 59 Ga. 113; Frenzel v. Miller, 37 Ind. 1, 17; McKown v. Furgason, 47 Iowa, 636, Huffcut & W. Am. Cas. Cont. 301; Wickham v. Grant, 28 Kan. 517; Kountze v. Kennedy, 147 N. Y. 124, 29 L. R. A. 360; Dut- ton V. Pyle, 7 Pa. Super. Ct. 126, 42 Wkly. Notes Cas. 65; Davis v. Driscoll, 22 Tex. Civ. App. 14; Krause v. Busacker, 105 Wis. 350. 251 Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64, 79. (159) 118 REALITY OF CONSENT. [Ch. 3 — Statements as of personal knowledge. Representations made as of one's own knowledge are fraud- ulent if tlie person making them does not know them to be true.^^^ This form of fraud frequently occurs where posi- tive assertions of fact are made as founded upon the speak- er's own knowledge, when in truth they are merely adopted on trust from another person. ^^^ If, however, a man does not profess to have personal knowledge of the facts, and gives the source of his information, he is not guilty of fraud in making false statements,^^^ since the fraud in this class of 252 Alvarez v. Brannan, 7 Cal. 503; Stimson v. Helps, 9 Colo. 33; Watson v. Jones, 41 Fla. 241; Johnson v. Beeney, 9 111. App. 64; West V. Wright, 98 Ind. 335; Hubbard v. Weare, 79 Iowa, 678; Foard V. McComb, 12 Bush (Ky.) 723; Hammatt v. Emerson, 27 Me. 308; Burns v. Dockray, 156 Mass. 135; Hoist v. Stewart, 154 Mass. 445; Cole V. Cassidy, 138 Mass. 437; Savage v. Stevens, 126 Mass. 207; Bullitt v. Farrar, 42 Minn. 8, 18 Am. St. Rep. 485, 6 L. R. A. 149; Hamlin v. Abell, 120 Mo. 188; Walsh v. Morse, 80 Mo. 568; Cald- well V. Henry, 76 Mo. 254; Snyder v. Findley, 1 N. J. Law, 78, 1 Am. Dec. 193; Cowley v. Smyth, 46 N. J. Law, 380; Indianapolis, P. & C. Ry. Co. V. Tyng, 63 N. Y. 653; Meyer v. Amidon, 45 N. Y. 169; Rothschild v. Mack, 115 N. Y. 1; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Cawston v. Sturgis, 29 Or. 331; Thompson v. Cham- bers, 13 Pa. Super. Ct. 213; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Darling v. Stuart, 63 Vt. 570. 253 Rawlins v. Nickham, 3 De Gex & J. 304, 313; Smith's Case, 2 Ch. App. 604, 611; School Directors v. Boomhour, 83 111. 17, Huff- cut & W. Am. Cas. Cont. 271; Kirkpatrick v. Reeves, 121 Ind. 280; Fisher v. Mellen, 103 Mass. 503; Bullitt v. Farrar, 42 Minn. 8, 18 Am. St. Rep. 485, 6 L. R. A. 149. 254 Davidson v. Jordan, 47 Cal. 351. The rule is otherwise in Michigan, it seems, since there an innocent misrepresentation in- volves the same conseciuences as a fraudulent misstatement. Hol- comb V. Noble, 69 Mich. 396. A party making a false representa- tion is not guilty of fraud if he does not make the statement as of his own personal knowledge, and he believes, and has reason to believe, it to be true. Cowley v. Dobbins, 136 Mass. 401. The fact that a party making a false representation professes to rely upon the knowledge of others does not excuse him if he knows, or has reason to believe, the representation to be false. Hanscom v. Drul- lard, 79 Cal. 234. (160) Ch. 3] FRAUD. § 118 cases consists in misstating the source or extent of the party's knowledge.^^^ An unqualified statement that a fact exists implies that the speaker knows it to exist, and consequently, if he has no knowledge on the subject, he is guilty of fraud.^'* The rule that, if a man makes statements as of his own knowledge, which are false, he is liable to an action for de- ceit, although he believes them to be true, is confined to cases where a man states as of his own knowledge facts which are susceptible of personal knowledge. It does not apply to a statement of a bona fide opinion of the existence of a fact, even though that opinion is expressed in the form of a posi- tive assertion of the existence of the fact as of the speaker's own knowledge.^®'^ Effect of belief in representation. If the person making false representations believes them to be true, he is not guilty of fraud.^^* And in some juris- 255 Da Lee v. Blackburn, 11 Kan. 190; Tucker v. White, 125 Mass. 344; Humphrey v. Merriam, 32 Minn. 197; Hadcock v. Osmer, 153 N. Y. 604;. Meyer v. Amidon, 45 N. Y. 169; Cabot v. Christie, 42 Vt. 121. 25S Alvarez v. Brannan, 7 Cal. 503; Kirkpatrick v. Reeves, 121 Ind. 280; Bullitt v. Farrar, 42 Minn. 8, 18 Am. St. Rep. 485, 6 L. R. A. 149; Aetna Ins. Co. v. Reed, 33 Ohio St. 283, 294. 257Haycraft v. Creasy, 2 East, 92; Lord v. Goddard, 13 How. (U. S.) 198; State Bank v. Hamilton, 2 Ind. 457; Tucker v. White, 125 Mass. 344; Cowley v. Smyth, 46 N. J. Law, 380; Horrigan v. First Nat. Bank, 9 Baxt. (Tenn.) 137. 258 0rmrod v. Huth, 14 Mees. & W. 651; Redgrave v. Hurd, 20 Ch. Div. 1; Union Pac. Ry. Co. v. Barnes, 12 C. C. A. 48, 64 Fed. 80, 27 U. S. App. 421; Einstein v. Marshall, 58 Ala. 153; Merwin v. Ap- buckle, 81 111. 501; Stone v. Denny, 4 Mete. (Mass.) 151; Cowley V. Dobbins, 136 Mass. 401; Mahurin v, Harding, 28 N. H. 128; Kountze v. Kennedy, 147 N. Y. 124, 29 L. R. A. 360; Cox v. High- ley, 100 Pa. 249. See Loper v. Robinson, 54 Tex. 510, 515. The rule is otherwise in Michigan and in Nebraska. Holcomb v. Noble, 69 Mich. 396; Johnson v. Gulick, 46 Neb. 817, 50 Am. St. Rep. 629. And possibly in Georgia and Wisconsin. Woodruff v. Saul, 70 Ga. 271, Huff cut & W. Am. Cas. Cont. 272; Davis v. Nuzum, 72 Wis. 439. (161) Law of Cont. — 11. § 118 REALITY OP CONSENT. [Ch. 3 dictions this is true, even though the belief is not held on reasonable grounds.^^* In other jurisdictions it is held that, unless the person making a false representation not only be- lieves it to be true, but also has reasonable grounds for such belief, he is guilty of fraud.^®" False statements made by a person expressly as of his own personal knoAvledge, when in fact he is conscious of his ignorance upon the subject, seem to stand in a separate class in reference to the effect of the speaker's belief in their truth. Under such circumstances, his belief does not relieve him from responsibility as for As we have already seen, innocent misrepresentation may furnisli ground for relief in equity to the party misled (page 128, supra), and also at law in the case of certain special contracts (page 130, supra). In a case where a vendor innocently misstated the bound- ary line, in reliance upon an erroneous survey, the court said: "The facts thus proved * * * give a right of recoupment in an action for the balance of the purchase money to the extent of the deficiency in the value of the property purchased. The rights of the purchaser do not rest upon the ground of fraud, actual or constructive, but that, to the extent of the difference in value be- tween the property as it was represented to be and the property conveyed, there is no consideration for his promise." Mulvey v. King, 39 Ohio St. 491. 259Derry v. Peek, 14 App. Gas. 337; Kountze v. Kennedy, 147 N. Y. 124, 29 L. R. A. 360; Salisbury v. Howe, 87 N. Y. 128; Chester V. Comstock, 6 Rob. (N. Y.) 1, affirmed 40 N. Y. 575, note; Young V. Covell, 8 Johns. (N. Y.) 19. And see State Bank v. Hamilton, 2 Ind. 457, 465. But the presence or absence of reasonable grounds is relevant and material for determining whether the belief was really entertained. The iona fides of the party making the repre- sentation cannot be tested except by considering the grounds of his alleged belief. Western Bank v. Addie, L. R. 1 H. L. Sc. 145, 162, 168; Derry v. Peek, 14 App. Cas. 337. 200 Beach v. Bemis, 107 Mass. 498; Sims v. Eiland, 57 Miss. 607; Taylor v. Leith, 26 Ohio St. 428; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Erie City Iron Works v. Barber, 106 Pa. 125, 51 Am. Rep. 508. The following cases sustain the text by implication: Baker V. Trotter, 73 Ala. 277; Cowley v. Dobbins, 136 Mass. 401; Brooks V. Hamilton, 15 Minn. 26 (Gil. 10). And see Trimble v. Reid, 97 Ky. 713, 721; Rowell v. Chase, 61 N. H. 135; Ramsey v. Wallace, 100 N. C. 75; Morrison v. Adone, 76 Tex. 255. (162) Ch. 3J FRAUD. § 119 actual fraud, since in such cases the fraud consists in his falsely representing that he has knowledge, when in fact he is consciously ignorant. ^^^ i 119. Intention to deceive — In general. In order to constitute fraud, a false representation must be made with the intention that it shall be acted upon by some one to his injury, — an intention to deceive must ex- ist."''^ This intention may be gathered by implication.^** If a man knows, either actually or inf erentially, as explained in the preceding section, that his representations are untrue, it is presumed that he entertained an intention to defraud the other party.^^* aTotive. If a man makes a false representation, knowing or even suspecting it to be false, he is guilty of fraud, even though his motives are not bad ; and the fact that he hopes or even -til Mendenhall v. Stewart, 18 Ind. App. 262; Braley v. Powers, 92 Me. 203; Tucker v. White, 125 Mass. 344; Stone v. Denny, 4 Mete. (Mass.) 151; Hadcock v. Osmer, 153 N. Y. 604; Erie City Iron Works V. Barber, 106 Pa. 125, 51 Am. Rep. 508, 513; Mutual Build- ing & Loan Ass'n v. McGee (Tex. Civ. App.) 43 S. W. 1030; Cabot V. Christie, 42 Vt. 121. And see Huinphrey v. Merriam, 32 Minn. 197. 20= Anson, Cont. (4th Ed.) 160; Buschman v. Codd, 52 Md. 202; Humphrey v. Merriam, 32 Minn. 197; Mclntyre v. Buell, 132 N. Y. 192; Stafford v. Newsom, 31 N. C. 507; Butterfield v. Barber, 20 R. I. 99. ="3 Lindauer v. Hay, 61 Iowa, 663; Bigler v. Atkins, 7 N. Y. St. Rep. 235. = by another, or who holds a real or apparent authority over an- other, of such confidence or authority for the purpose of ob- taining an unfair advantage over the other ; (b) in taking an unfair advantage of another's weakness of mind; or (c) in taking a grossly oppressive and unfair advantage of another's necessities or distress.^^^ "The line between due and undue influence, when drawn," it has been said, "must be with full recognition of the liberty due every true owner to obey the voice of justice, the dictates of friendship, of gratitude, and of benevolence, as well as the claims of kindred, and, when not hindered by personal incapacity or particular regvilations, to dispose of his own property according to his own free choice."^** Mere solicitation or modest persuasion and argu- ment and appeals to the affections are not improper.^®^ To avoid a contract, the influence must be exerted to such a de- gree as to destroy free agency.^^'^ § 139. By whom exercised. Ordinarily, a contract cannot be avoided because of undue influence exerted on one of the parties by a stranger to the transaction.^*'^ But it is not necessary for the complaining 583 Proposed Civ. Code N. Y. 231. 584 Wallace v. Harris, 32 Mich. 380, 397. 385 Kelly V. Perrault (Idaho) 48 Pac. 45; Rogers v. Higgins, 57 111. 244; Wise v. Foote, 81 Ky. 10; Schofield v. Walker, 58 Mich. 96; In re Nelson's Will, 39 Minn. 204; Black v. Poljambe, 39.N. J. Eq. 234; Doran v. McConlogue, 150 Pa. 98. 386 Wise V. Foote, 81 Ky. 10; Layman v. Conrey, 60 Md. 286; La- tham V. Udell, 38 Mich. 238; Nelson's Will, 39 Minn. 204. 387 Bentley v. Mackay, 31 Beav. 143, 151, citing Wycherley v. Wy- cherley, 2 Eden, 175; Dent v Long, 90 Ala. 172; Green v. Scranage, 19 Iowa, 461. This rule does not apply to voluntary conveyances. In case there is no consideration for a conveyance procured by un- due influence, the transfer may be avoided by the grantor, even though the influence was exerted by a third person without the grantee's knowledge or authority. Graham v. Burch, 44 Minn. 33; Miller v. Simonds, 72 Mo. 669; Schrader v. Decker, 9 Pa. 14. (199) § 141 REALITY OF CONSENT. [Ch. 3 party to show that the influence was directly employed by the other contracting party. It is enough to avoid the transaction if the influence was exerted by some one who expected to derive benefit from the contract, with the knowledge of the other contracting party, or under circumstances sufiicient to give him notice of it.^^® i 140. Presumption of undue influence. In certain cases, a presumption arises from the circum- stances and conditions of the contracting parties that undue influence was exercised. This presumption may arise either from the inadequacy of the consideration inducing the con- tract sought to be avoided, or from the peculiar relation in which the parties stood with reference to each other. i 141. Same — Inadequacy of consideration. Inadequacy of consideration must ordinarily occur either in conveyances, executed or executory contracts of sale, or in agreements analogous to sale, where there is a subject- matter transferred or dealt with, and a price paid or to be paid. It may exist in the price or in the subject-matter, the latter case being the same as exorbitancy of price. It necessarily implies that the price is either too small or too great.^^^ Where the parties were both in a situation to form an independent judgment concerning the transaction, and acted knowingly and intentionally, mere inadequacy in the price or in the subject-matter, unaccompanied by other in- equitable incidents, is not ordinarily of itself a sufficient ground for canceling an executed or executory contract. If the parties, being in the situation ^nd having the ability 388Berdoe v. Dawson, 34 Beav. 603; Schrader v. Decker, 9 Pa. 14. See Alwood v. Mansfield, 59 III. 496. As to what amounts to notice, see Maitland v. Backhouse, 16 Sim. 58; Tottenham v. Green, 32 Law J. Ch. 201. 330 Pomeroy, Eq. Jur. § 925. (200) Ch. 3] UNDUE INFLUENCE. § 141 to do SO, have exercised their own independent judgment as to the value of the subject-matter, coiirts of equity will not interfere with such valuation.^'"' At the same time, even in the absence of all other circumstances, if the inadequacy is so gross that it shocks the conscience, it may amotmt to proof of undue influence, and will consequently be sufficient ground for canceling a conveyance or contract, whether ex- ecuted or executory. But the case must be extreme in order to call for the interposition of equity on account of mere inadequacy of price.*®^ Where inadequacy of consideration is accompanied by other inequitable incidents, the relief is much more readily granted; but even here the courts have established clearly marked limitations upon the exercise of their remedial functions. The fact that a conveyance or other transaction was made without professional advice or consultation with friends, and was improvident, even cou- pled with inadequacy of price, is not of itself a sufficient ground for relief if the parties were both able to jiidge and to act independently, and did act upon equal terms, and fully understood the nature of the transaction, and there was no undue influence or circumstance of oppression.^®^ When the accompanying incidents are inequitable and show 390Erwm v. Parham, 12 How. (U. S.) 197; Judge v. Wilkins, 19 Ala. 765; Shepherd v. Bevin, 9 Gill (Md.) 32; Lee v. Kirby, 104 Mass. 420; Delafield v. Anderson, 7 Smedes & M. (Miss.) 630; Steele v. Worthington, 2 Ohio, 182; Scovill v. Barney, 4 Or. 288; Cumming's Appeal, 67 Pa. 404; Butler v. Haskell, 4 Desaus. (S. C.) 651; How- ard V. Edgell, 17 Vt. 9; Mayo's Bx'r v. Carrington's Ex'r, 19 Grat. (Va.) 74. ssiByers v. Surget, 19 How. (U. S.) 303; Juzan v. Toulmin, 9 Ala. 662; Macoupin Co. v. People, 58 111. 191; Mitchell v. Jones, 50 Mo. 438; Hodgson v. Farrell, 15 N. J. Eq. 88; Dunn v. Chambers, 4 Barb. (N. Y.) 376; Barnett v. Spratt's Adm'r, 39 N. C. 171; Coffee v. Ruffln, 4 Cold. (Tenn.) 487. 392 Pomeroy, Eq. Jur. § 928; Harrison v. Guest, 6 De Gex, M. & G. 424, 8 H. L. Cas. 481; Juzan v. Toulmin, 9 Ala. 662; Dunn v. Cham- bers, 4 Barb. (N. Y.) 376; Green v. Thompson, 37 N. C. 365. (201) § 142 REALITY OF CONSENT. [Ch. 2r bad faith, however, such as undue advantage or oppression on the part of the one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, pecuniary necessities, and the like, on the part of the other, these circumstances, combined with inadequacy of price, may afford ground for relief in equity; but they do not constitute an absolute and necessary ground for equitable interposition, — they simply operate to throw the burden upon the party seeking to en- force the transaction or claiming the benefits of it of show- ing that the other acted voluntarily, knowingly, intention- ally, and deliberately, and that his consent was not obtained by any oppression, undue infiuence, or undue advantage taken of his condition, situation, or necessities. If the party who obtained the benefit succeeds in showing perfect good faith, the transaction will be sustained ; otherwise, the complaining party is entitled to relief.^®' § 142. Same — Relationship of parties — ^In general. In view of what has been said upon inadequacy of con- sideration, it will appear that, when a man demands equi- table remedies, either as plaintiff or as defendant, seeking to escape the effects of a grant which he has made gratu- itously, or a promise which he has given upon an inadequate consideration, the question arises, what must he show in addition to this in order to raise a presumption of undue in- 393 Cathcart v. Robinson, 5 Pet. (U. S.) 264; Blackwilder v. Love- less, 21 Ala. 371; Maddox v. Simmons, 31 Ga. 512; Fish v. Leser, 69 111. 394; Modisett v. Johnson, 2 Blackf. (Ind.) 431; Stevens v. Ste- vens (Kan. App.) 62 Pac. 714; Todd v. Grove, 33 Md. 188; Oadwal- lader v. West, 48 Mo. 483; Powers v. Hale, 25 N. H. 145; Hall v. Perkins, 3 Wend. (N. Y.) 626, Huffcut & W. Am. Gas. Cont. 311; Henderson v. Hays, 2 Watts (Pa.) 148; Clltherall v. Ogilvie, 1 Desaus. (S. C.) 250; Newland v. Gaines, 1 Heisk. (Tenn.) 720; Mann V. Betterly, 21 Vt. 326; McKinney v. Pinckard's Ex'r, 2 Leigh (Va.) 149. (202) Ch. 3] UNDUE INFLUENCE. § 142 fluence F^"* One class of circumstances calculated to raise this presumption appears to be that the party benefited stood in some such relation to the complaining party as to render him peculiarly subject to influence.^®* And if it is once established that a person who stands in a position of commanding influence towards another has obtained an ad- vantage from him while in that position, it will be pre- sumed, in the absence of rebutting proof, that the advan- tage was obtained by means of that influence; and it is not necessary for the party complaining to show the precise manner in which the influence was exerted. Given a posi- tion of general and habitual influence, its exercise in the particular case is presumed.^®® There are many relations from which the court will presume undue influence, but equi- ty has refvised to commit itself to a definite enumeration of them. The cases in which relief has been granted, the more important of which will now be considered in detail, are regarded merely as instances of the application of a prin- ciple applying to all the variety of relations in which do- minion may be exercised by one person over another. ^^^ Same — Family relations. Where the contracting parties are members of the same family, so that one exercises a substantial preponderance in the family councils, either from age, character, or other 3M Anson, Cont. (4th Ed.) 166. 395 Anson, Cont. (4th Ed.) 166; Smith v. Kay, 7 H. L. Cas. 750, 779; Green v. Roworth, 113 N. Y. 462. 396 Pollock, Cont. 557; Woodbury v. Woodbury, 141 Mass. 329. ssf Smith V. Kay, 7 H. L. Cas. 750, 779; Huguenin v. Baseley, 14 Ves. 273, 285; Shipman v. Furniss, 69 Ala. 555, 564; Todd v. Grove, 33 Md. 188, 194; McClure v. Lewis, 72 Mo. 314; Haydock v. Haydock's Ex'rs, 34 N. J. Eq. 570, 574; Cowee v. Cornell, 75 N. Y. 91, 101; Dea- ton v. Munroe, 57 N. C. 39, 41; Long v. Mulford, 17 Ohio St. 484, 504; Bayliss v. Williams, 6 Cold. (Tenn.) 440, 442; Varner v. Carson, 59 Tex. 303, 307. (203) § 142 REALITY OF CONSENT. [t^h. 3 circumstance, a presumption arises that the one exercised un- due influence over the other in order to obtain the benefits he has received under the contract, and the burden is cast upon the former to show that the transaction was fair and fpgg_398 j^i^jg j,y|g -g most often illustrated in the case of contracts between parent and child,^^^ or guardian and ward,*"" or between persons occupying relations in which there is a power analogous to that of parent or guardian.'*"^ While a court of equity will not interfere to prevent an act even of bounty between parent and child or persons stand- ing in a like relation,*"^ yet it will take care that the child is placed in such a position as will enable him to form an entirely free and unfettered judgment, independent of any sort of control.*"^ The presumption of undue influence may arise, not only in favor of the child, but as well in favor of the parent, where, from age, sickness, or other cause, he s^s Sisters: Harvey v. Mount, 8 Beav. 439; Watkias v. Brant, 46 Wis. 419. Brother and sister: Million v. Taylor, 38 Ark. 428; Thornton v. Ogden, 32 N. J. Eq. 723; Sears v. Sliafer, 6 N. Y. 268. See Odell v. Moss, 130 Cal. 352. Uncle and nephew: Hall v. Per- kins, 3 Wend. (N. Y.) 626, HufCcut & W. Am. Cas. Cont. 311; Gra- ham V. Little, 56 N. C. 152. 399 Turner v. Collins, 7 Ch. App. 329; Jenkins v. Pye, 12 Pet. (U. S.) 241; Sayles v. Christie, 187 111. 420; Williams v. Williams, 63 Md. 371; Ashton v. Thompson, 32 Minn. 25; Miller v. Simonds, 72 Mo. 669; Hiskey's Appeal, 107 Pa. 611. 100 Hatch V. Hatch, 9 Ves. 292 ; Malone v. Kelley, 54 Ala. 532 ; Mc- Parland v. Larkin, 155 111. 84; Ashton v. Thompson, 32 Minn. 25; Meek V. Perry, 36 Miss. 190; Garvin's Adm'r v. Williams, 44 Mo. 465, 50 Mo. 206; Wade v. Pulsifer, 54 Vt. 45. 101 Highberger v. Stiffler, 21 Md. 338; Berkmeyer v. Kellerman, 32 Ohio St. 239. Stepfather and stepchild: Bradshaw v. Yates, 67 Mo. 221. Grandparent and grandchild^- Brown v. Burbank, 64 Cal. 99. Uncle and niece: Archer v. Hudson, 7 Beav. 551. Position analo- gous to guardianship: Hemphill v. Holford, 88 Mich. 293. 102 Archer v. Hudson, 7 Beav. 551, 560; Jenkins v. Pye, 12 Pet. (U. S.) 241. 403 Archer v. Hudson, 7 Beav. 551, 560. (204) Ch. 3] "UNDUE INFLUENCE. § 142 is placed under the domination of the child.*""* The rela- tion of husband and wife has been held to create a pre- sumption of undxie influence upon the part of the man;*"® and the like has been held as to persons engaged to be mar- ried,*"" and also as to persons living together as man and wife.*''" The presumption may arise in favor of the man^ as well as the woman.*"* Same — Confidential relations. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confldence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the ex- pense of the confiding party, the person so availing him- self of his position will not be permitted to retain the ad- vantage, although the transaction could not have been impeached if the confidential relation had not existed.*"^ In *04 Highberger v. Stiffler, 21 Md. 338; Duncombe v. Richards, 46 Mich. 166; Bowe v. Bowe, 42 Mich. 195; Graham v. Burch, 44 Minn. 33; McClure v. Lewis, 72 Mo. 314; Green v. Roworth, 113 N. Y. 462; Graves y. White, 4 Baxt. (Tenn.) 38. See Lanfair v. Thompson, 112 Ga. 487; Oard v. Oard, 59 Hi. 46. Aunt and nephew: Griffiths V. Robins, 3 Madd. 191. 405Golding v. Golding, 82 Ky. 51; Stiles v. Stiles, 14 Mich. 72; Darlington's Appeal, 86 Pa. 512. Contra, as to presumption: Grigby V. Cox, 1 Ves. Sr. 517; Nedby v. Nedby, 5 De Gex & S. 377; Hardy V. "Van Harlingen, 7 Ohio St. 208; Barle v. Chace, 12 R. I. 374. 106 Cobbett V. Brock, 20 Beav. 524; Page v. Home, 11 Beav. 227; Rockafellow v. Newcomb, 57 HI. 186; Pierce v. Pierce, 71 N. Y. 154. And see Kline v. Kline, 57 Pa. 120. lor Coulson v. Allison, 2 De Gex, F. & J. 521, 524; Shipman v. Fur- niss, 69 Ala. 555, 565; Hanna v. "Wilcox, 53 Iowa, 547; Leighton v. Orr, 44 Iowa, 679. But see Farmer v. Farmer, 1 H. L. Cas. 724, 752. 408 Shipman v. Furniss, 69 Ala. 555, 565; Rockafellow v. Newcomb, 57 111. 186; Leighton v. Orr, 44 Iowa, 679; Hanna v. "Wilcox, 53 Iowa, 547; Turner v. Turner, 44 Mo. 535. «9 Tate v. "Williamson, 2 Ch. App. 55, 61. (205) § 142 REALITY OF CONSENT. [Ch. 3 other words, if a relation of confidence exists between the contracting parties, whether arising out of family ties or otherwise, a presumption of undue influence arises.*^" The most frequently occurring of these relationships, other than the family relations, are those of trustee and beneficiary,*^^ principal and agent,"*^^ attorney and client,*^^ doctor and pa- tient,*^* and various spiritual relationships,*^® but, as has 410 Pollock, Cont. 560; Parfitt v. Lawless, L. R. 2 Prob. & Div. 462, 468; Odell v. Moss, 130 Gal. 352. *ii Nichols V. McCarthy, 53 Conn. 299; Jones v. Lloyd, 117 111. 597; Ward V. Armstrong, 84 111. 151; Smith v. Townshend, 27 Md. 368; Tatum V. McLellan, 50 Miss. 1; Spencer & Newbold's Appeal, 80 Pa. 317; Clarke v. Deveaux, 1 Rich. (S. C.) 172. 412 Burke v. Taylor, 94 Ala. 330 ; Hoppin v. Tobey's Ex'rs, 9 R. I. 42. See Gillett v. Peppercorne, 3 Beav. 78; Jeffries v. Wiester, 2 Sawy. 135, Fed. Cas. No. 7,254; Wilbur v. Lynde, 49 Cal. 290; Byrd Y. Hughes, 84 111. 174. *i3 Gibson v. Jeyes, 6 Ves. 266; Yonge v. Hooper, 73 Ala. 119; St. Leger's Appeal from Probate, 34 Conn. 434; Jennings v. McConnel, 17 111. 148; Shirk v. Neible, 156 Ind. 66; Ryan v. Ashton, 42 Iowa, 365; GreenHeld's Estate, 14 Pa. 489; McMahan v. Smith, 6 Heisk. (Tenn.) 167. See Kisling v. Shaw, 33 Cal. 425; Zeigler v. Hughes, 55 111. 288; Yeamans v. James, 27 Kan. 195; Dunn v. Record, 63 Me. 17; Merryman v. Euler, 59 Md. 588; Whitehead v. Kennedy, 69 N. Y. 462. 414 Ahearne v. Hogan, Drury, 310 ; Dent v. Bennett, 4 Mylne & C. 269; Woodbury v. Woodbury, 141 Mass. 329; Cadwallader v. West, 48 Mo. 483; Crispell v. Dubois, 4 Barb. (N. Y.) 393. See Wat- son V. Mahan, 20 Ind. 223. However, there is nothing in the rela- tion of medical adviser and patient that per se forbids the accept- ance of a gift to the adviser by the patient. Audenreid's Appeal, 89 Pa. 114. And see Blackie v. Clark, 15 Beav. 595. 415 Allcard v. Skinner, 36 Ch. Div. 145 ; Huguenin v. Baseley, 14 Ves. 273; Nottidge v. Prince, 2 Giff. 246; Nachtrieb v. Harmony Set- tlement, 3 Wall. Jr. 66, Fed. Cas. No. 10,003; Drake's Appeal from Probate, 45 Conn. 9. Spiritualist and ■medium: Lyon v. Home, L. R. 6 Eq. 655; Connor v. Stanley, 72 Cal. 556; Leighton v. Orr, 44 Iowa, 679. Confessor and penitent: Parfitt v. Lawless, L. R. 2 Prob. & Div. 462, 468; Dent v. Bennett, 7 Sim. 539, 546; Ross v. Con- way, 92 Cal. 632; Finegan v. Theisen, 92 Mich. 173; Ford v. Hen- nessy, 70 Mo. 580; Caspari v. First German Church of the New Jerusalem, 82 Mo. 649, affirming 12 Mo. App. 293; Corrigan v. (206) Ch 3] UNDUE INFLUENCE. § 142 been said, equity has not attempted to define them, and there are many others.*^® Same — Termination of relation. Where a relation of confidence is once established, either some positive act or some complete case of abandonment must be shown, in order to determine it. It will not be con- sidered as determined while the influence derived from it can reasonably be supposed to remain.*^^ Thus, if the in- fiuence had its inception in the legal authority of a parent or guardian, it is presumed to continue for some time after the termination of the legal authority, until there is a com- plete emancipation of the child, so that a free and unfettered judgment may be formed, independent of any sort of con- trol.^^^ And a like rule applies to all other confidential relations, whether arising from family ties or otherwise. '^^^ PironI, 48 N. J. Ea. 607; Marx v. McGlynn, 88 N. Y. 357. However, a priest or minister of the gospel is not barred from accepting a gift from a parishioner, if it is freely made. Greenfield's Estate, 24 Pa. 232. ^18 See note 397, supra. The mere relation of master and servant -or landlord and hoarder does not raise an implication of confidential relationship. Doran v. McConlogue, 150 Pa. 98. 41' Rhodes v. Bate, 1 Ch. Apj). 252, 260; Holman v. Loynes, 4 De Gex, M. & G. 270, 283; Taylor v. Taylor, 8 How. (U. S.) 183; Ashton V. Thompson, 32 Minn. 25; Garvin's Adm'r v. Williams, 50 Mo. 206; Mason v. Ring, 3 Abh. Dec. (N. Y.) 210; Womack v. Austin, 1 Rich. (S. C.) 421. After the relationship has terminated, and its influ- ence has ceased to exist, the parties may deal with each other the same as with strangers. Wickiser v. Cook, 85 111. 68. A contract made on the advice of counsel twenty months after the trust relation Tvas definitely terminated is not presumed to have been induced by undue influence. Banner v. Rosser, 96 Va. 238. 418 Archer v. Hudson, 7 Beav. 551, 560; "Wright v. 'Vanderplank, 8 De Gex, M. & G. 133, 137, 146; Taylor v. Taylor, 8 How. (U. S.) 183; Ferguson v. Lowery, 54 Ala. 510; Noble's Adm'r v. Moses, 81 Ala. 530; Ashton v. Thompson, 32 Minn. 25; Garvin's Adm'r v. Williams, -50 Mo. 206; Miller v. Simonds, 72 Mo. 669. 41!) See cases cited in note 417, supra. (207) t; 143 REALITY OP CONSENT. [Ch 3 § 143. Mental weakness. Undue influence may consist in taking an undue advan- tage of another's weakness of mind. ''Mental weakness," as the term is here used, does not mean total incapacity. As we shall see in another place, a contract entered into by a person non compos mentis is frequently either void, or void- able at his election, regardless of whether he was imposed upon by the other party.*^" But that effect does not attach to contracts of a person who, though mentally infirm, yet has sufficient mind and understanding to enter into a con- tract. If his consent is free, and he acts understandingly, a weak-minded person is bound by his contracts the same as any other.*^^ But if one party to the contract is of superior will, and he takes advantage of the other's weakness of mind, whether that weakness arises from age, sickness, or any other cause, and induces him to enter into an unfair contract, equity does not regard the consent as free, and the transac- tion will be set aside.*^^ *2o Page 292, infra. 421 Nance v. Stockburger, 111 Ga. 821; Stone v. Wiebern, 83 111. 105; Farnam v. Brooks, 9 Pick. (Mass.) 212; West v. Russell, 48 Mich. 74. See page 284, infra, for a discussion of what constitutes mental incapacity. Mere mental weakness does not vitiate a transaction. If there is a legal capacity, there cannot be an equita- ble incapacity apart from fraud or undue influence. Rippy v. Gant, 39 N. C. 443. 422 Harding v. Wheaton, 2 Mason, 378, Fed. Gas. No. 6,051; Kelly's Heirs v. McGuire, 15 Ark. 555; Taylor v. Atwood, 47 Conn. 498; McCormick v. Malin, 5 Blackf. (Ind.) 509; Oakey v. Ritchie, 69 Iowa, 69; Hill v. Miller, 50 Kan. 659; Todd v. Grove, 33 Md. 188; McDaniel v. McCoy, 68 Mich. 332; Haydock v. Haydock's Ex'rs, 34 N. J. Eq. 570; Fishburne v. Ferguson's Heirs, 84 Va. 87. "Whenever there is great weakness of mind, though not amounting to absolute disqualification, arising from age, sickness, or other cause, in a person executing a conveyance, and the consideration is grossly in- adequate, imposition or undue influence will be inferred, and a court of equity will set the conveyance aside. AUore v. Jewell, 94 U. S. 506; Griffith v. Godey, 113 U. S. 89; Moore v. Moore, 56 Cal. (208) Ch. 3] UNDUE INFLUENCE. § 144 § 144. Necessities — Distress — Ignorance — ^ImproTideiwie — Mor- al weakness. The doctrine of undue influence lias been extended to a class of cases from which the element of personal influence is altogether absent, as where a person is driven into a con- tract by his necessities or distress.^^^ In ordinary cases, each party to a contract must take care of his own interests, and it will not be presumed that undue advantage has been taken on either side;*^*' but in the case of dealings with persons under pressure of necessity or distress, without ade- quate protection, the court will look, not merely to the acts of the parties, but to the reasonableness of the transaction under all the circumstances of the case, and, if it appears that one has taken advantage of the unprotected situation of the other to drive a hard bargain, the transaction will not be allowed to stand.*'^ This rule is oftefi applied in favor of 89; Cadwallader v. West, 48 Mo. 483; Rider v. Miller, 86 N. Y. 507; Tracey v. Sacket, 1 Ohio St. 54. Where a person, from infirmity and mental weakness, is likely to be easily influenced by others, transactions entered into by him without independent advice will be set aside in equity, if there is any unfairness in them. Allore v. Jewell, 94 U. S. 506; Buffalow v. Buflalow, 22 N. C. 241. While mere mental weakness, standing alone, does not vitiate a contract, yet mental infirmity, coupled with inadequacy of consideration, will justify the setting aside of the contract. Scovill v. Barney, 4 Or. 288. To avoid a contract as for undue influence exercised upon a person who is mentally infirm, it must appear that such person had sufficient mind to know what he was doing when he entered into the contract. If he did not have legal capacity, the contract may be voidable for that reason, but not because of undue influence, since undue influence presupposes the existence of a contracting mind. Kelly v. Perrault (Idaho) 48 Pac. 45. 423 Anson, Cont. (4th Ed.) 168. *24 0'Rorke v. Bolingbroke, 2 App. Cas. 814, 823; Parmelee v. Cam- eron, 41 N. Y. 392. *25 Anson, Cont. (4th Ed.) 169; Wheeler v. Smith, 9 How. (U. S.) 55; Lester T. Mahan, 25 Ala. 445; Brueggestradt v. Ludwig, 184 111. 24; Shirk v. Neible, 156 Ind. 66; Peckham y. Van Bergen, 10 N. D. 43; McCants v. Bee, 1 McCord, Bq. (S. C.) 383. If a lender takes ad- (209) Law of Cont. — 14. § 144 REALITY OF CONSENT. [Ch. 3 expectant heirs, reversioners, and holders of other expectant interests. If a man takes advantage of the present poverty or imagined distress of the owner of an expectant interest, either to purchase that interest for an inadequate price, or to extort from him an exorbitant rate of interest upon a loan, equity will afford relief.*^® And on similar grounds vantage of the borrower's necessities to compel him to buy a tract of land at more than double its value, in connection with the loan, equity will rescind the contract. Hough's Adm'rs v. Hunt, 2 Ohio, 495. Again, if a conveyance is obtained upon an inadequate con- sideration by taking advantage of the grantor's ignorance and un- founded fears that, if he does not make the conveyance, the property will be taken on execution, the transfer will be set aside as uncon- scionable. Wooley V. Drew, 49 Mich. 290. So, if advantage is taken of the mental distress of a bereaved wife to hasten her into a voluntary conveyance, she may avoid the deed. Moore v. Moore, 81 Cal. 195. If a woman, on the eve of her marriage, is induced by threats of imprisonment of her intended husband, and by fear that the marriage will be prevented, to promise to pay the intended hus- band's debts, she is not bound. Ran v. Zedlitz, 132 Mass. 164. The beneficiary in a policy of life insurance assigned her interest in it for value, and, upon insured's death, the assignee desired her to sign a release on the policy, so as to enable him to collect the pro- ceeds without delay and costly litigation. This the assignor re- fused to do, except upon the assignee's agreement to pay her more than one-fourth of the face of the policy. It was held that a prom- ise of payment made by the assignee under the stress of these cir- cumstances was not binding upon him. Kelley v. Caplice, 23 Kan. 474; Caplice v. Kelley, 27 Kan. 359. Taking advantage of mere improvidence of the other contracting party does not, of itself, vitiate the contract. Pollock, Cont. 591; Parmelee v. Cameron, 41 N. Y. 392. But improvidence, coupled with other circumstances, may furnish ground for relief. Williams v. Williams, 63 Md. 371; Butler v. Duncan, 47 Mich. 94; McKinney v. Pinckard's Bx'r, 2 Leigh (Va.) 149. Some courts treat coercion by means of threats against a near relative as undue influence, rather than duress. Badie v. Slimmon, 26 N. Y. 9. See page 189, supra. 426Pomeroy, Eq. Jur. §§ 953, 954; Wood v. Abrey, 3 Madd. 417; Beynon v. Cook, 10 Ch. App. 389; Earl of Aylesford v. Morris, 8 Ch. App. 484; O'Rorke v. Bolingbroke, 2 App. Cas. 814; Earl of Chester- field V. Janssen, 2 Ves. Sr. 125, 1 White & T. Lead. Cas. Eq. 590; McCormick v. Malin, 5 Blackf. (Ind.) 509; Boynton v. Hubbard, 7 (210) Ch. 3] UNDUE INFLUENCE. § 145 the court will avoid unconscionable agreements between a mortgagor and mortgagee, as, for instance, a stipulation waiving the right of redemption.^ ^^ In some states the leg- islature has taken steps to prevent extortion in connection with loans of money by enacting usury laws which declare that promises to pay more than a certain rate of interest shall be void. § 145. Effect of undue influence. The effect of undue influence is to render the contract not void, but voidable at the option of the party oppressed.^^* The rules respecting the right to rescind the contract fol- low, so far as equity is concerned, the rules which apply to Mass. 112, 119; Butler v. Duncan, 47 Mich. 94; Davidson v. Little, 22 Pa. 245; Butler v. Haskell, 4 Desaus. (S. C.) 651; Nimmo v. Davis, 7 Tex. 26; McKinney v. Pinckard's Ex'r, 2 Leigh (Va.) 149. The rule does not apply to sales of interests that have become vested. Parme- lee V. Cameron, 41 N. Y. 392; Davidson v. Little, 22 Pa. 245; Mayo's Ex'r V. Garrington's Ex'r, 19 Grat. (Va.) 74, 107. An agreement made. by an expectant heir or legatee in regard to a future contingent estate will be enforced in equity, if fairly made upon a valuable consideration. Jenkins v. Pye, 12 Pet. (U. S.) 241; Parsons v. Ely, 45 111. 232; Bacon v. Bonham, 33 N. J. Eq. 614; Mastin v. Marlow, 65 N. C. 695. However, the burden of showing fairness is upon the purchaser. Bacon v. Bonham, 33 N. J. Eq. 614. 427 Thus, a borrower upon the security of his property is not bound by any agreement, made at the time of the transfer, whereby he waives the right to redeem. Peugh v. Davis, 96 U. S. 332; Pierce v. Robinson, 13 Cal. 116, 125; Esham v. Lamar, 10 B. Mon. (Ky.) 43; Dorrill v. Eaton, 35 Mich. 302; Clark'v. Henry, 2 Cow. (N. Y.) 324; Bunacleugh v. Poolman, 3 Daly (N. Y.) 236; Rankin V. Mortimere 7 Watts (Pa.) 372. Nor will the mortgagee be al- lowed to obtain a collateral advantage, under color of a mortgage, which does not strictly belong to the contract. Leith v. Irvine, 1 Mylne & K. 277; Jennings v. Ward, 2 Vern. 520; Broad v. Selfe, 11 Wkly. Rep. 1036, 9 Jur. (N. S.) 885; Chambers v. Goldwin, 9 Ves. 254, 271; Butler v. Duncan, 47 Mich. 94; Hough's Adm'rs v. Hunt, 2 Ohio, 495. 428 Pollock, Cont. 553, 593; Anson, Cont. (4th Ed.) 170. See cases cited in the two succeeding notes. (211) g 145 REALITY OP CONSENT. [Ch. 3 contracts obtained through fraud, but with one noticeable qualification. In the case of fraud, so soon as the misdoing is discovered, the parties are placed on equal terms, and an affirmance of the contract binds the party who was origi- nally defrauded. But in the case of undue influence it is not a particular statement, but a combination of circum- stances, which constitutes the vitiating element in the con- tract; and unless it is clear that the will of the injured party is relieved from the dominant influence under which it acted, or that the imperfect knowledge with which such party entered into the contract is siipplemented by the full- est assistance and information, an affirmance of the transac- tion will not bind him.'*^^ Subject to this qualification, the right to set aside a contract voidable on the ground of undue influence may be lost either by express confirmation or by delay amounting to proof of acquiescence.''^'' 429 Anson, Cont. (4th Ed.) 170; Moxon v. Payne, 8 Ch. App. 881; Savery v. King, 5 H. L. Cas. 627, 664; Rau v. Von Zedlitz, isz Mass. 164. iso Express confirmation: Stump v. Gaby, 2 De Grex, M. & G. 623; Morse V. Royal, 12 Ves. 355; Rogers v. Hlggins, 57 111. 244. Acqai- €sce«ce; Wrigbt v. Vanderplank, 8 De Gex, M. & G. 133, 147; Turn- er V. Collins, 7 Ch. App. 329; Jenkins v. Pye, 12 Pet. (U. S.) 241; Wills V. Wood, 28 Kan. 400; Price's Appeal, ,54 Pa. 472. ■ (212) CHAPTER IV. CAPACITY OF PARTIES. I. In GE>iEKAL. § 146. In General. II. States. § 147. In General. III. COKPOEATIONS. § 147a. In General. 148. Contractual Capacity of Corporations Aggregate. 149. Same — ^Agents. 150. Same — Seal. 151. Same — ^Charter Limitations. 152. Same — Ultra Vires Contracts. IV. Infaxts — Contractual Capacity. § 153. Infancy Defined. 154. Contractual Capacity. 155. Contracts Void and Voidable. 156. Valid Contracts. 157. Quasi Contracts. V. Same — Liability for Necessaries. § 158. In General. 159. Necessaries Defined. 160. Same — Money Advanced. 161. Same — Necessaries as to Business. 162. Same — Necessaries as to Property. 163. Same — Counsel Pees. 164. Necessities of Infant. 165. Same — Province of Court and Jury. 166. Necessities of Infant's Family. 167. Express Contracts for Necessaries. (213) CAPACITY OF PARTIES. [Ch. 4 VI. Same — Liability foe Tobts Arising Out of Contract. § 168. In General. VII. Same — Ratification and Avoidance — In General. § 169. In General. 170. Right of Election. 171. Necessity for Ratification or Disaffirmance. VIII. Same — Sufficiency of Ratification. § 172. What Constitutes Ratification. IX. Same — Sufficiency of Avoidance. § 173. What Constitutes Disaffirmance. X. Same — Limits of Right to Disaffirm. § 173a. In General. 174. Restoration of Status Quo. 175. Ratification or Disaffirmance in Part. 175a. Time of Avoidance. XI. Same — Effect of Ratification or Disaffirmance. § 175b. In General. 176. Rights of Third Persons. XII. Persons Non Compotes Mentis — What Constitutes Mental Unsoundness. § 177. Insanity in General. 178. Weakness of Mind. 179. Idiocy. 180. Deafness — Dumbness — ^Blindness. 181. Senility. 182. Partial Derangement. 183. Temporary Derangement — Drunkenness. 184. Lucid Intervals. XIII. Same — Contractual Capacity. § 185. In General. 186. Void Contracts. 187. Same — Adjudication of Unsoundness. 188. 'Quasi Contracts. 189. Same^Contracts for Necessaries. XIV. Same — Ratification and Avoidance. § 190. In General. (214) Ch. 4] IN GENERAL. § 146 191. Who may Avoid Contract. 192. Restoration of Status Quo — Innocency of Sane Party. 193. Same — Restitution of Consideration. 194. Rights of Third Persons. XV. Spendthkifts. § 195. In General. XVI. Makbied Women. § 196. Contractual Capacity at Law. 197. Same — Exceptions. 198. Contractual Capacity in Equity. 199. Contractual Capacity under the Married Women's Acts. XVII. Aliens. § 199a. In General. 200. Allen Friends. 201. Alien Enemies. XVIII. Convicts, Outlaws, and Bxcommtjnicants. § 202. Convicts and Outlaws. 203. Excommunicants. XIX. Slaves. § 204. In General. XX. Babristees, Physicians, and Aebiteatoes. '■* § 205. In General I. In Geneeal. § 146. In general. The typical person who is assumed as a factor in dealing witn rights and liabilities is, in the first place, a human be- ing, as opposed to what is called an "artificial person," and he is, in the next place, unaffected by any such peculiarity as infancy, insanity, coverture, and so forth. Deviating from this standard type of personality, there are certain per- sons whom the law, for one reason and another, invests with certain privileges or subjects to certain disabilities with ref- (215) § 147 CAPACITY OF PARTIES [Ch. 4 erence to their rights and duties. Jt is with the legal ca- pacity of these abnormal persons to make contracts, and with their rights and liabilities in regard to the enforcement of their contracts, that the present chapter will be occupied. For the purpose of determining its contractual cai^acity, a state may be regarded as an artificial person. The only other artificial person with which we have to deal is the cor- poration. We shall next consider, in their order, infants, persons non compotes mentis, spendthrifts, married women, aliens, convicts, outlaws, excommunieants, slaves, barristers, physicians, and arbitrators. And first of the contractual capacity of a state. II. States. As an incident to the general right of sovereignty, a state may enter into contracts, which it may enforce in a court of justice, subject to the same rules as govern the enforcement of contracts between individuals. However, the other party has no remedy to enforce the contract unless the state provides him one. In making contracts, a state may act through agents, who cannot bind it unless actually authorized, and whose authority must be strictly executed. § 147. In general. It should be observed at the beginning of the discussion of the power of a state to enter into a contract that the word "state," as employed in this connection, is used broadly as signifying any sovereign power. Accordingly, the term in- cludes not only the several states of the Union, but also the United States and the various foreign governments. With these preliminary remarks, it may be announced as a gen- eral rule of law that a state may bind itself by contract the same as an individual. This power is recognized by all en- lightened peoples as an incident to the general right of sov- (216) Ch. 4] STATES. § 147 ereignty ;* aad it is coextensive with the duties and powers of government, — every contract which subserves to the per- formance of a governmental duty may rightfiiUy be niade.^ In constitiitional governments, such as our federal govern- ment and the several states of the Union, the right of the state to contract must be exercised in conformity to such restric- tions as the people have seen fit to adopt as part of the funda- mental law.^ In making a contract, a state may act through its agents or oiiicers. The power of an agent of the go^-ern- ment must be strictly executed;* and, furthermore, a state, unlike an individual principal, is not ordinarily bound by contracts entered into on its behalf by an agent, even though he acts within the scope of his apparent authority, unless the 11 Bl. Comm. 234, 243, 257, 336; 2 Bl, Comm. 346, 347; United States v. Tingey. 5 Pet. (XJ. S.) 115; Danolds v. State, 89 N. Y. 36, 44. Thus, one of the United States may contract with an indi- vidual, and two or more of the states may enter into a contract inter se, with the consent of congress. Const. U. S. art. 1, § 10; Green v. Biddle, 8 Wheat. (U. S.) 1; Chesapeake & O. Canal Co. V. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1. A contract may be entered into hy a state either through the instrumentality of Its ad- ministrative officers or by act of legislature. United States v. Tin- gey, 5 Pet. (U. S.) 115; Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1. A state of the Union cannot divest itself of its general attributes of sovereignty, however. It cannot enter into a contract not to exercise its legislative or judicial functions or its elective rights, since this would change the form of govern- ment guarantied by the federal constitution. Spooner v. McCon- nell, 1 McLean, 337, 348', Fed. Cas. No. 13,245. All enlightened na- tions permit, as of comity, foreign governments with whom they are at peace to make contracts within their territorial jurisdiction, and to enforce them and those made elsewhere in their tribunals. War intercepts these privileges for the time being. Bishop, Cont. § 997. 2 United States v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747; United States v. Lane's Adm'rs, 3 McLean. 365, Fed. Cas. No. 15,559 ; Floyd Acceptances, 7 Wall. (U. S.) 666. 3 State V. Little Rock, M. R. & T. Ry. Co., 31 Ark. 701. * Den d. Osborne v. Tunis. 25 N. J. Law, 633. (217) § 147 CAPACITY OF PARTIES. [Ch. 4 contract is actually authorized,^ since it is the duty of per- sons dealing with public officers to inquire as to their power and authority to bind the government.* It should be noted in this connection that, while a state has capacity to enter into a binding contract with a subject, yet the subject has no remedy whereby he may enforce the contract unless the state provides him one. This was the common-law rule,^ and it is in force in this country.* A suit against the offi- 6 Floyd Acceptances, 7 Wall. (U. S.) 666; People v. Talmage, 6 Cal. 256; Martin's Adm'r v. United States, 4 T. B. Mon. (Ky.) 487; City of Baltimore v. Reynolds, 20 Md. 1; Delafield v. State, 2 Hill (N. Y.) 159; State v. Bevers, 86 N. C. 588; State v. Hastings, 10 Wis. 518. 6 Peirce v. United States, 1 Ct. CI. 270 ; Hume v. United States, 132 U. S. 406; Woodward v. Campbell, 39 Ark. 580. TWlllion V. Berkley, 1 Plow. 223, 241; Walsingham's Case, 2 Plow. 547, 553; Thomas v. Reg., L. R. 10 Q. B. 31. If the state sought to enforce the contract in a court of law, however, the subject, in case judgment went against him, was entitled to sue out a writ of error. Anonymous, 1 Salk. 264. And see Hurlston's Case, 2 Leon. 194. s Suit against the United States: United States v. Clarke, 8 Pet. (U. S.) 436; Ferris v. Montgomery Land & Imp. Co., 94 Ala. 557. See Bowker v. United States (D. C.) 105 Fed. 398. Suit against a state of the Union: Hans v. Louisiana, 134 U. S. 1; People v. Talmage, 6 Cal. 256; Pattison v. Shaw, 6 Ind. 377; Metz v. Soule, 40 Iowa, 236; Asbell v. State, 60 Kan. 51; Troy & G. R. Co. v. Com., 127 Mass. 43; Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225, Walk. (Mich.) 9; Michigan State Bank v. Hammond, 1 Doug. (Mich.) 527; Wllliamsport & E. R. Cq^v. Com., 33 Pa. 288; Treas- urers V. Cleary, 3 Rich. Law (S. C.) 372; Houston v. State, 98 Wis. 481. The courts of a state have no jurisdiction over a foreign minister or ambassador. His person is inviolable, and he is not subject to either civil or criminal process. And this rule applies likewise to his diplomatic attendants, and to his family and serv- ants. United States v. Benner, Baldw. 234, Fed. Cas. No. 14,568; Ex parte Cabrera, 1 Wash. C. C. 232, Fed. Cas. No. 2,278; United States V. Lafontaine, 4 Cranch, C. C. 173, Fed. Cas. No. 15,550. While a court would have no power to compel a state to perform a decree, yet it may permit the state to be made a party defendant, so as to enable it to appear, if it so desires, and protect such rights (218) Ch. 4] STATES. § 147 cers of a state to compel them to perform its contracts, or to restrain them from committing acts which would consti- tute a breach of its contracts, is a suit against the state it- self, within the meaning of this rule, and accordingly it cannot be allowed." The state may waive this exemption from suit either in the particular case or generally in favor of all persons dealing with it.-'" A remedy against the Unit- ed States has been given mainly by the establishment of the court of claims, and in most of the states of the Union a provision exists whereby the state is made amenable to some judicial tribunal at the instance of its citizens. Indeed, this privilege may be said to exist in all civilized countries.^ ^ The power of a state to enter into a contract with a subject carries with it the right to enforce the contract in a court of justice.-'^ And when a state comes into its own courts as a as it may have as one of the beneficiaries of the fund in suit. Garr v. Bright, 1 Barb. Ch. (N. Y.) 157; Manning v. State of Nica- ragua, 14 How. Pr. (N. Y.) 517. Since the state may be sued only by its own consent, it may therefore Impose such restrictions and limitations on the right of suit as it pleases. Nichols v. United States, 7 Wall. (U. S.) 122, 126; Finn v. United States, 123 U. S. 227, 232; Wright v. State Board of Liquidation, 49 La. Ann. 1213. 9 Pennoyer v. McConnaughy, 140 U. S. 1, 9 ; In re Ayers, 123 U. S. 443; North Carolina v. Temple, 134 U. S. 22; Cope v. Hastings, 183 Pa. 300; Taylor v. Hall, 71 Tex. 206. A bill against state agents whose object is indirectly to compel specific performance of a con- tract by enjoining acts which constitute breaches is a suit against the state, and hence is not maintainable. In re Ayers, 123 U. S. 443. The mere fact that the state is interested does not take away the right to sue its officers, however. Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225, Walk. (Mich.) 9; Michigan State Bank v. Ham- mond, 1 Doug. (Mich.) 527. 10 Hans V. Louisiana, 134 U. S. 1, 17 ; United States v. Cumming, 130 U. S. 452; Carter v. State, 49 La. Ann. 1487. 11 State V. Curran, 7 Eng. (Ark.) 321, 340. 12 United States v. Holmes (C. C.) 105 Fed. 41; United States v. Barker, 1 Paine, 156, Fed. Cas. No. 14,517; People v. City of St. Louis, 5 Oilman (111.) 351; State v. Ohio Oil Co., 150 Ind. 21; State V. Grant, 10 Minn. 39 (Gil. 22); Spencer v. Brockway, 1 Ohio, 259; (219) § 147 CAPACITY OF PARTIES. [Ch. 4 suitor, ils rights and equities are to be determined on their merits by the same rules as govern those of private individ- uals.^^ While no state of the American Union may he com- pelled hy suit to perform its contracts, any attempt on its part to violate property or rights acquired under its con- traels may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void.'"' III. CORPOEATIOXS. Subject to important limitations, a corporation has legal ca- pacity to make contracts. state V. Burksholder, 30 W. Va. 593. This right exists in favor of foreign states also. They may sue in our courts to enforce their rights. Anson, Cont. (4th Ed.) 104; Hullet v. King of Spain, 1 Dow & C. 169, 175; King of Prussia v. Kuepper's Adm'r, 22 Mo. 550; Re- public of Mexico V. Arrangois, 11 How. Pr. (N. Y.) 1. Quaere, Dela- fleld V. State, 2 Hill (N. Y.) 159. In King of Spain v. Oliver, Pet. C. C. 276, Fed. Gas. No. 7,813, the suit was entertained without question. The several states of the Union may sue in each other's courts. Delafield v. State, 2 Hill (N. Y.) 159. In Tagart v. State of Indiana, 15 Mo. 209, a suit by one state in the courts of another was enter- tained without question. 13 United States v. Devereux (C. C. A.) 90 Fed. 182; Floyd Ac- ceptances, 7 Wall. (U. S.) 666; United States v. Ingate (C. C.) 48 Fed. 251; Patton v. Gilmer, 42 Ala. 548; State v. Curran, 7 Eng. (Ark.) 321; Green v. State, 73 Cal. 29; Sinking Fund Com'rs v. Northern Bank, 1 Mete. (Ky.) 174; Danolds v. State, 89 N. Y. 36; State V. Zanco's Heirs, 18 Tex. Civ. App. 127. 14 Hans V. Louisiana, 134 U. S. 1; McGee v. Mathis, 4 Wall. (U. S.) 143; United States v. Great Falls Mfg. Co., 21 Md. 119. The provision of the federal constitution (article 1, § 10) that no state shall pass any law impairing the obligation of contracts embraces contracts not only between private individuals, but also between a state and individuals, or between two or more states. Green v. Biddle, 8 Wheat. (U. S.) 1; Bridge Proprietors v. Hoboken Co., 1 Wall. (U. S.) 116; Fletcher v. Peck, 6 Cranch (U. S.) 87, HufEcut & W. Am. Cas. Cant. 696; State v. Barker, 4 Kan. 379, 435; Danolds V. State, 89 N. Y. 36. No political change in a government annuls a compact with another sovereign power, or with individuals. Spooner v. McConnell, 1 McLean, 337, 344, Fed. Cas. No. 13,245. (220) Ch. 4] CORPORATIONS. g 148 Being an artificial person, a corporation must, in making contracts, act through the agency of natural persons. At common law, a corporation may contract only under its seal ; but this rule does not prevail in the United States. Here the seal is not a prerequisite to any contract which the law does not otherwise require to be sealed. A corporation may enter into only such contracts as are ex- pressly or impliedly authorized by its charter of incorporation. As to implied authority, a corporation has inherent power to make such contracts as are reasonably necessary to carry out its legitimate purposes and advance the objects of its creation. If a corporation in form enters into a contract which it has no power to make, the act is said to be ultra vires, and it is ordinarily invalid. In most jurisdictions, however, if the con- tract is based on a sufiicient consideration, it may give rise to rights of action, under some circumstances, even though the corporation did not have authority to make it; and in all ju- risdictions an ultra vires contract, or acts done under it, may found rights and obligations quasi contractual in their nature. § 147a. In general. A "corporation," as defined by Sir William Anson,^^ "is an artificial person created by law." Corporations are either aggregate or sole. An aggregate corporation may be defined as "an ideal body, created by law, composed of individiials united imder a common name, the members of which suc- ceed each other, so that the body continues the same, notwith- standing the changes of the individiaals who compose it, and which, for .certain purposes, is considered as a natural per- son."^* § 148. Contractual capacity of corporations aggregate. It is of the contractual capacity of corporations aggregate that brief mention ^vill now be made. Subject to certain IS Anson, Cont. (4th Ed.) 113. 11 Bouv. Law Diet. "Corporation." (221) § 150 CAPACITY OF PARTIES. [Ch. 4 important limitations, a corporation has legal capacity to make contracts. These limitations spring either from the artificial nature of the body, from positive rules of law, or from the terms of incorporation. § 149. Same — Agents. Being an artificial entity apart from the persons who com- pose it, their corporate rights and liabilities are something distinct from their individual rights and liabilities, and they do not of themselves constitute the corporation, but are only its members for the time being. Since, then, a corporation has this ideal existence apart from its members, it cannot personally enter into contracts, but must contract by means of agents. ^^ § 150. Same — Seal. At common law, a corporation may ordinarily contract only under seal.^* This rule does not prevail in the United States, however, and a corporation may here contract by parol, as well as under seal, the same as natural persons. The seal is not a prerequisite to the formation of any con- tract which the law does not otherwise require to be exe- cuted under seal.^® The corporation may be bound by con- 17 Anson. Cont. (4th Ed.) 113. 18 Anson, Cont. (4th Ed.) 114; 1 Bl. Comm. 475. The rule is sub- ject to some exceptions. Anson, Cont. (4th Ed.) 52; Church v. Im- perial Gas Light & Coke Co., 6 Adol. & E. 846, 861 ; South of Ireland Colliery Co. v. Waddle, L. R. 3 C. P. 463, 469; Nicholson v. Guardians of Bradfield Union, L. R. 1 Q. B. 620; Wells v. Kingston-Upon-Hull, L. R. 10 C. P. 402, 409; Bank of Columbia v. Patterson's Adm'r, 7 Cranch (U. S.) 299, 305. See page 521, infra. 10 Bank of Columbia v. Patterson's Adm'r, 7 Cranch (XJ. S.) 299; Town of New Athens v. Thomas, 82 111. 259; Board of Education v. Greenebaum, 39 111. 609; Columbia Casino Co. v. World's Columbian Exposition, 85 111. App. 369; Christian Church of Wolcott v. John- son, 53 Ind. 273; Ross v. City of Madison, 1 Ind. 281; Merrick v. Bur- lington & Warren Plank Road Co., 11 Iowa, 74; Elysville Mfg. Co. (222) Ch. 4] CORPORATIONS. § 151 tract implied from corporate acts, the same as an individ- ual;^" and in case any act is done in its behalf without au- thority, it may, if it might lawfully have done the thing it- self, ratify the act, the same as an individual principal, and thereby make the act its own, with all the attendant rights and liabilities.^^ § 151. Same — Charter limitations. Further limitations upon the capacity of corporate bodies V. Okisko Co., 1 Md. Ch. 392; Speirs v. Union Drop-Forge Co., 174 Mass. 175; Regents v. Detroit Young Men's Soc, 12 Mich. 138; Mott V. Hicks, 1 Cow. (N. Y.) 513; Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 Serg. & R. (Pa.) 6, 16; Blunt v. Walker, 11 Wis. 334. 20 Bank of Columbia v. Patterson's Adm'r, 7 Cranch (U. S.) 299; City of Selma v. Mullen, 46 Ala. 411; Argenti v. City of San Fran- cisco, 16 Cal. 255; Town of New Athens v. Thomas, 82 111. 259; Board of Education v. Greenebaum, 39 111. 609; Ross v. City of Mad- ison, 1 Ind. 281; Frankfort Bridge Co. v. City of Frankfort, 18 B. Mon. (Ky.) 41; Elysville Mfg. Co. v. Okisko Co., 1 Md. Ch. 392; Proprietors of Canal Bridge v. Gordon, 1 Pick. (Mass.) 297; Petrie's Ex'rs V. Wright, 6 Smedes & M. (Miss.) 647; Danforth v. Schoharie & Duanesburgh Turnpike Road, 12 Johns. (N. Y.) 227; Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 Serg. & R. (Pa.) 6, 16; San Antonio v. Lewis, 9 Tex. 69; Town of Sheldon v. Fairfax, 21 Vt. 102. A corporation may also be held liable upon gwasi contract, the same as a natural person. Jefferys v. Giirr, 2 Barn. & Add. 833; Bank of Columbia v. Patterson's Adm'r, 7 Cranch (XJ. S.) 299; Ar- genti V. City of San Francisco, 16 Cal. 255 ; Seagraves v. City of Al- ton, 13 111. 366; Danforth v. Schoharie & Duanesburgh Turnpike Road, 12 Johns. (N. Y.) 227; Trustees of Cincinnati Tp. v. Ogden, 5 Ohio, 23; Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 Serg. & R. (Pa.) 6, 16; San Antonio v. Lewis, 9 Tex. 69; Town of Sheldon v. Town of Fairfax, 21 Vt. 102. See, also, page 225, infra. 21 The Sappho, 36 C. C. A. 395, 94 Fed. 545; Argenti v. City of San Francisco, 16 Cal. 255; Ross v. City of Madison, 1 Ind. 281; Merrick v. Burlington & Warren Plank Road Co., 11 Iowa, 74; Poche V. New Orleans Home Inv. Co., 52 La. Ann. 1287; German Nat. Bank V. First Nat. Bank, 59 Neb. 7; Mt. Washington Hotel Co. v. Marsh, 63 N. H. 230; Flaherty v. Atlantic Lumber Co., 58 N. J. Eq. 467; Peterson v. City of New York, 17 N. Y. 449. (223) § 152 CAPACITY OP PARTIES. [Ch 4 depend upon the terms of their incorporation. Subject to these limitations, a corporation may do whatever a natural person may do.'^ The contractual power of a corporation is either express or implied, and the rule is that it may enter into only such contracts as are expressly or impliedly author- ized.^^ Express powers are those conferred on the body in terms. xVs to these, there can be little question. As to im- plied powers, it may be laid down as a rule that a corpora- tion has inherent power to make such contracts as are reason- ably necessary to carry out its legitimate purposes, and ad- vance the objects of its creation.^* § 152, Same — Ultra vires contracts. Acts done by a corporation in excess of its i^ower are 2^ New England F. & M. Ins. Co. v. Roljinson, 25 Ind. 536; Kelly V. Board of Public Works, 75 Va. 263; Blunt v. Walker, 11 Wis. 349. 23 Shrewsljury & Birmingham Ry. Co. v. Northwestern Ry. Co., 6 H. L. Cas. 113; South Yorkshire Ry. & River Dun Co. v. Great Northern Ry. Co., 9 Bxch. 55, 84; Head v. Providence Ins. Co., 2 Cranch (U. S.) 127; Chewacla Lime Works v. Dismukes, 87 Ala. 344, 5 L. R. A. 100; Vandall v. South San Francisco Dock Co., 40 Cal. 83; Chicago Gas Light & Coke Co. v. People's Gas Light & Coke Co., 121 111. 530; Bangor Boom Corp. v. Whiting, 29 Me. 123; Davis V. Old Colony R. Co., 131 Mass. 258; Gould v. Fuller, 79 Minn. 414; DowniTig v. Mount Washington Road Co., 40 N. H. 230; Ewing V. Toledo Sav. Bank, 43 Ohio St. 31; Germantown Farmers' Mut. Ins. Co. V. Dhein, 43 Wis. 420. 21 National Bank of Commerce v. Allen, 33 C. C. A. 169, 90 Fed. 545; Blanchard's Giin-Stock Turning Factory v. Warner, 1 Blatchf. 258, Fed. Cas. No. 1,521; State v. Rice, 65 Ala. 83; McKiernan v. Lenzen. 56 Cal. 61; Dodge v. City of Council Bluffs, 57 Iowa, 560; Bell & Coggeshall Co. v. Kentucky Glass-Works Co., 20 Ky. Law Rep. Ifi84, 50 S. W. 2; Booth v. Rohinson, 55 Md. 419; Bro-wn v. Wi^nisimmet Co., 11 Allen (Mass.) 326; Broadway Nat. Bank v. Baker. 176 Mass. 294; Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332; Bennington Iron Co. v. Rutherford, 18 N. J. Law, 467-, Central Ohio N. G. & F. Co. v. Capital City Dairy Co., 60 Ohio St. 96; Portland Lumbering & Mfg. Co. v. City o{ East Portland, 18 Or. 21, 6 L. R. A. 290; Union Bank v. Jacobs, 6 Humph. (Tenn.) 515; Wayland University v. Btsorman, 56 Wis. 657. (2-24) Ch. 4J CORPORATIONS. § 152 technically described as being ultra vires, — that is, beyond the power of the company. As to such acts, if a corpora- tion in form enters into a contract which it has no power to make, the contract is ordinarily void.^^ When innocent third persons become involved, however, the rule is some- times relaxed in their favor. As to this the authorities are conflicting. The English courts and the federal courts of the United States apply the rule strictly, and hold that a corporate contract which is unauthorized by its charter or governing statutes, or which is entirely outside of the scope of the purpose of its creation, is void in the sense of being no contract at all, and cannot be enforced by either party.^* In most of the state courts, this strict rule is rejected, and it is held that the contract is not absolutely void, and that, if it is founded on a sufficient consideration, it may give rise to rights of action, under some circumstances, even though the corporation did not have authority to make it.^''^ Even in those jurisdictions where an ultra vires contract is deemed absolutely void, such a transaction, or acts done under it, 25 See cases cited in preceding notes. 28 East Anglian Rys,. Co. v. Eastern Counties Ry. Co., 11 C. B. 775, 7 Eng. Law & Bq. 505; Ashbury Ry. Carriage & Iron Co. v. Riche, L. R. 7 H. L. 653; California Bank v. Kennedy, X67 U. S. 362; Pearce v. Madison I. R. Co., 21 How. (U. S.) 441; Pittsburgh, C. & St. L. Ry. Co. V. Keokuk & Hamilton Bridge Co., 131 U. S. 371, 389; Thomas v. West Jersey R. Co., 101 U. S. 71. 27 Bigbee & W. R. Packet Co. v. Moore, 121 Ala. 379 ; Denver Fire Ins. Co. V. McClelland, 9 Colo. 11; Union Hardware Co. v. Plume & Atwood Mfg. Co., 58 Conn. 219; Burke Land & Live-Stock Co. v. Wells, Fargo & Co. (Idaho) 60 Pac. 87; Kadish v. Garden City, E. L. & B. Ass'n, 151 111. 531; Wright v. Hughes, 119 Ind. 324; Seymour v. Chicago Guaranty Fund Life Soc, 54 Minn. 147, 149; Manchester & L. R. v. Concord R. Co., 66 N. H. 100; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Tourtelot v. Whithed, 9 N. D. 467; City of Spokane v. Amsterdamsch Trustees Kantoor, 22 Wash. 172; Bullen V. Milwaukee Trading Co., 109 Wis. 41; Zinc Carbonate Co. V. First Nat. Bank, 103 Wis. 125. See, also, Magee v. Pacific Imp. Co., 98 Cal. 678. (225) Law of Cent. — 15. § 153 CAPACITY OF PARTIES. [Ch. 4 may give rise to rights and obligations qioasi contractual in their nature.^* IV. Infants — Contractual Capacity. At common law, a person, whether male or female, is an in- fant until he attains to the age of twenty-one years. In many states, by statute, females become of age at eighteen. Generally speajiing, an infant is incapable of binding him- self by contract. Subject, in most jurisdictions, to one excep- tion, namely, the appointment of an agent or attorney, a con- tract made in infancy is, however, by the weight of authority, not absolutely void, but only voidable at the infant's option. In certain exceptional cases, an infant may bind himself by contract : (a) He may contract a valid marriage. (b) He may enter into such contracts as he is authorized to make, either directly by statute or under the au- thority of a person or a court empowered by statute to authorize or to confirm an infant's contracts. (c) He may bind himself by a fair and reasonable contract entered into for the purpose of discharging an ob- ligation resting upon him either by the common law or by statute. An infant is chargeable upon quasi contract the same as an adult. The most important illustration of this liability arises out of the so-called contract for the necessaries of life. § 153. Infancy defined. "Infancy," as a legal term, may be defined as that period of life during which the law, because of Ms youth, disables a person from doing certain acts which a normal personality 28 Central Transp. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 60; Pittsburgh, C. & St. L. Ry. Co. v. Keokuk & Hamilton Bridge Co., 131 TJ. S. 371, 389; Brunswick Gas Light Co. v. United Gas, F. & L. Co., 85 Me. 532; Slater Woolen Co. v. Lamh, 143 Mass. 420, Huffcut & W. Am. Cas. Cont. 222 ; Day v. Spiral Springs Buggy Co.. 57 Mich. 146, 58 Am. Rep. 352. (226) Zh. 4] INFANTS. § 153 may do, and exempts him from certain liabilities to whicli a normal personality is subject. This disability and exemp- tion are imposed and granted for the infant's benefit. Up to a certain age, the law regards a person as incapable of act- ing in some respects with discretion, and, that he may not prejudice himself or suffer imposition, it prohibits him from performing those acts, and nullifies whatever he does in re- lation thereto. A minor may, however, be released from parental control, and become entitled to his earnings, and liable for his support, in which event he is said to be eman- cipated.^^ Emancipation may be effected by the consent of the parent, evidenced by a written or oral agreement, or from the circumstances, as where the parent abandons or fails to support the child.^" Emancipation does not, however, in- vest the infant with power to enter into contracts generally. It is merely a renunciation by the parent of his right to the child's services, and does not enlarge the child's legal ca- pacity. ^^ Nor can the disability of an infant be removed by stipulation to that effect, as where a deed of conveyance- to an infant contains a clause giving him power to resell the property.*^ ISTor by the fact that the infant appears to be of full age, and the other party believes him to be so f^ and this is true, even where the infant falsely represents himself to be an adult.** However, the age at which a person shall 20Farrell v. Farrell, 3 Houst. (Del.) 633; Wilson v. McMillan, 62- Ga. 16; Robinson v. Hathaway, 150 Ind. 679; Wood v. Corcoran, 1 Allen (Mass.) 405; Hall v. Hall, 44 N. H. 293; Genereux v. Sibley, 18 R. I. 43; Penn v. Whitehead, 17 Grat. (Va.) 503. 30 Farrell v. Farrell, 3 Houst. (Del.) 633; Robinson v. Hathaway, 150 Ind. 679; Abbott v. Converse, 4 Allen (Mass.) 530. 31 Mason v. Wright, 13 Mete. (Mass.) 306; Tyler v. Gallop's Es- tate, 68 Mich. 185; Person v. Chase, 37 Vt. 647. And see Tandy v. Masterson's Adm'r, 1 Bibb (Ky.) 330. 32 Sewell V. Sewell, 92 Ky. 500. 33 Sewell V. Sewell, 92 Ky. 500 ; Ruchizky v. De Haven, 97 Pa. 202,, 210. 34 Sims V. Everhardt, 102 U. S. 300, 313. See page 250, infra. (327) § 154 CAPACITY OF PARTIES. [Ch. 4 become competent to enter into contracts depends wholly upon the will of the legislature. It may authorize him to enter into special contracts, even though he is otherwise under age ; or it may authorize the courts to remove, in particular cases, the privilege or disability of infancy.^® The period of immaturity is fixed arbitrarily by law so far as any one person is concerned. If a person is under age, he is conclusively regarded as incompetent, and the ques- tion of his actual capacity may not be inquired into. At common law, a person, whether male or female, is an infant until he has attained the age of twenty-one years.*® In many states, however, this matter is regulated by statute, and, while the common-law rule has not been changed so far as males are concerned, females are not infrequently made of age at eighteen. In computing age, at common law, frac- tions of a day are disregarded, so that a person becomes of age at the beginning of the day before the anniversary of his twenty-first birthday, counting from midnight.*'^ S 154. Contractual capacity. Generally speaking, an infant is incapable, in point of law, of absolutely binding himself by contract, and, subject to certain exceptions, his contracts are voidable at his op- tion, regardless of the form in which he enters into the en- gagement. This was not always the law. The early author- ities imposed a greater disability upon the infant, but the modern cases show a disposition to enlarge his sphere of ac- tion. An early English doctrine in reference to the liabil- 35 See page 233, infra. 36 Coke, Litt. 171b; 2 Kent, Comm. 233. 37 Pitzhugli V. Dennington. 2 Ld. Raym. 1094, 1096; Herbert v. Turball, 1 Keb. 589; State v. Clarke, 3 Har. (Del.) 557; Wells v. Wells, 6 Ind. 447; Hamlin v. Stevenson, 4 Dana (Ky.) 597; Bard- well V. Purrington, 107 Mass. 419, 425; Lenhart v. State (Tex. Cr. App.) 27 S. W. 260. (228) Ch. 4] INFANTS. § 155 ity of an infant upon his contracts, which has been followed by some American courts, is that, (1) if the contract is, as a matter of law, beneficial to the infant, it is absolutely valid ; (2) if the contract is, as a matter of law, prejudicial to the infant, it is absolutely void; and (3) if the contract is such that the question of benefit and prejudice is uncertain, it is voidable at the infant's option.-'^® Except in the case of a few special kinds of contract, few courts longer undertake to say whether a contract is either beneficial or prejudicial to an infant as a matter of law, and the result is, we shall see, to throw all contracts made in infancy, saving the ex- ceptions just mentioned, into the third class of contracts, namely, the voidable. § 155. Contracts void and voidable. As to whether the contract of an infant is void or only voidable, and therefore capable of ratification by him when he arrives at his majority, the cases present a conflict of opinion. It is laid down in many early English and Amer- ican cases, and the announcement is not entirely unsupport- ed by modern authority, that, if the contract is such that it cannot be for the infant's benefit, it is not merely voidable, but absolutely void.^® The distinction between contracts void and voidable we have already had occasion to note, and ssKeane v. Boycott, 2 H. Bl. 511, 514; PWlpot v. Bingham, 55 Ala. 435, 438; Wambole v. Foote, 2 Dak. 1, 15; Green v. Wilding, 59 Iowa, 679; Robinson v. Weeks, 56 Me. 102; Vent v. Osgood, 19 Pick. (Mass.) 572; Wheaton v. East, 5 Yerg. (Tenn.) 41;' Robin- son V. Coulter, 90 Tenn. 705, 708; SwafEord v. Ferguson, 3 Lea (Tenn.) 292. See, also, cases cited in notes 39, 50, infra. 39BayIis v. Dineley, 3 Maule & S. 477, 481; MacGreal v. Taylor, 167 U. S. 688; Tucker's Lessee v. Moreland, 10 Pet. (U. S.) 58; West V. Penny, 16 Ala. 186; Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76; Ridgeley v. Crandall, 4 Md. 435; Owen v. Long, 112 Mass. 403; Oliver v. Houdlet, 13 Mass. 237; Dunton v. Brown, 31 Mich. 182; Radford v. Westcott's Ex'x, 1 Desaus. (S. C.) 596. See, also, cases cited in note 38, supra. (229) § 155 CAPACITY OF PARTIES. ^ [Oh. 4 in treating of the matter it was observed that the courts are not always discriminating in the use of the terms "voidable" ■and "void," and that the word "void" is often used where "voidable" is more or less obviously meant.*" This want of discrimination will be found to occur in many of the cases in terms holding an infant's contract to be void. A ma- jority of these cases appear to establish only that the con- tract cannot be enforced against the infant, or some other collateral point equally consistent with its being merely void- able, except when they show distinctly that the contract is voidable, and not void.*^ In any event, by the weight of authority both in America and in England, the doctrine that an infant's contracts may be absolutely void does not pre- vail, and, subject to one exception, his contracts are valid if he elects to treat them so when he comes of age.*^ i" See page 31, supra. 41 Pollock, Cont. 53. *2Plexner v. Dickerson, 72 Ala. 318; Kendrick v. Neisz, 17 Colo. 506; Strain v. Wright, 7 Ga. 568; Bryan v. Walton, 14 Ga. 185, 205; ' Morton v. Steward, 5 111. App. 533; McDonald v. Sargent, 171 Mass. 492; Englebert v. Troxell, 40 Neb. 195; Beardsley v. Hotchkiss, 96 N. Y. 201. Account stated: Williams v. Moor, 11 Mees. & W. 256, 12 Law J. Exch. 253; Beeler v. Young, 1 Bibb (Ky.) 519. Prom- issory note: Young v. Bell, 1 Crancli, C. C. 342, Fed. Cas. No. 18,152; Shropshire v. Burns, 46 Ala. 108; Hastings v. Dollarhlde, 24 Oal. 195; Reed v. Batchelder, 1 Mete. (Mass.) 559; Minock v. Short- ridge, 21 Mich. 304; Wright v. Steele, 2 N. H. 51; Everson v. Car- penter, 17 Wend. (N. Y.) 419; Goodsell v. Myers, 3 Wend. (N. Y.) 479; Wamsley v. Llndenberger, 2 Rand. (Va.) 478. Indorsement of note: Hastings v. Dollarhide, 24 Cal. 195; Nightingale v. Wlth- ington, 15 Mass. 272; Willis v. Twambly, 13 Mass. 204. Single Ull: Fant V. Cathcart, 8 Ala. 725; Beeler v. Young, 1 Bibb (Ky.) 519. Acceptance of draft: Hyer v. Hyatt, 3 Cranch, C. C. 276, Fed. Cas. No. 6,977. Contract of insurance: Union Cent. Life Ins. Co. v. Hilliard, 63 Ohio St. 478. Contract of suretyship: Fetrow v. Wise- man, 40 Ind. 148; Owen v. Long, 112 Mass. 403; Harner v. Dlpple, 31 Ohio St. 72; Williams v. Harrison, 11 S. C. 412. Bail bond: Patchin v. Cromach, 13 Vt. 330; Reed v. Lane, 61 Vt. 481. Contract of partnership: Osburn v. Farr, 42 Mich. 134; Dunton v. Brown, (230) Ch. 4J INFANTS. § 155 The exception just mentioned relates to the appointment of an agent or attorney. The cases bearing on the question are not in harmony. In many states it is held that an infant is incapable of appointing an agent or attorney without regard, apparently, to whether the appointment is under seal, or whether it rests in parol.*^ Other courts, while they regard an appointment under seal as absolutely void, and not sus- ceptible of ratification,** give validity to a parol appoint- 31 Mich. 182; Kerr v. Bell, 44 Mo. 120. Bale of personalty: Lowe V. Gist, 5 Har. & J. (Md.) 106, note; Baker v. Lovett, 6 Mass. 78, 80. See Fonda v. Van Home, 15 Wend. (N. Y.) 631. Conveyance of realty: Zouch v. Parsons, 3 Burrow, 1794; Irvine v. Irvine, 9 Wall. (U. S.) 617; Manning v. Johnson, 26 Ala. 446; Hastings v. Dollarhide, 24 Cal. 195; Wallace v. Lewis, 4 Har. (Del.) 75; Cole V. Pennoyer, 14 111. 158 ; Doe d. Moore v. Abernathy, 7 Blackf . (Ind.) 442; Johnson v. Rockwell, 12 Ind. 76; Jenkins v. Jenkins, 12 Iowa, 195; Dixon v. Merritt, 21 Minn. 196; Allen v. Poole, 54 Miss. 323; Bool V. Mix, 17 Wend. (N. Y.) 119; Logan v. Gardner, 136 Pa. 588; Cummings v. Powell, 8 Tex, 80; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. Bond for title: Weaver v. Jones, 24 Ala. 420; Bozeman v. Browning, 31 Ark. 364. Exchange of property: Wil- liams V. Brown, 34 Me. 594. Purchase of personalty : Skinner v. Maxwell, 66 N. C. 45; Lemmon v. Beeman, 45 Ohio St. 505. Pur- chase of realty: Baker v. Kennett, 54 Mo. 82; Callis v. Day, 38 Wis. 643. Lease to infant: Griffith v. Schwenderman, 27 Mo. 412. Lease by infant: Field v. Herrick, 101 111. 110. 43 Doe d. Thomas v. Roberts, 16 Mees. & W. 778 ; Flexner v. Dick- erson, 72 Ala. 318; Philpot v. Bingham, 55 Ala. 435; Ware v. Cart- ledge, 24 Ala. 622; Cole v. Pennoyer, 14 111. 158; Tapley v. McGee, 6 Ind. 56; Trueblood v. Trueblood, 8 Ind. 195; Fetrow v. Wiseman, 40 Ind. 148, 155; Pyle v. Cravens, 4 Litt. (Ky.) 17; Armitage v. Widoe, 36 Mich. 124; Fonda v. Van Home, 15 Wend. (N. Y.) 631; Stafford v. Roof, 9 Cow. (N. Y.) 626. See Robblns v. Mount, 4 Rob. (N. Y.) 553. An infant's letter of attorney, coupled with the conveyance of a present interest, is valid, however. Wambole v. Foote, 2 Dak. 1; Duvall v. Graves, 7 Bush (Ky.) 461, 467; Bool v. Mix, 17 Wend. (N. Y.) 119; Fonda v. Van Home, 15 Wend. (N. Y.) 631, 635; Lawrence v. McArter, 10 Ohio, 37. In Rocks v. Cornell, 21 R. I. 532, a power of sale in a mortgage executed by an infant was held to be absolutely void and incapable of ratification. 44 Waples V. Hastings, 3 Har. (Del.) 403. As an exception to the (231) § 156 CAPACITY OF PARTIES. [Ch. 4 ment.** It is pretty generally held that an infant's author- ization, in what form soever, of an attorney to appear for him in court, is void ah initio, and may not be ratified.** Some courts do not recognize this exception to any extent whatever. They regard powers of attorney and all appoint- ments generally as standing in the same class with other con- tracts, and accordingly hold them to be not absolutely void, but only voidable.*''^ The importance of the distinction between void and void- able contracts becomes apparent when we consider that, if the infant's agreement is regarded as absojlutely void, it is entirely without legal effect; it binds neither the infant nor the adult party, and it cannot be given validity by the in- fant's recognizing it v/hen be arrives at majority.*® If it is deemed merely voidable, however, it may be made effec- tual, if the infant so desires, when he attains full age, and ordinarily it binds the adult party so long as the infant is in the fulfillment of his part, and does not repudiate the contract.*® § 156. Valid contracts. It has been said that, if a contract is beneficial to the in- rule stated in the text, it should he noted that an infant's power of attorney to another to receive seisin of an estate conveyed to the infant is not void, but only voidable. Metcalf, Cont. 41; Zouch v. Parsons, 3 Burrows, 1794, 1808; Whitney v. Dutch, 14 Mass. 457, 461. *5 Hastings v. Dollarhide, 24 Cal. 195 ; Whitney v. Dutch, 14 Mass. 457; Ward v. Steamboat "Little Red," 8 Mo. 358; Belton v. Briggs, 4 Desaus. (S. C.) 465. 4(! Oliver v. WoodrofCe, 4 Mees. & W. 650; Saunderson v. Marr, 1 H. Bl. 75; Nicholson v. Wilborn, 13 Ga. 467; Wainwright v. Wil- kinson, 62 Md. 146; Bennett v. Davis, 6 Cow. (N. Y.) 393; Knox v. Flack, 22 Pa. 337. 47 Towle V. Dresser, 73 Me. 252 ; CoursoUe v. Weyerhauser, 69 Minn. 328; Vogelsang v. Null, 67 Tex. 465. *8 Oliver v. Houdlet, 13 Mass. 237, 239. 40 Warwick v. Bruce, 2 Maule & S. 205. (232) Ch. 4] INFANTS. § 156 fant at the time he enters into it, he is bound by it, and, more widely, that the contract of an infant is binding upon him unless manifestly to his prejudice,^" but the greac weight of authority is against this dictum.^^ There are, however, certain contracts which an infant may make, and thereby bind himself absolutely the same as an adult. These- excep- tional contracts we shall now consider. An infant may con- tract a valid marriage,^^ and, even if the parties are under the age of consent, the marriage is not absolutely void, but may be ratified by them when they arrive at that age.^^ Promises to marry, however, stand on the same plane with other contracts, — ^they are binding on the adult party, and voidable at the option of the infant.®* The age at which a person shall become competent to enter into contracts de- pends, as we have seen, wholly upon the will of the legisla- ture. Consequently, an infant may enter into a binding en- gagement if the legislature has enacted a statute which au- 50 Maddon v. White, 2 Term R. 159 ; Cooper v. Simmons, 7 Hurl. & N. 707, 721; "Warwick v. Bruce, 2 Maule & S. 205; Radford v. West- cott, 1 Desaus. (S. C.) 596. See page 229, supra. 51 Pollock, Cont. 66. 52 Pollock, Cont. 57; Bacon, Atr. 4, 336; Purviance v. Schultz, 16 Ind. App. 94; Goodwin v. Thompson, 2 Iowa, 329; Bennett v. Smith, 21 Barb. (N. Y.) 439. 53 Pollock, Cont. 57; Bacon, Ahr. 4, 336; Koonce v. Wallace, 52 N. C. 194; Holtz v. Dick, 42 Ohio St. 23; Warwick v. Cooper, 5 Sneed (Tenn.) 658. 5* Pollock, Cont. 58 ; Holt v. Clarencieux, 2 Strange, 937, Lang- dell's Cas. Cont. 397; Morris v. Graves, 2 Ind. 354; Cannon v. Als- bury, 1 A. K. Marsh. (Ky.) 76; Frost v. Vought, 37 Mich. 65; Hunt V. Peake, 5 Cow. (N. Y.) 475; Willard v. Stone, 7 Cow. (N. Y.) 22; Rush v. Wick, 31 Ohio St. 521; Warwick v. Cooper, 5 Sneed (Tenn.) 658; Pool V. Pratt, 1 D. Chip. (Vt.) 252. Infancy is a matter of de- fense, however, and the plaintiff need not allege nor prove that the defendant was of full age when the promise was made. Simmons v. Simmons, 8 Mich. 318. A promise by a minor to marry may con- stitute an inducement to sexual intercourse, though both parties know that the promise cannot be enforced. Hawk v. Harris, 112 Iowa, 543, 84 Am. St. Rep. 352. (233) § 1S6 CAPACITY OF PARTIES. [Ch. 4 thorizes it.^® Thus, congress having declared that persons over the age of sixteen years are capable of entering the mil- itary service of the United States, an infant over that age may make a valid contract of enlistment.^® An infant may also make a valid contract mider the authority of a person or a court empowered by law to authorize or to confirm an in- fant's contracts.^'^ If an infant is under a legal obligation to do an act, whether the obligation is of common-law or statutory origin, he may bind himself by a fair and reason- able contract entered into for the purpose of discharging the obligation.^* Thus, since an infant is legally bound to make 55 In re Morrissey, 137 IT. S. 157, 159; Wassumv. Feeney, 121 Mass. .93, 95. 56 In re Morrissey, 137 U. S. 157; In re Higgins, 16 Wis. 351. The same is true of the navy. United States v. Balnbridge, 1 Mason, 71, Fed. Cas. No. 14,497; Com. v. Murray, 4 Bin. (Pa.) 487. And the provision of Rev. St. U. S. § 1117, that no person under the age of twenty-one years shall be enlisted in the military service of the United States without the written consent of his parents or guar- dians, is for the benefit of the parents and guardians, and gives no privilege to the minor, and, accordingly, his contract of enlistment is good so far as he is concerned. In re Morrissey, 137 U. S. 157. 57 In re Letchford, 2 Ch. Div. 719 ; May v. Webb, Kirby (Conn.) 286; Anderson v. Ammonett, 9 Lea (Tenn.) 1. In some states, the court may pass a decree removing an infant's disability to contract. Wilkinson v. Buster, 124 Ala. 574. General words in a statute are not to be construed so as to deprive infants of the protection given to them by the common law. Pollock, Cont. 65; Northwestern Ry. Co. V. McMichael, 5 Exch. 114, 124; London & N. W. Ry. Co. v. McMichael, 20 Law J. Exch. 97. 5S Zouch V. Parsons, 3 Burrows, 1794, 1801; Tucker v. Moreland, 10 Pet. (U. S.) 58, 67; Riley v. Mallory, 33 Conn. 201; Baker v. Lovett, 6 Mass. 78, 80. See Jones v. Brewer, 1 Pick. (Mass.) 314; Kilcrease v. Shelby, 23 Miss. 161. The father of a bastard child may make a valid settlement with the mother, even though he is a minor. Gavin v. Burton, 8 Ind. 69; Stowers v. HoUis, 83 Ky. 544. And an infant father may bind himself by entering into the stat- utory bastardy bond. McCall v. Parker, 13 Mete. (Mass.) 372; In- habitants of Bordentown Tp. v. Wallace, 50 N. J. Law, 13; People V. Moores, 4 Denio (N. Y.) 518. An infant's recognizance to ap- (234) Ch. 4] INFANTS. § 157 compensation for civil wrongs done by him,®® a note given by an infant in settlement of a claim in tort is valid and bind- ing.®" And where an infant is a trustee of real property, either actually or by operation of law, a conveyance made by him in discharge of the trust may not afterwards be avoid- ed." § 157. Quasi contracts. As we have seen, a quasi contract is an obligation imposed by law, without regard to the consent of the party bound. It rests upon a legal duty.®^ Since the privilege of infancy is created to protect infants from the effects of a consent in- considerately given, it follows that this privilege has no force to exempt an infant from obligations which the law imposes regardless of consent, and an infant may therefore be bound by quasi contract, the same as an adult. Thus, if a person becomes a surety for an infant defendant upon a recognizance given by him in a criminal case, he may recover of the in- fant, upon a contract implied in law, what he is compelled pear in court to answer to a criminal charge Is sustained partly upon the ground that it is his duty to appear. State v. Weather- wax, 12 Kan. 463; Dial v. Wood, 9 Baxt. (Tenn.) 296. An infant who is in custody on civil process may assign his property pur- suant to statute, in order to obtain his discharge or prison liber- ties. People V. Mullin, 25 Wend. (N. Y.) 698; Attorney General v. Baker, 9 Rich. Eq. (S. C.) 521. A minor's contract of enlistment has been sustained upon the high ground that it is every man's duty to serve his country. United States v. Blakeney, 3 Grat. (Va.) 405. s9 See page 248, infra. 60 Ray V. Tubbs, 50 Vt. 688. Contra, semUe, Shaw v. Coffin, 58 Me. 254, 256. 61 Elliott V. Horn, 10 Ala. 348; Nordholt v. Nordholt, 87 Cal. 552; Des Moines Ins. Co. v. Mclntire, 99 Iowa, 50; Prouty v. Edgar, 6 Iowa, 353; Sheldon's Lessee v. Newton, 3 Ohio St. 494; Trader v. Jarvis, 23 W. Va. 100. «2 See page 23, supra. (235) § 157 CAPACITY OF PARTIES. [Ch. 4 to pay.®^ Again, if an infant male enters into the marriage relation, he becomes liable, at common law, the same as an adult, upon a contract created by law, for his wife's ante- nuptial debts. ^^ And now as to the liability of an infant for the neces- saries of life, which also is quasi contractual in its nature. V. Same — Liability foe Necessaries. An infant is liable as upon contract for the necessaries of life, where they are furnished to him on credit. This liability is not contractual, but quasi contractual. Generally speaking', anything is a necessary that is reasonably needed for the physical and intellectual well being of the in- fant, regard being had to his degree, estate, and condition in life. Money loaned to an infant to enable him to buy necessaries, is not a necessary at law, but is recoverable in equity if so ex- pended. Since an infant is incompetent to engage in business, things without which an infant's occupation cannot be carried on are not necessaries. Things done for the benefit of an infant's property are not necessaries, since, if he has property that requires supervision,, a guardian may be appointed. Legal services may or may not be necessaries, according to the facts of the particular case. To be a necessary, the thing furnished must have been needed by the infant in the particular case; it is not enough that the thing has potentially the attributes of a necessary. Whether a thing is a necessary is a mixed question of law and of fact. An infant is liable, the same as an adult, for necessaries fur- nished to his wife and children. 63 Dial V. Wood, 9 Baxt. (Tenn.) 296. C4 Butler V. Breck, 7 Mete. (Mass.) 164; Roach v. Quick, 9 Wend. (N. Y.) 238; Cole v. Seeley, 25 Vt. 220. (236) Ch. 4 J INFANTS. § 158 An infant's express contract for necessaries is voidable, the same as his contracts in general, except, in some jurisdictions, where it is of such a nature that the consideration may be in- quired into, in which case the creditor may recover the reason- able value of the things furnished. The voidability of the ex- press contract does not, however, defeat the creditor's right to recover upon quasi contract. § 158. In general. While an infant may not bind himself by contract under ordinary circumstances, yet be is liable as upon contract for the necessaries of life, where they are furnished him upon credit.®^ This is the common illustration of the so-called beneficial contract which it has been said that an infant may make. The liability of an infant for necessaries does not, however, depend upon his express promise to pay for them.*' It is quasi contractual in its nature, and it is the most impor- tant illustration of the liability of an infant upon quasi con- tract. "It is usually stated that an infant is bound by his contract for necessaries," says Professor Keener. "But if, as is held in many jurisdictions, the infant is bound to pay for necessaries, not the contract price, but the reasonable value thereof, it would seem clear that he is not liable on his contract. By the terms of his contract he is required to pay a stated sum, and not the reasonable value for necessaries furnished. If he is bound by his contract to pay for neces- saries, then, of course, he should be liable in damages for having, in violation of his contract, refused to pay therefor, and, if liable in damages, the amount of the plaintiff's recov- ery would be determined, not by the reasonable value of the necessaries, but by the price agreed upon, since, had the in- 65 Cole V. Pennoyer, 14 111. 158; Anderson v. Smith, 33 Md. 465, 467; Hyman v. Cain, 48 N. C. Ill; Werner's Appeal, 91 Pa. 222. 63 Trainer v. Trumbull, 141 Mass. 527, 530, HufCeut & W. Am. Cas. Cent. 220; Gay v. Ballon, 4 Wend. (N. Y.) 403. . (237) § 159 CAPACITY OP PARTIES. [Ch. 4 f ant performed his contract, the plaintiff would have received that amount of money. When, therefore, the infant is re- quired to pay, not the stated price, but simply the reasonable value of the necessaries, the obligation differs from that which he assumed ; and though the result reached, as to the amount of the recovery, by a plaintiff in any given case, may be the same as would have been reached had the recovery been had on the theory of the plaintiff's being entitled to the price agreed upon, yet such a result is purely accidental."®'^ § 159. Necessaries defined. Anything is a necessary that is reasonably needed for the physical and intellectual well being of the infant, regard be- ing had to his degree, estate, and condition in life. The term "necessaries," as used in the present connection, in- cludes not only those things without which an individual can- not, as such, exist, such as food, raiment, and shelter, but also such things as are necessary to a man, considered as an intellectual and social being, such as education, service, and the like. No inflexible rule can be laid down for determin- ing whether a thing is a necessary. The answer to the ques- tion depends upon the circumstances of the particular case f^ and the burden of showing the necessity for an article fur- nished to an infant on credit rests upon the party asserting it.®^ As has been said, the term "necessaries" is used broad- 67 Keener, Quasi Cont. 20. The doctrine that, while the payee of a note given by an infant for necessaries can recover on the note, he can recover, not the amount thereof, but simply the reasonable value of the necessaries, is an anomaly in procedure. Keener, Quasi Cont. 21. 68 Cobbey v. Buchanan, 48 Neb. 391; Thrall v. Wright, 38 Vt. 494. 60 Clarke v. Leslie, 5 Esp. 28 ; Brooker v. Scott, 11 Mees. & W. 67, 68 ; Wood v. Losey, .50 Mich. 475 ; Miller v. Smith, 26 Minn. 248, 250; Wailing v. Toll, 9 Johns. (N. Y.) 141; Johnson v. Lines, 6 Watts & S. (Pa.) 80; Thrall v. Wright, 38 Vt. 494. (238) Ch. 4] INFANTS. § IS9, ly. It obviously includes lodging, food, and apparel,'° and also medical attendance,''^ and things which, though not requi- site to a person in good health, are necessary to a person in poor health or in sickness.^^ Education is also a necessary for which an infant is hound to pay if he obtains it on cred- itJ^ While a common school education is regarded as a necessary, the courts consider it to be otherwise as to a col- legiate or professional education. ''* Upon the ground that instruction in a useful art, whereby an infant may be the bet- ter enabled to earn a livelihood, is a necessary, a contract of apprenticeship is held to be valid in some jurisdictions;^^ but, by the weight of authority, a contract of apprenticeship is deemed voidable, the same as any other engagement of the infant.'^® Articles of mere luxury or convenience or pleasure never constitute necessaries, though, if useful in the particu- lar case, they may be such.'^'^ It has been said that if an 70 Barnes v. Toye, 13 Q. B. Div. 410, 412. Clothing: Coates v. Wilson, 5 Esp. 152; Makarell v. Bachelor, Cro. Bliz. 583. Board and Todging: Barnes v. Barnes, 50 Conn. 572; Watson v. Cross, 2 Duv. (Ky.) 147; Kilgore v. Rich, 83 Me. 305; Anderson v. Smith, 33 Md. 465; Bradley v. Pratt, 23 Vt. 378. Apparel for a servant may he necessary. Hands v. Slaney, 8 Term R. 578. 71 Coke, Litt. 172a; Turner v. Gaither, 83 N. C. 357, 361; Saun- ders T. Ott's Adm'r, 1 McCord (S. C.) 572. "Medical attendance," as used in the text, includes the services of a dentist. Strong v. Foote, 42 Conn. 203. Z!^ Fruit: Wharton v. Mackenzie, 5 Q. B. 606. Horse: Hart v. Prater, 1 Jur. 623. Nursing: We'rner's Appeal, 91 Pa. 222. T3 Coke, Litt. 172a; Chappie v. Cooper, 13 Mees. & W. 252, 258. 74 Turner v. Gaither, 83 N. C. 357; Bouchell v. Clary, 3 Brev. (S. C.) 194; Middlebury College v. Chandler, 16 Vt. 683. 75 Chappie V. Cooper, 13 Mees. & W. 252, 258; Pardey v. Ameri- can Ship-Windlass Co., 20 R. I. 147. 76 Whittingham v. Hill, Cro. Jac. 494; Clark v. Goddard, 39 Ala. 164; Harney v. Owen, 4 Blackf. (Ind.) 337; Francis v. Felmit, 20^ N. C. 498; Guthrie v. Murphy, 4 Watts (Pa.) 80. 77 Chappie V. Cooper, 13 Mees. & W. 252, 258 ; Wharton v. Mac- kenzie, 5 Q. B. 606; McKanna v. Merry, 61 111. 177; Beeler v. Young, 1 Bibb (Ky.) 519; Miller v. Smith, 26 Minn. 248, 250; Saunders v. (239) § 160 CAPACITY OF PARTIES. [Ch- 4 imperative moral or social, though not a legal, duty which it would be scandalous to disregard rests upon an infant, the means of performing it may well be considered a necessary.''* Thus, an infant widow has been held liable for the deceased husband's funeral expenses.''® § 160. Same — Money advanced. At common law, a loan of money to an infant is not equiv- alent to furnishing necessaries, even though the money is ac- tually used in the purchase of necessaries. The indebtedness must be created directly for the necessaries, else the infant will not be liable at law. The reason of this harsh rule is that the cause of action must arise, if at all, when the money is lent, and that no matter subsequently occurring can affect the right to recover.*" In equity, however, this rule does not prevail. If a man lends an infant money which is em- ployed in the purchase of necessaries, the lender will be al- Ott's Adm'r, 1 McCord (S. C.) 572. A bicycle is not ordinarily a necessary. Pyne v. Wood, 145 Mass. 558; Rice v. Butler, 25 App. Div. (N. Y.) 388. But see Clyde Cycle Co. v. Hargreaves, 78 Law T. (N. S.) 296. Neither is a horse. Rainwater v. Durham, 2 Nott & McC. (S. C.) 524; Grace v. Hale, 2 Humph. (Tenn.) 27. But a horse may be such, under some circumstances. Aaron v. Harley, 6 Rich. Law (S. C.) 26. Goods purchased by an infant for his or her marriage, though not necessary for ordinary occasions, may be necessaries. Sams v. Stockton, 14 B. Men. (Ky.) 187; Jordan v. Coffield, 70 N. C. 110. 78 Pollock, Cont. 72. Money paid to relieve an infant from such a duty is not within the rule. Thus, money paid at an infant's re- quest to a substitute in order to relieve the infant from a military draft Is not a necessary. Dorrell v. Hastings, 28 Ind. 478. T» Chappie V. Cooper, 13 Mees. & W. 252, 13 Law J. Bxch. 286. 80 Darby v. Boucher, 1 Salk. 279; Earle v. Peale, 1 Salk. 386; Probart v. Knouth, 2 Esp. 472, note; Price v. Sanders, 60 Ind. 310; Beeler v. Young, 1 Bibb (Ky.) 519, 521; Randall v. Sweet, 1 Denio (N. Y.) 460. Accordingly, a deed given by an infant to secure the repayment of money advanced to buy necessaries is voidable. Mar- tin V. Gale, 4 Ch. Div. 428. See Magee v. Welsh, 18 Cal. 155. (240) Ch. 4] INFANTS. g 162 lowed to recover, as he ought. *^ And an infant is liable at law as well as in equity for money paid at his request to a third person for necessaries furnished.®^ § 161. Same — Necessaries as to business. An infant is incapable in law of carrying on business, whether commercial or agricultural, and therefore, if he ac- tually engages in business, he is not liable for things with- out which it cannot be carried on. In legal contemplation, such things are not necessaries, and the case is not altered by the fact that the infant depends upon his business for sup- port.^^ § 162. Same — Necessaries as to property. It has been held that an infant is not liable for repairs made upon property owned by him;** nor for improvements placed thereon f^ nor for insurance of the same against loss siMarlow v. Pitfelld, 1 P. Wms. 558; Price v. Sanders, 60 Ind. 310; Watson v. Cross, 2 Duv. (Ky.) 147, 149. 82 Clarke v. Leslie, 5 Esp. 28; Hedgley v. Holt, 4 Car. & P. 104; Kilgore v. Rich, 83 Me. 305; Swift v. Bennett, 10 Cush. (Mass.) 436; Conn v. Cobuin, 7 N. H. 368; Randall v. Sweet, 1 Denio (N. Y.) 460; Genereux v. Sibley, 18 R. I. 43. See Bradley v. Pratt, 23 Vt. 378. sawhywall v. Champion, 2 Strange, 1083; Dilk v. Keighley, 2 Esp. 480; Lowe v. Griffith, 1 Scott, 458; Warwick v. Br-uce, 2 Maule & S. 205, 209; House v. Alexander, 105 Ind. 109; Mason v. Wright, 13 Mete. (Mass.) 306; Decell v. Lewenthal, 57 Miss. 331; Paul v. Smith, 41 Mo. App. 275, 281; Stern v. Meikleham, 56 Hun (N. Y.) 475; State v. Howard, 88 N. C. 650, 651; Grace v. Hale, 2 Humph. (Tenn.) 27. 84 Anonymous, 3 Salk. 195; Tupper v. Cadwell, 12 Mete. (Mass.) 559; Phillips v. Lloyd, 18 R. I. 99. This is especially true where, the infant is already under guardianship. West v. Gregg's Adm'r, 1 Grant Cas. (Pa.) 53. 85 Price V. Sanders, 60 Ind. 310, 314; Price v. Jennings, 62 Ind. Ill; Freeman v. Bridger, 49 N. C. 1. See Mathes v. Dobschuetz, 72 111. 438. (241) Law of Cent.— 16. § 164 CAPACITY OP PARTIES. [Ch. 4 or damage.^*^ And one who pays off a mortgage on an in- fant's property cannot recover the amount of him as for nec- essaries.*^ In legal contemplation, no necessity can exist for such expenditures as have been mentioned, solely upon the credit of the minor, since, if he has property that requires supervision, a guardian may be appointed. § 163. Same — Counsel fees. It has been said that, as a rule, an infant is not bound to pay for legal services rendered in his behalf at his request, •express or implied f^ but the question whether such services are a necessary in a particular case must be determined by the circumstances, as in case of other things claimed to be necessaries.®^ In cases where, under peculiar circumstances, a civil suit is the only means by which an infant can procure the absolute necessaries which he requires, the services of an attorney in prosecuting his rights may constitute a necessary, for which the infant will be required to pay.^" And the in- fant is liable for services rendered in defending him upon a criminal or a quasi criminal charge.®^ I 164. Necessities of infant. An article furnished to an infant may have potentially the S6 New Hampshire Mut. Fire Ins. Co. v. Noyes,. 32 N. H. 345. «7 Blcknell v. Bicknell, 111 Mass. 265. 88 Epperson v. Nugent, 57 Miss. 45. In Phelps v. Worcester, 11 N. H. 51, an attorney was refused a recovery for services rendered in protecting the Infant's property rights. 89 Cobbey v. Buchanan, 48 Neb. 391 ; Barker v. Hlbbard, 54 N. H. B39, 540; Thrall v. Wright, 38 Vt. 494. If an infant has no guardian, his estate is liable for the fees of counsel whose services contributed to secure it. Epperson v. Nugent, 57 Miss. 45. And see Searcy v. Hunter, 81 Tex. 644. Contra, Dillon v. Bowles, 77 Mo. 603. 90 Munson v. Washband, 31 Conn. 303. In Hanlon v. Wheeler (Tex. Civ. App.) 45 S. W. 821, the attorney was allowed to recover fees for prosecuting an action for personal injuries to the minor. 91 Barker v. Hlbbard, 54 N. H. 539; Askey v. Williams, 74 Tex. .294. {242) Ch. 4] INFANTS. § 164 attributes of a necessary, and yet be not such, because, in the particular case, the infant did not need it. To render an infant liable as for necessaries, a necessity for the thing furnished must have existed, regard being had to the infant's station in life and the particular circumstances of the case. Thus, if an infant resides at home with his parents, and he is properly maintained by them, he is not liable even for the common necessaries of life f^ and the same is true in refer- ence to an infant who has a guardian.** But the mere Tact that an infant has a father or a guardian does not save him from liability for things which he actually needed when they were furnished, if the father or guardian had failed in his duty to maintain the infant.®* Again, if an infant has an income sufficient to enable him to pay cash for supplies, the presumption is that his wants have been fully supplied from that source, and one who fur- nishes him articles on credit has the burden of showing the contrary.*^ The circumstances which control the character of things as 92 Bainbridge v. Pickering, 2 W. Bl. 1325; Angel v. McLellan, 16 Mass. 28, 31; Decell v. Lewenthal, 57 Miss. 331; Perrin v. Wilson, 10 Mo. 451; Goodman v. Alexander, 165 N. Y. 289, 292; Wailing v. Toll, 9 Johns. (N. Y.) 141; Guthrie v. Murphy, 4 Watts (Pa.) 80; Jones V. Colvin, 1 McMul. (S. C.) 14; Elrod v. Myers, 2 Head (Tenn.) 33; Nichol v. Steger, 6 Lea (Tenn.) 393. This ie true, even though the father is in poor circumstances. Hoyt v. Casey, 114 Mass. 397. 93 Nicholson v. Spencer, 11 Ga. 607; McKanna v. Merry, 61 111. 177; Davis v. Caldwell, 12 Cush. (Mass.) 512, 513; Kline v. L'Amou- reux, 2 Paige (N. Y.) 419; Goodman v. Alexander, 165 N. Y. 289, 292; Freeman v. Bridger, 49 N. C. 1; Guthrie v. Murphy, 4 Watts (Pa.) 80; Kraker v. Byrum, 13 Rich. Law (S. C.) 163; Elrod v. My- ers, 2 Head (Tenn.) 33; Nichol v. Steger, 6 Lea (Tenn.) 393. 9* Trainer v. Trumbull, 141 Mass. 527, Huffcut & W. Am. Cas. Cont. 220; Parsons v. Keys, 43 Tex. 557. See Brayshaw v. Eaton, 7 Scott. 183. 95 Nicholson v. Wilborn, 13 Ga. 467; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274. See Burghart v. Hall, 4 Mees. & W. 727; Barnes v. Toye, 13 Q. B. Div. 410, 412. (243) § 164 CAPACITY OF PARTIES. [Ch. 4 necessaries are the actual, and not the apparent, circumstan- ces of the case.®® All persons are bound to know the circum- stances qf an infant, and they deal with him at their peril.*'' Accordingly, if a tradesman supplies expensive goods to an infant because he thinks the infant's circumstances are bet- ter than they really are, or if he supplies goods of a useful class, not knowing that the infant is already sufficiently sup- plied, he is without remedy.®* If things of a useful character are supplied to an infant in an inordinate quantity, recovery may be had for only such quantity as was reasonably necessary.*® Things which might be necessary to a person occupying one position in life may not be necessary to a person in a different position. In determining the question of necessity, therefore, regard must be had to the infant's degree, estate, and condition.^"" The question of what is and what is not reasonably required by a person in a given station under given circumstances is a question of common sense and experience ; and the question is not whether the things are siich that a 96 Pollock, Cont. 70; Anson, Cont. (4tli Ed.) 112. 97 Story V. Pery, 4 Car. & P. 526; Brayshaw v. Eaton, 7 Scott, 183. 98 Anson, Cont. (4tli Ed.) 112; Barnes v. Toye, 13 Q. B. Div. 410; Cook V. Deaton, 3 Car. & P. 114; Burghart v. Angersteln, 6 Car. & P. 690; Nicholson v. Wilborn, 13 Ga. 467; Monumental Building Ass'n, No. 2, v. Herman, 33 Md. 128, 131; Trainer v. Trumbull, 141 Mass. 527, 530, Hjuffcut & W. Am. Gas. Cont. 220; Kline v. L'Amou- reux, 2 Paige (N. Y.) 419; Johnson v. Lines, 6 Watts & S. (Pa.) 80. And see cases cited in notes 92, 93, supra. 99 Burghart v. Angerstein, 6 Car. & P. 690; Johnson v. Lines, 6 "Watts & S..(Pa.) 80. 100 Ryder v. Wombwell, L. R. 4 Exch. 32, 38; Peters v. Fleming, 6 Mees. & W. 42, 46; Wharton v. Mackenzie, 5 Q. B. 606; Nicholson V. Spencer, 11 Ga. 607, 610; Price v. Sanders, 60 Ind. 310; Davis v. Caldwell, 12 Cush. (Mass.) 512, 513; Breed v. Judd, 1 Gray (Mass.) 455, 458; Paul v. Smith, 41 Mo. App. 275; Jordan v. Coffield, 70 N. C. 110. Articles of dress and ornament, although such as are gen- erally worn by minors of like condition, are not necessarily neces- saries. Perrin v. Wilson, 10 Mo. 451. (244) Ch. 4] INFANTS. § 166 person of the infant's means may reasonably buy and pay for them, but whether they may reasonably be said to be so nec- essary for him that, though an infant, he must obtain them on credit, rather than go witliout.-^"-' For the purpose of de- termining this question, the court will take notice of the or- dinary customs and usages of society.-"'^ § 165. Same — Province of court and jury. The qiiestion of what are necessaries in a particular case is a mixed question of law and of fact. Whether articles of a certain class or kind, and whether certain subjects of ex- penditure, are or are not necessaries, is a matter for the de- termination of the court; but the question whether a par- ticular thing comes within these classes, and the question, also, as to quantity, are generally for the jury.^"^ § 166. Necessities of infant's family. While the marriage of a man under twenty-one does not emancipate him from the disabilities of infancy, yet the scope of his necessities is thereby enlarged, and the scope of his lia- 101 Pollock, Cont. 69; Ryder v. Wombwell, L. R. 4 Bxch. 32, 39. 102 Ryder V. Wombwell, L. R. 4 Exch. 32, 40. 103 1 Parsons, Cont. 296; Ryder v. Wombwell, E. R. 4 Exch. 32; McKanna v. Merry, 61 111. 177; Henderson v. Fox, 5 Ind. 489; Beeler V. Young, 1 Bibb (Ky.) 519; Tupper v. Cad well, 12 Mete. (Mass.) 559, 563; Decell v. Lewenthal, 57 Miss. 331; Jordan v. Coffleld, 70 N. C. 110, 113; Johnson v. Lines, 6 Watts & S. (Pa.) 80; Saunders V. Ott's Adm'r, 1 McCord (S. C.) 572; Grace v. Hale, 2 Humph. (Tenn.) 27; Parsons v. Keys, 43 Tex. 557; Bent v. Manning, 10 Vt. 225, 230. "See Maddox v. Miller, 1 Maule & S. 738; Peters v. Flem- ing, 6 Mees. & W. 42; Wharton v. Mackenzie, 5 Q. B. 606; Swift v. Bennett, 10 Cush. (Mass.) 436; Davis v. Caldwell, 12 Cush. (Mass.) 512; Cobbey v. Buchanan, 48 Neb. 391; Englebert v. Troxell, 40 Neb. 195; Hall v. Butterfield, 59 N. H. 354; Melton v. Katzenstein (Tex. Civ. App.) 49 S. W. 173. The question of quality also is for the jury. Henderson v. Fox, 5 Ind. 489; Merriam v. Cunningham, 11 Cush. (Mass.) 40, 44. (245) § 167 CAPACITY OF PARTIES. [Ch. 4 bilities expands correspondingly. The necessaries for a single infant are those which pertain to him individually; those of a married infant are such as pertain to himself and to his family. An infant is liable, therefore, to the same extent as an adult, for necessaries furnished to his wife and children."* i 167. Express contracts for necessaries. As has been said, the liability of an infant for necessaries furnished him on credit does not arise out of his consent given. It is quasi contractual, and results solely from an obligation imposed upon him by law. Accordingly, an in- fant's express contract for necessaries is voidable, the same as his contracts in general.-"'® The fact that an express prom- ise is made does not defeat the right to recover on quasi con- tract, however. While the price stipulated for cannot be re- covered, the seller may recover the reasonable value of the 104 Turner v. Trisby, 1 Strange, 168; Cooper v. State, 37 Ark. 421; Cantlne v. Phillip's Adm'r, 5 Har. (Del.) 428; Price v. Sanders, 60 Ind. 310; Chapman v. Hughes, 61 Miss. 339. 105 ■VPilliamson v. Watts, 1 Camp. 552; Candell v. Shaw, 4 Term R. 361, 363; Hyer v. Hyatt, 3 Cranch, C. C. 276, Fed. Cas. No. 6,977; Flexner v. Dickerson, 72 Ala. 318; Barnes v. Barnes, 50 Conn. 572; Morton v. Steward, 5 III. App. 533; Henderson v. Fox, 5 Ind. 489; Beeler v. Young, 1 Bibb (Ky.) 519; Trainer v. Trumbull, 141 Mass. 527, 530, Huffcut & W. Am. Cas. Cont. 220; Locke v. Smith, 41 N. H. 346; Petrie v. "Williams, 68 Hun (N. Y.) 589; Bouchell v. Clary, 3 Brev. (S. C.) 194; Parsons v. Keys, 43 Tex. 557. An infant may bind himself by an express contract for necessaries, if the form of the contract is such that the consideration may be inquired into. Cooper v. State, 37 Ark. 421; Stone v. Dennison, 13 Pick. (Mass.) 1; Dubose v. Wheddon, 4 McCord (S. C.) 221; McMinn v. Rlchmonds, 6 Yerg. (Tenn.) 9, 19; Bradley v. Pratt, 23 Vt. 378. See cases cited in note 108, infra. An infant's express promise to pay for necessaries to be furnished him may not be repudi- ated after it has been executed. Wilhelm v. Hardman, 13 Md. 140; Stone V. Dennison, 13 Pick. (Mass.) 1; Breed v. Judd, 1 Gray (Mass.) 455; Squier v. Hydliff, 9 Mich. 274; Spicer v. Earl, 41 Mich. 191. . (246) Ch. 4] INFANTS. § 167 things furnished, if they are necessaries.-"'® The cases are in conflict as to the right to recover on a note given for the price of necessaries. In some states, no recovery whatever can be had,^"'' while, in others, the payee is allowed to re- cover so much of the note as appears to be the reasonable value of the necessaries.-'"* This latter doctrine is an anom- aly in procedure. -""^ VI. Same — Liability fob Toets Akisinq Out of Contract. While an infant is generally answerable for his torts, yet a mere breach of his contract may not be treated as a tort, so as to make him liable. To charge him for a tort connected with contract, the act complained of must be a distinct, willful, and positive wrong of itself. An Infant is not liable on the contract, even though he in- duced the other party to enter into it by falsely representing himself to be of age. However, the adult party may rescind the contract because of the fraud, or, in some jurisdictions, hold the infant liable for the ensuing damages in an action for deceit. lOBFlexner v. Dickerson, 72 Ala. 318; Barnes v. Barnes, 50 Conn. 572; Morton v. Steward, 5 111. App. 533; McCrillis v. How, 3 N. H. 348; Locke v. Smith, 41 N. H. 346. 107 Morton v. Steward, 5 111. App. 533 ; Ayers v. Burns, 87 Ind. 245 ; Heeler v. Young, 1 Bibb (Ky.) 519; McCrillis v. How, 3 N. H. 348; Penton v. White, 4 N. J. Law, 111; Swasey v. Vanderheyden's Adm'r, 10 Johns. (N. Y.) 33; Bouchell v. Clary, 3 Brev. (S. C.) 194; McMinn V. Richmonds, 6 Yerg. (Tenn.) 9. losEarle v. Reed, 10 Mete. (Mass.) 387; Aaron v. Harley, 6 Rich. Law (S. C.) 26; Haine's Adm'r v. Tarrant, 2 Hill (S. C.) 400; Rain- water V. Durham, 2 Nott & McC. (S. C.) 524; Askey v. Williams, 74 Tex. 294; Bradley v. Pratt, 23 Vt. 378; Ray v. Tubbs, 50 Vt. 688, 694. An infant who comes into equity to have a note canceled which was given for necessaries will be required to pay the reasonable value of the necessaries. McMinn v. Richmonds, 6 Yerg. (Tenn.) 9. The prin- ciple of the text is applied to all written contracts in these states, so as to allow a recovery pro tanto for the reasonable value of the necessaries. Guthrie v. Morris, 22 Ark. 411; Cooper v. State, 37 Ark. 421; Trainer v. Trumbull, 141 Mass. 527, 530, HufCcut & W. Am. Cas. Cont. 220. 109 Keener, Quasi Cont. 21. (247) § 168 CAPACITY OF PARTIES. [Ch. 4 ^ 168. In general. Generally speaking, an infant is liable for a tort, the same as an adult, subject only to his being in fact of such age and discretion that he can have a wrongful intention, where such intention is material ;^^** but a breach of contract may not be treated as a tort, so as to make the infant liable. The "wrong must be more than a misfeasance in the performance of a contract, — it must be a separate and independent act. The dominant consideration upon which this principle rests is, not that the infant shall be charged for his torts, but that he shall be protected from his contracts. Accordingly, if the cause of action is in substance ex contractu, or is so di- rectly connected with the contract that to allow a recovery in the action would be an indirect way of enforcing the con- tract, he cannot be held;^^^ but if the act complained of is subsequent to the contract, and not a mere breach of it, but a distinct, willful, and positive wrong of itself, then, al- though it may be connected with a contract, and even such that, but for the contract, there would have been no oppor- tunity of committing it, the infant is liable.-' -"^^ This prin- ciple is pretty generally accepted, in both England and Amer- ica ; but in applying it to the facts the different courts do not always reach the same conclusions, — an observation to be borne in mind in considering the following applications of the principle : If an infant hires a horse or a vehicle 110 Pollock, Cont. 74; Peterson v. HafEner, 59 Ind. 130; Shaw v. Coffin, 58 Me. 254; Sikes v. Johnson, 16 Mass. 389; Conway v. Reed, €6 Mo. 346; Tifft v. Tifflt, 4 Denlo (N. Y.) 175; Bullock v. Babcoek, 3 Wend. (N. Y.) 391; Loop's Ex'rs v. Loop's Adm'r, 1 Vt. 177; El- well V. Martin, 32 Vt. 217. 111 Anson, Cont. (4th Ed.) 113; Pollock, Cont. 74; Vasse v. Smith, 6 Cranch (U. S.) 226; Rice v. Boyer, 108 Ind. 472, 474; Campbell v. Perkins, 8 N. Y. 430, 440. 112 Becker v. Mason, 93 Mich. 336; Ferguson v. Bobo, 54 Miss. 121; Prescott V. Norris, 32 N. H. 101, 103. (248) Ch. 4] INFANTS. § 168 with which to go to a place agreed on, and then drives it else- where, to its injury, he is generally held to be chargeable in tort.-'^^ On the other hand, an infant who hires a horse and injures it by overriding or overdriving cannot be made liable on the contract of hiring by framing the action in tort for negligence,^-^'* though he is liable in tort for positive wrong- ful acts willftiUy committed, whereby the horse is injured ■or Idlled.^^^ ISTor can an infant ordinarily be made liable for goods sold and delivered, by charging him in trover and ■conversion ;^^^ yet, if he obtains possession of the goods by fraud, this alters the aspect, and trover or case will lie, not- withstanding his minority.^ ^'' And trover will lie against an infant for the conversion of property which rightfully came 113 Homer v. Thwing, 3 Pick. (Mass.) 492; Churchill v. White, 58 Neb. 22; Freeman v. Boland, 14 R. I. 39; Towne v. Wiley, 23 Vt. 355; Ray v. Tubbs, 50 Vt. 688. Contra, Schenk v. Strong, 4 N. J. Law, 97; Wilt v. Welsh, 6 Watts (Pa.) 9; Penrose v. Curren, 3 Rawle (Pa.) 351. If an infant hires a horse expressly for riding, and not for jumping, and then lends it to a friend, who jumps it and kills it, the infant is liable to the owner in tort, for what he does is not an abuse of the contract, but is the doing of an act which he is expressly forbidden by the owner to do with the animal. Burnard v. Haggis, 14 C. B. (N. S.) 45, 32 Law J. C. P. 189. 11* Anson, Cont. (4th Ed.) 113; Jennings v. Rundall, 8 Term R. 335; Baton v. Hill, 50 N. H. 235; Campbell v. Stakes, 2 Wend. (N. Y.) 137; Young V. Muhling, 48 App. Div. (N. Y.) 617. 115 Baton V. Hill, 50 N. H. 235; Young v. Muhling, 48 App. Div. (N. Y.) 617, 620; Campbell v. Stakes, 2 Wend. (N. Y.) 137. Contra, Jennings v. Rundall, 8 Term R. 335. lie Anson, Cont. (4th Ed.) 113; Slayton v. Barry, 175 Mass. 513. 1" Mills V. Graham, 1 Bos. & P. (N. R.) 140, 145; Mathews v. Cowan, '59 111. 341; Walker v. Davis, 1 Gray (Mass.) 506; Wallace v. Morss, -5 Hill (N. Y.) 391; Kilgore v. Jordan, 17 Tex. 341, 351. In Slayton v. Barry, 175 Mass. 513, it is held, however, that an infant is not liable in tort for either deceit or conversion, the proof of which requires plaintiff to show that a contract which the infant fraudu- lently induced him to make and perform was part and parcel of the fraudulent transaction. (249) § 168 CAPACITY OP PARTIES. [Ch. 4 into his possession under a contract with the owner ;^^® or, if the infant still has the property, the owner may resort to deti- nue or replevin.^ ^® An infant may be held liable as seller no more than as buyer by framing the caus.e of action in tort. Thus, an infant who makes a false warranty in selling prop- erty does not subject himself to liability in an action for de- ceit.^^" If an infant induces another to enter into a con- tract with him b}'' falsely representing himself to be of age, the other party may, in some jurisdictions, hold him liable in damages in an action for deceit,-' ^^ or rescind the con- tract for fraud ;^^~ but at law the infant is not, either on the ground of estoppel or otherwise, liable on the contract. The engagement is voidable at his option, the same as contracts entered into by him in good faith.^^^ While an infant who iisvasse v. Smith, 6 Crancli (U. S.) 226; Lewis v. Littlefleld, 15 Me. 233, 17 Me. 40; Fitts v. Hall, 9 N. H. 441; Green v. Sperry, IS Vt. 390; Baxter v. Bush, 29 Vt. 465. See, also, Evans v. Morgan, 69 Miss. 328. Case also lies: Peigne v. Sutcliffe, 4 McCord (S. C.) 387. See cases cited in notes 113, 115, supra. 119 Oliver v. McClellan, 21 Ala. 675; Badger v. Phinney, 15 Mass. 359; Eckstein v. Frank, 1 Daly (N. Y.) 334. See Mills v. Graham, 1 Bos. & P. (N. R.) 140, 145. 120 Green v. Greenbank, 2 Marsh. 485; Ferguson v. Bobo, 54 Miss. 121, 131; Prescott v. Norris, 32 N. H. 101; Gilson v. Spear, 38 Vt. 311; West v. Moore, 14 Vt. 447; Morrill v. Aden, 19 Vt. 505. Contra, Word V. Vance, 1 Nott & McC. (S. C.) 197. 121 Davidson v. Young, 38 111. 145; Carpenter v. Carpenter, 45 Ind. 142; Rice v. Boyer, 108 Ind. 472; Fitts v. Hall, 9 N. H. 441; Wallace V. Morss, 5 Hill (N. Y.) 391; Eckstein v. Frank, 1 Daly (N. Y.) 334; Hughes V. Gallans, 10 Phila. (Pa.) 618. Contra, Johnson v. Pie, 1 Keh. 913, 1 Lev. 169, Sid. 258; Liverpool Adelphi Loan Ass'n v. Fair- hurst, 9 Bxch. 422, 430; Price v. Hewett, 8 Exch. 146, 148; Brown V. Dunham, 1 Root (Conn.) 272; Slayton v. Barry, 175 Mass. 513; semble, Curtin v. Patton, 11 Serg. & R. (Pa.) 305, 309; Nash v. Jewett, 61 Vt. 501. 122 Neff V. Landis, 110 Pa. 204. See, also, the cases cited in note 117, supra. i23Bartlett v. Wells, 1 Best & S. 836, 31 Law J. Q. B. 57; Sims (250) Ch. 4] INFANTS, § 168 induces persons to deal with him by falsely representing him- self to be of full age is not liable upon contract, yet he in- curs an obligation in equity. This obligation is not con- tractual. It rests upon the principle that an infant shall not take advantage of his own wrong, — and it impels the infant merely to abide by acts done at his request upon the faith of his misrepresentation, and to restore any advantage which he has obtained by reason of his falsehood to the person mis- led thereby.^ ^* Upon this principle, a man may be estopped in equity from disaffirming a deed made by him in infancy, where the other party was induced to enter into the transac- tion by fraudulent means. ^^^ In order to establish this equi- table liability on the ground of a misrepresentation as to age, the infant must actually have represented himself to be of V. Everhardt, 102 U. S. 300; McKamy v. Cooper, 81 Ga. 679; Wieland V. Kobick, 110 111. 16; Carpenter v. Carpenter, 45 Ind. 142; Price v. Jennings, 62 Ind. Ill; Merriam v. Cunningliam, 11 Gush. (Mass.) 40; Baker v. Stone, 136 Mass. 405; Conrad v. Lane, 26 Minn. 389; Ferguson v. Bobo, 54 Miss. 121; Ridgeway v. Herbert, 150 Mo. 606; Burley v. Russell, 10 N. H. 184; Conroe v. Birdsall, 1 Johns. Cas. (N. Y.) 127; New York Building L. B. Co. v. Fisher, 23 App. Div. (N. Y.) 363; Johnson v. Clark, 23 Misc. Rep. (N. Y.) 346; Brown V. McCune, 5 Sandf. (N. Y.) 224; Carolina Interstate B. & L. Ass'n V. Black, 119 N. C. 323; Norris v. Vance, 3 Rich. Law (S. C.) 164; Whitcomb v. Joslyn, 51 Vt. 79. See Wilkinson v. Buster, 124 Ala. 574; Wilson's Guardian v. Wilson, 20 Ky. Law Rep. 1971, 50 S. W. 260. The rule stated in the text applies also in case of false rep- resentations not relating to age. Vin&en v. Lockard, 7 Bush. (Ky.) 458; Studwell v. Shapter, 54 N. Y. 249. 124 Pollock, Cont. 52, 75 ; Ex parte Unity Joint-Stock Mut. Bank- ing Ass'n, 3 De Gex & J. 63, 4 Jur. (N. S.) 1257; Bartlett v. Wells, 1 Best & L. 836, 841, 31 Law J. Q. B. 57; Cory v. Gertcken, 2 Madd. 40; Clarke v. Cobley, 2 Cox, 173; Overton v. Banister, 3 Hare, 503; Semite, Cobbey v. Buchanan, 48 Neb. 391. See Williamson v. Jones,. 43 W. Va. 562. i25jSem&Je, Davidson v. Young, 38 111. 145; Bradshaw v. Van Winkle, 133 Ind. 134; Schmitheimer v. Eiseman, 7 Bush (Ky.) 298; Ferguson v. Bobo, 54 Miss. 121; Kilgore v. Jordan, 17 Tex. 341, 347, 355. (251) ij 170 CAPACITY OF PARTIES. [Oh. 4 full age. It is not enough that.the other party did not know of his minority, and that the minor failed to disclose it.-'^* VII. Same — Ratification and Avoidance — In Gbneeal. Upon coming of age, a man may, at his election, either ratify or disaffirm a contract made in infancy. This right of election may be exercised by the infant him- self in his lifetime, or, after his death, by his personal repre- sentatives or privies in blood. All others, including the adult party, are bound by the contract. Generally speaking, the executed contracts of an infant are valid and operative until disaffirmed, while his executory con- tracts are invalid unless he ratifies them. 5 169. In general. We have seen that, according to the better opinion, the con- tract of an infant is not void, but merely voidable at his elec- tion. This, being the case, the infant may, when he attains his majority, ratify his contract, and assume the rights and liabilities arising from it, or' disaffirm the contract, and avoid its burdens. ^^'^ § 170. Right of election. Infancy as a vitiating element in contract is a personal privilege. The disability is imposed by law for the infant's 120 Ex parte Jones, 18 Ch. Div. 109; Stikeman v. Dawson, 1 De Gex 6 S. 90; Sewell v. Sewell, 92 Ky. 500; Baker v. Stone, 136 Mass. 405; Brantley v. Wolf, 60 Miss. 420; Thormaehlen v. Kaeppel, 86 Wis. 378. The fact that a misrepresentation is made by the infant does not estop him if the adult knows of the falsity. Nelson v. Stocker, 4 De Gex & J. 458, 5 Jur. (N. S.) 751; Charles v. Hastedt, 51 N. J. Bq. 171. 127 Williams v. Moor, 11 Mees. & W. 256; Fant v. Cathcart, 8 Ala. 725; Slaughter v. Cunningham, 24 Ala, 260; Kansas City, P. & G. Ry. Co. V. Moon, 66 Ark. 409; Des Moines Ins. Co. v. Mclntire, 99 Iowa, 50; Allen v. Poole, 54 Miss. 323. Such a ratification is an illustration of the limited class of cases in which a past considera- (252) Ch. 4] INFANTS. § I7a benefit, and, as a rule, none but the infant may avoid the contract on this ground. The adult party^^* and third persons in general may not take advantage of the defect ; as to them the contract is valid and binding, unless the infant, when he comes of age, sees fit to avoid it.^^* Only the infant himself, in his lifetime, or, if he dies without having rejected the con- tion is allowed to support a subsequent promise. Kendrick v. Neisz, 17 Colo. 506. See section 328, infra. 128 Holt V. Clarencieux, 2 Strange, 937, 939, Langdell, Cas. Cont. 397; Dentler v. O'Brien, 56 Ark. 49; Field v. Herrick, 101 111. 110; Johnson v. Rockwell, 12 Ind. 76; Garner v. Cook, 30 Ind. 331; Can- non V. Alsbury, 1 A. K. Marsh. (Ky.) 76; Oliver v. Houdlet, 13 Mass. 237; Thompson v. Hamilton, 12 Pick. (Mass.) 425; Ferguson V. Bell's Adm'r, 17 Mo. 347, 351; Hunt v. Peake, 5 Cow. (N. Y.) 475; Brown v. Caldwell, 10 Serg. & R. (Pa.) 114; Chambers v. Ker, 6 Tex. Civ. App. 373. The adult party may defeat a bill for specific performance of the contract, where the infant files the bill in his minority. Specific performance Is not allowed at the suit of the infant during his minority, because the ramedy is not mutual, the infant not being bound. Pollock, Cont. 59; Flight v. Bolland, 4 Russ. 298. i29Coan V. Bowles, 1 Show. 165, 171; Keane v. Boycott, 2 H. Bl. 511, 515; Hooper v. Payne, 94 Ala. 223, 225; Nightingale v. Withing- ton, 15 Mass. 272; Oliver v. Houdlet, 13 Mass. 237; Hill v. Keyes, 10 Allen (Mass.) 258; Holmes v. Rice, 45 Mich. 142; Alsworth v. Cordtz, 31 Miss. 32; Beardsley v. Hotchkiss, 96 N. Y. 201; Rose v. Daniel, 3 Brev. (S. C.) 438. See Irvine's Heirs v. Crockett, 4 Bibb (Ky.) 437. A subsequent lienor may not urge the infancy of the mortgagor in a prior mortgage. Baldwin v. Rosier, 1 McCrary, 384. A shipper may not avoid a charter party from the general owner of the vessel to an infant. Thompson v. Hamilton, 12 Pick. (Mass.) 425. The creditors of an infant may not urge his disability. Ken- dall V. Lawrence, 22 Pick. (Mass.) 540. Nor may the infant's as- signee in insolvency. Mansfield v. Gordon, 144 Mass. 168. The surety for an Infant is bound, in spite of the infancy. Kyger v. Sipe, 89 Va. 507. So, also, is a cosurety with an infant. Wills v. Evans, 18 Ky. Law Rep. 1067, 38 S. W. 1090. The maker of a note may not urge the infancy of the payee in an action on the paper by an indorsee. Frazler v. Massey, 14 Ind. 382. See, also, page 303, infra. However, a trustee may refuse to pay to the assignee of the infant his share in the trust estate. Haynes v. Slack, 32 Miss. 193. (253) § 170 CAPACITY OP PARTIES. [Ch. 4 tract, then his legal representatives or privies in blood, may avoid the engagement because of his nonage when he entered into it.^^° While the legal representatives of a deceased in- fant and his privies in blood are invested with his right to disaffirm the contract, it is otherwise as to the privies in law or the privies in estate of an infant, living or dead. The latter may not urge the disability in avoidance of the con- tract.-'^^ If, however, the infant himself, or some one law- fully empowered thereunto for him, has disaffirmed the con- tract, his privies in estate may take advantage of it.-^*^ Thus, if an infant conveys land, and afterwards, upon at- taining his majority, makes another conveyance of the same property to a different grantee, the latter may disregard the first deed, as having been disaffirmed by the infant, and, m an otherwise proper case, recover the land.^^* The power of the legal representatives or privies in blood of a deceased infant are not limited, in this connection, to disaffirming his contracts. They may also ratify them.^^* 130 Shropshire v. Burns, 46 Ala. 108; Bozeman v. Browning, 31 Ark. 364; Hastings v. DollarMde, 24 Cal. 195; Law v. Long, 41 Ind. 686; Hardy v. Waters, 38 Me. 450; Towle v. Dresser, 73 Me. 252; Inhabitants of Worcester v. Baton, 13 Mass. 371, 375 ; Ward v. Steam- boat "Little Red," 8 Mo. 358; Roberts v. Wiggin, 1 N. H. 73; Van Bramer v. Cooper, 2 Johns. (N. Y.) 279; Hartness v. Thompson, 5 Johns. (N. Y.) 160; O'Rourke v. Hall, 56 N. Y. Supp. 471. The guardian of an adult may avoid a conveyance made by the ward in infancy. Chandler v. Simmons, 97 Mass. 508. 131 Whittingham's Case, 8 Coke, 42b; Illinois Land & Loan Co. V. Bonner, 75 111. 315; Harris v. Ross, 112 Ind. 314; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 236, 248; Levering v. Heighe, 2 Md. Ch. 8i; Hussey v. Jewett, 9 Mass. 100; Martin v. Mayo, 10 Mass. 137, 139; Harvey v. Briggs, 68 Miss. 60; Ferguson v. Bell's Adm'r, 17 Mo. 347, 351; Parson v. Hill, 8 Mo. 135; Counts v. Bates, Harp. (S. C.) 464; Veal v. Fortson, 57 Tex. 482; Person v. Chase, •37 Vt. 647. 132 Shrock V. Crowl, 83 Ind. 243; Price v. Jennings, 62 Ind. 111. issRiggs V. Fisk, 64 Ind. 100; Den d. Hoyle v. Stowe, 19 N. C. 320, 323; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. 134 Shropshire v. Burns, 46 Ala. 108 ; Jefford's Adm'r v. Ringgold, (254) Ch. 4] INFANTS. § 171 i 171. Necessity for ratification or disaifirmance. As to the necessity for ratification or disaffirmance, some contracts entered into in infancy are valid until rescinded, while others are invalid until ratified. The rule has been well formulated by Sir William Anson '.^^^ "It would seem that, where an infant acquires an interest in permanent prop- erty, to which obligations attach, or enters into a contract which involves continuous rights and duties, benefits and liabilities, and has taken benefits under the contract, he would be bound unless he expressly disclaimed the contract. On the other hand, a promise to perform some isolated act, or a contract wholly executory, would not be binding upon the infant unless he expressly ratified it upon coming of age." In shorter phrase, it may be laid down as a rule applicable in ordinary cases that the executed contracts of an infant are valid and operative until disaffirmed, while his executory con- tracts are invalid unless he ratifies them after he attains his majority.-'*® An important illustration of the executory con- tract which must be ratified in order to give it validity is the promissory note. The payee may not recover thereon unless the infant has ratified it after coming of age.-'*^ The con- tracts which ^'equire a special disclaimer to avoid them, and which are therefore valid until rescind_ed, are various.-'*^ An 6 Ala. 544; Illinois Land & Loan Co. v. Bonner, 75 111. 315, 322. Contra, Counts v. Bates, Harp. (S. C.) 464. 135 Anson, Cont. (4tli Ed.) 106. 136 Stone V. WytWpol, Cro. Bliz. 126; Vidltz v. O'Hagan, 68 Law J. Ch. 553, [1899] 2 Ch. 569, 80 Law T. (N. S.) 794, 47 Wkly. Rep. 571; Savage v. Lichlyter, 59 Ark. 1; Wills v. Evans, 18 Ky. Law Rep. 1067, 38 S. W. 1090; Tobey v. Wood, 123 Mass. 88; Carrell v. Potter, 23 Mich. 377; Minock v. Shortridge, 21 Mich. 304; Beards- ley V. Hotchkiss, 96 N. Y. 201; Curtin v. Patton, 11 Serg. & R. (Pa.) 305; Allen v. Ruddell, 51 S. C. 366. 137 Buzzell V. Bennett, 2 Cal. 101; Henderson v. Fox, 5 Ind. 489; Tyler v. Fleming, 68 Mich. 185; Nichols & Shepard Co. v. Snyder, 78 Minn. 502; Bdgerly v. Shaw, 25 N. H. 514. 138 Adult shareholders who acquired their shares in their infancy (255) § 171 CAPACITY OF PARTIES. [Ch. 4 important illustration is an infant's deed of land. It passes a good title, subject to be defeated only by the infant's dis- affirming the conveyance when he arrives at full age.^^" And the same is true of his transfer of personal property, if ac- companied by the necessary delivery of the chattels.^*" are liable for calls which, accrued while they were infants, in the absence of a disaffirmance of the contract of purchase, and may be held liable as contributories, where the company was ordered to be wound up after they attained their majority without disclaiming the shares. Anson, Cont. {4th Ed.) 106, 107; Pollock, Cent. 56; Lums- den's Case, 4 Ch. App. 31; North Western Ry. Co. v. McMichael, 5 Exch. 114; Birkenhead, L. & C. Junction Ry. Co. v. Pilcher, 20 Law J. Exch. 97. In the case last cited, the court say that shareholders "have been treated, therefore, as persons in a different situation from mere contractors, for then they would have been exempt; but, in truth, they are purchasers who have acquired an interest, not in a mere chattel, but in a subject of a permanent nature, either by contract with the company, or purchase or devolution from those who have so contracted, and with certain obligations attached to it which they were bound to discharge, and have been thereby placed in a situation analogous to an infant purchaser of real estate who has taken possession, and thereby becomes liable to all the obliga- tions attached to the estate," unless he elects to disaffirm the pur- chase. If an infant enters into a partnership, either by express con- tract or by holding himself out as a partner, he is liable for losses accruing after he attains his majority, where he does not repudiate the partnership upon coming of age. Anson, Cont. (4th Ed.) 107; Pollock, Cont. 56; Goode v. Harrison, 5 Barn. & Aid. 147. In this last case it was said: "The infant, by holding himself out as a part- ner, contracted a continual obligation, and that obligation remains till he thinks proper to put an end to it. * * * If he wished to be understood as no longer continuing as a partner, he ought to have notified it to the world." J39 Scranton v. Stewart, 52 Ind. 68; Law v. Long, 41 Ind. 586; In- habitants of Worcester v. Baton, 13 Mass. 371, 375; Haynes v. Ben- nett, 53 Mich. 15, 17; Dixon v. Merritt, 21 Minn. 196; Englebert v. Troxell, 40 Neb. 195; Doe d. McCormic v. Leggett, 53 N. C. 425; Logan V. Gardner, 136 Pa. 588. See, also, Irvine v. Irvine, 9 Wall. (U. S.) 617, 627. See Holmes v. Blogg, 8 Taunt. 35, as to disaffirm- ance of a lease running to an infant. 110 Hastings v. Dollarhide, 24 Cal. 195; Cogley v. Cushman, 16 Minn. 397 (Gil. 354); Rogers' Ex'rs v. Berry, 10 Johns. (N. Y.) 132; Farr v. Sumner, 12 Vt. 28. But see Carroll v. Potter, 23 Mich. 377. (256) Ch. 4] INFANTS. § 172 VIII. Same — Sufficiency of Ratification. Ratification of a contract made in infancy may be either ex- press or implied. To constitute an express ratification of an executory contract, the words must amount in effect to a new promise by the quon- dam infant. A bare acknowledgment of the obligation of the contract is not sufficient. It is otherwise where the contract is executed. Implied ratification occurs where there is any act or con- duct on the part of the quondam infant which unequivocally shows that he recognizes the existence and validity of the con- tract, and intends to be bound by it. Ratification may be effectually made by parol, regardless of the form of the contract. A man does not bind himself as by ratification of a contract made in infancy unless he is aware of the facts so as to act intelligently ; but, by the better opinion, an otherwise sufficient ratification is not defeated by the fact that he does not know that he has the right to avoid the contract. Until he reaches his majority, a man is incapable of conclu- sively ratifying a contract. § 172. What constitutes ratification. While a contract made in infancy is Mjirdinarily voidable at the option of the infant, yet he may, on coming of age, ratify or confirm the contract, and thereby render it binding upon him ab initio. This ratification may take the form of express words, or it may be implied from the conduct of the infant after reaching his majority. Express ratification. When language is relied upon by the adult party to show ratification, a distinction is to be noted between contracts ex- ecutory and contracts executed. If the contract is executed, a bare recognition of its validity by the former infant is suf- ficient to render it binding upon him ; but if the contract is (25Y) Law of Cont.— 17. § 172 CAPACITY OF PARTIES. [(Jh. 4 executory, then the words must amount in effect to a new promise by the former infant. A bare acknowledgment of the obligation of the contract is not sufficient to charge him.^*^ 1" Flexner v. Dickerson, 72 Ala. 318; Kendrick v. Neisz, 17 Colo. 506; Bennett v. Collins, 52 Conn. 1; Catlin v. Haddox, 49 Conn. 492; Wilcox V. Roath, 12 Conn. 550; Martin v. Byrom, Dud. (Ga.) 203; Fetrow v. Wiseman, 40 Ind. 148; Conklin v. Ogborn, 7 Ind. 553; Smith V. Kelley, 13 Mete. (Mass.) 309, 310; Tyler v. Gallop's Estate, 68 Mich. 185; Baker v. Kennett, 54 Mo. 82, 92; Tihhets v. Gerrlsh, 25 N. H. 41; Hale v. Gerrlsh, 8 N. H. 374; Bigelow v. Grannis, 2 Hill (N. Y.) 120; Bresee v. Stanly, 119 N. C. 278; Turner v. Gaither, S3 N. C. 357; Hinely v. Margaritz, 3 Pa. 428; semble, Chambers V. Wherry, i Bailey (S. C.) 28; Reed v. Boshears, 4 Sneed (Tenn.) :117. However, to constitute a ratification, the words need follow no particular form. A substantial promise is sufficient. It is enough If they show an intent to be bound by the contract. Kendrick v. Neisz, 17 Colo. 506; Baker v. Kennett, 54 Mo. 82, 92; Henry v. Root, 33 N. Y. 526, 545, 546; Goodsell v. Myers, 3 Wend. (N. Y.) 479; Hatch V. Hatch's Estate, 60 Vt. 160, 170. If the infant's new promise is conditional, depending for its fulfillment upon the happening of a contingency, the adult party has the burden of showing that the contingency has happened. Cole v. Saxby, 3 Esp. 159; Proctor v. Sears, 4 Allen (Mass.) 95; Thompson v. Lay, 4 Pick. (Mass.) 48; Minock v. Shortridge, 21 Mich. 304; Everson v. Carpenter, 17 Wend. (N. Y.) 419; Chandler v. Glover's Adm'r, 32 Pa. 509. See Bdgerly V. Shaw, 25 N. H. 514. Where the infant retains the consideration for his promise after he becomes of age, his mere acknowledgment of the obligation of the contract constitutes a valid ratification. Catlin V. Haddox, 49 Conn. 492. But bare retention of consideration ty the infant after coming of age does not amount to ratification. Benham v. Bishop, 9 Conn. 330. Where the infant, after becoming ,of age, told the other party she intended to perform the contract, and asked him for an advance payment thereon, it constituted a ratification. Barlow v. Robinson, 174 111. 317. A will directing the testator's just debts to be paid is not a valid ratification of a debt contracted in infancy. Smith v. Mayo, 9 Mass. 62. Words held to constitute a new promise sufficient to bind the former infant. Bar- naby v. Barnaby, 1 Pick. (Mass.) 221; Whitney v. Dutch, 14 Mass. 457; Martin v. Mayo, 10 Mass. 137; Orvis v. Kimball, 3 N. H. 314; Bobo V. Hansen, 2 Bailey (S. C.) 114. In some states, the statute requires the new promise of the quondam infant to be in writing in .order to be binding on him. (258) Ch. 4] INFANTS. § 172 And where words are alleged to constitute a ratification, they must have been intended for the ear of the adult party to the contract. Declarations or promises made to third per- sons in general do not bind the former infant.^ *^ Implied ratification. So much for express ratification. As to implied ratifica- tion, any act or condiict on the part of an adult which une- quivocally shows that he recognizes the existence and validity of a contract made in infancy, and intends to be bound by it, constitutes a ratification of the contract.^*^ Thus, if the former infant, after arriving at full age, retains what he has received under the contract, and uses it or disposes of it, or oth- erwise treats it as his own, such conduct operates as an affirm- ance of the contract, and he cannot afterwards repudiate it.^** 1*2 Sayles v. Christie, 187 111. 420; Holt v. Underbill, 9 N. H. 436; Bigelov V. Grannis, 2 Hill (N. Y.) 120; Goodsell v. Myers, 3 Wend. (N. Y.) 479; Chandler v. Glover's Adm'r, 32 Pa. 509; Reed v. Bo- shears, 4 Sneed (Tenn.) 117. However, declarations to a third per- son may be evidence of ratification. Emmons v. Murray, 16 N. H. 385. And it has been held that a new promise made to an agent of the adult party constitutes a ratification, although, when he makes it, the former infant is not aware of the agency. Holt v. Underbill, 10 N. H. 220. "3 Irvine v. Irvine, 9 Wall. (U. S.) 617; McCarthy v. NicrosI, 72 Ala. 332; Hastings v. Dollarbide, 24 Cal. 195; Kline v. Beebe, 6 Conn. 494; Vent v. Osgood, 19 Pick. (Mass.) 572; Dana v. Stearns, 3 Gush. (Mass.) 372; Tobey v. Wood, 123 Mass. 88; Durfee v. Abbott, 61 Mich. 471; Tyler v. Gallop's Estate, 68 Mich. 185; Tlbbets v. Ger- rish, 25 N. H. 41; Henry v. Root, 33 N. Y. 526, 545; Miller v. Sims, 2 Hill (S. C.) 479; Norris v. Vance, 3 Rich. Law (S. C.) 165; Hatch V. Hatch's Estate, 60 Vt. 160, 170. The act relied on as a ratifica- tion must amount to a promise or undertaking to fulfill the con- tract. Smith V. Kelley, 13 Mete. (Mass.) 309, 310. 144 Shropshire v. Burns, 46 Ala. 108; Manning v. Johnson, 26 Ala. 446; Hastings v. Dollarbide, 24 Cal. 195; McKamy v. Cooper, 81 Ga. 679; Davidson v. Young, 38 111. 145; Buchanan v. Hubbard, 119 Ind. 187; Robinson v. Hoskins, 14 Bush (Ky.) 393; Stern v. Freeman, 4 Mete. (Ky.) 309; Hilton v. Shepherd, 92 Me. 160; Williams v. (259) § 172 CAPACITY OF PARTIES. [Ch. 4 A common illustration of this form of ratification is the case of an infant who purchases lands, and remains in possession, or sells them after reaching his majority. He thereby rat- ifies the contract of purchase, and -it becomes valid ab vni- tio}*^ An infant's deed of conveyance may be ratified by conduct, as well as expressly.-'*® Thus, if an infant or his Brown, 34 Me. 594; Lawson v. Lovejoy, 8 Me. 405; Boyden v. Boy- den, 9 Mete. (Mass.) 519; Barnaby v. Barnaby, 1 Pick. (Mass.) 221; Carrell v. Potter, 23 Mich. 377; Minock v. Shortridge, 21 Mich. 304; Brantley v. Wolf, 60 Miss. 420; New Hampshire Mut. Fire Ins. Co. V. Noyes, 32 N. H. 345; Aldrich v. Grimes, 10 N. H. 194; Williams v. Mabee, 7 N. J. Bq. 500; Jones v. Phoenix Bank, 8 N. Y. 228; Delano v. Blake, 11 Wend. (N. Y.) 85; Aldrich v. Funk, 48 Hun (N. Y.) 367; Cheshire v. Barrett, 4 McCord (S. C.) 241. If the other party refuses to accept a return of the property, the former infant does not ratify the contract by keeping it. House v. Alex- ander, 105 Ind. 109. By retaining his land after majority, an in- fant does not ratify a contract under which improvements were placed thereon in infancy. Bloomer v. Nolan, 36 Neb. 51. Nor does he thereby ratify a mortgage of the land given in infancy to secure a loan. Baker v. Stone, 136 Mass. 405. i«Middleton v. Hoge, 5 Bush (Ky.) 478; Hubbard v. Cummings, 1 Me. 11; Ellis v. AKord, 64 Miss. 8; Bobbins v. Eaton, 10 N. H. 561; Henry v. Root, 33 N. Y. 526; Lynde v. Budd, 2 Paige (N. Y.) 191; Armfield v. Tate, 29 N. C. 258; Mission Ridge Land Co. v. Nixon (Tenn. Ch. App.) 48 S. W. 405. A sale of the lands by the infant purchaser in his minority does not ratify his purchase. Walsh v. Powers, 43 N. Y. 23. An infant lessee who continues to occupy under the lease after attaining majority ratifies the lease. Baxter v. Bush, 29 Vt. 465. Retention of possession and receipt of rents of property purchased in infancy is not a ratification, where the transfer was repudiated on the day of majority, and suit was brought within three months thereafter. Scott v. Scott, 29 S. C. 414. 1*6 Hastings v. Dollarhlde, 24 Cal. 195; Wilson v. Darragh, 55 Hun, 605, 7 N. Y. Supp. 810; Wheaton v. East, 5 Yerg. (Tenn.) 40. Redelivery of the deed after the grantor's majority constitutes rati- fication. Davidson v. Young, 38 111. 145; Doe d. Murray v. Shank- Un, 20 N. C. 289. An Infant's mortgage is affirmed by a subsequent conveyance of the same property by a deed reciting that the con- veyance is subject to the mortgage. Losey v. Bond, 94 Ind. 67; Boston Bank v. Chamberlin, 15 Mass. 220; Allen v. Poole, 54 Miss. 323; Ward v. Anderson, 111 N. C. 115. A mortgage is ratified also (260) Ch. 4J INFANTS. § 172 guardian has transferred property, he confirms the sale by accepting the purchase money after majority. ■'*'' To consti- tute an implied ratification of a conveyance, however, there must be some positive act done by the grantor, after he be- comes of age, in affirmance of the deed, or inconsistent with the right to repudiate it. Mere inaction, unless continued in for a time sufficient to perfect a bar, does not amount to an election which will bind the infant.^** Another form of im- plied ratification is by suit. If a man institutes proceedings in court for the purpose of enforcing a contract made in in- fancy, or for the purpose of enforcing a claim based on its existence and validity, he thereby ratifies the contract. ^*^ Parol ratification. Even though the contract made in infancy is in writing and under seal, and is of such a nature that, were it not un- der seal or in writing, it would have no validity, yet it may be ratified by parol, in the absence of statute to the contra- j.y 150 urpj^g principle is," says Mr. Bishop,^" "that the rat- by tlie infant mortgagor's paying interest after reaching majority. American Mortgage Co. of Scotland v. Wright, 101 Ala. 658. iiTBoody V. McKenney, 23 Me. 517; Pursley v. Hays, 17 Iowa, 310; Parmele v. McGlnty, 52 Miss. 475; Ferguson v. Bell's Adm'r, 17 Mo. 347; Highley v. Barron, 49 Mo. 103; Darraugh v. Blackford, 84 Va. B09. "8 Eureka Co. v. Edwards, 71 Ala. 248; Boody v. McKenney, 23 Me. 517; Davis v. Dudley, 70 Me. 236; Allen v. Poole, 54 Miss. 323; Emmons v. Murray, 16 N. H. 385. See page 278, infra. "BCarrell v. Potter, 23 Mich. 377; Kennedy v. Baker, 159 Pa. 146; Morrill v. Aden, 19 Vt. 505. 150 Irvine v. Irvine, 9 Wall. (U. S.) 617; West v. Penny, 16 Ala. 186; Hastings v. Dollarhide, 24 Cal. 195; Phillips v. Green, 5 T. B. Mon. (Ky.) 344, 353; Allen v. Poole, 54 Miss. 323; Baker v. Ken- nett, 54 Mo. 82, 88; Houser v. Reynolds, 2 N. C. 143; Logan v. Gardner, 136 Pa. 588; Little v. Duncan, 9 Rich. Law (S. C.) 55, 60. In several states, it is provided by statute that the affirmance of a contract must be made in writing to be of any validity. iBi Bishop, Cont. 8 944. (261) § 172 CAPACITY OF PARTIES. [Ch. 4 ification is a waiver of the right, which the law has given, to rely on the defense of infancy. Such waiver is a thing quite separate from the contract itself, and, under the rules of the imwritten law, it need never, to be effectual, be under seal, or in writing." Knowledge. In order that a man may bind himself by the ratification of a contract made in infancy, he must be aware of the facts, so as to act intelligently. -"^^ Thus, acts which might otherwise constitute a ratification of a conveyance made in minority do not have that effect if the grantor does not know that he was a minor when he executed the deed;-'^* and, upon the same principle, it has been held that an infant partner who continues to be such after majority does not thereby ratify a note made by the firm in his infancy, where he has no knowledge of the note.-^®* As to whether a man must have actual knowledge of his legal right to avoid a contract made in infancy in order to bind himself by ratification, the cases are in conflict. One line of cases holds that there can be no ratification without intelligent action as to the law as well as to the facts, and, accordingly, that, if a man does not know that he has a right to disaffirm a contract made in infancy, no act done with ref- erence to that contract may charge him as by ratification.^ ^^ 152 Shaw V. Boyd, 5 Serg. & R. (Pa.) 309, 313. 163 Rldgeway v. Herbert, 150 Mo. 606. isiCrabtree v. May, IB. Mon. (Ky.) 289; Tobey v. Wood, 123 Mass. 88. Contra, Miller v. Sims, 2 Hill (S. C.) 479. See page 275, infra. 155 Harmer v. Killing, 5 Esp. 103 ; Tucker v. Moreland, 10 Pet. (U. S.) 58, 76; Burdett v. Williams (D. C.) 30 Fed. 697; Sayles v. Christie, 187 111. 420; Fetrow v. Wiseman, 40 Ind. 148; Thing v. Libbey, 16 Me. 55, 57; Trader v. Lowe, 45 Md. 1; Baker v. Kennett, 54 Mo. 82; Bresee v. Stanly, 119 N. C. 278; Turner v. Gaither, 83 N. C. 357; Hinely v. Margaritz, 3 Pa. 428; Curtin v. Patten, 11 Serg. & R. (Pa.) 305; Norris v. Vance, 3 Rich. Law (S. C.) 165; Reed (262) Ch. 4] INFANTS. § 172 By the better-reasoned opinions, however, the contrary view is taken. The right to disaffirm a contract made in infancy is, they hold, a matter of law, of which all men are conclu- sively presumed to have knowledge. A man's ignorance of the law in this respect may not, therefore, he proved; and, accordingly, by promising, either expressly or impliedly, to perform a contract entered into while a minor, a man rat- ifies the contract, and makes it binding upon him in spite of the fact that, in truth, he does not know that the contract is voidable.^ ^^ Time of ratification. The rule which precludes a minor from making a contract binding in law also precludes him from ratifying a contract made in fact. A man is incapable of binding himself either by contract or by affirmance until he reaches his majority. ^^^ IX. Same — Sufficiekcy of Avoidance. Disaffirmance of a contract made in infancy may take the form of express notice to that effect, or, ordinarily, the form of V. Bosiears, 4 Sneed (Tenn.) 117. The presumption of fact is that the former infant is aware of his rights. Hatch v. Hatch's Estate, 60 Vt. 160. 156 American Mortgage Co. of Scotland v. Wright, 101 Ala. 658; Bestor v. Hickey, 71 Conn. 181; Middleton v. Hoge, 5 Bush (Ky.) 478, 490; Morse v. Wheeler, 4 Allen (Mass.) 570, overruling Smith v. Mayo, 9 Mass. 62, 64, and Ford v. Phillips, 1 Pick. (Mass.) 202, 203; Taft v. Sergeant, 18 Barb. (N. Y.) 320; Anderson v. Soward, 40 Ohio St. 325. See, also, Bentley v. Greer, 100 Ga. 35; Ihley v. Padgett, 27 S. C. 304. In Owen v. Long, 112 Mass. 403, there is a slight im- plication to the contrary, hut the point was not necessarily involved in the decision, and it cannot be thought that the court there In- tended to overrule, without mention, the previous extended and well-reasoned opinion given in Morse v. Wheeler, 4 Allen (Mass.) 570. 157 Sanger v. Hibbard, 43 C. C. A. 635, 104 Fed. 455; Hastings v. Dollarhide, 24 Cal. 195; Hoyt v. Casey, 114 Mass. 397, 399; Doe d. McCormic v. Leggett, 53 N. C. 425. (263) § 173 CAPACITY OF PARTIES. [Ch. 4 any positive act which uninistakably shows an intent not to he bound by the contract. S 173. What constitutes disaffirmance. Various means are open to a man to disaffirm a contract made by him in infancy. Their efEcacy depends upon the nature of the engagement sought to be avoided, and the cir- cumstances of the case.^®^ The act of disaffirmance need not in all cases be of the same nature as the contract, nor indeed of as high or solemn a nature.^"' If the act of disafErm- ance rises to that nature, however, it is unquestionably suf- ficient to avoid the contract.-*^" The contract may be effec- tually avoided by express notice to that effect ;^^^ and ordi- narily any positive act is sufficient as a disaffirmance which unmistakably shows an intent on the part of the quondam infant not to be boimd by the contract.-'®^ In. the case of an executory contract, disaffirmance may take the form of the former infant's declining performance and pleading infancy in defense of an action for breach of the contract. •'^^ The bringing of a siiit to cancel a contract made in infancy is also 15S Tucker v. Moreland, 10 Pet. (U. S.) 58. 150 Tucker v. Moreland, 10 Pet. (U. S.) 58; Allen v. Poole, 54 Miss. S23. 160 Tucker v. Moreland, 10 Pet. (U. S.) 58; McGan v. Marshall, 7 Humph. (Tenn.) 120. 161 McCarthy v. Nlcrosi, 72 Ala. 332; Scranton v. Stewart, 52 Ind. €8; Bool V. Mix, 17 Wend. (N. Y.) 119. io2McCarty v. Woodstock Iron Co., 92 Ala. 463; Black v. Hills, 36 111. 376; Allen v. Poole, 54 Miss. 323; McGill v. Woodward, 3 Brev. (S. C.) 401. Desertion by a mariner avoids his contract of service. Vent V. Osgood, 19 Pick. (Mass.) 572. A demand for the money is a disaflSrmance of the contract under which it was paid. Holt v. Holt, 59 Me. 464. Re-entry with notice of disaffirmance is a suffi- cient avoidance of a deed. Green v. Green, 69 N. Y. 553. 163 Tucker v. Moreland, 10 Pet. (U. S.) 58; McCarthy v. Nicrosl, 72 Ala. 332; Strain v. Wright, 7 Ga. 568; Shrock v. Crowl, 83 Ind. 243; Skinner v. Maxwell, 66 N. C. 45, 47; Hoyle v. Stowe, 19 N. C. 320, 324. (264) €h. 4] INFANTS. § 173 a sufficient disaffirmance;^®* and a suit to recover property conveyed or money paid for property purchased in infancy is an effectual avoidance of the transfer.-'®^ An effective mode of disaffirming a deed made in infancy is for the gran- tor, upon coming of age, to reconvey the same property to a different grantee.^®® In order that a later deed may operate as a disaffirmance of an earlier conveyance, however, the two must be so inconsistent that both cannot stand together.^®'' As to the necessity for the quondam infant's re-entering upon the premises before reconveying them, the cases are not in accord. The matter has been well stated by the American ■editor of Sir Frederick PoUock.^^® "If an infant make a feoffment of land, since he must be in possession to make it, 164 Watson V. Billings, 38 Ark. 278 ; Sayles v. Christie, 187 111. 420. See McCarthy v. Nicrosi, 72 Ala. 332. Before an independent suit will lie by the grantor to set aside a deed made In infancy, he must disaffirm the deed. McClanahan v. Williams, 136 Ind. 30. See, also, the following note. 165 Tucker v. Moreland, 10 Pet. (U. S.) 58; Chadboume v. Rack- liff, 30 Me. 354; Craig v. Van Bebber, 100 Mo. 584; St<5tts v. Leon- Tiard, 40 Mo. App. 336; Clark v. Tate, 7 Mont. 171; Hughes v. Wat- son, 10 Ohio, 127, 134; Hoyle v. Stowe, 19 N. C. 320, 324; Scott v. Buchanan, 11 Humph. (Tenn.) 467, 474. Contra, there must be some act of avoidance before a suit will lie against the transferee. Wal- lace V. Lewis, 4 Har. (Del.) 75; Law v. Long, 41 Ind. 586; Clawson V. Moore, 5 Blackf. (Ind.) 300; Bool v. Mix, 17 Wend. (N. Y.) 119; Voorhies v. Voorhies, 24 Barb. (N. Y.) 150. 166 Hastings v. Dollarhide, 24 Cal. 195; Losey v. Bond, 94 Ind. 67; Vallandingham v. Johnson, 85 Ky. 288; Corbett v. Spencer, 63 Mich. 731; Prout v. Wiley, 28 Mich. 164; Dawson v. Helmes, 30 Minn. 107; Ridgeway v. Herbert, 150 Mo. 606; Craig v. Van Bebber, 100 Mo. 584; Jackson v. Burchin, 14 Johns. (N. Y.) 124; Searcy v. Hunter, 81 Tex. 644. 167 Bagley v. Fletcher, 44 Ark. 153; Leitensdorfer v. Hempstead, 18 Mo. 269; Eagle Fire Co. v. Lent, 6 Paige (N. Y.) 635; McGan V. Marshall, 7 Humph. (Tenn.) 120. Conveyance of premises with- out reference to a mortgage thereon previously executed in the grantor's infancy does not amount to a repudiation of the mort- gage. Palmer v. Miller, 25 Barb. (N. Y.) 399. 168 Wald's Pollock, Cont. 56, note. (265) § 173 CAPACITY OP PARTIES. [Ch. 4 he must again re-enter in order to avoid it; and hence his mere deed to another, without a re-entry, is not a disaffirm- ance of the feoffment first made."^"^ "But in this country,, conveyance by bargain and sale, and not by feoffment, is the mode generally adopted, and hence a re-entry by the infant is not usually necessary."^ '^'' Where the infant remains in. possession of the land granted by him, or the land is vacant and unoccupied, or the infant re-enters, his subsequent deed of the premises to another, after arriving at majority, is a complete disaffirmance of the earlier deed.^'^^ If the first grantee of the infant goes into possession, or a third person holds adversely to the infant, then a subsequent deed to a different grantee, made by the infant upon reaching his ma- jority, without re-entry, "will or Avill not be effectual as a disaffirmance, according as the law of the state where the land lies is or is not, that one out of possession of land can make a good deed of it without re-entry."^ ^" The law is similar in reference to the avoidance of transfers of personal 109 Bool V. Mix, 17 Wend. (N. Y.) 119. 170 Pitcher v. Laycock, 7 Ind. 398; Allen v. Poole, 54 Miss. 323; Norcum v. Sheahan, 21 Mo. 25; Scott v. Buchanan, 11 Humph. (Tenn.) 467, 474. I'l Tucker v. Moreland, 10 Pet. (U. S.) 58; Bagley v. Fletcher,. 44 Ark. 153; Harris v. Cannon, 6 Ga. 382; Pitcher v. Laycock, 7 Ind. 398; Dixon v. Merritt, 21 Minn. 196; Bool v. Mix, 17 Wend. (N. Y.) 119; Hoyle v. Stowe, 19 N. C. 320. An infant's bond for title is also- avoided by his conveyance of the same premises to another pur- chaser. Combs v. Hall, 22 Ky. Law Rep. 1418, 60 S. W. 647. 172 In the following cases the second deed was held to be void: Harrison v. Adcock, 8 Ga. 68; Bool v. Mix, 17 Wend. (N.Y.) 119; Den d. Murray v. Shanklin, 20 N. C. 289. The second deed was held tO' be valid in these cases: Haynes v. Bennett, 53 Mich. 15; Cresinger V. Welch's Lessee, 15 Ohio, 156; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. While the second deed is void as to third persons in adverse possession, it nevertheless operates as a disaffirmance of the first deed, and authorizes the second grantee to sue in the gran- tor's name for the recovery of the premises. Riggs v. Fisk, 64 Ind. 100. (266) Ch. 4] INFANTS. § 173 property made in infancy. The transaction is effectually dis- affirmed where the transferrer retains or afterwards regains possession of the property, and transfers it to a different per- son.-' ^^ X. Same — Limits of Right to Disaffirm. Subject to some qualifications, a contract made in infancy may be avoided without an offer on the part of the quondam infant first to place the other party in statu quo, either by re- storing the consideration, or otherwise. As a rule, a man" may repudiate the contract in a court of common law without offering to restore what he has received, but in equity the rule is otherwise. Even at law, the quondam infant must restore the considera- tion if he has it; but if, during his minority, he has consumed or wasted or otherwise disposed of the consideration, he will not be denied relief, either legal or equitable, because be cannot re- turn it. A distinction is sometimes observed between contracts exec- utory and contracts executed. While the -right to avoid an executory contract made in m.ancy exists untrammeled, an exe- cuted contract may not be avoided unless the quondam infant returns the consideration which he has received. Accordingly, in this view, if an infant has executed the contract on his part by the payment of money, or the delivery of property, or the rendition of services, he may not disaffirm the contract and recover back what he has paid or delivered, or recover the rea- sonable value of what he has done, without restoring what he has received under the contract in return. A man may not afl&rm a contract made in infancy as to a fa- vorable part, and disaffirm it as to the rest. He must either affirm in toto or disaffirm in toto. 173 -Williams v. Norris, 2 Litt. (Ky.) 157; Chapin v. Shafer, 49 N. Y. 407; State v. Howard, 88 N. C. 650. If an infant seller re- tains possession of the property, any act done by him, after ma- jority, which openly and unequivocally shows that he does not in- tend to be bound by the transfer, is suflBcient to avoid it. Slaughter V. Cunningham, 24 Ala. 260. (267) § 174 CAPACITY OP PARTIES. [Ch. 4 Executory contracts, and executed contracts relating to per- sonal property, may be avoided by the infant in his minority. He may not completely and finally avoid his executed contracts as to real estate, however, until he arrives at majority. As to those contracts which are valid until disaffirmed, the right of disffirmance must be exercised, if at all, within a rea- sonable time after the infant comes of age. By the weight of authority, however, a man is not barred of his right to disaffirm a deed of real estate by mere acquiescence for any period short- er than that prescribed by the statute of limitations for the bringing of an action to recover real property. i 173a. In general. The right to disafErm a contract made in infancy does not exist altogether free of restrictions. There are certain re- quirements of the law to be complied with before a man may take advantage of the disability which existed when he en- tered into the engagement. These restrictions it is now our purpose to notice. § 174. Restoration of status quo. The cases are not in accord as to whether, upon rescinding a contract made in infancy, a man is required to place the other party in the situation which he occupied at the time the contract was made. It may, however, be laid down as a general rule, subject to important qualifications, that, in order to make his disaffirmance effectual, the former infant is not required first to place the other party in statu quo, either by returning what he has received under the contract, or otherwise.^'^* i74MacGreal v. Taylor, 167 U. S. 688, 700; McCarty v. Woodstock Iron Co., 92 Ala. 463; Carpenter v. Carpenter, 45 Ind. 142; White V. New Bedford Cotton-Waste Corp., 178 Mass. 20; Bartlett v. Drake, 100 Mass. 174, 177; Dawson v. Helmes, 30 Minn. 107; Cresinger v. Welch's Lessee, 15 Ohio, 156, 193. Retention of consideration by the infant may operate as a ratification of the contract, however. See page 259, supra. The text is true at least as between a grantee (268) Ch. 4] INFANTS. § 174 At law, an infant, when sued on a contract which he re- pudiates, need not offer to return what he has received un- der the contract, nor to account for its value ; and he may sue at law in avoidance of the contract, without an offer to re- store the status quo}'^^ In equity, however, it is otherwise. A man who demands equitable relief must offer to do equity, and, when the demand is for relief from a contract made in infancy, the offer to do equity ordinarily involves an offer to return the consideration which the quondam infant has received.^''® While restoration of the status quo is not at law a condition precedent to an effectual disaffirmance of a contract made in infancy, yet, if the quondam infant, upon disaffirmance, still has in his possession what he received un- der the contract, he must restore it ; and this is true in equity, of course, as well as at law.^''^ in a deed made by a man before attaining his majority and a dif- ferent grantee in a deed of the same premises made by the same grantor after coming of age. Vallandingham v. Johnson, 85 Ky. 288. iTsTucter's Lessee v. Moreland, 10 Pet. (U. S.) 58, 73; Eureka Co. V. Edwards, 71 Ala. 248; Carpenter v. Carpenter, 45 Ind. 142; Miles V. Lingerman, 24 Ind. 385; Morse v. Ely, 154 Mass. 458; Craighead v. Wells, 21 Mo. 404; Ruchizky v. De Haven, 97 Pa. 202; Shaw V. Boyd, 5 Serg. & R. (Pa.) 312. 176 Eureka Co. v. Edwards, 71 Ala. 248; Hobbs v. Nashville, C. & St. L. Ry. Co., 122 Ala. 602, 82 Am. St. Rep. 103; Bozeman v. Browning, 31 Ark. 364; Bryant v. Pottinger, 6 Bush (Ky.) 473; Smith v. Evans, 5 Humph. (Tenn.) 69; Folts v. Ferguson, 77 Tex. 301; Cummings V. Powell, 8 Tex. 81. This rule does not apply to a woman who seeks to avoid a conveyance made by her while an infant, and covert. Law v. Long, 41 Ind. 586, 600. The rule of the text is in- applicable, of course, where the infant received no consideration. Cook V. Toumbs, 36 Miss. 685; Clark v. Tate, 7 Mont. 171; Ruchizky V. De Haven, 97 Pa. 202, 210; Bradshaw v. Van Valkenburg, 97 Tenn. 316; Vogelsang v. Null, 67 Tex. 465. Upon avoiding a pur- chase of lands made in infancy, the former infant must account in equity to the grantor for rents and profits received while in pos- session under the deed. Scott v. Scott, 29 S. C. 414. I'TMcCarty v. Woodstock Iron Co., 92 Ala. 463, 467; Eureka Co. (269> § 174 CAPACITY OF PARTIES. [Ch. 4 While a man is not ordinarily entitled to relief in equity from an engagement entered into in infancy, without offer- ing to restore the consideration which he has received under the contract, yet if, during his minority, he has consumed or wasted or otherwise disposed of the consideration, so that a return thereof is impossible, he may avoid the contract with- out placing the other party in statu quo; and this is true also at law, of course. If a man has disposed of the considera- tion which he received in infancy, he may effectually avoid the contract both at law and in equity, even though the other party is thereby a sufferer.-'^^ In some states, however, this V. Edwards, 71 Ala. 248; Strain v. Wright, 7 Ga. 568; Bennett v. McLaughlin, 13 111. App. 349; Buchanan v. Hubbard, 119 Ind. 187, 194; Shirk v. Shultz, 113 Ind. 571; Carpenter v. Carpenter, 45 Ind. 142; Sanger v. Hibbard, 2 Ind. T. 547; Robinson v. Weeks, 56 Me. 102; Badger v. Phinney, 15 Mass. 359; Evans v. Morgan, 69 Miss. 328; Betts v. Carroll, 6 Mo. App. 518; Craig v. Van Bebber, 100 Mo. 584, 589; Clark v. Tate, 7 Mont. 171; Englebert v. Troxell, 40 Neb. 195; Carr v. Clough, 26 N. H. 280; Kitchen v. Lee, 11 Paige (N. Y.) 107; Lane v. Dayton Coal & Iron Co., 101 Tenn. 581; Nichol v. Steger, 6 Lea (Tenn.) 393; Taft v. Pike, 14 Vt. 405, 409; Bedinger V. Wharton, ,27 Grat. (Va.) 857; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. If the consideration so received and retained by the infant after disaflBrmance consists of property, and It has deteri- orated in value without his fault since the contract was made, the adult party has no remedy against him for the damage. Carpenter V. Carpenter, 45 Ind. 142; Price v. Furman, 27 Vt. 268. It has been held that the rule stated in the text applies only when the consid- eration received by the infant is property, as distinguished from money, and that, if the infant receives money, he is not liable to account for it upon disaffirming the contract. Dill v. Bowen, 54 Ind. 204, 208. If a man repudiates a purchase made by him in infancy, and refuses to reconvey the premises to the vendor, the latter, upon refunding the price, is entitled in ectulty to a cancella- tion of the deed. McCarty v. Woodstock Iron Co., 92 Ala. 463. 178 MacGreal v. Taylor, 167 U. S. 688; Eureka Co. v. Edwards, 71 Ala. 248; Reynolds v. McCurry, 100 111. 356; Featherstone v. Betle- jewskl, 75 111. App. 59; Buchanan v. Hubbard, 119 Ind. 187, 194; Dill V. Bowen, 54 Ind. 204, 208; Jenkins v. Jenkins, 12 Iowa, 195; Brawner v. Franklin, 4 Gill (Md.) 463; Walsh v. Young, 110 Mass. (270) Ch. 4] INFANTS. § 174 rule does not prevail to its full extent. A person seeking to avoid his contract because of infancy must account for what; he has received under it so far as he has been benefited there- by. He must therefore restore or pay the value of whatever remains in specie within his control, and also account for the value of the benefit derived from so much of the consid- 396; Chandler v. Simmons, 97 Mass. 508; Miller v. Smith, 26 Minn. 248; Brantley v. Wolf, 60 Miss. 420; Harvey v. Briggs, 68 Miss. 60; Ridgeway v. Herbert, 150 Mo. 606; Craig v. Van Bebber, 100 Mo. 584; Englebert v. Troxell, 40 Neb. 195; Carr v. Clougb, 26 N. H. 280, 294; Green v. Green, 69 N. Y. 553; Kane v. Kane, 13 App. Div. (N. Y.) 544; Stromberg v. Rubenstein, 19 Misc. Rep. (N. Y.) 647; Niobol v. Steger, 6 Lea (Tenn.) 393, 396; Bullock v. Sprowls, 93 Tex. 188; Wiser v. Lockwood's Estate, 42 Vt. 720; Price v. Furman, 27 Vt. 268; Bedinger v. Wharton, 27 Grat. (Va.) 857; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. But see Middleton v. Hoge, 5 Bush (Ky.) 478. If an infant conveys land to secure a loan of money used by her in discharging prior valid liens upon the land, and in placing improvements thereon, the money is deemed to be in the infant's hands, within the rule entitling the other party to a return of the consideration when the infant still has it at the time of disaffirmance. Accordingly, up6n disaffirmance, the court may direct the property to be sold, and the proceeds to be applied, first, in repaying the lender so much of the money as was employed in paying the prior liens; second, in paying to the infant the value of the property, less the amount of such liens, at the time the loan was made; third, in paying to the lender the balance due on the loan, — the rest of the proceeds to go to the former infant. In this way, the infant's right to disaffirm is made effectual, and, in case the property does not sell for enough to pay off the entire loan, and still leave a balance of proceeds equaling the value of the infant's interest at the time of the loan, that interest will be protected. MacGreal v. Taylor, 167 U. S. 688. And see Folts v. Ferguson, 77 Tex. 301, 305. Contra, New York Building L. B. Co. v. Fisher, 23 App. Div. (N. Y.) 363. The burden of showing that the infant is not in a position to restore the consideration rests upon him, where he interposes a plea of infancy. Dickerson v. Gordon, 52 Hun, 614, 5 N. Y. Supp. 310; Lane v. Dayton Coal & Iron Co., 101 Tenn. 581. The rule of the text applies also where the property received by the infant has been taken from him, rightfully or wrongfully, on exe- cution against a third person. Lemmon v. Beeman, 45 Ohio St. 505. The benefit of the rule stated in the text cannot be taken advantage (271) § 174 CAPACITY OP PARTIES. [Ch. + eration as has passed out of his dominion. The benefit de- - rived by the infant from the contract is thus made the meas- ure of his legal liability thereon.^''® In reference to restora- tion of the status quo, some courts observe a distinction be- tween contracts executory and contracts executed. While they recognize a man's right to avoid executory contracts made in infancy without restoring the status quo, they con- sider that the law is otherwise where the contract has been performed; holding, upon the principle that the privilege of infancy may be used only as a shield, and not as a sword, that the infant may not have the benefit of a contract on his side without returning the equivalent on the other. Ac- cordingly, if an infant has executed the contract on his part by the payment of money, or the delivery of property, or the rendition of services, he may not disaffirm the contract, and recover back what he has paid or delivered, or recover the reasonable value of what he has done, without restoring to the other party what he has received under the contract.^*" of by a firm in whose behalf an infant partner made the contract sought to be avoided. Brown v. Hartford Fire Ins. Co., 117 Mass. 479. If an infant disaffirms his contract to convey land, and sues the vendee for use and occupation, the latter is entitled to reim- bursement for improvements which he has placed on the land. Weaver v. Jones, 24 Ala. 420. "9Bartlett v. Bailey, 59 N. H. 408; Hall v. Butterfield, 59 N. H. 354. See MacGreal v. Taylor, 167 U. S. 688, and Folts v. Ferguson, 77 Tex. 301, 305, cited in preceding note. ISO Money: Taft v. Pike, 14 Vt. 405, 409; Farr v. Sumner, 12 Vt. 28, 32; Price v. Furman, 27 Vt. 268, 271. Contra, Shirk v. Shultz, 113 Ind. 571, 579. Property: Bailey v. Bamberger, 11 B. Mon. (Ky.) 113, 115; Bartlett v. Cowles, 15 Gray (Mass.) 445; Ferguson V. Bobo, 54 Miss. 121, 132; Bingham v. Barley, 55 Tex. 281; Price v. Furman, 27 Vt. 268, 271; Taft v. Pike, 14 Vt. 405, 409; Farr v. Sumner, 12 Vt. 28, 32. Services: Locke v. Smith, 41 N. H. 346; Taft v. Pike, 14 Vt. 405, 409; Price v. Furman, 27 Vt. 268, 271. If a man rescinds a transfer made in infancy, and recovers back the property without restoring the price, the purchaser may maintain a separate action to recover back the price. Manning v. Johnson, 26 (272) Ch. 4] INFANTS. g 17 As regards money payments, however, if the contract is wholly unperformed on the part of the adult, the quondam infant may recover them hack upon disaffirmance;^*^ and the same is true, even where the adult has performed the agreement, if the infant has received no benefit from the performance.^*^ Subject to these qualifications, an infant who pays money un- der a contract, in consideration of which the agreement is wholly or partly performed by the adult, may not, upon res- cission, recover back the sum so paid.^*^ And in reference to services rendered by an infant, if a contract of service has been performed by the adult party, in whole or in part, and the infant has received benefits therefrom, he may not rescind the contract, and recover the reasonable value of what Ala. 446; Roof v. Stafford, 7 Cow. (N. Y.) 179, 182. Contra, Dill V. Bowen, 54 Ind. 204, 208. If an infant buys an article, and, after using it, repudiates the contract of sale, and returns the article and sues for the sum paid as the price, he must account to the seller for the value of the use of the property. Rice v. Butler, 160 N. Y. 578. Contra, Whitcomb v. Joslyn, 51 Vt. 79. See pages 280, 281, infra, as to the right to recover back money paid or property delivered, or to recover the reasonable value of services rendered, when that right does not involve restoration of the status quo. isiCorpe V. Overton, 10 Bing. 252, 3 Moore & S. 738; Millard v. Hewlett, 19 "Wend. (N. Y.) 301. And see cases cited in note 182,. infra. 182 Corpe V. Overton, 10 Bing. 252, 3 Moore & S. 738; Wilhelm v. Hardman, 13 Md. 140, 147; Pitcher v. Turin Plank Road Co., 10 Barb. (N. Y.) 436; Mordecai v. Read, 63 Hun (N. Y.) 553; Shurtleff V. Millard, 12 R. I. 272. If the contract so executed was fair and reasonable except in the respect that the infant paid a sum in ex- cess of the benefits received, he may recover back such excess. Johnson v. Northwestern Mut. Life Ins. Co., 56 Minn. 365. 183 Corpe V. Overton, 10 Bing. 252, 3 Moore & S. 738; Wilhelm v. Hardman, 13 Md. 140, 147; Breed v. Judd, 1 Gray (Mass.) 455; Johnson v. Northwestern Mut. Life Ins. Co., 56 Minn. 365; Clark v. Tate, 7 Mont. 171. Money paid pursuant to an infant's order can- not be recovered of the payor upon the infant's attaining his m* Jority. Welch v. Welch, 103 Mass. 562. (273) Law of Cont. — 18. •S 175 CAPACITY OF PARTIES. [Ch. 4 he has done,'^^ even though that sum exceeds the benefits re- ceived by him.^^^ S 175. Ratification or disaffirmance in part. One who has entered into a contract while an infant can- not reap the benefits of the contract and avoid its burdens. He cannot elect to affirm the contract as to a favorable part, and disafiirm it as to the rest. He must either affirm or dis- affirm the contract in toto}^^ Certain aspects of this prin- kciple have already been dealt with in other connections. Thus, it is partly upon this principle that a man is held liable upon a contract made in infancy, where, after coming of age, he accepts what is due him under the contract, or, having already received it, retains it and treats it as his own.^®" And it is the same principle in a different form which requires a man to restore, under certain circumstances, what he has received under a contract made in infancy, in order to enable him effectually to avoid performance of the contract, or to obtain relief therefrom, or to recover back what he has parted with, or to recover the reasonable value of services rendered by him, pursuant to its terms.-'®® Other illustrations will now be mentioned. If an infant purchases property, real or personal, and gives back a mortgage for the price, he may not avoid the mortgage without also avoiding the purchase and restoring the property. On the one hand, by avoiding the mortgage, he avoids also the transfer, and, on the other hand, by ratifying the transfer, he ratifies also the 184 Spicer v. Earl, 41 Mich. 191. See, also, Medbury v. Watrous, 7 Hill (N. Y.) 110, 114. 185 wilhelm v. Hardman, 13 Md. 140, 148; Stone v. Dennison, 13 Pick. (Mass.) 1. 180 Buchanan v. Hubbard, 119 Ind. 187, 195; Badger v. Phinney, 15 Mass. 359, 363. See, also. Wolf v. Dietzsch, 75 111. 205; Raymond -V. Bearnard, 12 Johns. (N. Y.) 274. 187 See page 259, supra. is« See page 268, supra. <274) Ch. 4] INFANTS. § i7Sa mortgage.^^^ In case the rights of an infant under a con- tract are dependent upon his performing a condition, he may not take and hold the beneiits without performing the re- quired act. He may reject the benefits and avoid the bur- den, but he will not be allowed to plead infancy in excuse of his failure to perform his part of the contract, and at the same time retain the benefits which the other party's per- formance has bestowed upon him.^^" We have seen that an infant is not liable for a false warranty made in selling his property ; yet if, on coming of age, he affirms the contract of sale, and sues for the price, he becomes liable upon the war- ranty. By electing to take the benefits of the transaction, he elects also to assume its burdens. ■'^^ It has been held that, if an infant partner, upon arrival at majority, ratifies the partnership agreement, he thereby ratifies also the debts con- tracted by the firm during his minority.^ ^^ I 175a. Time of avoidance. The time when an infant may avoid his engagements is 189 Dana v. Coombs, 6 Me. 89; Langdon v. Clayson, 75 Mich. 204; Young V. McKee, 13 Mich. 552; Cogley v. Cushman, 16 Minn. 397 (Gil. 354) ; Uecker v. Koehn, 21 Neb. 559; Heath v. "West, 28 N. H. 101; Robbins v. Baton, 10 N. H. 561; Ottman v. Moak, 3 Sandf. Ch. (N. Y.) 431; Lynda v. Budd, 2 Paige (N. Y.) 191; Skinner v. Max- well, 66 N. C. 45; Curtiss v. McDougal, 26 Ohio St. 66; Kennedy v. Baker, 159 Pa. 146; Weed v. Beebe, 21 Vt. 495; Knaggs v. Green, 48 Wis. 601; Callis v. Day, 38 Wis. 643. 190 Lowry v. Drake's Heirs, 1 Dana (Ky.) 46; Robinson v. Berry, 93 Me. 320. 191 Morrill v. Aden, 19 Vt. 505. As to liability for false warranty, see page 250, supra. 192 Shirk V. Shultz, 113 Ind. 571, 580; Salinag v. Bennett, 33 S. C. 285; Miller v. Sims, 2 Hill (S. C.) 479. It has been held that the quondam infant must know of the debts, else he does not ratify -them by ratifying the partnership agreement. See page 262 supra. In Minock v. Shortridge, 21 Mich. 304, 317, it is held that ratifica- tion of the partnership agreement is not conclusive evidence of jatification of the firm debts. (275) § 17Sa CAPACITY OF PARTIES. [Ch. 4 not the same in all classes of contracts. Some may be avoided the moment they are entered into; others may not be avoided until after the infant arrives at age. His execu- tory contracts he may avoid either before or after he attains his majority ;^'*^ and the same is true of his executed con- tracts, where they relate to personal property.-^** Executed contracts as to real estate, however, such as his conveyances of land, he may not completely and finally avoid until he has come of full age. His disaffirmance in infancy merely suspends the matter, and, when he reaches his majority, he is at liberty to revive and enforce the contract. ^^^ It has 193 Riley V. Mallory, 33 Conn. 201; Robinson v. Weeks, 56 Me. 102; Adams v. Beall, 67 Md. 53; Miller v. Smith, 26 Minn. 248; Whit- marsh V. Hall, 3 Denio (N. Y.) 375; Petrie v. Williams, 68 Hun (N. Y.) 589. Contra, Dunton v. Brown, 31 Mich. 182; Lansing v. Mich- igan Cent. R. Co., 126 Mich. 663. 194 McCarthy v. Nicrosl, 72 Ala. 332; Shlpman v. Horton, 17 Conn. 481; Shirk v. Shultz, 113 Ind. 571, 578; Childs v. Dobbins, 55 Iowa, 205; Bailey v. Bamberger, 11 B. Mon. (Ky.) 113; Towle v. Dresser, 73 Me. 252; Adams v. Beall, 67 Md. 53; semMe, Edgerton v. Wolf, 6 Gray (Mass.) 453; Cogley v. Cushman, 16 Minn. 397 (Gil. 354); Betts V. Carroll, 6 Mo. App. 518; Carr v. Clough, 26 N. H. 280; Chapin v. Shafer, 49 N. Y. 407; Stafford v. Roof, 9 Cow. (N. Y.) 626; Skinner v. Maxwell, 66 N. C. 45, 47; Cummings v. Powell, 8 Tex. 80; Hoyt v. Wilkinson, 57 Vt. 404. Contra, Dunton v. Brown, 31 Mich. 182; Lansing v. Michigan Cent. R. Co., 126 Mich. 663. See Lane v. Dayton Coal & Iron Co., 101 Tenn. 581. 195 Zouch V. Parsons, 3 Burrow, 1794; McCarthy v. Nicrosi, 72 Ala. 332; Hastings v. Dollarhide, 24 Cal. 195; semble, Shipman v. Horton, 17 Conn. 481, 483; Welch v. Bunce, 83 Ind. 382; Armitage V. Widoe, 36 Mich. 124; Irvine v. Irvine, 5 Minn. 61 (Gil. 44); Baker v. Kennett, 54 Mo. 82, 88; Emmons v. Murray, 16 N. H. 385; Skinner v. Maxwell, 66 N. C. 45, 47; Doe d. McCormic v. Leggett, 53 N. C. 425. See, also. Philips v. Green, 3 A. K. Marsh. (Ky.) 7. Contra, semMe, Riley v. Mallory, 33 Conn. 201. See Lane v. Dayton Coal & Iron Co., 101 Tenn. 581. However, an Infant may plead his minority in defense of a suit to foreclose a mortgage of lands pre- viously executed by him. Schneider v. Staihr, 20 Mo. 269. While the Infant may not avoid his conveyance of lands during minority, yet he may enter and take the profits in the meantime. Bool v. (276) Cb. 4] INFANTS. § 175a been seen that some classes of contracts entered into in in- fancy are valid until disaffirmed, while others are invalid until ratified. As to the former, namely, those contracts which are efficacious until the quondam infant repudiates them, it should be observed that the right of disaffirmance must be exercised, if at all, within a reasonable time after the infant comes of age.^®® Thus, an infant's deed of real estate passes a good title, subject to be defeated only by dis- affirmance, and, if the grantor elects""to disaffirm the deed, he must do so within a reasonable time after reaching his majority.-'®'' The question of what constitutes a reasonable time for disaffirming a contract depends upon the circum- stances of the particular case. No definite period can be fixed.^*** In reference to deeds, the cases bearing upon the Mix, 17 Wend. (N. Y.) 119; semMe, Cummings v. Powell, 8 Tex. 80; Price v. Purman, 27 Vt. 268, 270. 196 Dublin & W. Ry. Co. v. Black, 8 Exch. 181; Viditz v. O'Hagan, 68 Law J. Ch. 553, [1899] 2 Ch. 569, 80 Law T. (N. S.) 794, 47 Wkly. Rep. 571; Robinson v. Weeks, 56 Me. 102; Miller v. Smith, 26 Minn. 248, 251; Beardsley v. Hotchkiss, 96 N. Y. 201; Thormaehlen v. Kaep- pel, 86 Wis. 378. 107 Hastings v. Dollarhide, 24 Cal. 195, 216; Bentley v. Greer, 100 Ga. 35; Blankenship v. Stout, 25 111. 132; Cole v. Pennoyer, 14 111. 158; Scranton v. Stewart, 52 Ind. 68; Searcy v. Hunter, 81 Tex. 644. 18S Hastings v. Dollarhide, 24 Cal. 195 ; Nathans v. Arkwright, 66 Ga. 179; Doe d. Moore v. Abernathy, 7 Blackf. (Ind.) 442; Hoover v. Kinsey Plow Co., 55 Iowa, 668; Jenkins v. Jenkins, 12 Iowa, 195; Tyler v. Gallop's Estate, 68 Mich. 185; Thompson v. Strickland, 52 Miss. 574; O'Rourke v. Hall, 56 N. Y. Supp. 471; Summers v. Wilson, 2 Cold. (Tenn.) 469; Bingham v. Barley, 55 Tex. 281; Rapid Transit Land Co. v. Sanford (Tex. Civ. App.) 24 S. W. 587. The Question of what constitutes a reasonable time is one of fact. Stringer v. Northwestern Mut. Life Ins. Co., 82 Ind. 100. What is a reasonable time is a mixed question of law and fast. Bnglebert V. Troxell, 40 Neb. 195. In those states where the right to disaffirm a deed may be barred by mere acquiescence for a less period than the time fixed by statute for recovering the premises, the question of reasonableness is for the court, where the facts show mere delay, with nothing to excuse it. Goodnow v. Empire Lumber Co., 31 (277) § 175a CAPACITY OF PARTIES. [Ch. 4 question are in conflict. The weight of authority, however, is to the effect that the quondam infant is not barred of his right to disaffirm the transfer by mere acquiescence for any period shorter than that prescribed by the statute of limita- tions for the bringing of an action to recover real estate.^®* This rule contemplates mere silence on the part of the in- fant after coming of age. Acquiescence, coupled with other facts, may bar the right of disaffirmance in a less time than that just mentioned.^"" It is no excuse for failing to dis- affirm a conveyance of land within a reasonable time after reaching majority that the quondam infant did not have the right to possession of the premises.^"-* In closing this sec- tion, it may be remarked that the question of reasonable time Minn. 468. In some states the statute prescribes a time for disaf- firmance. 199 Sims V. Everhardt, 102 U. S. 300, 312; Wells v. Seixas (C. C.) 24 Fed. 82; McCarthy v. Nicrosi, 72 Ala. 332; Hill v. Nelms, 86 Ala. 442; Kountz v. Davis, 34 Ark. 590; Wallace's Lessee v. Lewis, 4 Har. (Del.) 75, 80; Richardson v. Pate, 93 Ind. 423; Sims v. Bar- doner, 86 Ind. 87, 95; Davis v. Dudley, 70 Me. 236, 238; Prout v. Wiley, 28 Mich. 164; Wallace v. Latham, 52 Miss. 291, 297; Lacy v. Pixler, 120 Mo. 383; Voorhies v. Voorhies, 24 Barb. (N. Y.) 150; Cresinger v. Welch's Lessee, 15 Ohio, 156; Gillespie v. Bailey, 12 W. Va. 70. See Green v. Green, 69 N. Y. 553; Bagan v. Scully, 29 App. Div. (N. Y.) 617; Urban v. Grimes, 2 Grant Gas. (Pa.) 96; Bingham v. Barley, 55 Tex. 281, 286; Wilson v. Branch, 77 Va. 65. Contra, Kline v. Beebe, 6 Conn. 494, 507; Goodnow v. Empire Lum- ber Co., 31 Minn. 468, 47 Am. Rep. 798; semile, Brantley v. Wolf, 60 Miss. 420; Ward v. Laverty, 19 Neb. 429; Scott v. Buchanan, 11 Humph. (Tenn.) 467; O'Dell v. Rogers, 44 Wis. 136, 183. 200 Irvine v. Irvine, 9 Wall. (U. S.) 617, 627; Sims v. Bardoner, 86 Ind. 87, 95; Davis v. Dudley, 70 Me. 236, 238; Amey v. Cockey, 73 Md. 297; Terry v. McClintock, 41 Mich. 492; Allen v. Poole, 54 Miss. 323; Lacy v. Pixler, 120 Mo. 383; Cresinger v. Welch's Lessee, 15 Ohio, 156; Dolph v. Hand, 156 Pa. 91; Hook v. Donaldson, 9 Lea (Tenn.) 56; Wheaton v. East, 5 Yerg. (Tenn.) 40; Ferguson v. Houston East & West Texas Ry. Co., 73 Tex. 344; Bigelow v. Kin- ney, 3 Vt. 353. 201 Nathans v. Arkwright, 66 Ga. 179; Long v. Williams, 74 Ind. 115; Ihley v. Padgett, 27 S. C. 300. (278) Ch. 4] INFANTS. § 175b for disaiBrming a contract made in infancy is closely linked with certain phases of the question of what constitutes rati- fication of the contract. The reader is, accordingly, re- ferred to the pages where that question was discussed. XI. SAiiE — Effect op Ratification or Disaffirmance. Eatification of a contract made in infancy makes it binding, and it cannot afterwards be disaflirmed. Furthermore, the rati- fication operates retrospectively, as well as prospectively. The contract is validated ab initio. Disaffirmance of the contract renders the transaction void, and cuts off subsequent ratification; and the effect of disaffirm- ance is retrospective, as well as prospeciive. It invalidates the contract ab initio. The right to avoid a contract made in infancy is not affected by the fact that, in the interim between the making and the disaffirmance of the contract, third persons have acquired in- terests in the subject-matter of the contract for value and with- out notice of the right to disaffirm. S 175b. In general. The effect of a ratification of a contract made in infancy is to render the contract binding,^°^ and there cannot, therefore, be a subsequent disaffirmance of the transaction.^''* The ratification is but a waiver of the right to avoid a subsisting contract, and its effect is to render the contract valid ab initio.^"''' Thus, if a man ratifies a mortgage 202 Southerton v. Whltlock, 2 Strange, 690; Wall v. Mines, 130 Cal. 27; Kennedy v. Doyle, 10 Allen (Mass.) 161. 203 Hastings v. Dollarhide, 24 Cal. 195; Minock v. Shortridge, 21 Mich. 304, 316; Houlton v. Manteuffel, 51 Minn. 185; Wheaton v. East, 5 Yerg. (Tenn.) 40. 204 West V. Penney, 16 Ala. 186; Hall v. Jones, 21 Md. 439; Minock V. Shortridge, 21 Mich. 304. However, if a man ratifies by writing a deed of land made in infancy, the writing is within the policy of the registry laws, and must be recorded. Black v. Hills, 36 111.. 376. And a promise made by the quondam infant after action (2Y9) § 17;b CAPACITY OF PARTIES. [Ch. 4 made by him in infancy, the ratification relates back in its effect to the delivery of the original deed, and affects all intermediate sales made by him which are not inconsistent with the mortgage, except, perhaps, those made upon a val- uable consideration, and cuts off, therefore, a voluntary con- veyance executed by the mortgagor after the making, and be- fore the ratification of the mortgage.^"^ Disafiirmance of a contract made in infancy renders the transaction void,^"^ and it cannot, therefore, be afterwards ratified.^"'' The effect of •disaffirmance is not merely prospective. It renders the transaction void ab initio. The contract is annulled on both sides, and the parties revert to the same situation as if the agreement had not been made.^°^ Thus, upon disaffirming a conveyance made in infancy, the title revests in the quon- dam infant, and he may recover the property, and, in the case of realty, he may have the conveyance canceled and his title quieted, and charge the grantee with rents from the time he entered imder the deed.^°® The rule as to the effect of disaffirmance protects the adult party also. Thus, if a man disaffirms a sale made by him in infancy, the obligation of the other party to pay the price thereupon becomes in- tirought against him on the contract cannot avail the plaintiff as a ratificafion, so as to permit a recovery in that action. Thing v. Libbey, 16 Me. 55; Ford v. Phillips, 1 Pick. (Mass.) 202; Hale v. Gerrish, 8 N. H. 374. -115 Palmer v. Miller, 25 Barb. (N. Y.) 399. ^""Wallace's Lessee v. Lewis, 4 Har. (Del.) 75; Willis v. Twamb- ley, 13 Mass. 204. 207 McCarty v. Woodstock Iron Co., 92 Ala. 463. 208 MacGreal v. Taylor, 167 TJ. S. 688; McCarty v. Woodstock Iron Co., 92 Ala. 463; Mette v. Feltgen, 148 111. 357; Black v. Hills, 36 111. 376, 380; Rice v. Boyer, 108 Ind. 472; Derocher v. Con- tinental Mills, 58 Me. 217; Vent v. Osgood, 19 Pick. (Mass.) 572, 575; Hoyt v. Wilkinson, 57 Vt. 404. 20" Towle V. Dresser, 73 Me. 252; Price v. Furman, 27 Vt. 268, "271; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. See, also, page 282, infra. The grantee is liable for the rents. French v. McAn- drew, 61 Miss. 187. Ch. 4] INFANTS. g 175b valid, and cannot be enforced ;^^° and in case a purchase of goods by an infant is disaffirmed by him, the seller is rein- vested with the right to the property.^^-' Upon repudiating a contract of hiring and service, the in- fant may recover upon a quantum meruit the reasonable value of the services he has rendered under it."^^ By the better opinion, the amount so recoverable is not subject to diminu- tion by deducting from it the damages occasioned by the in- fant's repudiating the agreement.^^* There are, indeed, cases holding otherwise,^^* but they are thought to be wrong in principle, for their effect is to make the infant liable on his contract. Money paid by an infant pursuant to the terms of a contract may be recovered back by him, upon disaffirm- ance, even -where the contract has been fully executed on both sides, provided the quondam infant is able to place the other party in the position he occupied before the transaction oc- curred, either by restoring to him whatever of value he has ■conferred, or by accounting to him for its value.^^^ 2ioBoody V. McKenney, 23 Me. 517; Craig v. Van Bebber, lUU Mo. 584. 211 Skinner v. Maxwell, 66 N. C. 45. 212 Ray V. Haines, 52 111. 485; Indianapolis Chair Mfg. Co. v. Wil- cox, 59 Ind. 429; Meredith v. Crawford, 34 Ind. 399; Van Pelt v. Corwine, 6 Ind. 363; Vehue v. Pinkham, 60 Me. 142; Gaffney v. Hay- den, 110 Mass. 137; Vent v. Osgood, 19 Pick. (Mass.) 572; Lufkin v. Mayall, 25 N. H. 82; Medbury v. Watrous, 7 Hill (N. Y.) 110; Whitmarsh v. Hall, 3 Denio (N. Y.) 375; Francis v. Felmit, 20 N. C. 498; Dearden v. Adams, 19 R. I. 217; Price v. Furman, 27 Vt. :268, 271. 213 Derocher v. Continental Mills, 58 Me. 217. And see cases icited in preceding note. See, also, Radley v. Kenedy, 14 N. Y. Supp. 268. But if an infant suing upon a quantum meruit has been overpaid for a part of the time during which he worked, tlie ex- cess will be deducted from the amount due him for subsequent iservices rendered under the contract. Hagerty v. Nashua Lock Co., 62 N. H. 576. 214 Semble, Moses v. Stevens, 2 Pick. (Mass.) 332; Lowe v. Sink- lear, 27 Mo. 308; Shurtleff v. Millard, 12 R. I. -272, 278; Hoxie v. Lincoln, 25 Vt. 206. (281) § 176 CAPACITY OP PARTIES. [Ch. 4 § 176. Rights of third persons. The right to urge and take advantage of the disability and privilege of infancy is not destroyed or barred by the fact that third persons have become interested in the subject-mat- ter of the contract in the interim between the making and the disaffirmance of the contract. Thus, upon repudiating a conveyance of property, real or personal, made in infancy, the quondam infant becomes entitled to the property even as against a hona fide purchaser from his vendee, and may ac- cordingly recover it from him.^-'® And a man may avoid a negotiable instrument made by him in infancy, even as against one who has taken the paper before maturity, for value and without notice.^^^ XII. Persons Non Compotes Mentis — What Constitutes Mental Unsoundness. When the mental faculties are in a condition which renders the subject incapable of understanding the nature and the effect of a contemplated act, he is said to be non compos mentis, and is incapable of irrevocably binding himself by contract. The condition of the faculties which constitutes contractual incapacity may result from lunacy, imbecility, or drunkenness. The derangement may be partial or complete, and ic may be temporary, recurrent, or permanent. 21= Riley v. Mallory, 33 Conn. 201 ; Bennett v. McLaugMin, 13 111. App. 349; Shirk v. Shultz, 113 Ind. 571; House v. Alexander, 105. Ind. 109; Robinson v. Weeks, 56 Me. 102; Heath v. Stevens, 48 N. H. 251; Rapid Transit Land Co. v. Sanford (Tex. Civ. App.) 24 S. W. 587. See Strain v. Wright, 7 Ga. 568. As to the necessity' for restoring the status quo, see page 272 et seq., supra. 216 Harrod v. Myers, 21 Ark. 592 ; Miles v. Lingerman, 24 Ind. 385; Jenkins v. Jenkins, 12 Iowa, 195; Hill v. Anderson, 5 Smedes & M. (Miss.) 216; Downing v. Stone, 47 Mo. App. 144; Searcy v. Hunter, 81 Tex. 644; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329. See, also, Myers v. Sanders' Heirs, 7 Dana (Ky.) 506, 521; Hovey v. Hobson, 53 Me. 451, 456. 217 Howard v. Simpkins, 70 Ga. 322. (282) Ch. 4] PERSONS NON COMPOS MENTIS. § 177 Contractual incapacity does not result from mere weakness of mind, nor from either deafness, dumbness, or blindness, though a, full combination of those defects may compel imbecil- ity; nor does incapacity result from senility; nor, so far as con- cerns a particular contract, does it result from a partial derange- ment of mind in a respect not affecting the subject-matter of the contract; nor does a temporary or recurrent derangement affect a contract made by the subject while in possession of his faculties. § 177. Insanity in general. Incapacity to enter into contracts may result from "in- sanity." This term has been defined as "unsoundness or de- rangement of mind." Upon the same authority, "insanity is the general term, and includes all mental unsoundness, whether complete or partial, and whether congenital or in- duced." It has been divided into (1) idiocy or imbecility, being ordinarily the state of one who has been from birth without reason, and (2) lunacy, the state of one who has once possessed reason, but has lost it in whole or in part.^^* The question of what constitutes insanity such as will inca- pacitate a man to enter into contracts is not free from diffi- culty. General principles there are, indeed, whiJi may be said to be well settled. The difficulty lies in applying them to the facts of the case. Insanity assumes such a variety of forms, from that of the raving madman to that of the mono- maniac, that it has almost been denied that any person is on every subject perfectly sane. But the law regards insanity only when it renders the subject non compos mentis^ — that is to say, only when that condition of the mental faculties ex- ists which renders the subject incapable of acting rationally in the ordinary affairs of life or in the particular matter be- fore him. It is that degree of mental derangement which renders the subject incapable of understanding the effect and 218 Cyclopedic Law Diet. "Insanity." (283) § 178 CAPACITY OF PARTIES. [Ch. 4 consequences of his acts. It need not be a total derangement, or, rather, obliteration, of the faculties, which prevents the person affected from reasoning upon all subjects, nor yet the want of power at all times, upon correct premises, to arrive at accurate conclusions; but it is that want of power which prevents a person from reasoning or understanding the re- lation of cause and effect. Persons of equal natural mental capacity, from differences in breeding, education, pursuits, and opportunity, manifest different degrees of mental vigor. This difference the law does not measure, nor does the law prescribe, as a standard of contractual capacity, the high order of reasoning powers that marks the gifted. If a man manifests an ordinary degree of intelligence and judgment, or even less,^^^ in reference to his pursuits in life, and espe- cially upon the subject-matter of the contract in dispute, at the time of the transaction, he is legally competent to act for himself, and, if no fraudulent practices have been re- sorted to in order to induce the contract, he is bound by it. § 178. Weakness of mind. In the absence of undue influence or other fraudulent prac- tice,^^" mere weakness of mind does not constitute a vitiating element in contract. A man may be simple and grossly igno- rant, vacillating and easily influenced, improvident and rash, fatuous and visionary, and yet he may have contractual ca- pacity. Weakness and folly do not in themselves constitute a ground for relief. To render the contract voidable, in the absence of fraud, the deficiency must be so great as to ren- der the party affected incapable of understanding the nature and the effect of the transaction. If he is so deficient in in- 219 Ball V. Manuin, 3 Bligh (N. S.) 1, 21; Lilly v. "Waggoner, 27 111. 395, 397. 220 As to undue influence, see page 208, supra, and pages 287, 289, 308, infra. (2841 Ch. 4] PERSONS NON COMPOS MENTIS. ^ 179 tellect as to lack this understanding, the contract is voidable ; otherwise, it is valid.^^^ § 179. Idiocy. "Idiocy," which may be used interchangeably with "imbe- cility," is a form of insanity consisting in mental deficiency, either congenital, or resulting from an obstacle to the develop- ment of the faculties supervening in childhood. It is a ster- ility of mind, and not a perversion of the understanding.^"^ An idiot or imbecile is, therefore, a person who has had no understanding from his infancy. Being without a consent- ing mind, the law regards him incompetent to make a con- tract.^ ^^ In order to avoid a contract on the ground of im- becility alone, the incapacity must be such as would justify a 221 Nance v. Stockburger, 111 Ga. 821; Maddox v. Simmons, 31 Ga. 512; Kelly v. Perrault (Idaho) 48 Pac. 45; Blmstedt v. Nichol- son, 186 111. 580; English v. Porter, 109 111. 285; Perry v. Pearson, 135 111. 218; Lilly v. Waggoner, 27 111. 396; Henry v. Ritenour, 31 Ind. 136; Graham v. Castor, 55 Ind. 559; Boyer v. Berryman, 123 Ind. 451; Des Moines Nat. Bank v. Chisholm, 71 Iowa, 675; Waters V. Barral's Heirs, 2 Bush (Ky.) 598; Hovey v. Hobson, 55 Me.. 256; Hovey v. Chase, 52 Me. 304; Cain v. Warford, 33 Md. 23; Farnam V. Brooks, 9 Pick. (Mass.) 212; Davis v. Phillips, 85 Mich. 198; Simonton v. Bacon, 49 Miss. 582; Mulloy v. Ingalls, 4 Neb. 115; Dennett v. Dennett, 44 N. H. 531; Hill's Ex'rs v. Day, 34 N. J. Eq. 150, 153; Eaton v. Eaton, 37 N. J. Law, 108; Jackson v. King, 4 Cow. (N. Y.) 207, 15 Am. Dec. 354; Siemon v. Wilson, 3 Edw. Ch. (N. Y.) 36; Odell v. Buck, 21 Wend. (N. Y.) 142; Lawrence v. Willis,. 75 N. C. 471; Rippy v. Gant, 39 N. C. 443; Hepler v. Hosack, 197 Pa. 631; Aiman v. Stout, 42 Pa. 114; Neely v. Anderson, 2 Strob. Bq. (S. C.) 262; Henderson v. McGregor, 30 Wis. 78. 222 Cyclopedic Law Diet. "Idiocy"; "Imbecility." 223Burnham v. Kidwell, 113 111. 425; Harbison v. Lemon, 3 Blackf. (Ind.) 51; Lang v. Whidden, 2 N. H. 435; Millison v. Nicholson, 1 N. C. 549. It has been said that, if aperson is capable of learning the alphabet, he is not an idiot; yet a person no further qualified cannot make a deed. Ball v. Mannin, 3 Bligh, N. R. 1, 1 Dow. & C. 380. See Shoulters v. Allen, 51 Mich. 529. Total loss of understand- ing is imbecility. Crowther v. Rowlandson, 27 Cal. 377. Mere weak- ness of mind is not idiocy. Somers v. Pumphrey, 24 Ind. 231. (285) § 181 CAPACITY OF PARTIES. [Ch. 4 jury, under a commission of lunacy, in putting the afflicted person under guardianship.^^* § 180. Deafness — Dumbness — Blindness. A deaf mute is not devoid of capacity to contract, even though he has been such from his nativity. ^^^ But if, super- added to the deprivation of those two senses from nativity, a person is also blind, and has always been so, he is regarded in law as incapable of making contracts. ^^® At the present day, in view of the successful methods of instructing the deaf, dumb, and blind, this probably amounts to no more than a rebuttable presumption of incapacity.^^^ § 181. Senility. The weakness of mind ordinarily attendant upon extreme old age does not destroy contractual capacity f^^ but senility 224 Wilson V. Oldham, 12 B. Mon. (Ky.) 55, 57. 226 Brown v. Brown, 3 Conn. 299; Brower v. Fisher, 4 Jehns. Ch. (N. Y.) 441; Barnett V. Barnett, 54 N. C. 221. Chancellor Kent says, liowever: "Perhaps, after all, the presumption, in the first instance, is that every such person is incompetent. It is a reasonable pre- sumption in order to insure protection and prevent fraud, and is founded on the notorious fact that the want of hearing and speech exceedingly cramps the powers and limits the range of the mind." Brower v. Fisher, 4 Johns. Ch. (N. Y.) 444. 228 Coke, Litt. 42b; Brown v. Brown, 3 Conn. 299, 303. 227 See Barnett v. Barnett, 54 N. C. 221, 222. 228 stone v. Wilbern, 83 111. 105; Kimball v. Cuddy, 117 111. 213; Farnham v. Brooks, 9 Pick. (Mass.) 212; Trimbo v. Trimbo, 47 Minn. 389; Smith v. Beatty, 37 N. C. 456. Old age, accompanied by occasional fits of nervous distiirbance, does not, of itself, in- capacitate. Speers v. Sewell, 4 Bush (Ky.) 239. A man may be old and enfeebled by disease, and yet competent to contract. Pea- body V. Kendall, 145 111. 519; Hill's Ex'rs v. Day, 34 N. J. Bq. 150, 153. A man may be old, eccentric, and of weak mind, and yet be competent to contract, if he has sufficient intellect to understand the nature and effect of his act. Buckey v. Buckey, 38 W. Va. 168. The fact that a man's intellectual powers have been somewhat im- paired by age does not make him incompetent, if he fully compre- (286) <_h. 4] PERSONS NON COMPOS MENTIS. § 182 may result in or be accompanied by mental weakness in a sufficient degree to render the contract voidable. ^^^ And old age may, of course, render the subject easily susceptible to undue influence or other form of fraud, which, if practised, will avoid the contract.^^" § 182. Partial derangement. Partial derangement of mind, while it amounts to insanity, does not render the subject incapable of contracting,^^ ^ un- less it directly induces the contract.^^^ Thus, a person who is insane upon the subject of religion is not thereby incapaci- tated to act in the ordinary affairs of life.^^^ On the other hand, a man afflicted with a mania for buying and selling, re- gardless of proiit or loss, is incompetent to enter into a con- tract of purchase.^^* The question in each particular ease is hends the nature and effect of what he is doing. Guild v. Hull, 127 111. 527; Argo v. Coffin, 142 111. 368; Lynch v. Doran, 95 Mich. 395. 229WIllemin v. Dunn, 93 111. 511; Cole v. Cole, 21 Neb. 84; Clark V. Klrkpatrick (N. J. Bq.) 16 Atl. 309; Smith v. Beatty, 37 N. C. 456; King v. Davis, 60 Vt. 502. 230 Shaw V. Ball, 55 Iowa, 55; Coleman v. Frazer, 3 Bush (Ky.) 300; James v. Langdon, 7 B. Mon. (Ky.) 193; Wilson v. Oldham, 12 B. Mon. (Ky.) 55; Farnam v. Brooks, 9 Pick. (Mass.) 212, 220; Cadwallader v. West, 48 Mo. 483; Wildrick v. Swain, 34 N. J. Bq. 167; Parris v. Cobb, 5 Rich. Eq. (S. C.) 450; Keeble v. Cummins, 5 Hayw. (Tenn.) 43. Old age alone is not sufficient ground to pre- sume imposition. Lewis v. Pead, 1 Ves. Jr. 19. 231 Drew V. Nunn, 4 Q. B. Div. 661, 669; Stubbs v. Houston, 33 Ala. 555; Searle v. Galbraith, 73 111. 269; Emery v. Hoyt, 46 111. 258; Crouse v. Holman, 19 Ind. 30; Johnson v. Johnson, 10 Ind. 387; Lewis V. Arbuckle, 85 Iowa, 335; Dewey v. Allgire, 37 Neb. 6; Den- nett V. Dennett, 44 N. H. 531, 537; Blakeley v. Blakeley, 33 N. J. Eq, 502; Boyce's Adm'r v. Smith, 9 Grat. (Va.) 704. 232 Jenkins v. Morris, 14 Ch. Div. 674; Bond v. Bond, 7 Allen (Mass.) 1; Riggs v. American Tract See, 95 N. Y. 503; Alston v. Boyd, 6 Humph. (Tenn.) 504. 233 Burgess v. Pollock, 58 Iowa, 273. 234 Dominick v. Randolph, 124 Ala. 557. (287) § 183 CAPACITY OF PARTIES. [Ch. 4 whether or not the party was capable of managing his own affairs in the matter in hand at the time he entered into the contract. ^^^ § 183. Temporary derangement — Drunkenness. To render a man incapable of contracting, the derangement need not b& permanent. A person temporarily insane is in- capacitated, while the derangement lasts, to make a contract which will be binding upon hini.^^® Insanity induced by drunkenness has the same effect as derangement arising from natural causes,^^'^ but only for the time being. Occasional insanity arising from intemperance does not affect a contract made by the subject while in possession of his faculties;^** and even though drunkenness does not result in insanity, technically speaking, still, if a man is too drunk to exercise an agreeing mind or a sound and disposing judgment, he has not sufficient capacity to make a contract ;^^® and the fact that the intoxication is voluntary and in no wise induced by the other party does not affect the right to avoid the con- 235 Pollock, Cont. 93; Jenkins v. Morris, 14 Ch. Div. 674; UUy V. Waggoner, 27 111. 395, 396; Lozear v. Shields, 23 N. J. Eq. 509. 236 Curtis V. Brownell. 42 Mich. 165. 237 Menkins v. Lightner, 18 111. 282; Bliss v. Connecticut & P. R. R. Co., 24 Vt. 424. Extreme mental debility, produced by drunk- enness, is of the same effect as drunkenness itself. Wilson v. Big- ger, 7 Watts & S. (Pa.) 111. 238 Lewis V. Baird, 3 McLean, 56, Fed. Cas. No. 8,376; Bliss v. Connecticut & P. R. R. Co., 24 Vt. 424. 239 Gore V. Gibson. 13 Mees. & W. 623, 14 Law J. Exch. 151; Hawkins v. Bone, 4 Fost. & F. 311; Matthews v. Baxter, L. R. 8 Exch. 132; Phelan v. Gardner, 43 Cal. 306; Menkins v. Lightner, 18 111. 282; Reinskopf v. Rogge, 37 Ind. 207; Jenners v. Howard, 6 Blackf. (Ind.) 240; Carpenter v. Rodgers, 61 Mich. 384; Newell v. Fisher, 11 Smedes & M. (Miss.) 431; Bush v. Breinlg, 113 Pa. 310; Williams v. Inabnet, 1 Bailey (S. C.) 343; Birdsong v. Birdsong, 2 Head (Tenn.) 290; Smith v. Williamson, 8 Utah, 219; Wigglesworth V. Steers, 1 Hen. & M. (Va.) 70; Biirsinger v. Bank of Watertown, 67 Wis. 75, 79. (288) Ch. 4] PERSONS NON COMPOS MENTIS. § 183 tract.^*" Mere drunkenness, of itself, does not disqualify a man from making contracts, unless it exists to such a degree as to deprive him of his reason, and render him incapable of giving a true consent.'^*^ Nor does habitual drunkenness, of itself, incapacitate a man for making contracts. If he is in his right mind when he enters into the engagement, he is bound by it,^*^ unless he has been found to be an habitual drunkard by inquisition.^*^ It is well to observe, in this 2; City of Seattle Board of Trade v. Hayden, 4 Wash. 263. / (314) Ch. 4] MARRIED WOMEN. § 198 ern authority, she may dispose of or incumber her separate estate in any manner not forbidden by the instrument creat- ing it.^^* This power is not without its limitations, however. The wife cannot sue or be sued alone in respect of her sep- arate estate ;^^^ and she does not acquire an equitable status of capacity to contract debts in respect of any separate estate whensoever acquired. She may bind only such estate as is in her possession or control at the time the liability is as- sumed f^° and she may not bind herself personally, nor create liabilities in excess of her separate estate. The creditor's remedy lies, not against her, but against her property.^^^ It has been held that, in order to render the separate estate lia- ble, the wife's contract must have been made for the benefit of her estate, and have been reasonably calculated to promote that end,^^^ or have been made for her own benefit on the credit of her estate.^^^ In any event, there must be an in- tention on her part to charge her separate estate, else it is not bound.^^^ It is immaterial that the other party relies on 328 Cheever v. "Wilson, 9 Wall. (U. S.) 108; Imlay v. Huntington, 20 Conn. 146; Dallas v. Heard, 32 Ga. 604; Jaques v. Trustees of M. E. Churcli, 17 Johns. (N. Y.) 548, reversing 3 Johns. Ch. (N. Y.) 77; Phillips v. Graves, 20 Ohio St. 371; Bain v. Buff's Adm'r, 76 Va. 371; Radford v. Carwile, 13 W. Va. 572, 653. 329 Anson, Cont. (4th Ed.) 119. 330 Pike V. Pitzgibhon, 17 Ch. Div. 454. 331 Dobbin v. Hubbard, 17 Ark. 189 ; Burch v. Breckinridge, 16 B. Men. (Ky.) 482; Dougherty v. Sprinkle, 88 N. C. 300; Bain v. Buffs Adm'r, 76 Va. 371. 332 Kantrowitz v. Prather, 31 Ind. 92; Dougherty v. Sprinkle, 88 N. C. 300. The separate estate is bound for money borrowed by the wife ostensibly for its benefit, although she subsequently mis- applies the fund. McVey v. Cantrell, 70 N. Y. 295; Sargeant v. French, 54 Vt. 384. 333 Peake v. La Baw, 21 N. J. Eq. 269; Perkins v. Elliott, 22 N. J. Eq. 127; Pippen v. Wesson, 74 N. C. 437; Dale -v. Robinson, 51 Vt. 20. 334 Tullett V. Armstrong, 4 Beav. 319; Kantrowitz v. Prather, 31 Ind. 92; Burch v. Breckinridge, 16 B. Mon. (Ky.) 482; Grand Island (315) § 198 CAPACITY OF PARTIES. , [Ch. 4 her estate, if she does not intend to bind it.^^^ This inten- tion may be either express or implied from the circumstances of the case.^^® An instance of implied intention is found in the case of a woman living apart from her husband and in- curring debts. The presumption is that she contracts with reference to her separate estate. ^^^ So, also, it is presumed that a married woman who enters into an express contract as if single intends to bind her separate estate for its fulfill- ment.^*^ Again, the intention to bind her separate estate may be implied from the fact that the consideration for her promise is for the benefit of herself or her estate.**^ Unless the consideration for her promise is to inure to her benefit, or to the benefit of her separate estate, however, an intention to bind her estate must be expressed in terms. ^^^ The power Banking Co. v. Wright, 53 Neb. 574 ; Pippen v. ' Wesson, 74 N. C. 437; Harshberger's Adm'r v. Alger, 31 Grat. (Va.) 52, 62, 63. 335 Kantrowitz v. Prather, 31 Ind. 92; Hodson v. Davis, 43 Ind. 258. 330 See cases in note 334, supra. 33T Johnson v. Gallagher, 3 De Gex, F. & J. 494; Picard v. Hine, 5 Ch. App. 277; Johnson v. Cummins, 16 N. J. Eq. 97; Harshberger's Adm'r v. Alger, 31 Grat. (Va.) 52, 62, 63. 338 Sprague v. Tyson, 44 Ala. 338, 341; Dobbin v. Hubbard, 17 Ark. 189; Dallas v. Heard, 32 Ga. 604; McCormick v. Holbrook, 22 Iowa, 487, 489; Lillard v. Turner, 16 B. Mon. (Ky.) 374; Boatmen's Sav. Bank V. Collins, 75 Mo. 280; Batchelder v. Sargent, 47 N. H. 262; Williams v. Urmston, 35 Ohio St. 296; Harshberger's Adm'r v. Al- ger, 31 Grat. (Va.) 52, 62. Contra, Hodson v. Davis, 43 Ind. 258; Grand Island Banking Co. v. Wright, 53 Neb. 574; Westervelt v. Baker, 56 Neb. 63. In Wicks V. Mitchell, 9 Kan. 80, this presumption was held to be conclusive. 339 Williams v. King, 13 Blatchf. 282, Fed. Gas. No. 17,725; Wells V. Thorman, 37 Conn. 318; McCormick v. Holbrook, 22 Iowa, 487, 489; McVey v. Cantrell, 70 N. Y. 295, 297; Pippen v. Wesson, 74 N. C. 437; Patrick v. Littell, 36 Ohio St. 79. 340 Flanders v. Abbey, 6 Biss. 16, Fed. Cas. No. 4,851; Williams v. Hugunin, 69 111. 214; Willard v. Eastham, 15 Gray (Mass.) 328; (316) Ch. 4] ALIENS. § 199 to contract as a feme sole may be preserved in favor of the woman by an antenuptial agreement, which will be recog- nized in courts of equitable jurisdiction.*''^ § 199. Contractual capacity under the married women's acts. In nearly all the United States, as well as in England,, statiites have been enacted, in modern times, which, to a greater or less extent, confer upon married women, at law, the riji'hts and powers theretofore available to them only in equity. In some states, indeed, the wife may contract as a feme sole unqualifiedly; in others, she is permitted to enter into engagements only as to her separate property. To deal with these statutes is beyond the scope of a work of this char- acter. XVII. Aliens. An alien is a person who is a subject of a foreign state. Alien friends ordinarily have the same power to make and to enforce contracts as subjects of the state. At common law, alien friends may take and hold personal property the same as subjects, but they may not hold benefi- cially any estate in real property. Their rights in this respect are now governed largely by statute. Unless licensed by the sovereign, an alien enemy may not en- ter into any contract with a subject which is inconsistent with a state of war. Nor may he enforce, in time of peace, a con- tract made with a subject in time of war; nor enforce, in time of war, a contract made with a subject in time of peace. The subject may enforce the contract, however, in which case the alien may defend. Subject to some qualifications, a contract made by an alien in time of peace is not annulled by a subsequent declaration of war. His rights are merely suspended, and, upon the return of peace, he may enforce them the same as a subject. Saratoga Co. Bank v. Pruyn, 90 N. Y. 250; Yale v. Dederer, 22 N.. Y. 450. 3ii Bishop, Cont. § 950. (317), § 200 CAPACITY OF PARTIES. [Ch 4 ^ 199a. In general. An "alien" is frequently defined as a person born out of the jurisdiction and allegiance of the United States, and who has not since become naturalized.^''^ There are some excep- tions to this rule, however,^*^ and it may be more accurate to •define an alien as a person who is a citizen or subject of a foreign state. ^'''' If a person is an alien, within this defini- tion, he does not lose the character of alienage because he re- sides in the United States. Aliens are distinguished as "alien friends" and "alien enemies," according to whether the foreign state to which they owe their allegiance is at peace or at war with the United States. ^*^ § 200. Alien friends. Alien friends ordinarily have the same power to make con- tracts as subjects of the United States, and their contracts, whether entered into between themselves or between them and subjects of the United States, will be recognized by our courts. 312 2 Kent. Comm. 50; Dawson's Lessee v. Godfrey, 4 Cranch (U. S.) 321; In re Guilford's Estate, 67 Cal. 380; BuflBngton v. Gros- venor, 46 Kan. 730; McGregor v. McGregor, 3 Abb. Dec. (N. Y.) 92, 33 How. Pr. (N. Y. ) 456. "While the term 'alien' quite uniformly applies to one born beyond tbe jurisdiction of the United States, still the term is sometimes applied, in statutes [of various states of the Union] imposing personal disabilities, to one who [while a citizen of the United States] is not a citizen of the state." Knowl ton's An- son, Cont. 104, note; McDonel v. State, 90 Ind. 320. An "alien" may be more definitely defined as any person who is not a citizen of the United States. Citizenship may be created by birth within the juris- diction of the United States, or it may be acquired by naturalization, or it may result from a foreign-born child's succeeding to the status of the father as a citizen of the United States, or from the marriage of a female alien to a citizen of the United States. - 343 See note 342 as to citizenship. 344 Milne V. Huber, 3 McLean, 212, 219, Fed. Cas. No. 9,617; Den d. Martin v. Brown, 7 N. J. Law, 305, 336. 346 1 Bl. Comm. 371; 1 Kent, Comm. 73. .(318) Ch. 4] ALIENS. § 200 They may sue or be sued upon them, the same as subjects of the United States.^*® At common law, an alien might acquire and hold personal property the same as a citizen,^*'^ but as to real property his rights were limited. In this species of property, he could not hold beneficially any estate, either legal or equi- table.^*^ In this connection, the distinction should be noted between acquisition of title by purchase and acquisition by descent. An alien might take real estate by purchase, whether by grant or by devise, but he could not take by descent. Upon the death of the ancestor intestate, the title to his real estate could not vest in or pass through an alien heir. But in case of a grant of real estate to an alien, or a devise of the same to him, the estate vested in him.^*® As has been said, he could not hold the estate beneficially. In such a case, he took the title for the ben- efit of the state; but, as against all others than the state, his title was good, and he had complete dominion over the l^roperty, and his title was also good as against the state until sis Openheimer v. Levy, 2 Strange, 1082; Taylor v. Carpenter, 3 Story, 458, Fed. Cas. No. 13,781; Roberts v. Knights, 7 Allen (Mass.) 449; Barren v. Benjamin, 15 Mass. 354; Bradstreet v. Oneida Co. Sup'rs, 13 Wend. (N. Y.) 546; Franco-Texan Land Co. v. Chaptive (Tex.) 3 S. W. 31. SJT 1 Bl. Comm. 372; 2 Kent, Comm. 62; Craig v. Leslie, 3 Wheat. (U. S.) 563; Angus v. Noble, 73 Coan. 56, 66; Greenheld v. Morrison, 21 Iowa, 538; Greenia v. Greenia, 14 Mo. 526; Beck v. McGillis, 9 Barb. (N. Y.) 35; Franco-Texan Land Co. v. Chaptive (Tex.) 3 S. W. 31. s-is 1 Bl. Comm. 372; 2 Bl. Comm. 249; Craig v. Leslie, 3 Wheat. (U. S.) 563; Angus v. Noble, 73 Conn. 56, 66. 340 Fairfax's Devisee v. Hunter's Lessee, 7 Cranch (U. S.) 603; Harley v. State, 40 Ala. 689; Farrell v. Enright, 12 Gal. 450; Wun- derle v. Wunderle, 144 111. 40; Bldon v. Doe, 6 Blackf. (Ind.) 341; Fox V. Southack, 12 Mass. 142; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Quinn v. Ladd (Or.) 59 Pac. 457. In case the ancestor dies intestate, and his heir is an alien, his real estate escheats to the state, without the institution of any proceedings to that end. €rane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430. (319) § 201 CAPACITY OF PARTIES. JCh. 4 it instituted proceedings and obtained a judgment by inquest of office or office found or some legislative act equivalent thereto.^°° In some states, the common-law rule still ob- tains. In others, resident aliens are placed on the same foot- ing as citizens with reference to the right to acquire and hold real property. And in yet other states, the same liberal pol- icy has been adopted towards nonresident aliens as well. This matter is governed largely by statute, and it is beyond the scope of the present work to enter into it in detail. § 201. Alien enemies. In point of law, the subjects of sovereigns at war are enemies,^^^ and an alien enemy cannot enter into a contract ■■'-M Phillips V. Moore, 100 U. S. 208; Fairfax's Devisee v. Hunter's ' Lessee, 7 Cranch (U. S.) 603; Ferguson v. Neville, 61 Cal. 356; Wunderle v. Wunderle, 144 III. 40; Hafstead v. Lake County, 56 Ind. 363; ElmonddrfE v. Carmichael, 3 Litt. (Ky.) 472, 14 Am. Dec. 86; Culverhouse v. Beach, 1 Johns. Cas. (N. Y.) 399; Bradstreet v. Oneida County, 13 Wend. (N. Y.) 546; Belden v. Wilkinson, 33 Misc. Rep. (N. Y.) 659; State v. Boston, C. & M. R. Co., 25 Vt. 433; Goon Gan V. Richardson, 16 AVash. 373. 351 1 Kent, Comm. 55; Jecker v. Montgomery, 18 How. (U. S.) 110; The Rapid, 8 Cranch (U. S.) 155, affirming 1 Gall. 295, Fed. Cas. No. 11,576; Hill V. Baker, 32 Iowa, 302, 308. The inhabitants ot the United States and oi tlie Confederate states were regarded as ene- mies during the Civil War, and accordingly contracts made between them during the conflict were void. Habricht v. Alexander's Ex'rs, 1 Wood, 413, Fed. Cas. No. 5,886; Philips v. Hatch, 1 Dill. 571, Fed. Cas. No. 11,094; Kanawha Coal Co." v. Kanawha & O. Coal Co., 7 Blatchf. 391, Fed. Cas. No. 7,606; Semmes v. City Fire Ins. Co., 36 Conn. 543; Hill v. Baker, 32 Iowa, 302; De Jarnette v. Be Giver- ville, 56 Mo. 440; Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444. But see Zacharie v. Godfrey, 50 111. 186. One who ad- heres to his sovereign's enemies may be regarded as an alien enemy. Anson, Cont. (4th Ed.) 104. See Roberts v. Hardy, 3 Maule & S. 533; McConnell v. Hector, 3 Bos. & P. 113, 114; O'Mealey v. Wilson, 1 Camp. 482; Sanderson v. Morgan, 39 N. Y. 231. But see Sparenburgh v. Bannatyne, 1 Bos. & P. 163. While a citizen or neutral resides in a hostile country, he is a subject of that country, and has a hos- (320) Ch. 4] ALIENS. § 201 w-ith a subject of the other belligerent which is inconsistent with the state of war.^°- The rule has been well expressed in an English case: ''It is now fully established that, the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war im- ports a prohibition of commercial intercourse and correspond- ence with the inhabitants of the enemy's country, and that such intercourse, except with the license of the crown, is ille- g^2 "353 Q^jj^g prohibited intercourse, says Mr. Justice Gray, of Massachusetts, "includes any act of voluntary submission to the enemy, or receiving his protection, as well any act or contract which tends to increase his resources; and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or orders for the deliv- ery of either, between the two countries, directly or indi- rectly, or through the intervention of third persons or part- nerships, or by contracts in any form looking to or involving such transmission, or by insurances Upon trade with or by the enemy."^^'* In determining the validity of a bill of ex- tile character impressed on him. 1 Kent, Comm. 74; The Venus, 8 Cranch (U. S.) 253; The Frances, 8 Cranch (U. S.) 335, 363. 352 1 Kent, Comm. 66, 67; Barrick v. Buba, 2 C. B. (N. S.) 563; Potts V. Bell, 8 Term R. 548; Crawford v. The William Penn, 3 Wash. C. C. 484, Fed. Cas. No. 3,373; Philips v. Hatch, 1 Dill. 571, Fed. Cas. No. 11,094; Rice v. Shook, 27 Ark. 137; Hill v. Baker, 32 Iowa, 302; Shotwell v. Ellis, 42 Miss. 439; Buchanan v. Curry, 19 Johns. (N. y.) 137, 10 Am. Dec. 200; Cohen v. New York Mut. Life Ins. Co., 50 N. Y. 610; Woods v. Wilder, 43 N. Y. 164; Wright v. Graham, 4 W. Va. 430. However, a prisoner of war may bind him- self by contract for subsistence. Crawford v. The William Penn, 3 Wash. C. C. 484, Fed. Cas. No. 3,373. And see Scholefield v. Eichel- berger, 7 Pet. (U. S.) 586. And he may also make a valid ransom bond. Crawford v. The William Penn, 3 Wash. C. C. 484, Fed. Cas. No. 3,373. 353 Esposito V. Bowden, 7 EI. & Bl. 763, 779. 35* Kershaw v. Kelsey, 100 Mass. 561, 572, 573, 1 Am. Rep. 142, 97 Am. Dec. 124. And see Montgomery v. United States, 15 Wall. (U. (321) Law of Cont— 21. § 201 CAPACITY OF PARTIES [Ch. 4 change drawn on one country in a kostfle land in time of war, the substance of the transaction must be looked ait, — not merely the nationality of the persons who are ultimately parties to an action on the bill.^^® Thus, a bill drawn on England by an English prisoner in a hostile country is a lawful contract, being made between English subjects, and, by the necessity of the case, an indorsement of the bill to an alien enemy is also good, so that he may recover on it after the return of peace ;^^® but a bill drawn by an alien enemy on a domiciled subject, and indorsed to another subject re- siding In the enemy's country, gives no right of action, since it is a direct trading with the enemy on the part of the ac- ceptor. ^^^ The rule that an alien enemy cannot contract is applied so strictly that a contract by an alien enemy in time of war will not be enforced, even after hostilities have ceased. ^^® If the subjects of belligerents first obtain license S.) 395; Habricht v. Alexander's Ex'rs, 1 Woods, 413, Fed. Cas. No. 5,886; Soholefield v. Eichelberger, 7 Pet. (U. S.) 586; United States V. Grossmayer, 9 Wall. (U. S.) 72, HufEcut & W. Am. Cas. Cont. 215; Perkins v. Rogers, 35 Ind. 124; Hennen v. Oilman, 20 La. Ann. 241; Shacklett v. Polk, 51 Miss. 378; Rhodes v. Summerhill, 4 Helsk. (Tenn.) 204. 355 Pollock, Cont. 280. 350 Antoine v. Morshead, 6 Taunt. 237. 357 Willison V. Patteson, 7 Taunt. 439. See Williams v. Mobile Sav. Bank, 2 Woods, 501, Fed. Cas. No. 17,729; Tarleton v. Southern Bank, 49 Ala. 229; Woods v. Wilder, 43 N. Y. 164; Lacy v. Sugar- man, 12 Heisk. (Tenn.) 354; Billgerry v. Branch, 19 Grat. (Va.) 393. However, a citizen of the United States may lawfully draw a bill on an alien enemy residing abroad. United States v. Barker, 1 Paine, 156, Fed. Cas. No. 14,517. And an order for money drawn upon one alien enemy in favor of another alien enemy, both resid- ing abroad, and passed by the drawer, a subject of the United States, to another subject of that government, is valid, since it does not operate to transfer the money from one belligerent to the other. Haggard v. Conkwright, 7 Bush (Ky.) 16. 358 Willison V. Patteson, 7 Taunt. 439 ; Hart's Case, 15 Ct. CI. 414 ; Habricht v. Alexander's Ex'rs, 1 Woods, 413, Fed. Cas. No. 5,886; (322) Ch. 4] ALIENS. § 201 or authority from their governments, however, they may en- ter into contracts the same as in time of peace.^'^ And an alien enemy residing here by license of the government may sue in our courts to enforce his contracts, the same as if no war existed.^®" ]^ot only is an alien enemy powerless to enter into contracts in time of war, but contracts made by him in time of peace cannot be enforced at his instance in time of war,^'^^ and, if suit has been commenced on such a Philips V. Hatch, 1 Dill. 571, Fed. Gas. No. 11,094; Hanger v. Ab- bott, 6 Wall. (U. S.) 532, 535; Dorsey v. Kyle, 30 Md. 512; Griswold V. Waddington, 16 Johns. (N. Y.) 438. ssoUsparicha v. Noble, 13 East, 332; Philips v. Hatch, 1 Dill. 571, Fed. Gas. No. 11,094; Rice v. Shook, 27 Ark. 137; Griswold v. Wad- dington, 16 Johns. (N. Y.) 438. Gontracts made with an alien en- emy are lawful if made in a trade carried on under license of the government, whether they arise directly or collaterally out of such trade. And an alien enemy residing in this country by license of the government may enter into contracts here. Crawford v. The William Penn, 3 Wash. G. C. 484, Fed. Gas. No. 3,373. 360 Wells v. Williams, 1 Salk. 46, 1 Ld. Raym. 282; Otteridge v. Thompson, 2 Granch, G. G. 108, Fed. Gas. No. 10,618; Johnson v. Thirteen Bales & Thirteen Gases of Goods of Merchandise, 2 Paine, 639, Fed. Gas. No. 7,415; Parkinson v. Wentworth, 11 Mass. 26; Bradwell v. Weeks, 13 Johns. (N. Y.) 1, 4; Russel v. Skipwith, 6 Bin. (Pa.) 241, 244. This license may be implied from an alien's continued residence here, after the outbreak of hostilities, without molestation by the government. Otteridge v. Thompson, 2 Granch, G. G. 108, Fed. Gas. No. 10,618; Clarke v. Morey, 10 Johns. (N. Y.) 69. Contra, Boulton v. Bobree, 2 Gamp. 163; Alciator v. Smith, 3 Camp. 245. soiAlcinous v. Nigreu, 4 El. & Bl. 217; Le Bret v. Papillon, 4 East, 502; Kanawha Goal Co. v. Kanawha & 0. Coal Co., 7 Blatchf. 391, Fed. Gas. No. 7,606; Lamar v. Micou, 112 U. S. 452, 464; Semmes T. City Fire Ins. Co., 36 Conn. 543; Perkins v. Rogers, 35 Ind. 124; Norris v. Doniphan, 4 Mete. (Ky.) 385; Dorsey v. Kyle, 30 Md. 512; Kershaw v. Kelsey, 100 Mass. 561, 563; Johnston v. Decker, 11 Johns. (N. Y.) 418; Blackwell v. Willard, 65 N. C. 555; Haymond v. Cam- den, 22 W. Va. 180. See Mumford v. Mumford, 1 Gall. 366, Fed. Gas. No. 9,918; Johnson v. Thirteen Bales &~Thirteen Cases of Goods •of Merchandise, 2 Paine, 639, Fed. Gas. No. 7,415; Brooke v. Filer, 35 Ind. 402; Wilcox v. Henry, 1 Dall. (Pa.) 69. War suspends all (323) § 201 CAPACITY OF PARTIES. [Ch. 4 contract, the opening of hostilities abates it.^"* The other party to the contract may enforce it, however,^^^ but, if he sues upon it, the alien will be allowed to defend the same as a citizen.^^* Unless the contract is of a continuing nature, such as a contract of commercial partnership,^''^ and its per- formance would violate the laws governing a state of war,^®" or unless the nature or object of the contract is inconsistent with a suspension,^®^ a contract made by an alien in time of peace is not annulled by the declaration of war. The out- contracts between subjects of the belligerent states. The Rapid, 1 Gall. 295, Fed. Cas. No. 11,576. War suspends the remedy on a con- tract made in time of peace, but it is not unlawful to perform con- tracts with alien enemies if the act of performance is done in this country. Buchanan v. Curry, 19 Johns. (N. Y.) 137, 10 Am. Dec. 200. 362 Bouv. Law Diet. "Abatement"; Levine v. Taylor, 12 Mass. 8; Jonston V. Decker, 11 Johns. (N. Y.) 418; Bell v. Chapman, 10 Johns. (N. Y.) 183. See De Luneville v. Phillips, 5 Bos. & P. (2 N. R.) 97; Brooke v. Filer, 35 Ind. 402. The objection that plaintiff is an alien enemy is waived unless taken by answer or demurrer. McNair v. Toler, 21 Minn. 175. 383RUSS V. Mitchell, 11 Pla. 80; Mixer v. Sibley, 53 111. 61; Sey- mour V. Bailey, 66 111. 288; Dorsey v. Thompson, 37 Md. 25; Dorsey V. Kyle, 30 Md. 512; De Jarnette v. De Giverville, 56 Mo. 440; Rod- gers v. Dibrell, 6 Lea (Tenn.) 69. See Washington University v. Finch, 18 Wall. (U. S.) 106; Masterson v. Howard, 18 Wall. (U. S.) 99. S64 Seymour v. Bailey, 66 111. 288; Buford v. Speed, 11 Bush (Ky.) 338; McNair v. Toler, 21 Minn. 175. See McVeigh v. United States, 11 Wall. (U. S.) 259; Windsor v. McVeigh, 93 U. S. 274, 277. 805 1 Kent, Comm. 68; Hanger v. Abbott, 6 Wall. (U. S.) 532, 535; The William Bagaley, 5 Wall. (U. S.) 377; Matthews v. McStea, 91 U. S. 7, 9; Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444; Bank of New Orleans v. Matthews, 49 N. Y. 12; Griswold v. Wad- dington, 16 Johns. (N. Y.) 438; Taylor v. Hutchinson, 25 Grat. (Va.) 536. 386 Hamilton v. Mutual Life Ins. Co., 9 Blatchf . 234, Fed. Cas. No. 5,986; Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444. 367 Bxposito V. Bowden, 7 El. & Bl. 763, 783, 27 Law J. Q. B. 17. See note 368, infra, as to life insurance. (324) Ch. 4] CONVICTS, ETC. § 201 break of hostilities merely suspends his rights under the con- tract, and, upon the return of peace, he may enforce those rights the same as a citizen.^''* This doctrine of revival of contracts suspended by war is based on considerations of equity, however, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive, as, for example, where time is of the essence of the contract, or the parties cannot be made equal.^"® XVIII. Convicts, Outlaws, and Excommunicants. The disabilities attaching by the common law to persons con- sosFlindt 7. Waters, 15 East, 260; Harman v. Kingston, 3 Camp. 150, 153; Hanger v. Abbott, 6 Wall. (U. S.) 532; Semmes v. City Fire Ins. Co., 36 Conn. 543; Dorsey v. Kyle, 30 Md. 512; Baylies v. Fettyplace, 7 Mass. 325; Palmer v. Lorillard, 16 Johns. (N. Y.) 348; Bell V. Chapman, 10 Johns. (N. Y.) 183; Ware v. Hylton, 3 Dall. (Pa.) 199; Wilcox v. Henry, 1 Dall. (Pa.) 69. A contract of life in- surance is not nullified by the subsequent outbreak of war. Hamil- ton V. Mutual Life Ins. Co., 9 Blatchf. 234, Fed. Cas. No. 5,986; New York Life Ins. Co. v. Clopton, 7 Bush (Ky.) 179; Statham v. New York Life Ins. Co., 45 Miss. 581; Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444; Sands v. New York Life Ins. Co., 50 N. Y. 626, 10 Am. Rep. 535; Cohen v. New York Mut. Life Ins. Co., 50 N. Y. 610; Crawford v. Aetna Life Ins. Co. (Tenn.) 5 Cent. Law J. 100 ; Connecticut Mut. Life Ins. Co. v. Duerson's Ex'r, 28 Grat. ( Va.)' 630. Contra, Tait v. New York Life Ins. Co., 1 Flip. 288, Fed. Gas. No. 13,726; Worthington v. Charter Oak Life Ins. Co., 41 Conn. 372; Dillard v. Manhattan Life Ins. Co., 44 Ga. 119; Abell v. Penn Mut. Life Ins. Co., 18 W. Va. 400. War does not revoke the authority of an agent dwelling in the enemy's country so as to invalidate subse- quent payments made to him there by a debtor of the principal. Ward V. Smith, 7 Wall. (U. S.) 447; Kershaw v. Kelsey, 100 Mass. 561, 573; Statham v. New York Life Ins. Co., 45 Miss. 581; Buchanan V. Curry, 19 Johns. (N. Y.) 137; Rodgers v. Bass, 46 Tex. 505, 515; Hale V. Wall, 22 Grat. (Va.) 424. Nor does it revoke it so as to in- validate a subsequent investment there of money in the agent's hands. Bartow Co. Com'rs v. Newell, 64 Ga. 699. The tendency of adjudication is to preserve, and not to destroy, contracts existing before the war. Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444 .■j(i9 New York Life Ins. Co. v. Statham, 93 U. S. 24. (325) § 202 CAPACITY OF PARTIES. [Ch. 4 victed of treason or felony, to outlaws, and to excommunicants do not obtain in the United States. However, in some states, disabilities lasting through the term of imprisonment are im- posed upon convicts by statute. § 202. Convicts and outlaws. At common law, persons convicted of treason or felony, as well as outlaws, were regarded as civilly dead for many pur- poses. They could not, while the judgment remained in full force, maintain any suit in their own right, so that they were in effect disabled from entering into contracts for their own benefit. They remained liable to suit, however, and, further- more, they were liable to certain forfeitures. An outlaw for- feited his goods, chattels, and choses in action to the crown, and a person convicted of treason or felony forfeited, not only these, but also his lands and tenements. ^'^'' Upon re- versal of the judgment of outlawry, or the pardon of a per- son convicted of felony, the party is restored to his normal status, and his competency to contract and his right to en- force contracts by suit revive.*'^^ The process of outlawry is generally unknown in the United States, and the forfeitures and disabilities imposed by the common law upon persons convicted of treason or felony do not obtain here.^^^ In the absence of statute, a convict is not civiliter mortuus?'^ A 370 1 Chitty, Cont. 261; 1 Addison, Cont. 151; Pollock, Cont. 94; Metcalf, Cont. 93. 3T1 Metcalf, Cont. 93. 372 Metcalf, Cont. 93; In re Nerac's Estate, 35 Cal. 392, 95 Am. Dec. Ill; Dade Coal Co. v. Haslett, 83 Ga. 549. See Stepham v. Lent, 30 Misc. Rep. (N. Y.) 346. "No bill of attainder * * * shall be passed" by congress. Const. U. S. art. 1, § 9. "No state shall * * * pass any bill of attainder. * * *" Const. U. S. art. 1, § 10. "No attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." Const. U. S. art. 3, § 3. 373 Cannon v. Windsor, 1 Houst. (Del.) 143; Willingham v. King, (326) Ch. 4] SLAVES. § 203 convict may ordinarily be sued, as at common law,*^* and in some jurisdictions he may also appear in the courts as plain- tiff.^^^ In most of the states, the rights of a convict are gov- erned by statute, and some disabilities are usually imposed upon him during the term of imprisonment. § 203. Excommuuicants. By the English law, in former times, persons excommuni- cated were subject to some of the same disabilities that at- tached to persons outlawed. While they were responsible on their contracts, they could maintain no action against per- sons contracting with them, nor even sue en autre droit. This and other disabilities ceased, however, when the excom- municant was assoiled by the proper ecclesiastical author- ity.3'8 In the United States, excommunication has never produced any legal disability. It is merely an ecclesiastical censure, of which the law takes no notice in lay matters. ^''^ XIX. Slaves. While slavery existed in the United States, slaves were re- 23 Fla. 478; Presbury v. Hull, 34 Mo. 29; Plainer v. Sherwood, 6 Johns. Ch. (N. Y.) 118; Frazer v. Pulcher, 17 Ohio, 260; Davis v. Laning, 85 Tex. 39, 18 L. R. A. 82. 3fi In re Nerac's Estate, 35 Cal. 392, 95 Am. Dec. Ill; Cannon v. Windsor, 1 Houst. (Del.) 143; Davis v. Duffie, 1 Abb. Dee. (N. Y.) 486, 3 Keyes (N. Y.) 606, 4 Abb. Pr. (N. S.; N. Y.) 478. The liability to be sued necessarily implies the right to defend. Werckman v. Werckman, 4 Civ. Proc. R. (N. Y.) 146. 375 willingham v. King, 23 Fla. 478; Dade Coal Co. v. Haslett, 83 Ga. 549; Kenyon v. Saunders, 18 R. I. 590, 26 L. R. A. 232. A per- son who has been convicted and sentenced to death in one state is not debarred from suing in the courts of another state. Wilson v. King, 59 Ark. 32, 23 L. R. A. 802. 376 Metcalf, Cont. 94; Bouv. Law Diet., "Excommunication"; 3 Bl. Comm. 102; Bacon, Abr., "Excommunication"; Coke, Litt. 133, 134. 377 Metcalf, Cont. 94. § 205 CAPACITY OP PARTIES. [(Jh. 4 garded in law as things, rather than as persons, and accordingly they could neither make nor enforce contracts, nor were they liable upon their promises. i 204. In general. While the institution of slavery existed in the United States, the condition of slaves here was analogous to that of the slaves of the Romans, and not that of the villeins of feu- dal times. There were, it is true, some modiiications of the rigid rules of the civil law, by usage and by statute, in the different slaveholding states, but the Roman law prevailed. In law, slaves were, generally speaking, not considered &s persons, but as things.^'^ As a corollary of this view, a slave could bring no action. He could neither acquire nor trans- fer property, either by descent or by purchase, and no prom- ise made either by him or to him was enforceable, either at law or in equity.^^® XX. Barristers, Physicians, and Arbitrators. The disabilities attaching at common law to barristers, piiy- sicians, and arbitrators, in reference to their recovering com- pensation for their services, do not obtain in the United States. § 205. In general. In England, a barrister may not sue for fees due to him for services rendered in the ordinary course of his profes- ses Metcalf, Cont. 96. 379 Hall V. United States, 92 V. S. 27; Woodland v. Newhall's Adm'r (C. C.) 31 Fed. 434; Glen v. Hodges, 9 Johns. (N. Y.) 67; Cunningham's Heirs v. Cunningham's Ex'rs, 1 N. C. 432; Bynum V. Bostick, 4 Desaus. (S. C.) 267; Gregg v. Thompson, 2 Rep. Const. Ct. (S. C.) 331; Embry v. Morrison, 4 Baxt. (Tenn.) 186. A slave might make a valid contract with his master respecting his manu- mission, however. Ketletas v. Fleet, 7 Johns. (N. Y.) 324. See Williams v. Brown, 3 Bos. & P. 69. But see Beall v. Joseph, Hardin (Ky.) 56. Contra, Bland v. Dowling, 9 Gill & J. (Md.) 19. (328) Ch. 4] BARRISTERS, ETo. g 205 sional duties, whether the action is frpincd as arising upon an implied promise to pay for services rciKTcred upon request, or upon an express contract to pay a coi'tain sum for the con- d\ict of a particular business. ^^^ A jihysician, until lately enabled by statute, was so far in the i)(isili3Hawley v. Bibb, 69 Ala. 52; Thorne v. Yontz, 4 Cal. 321; Bough- ner v. Meyer, 5 Colo. 71; Meadow v. Bird, 22 Ga. 246; Schmueckle v. Waters, 125 Ind. 265; Knox v. White, 20 La. Ann. 326; Doe v. Burnham, 31 N. H. 426; Clark v. Ricker, 14 N. H. 44. See Merrill v. Packer, 80 Iowa, 542, Huffcut & W. Am. Cas. Cont. 339, note; Quirk v. Thomas, 6 Mich. 76. Contra, semile. Bell v. Wood's Adm'rs, 1 Bay (S. C.) 249; Roquemore v. Alloway, 33 Tex. 461. Wagering (480) Ch. 5] COLLATERAL TRANSACTIONS. § 254 security must, when the illegality is made to appear, show that he purchased the instrument for value, and without no- tice of the taint.*®* In some states, a negotiable instrument given to secure the payment of money due on a wager is void, in which event even a bona fide holder cannot recover on the instrument.*®* And the same is true of a negotiable instrument affected with usury.*®® If a negotiable instru- transaction: Pope v. Hanke, 155 111. 617, 28 L. R. A. 568; Sond- heim v. Gilbert, 117 Ind. 71; Crawford v. Spencer, 92 Mo. 498. Usuri- ous transaction: McLauren v. Graham, 26 Miss. 400; Wortendyke v. Meehan, 9 Neb. 221. A subpurchaser from a bona fide indorsee may enforce the note, even though he (the subpurchaser) took with" notice of the illegality. New v. Walker, 108 Ind. 365, Huffcut & W. Am. Cas. Cont. 399; Dillingham v. Blood, 66 Me. 140; Shaw v. Clark, 49 Mich. 384; Glenn v. Farmers' Bank, 70 N. C. 191, 205. Even though a negotiable instrument is executed on Sunday in violation of law, yet an innocent holder who acquires the paper for value before maturity may recover thereon. Begbie v. Levy, 1 Tyrw. 130, 1 Cromp. & J. 180, 9 Law -J. Bxch. (O. S.) 51; Heise v. Bumpass, 40 Ark. 545; Leightman v. Kadetska, 58 Iowa, 676; Cranson v. Goss, 107 Mass. 439. *M Anson, Cont. (8th Ed.) 190, 192, 215; semble. Fitch v. Jones, 5 El. & Bl. 238, 245; Pana v. Bowler, 107 U. S. 529, 542; Rock Island Nat. Bank v. Nelson, 41 Iowa, 563; Emerson v. Burns, 114 Mass. 348; Bridge v. Hubbard, 15 Mass. y6; Little v. Mills, 98 Mich. 423, 425; Bottomley v. Goldsmith, 36 Mich. 27; McDonald v. Auf- dengarten, 41 Neb. 40; Garland v. Lane, 46 N. H. 245. *95Root V. Merriam (C. C.) 27 Fed. 909; Hawley v. Bibb, 69 Ala. 52; Cunningham v. National Bank of Augusta, 71 Ga. 400; Irwin v. Marquett, 26 Ind. App. 383, 84 Am. St. Rep. 297; Traders Bank v. Alsop, 64 Iowa, 97; Gough v. Pratt, 9 Md. 526; Lucas v. Waul, 12 Smedes & M. (Miss.) 157; Vallett v. Parker, 6 Wend. (N. Y.) 615; Lagonda Nat. Bank v. Portner, 46 Ohio St. 381; Harper v. Young, 112 Pa. 419; Mordecai v. Dawkins, 9 Rich. Law (S. C.) 262; Snoddy v. American Nat. Bank, 88 Tenn. 573; Swinney v. Edwards, 8 Wyo. 54, 80 Am. St. Rep. 916. And see Kuhl v. M. Gaily Universal Press Co., 123 Ala. 452, 82 Am. St. Rep. 135. *»« Semble, Lloyd v. Scott, 4 Pet. (U. S.) 205; Faris v. King, 1 Stew. (Ala.) 255; German Bank v. De Shon, 41 Ark. 331; Bacon v. Lee, 4 Iowa, 490; Kendall v. Robertson, 12 Cuah. (Mass.) 156; Val- lett V. Parker, 6 Wend. (N. Y.) 615; Faison v. Grandy, 128 N. C. (481) Law of Cont— 31 § 255 LEGALITY OF OBJECT. [(Jh. 5 ment is given to secure money due upon a lawful transaction, the maker or acceptor cannot, it seems, set up, as a defense against a subsequent indorsee, that the indorsement was made for an illegal consideration, unless he can show that he is injuriously affected by the illegality.*"'^ § 255. Illegality of past consideration. In other connections it will be shown that in most juris- dictions a promise based upon a past consideration is invalid, except when it is given under seal, the reason of the excep- tion being that a sealed promise, in the absence of statute, requires no consideration to support it.*''* Except in those jurisdictions where the common-law rules in reference to sealed contracts have been altered by statute, this principle is usually applied as well where the past consideration consists in an illegal transaction as where it consists in a transaction which is lawful. The validity of a promise based upon a past illegal transaction depends, therefore, in most jurisdictions, in the absence of statute, upon whether the promise is or is not under seal. If the promise is sealed, it is binding.**" If it rests in parol, it is not.^°° Thus, a promise made in consideration of past illicit cohabitation is not taken to be made on an illegal consideration, but is a mere gratuitous 438, 83 Am. St. Rep. 693; Andrews v. Hoxie, 5 Tex. 171. Such a statute once existed in Virginia, but it has been modified. Lynch- burg Nat. Bank v. Scott, 91 Va. 652, 29 L. R. A. 827. See note 473, supra. *" Anson, Cont. (8th Ed.) 215; semMe, Flower v. Sadler, 10 Q. B. Div. 572. But see Harger v. Worrall, 69 N. Y. 370. 498 As to past consideration, see section 324 et seq., infra. As to ne- cessity for consideration when the promise is under seal, see page 530, infra. 499 See cases cited in note 502, infra. Contra, Williamson v. Gihon, 2 Schoales & L. 357. BOO virden v. Murphey, 78 Miss. 515. See cases cited In note 502,. infra. (482) Ch. 5] RIGHTS OF ACTION. § 255 promise,^"^ and accordingly it iS binding if made under seal, and void if made by parol.®''^ However, it has been held that a parol promise to pay money as compensation for the injury done the promisee in having sedxiced her is valid and bind- XXVII. Same — Rights op Action. An action cannot be maintained upon an illegal agreement, and the illegality may be presented as a defense, even though it shows that the defendant participated in the wrongdoing. As a rule, money paid or property delivered under an unlaw- ful agreement may not be recovered back either at law or in equity. Exceptions : (a) If a party to an illegal agreement repents of his un- lawful design before it is carried into effect, he may 501 Except In those jurisdictions where a past consideration will support a promise. See section 324 et seg., infra. 502 Anson, Cont. (8th Ed.) 202. Valid if sealed: Gray v. Mathias, 5 Ves. 286; Ayerst v. Jenkins, L. R. 16 Eq. 275, 282; Burgen v. Straughan, 7 J. J. Marsh. (Ky.) 583; Brown v. Kinsey, 81 N. C. 245, Hutfcut & W. Am. Cas. Cont. 395; Wyant v. Lesher, 23 Pa. 338; Bivins V. Jarnigan, 3 Baxt. (Tenn.) 282. See Massey v. Wallace, 32 S. C. 149, 154. Void if parol: Beaumont v. Reeve, 8 Q. B. 483, Langdell, Cas. Cont. 356; Wallace v. Rappleye, 103 111. 229; Singleton v. Bremar, Harp. (S. C.) 201. A woman who lives in illicit connection with a man as his wife cannot recover on implied contract for services incidentally rendered by her in that relation. McDonald v. Flem- ing, 12 B. Hon. (Ky.) 285; Brown v. Tuttle, 80 Me. 162. 503 Smith V. Richards, 29 Conn. 232 ; Shenk v. Mingle, 13 Serg. 6 R. (Pa.) 29. And see Hotchkins v. Hodge, 38 Barb. (N. Y.) 117. Contra, Beaumont v. Reeve, 8 Q. B. 483, Langdell, Cas. Cont. 356; semble, Drennan v. Douglas, 102 111. 341. A promise whereby one secures a provision for the support of prospective wife and child is not vitiated by the fact that the promisor has had illegal con- nection with the woman. Armstrong v. Lester, 43 Iowa, 159. Past seduction is a valid consideration for a covenant for pecuniary reparation. Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329, 338; Self V. Clark, 55 N. C. 309. (483) § 255a LEGALITY OP OBJECT. [Ch. 5 rescind the agreement, and recover back whatever he has paid or delivered under it. (b) Where the parties to an illegal agreement are not in pari delicto, and where public policy is considered as advanced by allowing either, or at least the more excusable, to sue for relief against the transaction, relief is given him, either at law or in equity, by way of allowing him to recover back money paid or property delivered under the agreement. § 255a. In general. In reference to rights of action founded upon or growing out of illegal agreements, it may be announced as a rule, sub- ject to some exceptions, that neither an action to enforce the ^agreement nor an action to recover back money or property paid or delivered under it will be entertained in a court of justice. A party cannot obtain relief in a case wherein he discloses an illegal purpose as the groundwork of his action or his defense. Persons who enter into dealings forbidden by the law need expect no assistance from the law, save so far .as the simple refusal to enforce such an agreement, or to permit a recovery of money or property paid or delivered im- •der it, is unavoidably beneficial to the party defendant. The ■court stands neutral between the parties, leaving them in the position in which it finds them. It will neither enforce the -agreement nor relieve from its operation ; and this is true in -equity as well as at law. Equitable remedies may not be in- voked by a guilty party either to enforce an illegal agreement •or to avoid its effect.^"* The heirs or personal representa- 504 Battle V. Nutt, 4 Pet. (U. S.) 184; Ybarra v. Lorenzana, 53 •Cal. 197; Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 25 L. R. A. 90; Punk V. Gallivau, 49 Conn. 124; workingmen's Banking Co. v. Bautenberg, 103 111. 460; Shipley v. Reasoner, 80 Iowa, 548; Dillon V. Allen, 46 Iowa, 299; Atwood v. Fisk, 101 Mass. 363; Frost v. Gage, 3 Allen (Mass.) 560, Williston's Gas. 241; Richardson v. Buhl, 77 Mich. 632; Deans v. McLendon, 30 Miss. 343; Springfield F. & M. (484) Ch. 5] RIGHTS OF ACTION. § 256 tives of a party to an illegal agreement stand in the same position as the party himself, so far as concerns the right to relief from the agreement.^"® § 256. Action on agreement. It is an elementary principle that an action cannot be main- tained upon an illegal agreement ; and it is a corollary of this rule that, when an action is brought upon an agree- Ins. Co. V. Hull, 51 Ohio St. 270, 25 L. R. A. 37; Kahn v. Walton, 46 Ohio St. 195; Shaw v. Carlile, 9 Heisk. (Tenn.) 594. But see, as to equitable relief, McWilliams v. Phillips, 51 Miss. 196. If the object of a partnership is illegal, or if the conduct of the business involves a violation of law, a court will not, by the better author- ity, direct an accounting of the profits, and distribute them between the partners, or permit one party to recover his share of the spoils. Battersby v. Smyth, 3 Madd. 110; Hoffman's Ex'x v. McmLiUen, 48 U. S. App. 596, 45 L. R. A. 410; Jackson v. McLean (C. C.) 36 Fed. 213; Cambioso's Ex'rs v. Maffett, 2 Wash. C. C. 98, Fed. Cas. No. 2,330; Chateau v. Singla, 114 Cal. 91, 33 L. R. A. 750; Goodrich v. Tenney, 144 111. 422; Northrup v. Phillips, 99 111. 449; Craft v. Mc- Conoughy, 79 111. 346; Neustadt v. Hall, 58-111. 172; Skeels v. Phil- lips, 54 111. 309; Snell v. Dwight, 120 Mass. 9; Green v. Corrigan, 87 Mo. 359; Morrison v. Bennett, 20 Mont. 560, 40 L. R. A. 158; Gould v. Kendall, 15 Neb. 549; Brooks v. Cooper, 50 N. J. Bq. 761, 21 L. R. A. 617; Gregory v. Wilson, 36 N. J. Law, 315; Watson v. Murray, 23 N. J. Eq. 257; Todd v. Rafferty's Adm'rs, 30 N. J. Eq. 254; Woodworth v. Bennett, 43 N. Y. 273; King V. Winants, 71 N. C. 469, 73 N. C. 563; Nester v. Continental Brewing Co., 161 Pa. 473, 24 L. R. A. 247; Read v. Smith, 60 Tex. 379; Buck v. Albee, 26 Vt. 184; Watson v. Fletcher, 7 Grat. (Va.) 1. Contra, Sharp v. Taylor, 2 Phillip, 801; Brooks v. Mar- tin, 2 Wall. (U. S.) 70; Wann v. Kelly (C. C.) 5 Fed. 584; Pfeuffer V. Maltby, 54 Tex. 454. It has been said that the right to an ac- counting depends upon whether the party complainant can make out a right to relief without the aid of the illegal transaction. Cook V. Sherman, 4 McCrary, 20, 20 Fed. 167. If the parties them- selves settle the partnership affairs, and one gives the other a note for the balance due him, the note is valid. Harcrow v. Gardiner, 69 Ark. 6; De Leon v. Trevino, 49 Tex. 88. 506Ayerst v. Jenkins, L. R. 16 Bq. 275, 281; Hill v. Freeman, 73 Ala. 200; Marksbury v. Taylor, 10 Bush (Ky.) 519; White v. Hun- ter, 23 N. H. 128. (485) § 256 LEGALITY OF OBJECT. [Ch. 5 ment, the illegality thereof is a good ground of defense, and may be urged by the defendant, although it shows that he also participated in the wrongdoing.""* It may be conceded that the objection that a contract is illegal as between plain- tiff and defendant sounds ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever al- lowed, but it is founded in general principles of policy, of which the defendant incidentally has the advantage. The principle of public policy is this: Ex dolo malo non oritur actio. ISfo court will lend its aid to a man who founds his cause of action upon an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi cav^ttj there the courts say he has no right to be as- sisted. It is upon this ground that the courts go ; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant w6re to bring his action against the plaintiff, the latter would then have the advan- 606 Cope V. Rowlands, 2 Mees. & W. 149, 157; Collins v. Blantern, 2 Wils. 341, 1 Smith, Lead. Cas. 369, 387 (8tli Am. Ed. 715); Arm- strong V. Toler, 11 Wheat. (U. S.) 258, 272; Gunter v. Leckey, 30 Ala. 591; Gridley v. Dorn, 57 Cal. 78; Hill v. Kidd, 43 Cal. 615; Raleigh & G. R. Co. v. Swanson, 102 Ga. 754, 39 L. R. A. 275; Heine- man V. Newman, 55 Ga. 262; Martin v. Bartow Iron Works, 35 Ga. 320; Langford v. Monteith, 1 Idaho, 612; Harwood v. Knapper, 50 Mo. 456; Storz v. Finkelstein, 46 Neb. 577, 30 L. R. A. 644; Saratoga Co. Bank v. King, 44 N. Y. 87; York v. Merritt, 77 N. C. 213; Thorne V. Travellers' Ins. Co., 80 Pa. 15; Lyon v. Strong, 6 Vt. 219; Cape- hart V. Rankin, 3 W. Va. 571; Melchoir v. McCarty, 31 Wis. 252. Upon the same principle, if a man who innocently enters into an illegal agreement discovers the wrong before it is carried out, he must repudiate the agreement then, if at all. He cannot wait for full performance, and then recover on the agreement. Cowan v. Milbourn, L. R. 2 Exch. 230, 235. The fact that the unlawful prom- ise has been performed does not entitle the promisor to recover the agreed consideration therefor. Oliver v. Gilmore (C. C.) 52 Fed. 562; Walker v. Gregory, 36 Ala. 180. Contra, Bishop v. Kitchin, 38 Law J. Q. B. 20. (486) Ch. 5] RIGHTS OF ACTION. § 256 tage of it, for, where both are equally in fault, potior est con- ditio defendentis.^°'' It is immaterial, in enforcing this rule, to inquiry how the illegality is made to appear. If plaintiff's pleadings or proofs disclose the unlawfulness of the transaction, the court will not lend its aid to enforce the agreement, even though defendant has not pleaded the illegality,^"* and even though he makes no objection on that ground.®"^ However, if de- fendant does not plead the illegality, he is not in a position to prove it as a defense ; and consequently, if the declaration or complaint discloses nothing illegal, and plaintiff can prove his case without disclosing any unlawfulness in the transac- tion, he is entitled to recover. To take advantage of ille- gality imder these circumstances, defendant must both plead and prove it.^-'" Extrinsic evidence is always admissible, both at law and in equity, regardless of the form of the agreement, to show 60T Holman v. Johnson, 1 Cowp. 341. And see Kimbrough v. Lane, 11 Busli (Ky.) 556. 508 Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261; Crichfield v. Bermudez Asphalt Paving Co., 174 111. 466, 42 L. R. A. 347; Sheldon v. Pruessner, 52 Kan. 579, 22 L. R. A. 709; Handy v. St. Paul Globe Pub. Co., 41 Minn. 188, Huffcut & W. Am. Cas. Cont. 318; Kansas City School Dist. v. Sheidley, 138 Mo. 672, 690, 37 L. R. A. 406; Russell v. Burton, 66 Barb. (N. Y.) 539. 509 Richardson v. Buhl, 77 Mich. 632; Wilde v. Wilde, 37 Neb. 891; Gate V. Blair, 6 Cold. (Tenn.) 639. 510 Sharon v. Sharon, 68 Cal. 29; Allison v. Chicago & N. W. R. Co., 42 Iowa, 274; Barber Asphalt Paving Co. v. Botsford, 56 Kan. 532, 542 ; Powell v. Flanary, 22 Ky. Law Rep. 908, 59 S. W. 5 ; Goss V. Austin, 11 Allen (Mass.) 525; St. Louis Agricultural & Mechanical Ass'n V. Delano, 108 Mo. 217; Milbank v. Jones, 127 N. Y. 370; Buchtel V. Evans, 21 Or. 309; Potter v. Ajax Min. Co., 22 Utah, 273; Maitland v. Zanga, 14 Wash. 92. If a contract is valid on its face, the burden of showing its illegality is upon the party asserting It. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 81 Am. St. Rep. 28; Bur- dine V. Burdine's Bx'r, 98 Va. 515, 81 Am. St. Rep. 741. (487) § 257 LEGALITY OF OBJECT. [Ch. 5 that the object or the consideration thereof is in fact ille- gal"! It has been said that, where an agreement which is illegal as being against public policy is neither malum prohibitum nor malum in se, the courts will allow reasonable compensa- tion for services rendered under it to be recovered upon a quantum meruit, upon the theory of quasi contract.®!^ The rule itself is of doubtful authority, and, if it exists at all, it is limited to cases where a relation of trust and confidence exists between the parties. ^^^ Thus, while a champertous agreement between attorney and client may not be enforced, yet in some jurisdictions the attorney may recover on a quan- tum meruit for what he has done under the agreement.®-'* § 257. Recovery of money paid or property delivered under agreement. As a rule, money paid or property delivered under an un- lawful agreement may not be recovered back, either at law or in equity. In other words, where an agreement has been executed, though upon an illegal consideration or for an un- 611 Pollock, Cent. 328; Reynell v. Sprye, 1 De Gex, M. & G. 660, 672; Friend v. Miller. 52 Kan. 139; Sherman v. Wilder, 106 Mass. 537; Den d. Wooden v. Shotwell, 23 N. J. Law, 465; Martin v. Clarke, 8 R. I. 389; Parks v. MoKamy, 3 Head (Tenn.) 297. Illegality of consideration may be shown in defense, even though the contract is under seal. See section 390, infra. 612 Davis V. Webber, 66 Ark. 190, 45 L. R. A. 196. Contra, Waite V. Merrill, 4 Me. 102, 122, 123; Peck v. Burr, 10 N. Y. 294. If a man sells goods in violation of law, he cannot disregard the special agreement, and recover on the quantum valebant. Kinney v. Mc- Dermot, 55 Iowa, 674, 676. 613 Stearns v. Felker, 28 Wis. 594, 597. 614 Davis V. Webber, 66 Ark. 190, 45 L. R. A. 196; HoUoway v. Lowe, 1 Ala. 246, 248; Stearns v. Felker, 28 Wis. 594. See, also. Rust V. Larue, 4 Litt. (Ky.) 411, 428. Contra, Gammons v. Gul- branson, 78 Minn. 21. Most of the cases usually cited in support of this rule fail to sustain it. (488) Ch. 5] RIGHTS OF ACTION. 5; 257 lawful purpose, neither party may recover back what he has parted with in carrying the compact into effect. This, as has been said, is an application of the maxim, In pari delicto potior est conditio defendentis et possidentis. ^^^ To illus- 5i5Ayerst v. Jenkins, L. R. 16 Eq. 275; Herman v. Jeuchner, 15 Q. B. Div. 561, overruling Wilson v. Strugnell, 7 Q. B. Div. 548; Begbie v. Phosphate Sewage Co., L. R. 10 Q. B. 491, affirmed in 1 Q. B. Div. 679; In re Great Berlin Steamboat Co., 26 Ch. Div. 616; Thornhill v. O'Rear, 108 Ala. 299, 31 L. R. A. 792, 794; Hill v. Free- man, 73 Ala. 200; Clark v. Colbert, 67 Ala. 92; Dunkin v. Hodge, 46 Ala. 523; Edwards v. Randle, 63 Ark. 318, 36 L. R. A. 174; Mer- win V. Huntington, 2 Conn. 209; Puckett v. Roquemore, 55 Ga. 235; St. Louis, J. & C. R. Co. V. Mathers, 71 111. 592; Baehr v. Wolf, 59 111. 470; Arter v. Byington, 44 111. 468; Chalfant v. Payton, 91 Ind. 202; Setter v. Alvey, 15 Kan. 157; Marksbury v. Taylor, 10 Bush (Ky.) 519; Green v. HoUingsworth, 5 Dana (Ky.) 173; Tyler v. Smith, 18 B. Mon. (Ky.) 793; Ellsworth v. Mitchell, 31 Me. 247, 251; Groton v. Inhabitants of Waldoborough, 11 Me. 306; Horton V. Bufflngton, 105 Mass. 399; Inhabitants of Worcester v. Baton, 11 Mass. 368; Jacobs v. Stokes, 12 Mich. 381; Brower v. Fass, 60 Neb. 590; White v. Hunter, 23 N. H. 128; Boutelle v. Melendy, 19 N. H. 196; Haynes v. Rudd, 83 N. Y. 251; Moore v. Adams, 8 Ohio, 372; Gisaf v. Neval, 81 Pa. 354; Touro v. Cassin, 1 Nott & McC. (S. C.) 173, 177; Dixon v. Olmstead, 9 Vt. 310; Barnard v. Crane, 1 Tyler (Vt.) 457; Miller v. Larson, 19 Wis. 463. Contra, as to land conveyed, Den d. Wooden v. Shotwell, 23 N. J. Law, 465. The same rule forbids a recovery of the proceeds of property delivered to a man under an illegal agreement, and by him sold. Tobey v. Rob- inson, 99 111. 222; Hoover v. Pierce, 27 Miss. 13; Burt v. Place, 6 Cow. (N. Y.) 431. And the same is true where the evil object was entertained by the transferee alone. If the transfer is consummat- ed before the transferrer discovers the other's unlawful design, he cannot treat the transaction as void, and resume possession of the property. Pollock, Cont. 324; Feret v. Hill, 15 C. B. 207, 23 Law J. C. P. 185. Contra, semtile, as to chattels, per Martin, B., in Pearce v. Brooks, L. R. 1 Exch. 213, 217. As to this last statement, Sir Frederick Pollock conceives that the rule applies "only where an interest in possession has been given by conveyance or delivery. The vendor who had sold goods so as to pass the general property, but without delivery, or the lessor who had executed a demise to take effect at a future day, might rescind the contract, and stand re- mitted to his original possession on learning the unlawful use of the property designed by the purchaser or lessee." See Cowan v. Mil- (489) § 257 LEGALITY OF OBJECT. [Ch. 5 trate: If a man pays money or delivers property under an agreement entered into on Sunday in violation of law, he cannot recover it back;^^® and the same is true of property pledged to secure the payment of an illegal demand,®^'^ and of money lent to be used in an unlawful manner.^^^ Money lent to make or to pay bets might be recovered at common law;^^® but in those jurisdictions where a wager is illegal, money lent to a man in order to enable him to make a wager cannot be recovered j^^" and the same is true as to recovering back money placed in the hands of a broker for unlawful speculation, and used by him therein.^^^ Money paid or property delivered under a wager may usually be recovered back by virtue of statute,^^^ but, in the absence of statute, it cannot be recovered back in those jurisdictions where a wager bourn, L. R. 2 Exch. 230. Right of innocent party to rescind un- completed illegal agreement, see page 458, supra. If the parties are not in pari delicto, the innocent one may avoid the agreement, even though it is fully executed. See page 493, infra. 516 Thornhill v. O'Rear, 108 Ala. 299, 31 L. R. A. 792, 794; Finn V. Donahue, 35 Conn. 216; Ellis v. Hammond, 57 Ga. 179; Kinney v. McDermot, 55 Iowa, 674; Greene v. Godfrey, 44 Me. 25; Block V. McMurry, 56 Miss. 217; Smith v. Bean, 15 N. H. 577; Chestnut v. Harbaugh, 78 Pa. 473; Troewert v. Decker, 51 Wis. 46. Contra, Brazee v. Bryant, 50 Mich. 136, 140. 517 Taylor v. Chester, L. R. 4 Q. B. 309 ; King v. Green, 6 Allen (Mass.) 139. 518 Oxford Iron Co. v. Spradley, 46 Ala. 98 ; Sampson v. Shaw, 101 Mass. 145; Hall v. Costello, 48 N. H. 176; Plumer v. Smith, 5 N. H. 553. See page 459, supra. 619 Anson, Cont. (8th Ed.) 191; Wettenhall v. Wood, 1 Bsp. 17; Ex parte Pyke, 8 Ch. Div. 754. 520 Shaffner v. Pinchback, 133 111. 410; Cothran y. Ellis, 125 111. 496; Ruckman v. Bryan, 3 Denio (N. Y.) 340. But see Scott v. Duffy, 14 Pa. 18. See page 459, supra. It is immaterial that the bet was not made. Morgan v. Groff, 5 Denio (N. Y.) 364, 49 Am. Dec. 273. 521 White V. Barber, 123 U. S. 392; Burt v. Myer, 71 Md. 467. But see section 215, infra. 522 Stimson, Am. St. Law, § 4132. (490) Oh. 5] RIGHTS OP ACTION. § 258 is illegal.^^* In several states, if a greater rate of interest is paid than is allowed by law, the debtor may recover it back or set it off against the principal debt, and, in a few states, by way of penalty, the creditor is subjected to liability for two or three times the sum exacted by him in excess of the legal rate.^^* The rule precluding a recovery of money or property parted with under an illegal agreement applies also where the consideration for the payment or delivery has been performed only in part, and not in toto.^^^ Thus, if A. pays $100 to B. on the latter's promise to murder 0. and D., A. cannot recover back the payment after B. has murdered 0., although he has not murdered D.®^® § 258. Same — ^Locus poenitentiae. If a party to an illegal agreement repents of his unlawful design before it is carried into effect, the law allows him to rescind the agreement, and recover back whatever he has paid or delivered under it.®^'^ The period during which an un- 523 Thompson v. Cummings, 68 Ga. 124; Frybarger v. Simpson. 11 Ind. 59; Woodcock v. McQueen, 11 Ind. 14; Stacy v. Foss, 19 Me. 335, 337; Gregory v. Wendell, 39 Mich. 337; Pekkins v. Eaton, 3 N. H. 152; West v. Holmes, 26 Vt. 530. 524 Stimson, Am. St. Law, § 4833. 525 Kearley v. Thomson, 24 Q. B. Div. 742 ; Perkins v. Savage, 15 Wend. (N. Y.) 412. It is binding so far as executed, at least. Huckins v. Hunt, 138 Mass. 366; Hooker v. De Palos, 28 Ohio St. 251. 526 Kearley v. Thomson, 24 Q. B. Div. 742, 747. 527 Taylor v. Bowers, 1 Q. B. Div. 291; O'Bryan v. Fitzgerald, 48 Ark. 487; Wassermann v. Sloss; 117 Gal. 425, 38 L. R. A. 176; Laf- ferty v. Jelley, 22 Ind. 471; Adams Exp. Co. v. Reno, 48 Mo. 268; Miller v. Larson, 19 Wis. 463. Some courts limit the operation of this rule to cases wherein the illegality consists of a minor offense, or an act which is invalid merely because it is prohibfted by siat- ute. Tappenden v. Randall, 2 Bos. & P. 467, 470; Congress & E. Spring Co. v. Knowlton, 103 U. S. 49, reversing Knowlton v. Con- gress & E. Spring Co., 57 N. Y. 518; Tyler v. Carlisle, 79 Me. 210, Huff cut & W. Am. Cas. Cont. 390; White v. Franklin Bank, 22 Pick. (491) § 258 LEGALITY OP OBJECT. [Ch. S lawful agreement remains executory is accordingly termed "locus poenitentiae." This right of rescission is allowed mainly for the purpose of encouraging the abandonment of il- legal designs. However, the repentant party gets the direct benefit of it. A common illustration of the rule occurs in the case of agency. If an agent receives money to be paid out for an unlawful purpose, the principal may recover it back at any time before it is so expended. ^^* Upon this principle, money placed in the hands of a person as stakeholder to abide the event of a wager is recoverable from the stakeholder either before or after the determination of the wager,^^" and even after the money has been paid to the winner, if the authority (Mass.) 181; Tracy v. Talmage, 14 N. Y. 162, 181. The authority of Taylor v. Bowers, 1 Q. B. Div. 291, is not entirely beyond ques- tion in England. Kearley v. Thomson, 24 Q. B. Div. 742, 746. But it is generally followed in the United States. 528 Taylor v. Lendey, 9 East, 49 ; Bone v. Ekless, 5 Hurl. & N. 925, 29 Law J. Exch. 438; Clarke v. Brown, 77 Ga. 606; Sampson V. Shaw, 101 Mass. 145; Souhegan Nat. Bank v. Wallace, 61 N. H- 24; Peters v. Grim, 149 Fa. 163; Douville v. Merrick, 25 Wis. 688; Kiewert v. Hindskopf, 46 Wis. 481. In Morgan v. GrofE, 5 DeniO' (N. Y.) 364, it was held that, where money was placed with an agent to be bet on an election, the locus poenitentiae did not ex- tend beyond the time of the election, and that, where the principal did not, before the expiration of that time, notify the agent not to make the bet, he could not recover the money from the agent, even though the agent had not bet it. See next note. 529 Anson, Cont. (8th Ed.) 219; O'Sullivan v. Thomas [1895] 1 Q. B. 698, 15 Reports, 253; Wood v. Duncan, 9 Port. (Ala.) 227; Corson v. Neatheny, 9 Colo. 212; Wheeler v. Spencer, 15 Conn. 28; Dewees v. Miller, 5 Har. (Del.) 347; Frybarger v. Simpson, 11 Ind. 59; Shannon v. Baumer, 10 Iowa, 210; Gilmore v. Woodcock, 69 Me. 118; House v. McKenney, 46 Me. 94; Deaver v. Bennett, 29 Neb. 812; Pekkins v. Eaton, 3 N. H. 152; Vischer v. Yates, 11 Johns. (N. Y.) 23; Bernard v. Taylor, 23 Or. 416, 18 L. R. A. 859, Huffcut & W. Am. Cas. Cont. 407; Forscht v. Green, 53 Pa. 138; Tarleton V. Baker, 18 Vt. 9. It seems that the stakeholder may be enjoined from paying over the money. Petillon v. Hippie, 90 111. 420. In some states the courts hold that the locus poenitentiae does not ex- (492) Ch. 5] RIGHTS OP ACTION. | 259 to pay was withdrawn by the plaintiff before payment,''^" and in this latter event, if the loser does not choose to hold the stakeholder, he may recover the money from the win- jj(,j. 531 However, as we have seen in another connection, if the party delivering the goods or paying the money waits until the illegal purpose is accomplished, so that the transac- tion becomes executed, he cannot recover. ^^^ § 259. Same — Par delictum. All that has been said in reference to the inability of a man to obtain relief from an illegal agreement to which he is a party presupposes a guilty party. It may happen, how- ever, that only one of the parties to an agreement entertains an unlawful intent. In this case, the innocent party may recover what he has parted with upon the faith of the agree- ment before he learned of the illegality. Again, the law ad- mits degrees of guilt, and, even though both parties contem- tend beyond the time when the wager is determined. Johnston v. Russell, 37 Cal. 670; Hickerson v. Benson, 8 Mo. 11; Yates v. Foot, 12 Johns. (N. Y.) 1. And see the preceding note. 530 Anson, Cont. (8th Ed.) 219; Hampden v. Walsh, 1 Q. B. Div. 189; Lewis v. Bruton, 74 Ala. 317; Adkins v. Flemming, 29 Iowa, 122; Stacy v. Foss, 19 Me. 335; Fisher v. Hildreth, 117 Mass. 558; Pabst Brewing Co. v. Liston, 80 Minn. 473; Wilkinson v. Tousley, 16 Minn. 299; Willis v. Hoover, 9 Or. 418; McAllister v. Hoffman, 16 Serg. & R. (Pa.) 147; West v. Holmes, 26 Vt. 530. And see Gilmore v. Woodcock, 70 Me. 494. Contra, Johnston v. Russell, 37 Cal. 670. By interposing a claim to the whole fund as winner, and forbidding its payment to the other party, a party to a wager does not withdraw the stakeholder's , authority to pay the money to the real winner. Accordingly, after the stakeholder has paid over the money to the other party under that authority, the loser cannot recover the amount of his deposit either from the stake- holder or from the winner. Okerson v. Crittenden, 62 Iowa, 297; Patterson v. Clark, 126 Mass. 531. Contra, Hastelow v. Jackson, 8 Barn. & C. 221; Perkins v. Hyde, 6 Yerg. (Tenn.) 288. 531 Love V. Harvey, 114 Mass. 80, Huffcut & W. Am. Cas. Cont. 324; West v. Holmes, 26 Vt. 530. 532 See page 488 et seq., supra. (493) §259 LEGALITY OF OBJECT. [Ch. 5 plated an unlawful act, yet, under some circumstances, if one is more excusable than the other, he may recover what he has paid or delivered in performing the illegal agreement. The rule may be stated thus : Where the parties to an illegal agreement are not m pari delicto^ and where public policy is considered as advanced by allowing either, or at least the more excusable, to sue for relief against the transaction, relief is given him, either at law or in equity, by way of allowing him to recover back money or property paid or delivered pur- suant to the terms of the agreement ; and this is true, even though the agreement is fully executed. ^^^ Accordingly, if a man is induced to enter into an agreement by fraud or im- position, or by coercion, whether by duress, oppression, threats, or undue influence, he may avoid it, and recover what he has conveyed or delivered or paid thereunder, even though the object of the agreement is illegal.^^* Thus, if a creditor re- fuses to assent to a composition imless the debtor secretly 533Reynell v. Sprye, 1 De Gex, M. & G. 660, 679; Osborne v. 'Wil- liams, 18 Ves. 379; Meech. v. Lee, 82 Micli. 274; Gregory v. Wendell, 39 Mich. 337; Quirk v. Thomas, 6 Mich. 76; Bell v. Campbell, 123 Mo. 1; Duval v. Wellman, 124 N. Y. 156, Huff cut & W. Am. Cas. Cont. 402; Tracy v. Talmage, 14 N. Y. 162, 181; Plnckston v. Brown, 56 N. C. 494; Harrington v. Grant, 54 Vt. 236. It has been said that the test for determining whether the parties are in pa/ri delicto is whether plaintiff can make out his case otherwise than through the medium and by the aid of an illegal transaction to which he was himself a party. Taylor v. Chester, L. R. 4 Q. B. 309, 314. But see Sampson v. Shaw, 101 Mass. 145, 151. And see page 476, supra. 534 Osborne v. Williams, 18 Ves. 379; Woodham v. Allen, 130 Cal. 194; Baehr v. Wolf, 59 111. 470; Davidson v. Carter, 55 Iowa, 117; Deatly's Heirs v. Murphy, 3 A. K. Marsh. (Ky.) 472; Roman v. Mall, 42 Md. 513; O'Connor v. Ward, 60 Miss. 1025; Green v. Cor- rigan, 87 Mb. 359; Boston v. Balch, 69 Mo. 115; Boyd v. De La Montagnie, 73 N. Y. 4S8; Foley v. Greene, 14 R. I. 618; Gorringe v. Read (Utah) 63 Pac. 902. And see Barnes v. Brown, 32 Mich. 146. In Haynes v. Rudd, 102 N. Y. 372, the contrary is held, where the illegality consists in compounding felony. The case stands (494) Oh. 5] CONFLICT OP LAWS. | 259 and in fraud of the other creditors pays him an additional sum, which is done, the debtor may recover back the extra payment as being unlawful and brought about by compul- sion.®^^ The parties are not regarded as being in pari delicto where the illegality consists in a violation of a statute which was intended for the constraint of one party only, or for thp pro- tection of the other. ^^® Thus, a bank issuing bills contrary to law might'be compelled to reimburse the holder in an ac- tion for money received, even though the bills were void, if the receiving of the bills was not expressly prohibited. The bank is deemed more guilty than the members of the com- munity who receive the unlawful currency. The latter are regarded as the persons intended to be protected by the law."^'^ XXVIII. Conflict op Laws. Subject to various exceptions, the legality of an agreement alone on this proposition, and is opposed to many of the cases in this and the preceding note. In unlawful dealings between an attorney and one whom he malies his client, the parties are not regarded as in pari delicto. Belding v. Smythe, 138 Mass. 530; Ford v. Harrington, 16 N. Y. 285. But see Roman v. Mali, 42 Md. 513. 535 Atkinson v. Denby, 6 Hurl. & N. 778, 7 Hurl. & N. 934; Bean v. Brookmire, 2 Dill. 108, Fed. Cas. No. 1,170; Crossley v. Moore, 40 N. J. Law, 27. Quaere, Solinger v. Barle, 82 N. Y. 393. If the preference is made by giving the creditor a bill, and the debtor afterwards pays it, he cannot recover the sum so paid. Wilson v. Ray, 10 Adol. & E. 82. But see Smith v. Cuff. 6 Maule & S. 160. 536 -Williams v. Hedley, 8 East, 378; Scotten v. State, 51 Ind. 52; Mason v. McLeod, 57 Kan. 105, 41 L. R. A. 548; Smart v. White, 73 Me. 332; White v. Franklin Bank, 22 Pick. (Mass.) 181, 186; Bateman v. Robinson, 12 Neb. 508; Richardson v. Crandall, 48 N. Y. 348; Mount v. Waite, 7 Johns. (N. Y.) 434. And see Parkers- burg V. Brown, 106 TJ. S. 487; Morville v. American Tract Soc, 123 Mass. 129; Curtis v. Leavitt, 15 N. Y. 9; Clarke v. Lincoln Lumber Co., 59 Wis. 655. 637 Thomas v. Richmond, 12 Wall. (U. S.) 349. And see Tracy V. Talmage, 14 N. Y. 162. (495) § 2S9a LEGALITY OF OBJECT. [Ch. 5 is ordinarily to be determined by the law of the place where it was made. However, if the subject-matter of the agreement is immovable property situated in another jurisdiction, then the validity of the agreement is governed by the law of the place where the property is located; and if the agreement is to be wholly performed in a jurisdiction other than that in which it was made, then its validity depends upon the law of the place of performance. § 259a. In general. In closing this chapter on illegality, we shall consider brief- ly the subject of conflict of laws. The discussion will be concerned with the validity of contracts solely in matters of substance, and will have nothing to do with their formal validity, which is governed by other rules. It may be ob- served in the beginning that, in the words of Pollock, "all rules as to the conflict of laws depend upon practical assump- tions as to the conduct to be expected at the hands of ci(rilized legislatiires and tribunals. It is, in theory, perfectly com- petent to the sovereign power in any particular state to im- pose any restrictions, howevet capricious and absurd, on the action of its own municipal courts, and even to municipal courts, in the absence of any paramount directions, to pay as much or as little regard as they please to any foreign opinion or authority." The rules are applied as a matter of comity to other nations, not in deference to right, and they will not be enforced when contrary to the policy of the forum, or prej- udicial to its interests. However, international comity in this respect contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations. ^^* 538 Pollock, Cont. 346; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519. (496) Ch. 5] CONFLICT OF LAWS. § 260 In the absence of evidence to the contrary, the presump- tion is that the common law prevails in the various states and territories of the American Union, vs^ith the exception, perhaps, of some of the southern and southwestern states and territories, which were formerly a part of the dominions of France and Spain. ^^® This presumption, it should be ob- served, exists in favor of the prevalence of the common law. By its terms it precludes any presumption that the statutory law of another state is th;e same as the statutory law of the forum.^*" § 260. Lex loci contractus. The legality of an agreement is ordinarily to be determined by the law of the place where the engagement is entered into.®*^ If valid by the law of that state, it will ordinarily 539Mohr V. Miesen, 47 Minn. 228, Huffcut & W. Am. Cas. Cont. 325; Goocli v. Faucette, 122 N. C. 270, 39 L. R. A. 835. A notable exception is Louisiana, whose civil jurisprudence is founded upon the Roman law as It prevails in France. B40 Smith V. Muncie Nat. Bank, 29 Ind. 158 ; Ormes v. Dauchy, 82 N. Y. 443; Harris v. White, 81 N. Y. 532; Allen-West Commission Co. V. Carroll, 104 Tenn. 489; State v. Shattuck, 69 Vt. 403; Adams V. Gay, 19 Vt. 358. Contra, Sayre v. Wheeler, 31 Iowa, 112. 541 Evans v. Kittrell, 33 Ala. 449; Matthews v. Paine, 47 Ark. 54; Stacy v. Baker, 1 Scam. (111.) 417; Bond v. Cummings, 70 Me. 125; Hill V. Spear, 50 N. H. 253; Kllnck v. Price, 4 W. Va. 4; Davis v. Chicago, M. & St. P. Ry. Co., 93 Wis. 470, 33 L. R. A. 654. This is generally true of the contract of marriage. Sottomayor v. De Barros, 3 Prob. Div. 1, 5 Prob. Div. 94; Jackson v. Jackson, 82 Md. 17, 34 L. R. A. 773; Sutton v. Warren, 10 Mete. (Mass.) 451; Hutchins v. Kimmell, 31 Mich. 126; Van Voorhis v. Brintnall, 86 N. Y. 18; Thorp v. Thorp, 90 N. Y. 602, Langdell, Cas. Cont. 446; State V. Kennedy, 76 N. C. 251; State v. Ross, 76 N. C. 242. And see Campbell v. Crampton, 18 Blatchf. 150, 2 Fed. 417; Stevenson V. Gray, 17 B. Mon. (Ky.) 193. Contra, Hyde v. Hyde, L. R. 1 Prob. & Div. 130; Brook v. Brook, 9 H. L. Cas. 193. Where a personal con- tract is to be performed partly in the state where made and partly in another state, the law of the former state prevails, unless an in- tention to the contrary otherwise appears. Bartlett v. Collins, 109 Wis. 477, 83 Am. St. Rep. 928. See note 546, infra. (497) Law of Cont. — 32 § 260 LEGALITY OP OBJECT. [Ch. 5 be enforced by the courts of any other state, even though it conflicts with the law of the latter locality.^*^ If invalid by the law of that state, on the other hand, it will ordinarily be treated as void by the courts of every other state, even though, if made in the latter, it would be valid.®** It is frequently stated, and with stronger reason, that a contract which is valid 542 Branley v. South Eastern Ry. Co., 12 C. B. u^. S.) 63; Binghamp- ton Trust Co. v. Auten, 68 Ark. 299, 82 Am. St. Rep. 295; O'Re- gan V. Cunard Steamship Co., 160 Mass. 356; Milliken v. Pratt, 125 Mass. 374; Mclntyre v. Parks, 3 Mete. (Mass.) 207; Ivey v. Lalland, 42 Miss. 444. Though an agreement entered into on Sunday is void in the state of the forum, yet it will be enforced if valid by the law of the state where it was made. Swann v. Swann (C. C.) 21 Fed. 299; McKee v. Jones, 67 Miss. 405; Brown v. Browning, 15 R. I. 422; Adams v. Gay, 19 Vt. 358. A transfer of personal property will be sustained against the law of the forum if it is valid by the law of the jurisdiction where it was made. In re Murray, 3 Nat. Bankr. Reg. 765, Fed. Cas. No. 9,954; Roundtree-. v. Baker, 52 111. 241; Smith v. McLean, 24 Iowa, 322; Lauten v. Rowan, 59 N. H. 215; Smith v. Godfrey, 28 N. H. 379; Hoyt v. Thompson's Ex'r, 19 N. Y. 207; Braunn v. Keally, 146 Pa. 519; Dame v. Flint, 64 Vt. 533. 543Hayden v. Davis, 3 McLean, 276, Fed. Cas. No. 6,259; Moore V. Clopton, 22 Ark. 125; McAllister v. Smith, 17 111. 328; Ford v. Buckeye State Ins. Co., 6 Bush (Ky.) 133; Commercial Bank v. King, 2 La. Ann. 457; Kennedy v. Cochrane, 65 Me. 594; Stevenson V. Payne, 109 Mass. 378; Dunscomb v. Bunker, 2 Mete. (Mass.) 8; Ivey V. Lalland, 42 Miss. 444; Tredway v. Riley, 32 Neb. 495; Bliss V. Brainard, 41 N. H. 256; Northrup v. Foot, 14 Wend. (N. Y.) 249; Knowlton v. Erie Ry. Co., 19 Ohio St. 260; Touro v. Cassin, 1 Nott & McC. (S. C.) 173; Shelton v. Marshall, 16 Tex. 344; Fant V. Miller, 17 Grat. (Va.) 47. An agreement void where made is deemed void everywhere, even though the invalidity occurs merely through noncompliance with a revenue law of the state of its in- ception. Alves V. Hodgson, 7 Term R. 241, 243, 2 Esp. 528; Bris- tow V. Sequeville, 5 Exch. 275; Clegg v. Levy, 3 Camp. 166. Contra, Boucher v. Lawson, Cas. t. Hardw. 85, Cunn. 241; Holman v. John- son, Cowp. 341, 343; semile, Ivey v. Lalland, 42 Miss. 444; Ludlow V. Van Rensselaer, 1 Johns. (N. Y.) 94; Skinner v. Tinker, 34 Barb. (N. Y.) 333. (498) Ch. 5] CONFLICT OF LAWS. § 261 by the law of the jurisdiction where it is made and where it is to he performed is valid everywhere."** § 261. Lex situs — ^Lex loci solutionis. The rule that the lex loci contractus governs the validity of the agreement is subject to the consideration of matters show- ing a different intention of the parties. Thus, if the subject- matter of the agreement is real estate situated in another ju- risdiction, the validity of the contract is governed by the law of the place where the property is located.®*" Again, if the agreement is to be wholly performed in a jurisdiction other than the one wherein it was made, its validity depends upon the law of the place of performance."** If valid there, it is 644 Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522; Titus V. Scantling, 4 Blackf. (Ind.) 89; Maguire v. Piagree, 30 Me. 508; Stebbins v. Leowolf, 3 Cush. (Mass.) 137; Collins Iron Co. V. Burkam, 10 Mich. 283; Williams v. Carr, 80 N. C. 294; Ken- nedy V. Knight, 21 Wis. 345. See Carey v. Mackey, 82 Me. 516. A trust that is valid by the law of the state where it is created, and by the law of the state where it is to be enjoyed, is not invali- dated by the law of the forum merely because the trustee is a resident of that place. Fowler's Appeal, 125 Pa. 388. An agree- ment reserving a rate of interest lawful in the state where it is made and where it is to be performed will be enforced in another state where such rate is usurious. De Wolf v. Johnson, 10 Wheat. (U. S.) 367; Buchanan v. Drovers' Nat. Bank (C. C. A.) 55 Fed. 223; Cubbedge v. Napier, 62 Ala. 518; Philadelphia Loan Co. v. Towner, 13 Conn. 249; McAllister v. Smith, 17 111. 328; Fessenden V. Taft, 65 N. H. 39; Staples v. Nott, 128 N. Y. 403; Merchants' Bank v. Griswold, 72 N. Y. 472; Richardson v. Brown, 9 Baxt. (Tenn.) 242. See Mott v. Rowland, 85 Mich. 561. A wagering contract will be enforced everywhere if it is valid by the law of the place where It is made and where it is to be performed. Leh- man V. Feld (C. C.) 37 Fed. 852; Ward v. Vosburgh (C. C.) 31 Fed. 12; Sondheim v. Gilbert, 117 Ind. 71. 545 Lloyd V. Guibert, L. R. 1 Q. B. 115, 122; Fessenden v. Taft, 65 N. H. 39; Giddings v. Eastman, Clarke Ch. (N. Y.) 19; Faison V. Grandy, 128 N. C. 438, 83 Am. St. Rep. 693. 646 Robinson v. Bland, 2 Burrow, 1077; Hawley v. Bibb, 69 Ala. 52; Lewis v. Headley, 36 111. 433; Bigelow v. Burnham, 90 Iowa, (499) ^ 261 LEGALITY OF OBJECT. [Ch. 5 as a rule valid everywhere, including the place where it was made, even though its performance in that place would be in violation of the law there prevailing.®*^ If invalid by the law of the place of performance, on the other hand, the agree- ment is usually deemed vbid everywhere, even though it does not conflict with the law of the place where it was made.^*^ 300; Tyler v. Trabue, 8 B. Mon. (Ky.) 306; De Sobry v. De Laistre, 2 Har. & J. (Md.) 191; Martin v. Martin, 1 Smedes & M. (Miss.) 176; Hill V. Spear, 50 N. H. 253; Com. v. Bassford, 6 Hill (N. Y.) 526; Tenant v. Tenant, 110 Pa. 478; Central Trust Co. v. Burton, 74 Wis. 329. See note 544, supra. The place of inception and com- pletion of performance determines the place of performance, re- gardless of the place where intermediate acts are to be done in part performance. Gauthler v. Cole (C. C.) 17 Fed. 716. See note 541, supra. If, according to the real intent of the parties as dis- closed by their contract, payment thereof is to be made within the state, its usury laws are applicable to the transaction, although the terms of the contract provide for payment in another state. Shan- non V. Georgia State Bldg. & Loan Ass'n, 78 Miss. 955, 84 Am. St. Rep. 657. 517 Richardson v. Rowland, 40 Conn. 565; Ormes v. Dauchy, 82 N. Y. 443. Contra, Hyde v. Goodnow, 3 N. Y. 266. An agreement calling for interest at a rate which is lawful in the place named for performance is valid everywhere, even though the rate speci- fied is higher than is allowed by the lex loci contractus. Miller v. Tiffany, 1 Wall. (U. S.) 298; Junction R. Co. v. Ashland Bank, 12 Wall. (U. S.) 226; Hleronymus v. New York Nat. Building & Loan Ass'n (C. C.) 101 Fed. 12; Hayes v. Southern Home Building & Loan Ass'n, 124 Ala. 663, 82 Am. St. Rep. 216; Smith v. Muncie Nat. Bank, 29 Ind. 158; Robb v. Halsey, 11 Smedes & M. (Miss.) 140; Roberts V. McNeely, 52 N. C. 506; Scott v. Perlee, 39 Ohio St. 63; Bennett v. Eastern Building & Loan Ass'n, 177 Pa. 233, 34 L. R. A. 595; Senter V. Bowman, 5 Heisk. (Tenn.) 14. And see Thornton v. Dean, 19 S. C. 583. In some states it is declared by statute that the local usury laws shall apply to all contracts made within the state, although to be performed abroad. Stimson, Am. St. Law, § 4821. 548-Wooten V. Miller, 7 Smedes & M. (Miss.) 380; Thayer v. El- liott, 16 N. H. 102; Jewell v. Wright, 30 N. Y. 259. A champertous agreement made in a state where champerty is not forbidden, pro- viding for the prosecution of a suit in a state where the law is otherwise, will not be enforced in the latter state. Grell v. Levy, 16 C. B. (N. S.) 73; Berrien v. McLane, Hoff. Ch. (N. Y.) 421, 427. (500) Ch. 5] CONFLICT OF LAWS. § 262 § 262. Exceptions. There are certain important exceptions to these rules, which will now be briefly considered. And first, an agreement en- tered into by a citizen in violation of a prohibitory law of his own state cannot be enforced in any court of that state, even though it was made in another state, where the prohi- bition does not obtain.^*® This exception is thus presented by Sir Frederick Pollock: "The municipal laws of a par- ticular state, especially laws of a prohibitory kind, are, as a rule, directed only to things done within its jurisdiction; but a particular law may positively forbid the subjects of the state to undertake some particular class of transactions in any part of the world, and, where such a law exists, the coiirts of that state must give effect to it. A foreigner cannot sue in an English court on a contract made with a British sub- ject, and itself lawful at the place where it was made, if it is such that British subjects are forbidden by act of parlia- ment to make it anywhere." And the author doubts whether such an agreement would be recognized even by the courts of the state where it was made, unless the prohibition were of such a hostile or restrictive character as between the tWb states as not to fall within the ordinary principles of corn- However, a promise to pay interest which is legal in the place where the loan is made, though the money is to be repaid in a state where the promise is usurious, is not unlawful if the trans- action Is not a device to evade the usury law of the place of per- formance. Fitch V. Remer, 1 Flip. 15, Fed. Cas. No. 4,836; Amer- ican Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163; Second Nat. Bank of Leavenworth v. Smoot, 9 MacArthur (D. C.) 371; New England Mortgage Security Co. v. McLaughlin, 87 Ga. 1; Pancoast V. Travelers Ins. Co., 79 Ind. 172; Staples v. Nott, 128 N. Y. 403; Pratt V. Adams, 7 Paige (N. Y.) 615. See Cockle v. Flack, 93 U. S. 344; Arnold v. Potter, 22 Iowa, 194. 5i»Seml)le, Santos v. Illidge, 8 C. B. (N. S.) 861, 29 Law J. C. P. 349; McLennan v. McLennan, 31 Or. 480, 38 L. R. A. 863. But see Downs V. Minchew, 30 Ala. 86; Com. v. Lane, 113 Mass. 458. (501) § 262 LEGALITY OF OBJECT. [Ch. S ity.^^" Auother phase of this exception is that no state will permit its laws to be evaded.^®^ Thus, if two resident citi- zens of a state where wagers are illegal go into another state, where wagers are valid, and there make a bet, and return to the state of their domicile, the courts of that state will not recognize the validity of the wager.^^^ Again, it has been held, if a marriage is prohibited by a statute of the forum as being contrary to the policy of the law, it will not be recog- nized in the forum, even though it is celebrated elsewhere according to the law of the place, where the parties are resi- dents and citizens of the forum, and went abroad for the purpose of evading the statute.^^^ It is a rule often announced that a court will not enforce any right contrary to the particular views of justice, moral- ity, or policy whereon its own municipal jurisprudence is founded ;^^* and this is especially true when those views are 550 Pollock, Cont. 340. 551 Andrews v. Pond, 13 Pet. (U. S.) 65; Kilcrease v. Jolinson, 85 Ga. 600; Wind v. Her, 93 Iowa, 316, 27 L. R. A. 219; "Wilson v. Stratton, 47 Me. 120; Arbuckle v. Reaume, 96 Micli. 243; Hill v. Spear, 50 N. H. 253; Meroney v. Atlanta Nat. Building & Loan Ass'n, 112 N. C. 842; Parham v. Pulliam, 5 Cold. (Ten'n.) 497, 501; Aiken v. Blaisdell, 41 Vt. 655. And see Washington Investment Ass'n V. Stanley, 38 Or. 319, 84 Am. St. Rep. 793. A state will not enforce an agreement involving a fraud upon its registry, revenue, or tariff laws, even though the agreement is valid in the jurisdiction where it was made. Clugas v. Penaluna, 4 Term R. 466; Waymell v. Reed, 5 Term R. 599; Cambioso's Ex'rs v. Maffet, 2 Wash. C. C. 98, Fed. Cas. No. 2,330; Maybin v. Coulon, 4 Dall. (U. S.) 298. Agreement involving violation of laws of friendly state, see page 409, supra. 552Tarleton v. Baker, 18 Vt. 9. 563 Williams v. Dates, 27 N. C. 535 ; Re Stull's Estate, 183 Pa. 625, 39 L. R. A. 539; Kinney v. Com., 30 Grat. (Va.) 858. And see Mc- Lennan V. McLennan, 31 Or. 480. Contra, Com. v. Lane, 113 Mass. 458, 464; State v. Shattuck, 69 Vt. 403, 40 L. R. A. 428. See note 549, supra. 554 Hope V. Hope, 8 De Gex, M. & G. 731; Rousillon v. Rousillon, 14 Ch. Div. 351; Swann v. Swann (C. C.) 21 Fed. 299; Falls v. United States Savings, Loan & Bldg. Co., 97 Ala. 417, 24 L. R. A. (502) Ch. 5] CONFLICT OF LAWS. § 262 enforced by statute.'^^ The rule lias its limits, however, and it has even been doubted by respectable authority.^^^ How- ever this may be, it is well settled that the courts of a civilized state will not give effect to rights which are valid by some for- eign law, but which are plainly repugnant to the principles of law and morality common to civilized nations. A foreign law will not be recognized, though otherwise it would be the proper law to look to, if it is in derogation of all civilized laws. This is a fundamental assumption in the administra- tion of justice, in whatever forum and by whatever pro- cedure.^^^ Thus, an agreement to corruptly influence an of- ficer of a foreign government, even if not violative of the law of the foreign state, will not be enforced in a domestic tribunal, and this, not in the interest of the foreign state, but for the sake of morality and the dignity of law at home.^^^ It is also well settled that, if an agreement made in a for- eign state is contrary to the public interests of the state in whose courts it is stied upon, it will not be enforced f^^ nor 174; Eubanks v. Banks, 34 Ga. 407; Pope v. Hanke, 155 111. 617, 28 L. R. A. 568; Phinney v. Baldwin, 16 111. 108; Davis v. Bronson, 6 Iowa, 410; Seamans v. Temple Co., 105 Mich. 400, 28 L. R. A. 430; In re Dalpay, 41 Minn. 532; Bliss v. Brainard, 41 N. H. 256, 261; True V. Ranney, 21 N. H. 52, 55; Union Locomotive & Exp. Co. v. Erie Ry. Co., 37 N. J. Law, 23; Kanaga v. Taylor, 7 OMo St. 134; Bartlett v. Collins, 109 Wis. 477, 88 Am. St. Rep. 928. 555 Savings Bank of K8,nsas v. National Bank of Commerce (C. C.) 38 Fed. 800; Banchor v. Mansel, 47 Me. 58; Webster v. Mun- ger, 8 Gray (Mass.) 584; Seamans v. Temple Co., 105 Micli. 400, 28 L. R. A. 430; Thompson v. Taylor, 65. N. J. Law, 107; Flagg v. Baldwin, 38 N. J. Eq. 219; Gooch v. Faucette, 122 N. C. 270, 39 L. R. A. 835. 556 Pollock, Cont. 342, 343; Hill v. Spear, 50 N. H. 253, 274. 557 Pollock, Cont. 340; De Sobry v. De Laistre, 2 Har. & J. (Md.) 191; Greenwood v. Curtis, 6 Mass. 358; Bliss v. Brainard, 41 N. H. 256, 261; Com. v. Bassford, 6 Hill (N. Y.) 526. 558 Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261. 559 Pollock, Cont. 345; Davis v. Bronson, 6 Iowa, 410; Greenwood V. Curtis, 6 Mass. 358; Hill v. Spear, 50 N. H. 253. (503) § 262 LEGALITY OF OBJECT. [Ch. 5 will a state enforce, through its courts, a contract which is injurious to its own citizens.®^" A domestic tribunal will not enforce rights arising under a system of law so different from its own, and so unlike any- thing it is accustomed to, that not only its administrative means, but the legal conceptions which are the foundation of its procedure, are wholly unfitted to deal with them. The comity of nations extends to enforce only such obligations as arise under provisions of the law of other coimtries which are analogous or similar to those of the state where the suit is brought.^^^ . oRo Davis V. Bronson, 6 Iowa, 410; Chewning v. Johnson, 5 La. Ann. 678; Greenwood v. Curtis, 6 Mass. 358; Ivey v. Lalland, 42 Miss. 444; Hill v. Spear, 50 N. H. 253. 6«iWald, Pollock, Cont. 341; Hughes v. Klingender, 14 La. Ann. 845. (504) CHAPTER VI. FORM OF CONTRACT. I. In General. § 262a. In General. II. Classification of Contracts. § 263. In General. III. Contracts of Record. § 264. Judgment. 265. Recognizance. 266. Statutes Merchant and Staple. IV. Contracts under Seal. § 266a. In General. 267. Necessity for Deed. V. Same — Execution op Sealed Contract. § 267a. In General. 268. Signing and Sealing. 269. Delivery of Deed. 270. Same — Escrow. 271. Same — ^Acceptance. VI. Same — Effect of Seal. § 272. Consideration. 273. Estoppel. 274. Merger. 275. Time for Enforcement. VII. Parol Contracts Required to be in Writing. § 275a. In General. 276. Common-Law Requirements. 277. Statutory Requirements. (.505) FORM OP CONTRACT. [Ch. 6 VIII. Same — Statute of Frauds. § 277a. In General. 278. Quasi Contracts. 279. Executed Contracts. 280. New or Modified Agreements. 281. Promise to Sign Agreement. 282. Consideration. IX. Same — Promise op Executor oe Administrator. § 283. In General. X. Same — Promise to Answer b'or Another's Debt, DEFAtnLT, ob Miscarriages. § 283a. In General. 284. Debt must be a Third Person's — Neither Promisor's nor Promisee's. 285. Promise must be a Collateral, not an Original, Undertaking. 286. Same — Promise must Contemplate a Benefit to the Prin- cipal Debtor. 287. Same — Third Person's Liability must Continue after Prom- ise is Given. 28S. Contracts of Indemnity. XI. Same — Agreement in Consideration of Marriage. § 289. In General. XII. Same — Contract or Sale of Real Estate. § 289a. In General. 290. Nature of Interest Meant by Statute. 291. Same — Products of the Soil. 292. Same — Easements and Licenses. 293. Nature of Conveyance Meant by Statute. XIII. Same — ^Agreement not to be Performed within a Year. § 293a. In General. 294. Possibility of Performance. 295. Modification of Contract. 296. Intention. 297. Performance by One Party. XIV. Same — Contract for the Sale op Goods, Wares, and Mer- chandise. § 297a. In General. (506) Ch. 6] IN GENERAL. § 262a 298. Price or Value. 299. Nature of Property. 300. Acceptance and Receipt of Part of Goods. 301. Earnest or Part Payment. XV. Same — Requisites and Sufficiency op Weiting. § 301a. In General. 302. Nature and Form of Memorandum.' 303. Time for Making Memorandum. 304. Contents of Memorandum. 305. Signature of Memorandum. 306. Delivery of Memorandum. 307. Separate Writings. XVI. Effect of Noncompliance with Statute. § 307a. In General. 308. Part Performance. 309. Contract as a Defense. 310. Right to Urge Statute. 311. Waiver of Statute. 312. Conflict of Laws. 313. Recovery Quasi Ex Contractu. I. In General. § 262a. In general. In order that an agreement which is intended to refer to legal eonseqiienees may create an obligation, and so result in contract, the law makes certain requirements as to form and consideration. Sometimes one, sometimes the other, some- times both, are required to be present in order to make the agreement enforceable. "Form" may be defined as some peculiar solemnity attaching to the expression of agreement, which, of itself, gives efficacy to the transaction. "Consid- eration" is some gain to the party making the promise, or some detriment to the party to whom the promise is made, arising from the act or forbearance, given or promised, of the promisee.-^ In early English law, form is the most important in- gredient in contract. To the formalities of a transaction the 1 Anson, Cont. (4th Ed.) 36. (507) § 262 1 FORM OF CONTRACT. [Ch 6 courts looked as supplying the most obvious and conclu- sive evidence of the intention of the parties, and consid- eration is an idea which, if not unknown, was, at any rate, imperfectly developed. There were then two distinct con- ceptions of contract, — one, that any promise is binding if expressed in a certaili form_^; the other, that the acceptance of benefits of a certain kind implies an enforceable promise to repay them. Beyond this, the idea of enforcing an in- formal promise simply because a beneiit was accruing or was about to accrue to the promisor by the act or forbearance of the promisee does not appear to have been entertained be- fore the middle or end of the fifteenth century.^ At the present day, every contract may be made orally, ex- cept where some positive rule of statutory or common law de- clares otherwise.^ And, as we have already seen, a contract may be implied from mere conduct, independent of word, either spoken or written.* It should be remembered, howev- er, that, if the parties intend that their agreement shall not re- sult in contract until reduced to writing, the writing is a prerequisite upon which the formation of the contract de- pends. Until it is executed, no contract results.^ II. Classification of Contracts. Contracts are either : (1) Informal, or (2) Formal. Informal contracts embrace such parol contracts as are not required to assume a particular form in order to take effect. Formal contracts include all others, and embrace: (a) Contracts of record, so called. 2 Anson, Cont. (4tli Ed.) 36, 37. 3 Selma v. Mullen, 46 Ala. 411 ; St. Louis, L. & W. Ry. Co. v. Maddox, 18 Kan. 546; Barron v. Benedict, 44 Vt. 518. * See page 53, supra. 5 See page 87, supra- (508) Ch. 6] CLASSIFICATION. ^ 263 (b) Contracts under seal. (c) Parol contracts required to be in writing. § 263. In general. As we shall see, the so-called contract of record is not a true contract, but only a quasi contractual obligation. It is mentioned here, however, in deference to established au- thority. The principal contracts of record are judgments and recognizances.® The only true formal contract existing at common law is the contract under seal.^ This is the specialty or deed. It should be observed in this connection that the term "deed," as here used, is not limited to a sealed writing evidencing a conveyance of real estate, according to its more popular signification, but is used broadly as meaning "an instrument consisting of three things, namely, writing, sealing, and de- livery; comprehending a bargain or contract between party and party."^ All other true contracts are simple or parol contracts, de- pending for their validity, in whole or in part, upon the presence of consideration. In strict propriety, the term "parol" means "by word of mouth," biit in the English law of contract it has a broader signification. Any contract not under seal is a parol contract, whether or not it is in writ- 6 Anson, Cont. (4th Ed.) 43; Pollock, Cont. 145. See page 511, infra. T Pollock, Cont. 145; Anson, Cont. (4tli Ed.) 43. 8 Coke, Litt. 171b. See, also, 2 Bl. Comm. 464; Bank of United States v. Donnally, 8 Pet. (U. S.) 361, 371; Laidley's Adm'r v. Bright's Adm'r, 17 W. Va. 779. The term "specialty" is sometimes used as including judgment, but improperly so. Kimball v. Whit- ney, 15 Ind. 280, 282. Common illustrations of the specialty are grants or conveyances of real estate, in which the parties are re- spectively called "grantor" and "grantee"; covenants to do or not to do certain acts, in which the parties are called, respectively, "covenantor" and "covenantee"; and bonds, in which the parties are respectively called "obligor" and "obligee." (509) § 263 FORM OF CONTRACT. [Ch. 6 ing, and wbetber it rests upon word or upon conduct.^ Sim- ple or parol contracts may be divided, therefore, into (a) implied contracts,^" (b) oral contracts," and (c) written contracts not under seal. In some instances, the law requires a contract to be in writing, though not under seal. This does not alter its char- acter as a parol contract. It does, however, place the con- tract within the category of formal contracts. Contracts may therefore be classified as being informal or formal. Informal contracts embrace such parol contracts as are not required by law to take on a particular form. Form- al contracts include all others, and embrace: (1) Contracts of record, so called; (2) contracts under seal; and (3) parol contracts required to be in writing. III. CONTBACTS OF RECORD. The so-called contract of record is not a true contract, but a quasi contract. The principal forms of this obligation are : 9 Anson, Cont. (4tli Ed.) 43; Rann v. Hughes, 7 Term R. 350, note, Langdell, Cas. Cont. 187; Perrine v. Cheeseman, 11 N. J. Law, 174; Ballard v. Walker, 3 Johns. Cas. (N. Y.) 60; Whitehill v. Wilson, 3 Pen. & W. (Pa.) 405. See page 53, supra, as to implied contracts. 10 The implied contract here meant is the contract implied in fact, not the so-called contract implied in law, or quasi contract. See page 23, supra. 11 An oral contract is one made wholly hy word of mouth. How- ever, a contract resting partly upon spoken words and partly upon conduct of the parties, though an implied contract, is, In legal ef- fect, an oral contract. And a contract resting partly in writing and partly upon spoken words is also, in legal effect, an oral con- tract. Hulbert v. Atherton, 59 Iowa, 91; Smith v. O'Donnell, 8 Lea (Tenn.) 468. This latter proposition is instanced where an incomplete writing is rounded out by word of mouth. Lang v. Henry, 54 N. H. 57; Wright v. Weeks, 25 N. Y. 153. Or where a previously executed written contract is modified by verbal agree- ment. Brooks V. Wheelock, 11 Pick. (Mass.) 439; Vicary v. Moore, 2 Watts (Pa.) 451; Dana v. Hancock, 30 Vt. 616. (510) Ch. 6] CONTRACT OF RECORD. § 264 (a) Judgments. (b) Becognizances. (c) Statutes merchant and staple. § 264. Judgment. A judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the re- sult of proceedings instituted therein for the redress of an injury.^^ To constitute a judgment, the determination of the court must be rendered in due form, and entered upon the record. No judgment can exist until it is put in form by the. court. It is evinced only by a record, or that which is by law substituted instead of a record.^* A judgment awarding a sum of money to one of two litigants, either by way of damages or for costs, lays an obligation upon the other to pay the sum awarded.^* Since this obligation may be enforced by an action ex contractu, a judgment has come to be termed, for certain purposes, a "contract."^' It is not a true contract, however, but only a qvMsi contract, since it is dependent for its binding force, not on the consent of the parties, but upon its direct promulgation by the sov- ereign authority acting in its judicial capacity.^® "This obligation," says Sir William Anson,^^ "may come into ex- 12 Bouv. Law Diet. "Judgment." 13 People V. McCutcheon, 40 Mich. 244; "Whitwell v. Emory, 3 Mich. 84, 88; Knapp v. Roche, 82 N. Y. 366. 14 Anson, Cont. (4th Ed.) 44; Williams v. Jones, 13 Mees. & "W. 628. 15 Stuart V. Lander, 16 Cal. 373; Burnes v. Simpson, 9 Kan. 658; Gebhard v. Gamier, 12 Bush (Ky.) 321, 324; McElroy v. Ford, 81 Mo. App. 500, 507. See Wadsworth v. Henderson (C. C.) 16 Fed. 447, 451; Morse v. Toppan, 3 Gray (Mass.) 411, 412. 16 Anson, Cont. (4th Ed.) 45; Louisiana v. Mayor, 109 U. S. 285; Larrabee v. Baldwin, 35 Cal. 155; Rae v. Hulbert, 17 111. 572; Dudley V. Lindsey, 9 B. Mon. (Ky.) 486; O'Brien v. Young, 95 N. Y. 428, Huff- cut & W. Am. Cas. Cont. 428; McDonald v. Dickson, 87 N. C. 404; In re Kennedy, 2 Rich. (S. C.) 216. See section 23, supra, as to quasi contract. 17 Anson, Cont. (4th Ed.) 44. (511) § 265 FORM OF CONTRACT. [Ch. 6 istence as the final result of litigation when -the court pro- nounces judgment, or it may be created by agreement be- tween the parties before litigation has commenced, or dur- ing its continuance. Where it is so created, the obligation results from a contract, for the making of which certain formalities are required. This contract is either a warrant of attorney, by which one party gives authority to the other to enter judgment upon terms settled, or a cognovit actionem, by which the one party acknowledges the right of the other in respect of the pending dispute, and then gives a similar authority." § 265. Recognizance. A recognizance may be described as a contract made with the sovereign in its judicial capacity.^* At common law, a recognizance is a writing acknowledged by the party to it before a judge or ofiicer having authority for the purpose, and enrolled in a court of record. It is defeasible on con- dition that the recognizor shall do some act required of him, and specified in the record, such as to pay a debt, to keep the peace, or to appear and answer charges against him.-^® The recognizor does not sign it. The officer taking it simply makes a memorandum on the record.^" The common-law form of recognizance does not generally obtain in the United States. Here, the recognizance is usually a bond, signed and sealed by the recognizor with sureties, and containing the conditions imposed by law. A recognizance is not a true contract. It is a promise made to the sovereign, with whom, both by the technical 18 Anson, Cont. (4th Ed.) 45; Pollock, Cont. 145; 2 Bl. Comm. 341. 19 Anson, Cont. (4th Ed.) 45; Hicks v. State, 3 Ark. 313, 315; Smith "V. Collins, 42 Kan. 259, 260. 20 Com. V. Emery, 2 Bin. (Pa.) 431, 434. (512) Ch. 6] CONTRACT UNDER SEAL. § 266a rules of English and American law, and upon the theories of jurisprudence, the subject cannot contract. ^^ § 266. Statutes merchant and staple. Statute merchant was a security entered before the mayor of London, or some chief warden of a city, in pursuance of 13 Edw. I. (St. 3, c. 1), whereby the lands of the debtor were conveyed to the creditor, until out of the rents and profits his debt should be satisfied.^^ Statute staple was a security for money, authorized by 27 Edw. III. (St. 2) to be taken by traders for the benefit of commerce. The mayor of the city was authorized to take a recognizance of a debt, in proper form, which also had the effect to convey the lands of the debtor to the creditor, till otit of the rents and profits he might be satisfied.^* Both these forms of security have long since become obsolete.^* Statutes merchant and staple share the characteristics of judgments. They are qiMsi con- tracts, not true contracts. ^^ IV. Contracts under Sbal. A contract under seal derives its validity from its form alone. Ordinarily, the law does not require a contract to be executed under seal, if it is based upon a sufficient consideration. § 266a. In general. A contract under seal, which is commonly known as a deed or specialty, derives its validity from its form alone. It is immaterial whether it is based upon a consideration,^® 21 Anson, Cent. (8th Am. Ed.) 51. 22BOUV. Law Diet. "Statute Merchant"; 2 Bl. Comm. 160. 23B0UV. Law Diet. "Statutes Staple"; 2 Bl. Comm. 160. 24 Anson, Cont. (4th Ed.) 45; Pollock, Cont. 145. 25 Anson, Cont. (4th Ed.) 46. 26 See page 530, infra. Law of Cont. — 33 (513) § 267 FORM OF CONTRACT. [Ch. 6 and, if the instrument has heen duly delivered, it is also immaterial whether it embodies an agreement.^^ Formerly, a deed made by one party alone had a smooth- cut or polled edge, whence its name, — deed poU.^® A deed made between two or more parties was copied for each on the same parchment, and the copies cut apart with indented edges, so as to enable them to be identified by fitting the parts together. Such a deed was called an "indenture."^* The peculiarities giving rise to the terms "deed poll" and "indenture" no longer exist, but the terms are still used, the one to denote a deed executed by one person alone, the other to indicate a deed between two or more persons. Generally, at the present time, deeds for the conveyance of lands sim- ply, though called "indentures," are executed only by the grantors, and counterparts are neither needed nor used. Modern statutes have dealt freely with the common-law distinctions between sealed and unsealed instruments. In many states, the use of private seals is either absolutely or practically abolished, and, if a seal is in fact attached, it has no effect on the character or operation of the instrument.'" § 267. Necessity for deed. Whether a contract shall be put in the form of a deed is usually a matter resting upon the choice of the parties. If they adopt that form of expressing or consummating their agreement, the contract is a specialty, whether or not it be- longs to a class of contracts which, in order to have effect, the law requires to be executed under seal. In the case of certain classes of transactions, as just intimated, it is pos- 27 Anson, Cont. (4tli Ed.) 25, 37, 46; Xenos v. Wickliam, L. R. 2 H. L. Cas. 296. 2s Anson, Cont. (4th Ed.) 47; 2 Bl. Comm. 296. 29 Anson, Cont. (4th Ed.) 47; 2 Bl. Comm. 295; Overseers of Poor of Hopewell v. Overseers of Poor of Amwell, 6 N. J. Law, 169. 30 Stimson, Am. St. Law, § 1564. (514) Ch. 6] CONTRACT UNDER SEAL. § 267a itively required, either by statute or by the common law, that the parties shall embody their agreement in a deed. Thus, in many states it is required by statute that convey- ances of real estate shall be not only in writing, but also under seal.^^ Again, as we shall see more fully in another place, the common law requires that a gratuitous promise shall be sealed, in order that it may take effect.*^ And we have already seen that, at common law, a corporation could not contract, as a rule, except under its seal. As has already been pointed oi;t, however, that rule is not in force in the United States.^^ v. Same — Execution of Sealed Contract. A deed must be in writing, or printed on paper or parchment. At common law, it need not be signed by the maker. He sufficiently executes it by attaching his seal. At the present day, any impression is a sufficient seal which enables the court to identify it as such, whether the impression be made upon the substance of the instrument itself, or upon some foreign substance attached to it. And in most jurisdic- tions, either by force of statute or otherwise, a scroll with a pen or a printed character may be a sufficient seal, if intended as such. A single seal may be sufficient for several signers, if each adopts it as his own. A deed does not take effect until delivered by the maker. A delivery occurs where, and only where, the maker evinces an intention presently to part with the right of control over the deed, so as to make it immediately effective, whether he parts with its manual possession or not. 31 Stimson, Am. St. Law, § 1564. The provision of the statute of frauds requiring a contract for the sale of land to be signed hy the party to he charged does not require it to be sealed, and, ac- cordingly, such a contract Is valid, though not under seal. Wheeler V. Newton, Prec. Ch. 16; Worrall v. Munn, 5 N. Y. 229; Martin v. Weyman, 26 Tex. 460. 32 See page 530, infra. 33 See page 222, supra. (515) § 267a FORM OF CONTRACT. [Ch. 6 Delivery of a deed involves the idea of acceptance by tlie person in whose favor it runs. Until he accepts it, it does not take effect. If a deed is beneficial to the person in whose favor it runs, and imposes no burdens upon him, a presumption often arises that he accepts it. § 267a. In general. A deed must be in writing or printed on paper or parch- ment.^* It need not specify the date of its execution. In legal effect, the date of the deed is the date of its delivery, and it is immaterial whether it bears a date, and, if it bears one, whether the date expressed is correct. ^^ » A deed may be valid, though at the time it is executed there are unfilled blanks therein, if its meaning is definite and certain, or if it may be made certain by a resort to ex- trinsic evidence of the circumstances surrounding its exe- cution and delivery;*' otherwise it is void,*'^ though, under 34 Sheppard, Touch. 50, 54; Anson, Cont. (4th Ed.) 46; Coke, Litt. 35b. "When the boobs say a deed must be written on parchment or paper, not on wood, etc., this is not due, as a modern reader might at first sight think, to mere exuberance of fancy or abun- dance of caution. The key is to be found, we believe, in the com- mon use of wooden tallies as records of contracts in the Middle Ages, and in the fuller statement of Fitzherbert that, if such a tally is sealed and delivered by the party, it will not be a deed." Pollock, Cont. 144. 35 Anonymous, 7 Mod. 38; Fournier v. Cyr, 64 Me. 32; Saunders v. Blythe, 112 Mo. 1; Pierce v. Richardson, 37 N. H. 306; Harden- berg v. Schoonmaker, 2 Johns. (N. Y.) 230; Whiting v. Daniel, 1 Hen. & M. (Va.) 390; McMichael v. Carlyle, 53 Wis. 504. If a deed bears a date, a presumption arises that It was executed and delivered on that day. This presumption is rebuttable, however. Scobey v. Walker, 114 Ind. 254; Smith v. Porter, 10 Gray (Mass.) 66. See, also, Foster v. Perkins, 42 Me. 168; Schweinber v. Great Western Elevator Co., 9 N. D. 113. 38 Harrhy v. Wall, 1 Barn. & Aid. 103. A blank as to the names of one or more of the parties to a deed does not necessarily de- (516) Ch. 6] CONTRACT UNDER SEAL. g 267a some circumstances, the one party or the other may be equita- bly estopped from asserting that the deed was not properly executed.^ ^ Some cases hold that, if a blank is material, no other person than the maker may fiU it in, in his absence, except under a sealed authorization,^* but the weight of modern authority is to the contrary.*" At common law, authority to execute a writing under seal must be conferred by an instrument of equal dignity, — that is, by one under seal.*^ This ride is purely technical, and most of the American courts show a disposition to relax its strictness, especially in its application to commercial trans- actions. As it now prevails in this country, the rule may be stated thus : If an act is reqiiired to be done by deed, feat it. Devin v. Himer, 29 Iowa, 297; Founiier v. Cyr, 64 Me. 32; Henniges v. Paschke, 9 N. D. 489, 81 Am. St. Rep. 588. 37 Powell V. Duff, 3 Camp. 181; Weeks v. Maillardet, 14 East, 568; Consols Ins. Ass'n v. Newall, 3 Fost. & F. 130; Copeland v. Cun- ningham, 68 Ala. 394; Adamson v. Hartman, 40 Ark. 58; Byers v. McClanahan, 6 Gill & J. (Md.) 250; Harden v. Southerland, 70 N. C. 528. The parties to a deed must be designated with certainty, else the deed does not take effect. Hlbblewhite v. McMorine, 6 Mees. & W. 200; Adamson v. Hartman, 40 Ark. 58; Wunderlin v. Cadogan, 50 Cal. 613; Whitaker v. Miller, 83 111. 881; Simms v. Hervey, 19 Iowa, 273; Harden v. Southerland, 70 N. C. 528; Preston V. Hull, 23 Grat. (Va.) 600; Viser v. Rice, 33 Tex. 139. 3s Stowe V. United States, 19 Wall. (U. S.) 13; City of Chicago v. Gage, 95 111. 593; McCleerey v. Wakefield, 76 Iowa, 529, 2 L. R. A. 529; Pence v. Arbuckle, 22 Minn. 417; Richards v. Day, 137 N, Y. 183, 23 L. R. A. 601; Ragsdale v. Robinson, 48 Tex. 379. 39 Vose V. Dolan, 108 Mass. 155, 159; Preston v. Hull, 23 Grat. (Va.) 600. The agent's authority must be in writing. Adamson V. Hartman, 40 Ark. 58. io Semble, Allen v. Withrow, 110 U. S. 119, 128; Bridgeport Bank V. New York & N. H. R. Co., 30 Conn. 231; Schwartz v. Ballou, 47 Iowa, 188; Inhabitants of South Berwick v. Huntress, 53 Me. 89; State V. Young, 23 Minn. 551; Field ¥. Stagg, 52 Mo. 534; Wiley v. Moor, 17 Serg. & R. (Pa.) 438; Gourdin v. Commander, 6 Rich. Law (S. C.) 497; Shintz v. McManamy, 33 Wis. 299. 11 Rhode V. Louthain, 8 Blackf. (Ind.) 413; Worrall v. Munn, 5 N. Y. 229. (517) § 268 FORM OF CONTRACT. [Oh. 6 the authority of the attorney or agent to execute it must be conferred by deed;*^ but if the act may be done by means of an unsealed writing, then the addition of a seal to the in- strument does not necessitate a sealed authorization. On the contrary, the instrument may be executed under a parol authority, or subsequently ratified by parol, and so become binding on the principal.^* § 268. Signing and sealing. At common law, that which identifies a party to a special- ty with the execution of the instrument is the presence of his seal. At common law, therefore, a deed need not be signed by the party in order to have validity.** Indeed, some courts have gone so far as to hold that the provision of the statute of frauds requiring the memoranda of certain agreements to be signed by the party to be charged does not apply to sealed contracts, and that such a contract is there- fore sufficiently executed if the party affixes his seal to it without signing.*® But in states where a seal has become a mere form, the signature is regarded as a material part of the deed, and it must accordingly be affixed, to give the in- strument vitality.*'^ Even in these jurisdictions, however, it is not necessary that the maker shall sign personally. The signature may be made by proxy, as where the instrument 42Worrall v. Munn, 5 N. Y. 229. 43Worrall v. Munn, 5 N. Y. 229; State v. Spartanburg & U. R. Co., 8 S. C. 129. And see McDonald v. Eggleston, 26 Vt. 154. a Cromwell v. Grunsden, 2 Salk. 462 ; JefCery v. Underwood, 1 Pike (Ark.) 108; Parks v. Hazlerlgg, 7 Blackf. (Ind.) 536; Miller v. Ruble, 107 Pa. 395. 45 Cherry v. Heming, 4 Exch. 631, 19 Law J. Excb. 63 ; Saunders V. Hackney, 10 Lea (Tenn.) 194, 199. See Cooch v. Goodman, 2 Q. B. 580, 598. 46 Helton V. Asher, 103 Ky. 730, 82 Am. St. Rep. 601; Miller v. Ruble, 107 Pa. 395. (518) Ch. 6] CONTRACT UNDER SEAL. g 268 is signed in his name by another, in his presence and at his request, and he acknowledges and delivers the deed.^^ To constitute an instrument a specialty, there must be a seal.*^ If the seal has been omitted by accident or mistake, however, a court of equitable jurisdiction may treat the in- strument as a specialty, and grant relief accordingly, either by compelling the seal to be affixed, or by rest-raining the set- ting up of the want of it to defeat a recovery at law.*® On the other hand, the fact that seals are attached does not make the instrument a specialty, if it is apparent that the parties did not intend to contract by deed.^'' At common law, a seal was an impression made upon some substance, which was thereupon affixed to the instrument. It was usually impressed upon wax or a wafer, but any substance might be legally used which was capable of taking an impression and of being affixed to the writing. An impression upon the substance of the instrument itself seems not to have been known in England in early times, and some of the earlier American authorities hold, therefore, that such an impression does not constitute a seal, clinging to the common-law conception. This view does not generally prevail in America, however. At the present day, either by force of statute or otherwise, any impression is sufficient Avhich enables the court to recognize "Lewis V. Watson, 98 Ala. 479, 22 L. R. A. 297; Kerr v. Russell, 69 III. 666; Nye v. Lowry, 82 Ind. 316; Lovejoy v. Richardson, 68 Me. 386; McMurry v. Brown, 6 Neb. 368. *8 Stabler v. Cowman, 7 Gill & J. (Md.) 284; State v. Thompson, 49 Mo. 188. See, also, cases cited in note 52, infra. *9 Bernards Township v. Stebbins, 109 U. S. 341; Inhabitants of Montville v. Haughton, 7 Conn. 543; McCarley v. Tippah County, 58 Miss. 483; Town of Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122; Rutland v. Paige, 24 Vt. 181. And see Cockerell v. Cholme- ley, 1 Russ. & M. 418, 424; "Wadsworth v. Wendell, 5 Johns. Ch. (N. Y.) 224. 50 Clement v. Gunhouse, 5 Esp. 83. And see cases cited in note 57, infra. (519) § 268 FORM OF CONTRACT. VQi^^ 5 the seal, and it is immaterial whether the impression is made upon the substance of the writing itself, or upon some for- eign substance attached to it.^^ A scroll with a pen was not a sufficient seal at common law, and this rule still prevails in some states.^^ In most jurisdictions, however, usually by reason of statutory changes in the law, little regard is paid to the form of a seal. If the instrument shows that the ex- ecutant intended a particular character as a seal, it will gen- erally be regarded as such. Accordingly, a written scroll or a printed rectangle with the word or character "Seal" or "L. S." written or printed therein may be sufficient to mark the instrument as a deed.^^ At common law, the affixing of a seal constitutes the instrument a deed, although the seal is not mentioned in the body of the writing f^ but the mention of a seal in the clause, "In testimony whereof, we have here- tinto set our hands and seals," is not of itself a sufficient seal, in the absence of wax, wafer, or scroll after the signa- ture.^^ As to whether a scroll, when used as a seal by stat- 51 Pierce v. Indseth, 106 U. S. 546; Pillow v. Roberts, 13 How. (TJ. S.) 472; Tasker v. Bartlett, 5 Cush. (Mass.) 359; Hendee v. Pinker- ton, 14 Allen (Mass.) 381; Perrine v. Cheeseman, 11 N. J. Law, 174; Town of Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122, 132; Beardsley v. Knight, 4 Vt. 471. 52 Hendee v. Pinkerton, 14 Allen (Mass.) 381, 387; Bates v. Bos- ton & N. Y. C. R. Co., 10 Allen (Mass.) 251; Hendrlx v. Boggs, 15 Neb. 469; Overseers of Poor of Hopewell v. Overseers of Poor of Amwell, 6 N. J. Law, 169; Town of Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122; Warren v. Lynch, 5 Johns. (N. Y.) 239. 53 Jacksonville, M., P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514; Hastings v. Vaughn, 5 Cal. 315; Green v. Lake, 2 Mackey (D. C.) 162; Trasher v. Everhart, 3 Gill & J. (Md.) 234; Groner v. Smith, 49 Mo. 318; Hacker's Appeal, 121 Pa. 192; Lewis' Ex'rs v. Overby's Adm'r, 28 Grat. (Va.) 627; Norvell v. Walker, 9 W. Va. 447. 54 1 Dyer, 19a (113); Burton v. Leroy, 5 Sawy. 510, 514, Fed. Cas. No. 2,217; Wing v. Chase, 35 Me. 260; Mill Dam Foundery v. Hovey, 21 Pick. (Mass.) 417, 428; Brown v. Jordhal, 32 Minn. 135, 137. 55 Vance v. Funk, 2 Scam. (111.) 263; Chilton v. People, 66 111. (520) Ch. 6] CONTRACT UNDER SEAL. § 268 utory permission, must be referred to as such in the body of the instrument in order to constitute it a seal, there is a conflict of judicial opinion."^" The chief point discussed in the cases seems to be what evidence is necessary to determine that the scroll was intended to be a seal; and it has been said on this point that the presumption is that the parties intended to execute such an instrument as would effectuate their purpose.^'^ In strict propriety, each party to an in- strument should have a separate seal, but a single seal will be sufficient for all if each party adopts it as his own. As to whether a presumption of adoption may ever arise where there are more signers than seals, the courts are not in ac- cord.^* While it is usual and desirable for the deed of a corporation to be sealed with its proper corporate seal, yet any seal will do, and a scroll or an impression upon t"he sub- stance of the instrument is sufficient in those states where the law recognizes the validity of such a seal in the case of 501; Inhabitants of Boothbay v. Giles, 68 Me. 160; State v. Hum- bird, 54 Md. 327; Hollis v. Pond, 7 Humph. (Tenn.) 221, 223. !isPro: Clement v. Gunhouse, 5 Bsp. 83; Blackwell v. Hamilton, 47 Ala. 470; Moore v. Leseur, 18 Ala. 606; Echols v. Phillips, 112 Ga. 700; Glasscock v. Glasscock, 8 Mo. 577; Cromwell v. Tate's Ex'r, 7 Leigh (Va.) 301. Contra: Burton v. Leroy, 5 Sawy. 510, Fed. Cas. No. 2,217; Bertrand y. Byrd, 4 Ark. 195; Trasher v. Ever- hart, 3 Gill & J. (Md.) 234; Brown v. Jordhal, 32 Minn. 135. See, also, Richardson v. Scott River W. & M. Co., 22 Cal. 150; Eames V. Preston, 20 111. 389; Frevall v. Fitch, 5 Whart. (Pa.) 325. 57 Burton v. Leroy, 5 Sawy. 510, 516, Fed. Cas. No. 2,217. 58 Ball V. Dunsterville, 4 Term R. 313; Eames v. Preston, 20 111. 389; Bohannons v. Lewis, 3 T. B. Mon. (Ky.) 377; State v. Hum- bird, 54 Md. 327; Tasker v. Bartlett, 5 Gush. (Mass.) 359, 364; New Orleans, St. L. & C. R. Co. v. Burke, 53 Miss. 200; Burnett v. McCluey, 78 Mo. 676; Northumberland v. Cobleigh, 59 N. H. 250; Pickens v. Rymer, 90 N. C. 282; Citizens' Building Ass'n v. Cum- mings, 45 Ohio St. 664; Hess' Estate, 150 Pa. 346; Bowman v. Robb, 6 Pa. 302; State v. Spartanburg & U. R. Co., 8 S. C. 129; Hollis v. Pond, 7 Humph. (Tenn.) 221; Norvell v. Walker, 9 W. Va. 447; Yale v. Flanders, 4 Wis. 96. (521) § 269 FORM OF CONTRACT. pch. 6 natural persons ; and there need be no recital that it is the common seal.^^ § 269. Delivery of deed. That which makes the deed operative, so far as the maker is concerned, is the fact of its delivery by him. Until he delivers the inatrument to the other party, the deed does not take effect. Delivery is the final act of execution, without which all other formalities are ineffectual.^" To constitute delivery, the maker must part with the right of control over the instrument. He may make an effective delivery with- out parting with its possession, as we shall see ; but if he re- tains the right to control the future disposition of the in- strument, even though it passes out of his manual possession, there is no delivery.^ ^ 59 Eureka Co. v. Bailey Co., 11 Wall. (U. S.) 488; Richardson v. Scott River W. & M. Co., 22 Cal. 150; Johnston v. Crawley, 25 Ga. 316; Reynolds' Heirs v. Trustees Glasgow Academy, 6 Dana (Ky.) 37; Porter v. Androscoggin & K. R. Co., 37 Me. 349; Mill Dam Foundery v. Hovey, 21 Pick. (Mass.) 417; Tenney v. East Warren Lumber Co., 43 N. H. 343; South Baptist Soc. v. Clapp, 18 Barb. (N. y.) 35; Bank of Middlebury v. Rutland & W. R. Co., 30 Vt. 159; Younge v. Guilbeau, 3 Wall. (U. S.) 636; Gould v. Wise, 97 Cal. 532. See page 222, supra. 00 Anson, Cont. (4th Ed.) 46; Morris v. Caudle, 178 111. 9, 44 L. R. A. 489; Overman v. Kerr, 17 Iowa, 485; Byers v. McClanahan, 6 Gill & J. (Md.) 250; Heffron v. Flanigan, 37 Mich. 274; Gorham's Adm'r V. Meacham's Adm'r, 63 Vt. 231, HufCcut & W. Am. Cas. Cont. 88. In legal effect, the date of a deed is the date of its delivery. See page 516, supra. 81 Younge v. Guilbeau, 3 Wall. (XT. S.) 636; Stinson v. Anderson, 96 111. 373; Osborne v. Eslinger, 155 Ind. 351; Colyer v. Hyden, 94 Ky. 180; McGraw v. McGraw, 79 Me. 257; Brown v. Brown, 66 Me. 316; Duer v. James, 42 Md. 492; Johnson v. Farley, 45 N. H. 505; Cook v. Brown, 34 N. H. 460; Fisher v. Hall, 41 N. Y. 416; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258; Williams V. Schatz, 42 Ohio St. 47; Prutsman v. Baker, 30 Wis. 644. But see Lippold v. Lippold, 112 Iowa, 134. The fact that the person to whom a deed is delivered for the grantee's benefit afterwards (522) Ch. 6] CONTRACT UNDER SEAL. § 269 Formal delivery is not necessary. It may be implied from acts or words separately or in conjunction.^^ And past deliv- ery of a duly-executed deed may be inferred from the fact of its being in the possession of the grantee, or of his personal representative, unattended by any circumstances inconsistent with delivery,®^ the presumption being that it was delivered on the day of its date.®* The question of delivery depends upon the intention of the maker of the instrument.^ '^ ' A transfer of the actual possession of the deed is ineffectual unless the maker intends to deliver it, and thereby make it effectual and irrevocable. ®® Accordingly, if possession of the deed is obtained from the maker through fraud, it does not constitute such a delivery as will render the deed operative.®'^ Delivery of a deed may be effected by words indicating an intention that the instrument shall become immediately operative, though it is retained in the possession of the places the instrument in a receptacle wliicli belongs to the grantor, and. to wiich he carries the key, does not render the delivery In- effectual. Munro v. Bowles, 187 111. 346. 62Benneson v. Aiken, 102 111. 284; Burkholder v. Casad, 47 Ind. 418, 422; Duer v. James, 42 Md. 492; Bogie v. Bogie, 35 Wis. 659. 63 Lewis v. Watson, 98 Ala. 479, 22 L. R. A. 297; McCann v. Atherton, 106 111. 31; Burkholder v. Casad, 47 Ind. 418, 422; Shop- taw v. Ridgway's Adm'r, 22 Ky. Law Rep. 1495, 60 S. W. 723; Keedy v. Moats, 72 Md. 325, 329; Dawson v. Hall, 2 Mich. 390; Wood v. Chetwood, 44 N. J. Eq. 64; Richmond v. Morford, 4 Wash. 337, 341. ei Shoptaw v. Ridgway's Adm'r, 22 Ky. Law Rep. 1495, 60 S. W. 723. 65 Otis v. Spencer, 102 111. 622; Shields v. Bush, 189 111. 534, 82 Am. St. Rep. 474; Hill v. McNichoI, 80 Me. 209; Thatcher v. Wardens & Vestrymen of St. Andrew's Church, 37 Mich. 264; Ruckman v. Ruck- man, 32 N. J. Eq. 259. 66 Jordan v. Davis, 108 111. 336; Jones v. Loveless, 99 Ind. 317; Fay V. Richardson, 7 Pick. (Mass.) 90; Harkreader v. Clayton, 56 Miss. 383. 67 Gould V. Wise, 97 Cal. 532; Henry v. Carson, 96 Ind. 412; Tisher v. Beckwith, 30 Wis. 55. (523) § 269 FORM OP CONTRACT. [Ch. 6 maker.^* To constitute a delivery under these circumstan- ces, however, the maker must in some way manifest an in- tention to make the deed presently efEective.*® Delivery may be effected by handing the deed to the person in whose favor it runs, or to a third person for his benefit. This third person may be either an agent of the person to whom the deed runs or a stranger to the transaction. In either case, the delivery is effectuaF" if the maker parts with all control over the future disposition of the instrument.''-'^ In the case of a conveyance of real property, it is said that, if the grantor causes the deed to be recorded, this amounts, as against him, to prima facie evidence of delivery.''^ This is 68 Anson, Cont. (4th Ed.) 46; Benneson v. Aiken, 102 111. 284; Burk- holder v. Casad, 47 Ind. 418, 422; Shoptaw v. Ridgway's Adm'r, 22 Ky. Law Rep. 1495, 60 S. W. 723; McCullough v. Bay, 45 Mich. 554, 558; Dunham v. Pitkin, 53 Mich. 504; Stevens v. Hatch, 6 Minn. 64; Wall v. Wall, 30 Miss. 91; Rogers v. Carey, 47 Mo. 232, 235; Martin v. Flaharty, 13 Mont. 96; Ruekman v. Ruckman, 32 N. J. Eq. 259; Scrugham v. Wood, 15 Wend. (N. Y.) 545; Nichol v. David- son County, 3 Tenn. Ch. 547. 63 Ireland v. Geraghty (C. C.) 15 Fed. 35; Goodlett v. Kelly, 74 Ala. 213; Burnett v. Burnett, 40 Mich. 362; Davis v. Williams, 57 Miss. 843; Cannon v. Cannon, 26 N. J. Eq. 316; Fisher v. Hall, 41 N. y. 416; McLaughlin v. McManigle, 63 Tex. 553. 70 Gregory v. Walker, 38 Ala. 26; Otis v. Spencer, 102 111. 622; Adams v. Ryan, 61 Iowa, 733; Colyer v. Hyden, 94 Ky. 180; Brown V. Brown, 66 Me. 316, 320; Duer v. James, 42 Md. 492; Blanchard V. Inhabitants of Blackstone, 102 Mass. 343; Thatcher v. Wardens & Vestrymen of St. Andrew's Church, 37 Mich. 264; Thompson v. Easton, 31 Minn. 99; Williams v. Latham, 113 Mo. 165; Peavey v. Tilton, 18 N. H. 151; Schlicher v. Keeler (N. J. Eq.) 48 Atl. 393; Fisher v. Hall, 41 N. Y. 416; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258; Mitchell's Lessee v. Ryan, 3 Ohio St. 377. '1 See page 522, supra. ■'s Tennessee Coal, Iron & R. Co. v. Wheeler, 125 Ala. 538; Lewis v. Watson, 98 Ala. 479, 22 L. R. A. 297; Burke v. Adams, 80 Mo. 504; Mitchell's Lessee v. Ryan, 3 Ohio St. 377; Swiney v. Swiney, 14 Lea (Tenn.) 316. This evidence is rebuttable, of course. Hen- dricks v. Rasson, 53 Mich. 575; Bullitt v. Taylor, 34 Miss. 708, 69 Am. Dec. 412; Gilbert v. North American Fire Ins. Co., 23 Wend. (524) Ch. 6] CONTRACT UNDER SEAL. § 270 undoubtedly true if the grantee has previously agreed, either expressly or impliedly, to accept the deed f^ but it is not the rule where the grantee has no knowledge of the execution of the deed,''^'^ unless the grant is obviously beneiicial to him, in which case, at any rate if he is under contractual disa- bility, his acceptance is presumed, in some jurisdictions, so that mere recordation of the deed by the grantor is a suffi- cient delivery. '^^ § 270. Same — Escrow. A deed may be delivered to a third person for the grantee, subject to a condition, in which case it does not take effect until the condition is performed. • Diiring this period it is termed an "escrow."'^® Immediately upon the fulfillment (N. Y.) 43. In Stone v. French, 37 Kan. 145, and Hill v. McNichol, 80 Me. 209, the grantee obtained possession of the deed after the grantor's death, and had it recorded. Under these circumstances, recordation was not, of course, evidence of delivery. If a deed in evidence appears to have been recorded, the presumption is prima facie that it was caused to be recorded by the grantor, and this, of course, raises a presumption of delivery, in the absence of evidence to the contrary. Sweetland v. Buell, 164 N. Y. 541. 73 Walton V. Burton, 107 111. 54; O'Connor v. O'Connor, 100 Iowa, 476, 480; Steele v. Lowry, 4 Ohio, 72. TiYounge v. Guilbeau, 3 Wall. (U. S.) 636; Parmelee v. Simp- son, 5 Wall. (U. S.) 81; Sullivan v. Eddy, 154 111. 199; Day v. Griffith, 15 Iowa, 104; Alexander v. De Kermel, 81 Ky. 345; Hawkes V. Pike, 105 Mass. 560; Samson v. Thornton, 3 Mete. (Mass.) 275; Babbitt v. Bennett, 68 Minn. 260; Cravens v. Rossi ter, 116 Mo. 338; Barns v. Hatch, 3 N. H. 304, 14 Am. Dec. 369. Even though the grantee does not know of the deed at the time the grantor has it recorded, yet, if he assents to the grant upon learning of it, there is a valid delivery. Weber v. Christen, 121 111. 91; Shields v. Bush, 189 111. 534, 82 Am. St. Rep. 474; Lee v. Fletcher, 46 Minn. 49, 12 L. R. A. 171. ■?5 See page 528, infra, as to presumption of acceptance. 76 Anson, Cont. (4th Ed.) 47; Jackson v. Sheldon, 22 Me. 569; Hark- reader V. Clayton, 56 Miss. 383; Prutsman v. Baker, 30 Wis. 644, 648. If the grantee gets manual possession of the deed without perform- (525) § 270 FORM OP CONTRACT. [Ch. 6 of the condition of delivery, the instrument becomes opera- tive as a deed without actual delivery of the writing to the grantee/'^ and, where justice requires it, and the rights of third persons will not be injured, operative as of the date of the delivery to the depositary. '^^ When it is desired to create an escrow, the deed must be delivered to some one not a party to it. If it is delivered to the person in whose favor it runs, thougk on condition, it takes full effect at once.''® ing the conditions prescribed, it does not constitute a delivery un- less the grantor waives such perfarmance. Sheppard, Touch. 59; Harkreader v. Clayton, 56 Miss. 383. And see page 523, supra. If the grantor reserves the right to withdraw a deed left with a third person as depositary, the delivery does not create an escrow. Camp- bell V. Thomas, 42 Wis. 437. Contra, if the condition of delivery occurs before the grantor recalls the deed, and the right to recall it is thereby defeated. Lippold v. Lippold, 112 Iowa, 134, 84 Am. St. Rep. 331. And see page 522, supra. To constitute an escrow, there must be a delivery on condition. Loubat v. Kipp, . 9 Fla. 60 ; Mar- tin V. Flaharty, 13 Mont. 96, 105; Ordinary v. Thatcher, 41 N. J. Law, 403. This condition may be shown by parol evidence and by implication. Murray v. Earl Stair, 2 Barn. & C. 82; Bowker v. Burdekin, 11 Mees. & W. 128; Fulton v. Prlddy, 123 Mich. 298, 81 Am. St. Rep. 201; Campbell v. Thomas, 42 Wis. 437. 77 Anson, Cont. (4th Ed.) 47; White Star Line Steamboat Co. v. Moragne, 91 Ala. 610; Couch v. Meeker, 2 Conn. 302; Regan v. Howe, 121 Mass. 424; Harkreader v. Clayton, 56 Miss. 383; Shirley's Lessee V. Ayres, 14 Ohio, 307; semMe, Prutsman v. Baker, 30 Wis. 644, 649. The deed is effectual after performance of the condition, even though the grantor gets manual possession of it. Regan v. Home, 121 Mass. 424. 78 Graham v. Graham, 1 Ves. Jr. 272; Simpson v. McGlathery, 52 Miss. 723; semMe, Harkreader v. Clayton, 56 Miss. 383; Shirley's Lessee v. Ayres, 14 Ohio, 307; sernble, Prutsman v. Baker, 30 Wis. 644, 649. 78 Sheppard, Touch. 58; Campbell v. Jones, 52 Ark. 493; Steven- son V. Crapnell, 114 111. 19; McCann v. Atherton, 106 111. 31; Foley V. Cowglll, 5 Blackf. (Ind.) 18; Dawson v. Hall, 2 Mich. 390; Graves V. Tucker, 10 Smedes & M. (Miss.) 9; Ordinary v. Thatcher, 41 N. J. Law, 403; Den d. Gibson v. Partee, 19 N. C. 530; Hagood v. Har- ley, 8 Rich. Law (S. C.) 325; Richmond v. Morford, 4 Wash. 337. (526) Ch. 6] CONTRACT UNDER SEAL. § 271 § 271. Same — ^Acceptance. Delivery of a deed does not render it operative, so far as the grantee is concerned, unless he accepts it. The grantee cannot be forced either to assume its burdens or to accept its benefits. Acceptance by the grantee is therefore as essential to the oper- ation of thfe deed as delivery by the grantor f^ and the accept- ance must be unconditional, in order to give the deed effect. A conditional acceptance does not take effect until the con- dition is performed.®^ Acceptance of a deed is necessary to give the instrument effect, not only as to the grantee, but also as to third persons claiming adversely to him under the Nor can there be a delivery in escrow to the agent or attorney of the person in whose favor the deed runs. The effect is the same as follows a delivery to that person himself. Duncan v. Pope, 47 Ga. 445; Hubbard v. Greeley, 84 Me. 340. Contra, Watkins v. Nash, L. R. 20 Eq. 262. However, if the condition and the depositary are agreed upon, the fact that the grantor hands the deed to the grantee, to be immediately given to the depositary, does not make an ab- solute delivery and defeat the escrow. Fairbanks v. Metcalf, 8 Mass. 230, 239. Quaere, Braman v. Bingham, 26 N. Y. 483. The rule announced in the text has been questioned in England. Hud- son V. Revett, 5 Bing. 368, 387. And in New York it applies only to deeds of conveyance of real estate; at least, it does not apply to contracts which the law does not require to be under seal, even though a seal is in fact attached. Blewitt v. Boorum, 142 N. Y. 357. A different statement of the same rule is that the delivery of a deed to the grantee cannot be qualified by parol evidence of con- ditions. Williams v. Higgins, 69 Ala. 517; semhle, Westman v. Krumweide, 30 Minn. 313, 315. This rule does not apply to instru- ments not under seal. Westman v. Krumweide, 30 Minn. 313. Con- tra, Badcock V. Steadman, 1 Root (Conn.) 87. And it applies only to deeds that are complete on their face, requiring nothing but de- livery to make them perfect. Wendlinger v. Smith, 75 Va. 309. 80 Moore v. Flynn, 135 111. 74; Bell v. Farmers' Bank, 11 Bush (Ky.) 34; Leppoc v. National Union Bank, 32 Md. 136; Comer v. Baldwin, 16 Minn. 172 (Gil. 151); Cravens v. Rossiter, 116 Mo. 338; Rogers v. Carey, 47 Mo. 232; Corbett v. Norcross, 35 N. H. 99; Mitchell's Lessee v. Ryan, 3 Ohio St. 377. See, also, page 524, supra. 81 Leppoc V. National Union Bank, 32 Md. 136. (527) § 271 FORM OF CONTRACT. [Ch. 6 grantor. ^2 Thus, in the case of a deed of real estate, even where the grantee eventually accepts it, yet, as against per- sons who acquire rights in the property under the grantor in the interim between delivery and acceptance, the acceptance does not relate back to the time of delivery and thereby de- feat such rights.®^ This is the rule only where third per- sons are concerned. As between grantor and grantee, ac- ceptance relates back to the time of delivery by the grantor.®* Formal acceptance of a deed is not required in order to give the instrument effect, and the acceptance may be manifested either expressly by spoken or written word, or impliedly by conduct, or word and conduct combined.®'' If a deed is beneficial to the grantee, and imposes no bur- dens upon him, a presumption arises that he accepts it.*® In some jurisdictions this rule obtains, even where it ap- pears that the grantee does not know of the deed, and, to dis- pel the presumption, it must be shown that the grantee actu- 82 Leppoc T. National Union Bank, 32 Md. 136. ssparmelee v. Simpson, 5 Wall. (U. S.) 81; Hlbberd v. Smith, 67 Cal. 547, 56 Am. Rep. 726; Evans v. Coleman, 101 Ga. 152; Goodsell V. Stinson, 7 BlacM. (Ind.) 437; Day v. Griffith, 15 Iowa, 104; Bell V. Farmers' Bank, 11 Bush (Ky.) 34; Field v. Fisher, 65 Mich. 606; Cravens v. Rossiter, 116 Mo. 338; Rogers v. Heads Iron Foundry, 51 Neb. 39; Derry Bank v. Webster, 44 N. H. 264; Keith v. Haggart, 2 N. D. 18; Kemprer v. Rosenthal, 81 Tex. 12; Griswold v. Case, 13 Wash. 623; Welch v. Sackett, 12 Wis. 243. See this page, infra, as to presumption of acceptance. 84 Bell V. Farmers' Bank, 11 Bush (Ky.) 34; Rathbun v. Rath- bun, 6 Barb. (N. Y.) 98; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258; Com. v. Selden, 5 Munf. (Va.) 160. 85 Shoptaw V. Ridgway's Adm'r, 22 Ky. Law Rep. 1495, 60 S. W. 723; Thatcher v. Wardens & Vestrymen of St. Andrew's Church, 37 Mich. 264; Harkreader v. Clayton, 56 Miss. 383; Nichol v. Davidson Co., 3 Tenn. Ch. 547. Reconveyance of the premises to a third person by the grantee constitutes an acceptance of the grant. Williams v. Smith, 22 Ky. Law Rep. 1439, 60 S. W. 940. 86 Robinson v. Gould, 26 Iowa, 89; Holmes v. McDonald, 119 Mich. 563; Wall v. Wall, 30 Miss. 91; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258. (528) Ch. 6] CONTRACT UNDER SEAL. g 271 ally refuses to accept it.*^ In other jurisdictions, a con- trary view is taken, and the presumption of acceptance is overthrown by evidence that the grantee does not know of the deed.*® The presumption of acceptance applies with es- pecial force to the case of a beneficial grant to a person non sui juris, and, under these circumstances, it seems every- where to be immaterial whether the grantee knows of the deed or not.*^ As has been implied, however, this presump- tion is indulged in only when the deed is beneficial to the grantee. If it imposes any obligations upon him, the pre- sumption does not arise. ^^ The presumption of acceptance of a beneficial grant prevails in some states, even as against third persons who acquire rights in the property after the delivery of the deed, and before actual acceptance, if any,®^ STElsberry v. Boykin, 65 Ala. 336; Moore v. Giles, 49 Conn. 570; Wuester v. Folin, 60 Kan. 334; Renfro v. Harrison, 10 Mb. 411, 415; Peavey v. Tilton, 18 N. H. 151; Vreeland v. Vreeland, 48 N. J. Bq. 56; Lady Superior of Congregational Nunnery of Montreal v. Mc- Namara, 3 Bart). Ch. (N. Y.) 375, 49 Am. Dec. 184; Mitchell's Lessee V. Ryan, 3 Ohio St. 377; Read v. Robinson, 6 Watts & S. (Pa.) 329. 88 Moore v. Plynn, 135 111. 74; Bell v. Farmers' Bank, 11 Bush (Ky.) 34; Watson v. Hillman, 57 Mich. 607; Tultle v. Turner, 28 Tex. 759. »9 Infants: Rhea v. Bagley, 63 Ark. 374, 36 L. R. A. 86; Weber V. Christen, 121 111. 91; Abbott v. Abbott, 189 111. 488, 82 Am. St. Rep. 410; Vaughan v. Godman, 94 Ind. 191, 199; Palmer v. Palmer, 62 Iowa, 204; Owings v. Tucker, 90 Ky. 297; Hall v. Hall, 107 Mo. 101, 108; Tate v. Tate, 21 N. C. 22; Davis v. Garrett, 91 Tenn. 147; Bjmerland v. Eley, 15 Wash. 101. Imbeciles: Eastham v. Powell, 51 Ark. 530. In some states this presumption applies to • persons under disability alone. McFadden v. Ross, 14 Ind. App. 312; Davis v. Davis, 92 Iowa, 147. 90 St. Louis, I. M. & S. Ry. Co. v. Ruddell, 53 Ark. 32; Ritt- master v. Brisbane, 19 Colo. 371; Thompson v. Dearborn, 107 111. 87; Jefferson County Bldg. Ass'n v. Hell, 81 Ky. 513; Johnson v. Farley, 45 N. H. 505; Gifliord v. Corrigan, 105 N. Y. 223. 91 Doe d. Garnons v. Knight, 5 Barn. & C. 671, 8 Dowl. & R. 348; Jennings v. Jennings, 104 Cal. 150; Halluck v. Bush, 2 Root (Conn.) 26, 1 Am. Dec. 60; Moore v. Giles, 49 Conn. 570; Vaughan v. God- (529) Law of Cont. — 34 § 272 FORM OF CONTRACT. [Ch. 6 as where, for instance, the grantor delivers the deed to the recording officer, and, before the grantee learns of it, a cred- itor of the grantor attaches the property. After a deed hag been duly delivered and accepted, the grantor has no power to revoke it; and this rule is not af- fected by the fact that he surreptitiously or fraudulently gets possession of the deed.^^ VI. Same — Effect of Seal. At common law, with few exceptions, the presence of a seal on a writing evidencing a contract dispenses with the necessity for a consideration therefor. This rule was never strictly ap- plied in equity, however, and it has been modified or abrogated in many states by statute. The parties to a deed and their privies are estopped, as be- tween themselves, to deny the truth of material recitals in the instrument. If the parties to a simple contract enter into an identical en- gagement under seal, the simple contract becomes extinguished by operation of law, and is said to become merged in the deed. A longer time is generally allowed by the statutes of limita- tion for bringing an action on a specialty than is permitted for enforcing a simple contract. § 272. Consideration. As we shall see in another connection, a gratuitous prom- man, 103 Ind. 499; Jones v. Swayze, 42 N. J. Law, 279; National Bank v. Bonnell, 46 App. Dlv. (N. Y.) 302; Robbins v. Rascoe, 120 N. C. 79, 38 L. R. A. 238. Contra, Loubat v. Klpp, 9 Fla. 60; Wood- bury V. Fisher, 20 Ind. 387; Samson v. Thornton, S Mete. (Mass.) 275, 37 Am. Dec. 135; Kuh v. Garvin, 125 Mo. 547; Johnson v. Far- ley, 45 N. H. 505; Foster v. Beardsley Scythe Co., 47 Barb. (N. Y.) 505; McEwen v. Bamberger, 3 Lea (Tenn.) 576; Denton v. Perry, 5 Vt. 382. See page 528, supra. 92 Bury V. Young, 98 Cal. 446; Issitt v. Dewey, 47 Neb. 196; Brown V. Austen, 35 Barb. (N. Y.) 341; Robbins v. Rascoe, 120 N. C. 79, 38 L. R. A. 238; Arnegaard v. Arnegaard, 7 N. D. 475, 41 L. R. A. 258; Bogie v. Bogie, 35 Wis. 659. (530) Ch. 6] CONTRACT UNDER SEAL. § 272 ise, or promise for which the promisor obtains no considera- tion, is absolutely void at common law, if made verbally or in writing not under seal.®* With the specialty it is other- wise. A contract under seal derives its validity from its form alone; whether or not it is based upon a consideration is immaterial.^* And this is true, although no legal con- sideration is stated or recognized in the contract itself.^'' This characteristic of contracts under seal is usually account- ed for on the groiind that their solemnity "imports a consid- eration," as the phrase goes. This supposition is historically 93 Page 628, infra. 94 Anson, Cont. (4th Ed.) 49; Kinnebrew's Distributees v. Kinne- brew's Adm'rs, 35 Ala. 628, 636; McCarty v. Beach, 10 Cal. 461; North- ern Kansas Town Co. v. Oswald, 18 Kan. 336; Van Valkenburg v. Smith, 60 Me. 97; State v. Gott, 44 Md. 341; Page v. Trufant, 2 Mass. 159, 162; McMillan v. Ames, 33 Minn. 257, Hufecut & W. Am. Gas. Cont. 54; Day v. Davis, 64 Miss. 253; Saunders v. Blythe, 112 Mo. 1; Douglass V. Howland, 24 Wend. (N. Y.) 35; Dorr v. Munsell, 13 Johns. (N. Y.) 430; Burkholder's Ex'r v. Plank, 69 Pa. 225; Candor & Henderson's Appeal, 27 Pa. 119; Wing v. Peck, 54 Vt. 245; Harris V. Harris' Ex'r, 23 Grat. (Va.) 737. If in fact there be a consid- eration for a deed, however, it is open to the party sued upon the contract to show that the consideration was illegal, in which case the deed is void. Anson, Cont. (4th Ed.) 49; Collins v. Blantern, 2 Wils. 341, 1 Smith, Lead. Cas. 387 (8th Am. Ed. 715); Page v. Tru- fant, 2 Mass. 159, 162 ; Gray v. Hook, 4 N. Y. 449. See, also, Cothran V. Forsyth, 68 Ga. 560; lies v. Cox, 83 Ind. 577; Logan v. Plummer, 70 N. C. 388; Goudy v. Gebhart, 1 Ohio St. 262. A fortiori, a bond which appears on its face to be given for an unlawful consideration is void. Greathouse v. Dunlap, 3 McLean, 303, Fed. Cas. No. 5,742. A sealed promise upon a consideration of future sexual intercourse between persons other than husband and wife is void. See page 390, supra. Of course a seal does not preclude the maker of a deed from show- ing, either at law or in equity, that the deed was given through • mistake, or that it was obtained by fraud, duress, or undue in- fluence. Bowker v. Lowell, 49 Me. 429; Hazard v. Irwin, 18 Pick. (Mass.) 95; Thorn v. Thorn, 51 Mich. 167; Den d. Obert v. Hammel, 18 N. J. Law, 73 ; Burkholder's Ex'r v. Plank, 69 Pa. 225. See chap- ter III., supra. 95 Wing V. Chase, 35 Me. 260. (531) § 272 FORM OF CONTRACT. [Ch. 6 untrue, however, inasmuch as it is the form alone that gives effect to the deed. The doctrine of consideration is of a much later date than that at which the contract under seal was in full efficacy.®* The doctrine of consideration, as it has developed, has steadily tended to limit the peculiarity of the contract under seal, and to introduce exceptions to the general rule that a gratuitous promise made by deed is binding.®'' Even at common laAV, an otherwise valid contract in restraint of trade must be based upon a sufficient consideration, notwithstand- ing the presence of a seal.®^ While a conveyance of property is not a contract, properly speaking,'® yet it may not be improper to mention here, as an exception to the rule that a specialty requires no consid- eration, that conveyances deriving their force and validity from the statute of uses must be supported by a considera- tion, even when they take the form of a contract under seal. A common-law conveyance of real property need have no con- sideration ; but it is otherwise with conveyances taking effect under the statute of uses. As to the latter, a deed of bar- gain and sale must be based upon a valuable consideration, and a deed of covenant to stand seised must be based upon a good consideration.* °° The distinction between these two »e Anson, Cont, (4th Ed.) 49; Pollock, Cont. 132. 07 Anson, Cont. (4tli Ed.) 49; Pollock, Cont. 183; Ortman v. Dixon, 13 Cal. 34, 36; Solomon v. Kimmel, 5 Bin. (Pa.) 232; Gray v. Hand- kinson's Bx'rs, 1 Bay (S. C.) 278. 98 Anson, Cont. 49; Mitchel v. Reynolds, 1 P. Wms. 181; Palmer V. Stebbins, 3 Pick. (Mass.) 188, 193; Ross v. Sadgbeer, 21 Wend. (N. Y.) 166; Keeler v. Taylor, 53 Pa. 467. The adequacy of the consideration of such a contract will not be inquired into. See sec- tion 342, infra. As to the legality of contracts in restraint of trade, see page 449, supra. 90 See page 6, supra. (532) ;■ Ch. 6] CONTRACT UNDER SEAL § 272 sorts of consideration — valuable and good — ^will be explained in another place.^"^ In equity, the rule that a seal dispenses with the necessity for a consideration is not strictly applied. Thus, specific performance of a gratuitous promise will not be decreed, even though it be under seal;^"^ nor will equity correct or reform a defective deed if it be without consideration.^"* Again, absence of consideration is corroborative evidence of fraud or undue influence, sufficient proof of which will move a court of equity to exercise its peculiar power of de- claring a contract void, whether or not it be under seal.^"* The common-law rule dispensing with the necessity for a consideration in the ease of a contract under seal has been modified by statute in many states of the Union. In some states the distinction between sealed and unsealed contracts has been entirely abolished; in others, the seal affords only prima facie evidence of consideration, which may be rebut- ted ; and accordingly, in these jurisdictions, the want of con- sideration may be shown in defense of an action on a sealed instrument.-^ °^ 100 Mildmay's Case, 1 Coke, 175a, 177 ; Perry v. Price, 1 Mo. 553 ; Jackson v. Dillon's Lessee, 2 Overt. (Tenn.) 261, 264. 101 See page 659, infra. io2Kekewich v. Manning, 1 De Gex, M. & G. 176, 188; Buford's Heirs v. McKee, 1 Dana (Ky.) 107; Black v. Cord, 2 Har. & G. (Md.) 100; Lamprey v. Lamprey, 29 Minn. 151; Minturn v. Sey- mour, 4 Johns. Ch. (N. Y.) 497, 500; Bayler v. Com., 40 Pa. 37, 43; Short v. Price, 17 Tex. 397; Graybill v. Brugh, 89 Va. 895, 21 L. R. A. 133; Smith v. Wood, 12 Wis. 382. 103 Anonymous, 12 Mod. 603; McLamb v. McPhail, 126 N. C. 218; Willey V. Hodge, 104 Wis. 81. See Smith v. Barksdale, 110 Ga. 278; Pinkham v. Pinkham, 60 Neb. 600; Miller v. Savage, 60 N. J. Bq. 204. loiOdell V. Moss, 130 Ca). 352; Sayles v. Christie, 187 111. 420; Keller v. Gill, 92 Md. 190. See Talbott v. Manard, 106 Tenn. 60; See page 200, supra. 105 The following cases are illustrative of the statutory changes (533) § 273 FORM OF CONTRACT. [Ch. 6 § 273. Estoppel. Statements made in a simple contract, though strong evi- dence against the parties thereto, are not absolutely conclu- sive against them. Their truth may be disproved. With statements made in a deed it is otherwise. They are abso- lutely conclusive against the parties in any legal proceedings between them taken upon the deed. Their truth cannot be disputed. This prohibition against denying the recitals in a specialty is termed "estoppel by deed."^°* The estoppel applies, not only to direct stipulations in the deed, but also to those recitals which in any way qualify it or give it ef- fect.^"'' However, the parties are not estopped by merely which have taken place in modern times in this respect: Great- house v. Dunlap, 3 McLean, 303, Fed. Cas. No. 5,742; Kinnebrew's Distributees v. Kinnebrew's Adm'rs, 35 Ala. 628; McCarty v. Beach, 10 Cal. 462; Stovall v. Barnett's Ex'rs, 4 Litt. (Ky.) 207; McKin- ney v. Miller, 19 Mich. 142; Aller v. Aller, 40 N. J. Law, 446, Huff- cut & W. Am. Cas. Cont. 82; Campbell v. Tompkins, 32 N. J. Eq. 170; Case V. Boughton, 11 Wend. (N. Y.) 106; Pierce v. Wright, 33 Tex. 631. 100 Anson, Cont. (4th Ed.) 47; Rogers v. Bollinger, 59 Ark. 12; Nor- ton V. Sanders, 7 J. J. Marsh. (Ky.) 12; Kreps v. Kreps, 91 Md. 692, 694. The most important illustrations of estoppel by deed are those where the parties to a deed of real estate are estopped either to assert or to deny title to the property, according to the circum- stances of the case. Bush v. Person, 18 How. (U. S.) 82; Redman V. Bellamy, 4 Cal. 247; Dobbins v. Cruger, 108 111. 188; Carson v. Cochran, 52 Minn. 67; Steele v. Culver, 158 Mo. 136; Douglass v. Scott, 5 Ohio, 195; O'Neal v. Duncan,- 4 McCord (S. C.) 246; How- ard v. Massengale, 13 Lea (Tenn.) 577; Green v. Clark, 13 Vt. 158. General expressions will not suffice to create an estoppel; there must be an affirmance of a particular thing. Salter v. Kidley, 1 Show. 58; Shelley v. Wright, Willes, 9. Recitals in a deed do not operate as an estoppel against a party to the deed in an action not founded on the instrument, but collateral to it. Ex parte Morgan, 2 Ch. Div. 72. 107 Bowman v. Taylor, 2 Adol. & E. 278 ; Falls v. United States Sav. L. & B. Co., 97 Ala. 417, 24 L. R. A. 174; Stow v. Wyse, 7 Conn. 214; Atlas Tack Co. v. Exchange Bank, 111 Ga. 703, 709; Wayman v. Taylor, 1 Dana (Ky.) 527; Cutler v. Dickinson, 8 Pick. 1534) Ch. 6] CONTRACT UNDER SEAL. § 274 collateral or immaterial stipulations.^"^ Thus, in the case of a deed of real property, an acknowledgment in the instru- ment of the receipt of a consideration is only prima facie evidence of payment, and may consequently be explained or contradicted by the grantor; but if, on the other hand, the deed contains a release of the purchase money, the grantor cannot dispute it.^°" The estoppel resulting from a seal applies not only to the parties themselves, but also to all persons claiming under the deed through them.^^'' However, as between a stranger to the deed and a party to it,^ the recitals do not work an es- toppel. The estoppel must be mutual. ISTone arises except between those who are parties to the deed and their privies. A stranger to the deed can derive no benefit from the rule.-'^^ § 274. Merger. Where two parties have made a simple contract for any purpose, whether in writing or by word of inouth, and they afterwards enter into an identical engagement by deed, the (Mass.) 386; Jackson v. Parkhurst, 9 Wend. (N. Y.) 209; Moore V. City of Walla Walla, 2 Wash. T. 184; Billingsley v. Harris, 79 Wis. 103. losKepp V. Wiggett, 10 C. B. 35; Zimmler v. San Luis Water Co., 57 Cal. 221; Osborne v. Bndicott, 6 Cal. 149. 109 Harding v. Ambler, 3 Mees. & W. 279, 283; Rhine v. Ellen, 36 Cal. 362; Union Mut. Life Ins. Co. v. Kirohoff, 133 111. 368; Gully V. Grubbs, 1 J. J. Marsh. (Ky.) 387; Egan v. Bowker, 5 Allen (Mass.) 449; Ely v. Wolcott, 4 Allen (Mass.) 506; Dean v. Adams, 44 Mich. 117; Baum v. Lynn, 72 Miss. 932; Pritchard v. Brown, 4 N. H. 397; McCrea v. Purmort, 16 Wend. (N. Y.) 460; Barbae v. Barbee, 108 N. C. 581; Thayer v. Viles, 23 Vt. 494. 110 Bush V. Person, 18 How. (U. S.) 82; Stow y. Wyse, 7 Conn. 214; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 236, 255; Glamorgan v. Greene, 32 Mo. 285; Jackson v. Parkhurst, 9 Wend, (N. Y.) 209; Douglass v. Scott, 5 Ohio, 195, 199. 111 Schuman v. Garratt, 16 Cal. 100; Hempstead v. Easton, 33 Mo. 142; Green v. Davis, 44 N. H. 71; Lawrence v. Campbell, 32 N. Y. 455; Brittain v. Daniels, 94 N. C. 781; Wallace's Lessee v. Miner, 6 Ohio, 367; Allen v. Allen, 45 Pa. 468. (535) § 275a FORM OF CONTRACT. [Ch. 6 simple contract becomes extinguished by operation of law. This extinction of a lesser in a higher ;jecurity is called "merger.""^ The question of merger depends largely upon the intention of the parties, and it will not be permitted to operate so as to defeat that intention. For instance, a parol agreement will not merge in a sealed contract given merely as collateral security.-' -^^ § 275. Time for enforcement. By reason of the greater dignity that attaches in law to a sealed instrument, a longer time is generally allowed by the statutes of limitation of the different states for the enforce- ment of a specialty than is allowed for the bringing of an action to enforce a simple contract. Six years is the period usually fixed for the enforcement of a simple contract, while an action may generally be brought on a specialty at any time within ten years of the accrual of the cause of action, and in some jurisdictions t'wenty years is allowed. VII. Paeol Contkacts Requieed to be in Writing. § 275a. In general. Having dealt with those contracts which acquire validity by reason- of their form alone, we now pass to those contracts 112 Anson, Cont. (4tli Ed.) 48; Saunders v. Milsome, L. R. 2 Eq. 573; Leonard v. HughletC, 41 Md. 380; Banorgee v. Hovey, 5 Mass. 11; Berry v. Bacon, 28 Miss. 318; MacLeod v. Skiles, 81 Mo. 595; Mc- Naughten v. Partridge, 11 Ohio, 223, 233; Shenandoah Valley R. Co. V. Dunlop, 86 Va. 346. A parol promise may become merged in a covenant covering the same matter, even though it is not made until after the making of the covenant. Burnes v. Allen, 31 N. C. 370. To result in merger, the parties to the two contracts must be the same, and the . subject-matter must be the same, and the contracts must be coextensive. Sharpe v. Gibbs, 16 C. B. (N. S.) 527; Boaler v. Mayor, 19 C. B. (N. S.) 76; Shelby v. Chicago & E. I. R. Co., 143 111. 385, 398; Saville v. Chalmers, 76 Iowa, 325; Doty v. Martin, 32 Mich. 462. Discharge of contract by merger, see section 417, infra. iisMarryat v. Marryat, 28 Beav. 224, 6 Jur. (N. S.) 572; Leonard (536) Ch. 6] FORMAL PAROL CONTRACTS. § 277 which depend, not only upon form, but also upon considera- tion, to give them effect. These contracts are simple or pa- rol contracts required to be in writing. They have been sometimes termed "informal contracts," but this is not the case. They depend for their validity as much upon form as upon consideration. These contracts, it will be remem- bered, form one of the three classes of formal contracts, and also one of the three classes into which simple or parol con- tracts are divided. ^^'' We shall treat of them here only so far as their form is concerned. § 276. Common-law requirements. The only requirement of form in simple contract which can be said to exist at common law is in the case of bills of exchange, which, by the custom of merchants, adopted into the common law, must be in writing.^^^ Indeed, this is re- quired by the nature of the contract; and the same rule ap- plies also to other negotiable instruments. § 277. Statutory requirements. While a verbal acceptance of a bill of exchange^ ^^ or of a nonnegotiable order^^'^ is valid at common law, in some states the rule has been altered by statute. V. Hughlett, 41 Md. 380; Van Vllet v. Jones, 20 N. J. Law, 340; Day V. Leal, 14 Johns. (N. Y.) 404; Charles v. Scott, 1 Serg. & R. (Pa.) 294. Contra, Price v. Moulton, 10 C. B. 561, 15 Jur. 228. 114 See page 508, supra. 115 Anson, Coht. (4th Ed.) 53. See below as to verbal acceptances, lie Pollock, Cont. 157; Lumley v. Palmer, 2 Strange, 1000; Scudder V. Union Nat. Bank, 91 U. S. 406; Stockwell v. Bramble, 3 Ind. 428; Pierce v. Kittredge, 115 Mass. 374; Barnet v. Smith, 30 N. H. 256; Spaulding v. Andrews, 48 Pa. 411; Bank v. Woodruff, 34 Vt. 89. Such acceptances are not within the statute of frauds. Neumann v. Shroeder, 71 Tex. 81. And see Walton v. Mandeville, 56 Iowa, 597. 117 Bird V. McElvaine, 10 Ind. 40. (537) § 277 FORM OF CONTRACT. [Ch. 6 An oral contract of insurance is valid at common law/^* but in many states it is now required that these contracts shall follow a certain form prescribed by statute, called the "standard policy." In some states, a promise by a person to pay a debt con- tracted in infancy is not binding unless in writing. Power to bind a person as surety also must be granted in writing and signed by the principal, in some jurisdictions, in order to render him liable. In many states, interest above a certain rate fixed by stat- ute may not be contracted for except in writing. A promise to dispose of property in a particular manner by will is not enforceable against the promisor's estate unless it is in writing, and signed by the promisor, in some juris- dictions.-'^® Independent of the statute of frauds, a conveyance of real estate is required to be iu writing in many states, and, as we have already mentioned, the transfer is sometimes required to be execu-ted under seal. The sale of a vessel enrolled in the United States registry is required to be in writing, by the federal laws ; otherwise, the vessel cannot be registered anew.^^° By act of congress, assignments of copyrights and of pat- ents are required to be in writing, at least as against third persons.-' ^-'■ In England, marriage is regarded as a formal contract,^ ^^ 118 Relief Fire Ins. Co. v. Shaw, 94 U. S. 574; Sanborn v. Fire- man's Ins. Co., 16 Gray (Mass.) 448; Roger Williancis Ins. Co. v. Carrington, 43 Mich. 252; First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. 339; Northwestern Iron Co. v. Aetna Ins. Co., 26 Wis. 78. 119 Krell v. Codman, 154 Mass. 454. 120 Rev. St. U. S. § 4170. 121 As to copyright, see Rev. St. XT. S. § 4955. As to patent, see Id. § 4898. 122 Pollock, Cont. 146. (538) Ch. 6] STATUTE OF FRAUDS. § 277 but in tlie United States it is, by the weight of authority, considered to be a status. The promise to marry is not un- like other promises in legal effect, but, when performed, it results in the assumption of a status by the parties, which is controlled by different rules of law from those governing the ordinary contract.-' ^^ The operation of the statutes of limitation in taking away the remedy for a debt may be excluded by a subsequent prom- ise to pay it, or an acknowledgment of the debt, from which such a promise may be implied. ^^* In many states, an ac- knowledgment of a debt barred by the statute of limitations must be in writing, signed by the debtor or his agent, in or- der to take the debt out of the statute. By the statute of frauds, specified contracts are required to be in writing. The importance of the subject demands that these contracts shall be separately treated. VIII. Same — Statute op Featjds. By the statute of frauds, certain classes of contracts are re- quired to be reduced to writing in order to be enforceable in a court of justice. The statute does not apply to a quasi contract, even though, had the parties entered into a true agreement upon the subject, that agreement must have been put into writing. Neither does the statute apply to a contract that has been fully performed on both sides. By the weight of authority, a written contract which falls within the scope of the statute of frauds may not be modified by word of mouth, and retain its enforceability. Except, in some jurisdictions, in courts of equity, an oral promise to enter into a written contract upon a subject gov- erned by the statute of frauds is unenforceable. The presence of a writing, as required by the statute of frauds, 123 Bishop, Mar., Div. & Sep. §§ 7-37. 124 Pollock, Cont. 165. (539) § 277a FORM OP CONTRACT. [Ch. 6 does not dispense with the necessity for a consideration for the contract. § 277a. In general. In 1676 there was enacted in England a statute entitled "An act for prevention of frauds and perjuries" (29 Car. II. c. 3). This statute, which is commonly known as the "Statute of Frauds," made a writing necessary to the validity of specified classes of contracts so far as their recognition by the courts was concerned. The two sections by which this result was effected are the fourth and the seventeenth, and these sections have been substantially adopted by statute in nearly all the American states. While the general trend of this legislation is the same, there are many local divergencies which it is beyond the scope of a work of this character to discuss. Only the more general principles can be consid- ered. The fourth section of the original statute of frauds is as follows : "No action shall be brought whereby to charge any executor or administrator, upon any special promise, to an- swer damages out of his own estate ; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person; or to charge any person upon any agreement made upon consideration of mar- riage; or upon any 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 within the space of one year from the making thereof ; unless the agree- ment upon which such action shall be brought, or some mem- orandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other per- son thereunto by him lawfully authorized." And the sev- enteenth section is as follows: "No contract for the sale of any goods, wares, and merchandise, for the price of ten (540) Ch. 6] STATUTE OF FRAUDS. § 279 pounds sterling or upwarls, shall be allowed to be good; except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized." § 278. Quasi contracts. The quasi or constructive contract, familiarly known as the "contract implied in law," is not a true contract, it will be remembered, since it does not require mutual assent to create it. It comes into being by operation of law, regard- less of the assent or dissent of the party to be bound. Now, the object of the statute of frauds is to prevent frauds and perjuries in reference to particular agreements and their terms. This being so, it is obvious that the enactment does not apply to the quasi contract, since the terms of a quasi contract are created, not by the parties affected by it, but by operation of law. A quasi contract may therefore be proved by parol, even though, had the parties entered into a true agreement upon the subject, that agreement must have been put in writing.^ ^^ i 279. Executed contracts. The statute of frauds applies only to executory contracts. It does not apply to contracts that have been fully performed on both sides. The statute is the rule of evidence where one party or the other is seeking performance or damages for nonperformance. It has no office to perform, where the con- tract has been fully carried out by the parties, and requires no active aid from the law. After a contract has been com- 125 Smith V. Bradley, 1 Root (Conn.) 150; Pike v. Brown, 7 Cush. (Mass.) 133, 136; Goodwin v. Gilbert, 9 Mass. 510. (541) § 279 FORM OP CONTRACT. [Ch. 6 pletely executed on both sides, the rights and obligations of the parties thereunder are not affected by the fact that the agreement rested in parol, and was therefore within the statute.-'^* The performance of an oral agreement may be shown as a fact, ■ and the party who has had some benefit from the performance, so as in fact to get what he bargained for, cannot treat the agreement as a nuUity.^^^ Thus, an agreement that one of the parties shall purchase an overdue mortgage owing by the other, and extend the time of payment for five years, is valid and binding, though resting in parol, if actually executed by an assignment of the mortgage. ^^^ This rule applies not only to the original agreement, but also to modifications thereof. If an agreement is reduced to writing in accordance with the terms of the statute, and after- wards it is modified by parol, the new terms, if fully carried out, are not rendered inoperative by the statute.-^ ^® To take the contract out of the operation of the statute on the ground of performance at common law, it must have been executed on both sides. It is not enough that one of the parties has performed his part of the bargain. Both must have performed. Thus, if an agreement to convey land is i26Lavery v. Turley, 6 Hurl. & N. 239, 30 Law J. Exch. 49; Bibb V. Allen, 149 U. S. 481; Sawyer v. Ware, 36 Ala. 675; Slatter v. Meek, 35 Ala. 528; Walker v. Shackelford, 49 Ark. 503; Bates v. Babcock, 95 Cal. 479; McCarthy v. Pope, 52 Cal. 561; Swanzey v. Moore, 22 111. 63; Bucknam v. Nash, 12 Me. 474; Crane v. Gough, 4 Md. 316; Norton v. Simonds, 124 Mass. 19; Stone v. Dennison, 13 Pick. (Mass.) 1; Wildey v. Crane, 69 Mich. 17; Sovereign v. Ortmann, 47 Mich. 181; McCue v. Smith, 9 Minn. 252 (Gil. 237); Long v. Hartwell, 34 N. J. Law, 116; Brown v. Farmers' Loan & Trust Co., 117 N. Y. 266; Newman v. Nellis, 97 N. Y. 285; Central Texas Min., Mfg. & Land Co. v. Weems, 73 Tex. 252; Pireaux v. Simon, 79 Wis. 392. 127 Pollock, Cont. 610; Bechtel v. Cone, 52 Md. 698. 128 Dodge V. Crandall, 30 N. Y. 294. i2!>Doherty v. Doe, 18 Colo. 456; Lee v. Hawks, 68 Miss. 669; Rucker v. Harrington, 52 Mo. App. 481. (542) Ch. 6] STATUTE OF FRAUDS. § 280 not in "writing, the vendor cannot execute a deed of the prem- ises, and then maintain an action for the purchase money.^^" However, if some of the stipulations in an oral contract are within the statute of frauds, and others are not, and those which are within the statute have been performed, an action will lie to enforce the other stipulations.^ ^^ § 280. New or modified agreements. As to whether a written contract which falls within the scope of the statute of frauds may he modified by word of mouth, and still remain valid, there is some conflict of opin- ion. By the weight of authority, it is held that the written agreement may not be effectually modified by parol ; that the effect of the modification is to substitute a new agreement for the old one; and that this new agreement is as much within the statute as the old.^^^ 130 Cocking V. Ward, 1 C. B. 858. As to the effect of part per- formance in equity, see page 609, infra. 131 Tinkler v. Swaynie, 71 Ind. 562; Page v. Monks, 5 Gray (Mass.) 492; Graff am v. Pierce, 143 Mass. 386. See, also, Hess v. Fox, 10 Wend. (N. Y.) 436. 132 Noble V. Ward, L. R. 2 Exch. 135; Stowell v. Robinson, 3 Bing. N. C. 928; Goss v. Nugent, 5 Barn. & Adol. 58; Harvey v. Grabham, 5 Adol. & B. 61; Marshall v. Lynn, 6 Mees. & W. 109; semlle, Em- erson V. Slater, 22 How. (U. S.) 28, 42; Rogers v. Atkinson, 1 Ga. 12; Gibson County Com'rs v. Cincinnati Steam Heating Co., 128 Ind. 240; Wilson's Assignee v. Beam, 12 Ky. Law Rep. 367, 14 S. W. 362; Walter v. Victor G. Bloede Co. of Baltimore City (Md.) 50 Atl. 433; Abell v. Munson, 18 Mich. 306; Brown v. Sanborn, 21 Minn. 402; Hill v. Blake, 97 N. Y. 216, virtually overruling dictum in Blanchard v. Trim, 38 N. Y. 225; Schultz v. Bradley, 57 N. Y. 646; Dana v. Hancock, 30 Vt. 616. Contra, Stearns v. Hall, 9 Cush. (Mass.) 31; Cummings v. Arnold, 3 Mete. (Mass.) 486; Negley v. JefEers, 28 Ohio St. 90. However, this rule does not preclude the party to whom performance is due from dispensing with exact per- formance as to time, etc., there being no new agreement on the subject. Cuff V. Penn, 1 Maule & S. 21; Hickman v. Haynes, L. R. 10 C. P. 598. And see McClelland v. Rush, 150 Pa. 57. See section 427, infra. (543) § 282 FORM OP CONTRACT. [Ch. 6 § 281. Promise to sign agreement. If an agreement is one which the statute of frauds requires to be in writing, an oral promise to enter into a formal writ- ing embodying the agreement would seem to be as much within the scope of the statute as the agreement itself, and so the better opinion is. To hold otherwise is to permit the parties to do indirectly what the law in effect forbids them from doing directly, and thus defeat the object of the stat- ute.-'^^ Thus, an oral agreement to execute an antenuptial contract is within the statute.'-^* And a contract to give a guaranty at a future time is as much within the statute as the guaranty itself.^ ^^ However, in some states, a court of equity will enforce performance of the promise to sign the writing, on the ground that to do otherwise would be to per- mit the perpetration of a fraud.-' ^® An illustration of the equitable rule is found in the case of a verbal promise to mortgage real property. To attain perfect justice, equity will enforce the promise in a proper case.-'^^'^ § 282. Consideration. The presence of a writing, as required by the statute of frauds, does not dispense with the necessity for a considera- tion for the contract. Thus, a gratuitous promise to an- swer for the debt of another is not enforceable, even though 133 Feeney v. Howard, 79 Cal. 525; Jackson v. Myers, 120 Ind. 504; Glass V. Hulbert, 102 Mass. 24. 134 Chase v. Fitz, 132 Mass. 359. 135 Pollock, Cont. 159; semble, Mallet v. Bateman, L. R. 1 C. P. 163, 169; Dee v. Downs, 57 Iowa, 589; "Wills v. Shinn, 42 N. J. Law, 138; Carville v. Crane, 5 Hill (N. Y.) 483; Taylor v. Drake, 4 Strob. (S. C.) 431. 136 McDonald v. Yungbluth (C. C.) 46 Fed. 836; semble, Searle V. Hill, 73 Iowa, 367, 368; Equitable Gas Light Co. v. Baltimore Coal Tar & Mfg. Co., 63 Md. 285. 137 Baker v. Baker, 2 S. D. 261; Irvine v. Armstrong, 31 Minn. 216; Ogden v. Ogden, 4 Ohio St. 182. (544) Ch. 6J STATUTE OF FRAUDS. § 282 it is reduced to writing.^^* If the debt is a pre-existing one, there must be a new consideration to support the promise; but if the principal debt and the promise to answer for it are made at the same time, the consideration which supports the debt will support the promise also.^^® It is a sufficient consideration if the creditor, at tlie instance of the promisor, releases a remedy against the debtor,^*" or forbears to en- force his claim.^*^ If an executor or an administrator promises to pay a debt of the decedent out of his own estate, the consideration must be a new one, moving to the representative. The considera- tion that sufficed to create the obligation on the part of the decedent will not support the representative's promise to pay that obligation out of his own estate.^*^ 138 Barrel! v. Trussell, 4 Taunt. 117; Beall v. Ridgeway, 18 Ala. 117; Frame v. August, 88 111. 424; Eddy v. Roberts, 17 111. 505; Starr v. Barle, 43 Ind. 478; Cutler v. Everett, 33 Me. 201; Aldridge V. Turner, 1 Gill & J. (Md.) 427; Tenney v. Prince, 4 Pick. (Mass.) 385, 387. i39Bel)ee v. Moore, 3 McLean, 387, Fed. Cas. No. 1,202; Colburn v. Tolles, 14 Conn. 341; Lines v. Smith, 4 Pla. 47; Gilliglian v. Boardman, 29 Me. 79; Cook v. Elliott, 34 Mo. 586; Brewster v. Si- lence, 8 N. Y. 207; Leonard v. Vredenburgh, 8 Jolins. (N. Y.) 29; Snevily v. Johnston, 1 Watts & S. (Pa.) 307. If the consideration be wholly past and executed before the promise is made, it is not sufficient unless the consideration arose at the request of the party promising. Chaffee v. Thomas, 7 Cow. (N. Y.) 358. i<« Killian v. Ashley, 24 Ark. 511; Kershaw's Ex'rs v. Whitaker, 1 Brev. (S. C.) 9. 1" Martin v. Black's Ex'rs, 20 Ala. 309; Sage v. Wilcox, 6 Conn. 81; Smith v. Finch, 2 Scam. (111.) 321; Taylor v. Meek, 4 Blackf. (Ind.) 388; King v. Upton, 4 Me. 387; Vinal v. Richardson, 13 Allen (Mass.) 521; Elting v. Vanderlyn, 4 Johns. (N. Y.) 237; Kean v. McKinsey, 2 Pa. 30; Thomas v. Croft, 2 Rich. Law (S. C.) 113; Kershaw's Ex'rs v. Whitaker, 1 Brev. (S. C.) 9; Hawes v. Woolcock, 26 Wis. 629. "2 Anson, Cont. (8th Ed.) 61; Pollock, Cont. 158; Rann v. Hughes, 7 Term R. 350, note, Langdell, Cas. Cont. 187; Forth v. Stanton, 1 Saund. 210, Langdell, Cas. Cont. 246; Hester v. Wesson, 6 Ala. 415.; (545) Law of Cont. — 35 § 283 FORM OF CONTRACT. [Ch. 6 IX. Same — Pkomise of Executor or Administrator. The statute applies to the special promise of an executor or an administrator to answer damages out of his own estate. This clause refers to promises to pay claims against the estate for which the representative would not otherwise be pefrsonally liable. It excludes promises made by the representative as original obligations. § 283. In general. "The liabilities of an executor or administrator in respect of the estate of a deceased person are of two kinds," says Sir William Anson. "At common law, he may sue and be sued upon obligations devolving upon him as representative of the deceased. In equity, he may be compelled to carry out the directions of the deceased in respect of legacies, or to give effect to the rules of law relating to the division of the estate of an intestate. In neither case is he bound to pay anything out of his own pocket. His liabilities are lim- ited by the assets of the deceased. But if, in order to save the credit of the deceased, or for any other reason, he choose to promise to answer damages out of his own estate, that promise must be in writing, together with the consideration for it, and must be signed by him or his agent."-' *^ The clause of the statute of frauds which relates to a spe- Pratt V. Humphrey, 22 Conn. 317. The promise of a legatee or a cred- itor of the estate to forbear pressing his claim is a sufficient consid- eration for the executor's promise to pay the claim personally. Davis V. Reyner, 2 Lev. 3; Pratt v. Humphrey, 22 Conn. 317; Sieckman v. Allen, 3 E. D. Smith (N. Y.) 561; Kershaw's Ex'rs v. Whitaker, 1 Brev. (S. C.) 9; Bellows v. Sowles, 57 Vt. 164, Huffcut & W. Am. Cas. Cont. 110. See, also, Jones v. Ashburnham, 4 East, 455, Lang- dell, Cas. Cont. 249. "3 Anson, Cont. (8th Ed.) 60; Crews v. Williams, 2 Bibb. (Ky.) 262, 4 Am. Dec. 701; Silsbee v. Ingalls, 10 Pick. (Mass.) 526, Smith- wick v. Shepherd, 49 N. C. 196; Okeson's Appeal, 59 Pa. 99; Sidle v. Anderson, 45 Pa. 464; Ciples v. Alexander's Adm'r, 3 Brev. (S. C.) 558, 2 Tread. Const. (S. C.) 767; Harrington v. Rich, 6 Vt. 666. (546) Ch. 6] STATUTE OF FRAUDS. ^ 283 cial promise of an executor or administrator to answer out of his own estate has reference to claims against the estate for which the executor or administrator is liable only as the representative of the decedent, and which, but for the prom ise, he would be liable to discharge only in due course of administration, and to the extent of the property that might come into his hands.-^** It does not apply to a promise to pay a debt of the decedent out of the assets of the estate.^*^ "Executors and administrators," says l£v. Bishop, "in the discharge of their duties, enter into various original obliga- tions, as well as incur responsibilities for torts, which are personal in their inception, binding them, and not the estate, though sometimes they may charge over to the estate what they thus pay out. With these, the statute has nothing to ^Jq_"146 Thus, it does not apply where the representative's promise is to pay money out of his own estate, not as dam- ages for which the decedent's estate is liable, but to subserve some end of his own.^*'^ If a contract by an executor or an administrator is found- ed upon a consideration accruing after the decedent's death, it is deemed his individual contract, and is not within the 14* Dillaby v. Wilcox, 60 Conn. 71. 145 Greening v. Brown, Minor (Ala.) 353; Piper v. Goodwin, 23 Me. 251; Stebbins v. Smith, 4 Pick. (Mass.) 97. lie Bishop, Cont. § 1254; Stoudenmeier v. Williamson, 29 Ala. 558; Chambers v. Robbing, 28 Conn. 544; Bott v. Barr, 95 Ind. 243; Far- relly v. Ladd, 10 Allen (Mass.) 127; Wales v. Stout, 115 N. Y. 638; Beaty v. Gingles, 53 N. C. 302; Kershaw's Ex'rs v. Whitaker, 1 Brev. (S. C.) 9; McGloin's Ex'rs v. Vanderlip, 27 Tex. 366; Collins V. Row, 10 Leigh (Va.) 114. This clause of the statute does not apply to a promise made by a man before he became administrator, although he afterwards becomes such. Tomlinson v. Gill, 1 Amb. 330. i47Britton v. Angier, 48 N. H. 420; Wales v. Stout, 115 N. Y. 638; Fehlinger v. Wood, 134 Pa. 517; Bellows v. Sowles, 57 Vt. 164, HufC- cut & W. Am. Cas. Cont. 110. (547) § 283a FORM OF CONTRACT. [Ch. 6 Statute, although it may relate to, and be connected with, matters growing out of the administration of the estate.^** X. Same — Peomise to Answer fob Anoxhee's Debt, Defauxt, ok Miscarriages. The statute applies to a special promise to answer for anoth- er's debt, default, or miscarriages. To render the statute applicable, and so require a writing — (a) The debt, etc., must be that of a third person, — ^neither the promisor's nor the promisee's. (b) The promise must be a collateral, not an original, un- dertaking. The third person must be primarily liable upon the debt, and remain so after the prom- ise is given, and the prcuiise must not only involve, but also contemplate, a benefit to him. By the weight of authority, the statute does not apply to con- tracts of indemnity. § 283a. In general. The promise described in this clause of the statute is known as a "contract of guaranty or suretyship." In order to fall within the statute, there must be three parties in contempla- tion : A., who is actually or prospectively liable to B., and C, who, in consideration of some act or forbearance on the part of B., promises to answer for the debt, default, or mis- carriage of A.-'*® The debt, default, or miscarriage referred to in the stat- ute includes liabilities arising out of tort as well as out of contract.-'^'' There need be no actual liability at the time the promise 148 Holderbaugh v. Turpin, 75 Ind. 84; Fehlinger v. Wood, 134 Pa. 517. 149 Anson, Cont. (8tli Ed.) 61. 150 Anson, Cont. (8th Ed.) 62; Kirkham v. Marter, 2 Barn. & Aid. 613; Turner v. Hubbell, 2 Day (Conn.) 457, 464; Combs v. Harshaw, 63 N. C. 198.' (548) Ch. 6] STATUTE OF FRAUDS. i^ 284 is made in order to bring the promise within the statute. The liability may be prospective.^ ^^ For instance, a prom- ise by A. to X. that, if a third person employs X., A. will go surety for payment of the services rendered, is within the statute. § 284. Debt must be a third person's, — ^neither promisor's nor promisee's. In order to bring the promise within the operation of the statute, and so require it to be in writing, the debt guaran- tied must not be that of the promisor. If he is liable for the debt, either singly or jointly with others, his promise to pay it is not within the statute, and is accordingly valid, even though not in writing.^ °- And the statute does not apply where the promise is to pay the promisor's own debt, al- though the debt of a third person be incidentally guaran- tied/^^ Thus, a promise by a buyer to pay the price by dis- charging a debt of the seller to a third person, is not within the statute, and hence it may rest in parol. ■'^^ And if a 151 Anson, €oiit, (Stli Ed.) 62; Morrissey v. Kins&y, 16 Neb. 17; Mead V. Walsoo, 57 Vt. 426. 152 Filjes V. McLeod, 14 Ala. 611;; Steldon v. Butler, 24 Minn. .613;; Little V. McCarter, 89 N. C. 233; Teeters v. Lamborn, 43 Obio St. 144; Morris v. Gaiaes, .-82 Tex;. 255; Bailey v. Bailey, 56 Vt. 3ft8; SkiiiJi«r V. Armstrong, 86 ¥a. 1011; Putney v. Farnbam, 27 Wis. 187. issLedbetter v. McGhees, 84 Ga. 227; Darst y. Bates, 95 III. 493, 512; Leake v. BaJl, 116 Ind. 214; Wolke v. Fleming, 103 Ind. 105; Rowe V. Wbittier, 21 Me. 545; Pike v. Brown, 7 Cusb. (Mass.) 13.3; MittB V. McMarran, 8.5 Micb. 94; Huntington y. Wellington, 12 Micb. 11; Crane v. Wheeler, 48 Minn. 207; Wilsom v. Hentges, 2fl Minn. 102; Lee V. Newama, 55 Miss. 3.65; Taylor v. Preston, 79 Pa. 436, 441; Malone y. Keener, 44 Pa. 107. As to ■whether a verbal ac- ceptance of a bill of exchange is within the statute of frauds, see pa«e 537., supra. 154 American Lead Pencil Co. y. Wolfe, 30 Pla. 360; Wilson v. Bevans, 58 111. 232 ; Crim v. Fitch, 53 Ind. 214 ; Morrison v. Hogue, 49 Iowa, 574; Neiswanger v. McClella-n, 45 Kan. 599; Clopper v. § 285 FORM OF CONTRACT. [(]h. 6 debtor places money or property with a third person, with directions to pay it to the creditor, and the depositary after- wards promises the creditor to make the payment, the prom- ise is in effect to pay the promisor's own debt, and is not therefore within the statute of frauds.^'^ To fall within the statute, the promise must contemplate payment out of the promisor's own property, or at least out of property other than the debtor's.^^^ To require a writing, the promise must be made to the creditor. The statute applies only to promises made to the person to whom another is answerable, or is to become so. If the debt guarantied is that of the promisee, the guaranty is not within the operation of the statute.'^^^ § 285. Promise must be a collateral, not an original, under- taking. To bring a promise within the statute, the undertaking must be collateral, not original. There must be a principal debtor, for whom the promisor undertakes to answer. If Poland, 12 Neb. 69; Barker v. Bucklin, 2 Denio (N. Y.) 45; Rice V. Carter's Adm'r, 33 N. C. 298; Delp v. Bartholomay Brewing Co., 123 Pa. 42; Silsby v. Frost, 3 Wash. T. 388; Hooper v. Hooper, 32 W. Va. 526. See page 555, infra. issBohannon v. Jones, 30 Ga. 488; Belknap v. Bender, 75 N. Y. 446, 450; Wyman v. Smith, 2 Sandf. (N. Y.) 331; Wynn's Adm'r V. Wood, 97 Pa. 216; Peck v. GofC, 18 R. I. 94. isewoodrufe V. Scaife, 83 Ala. 152; Hughes v. Fisher, 10 Colo. 383; Tuttle v. Armstead, 53 Conn. 175; Fisher v. Donovan, 57 Neb. 361, 44 L. R. A. 383; Ackley v. Parmenter, 98 N. Y. 425; Seaman V. Whitney, 24 Wend. (N. Y.) 260; Fullam v. Adams, 37 Vt. 391. 157 Eastwood V. Kenyon, 11 Adol. & B. 438, Langdell, Cas. Cont. 343; Consoeiated Presbyterian Soc. v. Staples, 23 Conn. 544; Pratt V. Humphrey, 22 Conn. 317; Meyer v. Hartman, 72 111. 442; Wlndell V. Hudson, 102 Ind. 521; Crim v. Fitch, 53 Ind. 214; Cenler v. Mc- Questen, 18 Kan. 476; Williams v. Rogers, 14 Bush (Ky.) 776; Max- well V. Haynes, 41 Me. 559; Harwood v. Jones, 10 Gill & J. (Md.) 404; Alger v. Scoville, 1 Gray (Mass.) 391; Pratt v. Bates, 40 Mich. 37; Goetz v. Foos, 14 Minn. 265 (Gil. 196); Ware v. Allen, 64 Miss. (550) Ch. 6] STATUTE OF FRAUDS. § 285 the promisor makes himself primarily liable, there is no suretyship, and hence no need for a writing.^^^ This has been illustrated as follows : If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, ■'If he does not pay you^ I will," this is a collateral under- taking, and void without writing, by the statute of frauds.-'^® But if he says, ''Let him have the goods, and I will pay you," this is an undertaking as for himself ; he is deemed to be the buyer, and the other to act as his servant, and accordingly the agreement needs no writing.^®" So, if X. refuses to do certain work or to continue working for a third person unless some one assures him of payment, and A. says, "Do the work, and I will pay you," there is no suretyship, and the promise is valid, though oral}^^ But if the person for whom the 545; Green v. Estes, 82 Mo. 337; Brown v. Brown, 47 Mo. 130; Fiske V. McGregory, 34 N. H. 414; Barker v. Bradley, 42 N. Y. 316; Mersereau v. Lewis, 25 Wend. (N. Y.) 243; Rice v. Carter's Adm'r, 33 N. C. 298; Fehlinger v. Wood, 134 Pa. 517; Wood v. Moriarty, 15 R. I. 518, Huffcut & W. Am. .Cas. Cont. 430. But see Clapp v. Lawton, 31 Conn. 95. 158 Anson, Cont. (8th Ed.) 62; Baldwin v. Hiers, 73 Ga. 739; Davis V. Tift, 70 Ga. 52; Gibson County Com'rs v. Cincinnati Steam Heating Co., 128 Ind. 240; Shaffer v. Ryan, 84 Ind. 140; Barrett v. McHugh, 128 Mass. 165; Jepherson v. Hunt, 2 Allen (Mass.) 417; Morris v. Os- terhout, 55 Mich. 262; Wallace v. Wortham, 25 Miss. 119; De Witt v. Root, 18 Neb. 567; Cowdin v. Gottgetreu, 55 N. Y. 650; Morrison v. Baker, 81 N. C. 76; Moorehouse v. Crangle, 36 Ohio St. 130; Merriman v. McManus, 102 Pa. 102; Mease v. Wagner, 1 McCord (S. C.) 395; Walker v. Norton, 29 Vt. 226; West v. O'Hara, 55 Wis. 645. 159 Matson v. Wharam, 2 Term R. 80; Blank v. Dreher, 25 111. 331; Pettit V. Braden, 55 Ind. 201; Langdon v. Richardson, 58 Iowa, 610; Swift V. Pierce, 13 Allen (Mass.) 136; Matthews v. Milton, 4 Yerg. (Tenn.) 576. 160 Birkmyr v. Darnell, 1 Salk. 27, 1 Smith, Lead. Cas. 310 (8th Am. Ed. 516); Ledlow v. Becton, 36 Ala. 596; Hartley v. Varner, 88 111. 561; Maurin v. Fogelberg, 37 Minn. 23; Sinclair v. Bradley, 52 Mo. 180; Boston v. Farr, 148 Pa. 220. lei Lakeman v. Mountstephen, L. R. 7 H. L. 17 ; Sinclair v. Brad- ley, 52 Mo. 180; Mead v. Watson, 57 Vt. 426. (551) § 286 FORM OF CONTRACT. [Ch. 6 Work has been done or is to be done remains or becomes lia- ble, and A.'s promise is to pay if he does not, then the prom- ise is collateral, and it must be put in writing.^ ^^ To determine whether an undertaking is original or mere- ly collateral, the court will look not only to the particular words used, but also to all the circumstances attending the transaction.^"* The question is. To whom was the credit given ? If to the party receiving the benefit, then the other party's promise must be in writing ;^^* otherwise, not.^*^ And to dispense with a writing, it must be shown that credit was given solely and exclusively to the promisor. If any <5redit was given to the third person, the promise is collateral, and, if oral, will not be enforced.-^ ®^ § 286. Same — Promise must contemplate a benefit to the prin- cipal debtor. If the promise is made upon a consideration moving to 162 Morrissey v. Kinsey^ 16 Neb. 17. 103 Harris v. Frank, 81 Cal. 280; Blank v. Drelier, 25 111. 293. i«i Harris v. Prank, 81 Cal. 280; Parnham v. Davis, 79 Me. 282; Norris v. Graham, 33 Md. 56; Cahill v. Bigelow, 18 Pick. (Mass.) 369; Studley v. Barth, 54 Mich. 6; Allen v. Leavens, 26 Or. 164, 168; Robertson v. Hunter, 29 S. C. 9; Matthews v. Milton, 4 Yerg. (Tenn.J 575; Meade v. Watson, 57 Vt. 426. The debiting a party obtain- ing goods with them on the books of the vendor is not conclusive evidence that credit was given to him, but only a strong circum- stance, to be submitted, with all the other evidence in the cause, to the jury. Ledlow v. Becton, 36 Ala. 596; Myer v. Grafflin, 31 Md. 350; Larson v. Jensen, 53 Mich. 427; Mackey v. Smith, 21 Or. 598. 105 Clark v. Jones, 87 Ala. 474; Crowder v. Keys, 91 Ga. 180; Buchanan v. Sterling, 63 Ga. 227; Geary v. O'Neil, 73 III. 593; Lar- bon V. Jensen, 53 Mich. 427; Maurln v. Fogelberg, 37 Minn. 23; Peyson v. Conniff, 32 Neb. 269; Haseltine v. Wilson, 55 N. J. Law, 250; Chase v.. Day, 17 Johns. (N. Y.) 114; Mackey v. Smith, 21 Or. 598; Greenough v. Eichholtz, 1 Mona. (Pa.) 433. 106 Norris v. Graham, 33 Md. 56; Bugbee v. Kendricken, 130 Mass. 437; Cole v. Hutchinson, 34 Minn. 410; Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29. (552) Ch. 6] STATUTE OF FRAUDS. § 286 the promisor, and to subserve his own ends, it is not collat- eral, but original, and hence it is not within the stattite.^*^ Thus, if the holder of a note transfers it to another, upon a consideration moving to himself, his guaranty thereof, made at the time of the transfer, need not be in writing.^ ^^ l^or is a writing required for the contract oi a. del credere agent, wherehy he gviarantees to the principal the solvency of the persons to whom he sells goods.^*® Cases are not considered as coming within the statute where the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself f^'^" but where the object of the promise is to obtain the release 167 Davis V. Patrick, 141 U. S. 479; Blount v. Hawkins, 19 Ala. 100; Conger v. Cotton, 37 Ark. 286; Sext v. Geise, 80 Ga. 698; Scott v. White, 71 III. 287; Crawford v. King, 54 Ind. 6; Beaty v. Grim, 18 Ind. 131; Little v. Edwards, 69 Md. 499; Mitchell v. Beck, 88 Mich. 342; Wilson v. Hentges, 29 Minn. 102; Britton v. Angier, 48 N. H. 420; MeCraith v. National Mohawk Valley Bank, 1G4 N. Y. 414; Sanders v. Gillespie, 69 N. Y. 250; Warnick v. Grosholz, 3 Grant, Cas. (Pa.) 234; Keyes \. Allen, 65 Vt. 667; Young v. French, 35 Wis. 111. 168 Mobile & G. R. Co. v. Jones, 57 Ga. 198; Darst v. Bates, 95 111. 493; Hassinger v. Newman, 83 Ind. 124; Huntington v. Welling- ton, 12 Mich. 10; Sheldon v. Butler, 24 Minn. 513; Barker v. Scud- der, 56 Mo. 272; Milks v. Rich, 80 N. Y. 269; Bruce v. Burr, 67 N. Y. 237; Rowland v. Rorke, 49 N. C. 337; Malone v. Keener, 44 Pa. 107; Hall v. Rodgers, 7 Humph. (Tenn.) 536; Wyman v. Good- rich, 26 Wis. 21; Eagle Mach. Co. v. Shatttick, 53 Wis. 455. 169 Reed, St. of Frauds, § 75; Couturier v. Hastie, S Exch. 40; Swan T. Nesmith, 7 Pick. Jarrett v. Hunter, 34 Ch. Div. 182; Potter v. Duffield, L. R. 18 Bq. 4. 320Huffcut, Anson, Cont. 67, note; Wood v. Davis, 82 111. 311; Sayward v. Gardner, 5 Wash. 247. But see Steadman v. Guthrie, 4 Mete. (Ky.) 147. (592) Ch. 6] STATUTE OF FRAUDS. § 394 without a resort to parol evidence.^^^ Other courts draw a distinction between an agreement and a promise, and hold that, where the agreement is required to be in writing, the consideration must be expressed, and that, where only the promise is required to be in writing, the consideration need not be expressed. *^^ Some courts, again, draw a distinction between the agxeement mentioned in the fourth section and the bargain mentioned in the seventeenth section, holding that the consideration is a part of the agreement, and must be expressed in the m.emorandum, but that the consideration is not a part of the bargain, and hence need not be noted in the writing.^^* • To illustrate these different views, some specific holdings may be cited. It has been held that an agreement to pay a marriage portion must express the consideration on which it is based.^^* The decisions are conflicting on the question whether the memorandum of an agreement for the sale of lands must express the price.^^® In the case of a sale of goods, it has been held that the consideration need not ap- pear in the writing unless the price is fixed by the parties. In that event, the consideration becomes a part of the bar- gain, and must accordingly be expressed the same as any other term.^^" It will be presumed, if no consideration for 321 Saunders v. Wakefield, 4 Barn. & Aid. 595; Drake v. Seaman, 97 N. Y. 230. 322 Wain V. Warlters, 5 East, 10; Violett v. Patton, 5 Cranch (U. S.) 142; Sage v. Wilcox, 6 Conn. 81; Patmor v. Haggard, 78 111. 607; Britton v. Angler, 48 N. H. 420; Buckley v. Beardslee, 5 N. J. Law, 570. Contra, Whitby v. Whitby, 4 Sneed (Tenn.) 478. 323 Pollock, Cont. 161; Egerton v. Mathews, 6 East, 307. 324 0gden V. Ogden, 1 Bland (Md.) 284. 325 Pro.- Adams v. McMillan, 7 Port. (Ala.) 73; Phelps v. Still- ings, 60 N. H. 505. Con: Bean v. Valle, 2 Mo. 126; Halsa v. Halsa, 8 Mo. 303; Thornburg v. Masten, 88 N. C. 293; Thomas v. Ham- mond, 47 Tex. 42. 326 Anson, Cont. (8th Ed.) 73; Ida v. Stanton, 15 Vt. 685. (593) Law of Cont. — 38 § 304 FORM OF CONTRACT. [Ch. 6 a sale of goods is set forth in the memorandum, that there is a promise to pay a reasonable price, which, not being fixed by the parties, need not be expressed. This presumption may, however, be rebutted by evidence of an express verbal agreement as to a fixed price, which the statute requires to be noted in writing. ^^'^ As t(j whether the writing must express the consideration of a promise to answer for the debt, default, or miscarriage of another person, there is a conflict of authority. To be sufficient under the English statute, the writing must set forth the consideration.^-^ In America, the cases on this point are in conflict. Some courts follow the English rule, and require the consideration to be expressed in the memo- randum.^^' Many other courts take the opposite view, and hold that the writing need not express the consideration for the promise.^ ■'^° In states where the statute requires the con- sideration for such a promise to be expressed in writing, a guaranty by a third person of the payment of a negotiable promissory note need not itself express the consideration, if written on the note before it is delivered and first takes ef- fect as a contraet,*^^ but must, if written afterwards.^*^ 327 Anson, Cont. (8th Ed.) 73; Hoadley v. McLaine, 10 Bing. 482. 328 Wain V. "Warlters, 5 East, 10; Saunders v. Wakefield, 4 Barn. & Aid. 595. 329D'Wolf V. Rabaud, 1 Pet. (U. S.) 476; Sloan v. Wilson, 4 Har. & J. (Md.) 322; Barney v. Forbes, 118 N. Y. 580; Newcomb v. Clark, 1 Denlo (N. Y.) 226; Sears v. Brink, 3 Johns. (N. Y.) 210; Stephens V. Winn, 2 Nott & McC. (S. C.) 372; Taylor v. Pratt, 3 Wis. 674. 330Violett V. Patton, 5 Cranch (U. S.) 142; Thompson v. Hall, 16 Ala. 204; Sage v. Wilcox, 6 Conn. 81; Dorman v. Bigelow, 1 Fla. 281; Davis v. Tift, 70 Ga. 52; Gillighan v. Boardman, 29 Me. 79; Levy v. Merrill, 4 Greenl. (Me.) 180; Packard v. Richardson, 17 Mass. 122; Goodnow v. Bond, 59 N. H. 150; Britton v. Angler, 48 N. H. 420; Reed v. Evans, 17 Ohio, 128; Shively v. Black, 45 Pa. 345; Taylor v. Ross, 3 Yerg. (Tenn.) 330; Thomas v. Hammond, 47 Tex. 42; Colgin v. Henley, 6 Leigh (Va.) 85. 331 Moses V. Lawrence County Bank, 149 U. S. 298; Nabb v. Koontz, 17 Md. 283; Bickford v. Gibbs, 8 Gush. (Mass.) 154; Leonard v. (594) Ch. 6] STATUTE OF FRAUDS. § 304 It is a sufficient expression of the consideration where the memorandum recites that the promise is given "for value re- ceived."^^^ And if the memorandum is executed under seal, the seal is a sufficient recital of a consideration.^^* Even in those jurisdictions where the consideration for a contract within the operation of the statute of frauds is re- quired to be expressed in the writing, and whether the rule exists by statute or independently of it, yet the rule applies only to common-law agreements wherein the consideration is the subject of agreement between the parties. The rule does not apply to instruments created by and deriving their obli- gation from statute, without the acceptance or assent of the party for whose ultimate benefit they are given, such as, for instance, an undertaking on appeal.^^^ Description of subject-matter. The subject-matter of a contract affected by the statute of frauds must be so described in the memorandum as to be identified with certainty.^*'' Thus, a written contract for the sale of land which does not, either in itself or by refer- ence to any other writing, contain the means of describing or identifying the land in question, is insufficient to take the Vredenburgh, 8 Johns. (N. Y.) 29. A guaranty made by the holder of the note by Indorsement need not express the consideration. How V. Kemball, 2 McLean, 103, Fed. Cas. No. 6,748. 332Rigby V. Norwood, 34 Ala. 129. 333Edelen v. Gough, 5 Gill (Md.) 103; Osborne v. Baker, 34 Minn. 307; Douglass v. Rowland, 24 Wend. (N. Y.) 35; Dahlman v. Ham- mel, 45 Wis. 466. 334 Gregory v. Logan, 7 Blackf. (Ind.) 112; Douglass v. Howland, 24 Wend. (N. Y.) 35; Johnston v. Wadsworth, 24 Or. 494. 385 Thompson v. Blanchard, '3 N. Y. 335 ; Doolittle v. Dininny, 31 N. Y. 350. 336 Anson, Cont. (8th Ed.) 66; Caddick v. Skidmore, 2 De Gex & J. 52; Adams v. McMillan, 7 Port. (Ala.) 73; Eppich v. Clifford, 6 Colo. 493; McConnell v. Brillhart, 17 111. 354; Wood v. Davis, 82 111. 311; Ross V. Allen, 45 Kan. 231. (595) § 304 FORM OP CONTRACT. [Ch. 6 case out of the operation of the statute.^^'' And, to be valid and enforceable, the contract must not require parol testi- mony to establish any essential- part of it.^^® The terms of the description may be of a general nature, but they must be sufficient to fit and comprehend the property which is the sub- ject of the contract, and exclude all else, with the aid, at least, of external evidence which shall neither contradict nor add to it.^39 If the description contained in the memorandum points to specific propertj^, however, parol evidence is admissible to identify that property. It is not essential that the descrip- tion shall contain such particulars of identification as to ren- der a resort to extrinsic evidence unnecessary when the writ- ing comes to be applied to the subject-matter. It is suffi- cient if it comprehends the property, so that, with the aid of extrinsic evidence, without being contradicted or added to, it can be connected with and applied to the thing intended, to the exclusion of all else.**" Thus, where the owner of a tract of land, who had authorized a firm of real-estate agents to sell the same, wrote upon the back of one of their business cards as follows, "Will take for the northwest quarter sec- tion 23, 160 acres, less E. E. $300 per acre, one-third cash, balance one and two years, eight per cent," which was signed 337 Breckinridge v. Crocker, 78 Cal. 529 ; Fry v. Piatt, 32 Kan. 62 Doherty v. Hill, 144 Mass. 465; Beekman v. Fletcher, 48 Micli. 555 Taylor v. Allen, 40 Minn. 433; McGuire v. Stevens, 42 Miss. 724 King V. Wood, 7 Mo. 389; Murdock v. Anderson, 57 N. C. 77; Hum- bert v. Brisbane, 25 S. C. 506. 338 Tice V. Freeman, 30 Minn. 389 ; McGuire v. Stevens, 42 Miss. 724; Mellon v. Davison, 123 Pa. 298. 339 Eggleston v. Wagner, 46 Mich. 610. 340 Shardlow v. Cotterell, 20 Ch. Div. 90 ; Ryan v. United States, 136 U. S. 68; Hodges v. Kowing, 58 Conn. 12; Lente v. Clarke, 22 ma. 515; Hayes v. O'Brien, 149 HI. 403; Tewksbury v. Howard, 138 Ind. 103; Wills v. Ross, 77 Ind. 1; Hollis v. Burgess, 37 Kan. 487; Mead v. Parker, 115 Mass. 413; Quinn v. Champagne, 38 Minn. 322; Tallman v. Franklin, 14 N. Y. 584; White v. Core, 20 W. Va. 272. (596) Ch. 6] STATUTE OF FRAUDS. § 2(1 by him, and a person, desiring to purchase, wrote on the sam card, "Your terms are accepted," and signed the same, it w£ held to be a sufficient memorandum to take the case out c the statute, and that parol evidence was admissible to identif the property.**^ Parol evidenc(3 is admissible in this coi nection, for instance, to show in what sense figures or al breviations were used by the parties,^*^ or to explain the ci; cumstances surrounding the transaction,^*^ so far as to coi nect the description of the subject-matter with the thing ii tended. ■ Statement of terms. The memorandum required by the statute of frauds mui do more than state the fact that a contract has been mad( It must recite the substance of the terms of the contract.**^ Thus, the written acceptance of a verbal offer, not containin its terms, is not binding upon the party so accepting.^^ However, a written i-equest for the person addressed to pr( cure certain property for the signer is a suflScient memorai dum to charge the signer on a contract to receive and pay fc such property.*** A memorandum is not sufficient unless all the terms an conditions of the contract appear from the writing, eithc within itself or by reference to some other paper. It is n( sufficient to put some of the terms into writing, and let otl ers rest upon word of mouth,**^ for parol evidence is nc 3« Cossitt V. Hobbs, 56 111. 231. 3«Maiin V. Higgins, 83 Cal. 66; Berry v. Kowalsky, 95 Cal. 13' Brewer v. Horst & Lachmund Co., 127 Cal. 643. a-is Brewer v. Horst & Lachmund Co., 127 Cal. 643 ; Towle Carmelo Land & Coal Co., 99 Cal. 397. 344McElroy v. Buck, 35 Mich. 434; Schroeder v. Taaffe, 11 M App. 267. 345 Washington Ice Co. v. Webster, 62 Me. 341. 340 O'Neil v. Grain, 67 Mo. 250. 347 Anson, Cont. (4th Ed.) 57; Grafton v. Cummings, 99 U. S. 101 (597 § 304 FORM OF CONTRACT. [Ch. 6 admissible to show them.^** The memorandum need not contain all the details, but it must express the substance of the contract with reasonable certainty, either by its own terms or by reference to some other agreement or matter from which it can be ascertained with like reasonable certainty.^^® Thus, a letter admitting the purchase of goods by the writer from the person to whom it is written, but which does not express any terms of the purchase, nor refer to any agreement con- taining them, is not a siifficient memorandum.^^" Again, if lands are sold on credit, the terms of credit must be set forth in the memorandum, if they have been agreed upon.^^^ But it is not necessary, in a memorandum of the sale of goods, that the time of the delivery shall be stated, provided no time is fixed in the previous parol agreement.*^^ Eppich V. Clifford, 6 Colo. 493; Nichols v. Johnson, 10 Conn. 192; Leste- V. Heidt, 86 Ga. 226; Reid v. Kenworthy, 25 Kan. 701; Ellis V. Deadman's Heirs, 4 Bibb (Ky.) 466; Williams v. Robinson, 73 Me. 186; O'Donnell v. Leeman, 43 Me. 158, Huff cut & W. Am. Cas. Cont. 100; Riley v. Farnsworth, 116 Mass. 223; Oakman v. Rogers, 120 Mass. 214; McBlroy v. Buck, 35 Mich. 434; McGuire v. Stevens, 42 Miss. 724; Drake v. Seaman, 97 N. Y. 230; Stone v. Browning, 68 N. Y. 598; Newbery v. Wall, 65 N. Y. 484. 348 Anson, Cont. (8th Ed.) 66, 67; Boydell v. Drummond, 11 East, 142; Greaves v. Ashlin, 3 Camp. 426; Watt v. Wisconsin Cranberry Co., 63 Iowa, 730 ; Fry v. Piatt, 32 Kan. 62 ; May v. Ward, 134 Mass. 127; Tice v. Freeman, 30 Minn. 389; Drake v. Seaman, 97 N. Y. 230; Wright v. Weeks, 25 N. Y. 153. sio Smith V. Jones, 66 Ga. 338; Frazer v. Howe, 106 111. 563; Drury V. Young, 58 Md. 546; Atwood v. Cobb, 16 Pick. (Mass.) 227; McEl- roy V. Buck, 35 Mich. 434; Wiley v. Robert, 27 Mo. 388; Ives v. Hazard, 4 R. I. 14; Meadows v. Meadows, 3 McCord (S. C.) 58; Hazard, 4 R. I. 14; Meadows v. Meadows, 3 McCord (S. C.) 458: 350 Newbery v. Wall, 65 N. Y. 484. 351 Grafton v. Gummings, 99 U. S. 100; Adams v. McMillan, 7 Port. (Ala.) 73; Eppich v. Clifford, 6 Colo. 493; Elliott v. Barrett, 144 Mass. 256; Gault v. Stormont, 51 Mich. 636. Contra, Ellis v. Bray, 79 Mo. 227. 352 Kriete v. Myer, 61 Md. 558. (598) Ch. 6] STATUTE OF FRAUDS. | 305 § 305. Signature of memorandum — Necessity for signatures. The statute requires the memorandum to be signed by the party "to be charged" or his agent. It is not necessary, therefore, that both parties shall sign the writing. A recov- ery will be allowed on the contract if the memorandum has been signed by the defendant, even though the plaintiff has not signed.^^^ This rule is not of universal application, however. In case a promise is the consideration for a prom- ise, it has been held that the memorandum must be signed by both parties. ^^* In other states, the general rule pre- vails, even in a case of mutual promises, and the want of mutuality is held to be no objection, so that the fact that the plaintiff has not signed the memorandum, and could not, therefore, be held, does not preclude a recovery against a de- fendant who has signed the same.*^® The necessity for a signature is not dispensed with by the fact that the memorandum is in the handwriting of the party sought to be charged.^^* 353 Anson, Cent. (8th Ed.) 68; Reuss v. Picksley, L. R. 1 Exch. 342; Ross v. Parks, 93 Ala. 153; Vassault v. Edwards, 43 Cal. 458; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Sanborn v. Flagler, 9 Allen (Mass.) 474; Wemple v. Knopf, 15 Minn. 440 (Gil. 355); Waul v. Kirkman, 27 Miss. 823; Gardels v. Kloke, 36 Neb. 493; Clason's Ex'rs V. Bailey, 14 Johns. (N. Y.) 484, Huffcut & W. Am. Cas. Gont. 102; Davis v. Shields, 26 Wend. (N. Y.) 341; Mason v. Decker, 72 N. Y. 595; Douglass v. Spears, 2 Nott & MeC. (S. C.) 207. 35*Krohn v. Bantz, 68 Ind. 277; Thomas' Ex'x v. Harrodsburg, 3 A. K. Marsh. (Ky.) 298; Wilkinson v. Heavenrich, 58 Mich. 574. If an order for goods is prepared in duplicate, and each party signs one and delivers it to the other party, the two papers together con- stitute a memorandum signed by both parties. Rhoades v. Cast- ner, 12 Allen (Mass.) 130. 355 Hodges V. Kowing, 58 Conn. 12; Perkins v. Hadsell, 50 111. 217; Old Colony R. Corp. v. Evans, 6 Gray (Mass.) 25, 31; Justice v. Lang, 42 N. Y. 493, 52 N. Y. 323; Himrod Furnace Co. v. Cleveland & M. R. Co., 22 Ohio St. 451; Smith's Appeal, 69 Pa. 480; Ives v. Hazard, 4 R. I. 14. 356 Selby V. Selby, 3 Mer. 2; Barry v. Law, 1 Cranch, C. C. 77, 89 (599) § 305 FORM OF CONTRACT. [Ch. 6 Time for signature. The signature of the memorandum may take place before the contract has been concluded,^^^ or after that event, if before action brought.^"^ The statute does not require that the memorandum shall be signed at the time the agreement is made. Sufficiency of signature. The signature may take the form of a signed letter, in which the party to be charged acknowledges an oral contract previously made,^^^ and this is true, even though the letter is addressed to a third person, who is not a party to the con- tract.^®" The signatiire may take the form even of a signed telegram sent by the person to be charged on the contract.^®^ The signature need not be in writing. It may be suffi- cient if printed or stamped f^^ and it need not be an actual subscription of the party's name. A signature by mark or initials is sufficient.^ ®^ However, in order to constitute a Fed. 582; Sanborn v. Sanborn, 7 Gray (Mass.) 142; Champlin v. Parish, 11 Paige (N. Y.) 405. 357 Stewart v. Eddowes, L. R. 9 C. P. 311; Reuss v. Picksley, L. R. 1 Bxch. 342; Bird v. Munroe, 66 Me. 337, HufCcut & W. Am. Gas. Cont. 92. 358 Buxton V. Rust, L. R. 7 Excb. 1, 279. 359 Buxton V. Rust, L. R. 7 Bxch. 1, 279; Louisville, A. & V. Co. V. Lorick, 29 S. G. 533. 360 Gibson v. Holland, L. R. 1 C. P. 1; Kleeman v. Collins, 9 Bush (Ky.) 460; Moore v. Mountcastle, 61 Mo. 424; Cunningham v. Wil- liams, 43 Mo. App. 629; Peabody v. Speyers, 56 N. Y. 230. 361 Little V. Dougherty, 11 Colo. 103 ; Whaley v. Hinchman, 22 Mo. App. 483; Trevor v. "Wood, 36 N. Y. 307. 362 Anson, Cont. (8th Ed.) 68; Bennett v. Brumfitt, L. R. 3 C. P. 28; Drury v. Young, 58 Md. 546. 363 Anson, Cont. (8th Ed.) 68; Baker v. Dening, 8 Adol. & B. 94; Salmon Falls Mfg. Go. v. Goddard, 14 How. (U. S.) 447; Sanborn v. Flagler, 9 Allen (Mass.) 474; Palmer y. Stephens, 1 Denio (N. Y.) 471. (600) Ch. 6] STATUTE OP FRAUDS. § 30S signature, the mark or sign must be intended as such, and as such to be a recognition of the contract.^®* The signature need not be subscribed at the end of the mem- orandum. It may be at the top, bottom, middle, or side f^'^ and it matters not for what purpose the signature is added to the memorandum, so long as it was placed there to attest the document as that which contains the terms of the con- tract.'®® Signature by agent. A signature of the memorandum by the agent of the party to be charged is suiBcient, being expressly authorized by the statute itself,*®^ and it is a sufficient signing, even where the agent signs in his own name, if he does so in behalf of the As to whether sealing the memorandum is a sufficient signing of the same, within the meaning of the statute of frauds, see page 518, supra. As to whether the statute of frauds requires a contract for the sale of land to be sealed, see page 515, supra. 364 Anson, Cont. (8th Ed.) 68; Pollock, Cont. 162; Boardman v. Spooner, 13 Allen (Mass.) 353. SS5 Anson, Cont. (8th Ed.) 68; Ogilvie v. Foljambe, 3 Mer. 53; Barry v. C!oombe, 1 Pet. (U. S.) 640; Wise v. Ray, 3 G. Greene (Iowa) 430; Drury v. Young, 58 Md. 546; Coddington v. Goddard, 16 Gray (Mass.) 436; Penniman v. Hartshorn, 13 Mass. 87; Clason's Ex'rs V. Bailey, 14 Johns. (N. Y.) 484, 486. It is otherwise where the statute requires the memorandum to be "subscribed." In such case, the signature must appear at the end of the writing. James V. Patten, 6 N. Y. 9; Champlin v. Parish, 11 Paige (N. Y.) 405; Davis V. Shields, 26 Wend. (N. Y.) 351; Vielie v. Osgood, 8 Barb. (N. Y.) 130. 366 Pollock, Cont. 163 ; Jones v. Victoria Graving Dock Co., 2 Q. B. Div. 314, 323; Barry v. Coombe, 1 Pet. (U. S.) 640; Drury v. Young, 58 Md. 546; Tufts v. Gold Min. Co., 14 Allen (Mass.) 407; Argus Co. V. Mayor, 55 N. Y. 495; Himrod Furnace Co. v. Cleveland & M. R. Co., 22 Ohio St. 451. 367 Western Union Telegraph Co. v. Chicago & P. R. Co., 86 111. 246; Hunter v. Giddings, 97 Mass. 41; Gerli v. Poidebard Silk Mfg. Co., 57 N. J. Law, 432; Clason's Ex'rs v. Bailey, 14 Johns. (N. Y.) 484, HufCcut & W. Am. Cas. Cont. 102. (601) § 305 FORM OF CONTRACT. [Ch. 6 principal,*** parol evidence being admissible to show the fact of agency.*®^ One party cannot act as the agent of the other in this behalf f^ but a person who is the agent of only one party in the transaction may be the agent of the other party also for the purpose of signature.^^^ In the case of a sale at auction, the auctioneer acts as agent of both seller and buyer, and accordingly he may sign the memorandum in behalf of each ;^^^ and this is true of a broker also.*''* M, common law, power to sign the memorandum may be conferred by parol;*''* but this rule has been modified in some states so far as to require a power to sign a memoran- 368 Wiener v. Whipple, 53 Wis. 298. 369 See page 591, supra. 370 Farebrother v. Simmons, 5 Barn. & Aid. 333; Sharman v. Brandt, L. R. 6 Q. B. 720; Carlisle v. Campbell, 76 Ala. 247; Bent v. Cobb, 9 Gray (Mass.) 397; Adams v. Scales, 1 Baxt. (Tenn.) 337. 3T1 Pollock, Cont. 163; Batturs v. Sellers, 5 Har. & J. (Md.) 117. See Murphy v. Boese, L. R. 10 Exch. 126. 372 Adams v. McMillan, 7 Port. (Ala.) 73; Gill v. Hewett, 7 Bush. (Ky.) 10; Pike v. Balch, 38 Me. 302; Singstack's Ex'rs v. Harding, 4 Har. & J. (Md.) 186; Morton v. Dean, 13 Mete. (Mass.) 385; John- son V. Buck, 35 N. J. Law, 338; First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; semble. Meadows v. Meadows, 3 McCord (S. C.) 458; Davis v. Robertson, 1 Mill, Const. (S. C.) 71; Walker v. Herring, 21 Grat. (Va.) 678. To satisfy the statute, the memoran- dum must be signed by the auctioneer. An unsigned entry in his books is not sufficient. Gill v. Bicknell, 2 Cush. (Mass.) 355; Raf- ferty v. Sougee, 63 N. H. 54. A guardian who acts as auctioneer in selling the land of his ward under license of court may not sign for the purchaser, however, since he (the guardian) is a party in interest as well as a party in terms. Bent v. Cobb, 9 Gray (Mass.) 397. 373 Rucker v. Cammeyer, 1 Esp. 105 ; Grant v. Fletcher, 5 Barn. & C. 436; Coddington v. Goddard, 16 Gray (Mass.) 436; Newberry V. Wall, 84 N. y. 576; Clason's Ex'rs v. Bailey, 14 Johns. (N. Y.) 484, Huffcut & W. Am. Cas. Cont. 102. 374 Roehl V. Haumesser, 114 Ind. 311 ; Bigler v. Baker, 40 Neb. 325. (602) Ch. 6] STATUTE OF FRAUDS. § 307 dum of a contract relating to real estate to be in writing. However, it is probably the law in all jurisdictions that, if a man's signature is signed to a memorandum at his dictation and in his presence by another person, it is in effect a suffi- cient signature of the writing.^'^^ § 306. Delivery of memorandum. Ordinarily a memorandum takes the contract out of the operation of the statute of frauds, even though it is not de- livered by the signing party f^ but this rule does not apply where the writing takes the form of a deed of real estate or a contract to convey real estate, and in these cases the writing must be delivered, else it has no effect. ''^^ 5 307. Separate writings. While all the terms of the contract must be in writing m order to satisfy the statute of frauds, yet these terms need not appear in the same instrument. A sufficient memorau- •diim may donsist of ^several papers.*'''® Thus, the statute 375 Morton v. Murray, 176 111. 54. 3T6 Gibson v. Holland, L. R. 1 C. P. 1; Johnson v. Dodgson, 2 Mees. & W. 653; Drury v. Young, 58 Md. 546. 377 Day V. Lacasse, 85 Me. 242; Parker v. Parker, 1 Gray (Mass.) 409; Comer v. Baldwin, 16 Minn. 172 (Gil. 151); Johnson v. Brook, 31 Miss. 17; Wier v. Batdorf, 24 Neh. 83; Cagger v. Lansing, 43 N. y. 550; Popp y. Swanke, 68 Wis. 364. A delivery in escrow is sufficient. Jenkins v. Harrison, 66 Ala. 345. 378 Anson, Cont. (8th Ed.) 66; Reuss v. Picksley, L. R. 1 Exch. 342; Bayne v. Wiggins, 139 U. S. 210; Western Union Telegraph Co. V. Chicago & P. R. Co., 86 111. 246; Freeland v. Ritz, 154 Mass. 257; Rhoades v. Castner, 12 Allen (Mass.) 130; Lent v. Padelford, 10 Mass. 230; Stevens v. City of Muskegon, 111 Mich. 72; Olson v. Sharpless, 53 Minn. 91; Heideman v. Wolf stein, 12 Mo. App. 366; Brown v. Whipple, 58 N. H. 229; Louisville Asphalt Varnish Co. v. Lorick, 29 S. C. 533; Ide v. Stanton, 15 Vt. 685. Slip contracts In the form prescribed by the rules of the cotton exchange constitute Ijought and sold notes, which, taken in connection with those rules, afford a sufficient memorandum of agreement. Bibb v. Allen, 149 XT. S. 481. (603) § 307 FORM OF CONTRACT. [Ch. 6 may be satisfied if all the terms of the contract appear from a correspondence between the parties.^'® When a memoran- dum consists of several papers, however, they must appear on their face to be connected parts of one transaction. Parol evidence is not admissible to show their connection.^*" But this rule is not absolute. If there are two papers, and each obviously refers to another, though not specifically to tha other, and the two, when connected, make a contract without further explanation, parol evidence is admissible to connect them.^*^ If the several writings said to evidence the contract do not show a meeting of minds, then of course, as has already been explained, there is no contract of any sort, for want of the element of agreement. ^^^ XVI. Effect of Noncompliance with Statute. The, effect of a failure to comply with the statute of frauds 378 Anson, Cont. (8th Ed.) 66; Watts v. Ainsworth, 6 Law T. (N. S.) 252, 1 Hurl. & C. 83; White v. Breen, 106 Ala. 159; Brewer v. Horst & Lachmund Co., 127 Cal. 643; Sanborn v. Nockin, 20 Minn. 178 (Gil. 163); Wharton v. Stoutenburgh, 35 N. J. Eq. 266; Peck V. Vandemark, 99 N. Y. 29. 380 Anson, Cont. (8th Ed.) 66; Pollock, Cont. 163; Boydell v. Drummond, 11 East, 142; Peirce v. Corf, L. R. 9 Q. B. 210; Adams V. McMillan, 7 Port. (Ala.) 73; Repetti v. Malsak, 6 Mackey (D. C.) 366; North v. Mendel, 73 Ga. 400; Ridgway v. Ingram, 50 Ind. 145; Watt v. Wisconsin Cranberry Co., 63 Iowa, 730; O'Donnell v. Leeman, 43 Me. 158, Huffcut & W. Am. Cas. Cont. 100; Frank v. Miller, 38 Md. 450; Francis v. Barry, 69 Mich. 311; Tice v. Free- man, 30 Minn. 389; Brown v. Whipple, 58 N. H. 229; Johnson v. Buck, 35 N. J. Law, 338; Coe v. Tough, 116 N. Y. 273; Mayer v. Adrian, 77 N. C. 83; Thayer v. Luce, 22 Ohio St. 62; Blair v. Snod- grass, 1 Sneed (Tenn.) 1. 381 Anson, Cont. (8th Ed.) 66; Long v. Millar, 4 C. P. Div. 454; Oliver v. Hunting, 44 Ch. Div. 205; Beckwith v. Talbot, 95 U. S. 289; Oliver v. Alabama Gold Life Ins. Co., 82 Ala. 417, 426; Lee v. Ma- honey, 9 Iowa, 344. 382 See chapter II., suvra. (604) Ch. 6] STATUTE OF FRAUDS. g 3O7 is to render the contract, not void nor even voidable, but merely unenforceable by action. An action may not be maintained where, although itTsTot brought to enforce any right ex contractu, the right which is the foundation of the plaintiff's claim depends on an oral agree- ment within the statute. However, the performance of an oral promise within the statute may constitute a sufficient considera- tion for an undertaking on the part of the promisee. The doctrine of estoppel in pais is applied in some jurisdic- tions, without regard to the provisions of the statute of frauds. In the absence of facts raising an estoppel, part performance of an oral contract within the statute does not render the prom- ise enforceable at law, but in equity, in most jurisdictions, the rule is otherwise. To justify equitable relief upon an oral agreement which has been partly performed, the acts of performance must have been done on the faith of an existing agreement, and with reference to that agreement, and have been of such a kind that the parties cannot be restored to their original position. By the weight of authority, it is not sufficient to justify re- lief that the acts of part performance evidence some indefinite agreement. They must be unequivocal and satisfactory evi- dence of the particular agreement pleaded and proved. As a rule, a verbal contract within the statute can no more be made a ground of defense than a ground of demand; but, un- der some circumstances, this rule does not apply. The benefits of the statute are personal. No one but the party to be charged or his privies may urge the statute either as a defense or as ground for affirmative relief. The benefit of the statute may be waived by the party to be charged. As to whether the statute must be specially pleaded in order to save that ground of defense, the cases are not in accord. By the weight of authority, the statute affects the remedy only, and not the validity of the contract. The question whether the contract is enforceable depends, therefore, upon the law of the place where it is sought to be enforced, regardless of the law (605) § 307a FORM OF CONTRACT. [Ch. 6 of either the place where the contract was made or the place where it was to be performed. While an oral promise within the statute of frauds may not be enforced in an action at law, yet in some cases, where benefits have been received thereunder, the law permits a recovery quasi ex contractu. (1) If an oral contract has been performed by the plaintiff, either in whole or in part, and the defendant refuses to perform on his part, the plaintiff is entitled to compensation for such benefits as the defendant has received from the performance, whether by way of money paid or goods delivered to him, or services performed for him. (2) If, however, the defendant is not in default under the oral contract, but is willing to perform, he will not, as a rule, be required to pay for the benefits received from the plaintiff's part performance of the contract. § 307a. In general. The fourth section of the statute, it will be remembered, provides that "no action shall be brought" on the prescribed contracts unless the statute is complied with ; and the seven- teenth section provides that no contract for the sale of goods, etc., "shall be allowed to be good," except upon compliance with the statute. What is now to be said in reference to the effect of a failure to comply with the statute is to be taken as the law in only such of the American states as have adopted the statute in the terms quoted above. A verbal contract fall- ing within the statute of frauds is generally spoken of by the courts as being voidable,^*^ and sometimes as being void.^*"* In strict propriety, however, the effect of a failure to comply with the statute of frauds is to render the contract, not void nor even voidable, but merely unenforceable by action, since 383 Cooper V. Hornsby, 71 Ala. 62; Fowler v. Burget, 16 Ind. 341; Sims V. Hutchins, 8 Smedes & M. (Miss.) 328; Minns v. Morse, 15 Ohio, 568. 384 Head v. Goodwin, 37 Me. 181; Daniel v. Frazer, 40 Miss. 507. (606) Ch. 6] STATUTE OF FRAUDS. § 307a it is incapable of proof. ^®^ And this is true as to the seven- teenth as well as to the fourth section.^®" In some states, the ■ statute expressly provides that the prescribed contracts "shall be void" unless the statute is observed, in which case, of course, the rule just laid down does not obtain. The distinction between void, voidable, and unenforceable agreements has been pointed out in another connection. It is well illustrated by_ the case of a creditor who receives pay- ments without instruction as to their application. The law permits him to appropriate them to any one of several debts which he may hold against the payor, even though the debt to which he applies it is founded on a verbal contract which falls within the statute of frauds. If the oral agreement were void, instead of merely unenforceable, the rule would be otherwise.®*''^ It follows from what has been said that an action cannot be maintained when, although it is not brought to enforce any right ex contractu, the right which is the foundation of the plaintiff's claim depends on an oral agreement within the statute of frauds.*^* Thus, if a man verbally buys a grow- 386 Anson, Cont. (Sth Ed.) 68; Leroux v. Brown, 12 C. B. 801; Maddison v. Alderson, 8 App. Cas. 467, 488; Downer v. Chesebrough, 36 Conn. 39; Wills v. Ross, 77 Ind. 1; Stout v. Ennis, 28 Kan. 706; Kleeman v. Collins, 9 Bush (Ky.) 460; Crane v. Gough, 4 Md. 316; La Du-King Mfg. Co. v. La Du, 36 Minn. 473; Crawford v. Parsons, 18 N. H. 293; Newton v. Bronson, 13 N. Y. 587; Browning v. Parker, 17 R. I. 183; Montgomery v. Edwards, 46 Vt. 151; Hawley v. Moody, 24 Vt. 603. Noncompliance simply enables either party to rescind. Brakefield v. Anderson, 87 Tenn. 206; Winters v. Elliott, 1 Lea (Tenn.) 676. Contra, Hawley v. Moody, 24 Vt. 603. 386 Pollock, Cont. 605; Anson, Cont. (4tli Ed.) 67; Maddison v. Al- derson, 8 App. Cas. 488; Bird v. Munroe, 66 Me. 337, HufEcut & W. Am. Cas. Cont. 92; Townsend v. Hargraves, 118 Mass. 325. 387 Murphy v. Webber, 61 Me. 478; Haynes v. Nice, 100 Mass. 327; Rohan v. Hanson, 11 Cush. (Mass.) 47. As to the distinction be- tween void, voidable, and unenforceable, see page 30, supra. 388 Pollock, Cont. 605; semUe, Banks v. Crossland, L. R. 10 Q. B. 97, 100; Davis v. Moore, 9 Rich. Law (S. C.) 215. (607) § 307a FORM OF CONTRACT. [Ch. 6 ing crop which constitutes a part of the realty, and enters on the close with a horse and cart to carry the crop away, he cannot maintain an action of trespass against the seller for turning the horse and cart out of the field, and prevent- ing the crop from being taken, since this would, in effect, charge the seller on the contract.^^* The operation of section seventeen, which relates to sales of goods, is not confined to actions on the contract itself, but it affects rights of property as against third persons.^®" An illustration of this occurs where goods sold by oral contract are consigned to the seller and lost in transit. The seller cannot maintain an action against the carrier for their loss.^^^ It should be observed, however, that, even though an oral promise is within the statute, yet, if the promisor performs the act as agreed, he may recover the consideration which the promisee agreed to pay,^"^ unless the consideration itself is of such a nature that the reciprocal promise to pay it is within the statute.^^® And an oral promise to convey real estate is a sufficient consideration for a promissory note given for the price, and, if the vendor is able, ready, and willing to perform, he may recover upon the note.^®* 380 Carrington v. Roots, 2 Mees. & W. 248. 39oMalian v. United States, 16 Wall. (U. S.) 143; O'Neill v. New York Cent. & H. R. R. Co., 60 N. Y. 138; Hicks v. Cleveland, 48 N. Y. 84. 391 Coombs V. Bristol & E. Ry. Co., 3 Hurl. & N. 510. 392 Butler v. Lee, 11 Ala. 885; Price v. Sturgis, 44 Cal. 591; Wor- den v. Sharp, 56 111. 104; Curran v. Curran, 40 Ind. 473; Stephenson V. Arnold, 89 Ind. 426; Mason v. Mason, 3 Bush (Ky.) 35; Nicker- son V. Saunders, 36 Me. 413; Nutting v. Dickinson, ,8 Allen (Mass.) 540; Galley v. Galley, 14 Neb. 174; Whitbeck v. Whitbeck, 9 Cow. (N. Y.) 266; Bowen v. Bell, 20 Johns. (N. Y.) 338; Zabel v. Schroed- er, 35 Tex. 308; King v. Smith, 33 Vt. 22; Thayer v. Viles, 23 Vt. 494. See, also, Mott.v. Hurd, 1 Root (Conn.) 73. 393 Patterson v. Cunningham, 12 Me. 506; Townsend v. Town- send, 6 Mete. (Mass.) 319. 394 Jones V. Jones, 6 Mees. & W. 84; Gillespie v. Battle, 15 Ala (608) Ch. 6] STATUTE OF FRAUDS. S 308 A complaint on a eontract falling within the scope of the statute of frauds need not allege that the contract is in writ- ing. The fact of its being oral is a matter of defense.^*^ And this rule applies also to a cross complaint.^*® § 308. Part performance — ^Estoppel. There has developed in the court of chancery the doc- trine of estoppel in pais, which operates for the advance- ment of justice in proper cases without deed or record. This doctrine has come to be applied in many cases by courts of common-law jurisdiction, as well as by the courts of equity; and it is applied in furtherance of justice in many jurisdictions, without regard to the provisions of the statute of frauds.^*'' — — Part performance at law. In the absence of facts raising an estoppel in pais, part performance of an oral contract which is within the statute of frauds does not render the promise enforceable at law; that is to say, part performance does not take the contract 276; Schierman v. Beckett, 88 Ind. 52; Edelin v. Clarkson's Bx'rs, 3 B. Mon. (Ky.) 31; McGowen v. West, 7 Mo. 569; Ott v. Garland, 7 Mo. 28; Crutchfield v. Donathon, 49 Tex. 691. See, also. Cocking T. Ward, 1 C. B. 858. 395 Young V. Austen, L. R. 4 C. P. 553; Hurlburt v. Wheeler & Wilson Mfg. Co., 38 Ark. 594; Bcker v. McAllister, 45 Md. 290; Mul- laly V. Holden, 123 Mass. 583; Benton v. Schulte, 31 Minn. 312; Sweetland v. Barrett, 4 Mont. 217; Marston v. Swett, 66 N. Y. 206; Horm V. Shamblin, 57 Tex. 243. 396 Nunez v. Morgan, 77 Cal. 427. 397 Brown V. Wheeler, 17 Conn. 345; Miller v. McManis, 57 111. 126; Brightman v. Hicks, 108 Mass. 246; Vicksburg & M. R. Co. v. Ragsdale, 54 Miss. 200; De Herques v. Marti, 85 N. Y. 609; Irion V. Mills, 41 Tex. 310. The doctrine is denied in some states, in actions at law, in so far as it migjit affect the title to real estate. Kelly V. Hendricks, 57 Ala. 193; Wimmer v. Ficklin, 14 Bush (Ky.) 193; Hayes v. Livingston, 34 Mich. 384. (609") Law of Cent— 39 § 308 FORM OF CONTRACT. [Ch. 6 out of the operation of the statute, so as to sustain an action at law for damages for breach thereof.*'® Part performance in equity. The hardships resulting from a strict enforcement of the statute of frauds in courts of law have been somewhat miti- gated in equity. Where one of the parties has performed his part of a contract falling within the operation of the statute, a court of equity will permiit the contract to be proved by oral evidence, holding that to allow the other party to urge the noncompliance with the statute as a defense in such a case would be to permit the perpetration of a fraud.*®® "This doctrine of part performance is not in di- rect contradiction of the statute of frauds," says Sir Fred- erick Pollock.*"" "It would be erroneous to say that a court of equity accepts proof of an oral agreement and part per- formance as a substitute for the evidence required by the statute.*"^ The plaintiff's right in the first instance rests 398 Hubert v. Turner, 4 Scott, N. R. 486, Car. & M. 351, 6 Jur. 194; Warner v. Texas & P. Ry. Co., 4 C. C. A. 673, 54 Fed. 922; Kidder V. Hunt, 1 Pick. (Mass.) 328; Baldwin v. Palmer, 10 N. Y. 232; Davis V. Moore, 9 Rich. Law (S. C.) 215. In some states it is de- clared otherwise by statute. 399 Nunn V. Fabian, 1 Ch. App. 35; Brashier v. Gratz, 6 Wheat. (U. S.) 528; Brewer v. Brewer, 19 Ala. 481; Weber v. Marshall, 19 Cal. 447; Annan v. Merritt, 13 Conn. 478; Cannon v. Collins, 3 Del. Ch. 132; Burnett v. Blackmar, 43 Ga. 569; Morrison v. Herrick, 130 111. 631; Watson v. Mahan, 20 Ind. 223; Fox's Heirs v. JLiongley, 1 A. K. Marsh. (Ky.) 388; Gupton v. Gupton, 47 Mo. 37; Galley V. Galley, 14 Neb. 174; Ham v. Goodrich, 33 N. H. 32; Nibert v. Baghurst, 47 N. J. Bq. 201; Dean v. Anderson, 34 N. J. Bet. 496; Beardsley v. Duntley, 69 N. Y. 577; Watson v. Brb, 33 Ohio St. 35; Pugh V. Good, 3 Watts & S. (Pa.) 56; Davis v. Moore, 9 Rich. Law (S. C.) 215; Brinton v. Van Cott, 8 Utah, 480; Meach v. Stone, 1 D. Chip. (Vt.) 182; Coyle v. Davis, 20 Wis. 564. ■100 Pollock, Cont. 612. 401 Courts of equity are bound by the statute of frauds the same as courts of law. Abell v. Calderwood, 4 Cal. 90 ; Patterson v. Yeaton, (610) Ch. 6] STATUTE OF FRAUDS. § 308 not on contract, but on a principle akin to estoppel, the de- fendant's conduct being equivalent to a continuing state- ment to some such effect as this : 'It is true that our agree- ment is not binding in law, but you are safe, as far as I am concerned, in acting as if it were.' A man cannot be allowed to set up the legal invalidity of an agreement on the faith of which he has induced or allowed the other party to alter his position."'"'^ > While it has been held that this doctrine does not apply to contracts that do not relate to an interest in real estate,*"* the better opinion is that it applies to all cases in which a court of equity would entertain a suit for specific perform- ance were the contract in writing.*"* A court of equity will not ordinarily grant redress on a parol contract because of a part performance which is ca- pable of full pecuniary measurement.**"^ To justify relief, the part performance must have been done by the party seeking to enforce the agreement. It is immaterial whether or not the party he seeks to charge has performed, unless, as we have seen, both parties have per- formed.*"" 47 Me. 308; Skipwith v. Dodd, 24 Miss. 487; Watson y. Erb, 33 Ohio St. 35. *02 Caton V. Caton, 1 Ch. App. 137, 148 ; Plickinger v. Shaw, 87 Cal. 126; Tate's Adm'r v. Jones' Ex'r, 16 Fla. 216; Temple v. John- son, 71 111. 13; Edwards v. Fry, 9 Kan. 417; Green v. Jones, 76 Me. 563; Glass v. Hulbert, 102 Mass. 24; Freeman v. Freeman, 43 N. Y. 34; Wright v. Pucket, 22 Grat. (Va.) 370. ^ *03 Britain v. Rossiter, 11 Q. B. Div. 123 ; McElroy v. Ludlum, 32 N. J. Eq. 828. And see Osborne v. Kimball, 41 Kan. 187; Wahl v. Barnum, 116 N. Y. 87; Billington v. Cahill, 51 Hun (N. Y.) 132. An oral contract which is not to be performed within a year from the time it is made will not be specifically enforced in equity where its subject-matter is chattels or personal services. Equitable Gas Light Go. V. Baltimore Coal Tar & Mfg. Co., 63 Md. 285. *o* Anson, Cont. (8th Ed.) 70; McManus v. Cooke, 35 Ch. Div. 6917. *05 Owens V. McNally, 113 Cal. 444; Webster v. Gray, 37 Mich. 37. M6 Pollock, Cont. 612; Caton v. Caton, 1 Oh. App. 148; Glass v. (611) § 308 FORM OF CONTRACT. [Ch. 6 In some jurisdictions the doctrine of part performance has been limited,*"^ and in others it does not prevail in any form.^"* Sufficiency of part peri-ormance. Part performance of an oral agreement falling within the operation of the statute of frauds entitles the party to equi- table relief "if the acts of part performance have been done on the faith of an existing agreement, and have been of such & kind that the parties cannot be restored to their original position, and if the existence of an agreement is reasonably to be inferred from the acts themselves, or they are unequivo- cally referable to the contract."*"" To justify a court of equity in enforcing the oral agreement, three things are nec- essary: First, the agreement must be certain and definite in its terms; second, the acts proved in part performance miist refer to, result from, or be made in pursuance of the agreement in evidence ; third, the agreement must be so far executed that a refusal of full execution will operate as a fraud upon the parly seeking relief, and place him in a situa- tion which does not lie in compensation.*^" jSTothing which is only ancillary or preparatory is suiScient part perform- ance. It musf be a direct act, which is intended to be a Hulbert, 102 Mass. 24; Luckett v. Williamson, 37 Mo. 388. See page 541, supra, as to effect of full performance. 4(17 Douglass V. Snow, 77 Me. 91; Potter v. Jacobs, 111 Mass. 32. 408 Niles V. Davis, 60 Miss. 750 ; Beaman v. Buck, 9 Smedes & M. (Miss.) 210; Dunn v. Moore, 38 N. C. 364; Ridley v. McNairy, 2 Humph. (Tenn.) 174. A court of equity cannot give effect to an oral contract declared void by the statute of frauds, under pretense of aiding an imperfect .attempt to execute a contract. Bloomfield State Bank v. Miller, 55 J^eb. 243, 44 L. R. A. 387. 409 Pollock, Cont. 611. 410 Owens v. McNally, 113 Cal. 444 ; Osborn v. Phelps, 19 Conn. «3; Brown v. Brown, 33 N. J. Eq. 650; Wright v. Pucket, 22 Grat. ,(Va.) 374; Gallagher v. Gallagher, 31 W. Va. 9. (612) See page 308, infra. 80 Littlefleld v. Shee, 2 Barn. & Add. 811, Langdell, Cas. Cont. 341; Meyer v. Haworth, 8 Adol. & E. 467, 35 E. C. L. 685, Langdell, Cas. Cont. 342; Dixie v. Worthy, 11 Upper Can. Q. B. 328; Watson v. Dunlap, 2 Cranch, C. C. 14, Fed. Cas. No. 17,282; Hetherington v. Hixon, 46 Ala. 297; Putnam v. Tennyson, 50 Ind. 456; Porterfield v. Butler, 47 Miss. 165, 175; Musiek v. Dodson, 76 Mo. 624; Kent v. Rand, 64 N. H. 45; Watkins v. Halstead, 2 Sandf. (N. Y.) 311; Wileox V. Arnold, 116 N. C. 708; Hayward v. Barker, 52 Vt. 429. And see Waters v. Bean, 15 Ga. 358. This rule does not invalidate a promise by a widow to pay a note exeeuted by her husband and herself for a debt eontracted by her before the marriage. Parker V. Cowan, 1 Heisk. (Tenn.) 518. 81 Lee V. Muggeridge, 5 Taunt. 36, Langdell, Cas. Cont. 333; Vanee v. Wells, 8 Ala. 399; New Hanover Bank v. Bridgers, 98 N. C. 67; Holden v. Banes, 140 Pa. 63; Hemphill v. McClimans, 24 Pa. 367. This is so on principle in those states where a moral obliga- tion, will support a promise. 82 Goulding v. Davidson, 26 N. Y. 604. (654) Ch. 7] PAST CONSIDERATION. § 328 subsequent promise will be sustained without a n»^w consid- eration,^^ — a distinction that originated in equity.*** Bankruptcy. If a person has been discharged as a bankrupt, a subsequent promise to pay a balance due on a pre-existing debt is bind- ing upon him.^^ Bj the weight of authority, the new prom- ise may be made at any time after the adjudication of bank- ruptcy. Subject to this rule, the bankrupt is bound by the S3 Viser v. Bertrand, 14 Ark. 267; Sherwin v. Sanders, 59 Vt. 499, 59 Am. Rep. 750. Si Pawley v. Vogel, 42 Mo. 291. 85 Trueman v. Penton, Cowp. 544, Langdell, Cas. Cont. 318; Smith V. Riclimond, 19 Cal. 476; Anderson v. Clark, 70 Ga. 362; Carey v. Hess, 112 Ind. 398; Andrieu's Succession, 44 La. Ann. 103; Balti- more & O. R. Co. V. Clark, 19 Md. 509; Lerow v. Wilmarth, 7 Allen (Mass.) 463; Way v. Sperry, 6 Cush. (Mass.) 238, 52 Am. Dec. 779, Langdell, Cas. Cdnt. 384; Edwards v. Nelson, 51 Mich. 121; Craig V. Seitz, 63 Mich. 727; Wislizenus y. O'Fallon, 91 Mo. 184; Second Nat. Bank of Nashua v. Wood, 59 N. H. 407; Christie v. Bridgman, 51 N. J. Eq. 331; Dusenbury v. Hoyt, 53 N. Y. 521, Huffcut & W. Am. Cas. Cont. 208; Kull v. Farmer, 78 N. C. 339; Turner v. Chrisman, 20 Ohio, 332; Earnest v. Parke, 4 Rawle (Pa.) 452; Hobough v. Murphy, 114 Pa. 358; Kenyon v. Worsley, 2 R. I. 341, 344; Farmers' Bank v. Flint, 17 Vt. 508. This rule does not apply to a promise of a third person to pay a discharged bankrupt's debts, and such a promise, if otherwise voluntary, is void. McElven v. Sloan, 56 Ga. 208. Contra, Webster v. Le Compte, 74 Md. 249. In case the discharged debt was in the form of a judgment, a new promise to pay it does not of itself remove the bar, and, to make the promise available, some proceeding must be taken to revive the judgment. An execution cannot issue until this is done. Graham V. Dreutzer, 75 Wis. 558, 17 Am. St. Rep. 205. Many cases seem to hold that the new promise is the real cause of action, and the discharged debt merely the consideration for the promise. Upon this theory, the new promise does not operate as a waiver of the discharge, but constitutes a new contract. Katz v. Moesslnger, 110 111. 372; Higgins v. Dale, 28 Minn. 126; Dupuy v. Swart, 3 Wend. (N. Y.) 139; Shippey v. Henderson, 14 Johns. (N. Y.) 178, Langdell, Cas. Cont. 368. (655) § 328 CONSIDERATION. [Ch. 7 promise, even though he makes it before he has been dis- charged.®® To revive the discharged debt, the new promise must be clear, distinct, and unequivocal,®^ and if it is coupled with any conditions, such as a condition as to time or abil- ity to pay, it must be shown that the conditions have been fulfilled.®® A discharge in state insolvency proceedings may stand on a different footing. If, by law, the creditor has an option whether he will share in the assets and discharge the debt, or take nothing out of the estate and hold the debtor liable in fiill, and he exercises this option by electing to share in the assets and give a discharge, the release so given is volun- tary, and a subsequent promise by the debtor to pay the bal- ance due is without consideration, and void.®® 86 Earle v. Oliver, 2 Bxch. 71; Kirkpatriok v. Tattersall, 13 Mees. & W. 770; Knapp v. Hoyt, 57 Iowa, 591; Lerow v. Wilmarth, 7 Allen (Mass.) 463; Wiggin v. Hodgdon, 63 N. H. 39. Contra, Ogden V. Redd, 13 Bush (Ky.) 581. 87 Allen V. Ferguson, 18 Wall. (U. S.) 1; Hubbard v. Farrell, 87 Ind. 215; McDougall v. Page, 55 Vt. 187. 88 Baltimore & O. R. Co. v. Clark, 19 Md. 509; Yates' Adm'rs v. Hallingsworth, 5 Har. & J. 216; Smith v. Stanchfield (Minn.) 87 N. W. 917; Wiggin v. Hodgdon, 63 N. H. 39. 89 Montgomery v. Lampton, 3 Mete. (Ky.) 519; Warren v. Whit- ney, 24 Me. 561, 41 Am. Dec. 406; Grant v. Porter, 63 N. H. 229; Crans v. Hunter, 28 N. Y. 394; Shepard v. Rhodes, 7 R. I. 470, Huff- cut & W. Am. Cas. Cont. 210. The rule would be otherwise in those jurisdictions where a moral obligation will support a subsequent promise. Baeder v. Barton, 11 Wkly. Notes Cas. 165, 25 Alb. Law J. 377. Except in those jurisdictions, therefore, the rule applies to all sorts of voluntary releases, as well as to releases in insolvency proceedings. Hale v. Rice, 124 Mass. 292; Snevily v. Read, 9 Watts (Pa.) 396. Thus, a promise to pay a demand which the promisee had voluntarily released for the purpose of rendering the promisor a competent witness is without consideration, the moral obligation to pay not being sufficient. Valentine v. Foster, 1 Mete. (Mass.) 520, Langdell, Cas. Cont. 374. Contra, Willing v. Peters, 12 Serg. & R. (Pa.) 177. Where the original debt is extinguished by the voluntary act of (656) Ch. 7] PAST CONSIDERATION. g 328 Limitations. A debt barred by the statute of limitations is a valid con- sideration for a subsequent promise to discharge it.^" This rule rests upon the theory that the statute of limitations does not extinguish the contract, but merely operates to bar the remedies for its enforcement. The new promise is not, therefore, regarded as a new contract,®^ and consequently, the parties, even though only a part payment Is made, a new prom- ise to pay the balance Is without consideration. Phelps v. Dennett, 57 Me. 491; Ingersoll t. Martin, 58 Md. 67, 42 Am. Rep. 322; Mason V. Campbell, 27 Minn. 54; Stafford v. Bacon, 1 Hill (N. Y.) 532, 37 Am. Dec. 366, 2 Hill, 353, showing the opinion in 25 Wend. (N. Y.) 384, to have been published by mistake. Contra, Jamison v. Ludlow, 3 La. Ann. 492. 90 Barnes v. Hedley, 2 Taunt. 184, Langdell, Cas. Cont. 327; Lons- dale V. Brown, 4 Wash. C. C. 86, Fed. Cas. No. 8,493; Beardsley v. Hall, 36 Conn. 270; Newlln v. Duncan, 1 Har. (Del.) 204; Comer v. Allen, 72 Ga. 1; Norton v. Colby, 52 111. 198; French v. Motley, 63 Me. 326; Ilsley v. Jewett, 3 Mete. (Mass.) 439, Langdell, Cas. Cont. 380; Foster v. Shaw, 2 Gray (Mass.) 148; Young v. Perkins, 29 Minn. 173; Brisbin v. Farmer, 16 Minn. 215 (Gil. 187); Chambers v. Rubey, 47 Mo. ^^-i Harper v. Fairley, 53 N. Y. 442; Simonton v. Clark, 65 N. C. 525; Wesner v. Stein, 97 Pa. 322; Shepard v. Rhodes, 7 R. I. 470, 472, Huffcut & W. Am. Cas. Cont. 210; Womack v. Wo- mack, 8 Tex. 397, 58 Am. Dec. 119. The subsequent promise will not be enforced, however, if the original obligation was without consideration, and hence void. Sul- livan V. Sullivan, 99 Cal. 187. The new promise must be made to the creditor or his agent. A promise made to a stranger does not remove the bar of the statute. Keener v. CruU, 19 111. 189; Spangler v. Spangler, 122 Pa. 358, 9 Am. St. Rep. 114. In reviving a barred debt, the debtor may impose conditions by which the creditor will be bound. Shrelner v. Cummins, 63 Pa. 374. Payment of a debt barred by limitations cannot be recovered back. Hubbard v. City of Hickman, 4 Bush (Ky.) 204. And see Jamison V. Ludlow, 3 La. Ann. 492. 91 Ware v. Curry, 67 Ala. 274. This is really a question of waiver of a rule of procedure. Pollock, Cont. 171. Even in those states where the statute not only bars the right (657) Law of Cont. — 42. § 328 CONSIDERATION. [Ch. 7 when an action is brought, it is usual to declare on the orig- inal contract, and not on the subsequent promise.** ■ Judgment. Where a judgment upon a particular demand, through error, omits a part of the demand, or includes more than is due, and the right to have the error corrected has been lost by lapse of time, a promise by the party thus unjustly en- riched to pay the sum omitted in the one case, or to refund the sum included in the other, is based upon a sufficient con- sideration, though past.*^ Usury. If a person borrows money at usurious rates, and after- wards the statute fixing those rates is repealed, a subsequent promise to pay the debt is binding upon him.** So, if a u-surious contract is entirely abandoned, and the transaction thus freed from usury, a subsequent promise by the borrower to pay the svim actually received by him is legal and bind- ing. *° Negotiable instruments. If the drawer or indorser of a negotiable instrument, who has been discharged by the failure of the holder to give due of action, but also extinguishes the debt, it is held that a new promise is sufficient to charge the debtor, without an additional consideration. Pittman v. Elder, 76 Ga. 371. See, to the contrary, in efEect, Smith v. Tripp, 14 R. I. 112, 116. 92Newlin v. Duncan, 1 Har. (Del.) 204. 93 Turlington v. Slaughter, 54 Ala. 195 ; Doyle v. Reilly, 18 Iowa, 108, 85 Am. Dec. 582; Thayer v. Mowry, 36 Me. 287; Bentley v. Morse, 14 Johns. (N. Y.) 468; Stebbins v. Crawford Co., 92 Pa. 289, 37 Am. Rep. 687. See Anspach v. Brown, 7 Watts (Pa.) 139. 94 Plight V. Reed, 1 Hurl. & C. 703, Langdell, Cas. Cont. 359; Houser v. Planters' Bank, 57 Ga. 95. 95 Hammond v. Hopping, 13 Wend. (N. Y.) 505; Early v. Mahon, 19 Johns. (N. Y.) 147; Shepard v. Rhodes, 7 R. I. 470, 472, HufCcut & W. Am. Cas. Cont. 210. (658) Ch. 7] GOOD CONSIDERATION. § 328 notice of dishonor, subsequently promises to pay the debt, he is bound, the promise being supported by the considera- tion of the original debt.^® To be binding, the new prom- ise must be made with full knowledge of all the material facts, and it must be clear and unequivocal. It will not be inferred from doubtful facts or uncertain language.*^ Mechanics' liens. Though a provision of a mechanic's lien law declares that no action shall be maintained on a building contract until the contractor furnishes a statement under oath of the num- ber and the names of subcontractors, yet, if the landowner promises to pay the contractor in spite of his failure to com- ply with the law, an action may be maintained on the prom- VI. Same — Good Consideration. In the law of real property, good consideration, as distin- guished from valuable consideration, is family affection, as op- posed to money or money's worth. A deed between strangers in blood must have a valuable con- sideration; but a good consideration will, as between the par- ties, support a deed between husband and wife, or relatives within the degree of nephew or cousin. In the law of contract, using that term in its strict sense, 98 Sigerson v. Mathews, 20 How. (U. S.) 496; Glidden v. Chamber- lin, 167 Mass. 486, 57 Am. St. Rep. 479; Ladd v. Kenney, 2 N. H. 340; Ross v. Hurd, 71 N. Y. 14; Bogart v. McClung, 11 Heisk. (Tenn.) 105# 97 Ross V. Hurd, 71 N. Y. 14. This knowledge may be implied from the circumstances. Glidden v. Chamberlin, 167 Mass. 486, 57 Am. St. Rep. 479. If the indorser makes the promise with full knowledge of all the material facts, he is liable, although he did not know the legal ef- fect of the omission to give the notice. Glidden v. Chamberlin, supra. 98 Morse v. Crate, 43 111. App. 513. (659) § 329 CONSIDERATION. [Ch. 7 this distinction does not prevail. Family affection does not, therefore, afford consideration for a promise. § 329. In general. The distinction between good and valuable consideration, or family affection as opposed to money value, is to be found only in the history of the law of real property.^® A good consideration is one raised by the relationship of marriage, or of blood within the degree of nephew or cousin. A val- uable consideration is money or something that is money's worth.^"" A strictly common-law conveyance of real prop- erty does not require a consideration,^"^ but as to deeds de- riving their force and validity from the statute of uses it. is otherwise. ^"^ As to the latter, a deed of bargain and sale must be based upon a consideration of money or something that is money's worth, — ^that is, the consideration must be valuable.^ *'^ A deed of covenant to stand seised, however, may be supported by a consideration consisting of the regard that is supposed to arise from consanguinity or marriage be- tween the parties, — that is, the consideration need only be good.^''* The distinction between these two forms of con- veyance does not exist in modern law, and in practice there is now but a single form of deed. The rule as to considera- 99 Anson, Cont. 79; Stovall v. Barnett's Ex'rs, 4 Litt. (Ky.) 208; Fink V. Cox, 18 Johns. (N. Y.) 145, HufEcut & W. Am. Cas. Cont. 150. 100 2 Bl. Comm. 297; 2 Washburn, Real Prop. 102; Washband v. Washband, 27 Conn. 424; Stafford v. Stafford, 41 Tex. 111. The relationship of son-in-law does not constitute a good*bonslderation. Burton v. Le Roy, 5 Sawy. 510, Fed. Cas. No. 2,217. 1013 Washburn, Real Prop. 613; Rogers v. Hillhouse, 3 Conn. 398, 402. 102 3 Washburn, Real Prop. 613; Den d. Springs v. Hanks, 27 N. C. 30. 103 3 Washburn, Real Prop. 613 ; Mildmay's Case, 1 Coke, 175a, 177. 104 3 Washburn, Real Prop. 613; Jackson v. Delancy, 4 Cow. (N. Y.) 427. (660) Oh. 7J GOOD CONSIDERATION. § 329 tion remains the same, however. A deed between strangers in blood must have a valuable consideration, but a good con- sideration will, as between the parties, support a deed be- tween husband and wife or relatives within the degree of nephew or cousin.^**^ Deeds made upon a good consideration only are considered as merely voluntary, and are frequently set aside in favor of creditors and bona fide purchasers. ^""^ As against pre-exist- ing creditors and subsequent bona fide purchasers, such con- veyances are deemed prima facie void,^"'' but as against sub- sequent creditors the transfer is valid,^"^ unless the debtor entertained an actual intent to defraud.^"® While the mere existence of natural affection as a motive for a promise has never been held to amount to a valid con- sideration, yet in some early cases it was attempted to ex- tend the doctrine of good consideration to the law of con- tract.-^^" The authority of these cases has been rejected, however, and the rule is now well settled that the regard which is supposed to arise from consanguinity or marriage between the parties will not support a promise.-' ^^ 105 BisUop, Cont. § 42. 106 2 Bl. Comm. 297; 3 Washburn, Real Prop. 613; Rockhill v. Spraggs, 9 Ind. 32. If a man conveys his property on a consideration which is merely good, as distinguished from one which is valuable, the transfer is voidable as against any creditor the grantor was owing at the time of the conveyance; and this is so, without regard either to the good intentions of the parties or to the solvency of the grantor at that time. Yeend v. Weeks, 104 Ala. 331, 53 Am. St. Rep. 50. 107 Cathcart v. Robinson, 5 Pet. (U. S.) 264. 108 Bennett v. Bedford Bank, 11 Mass. 421. 109 Yeend v. Weeks, 104 Ala. 331, 53 Am. St. Rep. 50. 110 Dutton V. Poole, 2 Lev. 210, Langdell, Gas. Cont. 170. See Williamson v. Losh, Chitty, Bills (9th Ed.) 75, note 10, Keener's Cas. 335, Langdell, Cas. Cont. 186. 111 Anson, Cont. 78; Bret v. J. S., 1 Cro. Eliz. 756, Langdell, Cas. (661) § 330 CONSIDERATION [Ch. 7 VII. Same — Doing What the Law Requires. Doing or promising what the promisor is already legally bound to do does not, as a rule, constitute consideration for a reciprocal promise. If, however, the promisor does or promises to do anything beyond what he is bound to do, though of the same kind and in the same transaction, it is a valid consid- eration. A man may be legally bound to do a thing either (a) Because of a duty imposed by law, or (b) Because of an obligation imposed by contract. A duty imposed by law may be either public or private. In either event, a promise to perform it, or the actual perform- ance of it, does not afford consideration for anything promised or given in return. While the cases are not in accord, yet it may be laid down as a rule, subject to some qualifications, that neither a promise to perform an existing contract with the promisee, nor the actual performance of it, affords consideration for a reciprocal promise. A common illustration of the rule is that part payment of a matured debt is not a valid consideration for a discharge of the claim. The cases are in conflict also as to whether consideration may consist of a promise to perform or the actual performance of an outstanding contract with a person other than the promisee. § 330. In general. To furnish a consideration, the promisee must do or prom- ise to do something more than that to which he is already legally bound. If the promisor gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal, and does not support the prom- Cont. 192; Williams v. Forbes, 114 111. 167; Phillips v. Frye, 14 Allen (Mass.) 36; Fink v. Cox, 18 Johns. (N. Y.) 145, Huffcut & W. Am. Gas. Cont. 150; Shepard v. Rhodes, 7 R. I. 470, 473, HufEcut & W. Am. Cas. Cont. 210; Smith v. Kittridge, 21 Vt. 238. (662) Ch. 7] DOING WHAT LAW REQUIRES. §331 ise.^^^ But the doing or undertaking of anything beyond what one is bound to do, though of the same kind and in the same transaction, is a valid consideration.^ ^^ And if a man is only morally bound to do an act, his performance of it or his promise to perform it is a valuable consideration for some- thing given in return.^ ^* § 331. Duty imposed by law — Public duty. If a man is under a public duty to perform an act, his per- formance of it, or his promise to perform it, furnishes no consideration for a promise given in return.^ ^^ Thus, if a person has been subpoenaed as a witness, a promise to pay him anything more than the fees to which he is entitled by Ijiw if he will attend is without consideration, since he is al- ready bound to appear.^ ^* But if the action is pending in 112 Anson, Cont. (8th Ed.) 85; Atkinson v. Settree, Willes, 482, Langdell, Cas. Cont. 196; Sibree v. Tripp, 15 Mees. & W. 22; Mc- Caleb V. Price, 12 Ala. 753; Stuber v. Schack, 83 111. 191; Phoenix Ins. Co. V. Rink, 110 111. 538; Holmes v. Boyd, 90 Ind. 332; Reynolds v. Nugent, 25 Ind. 328; Ayres v. Chicago, R. I. & P. R. Co., 52 Iowa, 478; Bblin v. Miller's Ex'r, 78 Ky. 371; Jenness v. Lane, 26 Me. 475; Harriman v. Harriman, 12 Gray (Mass.) 341; Tucker v. Bartle, 85 Mo. 114; Conover v. Stillwell, 34 N. J. Law, 54; Tolhurst v. Powers, 133 N. Y. 460, Huftcut & W. Am. Cas. Cont. 174; Robinson v. Jewett, 116 N. Y. 40; Vanderbilt v. Schreyer, 91 N. Y. 392; Parmelee v. Thompson, 45 N. Y. 58; Withers v. Ewing, 40 Ohio St. 400; Sher- win V. Brigham, 39 Ohio St. 337; Cobb v. Cowdery, 40 Vt. 25; KefCer V. Grayson, 76 Va. 517; Lydick v. Baltimore & O. R. Co., 17 W. Va. 427. A promise not to do what is unlawful is nugatory as a consid- eration. Jamieson v. Renwick, 17 Vict. Law R. 124. 113 Pollock, Cont. 177. See page 668 et seq., infra. 1" Cobb V. Cowdery, 40 Vt. 25, 94 Am. Dec. 370. 115 City of Newton v. Chicago, R. I. & P. Ry. Co., 66 Iowa, 422; Kernion v. Hills, 1 La. Ann. 419. A promise by a pilot to assist a vessel in distress, as he is re- quired to do by statute, is not a consideration for a reciprocal prom- ise. Callagan v. Hallett, 1 Caines (N. Y.) 104. lie Collins v. Godefroy, 1 Barn. & Adol. 950; Dodge v. Stiles, 26 Conn. 463; Sweany v. Hunter, 5 N. C. 181. (663) § 331 CONSIDERATION. [Ch. 7 another state, so that the witness could not be compelled to attend, then the promise of extra fees is binding.^ ^'^ As to whether a police officer may recover a reward offered for the supply of information leading to the conviction of a criminal there is some conflict of opinion. The better view is that he may not, if the detection and arrest of the criminal were in the line of his regular duty.-*-^^ However, if a police officer renders services outside the scope of his ordinary du- ties, then he may recover such reward or compensation as has been offered therefor.-'^® Accordingly, a promise to pay a sheriff for procuring evidence leading to the conviction of a person accused of committing a crime in another county, and being prosecuted there, is binding ;^^'' and a sheriff who makes a capture without process is entitled to a reward of- fered therefor, the same as a private eitizen.-'^^ A promise of reward to a fireman for recovering, at the iiT Armstrong v. Prentice, 86 Wis. 210. lis Bent V. Wakefield & B. Union Bank, 4 C. P. Div. 1; Marking V. Needy, 8 Bush (Ky.) 22; Davies v. Burns, 5 Allen (Mass.) 349; Pool v. City of Boston, 5 Cush. (Mass.) 219; Day v. Putnam Ins. Co., 16 Minn. 408 (Gil. 365); Kick v. Merry, 23 Mo. 72; Gilmore v. Lewis, 12 Ohio, 281; Smith v. Whilden, 10 Pa. 39, Huftcut & W. Am. Cas. Cont. 176; Stamper v. Temple, 6 Humph. (Tenn.) 113. 119 England v. Davidson, 11 Adol. & B. 856, Langdell, Cas. Cont. 220; Morrell v. Quarles, 35 Ala. 544; Brown v. Godfrey, 33 Vt. 120. Where a sheriff, at the request of defendant, swore in a number of deputies to protect defendant's property during a strike, he was allowed to recover for the extra expenses, as the service was consid- ered to be outside the strict line of his oflScial duties. McCandless v. Allegheny Bessemer Steel Co., 152 Pa. 139. A promise to pay a constable a fee in excess of that fixed by stat- ute if he will make an arrest is without consideration. Hatch v. Mann, 15 Wend. (N. Y.) 44. 120 Harris v. More, 70 Cal. 502; Studley v. Ballard, 169 Mass. 295, 61 Am. St. Rep. 286. 121 Gregg V. Pierce, 53 Barb. (N. Y.) 387; Davis v. Munson, 43 Vt. 676. (664) Ch. 7] DOING WHAT LAW REQUIRES. § 331 peril of his life, a body from a burning building, has also been held binding.^ ^^ It has also been held that, if a city offers a reward to any person who shall inform it of real estate which belongs to it, but of which there is no record, the city surveyor may give the information and recover the reward. ■'•^^ Private duty. The performance of a domestic duty imposed by law af- fords no consideration for a promise.^ ^* Accordingly, an agreement by a husband to pay his wife a specified sum for her services as housekeeper is without consideration, and void.^^^ If a person in possession of goods has neither the title nor the right of possession, his surrendering the property to the rightful owner does not constitute a consideration for a prom- ise made by the latter.^ ^"^ An agreement, for instance, by the owner of chattels wrongfully withheld from him by an- other, on the latter's surrendering possession of it, that it shall be returned to him if his vendor, on a trial for steal- ing it, shall not be convicted, is without consideration, and void.127 122 Reif v. Page, 55 Wis. 496. A fire company may recover on a contract for services rendered by it in reference to a fire, where they were beyond its municipal duties. Texas Cotton Press & Mfg. Co. V. Mechanics' Fire Co., 54 Tex. 319. 123 Pilie V. City of New Orleans, 19 La. Ann. 274. 124 Grant v. Green, 41 Iowa, 88; Gardner's _Adm'rs v. Schooley, 25 N. J. Eq. 150; Coleman v. Burr, 93 N. Y. 17, 45 Am. Rep. 160. 125 Lee V. Savannah Guano Co., 99 Ga. 572, 59 Am. St. Rep. 243; Miller v. Miller, 78 Iowa, 177; Michigan Trust Co. v. Chopin, 106 Mich. 384, 58 Am. St. Rep. 490. 128 McCaleb v. Price, 12 Ala. 753; Sullivan v. Sullivan, 99 Cal. 187; Crosby v. Wood, 6 N. Y. 369. It is otherwise if the promisee has a right to the property. Leneret v. Rivet, Cro. Jac. 503. The same rule seems to apply to real estate. Kent v. Pratt, 1 RoUe Abr. 23, pi. 27, 28, Langdell, Cas. Cont. 193. 127 Pink V. Smith, 170 Pa. 124, 50 Am. St. Rep. 750. (665) § 332 CONSIDERATION. [Ch. 7 In many cases Tvhere money has been paid or property de- livered under circumstances of practical compulsion, though not amounting to duress, the money or property may be re- covered back.-'^^ Thus, if excessive fees are exacted under color of office,^ ^® or an excessive charge for the performance of a duty is paid under protest,^ ^^ the payment may be re- covered back. "In all these cases the foundation of the right to recover back the money is not the involuntary character of the payment in itself, but the fact that the party receiv- ing it did no more than he was bound to do already, or some- thing for which it was unlawful to take money if he chose to do it, though he had his choice in the first instance. Such payments are thus regarded as made without consideration. The legal effect of their being practically involuntary, though important, comes in the second place. The circumstances explain and excuse the conduct of the party making the pay- ment. ''^^^ It should be noticed in this connection that the right to recover back money thtis paid under compulsion is quasi contractual, and does not spring out of true contract.-^ *^ § 332. Obligation imposed by contract — ^In general. There are four views taken of the question whether a prom- ise to perform the terms of a pre-existing contract may af- ford a consideration for a promise given in return:^** 128 Pollock, Cont. 555; Carew v. Rutherford, 106 Mass, 1. Recov- ery of money paid for the release of goods from wrongful deten- tion, see page 195, supra. 129 Dew V. Parsons, 2 Barn. & Aid. 562; Swift Co. v. United States, 111 U. S. 22; Cunningham v. Munroe, 15 Gray (Mass.) 471; West- lake V. City of St. Louis, 77 Mo. 47; Robinson v. Bzzell, 72 N. C. 231; American Steamship Co. v. Young, 89 Pa. 186. 130 Parker v. Great Western Ry. Co., 7 Man. & G. 253, 292 ; Mobile & M. Ry. Co. V. Steiner, 61 Ala. 559; Chicago & A. R. Co. v. Chicago, v. & W. Coal Co., 79 III. 121; Heiserman v. Burlington, C. R. & N. Ry. Co., 63 Iowa, 732. 131 Pollock, Cont. 556. 132 Keener, Quasi Cont. cc. x., xi. 133 Huffcut, Ans. Cont. 86, note. Ch. 7] DOING WHAT LAW REQUIRES. § 332 First. It is held that a promise to perforin a contract is merely a promise to do what the law already requires the promisor to do, and consequently it does not support a recipro- cal undertaking given by the promisee.^** This rule does not ^PPly where the promisee has broken an implied condition of the contract, and agrees to give the promisor extra compensa- tion in consideration of his promise to fulfill the contract, regardless of the breach.^^^ ISTor does it apply where the promisee agrees to give the promisor additional compensation for assuming extra risks, or rendering additional services, made necessary by circumstances which neither party had in mind when the original contract was made;-'^^ nor where a right to rescind the original contract exists in favor of the promisor, and he waives the right and promises to perform in consideration of additional compensation.^^'' Second. It is held that a party to a contract has a right to elect whether he will perform it or abandon it and pay 13* Dixon V. Adams, Cro. Eliz. 538, Langdell, Cas. Cont. 191; Bagge V. Slade, 3 Bulst. 162; Foakes v. Beer, 9 App. Cas. 605; Stilk V. Myrick, 2 Camp. 317; Johnson's Adm'r v. Seller's Adm'r, 33 Ala. 265, Huffcut & W. Am. Cas. Cont. 185 ; Ellison v. Jackson Water Co., 12 Cal. 542; Merrick v. Giddings, 1 Mackey (D. C.) 394; Goldsbor- ough V. Gable, 140 111. 269; Reynolds v. Nugent, 25 Ind. 328; Spencer T. McLean, 20 Ind. App. 626, 67 Am. St. Rep. 271; Mader v. Cool, 14 Ind. App. 299, 56 Am. St. Rep. 304; McCarty v. Hampton Bldg. Ass'n, 61 Iowa, 287 ; Ives v. Bosley, 35 Md. 262 ; Jennings v. Chase, 10 Allen (Mass.) 526; Widiman v. Brown, 83 Mich. 241; King v. Duluth, M. & N. Ry. Co., 61 Minn. 482; Lingenfelder v. Wainwright Brew- ing Co., 103 Mo. 578, Huffcut & W. Am. Cas. Cont. 181; Voorhees V. Combs, 33 N. J. Law, 494; Arend v. Smith, 151 N. Y. 502; Vander- bilt V. Schreyer, 91 N. Y. 392; Festerman v. Parker, 32 N. C. 474; Turnbull v. Brock, 31 Ohio St. 649; Erb v. Brown, 69 Pa. 216; Col- cock V. Louisville, C. & C. R. Co., 1 Strob. (S. C.) 329; Jones v. Risley, 91 Tex. 1; Cobb v. Cowdery, 40 Vt. 25; Tolmie v. Dean, 1 Wash. T. 46, 54; Davenport v. First Congregational Soc, 33 Wis. 387. 135 Turner v. Owen, 3 Fost. & F. 176. 136 Hartley v. Ponsonby, 7 El. & Bl. 872. 137 Osborne v. O'Reilly, 42 N. J. Eq. 467, 481. (667) § 332 CONSIDERATION. [Ch. 7 damages, and that the giving up of this right by a subse- quent promise to perform the contract will support a new promise made to him by the other party.^^* Third. It is held that the new promise is presumptive ev- idence that the pre-existing contract has been mutually re- scinded, and the subsequent promise to perform, therefore, stands as a new contract. -^^^ Fourth. It is held that the old contract remains in force, and that the new promise to perform is enforceable also, in- dependently of the iirst. The promisor in the subsequent promise would remain liable for the breach of the original contract, on the one hand, and the subsequent promisee, on the other hand, would be bound to do whatever he agreed to do in consideration of the subsequent promise to perform.-^** Doing or promising what contract demands. The first view is the one that generally obtains under normal conditions. Doing what the contract demands is not ordinarily a consideration for a promise given in return. "There must," says Sir William Anson,^*^ "be something different to that which the recipient is entitled to demand, in the thing done or given, in order to support his promise. The difference must be real, but the fact that it is slight will not destroy its efficacy in constituting a consideration, for, if the courts were to say that the thing done in return for a promise was not sufficiently unlike that to which the promisor 138 Bishop V. Busse, 69 111. 403; Cooke v. Murphy, 70 111. 96. 139 Connelly v. Devoe, 37 Conn. 570; Coyner v. Lynda, 10 Ind. 282, Huffcut & W. Am. Gas. Cont. 177; Thomas v. Barnes, 156 Mass. 581; Rogers v. Rogers, 139 Mass. 440; Rollins v. Marsh, 128 Mass. 116; Holmes v. Doane, 9 Cush. (Mass.) 135; Goebel v. Linn, 47 Mich. 489; Osborne v. O'Reilly, 42 N. J. Eq. 467; Stewart v. Keteltas, 36 N. Y. 388, 392; Lattimore v. Harsen, 14 Johns. (N. Y.) 330; Law- rence V. Davey, 28 Vt. 264. 140 Endriss v. Belle Isle Ice Co., 49 Mich. 279, Huffcut & W. Am. Cas. Cont. 180. "1 Anson, Cont. (8th Ed.) 87. (668) Ch. 7] DOING WHAT LAW REQUIRES. g 332 was already bound, they would in fact be determining tks adequacy of tbe consideration," wbicH, as we shall see,^*^ they do not do. Thus, the giving of a negotiable instru- ment for a money debt,^*^ or anything else to which the creditor is not already entitled, provided it is of some value, however slight, in the eye of the law,^** or payment before maturity, or in a different manner or at a different place from that agreed upon,'^*^ is a valid discharge of the debt, if it is so agreed, since the courts will presxime that what is thus accepted by the creditor might be more beneficial to him than the money, or whatever else the contract may call for.^*® So, if the debtor procures a third person to guaranty a part of the debt,^*'' or if he pays a part of it in a third person's 142 See page 691, infra. 143 Bidder v. Bridges, 37 Ch. Div. 406; Sibree v. Tripp, 15 Mees. & W. 23; Varney v. Conery, 77 Me. 527; JaiEray v. Davis, 124 N. Y. 164, HufEcut & W. Am. Cas. Gout. 187; Kidder v. Kidder, 33 Pa. 268, Huffcut & W. Am. Cas. Cont. 625; Reid v. Hibbard, 6 Wis. 175. The acceptance of a note for the amount of a debt is not a pay- ment of it, however, unless the parties so agree. Johnston v. Bar- rills, 27 Or. 251, 50 Am. St. Rep. 717. See section 430, infra. i44Goddard v. O'Brien, 9 Q. B. Div. 37; Bull v. Bull, 43 Conn. 455; Bender v. Been, 78 Iowa, 283, HufEcut & W. Am, Cas. Cont. 87; Dunham v. Peterson, 5 N. D. 414, 57 Am. St. Rep. 556; Collyer v. Moulton, 9 R. I. 90, Huffcut & W. Am. Cas. Cont. 522. i45Brownlee v. Lowe, 117 Ind. 420; Arnold v. Park, 8 Bush (Ky.) 3; Fenwick v. Phillips, 3 Mete. (Ky.) 87; Bowker v. Childs, 3 Allen (Mass.) 434; Brooks v. White, 2 Mete. (Mass.) 283; Schweider v. Lang, 29 Minn. 254; Jones v. Perkins, 29 Miss. 139; McKenzie v. Culbreth, 66 N. C. 534; Harper v. Graham, 20 Ohio, 106. And see cases cited in note 153, infra. However, an agreement that the creditor shall suspend a debt already due in money, and accept pay- ment in future services of the debtor, is without consideration, and may be renounced at any time before complete performance. Bates V. Starr, 2 Vt. 536. See pages 670, 671, infra, as to extension of time of payment. 14S Pinnel's Case, 5 Coke, 117. 147 Singleton v. Thomas, 73 Ala. 205; Whitsett v. Clayton, 5 Colo. 476; Little v. Hobbs, 34 Me. 357; Maddux v. Bevan, 39 Md. 485; Mason v. Campbell, 27 Minn. 54; Kellogg v. Richards, 14 Wend. (669) § 332 CONSIDERATION. [Ch. 7 notes-, whicli are afterwards paid/** or in a third person's check/** an agreement that such payment shall satisfy the debt is based upon a sufficient consideration, and is binding. An agreement to give a debtor time in consideration of his continuing to pay. the same rate of interest that the debt al- ready carries has been held inoperative for v?ant of considera- tion.-'^^'' In many states, however, a promise to extend the day of payment to a day certain beyond maturity, until when the debtor shall have no right to pay the debt, is supported by a promise to continue to pay the same rate of interest up to that time.-^®^ If the debt does not carry interest, the exten- sion is supported by the debtor's promise to pay interest.^®^ And an agreement to give time is binding if made in con- sideration of the payment of the same interest in advance,^ ''^ or of a promise to pay increased interest.-^ ^* (N. Y.) 116; Le Page v. MuCrea, 1 Wend. (N. Y.) 164; Gunn v. McAden, 37 N. C. 79. Contra, semMe, Parmelee v. Thompson, 45 N. Y. 58. "8 Brassell v. Williams, 51 Ala. 349, 352; Brooks v. White, 2 Mete. (Mass.) 283; Prisbie v. Lamed, 21 Wend. (N. Y.) 450. See cases cited in note 143, supra, also. 149 Guild V. Butler, 127 Mass. 386. 150 Grossman v. Wohlleben, 90 111. 537; Holmes v. Boyd, 90 Ind. 332; Hunt v. Postlewait, 28 Iowa, 427; Wilson v. Powers, 130 Mass. 127; Hale v. Forbis, 3 Mont. 395; Kellogg v. Olmsted, 25 N. Y. 189. So, also, an agreement to extend the time of payment is void if based on a promise to pay interest regularly. McCann v. Lewis, 9 Cal. 246; Helms v. Crane, 4 Tex. Civ. App. 89. 151 Pierce v. Goldsberry, 31 Ind. 52; Chute v. Pattee, 37 Me. 102; Keirn v. Andrews, 59 Miss. 39; Fowler v. Brooks, 13 N. H. 240; Fawcett v. Freshwater, 31 Ohio St. 637. Such an extension has been held binding, even though the rate of interest to be paid from maturity is less than that carried by the original debt. Simpson V. Evans, 44 Minn. 419. 152 Moore v. Redding. 69 Miss. 841. 153 Warner v. Campbell, 26 111. 282; Williams v. Scott, 83 Ind. 405; Hubbard v. Ogden, 22 Kan. 363; Preston v. Henning, 6 Bush (Ky.) 556; Lime Rock Bank v. Mallett, 34 Me. 547; Nelson v. Brown, 140 Mo. 580, 62 Am. St. Rep. 755; Wright v. Bartlett, 43 N. H. 548; Bank (670) Ch. 7 J DOING WHAT LAW REQUIRES. § 333 Same — Part payment. The payment of a smaller sum in satisfaction of a larger amount that is undisputedly due is not a valid discharge of the debt, even though there is an agreement to that effect.^^® And a promise by the creditor to take less than the full amount of the debt in satisfaction is also void for want of consider ation. ^ ° ® Part payment of a debt is not ordinarily sufficient consid- eration for a promise to extend the time for payment of the balance ;^°^ but it has been held otherwise where the part pay- ment was effected by means of a new note with security.^ °* of British Columbia v. JefCs, 18 Wash. 135, 63 Am. St. Rep. 875. See, also, cases cited in note 145, supra. 154 Marine & R. Phosphate Min. & Mfg. Co. v. Bradley, 105 U. S. 175; Beckner v. Carey, 44 Ind. 89; Royal v. Lindsay, 15 Kan. 591; Glidden v. Chamberlin, 167 Mass. 486, 57 Am. St. Rep. 479; Smith V. Graham, 34 Mich. 302; Clarkson v. Creely, 35 Mo. 95; Knapp v. Mills, 20 Tex. 123. See Hugh v. Crum, 26 Ind. App. 465, 54 Am. St. Rep. 306. 155 Anson, Cont. (8th Ed.) 86; Foakes v. Beer, 9 App. Cas. 605; Fitch V. Sutton, 5 East, 230; Barron v. Vandvert, 13 Ala. 232; Thomp- son V. Robinson, 34 Ark. 44; Hayes v. Massachusetts Mut. Life Ins. Co., 125 111. 626; Longworth v. Higham, 89 Ind. 352; Rea v. Owens, 37 Iowa, 262; St. Louis, Ft. S. & W. R. Co. v. Davis, 35 Kan. 464; Jenness v. Lane, 26 Me. 475; Perkins v. Lockwood, 100 Mass. 249, Huffcujt & W. Am. Cas. Cont. 197; Guild v. Butler, 127 Mass. 386; Lathrop v. Page, 129 Mass. 19; Weber v. Couch, 134 Mass. 26; Leeson v. Anderson, 99 Mich. 247; Marion v. Heimbach, 62 Minn. 214; Willis v. Gammill, 67 Mo. 730; Watts v. Frenche, 19 N. J. Bq. 407; Harri- son V. Close, 2 Johns. (N. Y.) 450; Parmelee v. Thompson, 45 N. y. 58; Turnbull v. Brock, 31 Ohio St. 649; Goodwin v. Follett, 25 Vt. 386; Wheeler v. Wheeler, 11 Vt. 60; Smith v. Phillips, 77 Va. 548. Contra, Reynolds v. Pinhowe, Cro. Eliz. 429, Langdell, Cas. Cont. 191. These cases are to be distinguished frc-j cases of com- promise of a claim unliquidated in amount. See page 684, infra. 156 Foakes v. Beer, 9 App. Cas. 605; Bryan v. Brazil, 52 Iowa, 350; Robert v. Barnum, 80 Ky. 28; Wharton v. Anderson, 28 Minn. 301; Line v. Nelson, 38 N. J. Law, 358; Rose v. Daniels, 8 R. I. 381; Smith v. Phillips, 77 Va. 548. 157 Overton v. Banister, 3 Hare, 503 ; Llening v. Gould, 13 Cal. 598; State v. City of Davenport, 12 Iowa, 335; Royal v. Lindsay, 15 (671) § 332 CONSIDERATION. [Ch. 7 A debt may be discharged by a release under seal without payment, since, as has been seen, a contract under seal re- quires no consideration to support it, in the absence of stat- ute.^®* But if a man wishes to make a binding promise, otherwise than under seal, to forego legal rights, such prom- ise must ordinarily depend for its validity upon the rules common to all promises. ^^^ There is a distinction to be noted in this connection be- tween contracts which are wholly executory and contracts which have been executed on one side. As we shall see in another place, a contract which is wholly unperformed on both sides may be discharged by mutual consent, the acquit- tance of each from the other's claims being the consideration for the promise of each to waive his own claims.^*-' But a contract that has been performed on one side only, the other party remaining bound to performance, may not be dis- charged by mere consent of the parties, since there is no con- sideration for the agreement of discharge. It may, however, be discharged by a new agi-eement of the parties, when that agreem^t is founded on a sufficient consideration.^^^ And such a consideration appears, as we have just shown, in a Kan. 591; Warren v. Hodge, 121 Mass. 106; semble, Parmelee v. Thompson, 45 N. Y. 58; Pabodie v. King, 12 Johns. (N. Y.) 426; Turnbull v. Brock, 31 Ohio St. 649; Pomeroy v. Slade, 16 Vt. 220. 158 Gates V. Hamilton, 12 Iowa, 50. 159 Lee V. Lancashire & Y. Ry. Co., 6 Ch. App. 527, 534; Maclary V. RIeznor, 3 Del. Ch. 445; Walker v. McCulloch, 4 Me. 421; Bender T. Sampson, 11 Mass. 42; Schuylkill Navigation Co. v. Harris, 5 Watts & S. (Pa.) 28. It has been held that a release given in open court for the purpose of qualifying the promisor as a witness in a suit against the prom- isee is founded upon a sufficient consideration. "Valentine v. Fos- ter, 1 Mete. (Mass.) 520, Langdell, Cas. Cont. 374. See page 530, supra, as to sealed contracts. 160 Anson, Cont. (8th Ed.) 87. 161 Cutter v. Cochrane, 116 Mass. 408. See section 425, infra. 162 Anson, Cont. (8th Ed.) 88; Foster v. Dawber, 6 Exch. 839; Goddard v. O'Brien, 9 Q. B. Div. 37. See section 425, infra. (672) Ch. 7] DOING WHAT LAW REQUIRES. § 332 case where the party entitled to performance accepts some- thing of value different from that which he is entitled to de- mand. Whether or not the validity of the claim is disputed/®* and whether the amount is certain or uncertain, the consid- eration for a promise to forego what the claimant is entitled to demand must, according to the weight of authority, be ex- ecuted. In England and in America, generally, it is held that the parties must not only have agreed, but their agree- ment must have been carried into effect, if it is to be an an- swer to the original cause of action. Where it is thus exe- cuted, it is an accord and satisfaction; where it is not exe- cuted, it is an accord executory. According to these author- ities, an accord executed is satisfaction of the debt. An ac- cord executory is only substituting one cause of action for another, and does not discharge the debt. The party promising to forbear may refuse to carry out the new agreement, even though the other party stands ready and offers to perform, and still sue on the original contract. There is, however, another line of decisions based upon a more equitable and reasonable rule, which holds that all it is necessary to do in order to substitute the new contract for the old, and discharge the old debt, is for the party making the new promise to make an offer to perform it. It makes no difference whether the party promising to -forbear accepts it or not. In either case he will be barred from bringing an action on the original promise. This matter is more fully discussed in another con- nection.^®* What is here said must be taken in connection with what is said on the subject of compromise of claims which are disputed either as to the existence of the right or as to the amount.^®" 183 See page 684, infra, as to compromise. 164 Anson, Cont. (8tli Ed.) 88. See section 333, infra. les-See page 684, infra. (673) Law of Cont.— 43. § 332 CONSIDERATION [Ch. 7 A promise to release a debtor must be distinguished from a gift of the debt to the debtor. A man may bestow his claims as he likes, and, if he sees fit to make a gift of a debt to the person owing it, the law will sustain the gift ; and the same rule applies where a creditor, upon receiving a partial payment, expressly forgives the debtor from payment of the residue.^"® Performance of or promise to perform contract with third person. It is generally held that neither a promise to perform an outstanding contract with a third person nor the perform- ance thereof is of itself a consideration for a promise given in return.^^^ There is respectable authority, however, for saying that, if the promisee will derive a benefit from the promisor's performance, then the performance or the prom- ise to perform may constitute a valid consideration for some- thing given or promised in return.-'^®* And if a party to an outstanding executory contract abandons, or promises to abandon, at the instance of the promisee, the right to enter into a new agreement with the other party for the discharge of the contract, it constitutes a valid consideration for a promise made by the promisee in return.^®® The rule that a promise to perform a pre-existing contract with a third person does not constitute consideration has no 166 Tyler Cotton-Press Co. v. Chevalier, 56 Ga. 494 ; Lamprey v. Lamprey, 29 Minn. 151; Gray v. Barton, 55 N. Y. 68. 167 Johnson's Adm'r v. Sellers' Adm'r, 33 Ala. 265, Huffcut & W. Am. Cas. Cont. 185; Merrick v. Giddings, 1 Mackey (D. C.) 394 Brownlee v. Lowe, 117 Ind. 420; Schuler v. Myton, 48 Kan. 282 Putnam v. Woodbury, 68 Me. 58; Gordon v. Gordon, 56 N. H. 170 L'Amoreux v. Gould, 7 N. Y. 349, 351; Davenport v. First Congrega- tional Soc, 33 Wis. 387. 168 Scotson V. Pegg, 6 Hurl. & N. 295, Langdell, Cas. Cont. 240; Abbott v. Doane, 163 Mass. 433. 100 Shadwell v. Shadwell, 9 C. B. (N. S.) 159, 30 Law J. C. P. 145, Langdell, Cas. Cont. 233. (674) Ch. 7] FORBEARANCE § 333 application where the promisor has a right to delay perform- ance until a condition is satisfied by the other party to the contract, and he abandons this right at the instance of the promisee. In such a case, the promise to proceed at once upon performance is a valid consideration for a reciprocal promise.-"'*' VIII. Same — Foebeakance. Forbearance or a promise to forbear from doing what the promisor has a right to do may constitute a sufficient consid- eration. In order that forbearance with reference to a right of action may constitute consideration, there must be: (a) A right of action. (b) A person liable. (c) An agreement to forbear, express or implied. Forbearance to exercise a right of action may afford consid- eration for a promise by a third person, as well as a promise by the debtor. § 333. In general. Forbearance or a promise to forbear from doing what the promisor has a right to do may constitute a valuable consid- eration.^''^ The forbearance may have reference not only to 170 Brownlee v. Lowe, 117 Ind. 420. I'lHawes v. Smitli, 2 Lev. 122, Laagdell, Cas. Cont. 195; Tisdale's Case, Cro. Eliz. 758; Cook v. Wright, 1 Best & S. 559, Langdell, Cas. Cont. 308; Dunton v. Dunton, 18 Vict. Law R. 114; Jamieson. v. Ren- wicli, 17 Vict. Law R. 124; Leverenz v. Haines, 32 111. 357; Worley V. Sipe, 111 Ind. 238; Poison v. Stewart, 167 Mass. 211; McCabe v. Caner, 68 Mich. 182; Minneapolis Land Co. v. McMillan, 79 Minn. 287; Peterson v. Russell, 62 Minn. 220; St. Mark's Church v. Teed, 120 N. Y. 583. The privilege of naming a child is a sufficient consideration for a promise to pay a sum of money to the child. Eaton v. Libbey, 165 Mass. 218, 52 Am. St. Rep. 511. Withholding competition, when not contrary to public policy, is a sufficient consideration for a promise. Camden v. Dewing, 47 W. Va. 310, 81 Am. St. Rep. 797. (675) § 334 CONSIDERATION. [Ch. 7 a right of action/ ^^ but also to rights concerning personal conduct in general. Thus, an agreement to pay a sum of money if the promisee will abstain from the use of tobacco or intoxicants is foimded on a suiEcient consideration.^^* Illustrations of forbearance with reference to a right of ac- tion are found where a debtor promises to give new or ad- ditional security if the creditor will extend the time for pay- ment;''^* or where a debtor promises to waive the statute of limitations if the creditor will extend the time of payment to a day beyond the period allowed by the statute for suit.^'^^ § 334. Forbearance with reference to right of action — Essen- tials. In order that forbearance with reference to a right of ac- tion may constitute consideration, three things are essential: (1) There must be a right of action, (2) there must be a person liable, and (3) there must be an agreement to for- bear, pursuant to which suit is forborne. 172 Payne v. Wilson, 7 Barn. & C. 423, Langdell, Gas. Cont. 257; Morton v. Burn, 7 Adol. & B. 19, Langdell, Gas. Gont. 261; Raymond V. Smith, 5 Conn. 555; Underwood v. Hossack, 38 111. 208; Brown V. First Nat. Bank of Indianapolis, 115 Ind. 572; Newton v. Carson, 80 Ky. 309; Benner v. Van Norden, 27 La. Ann. 473; Russell v. Babcock, 14 Me. 138; Bowen v. Tipton, 64 Md. 275; Poison v. Stew- art, 167 Mass. 211, 57 Am. St. Rep. 452; Union Trust Co. v. Zynda (Mich.) 88 N. W. 407; Lundberg v. Northwestern Elevator Co., 42 Minn. 37; Jasper County v. Tavis, 76 Mo. 13; Gove v. Newton, 58 N. H. 359; Hockenbury v. Meyers, 34 N. J. Law, 346; Mechanics' & Farmers' Bank of Albany v. Wixson, 42 N. Y. 438; Pennsylvania Coal Co. V. Blake, 85 N. Y. 226, Huffcut & W. Am. Cas. Cont. 162; Brownell v. Harsh, 29 Ohio St. 631; Collins v. Barnes, 83 Pa. 15. "sTalbott V. Stemmons' Bx'r, 89 Ky. 222, 25 Am. St. Rep. 531; Lindell v. Rokes, 60 Mo. 249, 21 Am. Rep. 395; Hamer v. Sidway, 124 N. Y. 538, 21 Am. St. Rep. 693, Huffcut & W. Am. Cas. Cont. 143. 174 Alliance Bank v. Broom, 2 Dew. & S. 289, Langdell, Cas. Cont. 279; Kinsey v. Wallace, 36 Cal. 462; Miller v. Gardner, 49 Iowa, 234. 175 Wells, Fargo & Co. v. Bnright. 127 Cal. 669. (676) Ch. 7] FORBEARANCE | 334 A right of action. Unlike cases of compromise, it is necessary, in order that a forbearance to sne may be a sufficient consideration, that the claimant's right shall be well founded. If he does not have a valid claim, even though he may think he has, the forbearance is no consideration.^'^'^ Thus, if one of two joint obligors in a bond has been released by the obligee, and the other afterwards promises to pay the money if the obligee will extend the time for payment, the promise is void for want of consideration, since the release of one obligor releases the other also by operation of law.^'''^ So, where a married woman gave a note, and, after the death of her husband, promised to pay it if the holder would not sue, the promise was without consideration, since the note of a married woman is void.-''^^ 176 Graham v. Johnson, L. R. 8 Bq. 36; Edwards v. Baugh, 11 Mees. & W. 641, Langdell, Cas. Cont. 290; Bidwell v. Catton, Hob. 216, Langdell, Cas. Cont. 245; Pooly v. Gilberd, 2 Bulst. 41; Barnard v. Simons, 1 Rolle Abr. 26, pi. 39, Langdell, Cas. Cont. 194; Barber v. Fox, 2 Saund. 136, Langdell, Cas. Cont. 247; Prater v. Miller, 25 Ala. 321; Stewart v. Bradford, 26 Ala. 410; Slack v. Moss, Dud. (Ga.) 161; Mulholland v. Bartlett, 74 111. 58; Jarvis v. Sutton, 3 Ind. 289; Tucker v. Ronk, 43 Iowa, 80; Cline v. Templeton, 78 Ky. 550; Schroed- er V. Pink, 60 Md. 436; Palfrey v. Portland, S. & P. R. Co., 4 Allen (Mass.) 55; Sharpe v. Rogers, 12 Minn. 174 (Gil. 103); Foster v. Metts, 55 Miss. 77, Huff cut & W. Am. Cas. Cont. 164; Long v. Towl, 42 Mo. 545; Kidder v. Blake, 45 N. H. 530; Tolhurst v. Powers, 133 JN. Y. 460, HufEcut & W. Am. Cas. Cont. 174; Oregon & C. R. Co. v. Potter, 5 Or. 228; Logan v. Mathews, 6 Pa. 417; Davisson v. Ford, 23 W. Va. 617. A promise to forbear suit on a claim barred by limitations affords no consideration for a promise to pay the debt. Taylor v. Weeks (Mich.) 88 N. W. 466. Consenting to rescind an illegal agreement is no consideration for a promise. Hooker v. De Palos, 28 Ohio St. 251, 258. 1T7 Herring v. Dorell, 8 Dowl. 604, Langdell, Cas. Cont. 222. 178 Loyd V. Lee, 1 Strange, 94, Langdell, Cas. Cont. 248. This illus- tration would not apply in those jurisdictions where married women have been relieved of their common-law disabilities as to making contracts. (677) 334 CONSIDERATION. [Ch. 7 — A person liable. If there is no definite person against wliom a right of ac- tion exists, forbearance to sue does not constitute a consid- eration.^'^^ To illustrate : If the driver of a wagon em- ployed by a mail contractor steals money from the mail, the owner of the money has no right of action against any one therefor. Consequently, a promise by him to wait a few months for payment if the contractor will give a note cover- ing the loss is no consideration for the note.-'*" Again, a note given to a creditor for the debt by a third person after the decease of the debtor, and before an administrator has been appointed, is not supported by the consideration of the cred- itor's promise not to prosecute the claim, since, upon the face of the facts, no one is liable on the debt.^®^ ■ An agreement to forbear. There must be an agreement to forbear ; simple forbear- ance is not sufficient, even though it was induced by the act or promise of the debtor.^ ^^ While this is true as a general proposition, yet there are many cases holding that, if the creditor accepts a new consideration from the debtor, and actually forbears to sue for a reasonable length of time, it is prima facie evidence of an agreement to forbear ;-^^^ and some courts have gone so far as to hold that an acceptance of the new consideration estops the creditor from denying the 179 Anson, Cent. (Sth Ed.) 81; Nelson v. Serle, 4 Mees. & W. 795; Leask V. Scott, 2 Q. B. Div. 376; Cline v. Templeton, 78 Ky. 550; Pal- frey V. Portland, S. & P. R. Co., 4 Allen (Mass.) 55. 180 Foster v. Metts, 55 Miss. 77, Huffcut & W. Am. Cas. Cont. 164. 181 Jones V. Ashburnham, 4 Bast, 455, Langdell, Cas. Cont. 249. 182 Miles V. N6w Zealand Alford Estate Co., 32 Ch. Div. 266; Shad- burne v. Daly, 76 Cal. 355; Edgerton v. Weaver, 105 111. 43; Cary v. White, 52 N. Y. 138; Shupe v. Galbraith, 32 Pa. 10; Gilman v. Kib- ler, 5 Humph. (Tenn.) 19. 183 Breed v. Hillhouse, 7 Conn. 523 ; Howe v. Taggart, 133 Mass. 284, 287; Manter v. Churchill, 127 Mass. 31; Holzworth v. Koch, 26 Ohio St. 33; Johnston Harvester Co. v. McLean, 57 Wis. 258. (678) Ch. 7] FORBEARANCE § 335 agreement.^** In any event, the agi-eement to forbear need not be express. If an agreement is reasonably implied from the facts and circumstances of the case, it is sufficient.^ *^ While there must be an agreement to forbear, followed by an actual forbearance for a reasonable length of time, in order to constitute a consideration,^ ^'^ yet the agreement for forbearance need not specify any definite time, since a rea- sonable time will be implied, especially where the agreement has been followed by an actual forbearance for a reasonable time.^^" § 335. Same — Promise by third person. Forbearance to exercise a right of action may afford con- sideration for a promise by a third person, as well as a prom- 184 Lomax V. Smyth, 50 Iowa, 223. See, also, page 639, supra, as to estoppel to deny consideration. 185 Crears v. Hunter, 19 Q. B. Div. 341; Leask v. Scott, 2 Q. B. Div. 376; Thompson v. Gray, 63 Me. 228; Boyd v. Freize, 5 Gray (Mass.) 553; Strong v. Sheffield, 144 N. Y. 392. iss Oldershaw v. King, 2 Hurl. & N. 399, 517, Langdell, Cas. Cont. 274; King v. Upton, 4 Me. 387; Howe v. Taggart, 133 Mass. 284, 287; Elting V. Vanderlyn, 4 Johns. (N. Y.) 237; Brownell v. Harsh, 29 Ohio St. 631; Downing v. Funk, 5 Rawle (Pa.) 69. 187 Oldershaw v. King, 2 Hurl. & N. 517, Langdell, Cas. Cont. 274; Wills V. Ross, 77 Ind. 1; Foard v. Grinter's Ex'rs (Ky.) 18 S. W. 1034; Haskell v. Tukesbury, 92 Me. 551, 69 Am. St. Rep. 529; Howe V. Taggart, 133 Mass. 284, 287; Calkins v. Chandler, 36 Mich. 320; Hockenbury v. Meyers, 34 N. J. Law, 346; Traders' Nat. Bank v. Parker, 130 N. Y. 415; Elting v. Vanderlyn, 4 Johns. (N. Y.) 237; Cathcart v. Thomas, 8 Baxt. (Tenn.) 172; Hakes v. Hotchkiss, 23 Vt. 231. Contra, Semple v. Pink, 1 Exch. 74, Langdell, Cas. Cont. 272; Gates v. Hackethal, 57 111. 534, 11 Am. Rep. 45; Garnett v. Kirk- man, 33 Miss. 389; Glasscock v. Glasscock, 66 Mo. 627. A promise to forbear generally, without specifying any time, has been held to be a promise to forbear perpetually. Clark v. Russel, 3 Watts (Pa.) 213. An agreement to forbear for "a short time" is too indefinite to constitute a consideration. Lonsdale v. Brown, 4 Wash. C. C. 148, Fed. Cas. No. 8,494; Sidwell v. Evans, 1 Pen. & W. (Pa.) 383. (679) § 336 CONSIDERATION. [Ch. 7 ise by the debtor.^ *^ For instance, a promise to pay the debt of a third person is supported by the consideration of the forbearance of the creditor to sue the debtor.^®® And a promise to pay a certain sum in a given time if the creditor will forbear from levying on property of the debtor in the hands of the promisor is based on a sufficient consideration.-'*" IX. Same — Mutual Promises. A contract may consist in mutual promises, in which case each promise is consideration for the other. A corollary of this is that the parties must be mutually bound. If either cannot be holden, the other's promise is void for want of consideration. i 336. In generai. Keciprocal promises may be each consideration for the other, and so constitute a binding contract. •'^^ When a prom- ise Smith V. Monteith, 13 Mees. & W. 427, Langdell, Cas. Cont. 225; Anonymous, Cowp. 128, Langdell, Cas. Cont. 249; Calkins v. Chandler, 36 Mich. 320; Traders' Nat. Bank v. Parker, 130 N. Y. 415; New Hanover Bank v. Bridgers, 98 N. C. 67; Brownell v. Harsh, 29 Ohio St. 631; Mygatt v. Tarbell, 78 Wis. 351; Barrett v. Mahnken, 6 Wyo. 541, 71 Am. St. Rep. 953. 188 Rood V. Jones, 1 Doug. (Mich.) 188; Hooper v. Pike, 70 Minn. 84, 68 Am. St. Rep. 512; Peterson v. Russell, 62 Minn. 220, 54 Am. St. Rep. 634; Pennsylvania Coal Co. v. Blake, 85 N. Y. 226, HufEcut & W. Am. Cas. Cont. 162. 190 Smith V. Algar, 1 Barn. & Adol. 603; Langdell, Cas. Cont. 260. 191 Fuller's Case, Godb. 94; Gower v. Capper, Cro. Bliz. 543. Lang- dell, Cas. Cont. 395; Nichols v. Raynbred, Hob. 88, Langdell, Cas. Cont. 395; Strangborough's Case, 4 Leon. 3, Langdell, Cas. Cont. 394; Phillips V. Preston, 5 How. (U. S.) 278; Thomason v. Dill, 30 Ala. 444; Barringer v. Warden, 12 Cal. 311; Funk v. Hough, 29 111. 145; Downey v. Hinchman, 25 Ind. 453; Boies v. Vincent, 24 Iowa, 387; Stovall V. McCutcheon, 21 Ky. Law Rep. 1317, 54 S. W. 969; Bab- cock V. Wilson, 17 Me. 372; Ames-Brooks Co. v. Aetna Ins. Co., 83 Minn. 346; Congregational Soc. in Troy v. Perry, 6 N. H. 164; Trades- men's Bank v. Curtis, 167 N. Y. 194; Porter v. Rose, 12 Johns. (N. Y.) 208; Briggs v. Tillotson, 8 Johns. (N. Y.) 235; Forney v. Shipp, 49 N. C. 527; Nott v. Johnson, 7 Ohio St. 270; McNish v. Reynolds, 95 (680) Ch. 7] MUTUAL PROMISES. § 336 ise is given for a promise, the contract is said to be made upon an executory consideration. The obligations created by it rest equally on both parties. Each is bound to a future act. Thus, in the case of mutual promises to marry, the considera- tion for A.'s promise to marry X. is X.'s promise to marry A., while A.'s promise, in like manner, forms the consideration for the promise of X.-'**^ It is the promise, and not the per- formance of it, that constitutes the consideration for the coun- ter promise.^®* It is generally said that, if a contract is to consist of mu- tual promises, they must be exchanged simultaneously.-'®* However, a legal fiction is involved in this statement. Some time usually elapses between the offer of a promise and the acceptance of it. To circumvent this phase of the case, so as to render it consistent with the rule that, to make a con- tract, the minds of the parties mxist meet at the same mo- ment of time, the law regards the offer as continuing in force until it is accepted; provided, of course, that it has not be- come extinguished in the meantime either by revocation or by lapse.^^® All, therefore, that is meant by the rule that the promises must be exchanged simultaneously is that they Pa. 483; Aldrich v. Lyman, 6 R. I. 98; Seward v. Mitchell, 1 Cold. (Tenn.) 87; Misslsquoi Bank v. Sabin, 48 Vt. 239; Hawes v. Wool- cock, 26 Wis. 629. 192 Holt V. Clarencieux, 2 Strange, 937, Langdell, Cas. Cont. 397; Harrison v. Cage, 5 Mod. 411, Langdell, Cas. Cont. 396; Rockafellow V. Newcomb, 57 111. 186. The promises may be implied from the facts and circumstances surrounding the case. Wightman v. Coates, 15 Mass. 1, and note. issPhilpot V. Gruninger, 14 Wall. (U. S.) 570; Matthew's Adm'r V. Meek, 23 Ohio St. 272, 292. 191 Stiles V. McClellan, 6 Colo. 89 ; Buckingham v. Ludlum, 40 N. J. Eq. 422; Keep v. Goodrich, 12 Johns. (N. Y.) 397; Livingston v. Rogers, Colem. & C. Cas. (N. Y.) 331; James v. Pulcrod, 5 Tex. 512, 55 Am. Dec. 743; Missisquoi Bank v. Sabin, 48 Vt. 239. 195 See pages 66, 69, 70, supra. (681) § 337 CONSIDERATION. [Ch. 7 must be connected parts of one transaction, each being given in view of the other.^®^ § 337. Mutuality of obligation. When the only consideration for a contract is that which arises from an exchange of promises, there must be mutu- ality of obligation, else the consideration is not sufficient. Both parties must be bound, so that, in case of breach by either, the other would have a right of action therefor.^ ^^ Thus, if, by reason of some informality or disability, one of the parties to a contract consisting of mutual promises could not be sued thereon, the contract is void as to the other party also, since there is no consideration for his promise.-'** However, this principle does not mean that in every case each party must have the same remedy for a breach by the other. If the contract is enforceable on both sides in some 100 See page 640, supra. 107 Stiles V. McClellan, 6 Colo. 89; McKlnley v. Watkins, 13 111. 140; Bean v. Biirbank, 16 Me. 458; Coleman v. Applegarth, 68 Md. 21, Huffcut & W. Am. Cas. Cont. 57; Dresel v. Jordan, 104 Mass. 407; Wilkinson v. Heavenrich, 58 Mich. 574; Stensgaard v. Smith, 43 Minn. 11, Huffcut & W. Am. Cas. Cont. 26; Mers v. Franklin Ins. Co., 68 Mo. 127; Ewins v. Gordon, 49 N. H. 444; Keep v. Goodrich, 12 Johns. (N. Y.) 397; Burnet v. Bisco, 4 Johns. (N. Y.) 235; Hissam v. Par- rish, 41 W. Va. 686, 56 Am. St. Rep. 892. Promises held to be mutual: Morton v. Burn, 7 Adol. & B. 19, Langdell Cas. Cont. 261; Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 51 Am. St. Rep. 289; Jones v. Binford, 74 Me. 439; Sax v. Detroit, G. H. & M. Ry. Co., 125 Mich. 252, 84 Am. St. Rep. 572; L'Amoreux v. Gould, 7 N. Y. 349. The fact that one promise is in writing, while the other is oral, does not prevent the contract from being mutual. Dicken v. Mor- gan, 54 Iowa, 684. The filing of a bill for specific performance by the promisee ob- viates the objection of want of mutuality of obligation under the promise. Dynan v. McCulloch, 46 N. J. Eq. 11, 16; McPherson v. Fargo, 10 S. D. 611, 66 Am. St. Rep. 723; Burdine v. Burdine's Bx'r, 98 Va. 515, 81 Am. St. Rep. 740. See section 474, infra. 108 Copper Miners v. Fox, 16 Q. B. 229; Shaver v. Bear River & A. W. & Min. Co., 10 Cal. 396. (682) Ch. 7] MUTUAL PROMISES. § 337 manner, the rule as to mutuality is satisfied.-'^'' It follows from this rule that, where mutual promises are given in such a manner that the whole engagement is contingent, and may never come into effect save at the will of one of the parties, the promises are void for want of mutuality.^"" For in- stance, if A., in consideration that X. promises to pay him a certain price for his goods if he (X.) requires them, prom- ises to supply goods at that price if called upon to do so, there is no valid consideration for A.'s promise, since X. is not bound to take any goods unless he orders them.^"^ However, the test of mutuality is to be applied, not as of the time when the promises are made, but as of the time when one or the other is sought to be enforced. A promise may be unen- forceable for want of mutuality when made, and yet the promisee may render it valid and binding by supplying a consideration on his part before the promise is withdrawn.^"^ Thus, in the case just instanced, A.'s promise is regarded as an offer, and if X. orders goods within a reasonable time, and looHickey v. Dole, 66 N. H. 336, 49 Am. St. Rep. 614; Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207, 74 Am. St. Rep. 683. 200 Ryan V. McLane, 91 Md. 175, 80 Am. St. Rep. 438. See pages 88, 643, supra, as to illusory promises. 201 Crane v. C. Crane & Co. (C. C. A.) 105 Fed. 869; Campbell v. Lambert, 36 La. Ann. 35; Rafolovitz v. American Tobacco Co., 73 Hun (N. Y.) 87. See Smith v. "Weaver, 90 111. 392; Craig v. Harper. 3 Cush. (Mass.) 158; Chicago & G. E. Ry. Co. v. Dane, 43 N. Y. 240. If, however, X. agrees to buy of A. all such articles of a prescribed kind as he may need during a certain period, it implies a promise by X. not to buy any such articles of any one else during that time, and this implied promise is a valid consideration for a promise by A. to furnish such articles of that kind as X. may order in the period specified. National Furnace Co. v. Keystone Mfg. Co., 110 111. 427; Smith V. Morse, 20 La. Ann. 220; Hickey v. O'Brien, 123 Mich. 611; Wells V. Alexandre, 130 N. Y. 642. Contra, Bailey v. Austrian, 19 Minn. 535 (Gil. 465). 202 Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446; Min- nesota Lumber Co. v. Whitebreast Coal Co., 160 111. 85; Davie v. Lum- berman's Min. Co., 93 Mich. 491; Roberts v. Cobb, 103 N. Y. 600; Willetts V. Sun Mut. Ins. Co., 45 N. Y. 45. See page 41, supra. (683) § 338 CONSIDERATION. [Ch. 7 before the offer is withdrawn, a contract results, and A. is bound to furnish the goods at the price agreed.^"* The fact that a promise given for a promise may be de- pendent upon a condition does not affect its validity as a con- sideration. Thus, if A. promises X. to do a piece of work, for which X. promises to pay, provided the workmanship is approved by M.., the promise of X. is a sufficient considera- tion for the promise of A.^°* There are a few apparent exceptions to the rule that both parties must be bound, or neither is liable. These are cases where the contract is voidable at the option of one party alone, as, for instance, in the case of infancy, or of fraud, or of illegality of object unknown to one party to a contract that is innocent in itself.*"" X. Same — Compromise. The compromise of a claim that is disputed either as to the right or as to the amount is supported by a sufficient consid- eration, each party's forbearance being consideration for the forbearance of the other. To sustain the compromise, the claim need not have been legally well founded; but it must have been urged in good faith, in the belief that it was valid and correct. § 338. In general. In case a claim is disputed either as to the right or as to the amount,- the parties may settle the matter by an agree- 203 Great Northern Ry. Co. v. Witham, L. R. 9 C. P. 16. Contra, semble, Campbell v. Lambert, 36 La. Ann. 35. See page 41, supra. 204 Anson, Cent. (8th Ed.) 78; Ray v. Thompson, 12 Cush. (Mass.) 281, Huffcut & W. Am. Gas. Cont. 534; Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387, Huffcut & W. Am. Gas. Cont. 546. A sub- scription contract is an example of a promise given on condition. See page 689, infra. 206 1 Chitty, Cont. (11th Am. Ed.) 23. As to infancy, see page 252, supra; as to fraud, see page 173, supra; as to illegality, see page 457, supra. (684) Ch. 7] COMPROMISE. § 338 ment in which each recedes from his original position in the interest of amity. Such an agreement is called a "compro- mise." Each party's forbearance is supported by the other's forbearance, and thus the settlement is supported by a suffi- cient consideration ; and the claimant cannot avoid the com- promise on the ground that his promise to forego a part of his claim was withoxit consideration, in that the promise of the debtor to pay the sum agreed upon was nothing more than a promise to pay what he was in law already compella- ble to pay.^"® It has been held, indeed, that it is not always necessary that both parties shall recede from their original position. If the aggregate amount is in dispute, the pay- ment of a specified sum, arrived at by including items con- ceded to be due, and excluding disputed items, on condition 206 Longridge v. Dorville, 5 Barn. & Aid. 117, Langdell, Cas. Cont. 285; Nash v. Armstrong, 10 C. B. (N. S.) 259, Langdell, Cas. Cont. 304; Llewellyn v. Llewellyn, 3 Dowl. & L. 318, Langdell, Cas. Cont. 294; Crowther v. Parrer, 15 Q. B. 677, Langdell, Cas. Cont. 301; Wil- kinson V. Byers, 1 Add. & E3. 106, Langdell, Cas. Cont. 203; Hender- son V. Stobart, 5 Bxch. 99, Langdell, Cas. Cont. 299; Smyth v. Holmes, 10 Jur. 862, Langdell, Cas. Cont. 297; Murphy v. United States, 104 TJ. S. 464; Snow v. Grace, 29 Ark. 131; Dunton v. Niles, 95 Cal. 494; Berdell v. Bissell, 6 Colo. 162; Potter v. Douglass, 44 Conn. 541; Park- er V. Enslow, 102 111. 272, 40 Am. Rep. 588; Husband v. Epling, 81 111. 172; Ogbom v. Hoffman, 52 Ind. 439; Adams v. Morton, 87 Iowa, 255; Guild v. Atchison, T. & S. F. R. Co., 57 Kan. 70, 57 Am. St. Rep. 312; Fisher v. May's Heirs, 2 Bibb (Ky.) 448; McClellan v. Kennedy, 8 Md. 230; Goss v. Ellison, 136 Mass. 503; Hinkle v. Min- neapolis & St. L. Ry. Co., 31 Minn. 434; State v. Story, 57 Miss. 738; Riley v. Kershaw, 52 Mo. 224; Crans v. Hunter, 28 N. Y. 389; Feeter V. Weber, 78 N. Y. 334; Nassoiy v. Tomlinson, 148 N. Y. 326, 51 Am. St. Rep. 695; Grasselli v. Lowden, 11 Ohio St. 349; Fink v. Farmers' Bank, 178 Pa. 154, 56 Am. St. Rep. 746; Fleming v. Ramsey, 46 Pa. 252; Bellows v. Sowles, 57 Vt. 164, HufEcut & W. Am. Cas. Cont. 110. See Anonymous, 1 Sid. 31, pi. 9, Langdell, Cas. Cont. 284; Smart v. Chell, 7 Dowl. 781, Langdell, Cas. Cont. 288. A compromise of a doubtful claim may afford consideration for a promise by a third person to the claimant. Banes' Case, 9 Coke, 93b, Langdell, Cas. Cont. 244; Bolln v. Metcalf, 6 Wyo. 1, 71 Am. St. Rep. 898. (685) § 338 CONSIDERATION. [Ch. 7 that the sum so paid shall be accepted in full satisfaction, will be sustained as an extinguishment of the whole claim. ^°' It is not necessary, in order to support a compromise, that the claim shall have been legally well founded, either as to the right or as to the amount.^"* The forbearance involved in compromise is thxis to be distinguished from forbearance to enforce an undisputed claim for a definite amount, which, as we have seen,^"® does not constitute a valid consideration imless the claim is well founded. In the latter case, the claimant does not agree to cancel the debt upon payment of a smaller sum than he claims, as in case of compromise. He simply postpones enforcement of an undisputed debt. How- ever, the claim must have been a lawful one. A compromise of differences arising out of an illegal contract will not be enforced. ^^'^ While the compromised claim need not have been well founded either as to existence or as to amount, yet it must have been urged in good faith, in the belief that it was valid and correct. Otherwise, the claimant would gain a benefit from his own conscious fraud. A compromise of an imf oimd- ed claim that is known by the claimant to be unfounded, is not binding ;^-'-' and in this connection it has been held that 20T Chicago, M. & St. P. Ry. Co. v. Clark, 178 U. S. 353; Tanner V. Merrill, 108 Mich. 58; Puller v. Kemp, 138 N. Y. 231. 208 Callisher v. Bischofesheim, L. R. 5 Q. B. 449, Langdell, Cas. Cent. 281; Ockford v. Barelli, 25 Law T. (N. S.) 504; Troy v. Bland, 58 Ala. 197; Hund v. Geier, 72 111. 393; Jones v. Rittenhouse, 87 Ind. 348; Wray v. Chandler, 64 Ind. 146; Allen v. Bucknam, 75 Me. 352; Flannagan v. Kilcome, 58 N. H. 443; Clark v. TurnbuU, 47 N. J. Law, 265; Russell v. Cook, 3 Hill (N. Y.) 504, HufEcut & W. Am. Cas. Cont. 165; Wehrum v. Kuhn, 61 N. Y. 623; White v. Hoyt, 73 N. Y. 505; Bailey v. Philadelphia, 167 Pa. 569, 46 Am. St. Rep. 691; O'Keson v. Barclay, 2 Pen. & W. (Pa.) 531. 209 See page 677, supra. 210 Bveringham v. Meigham, 55 Wis. 354. 211 Callisher v. Bischofesheim, L. R. 5 Q. B. 449, Langdell, Cas. Cont. 281; Wade v. Simeon, 2 C. B. 548, Langdell, Cas. Cont. 265; Ex parte Banner, 17 Ch. Div. 480; Miles v. New Zealand Alford Estate Co., (686) Ch. 7] COMPOSITION WITH CREDITORS. § 338 reasonable ground for making the claim must have existed.^^'' Generally speaking, however, if the claimant believes in his case, and intends in good faith to prosecute it by suit, the fact that in truth he has no cause of action, and that the other party knows that he has none, will not invalidate a compro- mise, whether made before or after the commencement of lit- igation.^^* It is sufficient if the parties consider the claim so far in doubt as to render it advisable to make the claim a subject of compromise.^-'* XI. Same — Composition with Creditors. A composition agreement between a debtor and all his cred- 32 Ch. Div. 266; "Ware v. Morgan, 67 Ala. 461; Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453, Huffcut & W. Am. Cas. Cont. 138; McKinley V. Watkins, 13 111. 140; Parker v. Bnslow, 102 111. 272; Headley v. Haokley, 50 Mich. 43; Gates v. Shutts, 7 Mich. 126; Flannagan v. Kil- come, 58 N. H. 443; Pitkin v. Noyes, 48 N. H. 294; Grandin v. Gran- din, 49 N. J. Law, 508; Clark v. Turnbull, 47 N. J. Law, 265; Crans V. Hunter, 28 N. Y. 389; Wehrum v. Kuhn, 61 N. Y. 623; Feeter v. Weber, 78 N. Y. 334; Supreme Assembly of Royal Soc. of Goodf el- lows V. Campbell, 17 R. I. 402; Bellows v. Sowles, 57 Vt. 164, Huffcut & W. Am. Cas. Cont. 110; Ormsbee v. Howe, 54 Vt. 182; Davisson v. Ford, 23 W. Va. 617; Fuller v. Green, 64 Wis. 159, 54 Am. Rep. 600. 212 Edwards v. Baugh, 11 Mees. & W. 641, Langdell, Cas. Cont. 290; Ware v. Morgan, 67 Ala. 461; Mulholland v. Bartlett, 74 111. 58; Bcker V. McAllister, 54 Md. 362, 373; Neibles v. Minneapolis & St. L. Ry. Co., 37 Minn. 151; Bellows v. Sowles, 55 Vt. 391. 213 Anson, Cont. 75; Cook v. Wright, 1 Best & S. 559, Langdell, Cas. Cont. 308; Parker v. Enslow, 102 111. 272; Jones v. Rittenhouse, 87 Ind. 348; Flannagan v. Kilcome, 58 N. H. 443; Warren v. William- son, 8 Baxt. (Tenn.) 427; Little v. Allen, 56 Tex. 133. In Miles v. New Zealand Alford Estate Co., 32 Ch. Div. 266, 283, Cotton, L. J., says: "Now, by 'honest claim' I think is meant this: that a claim is honest if the claimant does not know that his claim is unsubstantial, or if he does not know facts, to his knowledge un- known to the other party, which show that his claim is a bad one. Of course, if both parties know all the facts, and, with knowledge of those facts, obtain a compromise, it cannot be said that that is dishonest." 214 Union Bank of Georgetown v. Geary, 5 Pet. (U. S.) 99; Steele v. Vvuite, 2 Paige (N. Y.) 478; McKinley v. Watkins, 13 111. 140. (687) § 339 CONSIDERATION. [Ch. 7 itors, whereby the latter agree to accept a less sum than is due in satisfaction of their respective debts, is sustained by the courts as having a sufficient consideration, though upon differ- ent grounds in different jurisdictions. § 339. In general. A composition with creditors is an agreement between a debtor and all his creditors, whereby the creditors agree to take a less sum in satisfaction of their debts. Such an agree- ment is universally held to be valid,^^^ but different views are taken as to what constitutes the consideration for the promise of any particular creditor, so as to render his prom- ise binding as between himself and the debtor. The view taken by Sir William Anson is that the consid- eration moves from the debtor, and consists in his paying a part of the sum due to the creditor, and procuring a promise by each of the other creditors that each will be content with a similar proportionate payment if the others will forbear to ask for more.^^® This view has been criticised as being open to the objection that the debtor does not always pro- cure the promises from the several creditors, and that the composition is equally binding where the creditors first agree among themselves, and the debtor then accepts their offer.^^'^ 215 Good V. Cheeseman, 2 Barn. & Add. 328; Boyd v. Hind, 1 Hurl. & N. 938; Slater v. Jones, L. R. 8 Bxch. 186; Falconbury v. Kendall, 76 Ind. 260; Murray v. Snow, 37 Iowa, 410; Cheveront v. Textor, 53 Md. 295; Perkins v. Lockwood, 100 Mass. 249, HufEcut & W. Am. Cas. Cont. 197; Farrington v. Hodgdon, 119 Mass. 453; White v. Kuntz, 107 N. Y. 518, 1 Am. St. Rep. 886; Fellows v. Stevens, 24 Wend. (N. Y.) 294; Pierce v. Jones, 8 Rich. (S. C.) 273; Paddleford v. Thaoher, 48 Vt. 574. After the composition, the creditor may not enforce his original claim. His only remedy is on the composition agreement. Chemical Nat. Bank v. Kohner, 85 N. Y. 189. 216 Anson, Cont. (8th Ed.) 90. 217 HufEcut, Ans. Cont. 90, note. (688) Ch. 7] SUBSCRIPTIONS. § 340 Second, it is held that the consideration for the promise of any particular creditor moves from all the other creditors, and consists in the detriment they suffer individually in each taking less than he is entitled to, relying on the promises of the others to do the same.^^* According to this view, the creditors mutually promise each other for the benefit of the debtor. To permit the debtor to enforce these promises could not in reason be allowed in those jurisdictions where a stran- ger to the consideration may not enforce a promise made for his benefit.^^® A third view is that the promises of the various creditors are enforceable as between them and the debtor on the ground of estoppel, since it would be a fraud on the other creditors to permit one subsequently to abandon his promise and re- cover more than he agreed to take, when the others have taken less than they were entitled to, in reliance on his prom- ise to do the same.^^" XII. Same — Stjbsceiptions. Mutual promises to subscribe money to promote a beneficial object in which the subscribers have a common interest are generally sustained in all jurisdictions, though no pecuniary benefit results to the promisors; but various grounds are as- signed for the enforceability of the promise of any particular subscriber. § 340. In general. Where several persons join in promises to subscribe money to some beneficial object, the promise di any particular sub- 218 Good V. Cheesman, 2 Barn. & Adol. 328 ; Robert v. Barnum, 80 Ky. 28; Williams v. Carrington, 1 Hilt. (N. Y.) 515, HufEcut & "W. Am. Cas. Cont. 195. 219 HufEcut, Ans. Cont. 90, note. See section 351, infra. 220 HufEcut, Ans. Cont. 90, note; Metcalf, Cont. 192; Perkins v. Lockwood, 100 Mass. 249, 250, HuflCcut & W. Am. Cas. Cont. 197. See, also, page 639, supra, as to estoppel to deny consideration. (689) Law of Cont. — 44. § 340 CONSIDERATION. [Ch. 7 scriber seems To be sustained on one or the other of two grounds. One view is that the promises of the various subscribers mutually support each other, in that each is made in reliance on the others.^^' This view implies that a stranger to the consideration, namely, the promisee, may enforce the prom- ise as having been made for his benefit, — a course which, as will be seen, cannot be taken in many jurisdictions.^^^ Second, it is held that, by accepting the subscription, the promisee on his part agrees with the subscribers that he will hold and appropriate the fund in conformity with the terms and objects of the subscription, whereby mutual and inde- pendent promises are made between him and each particular subscriber, which constitute sufficient consideration each for the other.^^^ It follows from this view that the subscription 221 Christian College v. Hendley, 49 Cal. 347; Whitsett v. Pre-emp- tion Presbyterian Church, 110 111. 125; McClure v. Wilson, 43 111. 356; Higert v. Indiana Asbury University, 53 Ind. 326; Pierce v. Ruley, 5 Ind. 69; Trustees of Church in Pembroke Second Precinct V. Stetson, 5 Pick. (Mass.) 506; Watkins v. Barnes, 9 Cush. (Mass.) 537; Conrad v. La Rue, 52 Mich. 83; Comstock v. Howd, 15 Mich. 237; Bohn Mfg. Co. v. Lewis, 45 Minn. 164; Methodist Orphans' Home Ass'n V. Sharp, 6 Mo. App. 150; Congregational Soc. in Troy v. Perry, 6 N. H. 164; George v. Harris, 4 N. H. 533; Barnes v. Perine, 12 N. Y. 18, overruling Trustees of Hamilton College v. Stewart, 1 N. Y. 581; Irwin v. Lombard University, 56 Ohio St. 9, 60 Am. St. Rep. 727; Ohio Wesleyan Female College v. Love, 16 Ohio St. 20; Edin- boro Academy v. Robinson, 37 Pa. 210; Trustees Troy Conference Academy v. Nelson, 24 Vt. 189 ; Lathrop v. Knapp, 27 Wis. 214. 222 HufEcut, Ans. Cont. 90, note. See section 351, infra. 223 McClure v. Wilson, 43 111. 356; Hall v. Virginia, 91 111. 535; Trustees Methodist Church v. Garvey, 53 111. 401, 5 Am. Rep. 51; McDonald v. Gray, 11 Iowa, 508, 79 Am. Dec. 509; Collier v. Baptist Education Soc, 8 B. Mon. (Ky.) 68; Trustees of Maine Cent. Institute V. Haskell, 73 Me. 140; Sherwin v. Fletcher, 168 Mass. 413; Ladies Collegiate Institute v. French, 16 Gray (Mass.) 196; Mirick v. French, 2 Gray (Mass.) 420; Bohn Mfg. Co. v. Lewis, 45 Minn. 164; Presbyterian Soc. of Knoxboro v. Beach, 74 N. Y. 72; Barnes v. Perine, 12 N. Y. 18; Philomath College v. Hartless, 6 Or. 1,58; Hel- (690) Ch. 7] ADEQUACY OF CONSIDERATION. § 341 is merely an offer wiiich becomes a contract by acceptance only when the promisee enters upon performance of the con- templated object, and that up to that time the offer is revoca- ble. The promisee must, in reliance on the subscription, have done something to his detriment. The mere fact that the promise of any particular subscriber led others to sub- scribe is not sufficient to charge that subscriber at the in- stance of the promisee. ^^* XIII. AbEQUACY OF COKSIDEEATION. At law, inadequacy of consideration does not, as a rule, af- fect the validity of the contract. A corollary of this rule is that, if the consideration is suf- ficient in part and in part insufficient, the contract will be sus- tained. In equity, inadequacy of consideration is treated as corrobo- rative evidence of fraud or undue influence, such as may enable the promisor to resist a suit for specific performance of the con- tract, or to obtain a cancellation of it. § 341. In general. While the consideration must be something of some value in legal contemplation, yet adequacy of consideration is not regarded by the cotirts except in granting equitable remedies. fenstein's Estate, 77 Pa. 328; Caul v. Gibson, 3 Pa. 416; Cooper v. McCrimmin, 33 Tex. 383; State Treasurer v. Cross, 9 Vt. 289. 224 Grand Lodge v. Farnham, 70 Cal. 158 ; Norton v. Janvier, 5 Har. (Del.) 346; Pratt v. Trustees of Baptist Soc, 93 111. 475, Huffcut & W. Am. Cas. Cont. 35; Beach v. First M. E. Church, 96 111. 177; First M. E. Church v. Donnell, 110 Iowa, 5; University of Des Moines V. Livingston, 57 Iowa, 307; Cottage St. M. E. Church v. Kendall, 121 Mass. 528; Kansas City School Dist. v. Sheidley, 138 Mo. 672; Pitt v. Gentle, 49 Mo. 74; Twenty-Third St. Baptist Church v. Cornell, 117 N. Y. 601; First Presbyterian Church of Albany v. Cooper, 112 N. Y. 517; Helfenstein's Estate, 77 Pa. 328; Phipps v. Jones, 20 Pa. 260; Foust V. Board of Publication, 8 Lea (Tenn.) 552; La Fayette Co. Monument Corp. v. Magoon, 73 Wis. 627. See page 639, supra, as to estoppel to deny consideration. (691) § 342 CONSIDERATION. [Ch. 7 § 342. At law. Courts of common-law jurisdiction will not make contracts for the parties to a suit. If a man gets what he bargained for, they will not inquire whether it was an equivalent to the promise which he gave in return. If it is something of value, in the eye of the law, however slight, its adequacy is for the parties to consider at the time of making the agree- ment, and not for the court to weigh when the agreement is sought to be enforced.^^^ For instance, the expenditure of one's own money for his own benefit under an express prom- ise of another person to reimburse him is a sufiicient consid- eration for the promise ;^^^ and a consideration of one dollar will support a guaranty in a large amount.^ ^^ 225 Anson, Cont. (Sth Ed.) 76; Bolton v. Madden, L. R. 9 Q. B. 55; Bainbridge v. Firmstone, 8 Adol. & E. 743 ; Haigh v. Brooks, 10 Adol. & E. 309, Langdell, Cas. Cont. 210; Westlake v. Adams, 5 C. B. (N. S.) 248, 265, 27 Law J. C. P. 271; Lawrence v. McCalmont, 2 How. (U. S.) 426; Wolford v. Powers, 85 Ind. 294; Cates v. Bales, 78 Ind. 285; Devecmon v. Shaw, 69 Md. 199, Huffcut & W. Am. Cas. Cont. 141; Nash v. Lull, 102 Mass. 60; Train v. Gold, 5 Pick. (Mass.) 380, 384; Hubbard v. Coolridge, 1 Mete. (Mass.) 84, 93; Williams v. Jen- sen, 75 Mo. 681; Perkins v. Clay, 54 N. H. 518; Plannagan v. Kil- come, 58 N. H. 443; Grandin v. Grandin, 49 N. J. Law, 508; Worth V. Case, 42 N. Y. 362; Hamer v. Sidway, 124 N. Y. 538, HufEcut & W. Am. Cas. Cont. 143; Hind v. Holship, 2 Watts (Pa.) 104; Goree v. Wilson, 1 Bailey (S. C.) 597; Giddingsv. Giddings' Adm'r, 51 Vt. 227. It is immaterial that the promise is one in restraint of trade. The courts will none the less refuse to inquire into the adequacy of its consideration. Hitchcock v. Coker, 6 Adol. & E. 438; McCurry V. Gibson, 108 Ala. 451, 54 Am. St. Rep. 177; Linn v. Sigsbee, 67 111. 75; Duffy v. Shockey, 11 Ind. 70; Guerand v. Dandelet, 32 Md. 561; Pierce v. Puller, 8 Mass. 223; Hubbard v. Miller, 27 Mich. 15; Grasselli v. Lowden, 11 Ohio St. 349; McClurg's Appeal, 58 Pa. 51. The rule is otherwise in equity; as, for instance, where the promisee seeks to enjoin a breach of a promise not to engage in business in a certain district. In such a case, the court will pass on the adequacy of the consideration for the promise. Thayer v. Younge, 86 Ind. 259. 226 Devecmon v. Shaw, 69 Md. 199, Huffcutt & W. Am. Cas. Cont! 141. 22' Lawrence v. McCalmont, 2 How. (U. S.) 426. (692) Ch. 7] ADEQUACY OF CONSIDERATION. § 343 A party will not be heard to say that the thing he con- tracted for was of no value, where he has received the ben- efit of it, and, but for the contract, he would not have been entitled to it.^^® Thus, if the licensee of an invalid patent uses the invention the same as if it were valid, and receives the benefit of it, he cannot avoid paying the license fees be- cause of the invalidity.^^® § 343. Same — Exchange of fixed values. The rule that the courts will not inquire into the adequacy of the consideration does not apply to an exchange of things having values fixed by law.^^" Accordingly, a consideration of a specified sum of money will not support a promise to pay a greater sum.^^^ And an agreement to pay an officer more fees than he is allowed by law is likewise without con- sideration, and void,^^^ even though he exerts himself more than usual. ^^^ 228Sykes v. Chadwick, 18 Wall. (U. S.) 141; Mound City Land & Water Ass'n v. Slauson, 65 Cal. 425; Cates v. Bales, 78 Ind. 285; Hall Mfg. Co. V. American Railway Supply Co., 48 Mich. 331; Brooks V. Wage, 85 Wis. 12. 229 Kinsman v. Parkliurst, 18 How. (U. S.) 289; Bartlett v. Hol- brook, 1 Gray (Mass.) 114; Marston v. Swett, 66 N. Y. 206; Davis V. Gray, 17 Ohio St. 331. He is not liable for the fees, however, if, by reason of the invalidity, he has not enjoyed a monopoly con- templated by the license. White v. Lee (C. C.) 14 Fed. 789; Har- low V. Putnam, 124 Mass. 553; Marston v. Swett, 82 N. Y. 526; Angier v. Eaton, Cole & Burnham Co., 98 Pa. 594. See page 697, infra. 23owolford V. Powers, 85 Ind. 294. A promise, made in the early days of the republic, in. considera- tion of the present payment of £25,000 in currency, to pay £2,500 in specie ten years later, is valid. Under the circumstancees, this was not an exchange of things of fixed values. Brachan v. Griffin, 3 Call (Va.) 433. 231 Schnell v. Nell, 17 Ind. 29, Huffcut & W. Am. Cas. Cont. 138; Shepherd v. Rhodes, 7 R. I. 470, Huffcut & W. Am. Cas. Cont. 210. 232 Morrell v. Quarles, 35 Ala. 544; City of Decatur v. Vermillion, 77 111. 315; Kernlon v. Hills, 1 La. Ann. 419; Burk v. Webb, 32 (693) § 345 CONSIDERATION. [Ch. 7 i 344. Same — Partial insufficiency. It follows from what has been said, that where the consid- eration is sufficient in part, and in part insufficient, the courts will sustain a promise based thereon.^^* Thus, if a part of the consideration is a past benefit, and a part a present ben- efit, the promise is valid. ^^® § 345. In equity. In equity, inadequacy of consideration is treated as cor- roborative evidence of fraud or undue influence, such as may enable the promisor to resist a suit for specific performance of the contract,^^^ or to obtain a cancellation of the prom- ise. ^^'^ But mere inadequacy of consideration is not of it- Mich. 173; Evans v. Inhabitants of Trenton, 24 N. J. Law, 764; Territory v. King, 1 Or. 106; Smith v. Whildin, 10 Pa. 39, Huffcut & W. Am. Gas. Cont. 176. See pages 395, 664, supra. ' 233 Hatch V. Mann, 15 Wend. (N. Y.) 44. 234 Colston V. Carre, 1 Rolle, Ahr. 30, Langdell, Cas. Cont. 401; Best V. Jolly, 1 Sid. 38, Langdell, Cas. Cont. 402; King v. Sears, 2 Cromp., M. & R. 48, Langdell, Cas. Cont. 403; King v. King, 63 Ohio St. 36S, 81 Am. St. Rep. 635. See page 701, infra. This is not al- ways so, if the insufficiency of a part of the consideration is the result of illegality. See page 466, supra. 235 Bret V. J. S., Cro. Eliz. 756, Langdell, Cas. Cont. 192; Wiggins V. Keizer, 6 Ind. 252; Loomis v. Newhall, 15 Pick. (Mass.) 159; Roberts v. Griswold, 35 Vt. 496. 236 Anson, Cont. (8th Ed.) 77; Abbott v. Sworder, 4 De Gex & S. 448; Cathcart v. Robinson, 5 Pet. (U. S.) 263; Shepherd v. Bevin, 9 Gill (Md.) 32; Harrison v. Town, 17 Mo. 237; Powers v. Hale, 25 N. H. 145; Seymour v. Delancy, 3 Cow. (N. Y.) 445; Galloway v. Barr, 12 Ohio, 354; Gasque v. Small, 2 Strob. Eq. (S. C.) 72; Con- rad V. Schwamb, 53 Wis. 372. 237 Anson, Cont. (8th Ed.) 77; Bowman v. Patrick (C. C.) 36 Fed. 138; Grindrod v. Wolf, 38 Kan. 292; Woollums v. Horsley, 93 Ky. 582; Gifford v. Thorn, 9 N. J. Eq. 702, 713; Hall v. Perkins, 3 Wend. (N. Y.) 626, Huffcut & W. Am. Cas. Cont. 311. This is especially true where a person standing in a confidential relation with another fails to disclose material facts to him, and thereby procures a transfer of his property for an inadequate price. Keith (694) Ch. 7] WANT AND FAILURE. § 346 self sufficient to justify relief in either of these respects un- less it is so gross as to "shock the conscience," as the phrase goes, and amount in itself to conclusive evidence of fraud.^*® Gross inadequacy of consideration may of itself establish fraud.^^^ XIV. Want ok Failure of Consideeation. Want of consideration is the lack of any consideration what- ever for a promise at the time it is made. Failure of consideration occurs where, though a sufficient consideration was contemplated by the parties when the prom- ise was made, it nevertheless eventually happens that nothing of value is in fact received from the promisee. Failure of consideration may, under certain conditions, result from any one or more of the following causes, namely : (a) Inherent deficiency in the consideration promised. (b) Omission of the promisee to fulfill a condition preced- ent to the enforcement of the promise. (c) Accident rendering performance by the promisee im- possible. Total want or failure of consideration invalidates the con- tract, so that no recovery may be had on it. V. Kelland (C. C.) 35 Fed. 243; Bowman v. Patrick (C. C.) 36 Fed. 138; Shepherd v. Bevin, 9 Gill (Md.) 32. 238 Coles V. Trecothick, 9 Ves. 234; Erwin v. Parham, 12 How. (U. S.) 197; Cathcart v. Robinson, 5 Pet. (U. S.) 263; Bowman v. Pat- rick (C. C.) 36 Fed. 138; Talbott's Devisees v. Hooser, 12 Bush (Ky.) 408; Shepherd v. Bevin, 9 Gill (Md.) 32; Shaddle v. Dis- borough, 30 N. J. Eq. 370; Seymour v. Delancy, 3 Cow. (N. Y.) 445; Galloway v. Barr, 12 Ohio, 354; Hough's Adm'rs v. Hunt, 2 Ohio, 495; Conaway v. Sweeney, 24 W. Va. 643; Conrad v. Schwamb, 53 Wis. 378. See page 200, supra. 239 Griffith V. Spratley, 1 Cox, 383, 389; Eyre v. Potter, 15 How. (U. S.) 42, 59; Duncan v. Sanders, 50 111. 475; Hunter v. McLaugh- lin, 43 Ind. 38; Blake y. Blake, 7 Iowa, 46; Talbott's Devisees v. Hooser, 12 Bush (Ky.) 408; Green v. Thompson, 37 N. C. 365; Knobb V. Lindsay, 5 Ohio, 469 ; Merriman v. Lacefleld, 4 Heisk. (Tenn.) 209. (695) § 346 CONSIDERATION. [Ch. 7 Partial want or failure of consideration does not invalidate the contract, though either may, under certain circumstances, constitute a defense pro tanto in an action thereon, or may entitle the promisor to rescind the contract or to recover dam- ages from the promisee. If the promise be fulfilled by the payment of money or the delivery of property, either may be recovered back upon a sub- sequent failure of consideration for the promise. Partial failure of consideration does not entitle the promisor to this relief unless the consideration is divisible, or an appor- tionment of it can be made without difficulty between that part of the contract which has been performed by the promisee and that which remains to be done. § 346. In general. The distinction between want of consideration and failure of consideration is not clear, but the obscurity gives rise to little or no difficulty in practice. Want of consideration or- dinarily means the lack of any consideration whatever for a promise at the time it is made. Failure of consideration means that, while a sufficient consideration was contemplat- ed by the parties when the promise was made, yet, by reason of some inherent defect in the thing given, or the nonper- formance in whole or in part of the act which the promisee agreed to perform, it eventually happens that nothing of value is in fact received from the promisee. Failure of consideration must be distinguished from in- adequacy of consideration. As we have seen, if a promisor gets all he bargained for, and it is of some value, in con- templation of law, however slight, he cannot, in the absence of fraud or mistake, complain that the consideration has failed in that what he has received does not fulfill his ex- pectations.^^** 240 Scott v. Scott, 105 Ind. 584; Jones v. Reynolds, 120 N. Y. 213; Johnston v. Smith, 86 N. C. 498. And see page 698, infra. See page 692, supra, as to inadequacy of consideration. (696) Ch. 7] WANT AND FAILURE. § 347 § 347. What constitutes failure of consideration — Inherent deficiency of consideration. A& a rule, if that for which a promise was made proves to be a nullity, the consideration fails, and the contract is void.^*^ Thus, a promise based upon the assignment of a patent which is apparently good, but is really void, is without consideration;^*^ as where a note was given for a machine and the exclusive right to use it in a certain district under a patent which was found to be void for noncompliance with the statute. It was held that there could be no recovery on the note.^*^ N'or is it necessary that the patent should be absolutely void to justify nonpayment of a note given for it. A recovery will be defeated if the patent is useless for the purpose named in the letters.^** Upon the same principle, a promise to pay the price of a warranted article which turns out to be worthless becomes void for failure of considera- tion f^^ as where a note is given for a machine which is war- ranted to be in good condition, and capable of doing good work. If the machine proves to be useless, that fact is a defense to an action on the note.^*® 241 Sorrells v. McHenry, 38 Ark. 127; Pettyjohn v. Liebscher, 92 Ga. 149; Jeffries v. Lamb, 73 Ind. 202; Montelius v. Wood, 56 Iowa, 254; Dodge v. Oatis, 27 Kan. 762; Woods v. ScMater, 24 La. Ann. 284; Cabot v. Haskins, 3 Pick. (Mass.) 83; Deering Harvester Co. V. Melbeim, 83 Minn. 359; Nichols & Shepard Co. v. Soderquist, 77 Minn. 509; Wentworth v. Wentworth, 5 N. H. 410; Crosby v. Wood, 6 N. Y. 369; House v. Kendall, 55 Tex. 40. 242 Sandage v. Studebaker Bros. Mfg. Co., 142 Ind. 148, 51 Am. St. Rep. 165; Snyder v. Kurtz, 61 Iowa, 593; First Nat. Bank of Sturgis V. Peck, 8 Kan. 660; Lester v. Palmer, 4 Allen (Mass.) 145; Bierce v. Stocking, 11 Gray (Mass.) 174; Jolliffe v. Collins, 21 Mo. 338; Herzog v. Heyman, 151 N. Y. 587, 56 Am. St. Rep. 646; Geiger V. Cook, 3 Watts & S. (Pa.) 266; Clough v. Patrick, 37 Vt. 421. See page 693, supra. 243 Earl V. Page, 6 N. H. 477, 26 Am. Dec. 711. 2"Rowe v. Blanchard, 18 Wis. 441, 86 Am. Dec. 783. 245 Lathrop v. Hickson, 67 Ga. 445; Button v. Trader, 75 Mich. 295; Shepherd v. Temple, 3 N. H. 455. 246 Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476. (697) § 347 CONSIDERATION. [Ch. 7 The decisions are not uniform on the question whether to- tal failure of title to real estate renders the contract void, so as to be a complete defense to an action by the promisee for the price. Some courts hold that it does not, in the ab- sence of fraud or warranty.^*'^ Thus, if a note is given for a quitclaim deed, and it afterwards turns out that the gran- tor had no title, payment of the note cannot for that reason be resisted.^** In most states, if land is conveyed by deed with covenants of warranty and seisin, and title thereto en- tirely fails, the purchaser may plead the failure in defense of an action for the price. He is not now required, as he once was, to pay the price, and then bring an action upon the covenants, if he desires relief.^** Failure of the title to personal property which forms the subject of a contract of sale constitutes failure of considera- tion, and is a valid defense to an action for the price.^^" If the parties are not mistaken as to the existence or na- ture or condition of the consideration, and there is no fraud, the fact that the consideration proves to be worthless does not invalidate the contract as by failure of consideration.^*^ 247 Dunn v. Barnum (C. C. A.) 51 Fed. 355, 10 U. S. App. 86; Town of Barkhamstead v. Case, 5 Conn. 528; Long v. Allen, 2 Fla. 403, 50 Am. Dec. 281; Holmes v. Shaver, 78 111. 578; Stookey v. Hughes, 18 111. 55; Findley v. Richardson, 46 Iowa, 103; Connecti- cut Mut. Life Ins. Co. v. Smith, 117 Mo. 261, 38 Am. St. Rep. 656; Chesterman v. Gardner, 5 Johns. Ch. (N. Y.) 29, 9 Am. Dee. 265. 248 Clark V. Sigourney, 17 Conn. 511. 249 Heaton v. Myers, 4 Colo. 59; Cook v. Mix, 11 Conn. 432; Slack V. McLagan, 15 111. 242; Davis v. McVickers, 11 111. 327; Fleetwood v. Brown, 109 Ind. 567; Rice v. Goddard, 14 Pick. (Mass.) 293; Red- ding V. Lamb, 81 Mich. 318; Durment v. Tuttle, 50 Minn. 426; Til- lotson V. Grapes, 4 N. H. 444; Tibhets v. Ayer, Hill & D. (N. Y.) 174; Steinhauer v. Witman, 1 Serg. & R. (Pa.) 438; Gray v. Hand- kinson's Bx'rs, 1 Bay (S. C.) 278; Chandler v. Marsh, 5 Vt. 162. Contra, Fields v. Clayton, 117 Ala. 538, 67 Am. St. Rep. 189; Jen- ness V. Parker, 24 Me. 289. 250 Chenault v. Bush, 84 Ky. 528; Maxfield v. Jones, 76 Me. 135; Vance v. Davenport, 11 Rich. Law (S. C.) 517. 251 Pollard v. Lyman, 1 Day (Conn.) 156; Wheat v. Cross, 31 Md. (698) Oh. 7] WANT AND FAILURE. § 347 Nor does the consideration fail, in contemplation of law, be- cause, after the contract is made, the thing constituting the consideration either depreciates in value or becomes worth- less.^°^ A note given before the Civil War as the price of a slave was therefore enforced after the war, in spite of the fact of emancipation.^®'* Omissions of promisee. Where the consideration for a promise is a reciprocal en- gagement to do an act, such as to deliver goods, or to convey a valid title to real estate, or to render services, and perform- ance of the act is made a condition precedent to the fulfill- ment of the promise, the omission of the promisee to keep his engagement constitutes a failure of consideration.^^* On 100; Kerr v. Lucas, 1 Allen (Mass.) 279; Reed v. Prentiss, 1 N. H. 174, 8 Am. Dec. 50; Beninger v. Corwin, 24 N. J. Law, 257; Fay's Adm'r v. Richards, 21 Wend. (N. Y.) 626; Ellis v. Adderton, 88 N. C. 472; Carson v. Kelley, 57 Tex. 379; Mason v. Chappell, 15 Grat. fVa.) 572. See, also, page 696, supra. 252 Wells V. Carr (C. C.) 25 Fed. 541; Blackman v. Dowling, 63 Ala. 304; Daniel v. Tarver, 70 Ga. 203; Smock v. Pierson, 68 Ind. 405; Smith v. Gower, 2 Duv. (Ky.) 17; Gore v. Mason, 18 Me. 84; Byrne v. Cummings, 41 Miss. 192; Harmon v. Bird, 22 Wend. (N. Y.) 113; Button v. Clark, 16 Ohio, 297; Kerchner v. Gettys, 18 S. C. 521; Topp V. White, 12 Heisk. (Tenn.) 165; Loggins v. Buck's Adm'r, 33 Tex. 113; Perry v. Buckman, 33 Vt. 7. See page 700, however. 253 Wilkinson v. Cook, 44 Miss. 367; Thompson v. Warren, 5 Cold. (Tenn.) 644. 2^i Nonperformance of services: Billings v. Everett, 52 Cal. 661; Booth v. Fitzer, 82 Ind. 66; Taft v. Montague, 14 Mass. 282, 7 Am. Dec. 215; Denniston v. Bacon, 10 Johns. (N. Y.) 198; Pope v. Hays, 19 Tex. 375. Failure to make title to land: Gorham v. Reeves, 3 Ind. 83; Cooper V. King, 73 Iowa, 136; Campbell v. Brown, 6 How. (Miss.) 106; Garrett v. Crosson, 32 Pa. 373. And see page 698, supra. Nondelivery of goods: Shoe & Leather Nat. Bank v. Wood, 142 Mass. 563; Sawyer v. Chambers, 44 Barb. (N. Y.) 42. See section 467, infra, as to conditions precedent. (699) § 347 CONSIDERATION. [Ch. 7 the other hand, if two reciprocal engagements between the same parties are separate and distinct, though mutual, and are to be performed at different times, the nonperformance of one of them does not amount to a failure of consideration for the other.^°' Thus, if a man gives a note in considera- tion that the payee shall deliver up to him another note at a different time, failure to deliver up the note called for is no defense to an action on the one last given.^^® The omission of the promisee to perform the engagement which constitutes the consideration for the promise does not amount to a failure of consideration, where performance is rendered impossible by the promisor's own act.^''^ An odd illustration of this is furnished by a case where a person in- dicted for crime retained a lawyer and gave a note for the fee, and afterwards, and before the trial, committed suicide. It was held that the consideration for the note had not failed.258 Accident. In a limited class of cases, where the contract is wholly executory, and through accidental or unforeseen causes — such, for instance, as the subsequent destruction of the subject- matter of the contract by fire — the promisee is rendered un- able to fulfill his engagement, the consideration for the prom- ise fails, and there can be no recovery thereon.^®® 255 Todd V. Whitney, 27 Me. 480; Turner v. Rogers, 121 Mass. 12. See section 461 et seq., infra, as to independent promises. 266Traver v. Stevens, 11 Cush. (Mass.) 167. 257 stray v. Russell, 1 EI. & El. 888, 903; Bean v. Proseus (Cal.) 31 Pac. 49. See section 459, infra, as to breach of contract by pre- venting performance. 258 Mitcherson v. Dozier, 7 J. J. Marsh. (Ky.) 53, 22 Am. Dec. 116. 250 Arthur v. Blaekman (C. C.) 63 Fed. 536; Edwards v. Pyle, 23 111. 295. See page 699, supra, however. See section 415 et seq., infra, as to impossibility of performance. (700) Ch. 7] WANT AND FAILURE. § 34s § 348. EfEect of want or of failure of consideration — Want of consideration. It follows from what has been said as to the necessity for a consideration, and the reality or sufficiency thereof, that an entire want of consideration renders the promise absolute- ly void, so that no action may be maintained thereon. In case the want of consideration is only partial, however, the promise, if severable, may be valid and enforceable to the extent that the consideration is suificient.^®" Failure of consideration. The effect of a total failure of consideration is the same as in case of an original want of consideration. The prom- ise is void and imenforceable.^®^ Partial failure of consideration does not invalidate the con- tract, in the absence of fraud, and it may accordingly be en- forced. ^^^ However, if the promisor suffers loss by reason 260 Keller v. Vowell, 17 Ark. 445; Doebler v. Waters, 30 Ga. 344; Gamble v. Grimes, 2 Ind. 392; Robson v. McKoin, 18 La. Ann. 544; Parish v. Stone, 14 Pick. (Mass.) 198, 25 Am. Dec. 378; Collins Iron Co. v. Burkam, 10 Mich. 283; Deering Harvester Co. v. Melheim, 83 Minn. 359; Briscoe v. Kinealy, 8 Mo. App. 76; Griffiths v. Parry, 16 Wis. 218. This latter statement is not always so, if the want of consideration results from illegality. See page 466, supra. 261 Arthur v. Blackman (C. C.) 63 Fed. 536; Bryant v. Bryant, 35 Ala. 315; Russ Lumber & Mill Co. v. Muscupiabe Land & Water Co., 120 Cal. 521, 65 Am. St. Rep. 186; Paton v. Stewart, 78 111. 481; Sandage v. Studebaker Bros. Mfg. Co., 142 Ind. 148, 51 Am. St. Rep. 165; Booth v. Fitzer, 82 Ind. 66; Chemical Electric Light & Power Co. V. Howard, 148 Mass. 352; Sawyer v. Chambers, 44 Barb. (N. Y.) 42; Rowe v. Blanchard, 18 Wis. 441, 86 Am. Dec. 783. 262 Franklin v. Miller, 4 Adol. & E. 599, 605, Langdell, Cas. Cont. 872; Greenleaf v. Cook, 2 Wheat. (U. S.) 13; Wilson v. Jordan, 3 Stew. & P. (Ala.) 92; Barkhamsted v. Case, 5 Conn. 528; Long v. Allen, 2 Fla. 403; Juchter v. Boehm, 63 Ga. 71; Case v. Grim, 77 Ind. 565; Hodgdon v. Golder, 75 Me. 293; Smith v. Sinclair, 15 Mass. 171; Wesleyan Seminary v. Fisher, 4 Mich. 515; Torinus v. Buckham, 29 Minn. 128; Gotten v. McKenzie, 57 Miss. 418; Tal- (YOl) § 348 CONSIDERATION. [Ch. 7 of the partial failure of consideration for the promise, the promisee is liable to respond in damages therefor,**^ and a partial failure of consideration may entitle the promisor to rescind the contract.^^* Partial failure of the consideration for a negotiable in- strument may be pleaded as a defense pro tanto in an action on the paper, if the amount of the failure is liquidated, or can be definitely ascertained by computation f^^ and, by the weight of modern authority, the rule is the same where the damages are unliquidated.^"^ Thus, if the title to real estate partially fails, the purchaser may show that fact in defense of an action upon notes given by him for the price. He is not restricted to a cross action against the purchaser for re- lief.2" madge v. Wallis, 25 "Wend. (N. Y.) 107; Brown v. Reeves, 7 Mart. (N. S.; La.) 235; Van Lew v. Parr, 2 Rich. Bq. (S. C.) 321. See Crisp V. Golding, 1 Leon. 296, Langdell, Cas. Cont. 401. See, also, page 694, supra. 263 Bishop, Cont. § 74; 1 Parsons, Cont. 462-467; Metcalf, Cont. 216, 219, 220; Cook v. IVIix, 11 Conn. 432; Stockham v. Cheney, 62 Mich. 10; Van Bpps v. Harrison, 5 Hill (N. Y.) 63; Hart v. Porter's Ex'rs, 5 Serg. & R. (Pa.) 201. 204 Bishop, Cont. § 74; 1 Parsons, Cont. 462-467; Street v. Blay, 2 Barn. & Adol. 456, 22 E. C. L. 456; Laevison v. Baird, 91 Ky. 204; Gray v. Handkinson's Ex'rs, 1 Bay (S. C.) 278. 205Agnew v. Walden, 84 Ala. 502; Russ Lumber & Mill Co. v. Muscupiabe Land & Water Co., 120 Cal. 521, 65 Am. St. Rep. 186; McHenry v. Yokum, 27 111. 160; Perley v. Balch, 23 Pick. (Mass.) 283, 34 Am. Dec. 56; Stevens v. Johnson, 28 Minn. 172; Spalding v. Vandercook, 2 Wend. (N. Y.) 431; Peterson v.- Johnson, 22 Wis. 21, 94 Am. Dec. 581, and note. 26eAgnew v. Walden, 84 Ala. 502; Hall v. McArthur, 82 Ga. 572; Great Western Ins. Co. v. Rees, 29 111. 272; Mader v. Cool, 14 Ind. App. 299, 56 Am. St. Rep. 304; Herbert v. Ford, 29 Me. 546; Stacy V. Kemp, 97 Mass. 166; Staab v. Ortiz, 3 N. M. 33; Holzworth v. Koch, 26 Ohio St. 33; Davis v. Wait, 12 Or. 425. And see Bell's Adm'r v. Huggins' Adm'r, 1 Bay (S. C.) 326. 267 Schuchman v. Knoebel, 27 111. 175 ; Davis v. Bean, 114 Mass. 358; TorinuB v. Buckham, 29 Minn. 128; Durment v. Tuttle, 50 Minn. 426; Steinhauer v. Witman, 1 Serg. & R. (Pa.) 438; Hart v. Por- (702) Ch. 7] WANT AND FAILURE. § 34g Same — Quasi contractual remedies. In case the consideration for a promise fails, and, before discovery of that fact, the promisor fulfills his promise by the payment of money or the transfer of property, he may re- cover back the money so paid^®* or the property so deliv- ered.^*^ Partial failure of consideration does not, as a rule, entitle the party to this relief. In such ease, his remedy is ordinarily an action for breach of contract.^'" But in case the consideration is divisible, or an apportionment of the con- sideration can be made without difficulty between that part of the contract which has been performed and that which still remains to be done, the consideration for the unperformed part may be recovered back.^''^ ter's Ex'r, 5 Serg. & R. (Pa.) 201; Edwards v. Porter, 2 Cold (Tenn.) 42. 268 Devaux v. Conolly, 8 C. B. 640; Bicholz v. Bannister, 34 La-w J. C. P. 105; Pettibone v. Roberts, 2 Root (Conn.) 258; Steele v. Hobbs, 16 111. 59; "Woodward v. Pels, 1 Bush (Ky.) 162; Foss v. Richardson, 15 Gray (Mass.) 303; Hotchkiss v. Judd, 12 Allen (Mass.) 447; Leach v. Tilton, 40 N. H. 473; Chapman v. Brooklyn, 40 N. Y. 372; Darst v. Brockway, 11 Ohio, 462; Wharton v. O'Hara, 2 Nott & McC. (S. C.) 65; Noyes v. Parker, 64 Vt. 379. 269 Essery v. Cowlard, 26 Ch. Div. 191. 270 Hunt V. Silk, 5 East, 449; Crisp v. Gamel, Cro. Jac. 128, Lang- dell, Cas. Cont. 402; Bradburne v. Bradburne, Cro. Eliz. 149, Lang- dell, Cas. Cont. 401. 27iLaflin v. Howe, 112 111. 253; Goodspeed v. Fuller, 46 Me. 141 (703) PART III. CHAPTER VIII. OPERATION OP CONTRACT. I. Operation of Contract. § 348a. In General. II. Limits of Conteactwal Relation. § 349. In General. III. Same — Imposing Liability on Third Person. § 350. In General. IV. Same — Conferring Right on Third Person. § 351. In General. 352. Exceptions, Real and Apparent. 353. Statutory Changes. V. Assignment of Contract. § 354. In General. VI. Assignment by Act of the Parties — Liabilities. § 355. In General. VII. Same — Assignment of Rights at Law. § 356. In General. VIII. Same — Assignment of Rights in Equity. § 357. In General. 358. Conditions of Assignability. IX. Same — Assignment of Rights under Statute. § 359. In General. X. Same — Assignment of Rights Arising from Negotiable In- struments. § 360. In General. 361. Consideration. (704) Ch. 8] OPERATION OF CONTRACT. 362. Notice. 363. Title and Equities. XI. Assignment by Opekation of Law. § 364. In General. XII. Same — ^Assignment by Transfer of Land. § 365. In General. 366. Covenants Affecting Leasehold Interests. 367. Covenants Affecting Freehold Interests. XIII. Same — Assignment by Maumage. I 368. In General. XIV. Same — ^Assignment by Death. § 369. In General. XV. Same — Assignment by Bankeuptcy. § 370. In General. XVI. Joint and Several Contracts. § 371. In General. XVII. Same — Joint Contracts. § 372. In General. 373. Joint Promisors. 374. Joint Promisees. XVIII. Same — Several Contracts. § 375. Several Promisors. 376. Several Promisees. XIX. Same — Contracts Both Joint and Several. § 377. In General. 378. Joint and Several Promisors. 379. Joint and Several Promisees. XX. Same — Construction of Contract. § 380. In General. 381. Construction as to Promisors. 382. Construction as to Promisees. XXI. Same — Contribution between Joint Debtors. § 383. In General. (705) Law of Cont. — 45. § 319 OPERATION OF CONTRACT. [Ch. 8 I. Operation op Contract. S 348a. In general. Having explained the conception of contract, and stated the requisites necessary to its formation, we come now to deal with the operation and effect of a valid contract when formed. The treatment of this question may be convenientr ly stated under three heads: First. The limits of the con- tractual relation with reference to imposing liabilities or con- ferring rights on third persons not parties to the agreement. Second. The assignment of the contract, or, rather, the rights and liabilities created by it, to third persons not originally parties to it. Third. The operation and effect of a contract having several parties on one or both sides, with reference to the rights of the parties inter se. II. Limits of Contkactual Relation. A person who is not a party to a contract cannot, as a rule, be included in the rights or liabilities which the engagement creates. This rule applies to contracts made by a principal through an agent, and to contracts creating a trust for the benefit of a third person. These classes of contract are only apparent ex- ceptions to the rule. § 349. In general. An essential element of the conception of contract is the tie which, in legal contemplation, binds the parties together.-' Third persons who do not join in the agreement are not, therefore, affected by the contract. Eights cannot, as a rule, be conferred on them, on the one hand, nor, on the other, can they be subjected to liabilities which they have not consented to assume.^ There are two apparent exceptions to the rule that a per- 1 See page 10, svpra. 2Boyer v. Tressler, 18 Ind. 260; Raid v. Venderheyden, 5 Cow. (N. Y.) 719; Simson v. Brown, 68 N. Y. 355. (700) Ch. 8] LIMITS OP RELATION. § 349 son who is not a party to a contract cannot be included in the rights or liabilities which the engagement creates. One is the case of a contract made by a principal through an agent. The other is the case of a contract creating a trust for the benefit of a third person. A man may make a contract with- out coming into direct contact or even direct communication with the other contracting party. This he may do by means of a third person, who acts in his behalf, and is commonly known as an "agent."^ When an agent makes a contract in the principal's behalf, he in fact creates an engagement which confers rights and imposes liabilities on the principal, and this case seems, therefore, to be an exception to the rule that only the parties to a contract are affected by it. The excep- tion is only apparent, however, since the agent does not act for himself. His character is purely representative and the principal is the real contracting party. A contract made by an agent binds the principal only by force of a previous au- thority or a subsequent ratification, and that authority or rat- ification constitutes the principal's assent to be bound by the engagement, so that the contract which binds him is not that of the agent, but his own.* As to the other exception, to quote from Sir William Anson,® "A trust has this in common with contract: that it originates in agreement, and that, among other objects, it aims at creating obligations. If we could place a trust upon the precise footing of contract, we might say that it formed a very real and substantial exception to the general rule which we have laid down. Doubtless the creator of a trust and the trustee do, by agreement, bring rights into existence which a third party, the cestui que trust , may enforce. But we will set aside trusts from this discus- sion, and with reason ; for contract differs from other forms of agreement in having for its sole and direct object the crea- 3 See page 62, supra. 4 Anson, Cont. (8th Ed.) 224, 232; Pollock, Cont. 192, 195. c Anson,' Cont. (8th Ed.) 224. (707) § 350 OPERATION OP CONTRACT. [Ch. 8 tion of an obligation.^ The contractual obligation differs from other forms of obligation mainly in springing from the volimtary act of the parties obliged.'' A trust and the obli- gations resulting from a trust correspond to neither of these characteristics. The agreement which creates a trust has many other objects besides the creation of obligations, and these objects may include conveyance, and the subsequent devolution of property. The obligation which exists be- tween trustee and cestui que trust does not come into exist- ence by the act of the parties to it. It is better, therefore, having noted the similarities between the contractual and the fiduciary obligation, to dismiss the latter altogether from our inquiries." The case of a contract creating a trust is therefore, as the case of a contract made through an agent, only an apparent exception to the rule that only the parties to a contract are affected by it. III. Same — Imposing Liabilitt on Third Pbbson. A man is not liable on a contract, express or implied, unless he was originally a party to it, or has become a party to it by subsequent agreement with the original parties. However, it is a rule, subject to some qualifications, that a duty rests upon all third persons alike not to interfere with the due performance of a contract between others. § 350. In general. Liability ex contractu cannot be imposed upon a man other- wise than with his consent, express or implied.^ This rule, in its application to the operation of contract, may be stated thus : A man is not liable on a contract, whether express or implied, unless he was originally a party to it, or has become a party to it by subsequent agreement with the original par- ties. In other words, two persons cannot, by joining in a 6 See page 13, supra. ' See page 6 et seq., supra. 8 See pages 7, 58, supra. (708) Ch. 8] LIABILITIES OP THIRD PERSONS. § 350 contract, impose contractual liabilities upon a third person.* Thus, A. may employ X. to do a certain service for him under such circumstances as to render X. an independent con- tractor. With or without A.'s knowledge, X. may employ M. to do the work, in whole or in part, in performance of the contract. In this event, il. cannot recover compensa- tion from A., since X. and M. could not, by their contract, impose a liability on A.^" Nor can an agent render his prin- cipal liable to a subagent, or the stibagent liable to the prin- cipal, unless the principal has either expressly or impliedly authorized the appointment of a subagent.-'^ Another case that might be referred to the same principle is that "of a con- tract made by the promoters of a corporation in its behalf before organization. Unless liability on the contract is im- posed upon the corporation by its charter, or unless it adopts or ratifies the contract after coming into existence, it is not bound by the contract ; and this is so, even though the agree- ment was made in its name, and with the understanding that it would perform the same,^^ and even though the promoters who made the contract are the only members of the corpora- tion.^^ s> Anson, Cont. (8th Ed.) 225; Bolles v. Carli, 12 Minn. 113, 119 (Gil. 62); Rossmann v. Townsend, 17 Wis. 95. 10 Schmaling v. Thomlinson, 6 Taunt. 147. iiHufCcut, Agency, §§ 92-95; Exchange Nat. Bank of Pittsburgh V. Third Nat. Bank of New York, 112 U. S. 276; Dun v. City Nat. Bank of Birmingham (C. C. A.) 58 Fed. 174; Fairchild v. King, 102 Cal. 320; Davis v. King, 66 Conn. 465, 50 Am. St. Rep. 104; Bailie V. Augusta Sav. Bank, 95 Ga. 277, 51 Am. St. Rep. 74; Guelich v. National State Bank of Burlington, 56 Iowa, 434. 12 1 Clark & M. Corp. § 101 ; Payne v. New South Wales Coal & I. S. Navigation Co., 10 Bxch. 283; Winters v. Hub Min. Co. (C. C.) 57 Fed. 287; Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 206, 13 Am. St. Rep. 23; Scadden Flat Gold Min. Co. v. Scadden, 121 Cal. 33; Park v. Modern Woodmen of America, 181 111. 214; Abbott v. Hapgood, 150 Mass. 248, 15 Am. St. Rep. 193; Munson v. Syracuse, G. & C. R. Co., 103 N. Y. 58. 13 Battelle v. Northwestern Cement & Concrete Pavement Co., 37 Minn. 89. ("709) § 350 OPERATION OF CONTRACT. [Ch. 8 In this connection we should note the distinction between obligation and duty. Obligation is the special tie that binds together definite, assignable members of the community for the doing or forbearing of certain things, and, as we have seen,^* it is an essential feature of the juristic conception of contract. Duty, on the other hand, is the necessity that rests upon all persons alike to respect the rights that the law sanctions. Inow, while a contract cannot, as has been said, impose the burdens of an obligation tipon any person who is not a party to it, yet a duty rests upon all third per- sons alike not to interfere with its due performance. In other words, the parties to a contract enjoy rights in rem as well as rights in personam. The obligation binds the par- ties, and them only. The duty to respect the contractual tie so far as not to interfere with it rests upon all the world. -"^^ Thus, it is everywhere agreed that it is an actionable wrong to entice away a man's servant from his employment. In- dependently of any right to sue the servant for breach of the contract of employment, the master may hold the guilty per- son liable in damages for thus wrongfully inducing the serv- ant to sever the relation.^® Many courts, indeed, go further, 1* See page 10, supra. 15 Anson, Gont. (8th Ed.) 226, 227. As to the distinction between right in rem and right in personam., see page 18, supra. 16 Old Dominion Steamship Co. v. McKenna (C. C.) 30 Fed. 48; Hightower v. State, 72 Ga. 482; Jones v. Blocker, 43 Ga. 331; Web- ber V. Barry, 66 Mich. 127; Bixby v. Dunlap, 56 N. H. 456; Noice V. Brown, 39 N. J. Law, 569; Haskins v. RIoyster, 70 N. C. 601; Huff V. Watkins, 15 S. C. 82, 40 Am. Rep. 680. The relation of master and servant is such as will sustain an action in the name of the master for an injury to the servant caus- ing loss of his services. Ames v. Union Ry. Co., 117 Mass. 541; Woodward v. Washburn, 3 Denio (N. Y.) 369. Provided, that the servant is a menial one. Burgess v. Carpenter, 2 Rich. (S. C.) 7. An injunction will not issue to prevent the, termination, in a lawful way, of the relation of master and servant. Toledo, A. A. & N. M. Ry. Co. V. Pennsylvania Co. (C. C.) 54 Fed 730. (710) Ch. 8] RIGHTS OF THIRD PERSONS. § 250 and lay down the broad principle that a man who unjusti- fiably induces one of two parties to a contract to break it, in- tending thereby to injure the other, or to obtain a benefit tor himself, does that other a wrong, for which he must respond in damages.^'' This broad view does not prevail in all states, however. Some courts hold that, apart from the case of master and servant, an action will not lie against a person who maliciously induces the breach of a contract between the plaintiff and another, unless unlawful means are used to ac- complish that end, such, for instance, as violence, actual or threatened, or fraudulent misrepresentations ; in oilier words, that the rule is applicable only to contracts for personal serv- ice, and that a man may therefore, without incurring liabil- ity, use otherwise lawful means to procure the breach of a contract between others not in reference to services.-'* IV. Same — Confeeeing Right on Third Peeson. In England, a person other than the promisee may not en- force a promise, even though it is made for his benefit. In America, a conflict of opinion is found. In some states the iTLumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 Q. B. Div. 333; Temperton v. Russell [1893] 1 Q. B. 715; Flood v. Jackson [1895] 2 Q. B. 21; Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U. S. 1, 13; Chipley v. Atkinson, 23 Fla. 206; Doremus v. Hennessy, 176 111. 608, 68 Am. St. Rep. 203; Dickson v. Dickson, 33 La. Ann. 1261; Perkins v. Pendleton, 90 Me. 166, 60 Am. St. Rep. 252; Lucke V. Clothing Cutters' & Trimmers' Assembly, 77 Md. 396, 39 Am. St. Rep. 421; Walker v.'Cronin, 107 Mass. 555, Huffcut & W. Am. Cas. Cont. 416; Bixby»v. Dunlap, 56 N. H. 456; Jones v. Stanly, 76 N. C. 355, Huftcut & W. Am. Gas. Cont. 418. See Moran v. Dunphy, 177 Mass. 485, 83 Am. St. Rep. 289. isBoyson v. Thorn, 98 Cal. 578; Bourlier v. Macauley, 91 Ky. 135, 34 Am. St. Rep. 171; Chambers v. Baldwin, 91 Ky. 121; Hey- ■wood V. Tillson, 75 Me. 225; Glencoe Land & Gravel Co. v. Hudson Bros. Commission Co., 138 Mo. 439, 60 Am. St. Rep. 560; Rice v. Manley, 66 N. Y. 82; Ashley v. Dixon, 48 N. Y. 430; Benton v. Pratt, 2 Wend. (N. Y.) 385; Raycroft v. Tayntor, 68 Vt. 219, 54 Am. St. Rep. 882. (Til) fj 351 OPERATION OF CO.xxRACT. [Ch. 8 English rule is followed. In others a rule prevails directly to the contrary, A modified rule that obtains in some jurisdictions permits a person not a party to the promise to enforce it, not under all circumstances, but where the parties intended that he should receive the direct benefit of it, and where, at the time the promise was made, the promisee was under an existing obligation to him, and gave him the benefit of the promise as a means of discharging the obligation. The rule that a promise cannot be enforced by a person other than the promisee, in whatsoever form it prevails, is subject to important qualifications and exceptions, real and apparent, and in some states changes have been worked by statute. § 351. In general. In England, a man cannot acquire rights under a contract to which he is not a party. In other words, two persons can-_ not, by joining in an agreement, confer contractual rights upon a third person; and this is true, even though the con- tract is in fact made for his particular benefit. The" rule is often stated in other terms. Thus, it is said that, in order to render a promise enforceable, the consideration must move from the plaintiff ; that there must be privity of contract be- tween the plaintiff and the defendant; and that the proper person to bring an action is the one whose right has been vio- lated. So far as the present inquiry is concerned, all these amount to one and the same thing, namely, that a person other than the promisee may not enforce the promise, even though it is made for his benefit.^ ^ , In America there is an irreconcilable conflict of opinion as to the right of a man to enforce a promise made to another for his benefit. In some jurisdictions the English rule is fol- lowed, and the right accordingly denied in all cases.^" In 19 Price V. Easton, 4 Barn. & Adol. 433, Langdell, Gas. Cont. 172; Crow V. Rogers, 1 Strange, 592, Langdell, Cas. Cont. 172. 20 Faulkner v. Faulkner, 23 Ont. 252, 258; Woodland v. Newhall's (712) Ch. 81 RIGHTS OF THIRD PERSONS. ^ 351 other jurisdictions a rule obtains directly to the contrary; and here, it would seem, if a promise is made for a man's benefit, he may under all circumstances, enforce it the same as if he were the promisee.^-^ ^Neither of these extreme views is generally prevalent in this country. The doctrine prevail- ing in many states, in the absence of statute, is the rule which has been formulated principally by the courts of New York. Adm'r (C. C.) 31 Fed. 434; Anderson v. Fitzgerald (C. C.) 21 Fed. 294; Baxter v. Camp, 71 Conn. 245, 71 Am. St. Rep. 169; Davis v. Clinton Water-Works Co., 54 Iowa, 59; Borden v. Boardman, 157 Mass. 410, HufEcut & W. Am. Cas. Cont. 435; Marston v. Bigelow, 150 Mass. 45; Morrill v. Lane, 136 Mass. 93; Exchange Bank of St. Louis V. Rice, 107 Mass. 37; Linneman v. Moross' Estate, 98 Mich. 178; Halsted v. Francis, 31 Mich. 113; PIpp v. Reynolds, 20 Mich. 88, 94; semile, Chamberlain v. New Hampshire Fire Ins. Co., 55 N. H. 249; Adams v. Kuehn, 119 Pa. 76; Robertson v. Reed, 47 Pa. 115; Campbell v. Lacock, 40 Pa. 448; Wilbur v. Wilbur, 17 R. I. 295. 21 Hendrick v. Lindsay, 93 U. S. 143, 149 ; Bank of the Metropolis V. First Nat. Bank of Jersey City (C. C.) 19 Fed. 301; Austin v. Seligman (C. C.) 18 Fed. 519; Mason v. Hall, 30 Ala. 599; Flint v. Cadenasso, 64 Cal. 83; Green v. Morrison, 5 Colo. 18; Lehow v. Simonton, 3 Colo. 346, HufEcut & W. Am. Cas. Cont. 420; Steene v. Aylesworth, 18 Conn. 244; Dean v. Walker, 107 111. 540; Snell v. Ives, 85 111. 279; Ransdel v. Moore, 153 Ind. 393; Stevens v. Flan- nagan, 131 Ind. 122; Nave v. First Nat. Bank of Lebanon, 87 Ind. 204; Gooden v. Rayl, 85 Iowa, 592; West v. Western Union Tele- graph Co., 39 Kan. 93, 7 Am. St. Rep. 530; Strong v. Marcy, 33 Kan. 109; Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 25 Am. St. Rep. 536; Benge v. Hiatt's Adm'r, 82 Ky. 666; Bohanan V. Pope, 42 Me. 93; Coates v. Pennsylvania Fire Ins. Co., 58 Md. 172, 178; Seigman v. HofEacker, 57 Md. 321; Small v. Schaefer, 24 Md. 143; Maxcy v. New Hampshire Fire Ins. Co., 54 Minn. 272, 40 Am. St. Rep. 325; Sibley v. Pine County, 31 Minn. 203; State v. Laclede Gaslight Co., 102 Mo. 472, 22 Am. St. Rep. 789; Shamp v. Meyer, 20 Neb. 223; Gorrell v. Greensboro Water Supply Co., 124 N. C. 328; Irwin V. Lombard University, 56 Ohio St. 9, 21, 60 Am. St. Rep. 727, 729; Wood v. Moriarty, 15 R. I. 518, HufEcut & W. Am. Cas. Cont. 430; Urquhart v. Brayton, 12 R. I. 169; Brice v. King, 1 Head (Tenp.) 152; Bnos v. Sanger, 96 Wis. 150, 65 Am. St. Rep. 38; Grant v. Diebold Safe & Lock Co., 77 Wis. 72. (713) § 351 OPERATION OF CONTRACT. [Ch. 8 This rule permits a man to enforce a contract to which he is not a party, and of which he has furnished no part of the consideration, but permits him to do so only under certain conditions : First, the parties to the contract must have in- tended that he should receive the direct benefit of their en- gagement. If the benefit accruing to a third person from a contract between others is only incidental, he has no stand- ing to enforce the obligation.^^ Second, the promisee must, at the time the contract was made, have been under an exist- ing obligation to the person seeking to enforce the promise, and have given him the benefit of the promise as a means of discharging that obligation. Otherwise, even though the promise was made for his benefit, the third person cannot en- force it.^^ Subject to these two conditions, a contract may be enforced by a person not a party to it.^* 22 Second Nat. Bank of St. Louis v. Grand Lodge, M. F. & A. A. M., 98 U. S. 123; Baxter v. Camp, 71 Conn. 245, 71 Am. St. Rep. 169; Burton v. Larkin, 36 Kan. 246; Howsmon v. Trenton Water Co., 119 Mo. 304, 41 Am. St. Rep. 654; Durnlierr v. Rau, 135 N. Y. 219; Stewart v. Trustees of Hamilton College, 2 Denlo (N. Y.) 403; Jordan v. Wilson, 28 N. C. 430; Brower Lumber Co. v. Miller, 28 Or. 565, 52 Am. St. Rep. 807; Commercial Bank v. Jones, 18 Tex. 811; Electric Appliance Co. v. United States Fidelity & Guaranty Co., 110 Wis. 434, 53 L. R. A. 609. And see cases cited in note 28, infra. Contra, Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340. 23 Jefferson v. Ascb, 53 Minn. 446 ; Norwood v. De Hart, 30 N. J. Eq. 412; Durnherr v. Rau, 135 N. Y. 219; Wheat v. Rice, 97 N. Y. 296; Vrooman v. Turner, 69 N. Y. 280; Electric Appliance Co. v. United States Fidelity & Guaranty Co., 110 Wis. 434, 53 L. R. A. 609. By accepting a promise so made for his benefit, the third person discharges the promisee from liability to him, and must look to the promisor alone. Bohanan v. Pope, 42 Me. 93; Wood v. Mori- arty, 15 R. r. 518, Huffcut & W. Am. Cas. Cont. 430; Urquhart v. Brayton, 12 R. I. 169. 24 Wright V. Terry, 23 Fla. 160; Ferris v. American Brewing Co., 155 Ind. 539, 52 L. R. A. 305; Gooden v. Rayl, 85 Iowa, 592; Strong V. Marcy, 33 Kan. 109; Allen v. Thomas, 3 Mete. (Ky.) 198; Barnes (714) Ch. 8] RIGHTS OF THIRD PERSONS. §351 To illustrate: Attempts have been made in England to bind a company by introducing into the articles of associa- tion a clause empowering or directing the directors to ful- V. Hekla Fire Ins. Co., 56 Minn. 38; City of St. Louis v. Von Phul, 133 Mo. 561, 54 Am. St. Rep. 695; Kaufman v. United States Nat. Bank, 31 Neb. 661; Hallenbeck v. Kindred, 109 N. Y. 620; Little v. Banks, 85 N. Y. 258; Dunning v. Leavitt, 85 N. Y. 30; Vrooman v. Turner, 69 N. Y. 280; Lawrence v. Fox, 20 N. Y. 268, HufEcut & W. Am. Cas. Cont. 422; Brown v. Markland, 16 Utah, 360, 67 Am. St. Rep. 629; Coleman v. Whitney, 62 Vt. 123; Jones v. Thomas, 21 Grat. (Va.) 96. Thus, if property is transferred upon the trans- feree's promise, as part of the consideration, to pay a debt due from the transferrer to a third person, such person may enforce the promise. Mason v. Hall, 30 Ala. 599; Morgan v. Overman Sil- ver Min. Co., 37 Cal. 534; Shober & CarquevlUe Lithographing Co. V. Kerting, 107 111. 344; Carter v. Zenblin, 68 Ind. 436; Johnson v. Knapp, 36 Iowa, 616; Follansbee v. Johnson, 28 Minn. 311; Rogers v. Gosnell, 58 Mo. 589; Alcalda v. Morales, 3 Nev. 132; Joslin v. New Jersey Car Spring Mfg. Co., 36 N. J. Law, 141; Dingeldein v. Third Ave. R. Co., 37 N. Y. 575; Lawrence v. Fox, 20 N. Y. 268, Huffcut & W. Am. Cas. Cont. 422; Hind v. Holdship, 2 Watts (Pa.) 104; Merriman v. Social Mfg. Co., 12 R. I. 175. This illustration is often instanced where a mortgagor who is personally liable on the mortgage debt conveys the property to another, who agrees, as part of the consideration, to pay the debt to the mortgagee. In such a case, the mortgagee may recover of the grantee. Hayden V. Snow, 9 Biss. (U. S.) 511, 14 Fed. 70; Bay v. Williams, 112 111. 91; Dean v. Walker, 107 111. 540; Carnahan v. Tousey, 93 Ind. 561; Thompson v. Bertram, 14 Iowa, 476; Anthony v. Herman, 14 Kan. 494; Unger v. Smith, 44 Mich. 22; Fitzgerald v. Barker, 70 Mo. 685; Cooper v. Foss, 15 Neb. 515; Klapworth v. Dressier, 13 N. J. Bq. 62; Burr v. Beers, 24 N. Y. 178; Poe v. Dixon, 60 Ohio St. 124, 71 Am. St. Rep. 713; Merriman v. Moore, 90 Pa. 78. And see Kel- ler V. Ashford, 133 U. S. 610. Contra, Meech v. Ensign, 49 Conn. 191; Coffin v. Adams, 131 Mass. 133; Mellen v. Whipple, 1 Gray (Mass.) 317. And see Hicks v. Hamilton, 144 Mo. 495, 66 Am. St. Rep. 431. Another important instance occurs in the case of a partner who, on dissolution of the firm, or on retirement of a copartner, prom- ises the latter to pay the existing firm debts. The firm creditors may enforce the promise. Devol v. Mcintosh, 23 Ind. 529; Mlllerd v. Thorn, 56 N. Y. 402; Bellas v. Fagely, 19 Pa. 273; Kimball v. Noyes, 17 Wis. 717. (715) § 351 OPERATION OP CONTRACT. [Ch. 8 fill the terms of contracts made with its promoters, or to re- pay those who have done work or advanced money to further the organization of the company. Such a clause cannot be enforced by the persons for whose benefit it is inserted. The articles of association bind only the parties to them.^® The rule operates also to prevent a third person from suing for several joint contractors.^" Thus, unincorporated socie- If the person for whose benefit a promise has been made has ac- cepted it, either expressly or by acting upon it, the promisee can- not afterwards waive performance, or cancel, release, or rescind the contract. Levistones v. Landreaux, 6 La. Ann. 26; Gifford v. Corrigan, 117 N. Y. 257; Hartley v. Harrison, 24 N. Y. 170; Willard V. Worsham, 76 Va. 392. The presumption Is that, when a promise is made for the benefit of a third person, he accepts it, and, to overthrow this inference, a dissent must be shown. Rogers v. Gosnell, 58 Mo. 589. This is especially true if the third person is a minor. Pruitt v. Pruitt, 91 Ind. 595. Subject to this qualification, the promisee may release the promisor at any time before the third person accepts the promise, and so defeat the latter's right of action. In re Empress Engineering Co., 16 Ch. Div. 125, 129, per Sir G. Jessel, M. R.; Merrick v. Giddings, 1 Mackey (D. C.) 394; Thompson v. Parker, 83 Ind. 96; Gilbert v. Sanderson, 56 Iowa, 349; Jones v. Higgins, 80 Ky. 409; Amonett v. Montague, 75 Mo. 43; Laing's Ex'rs v. Byrne, 34 N. J. Eq. 52; Kelly v. Roberts, 40 N. Y. 432; Trimble v. Strother, 25 Ohio St. 378. Contra, Bay v. Williams, 112 111. 91. And the promisee may sue on the promise if the third person, for whose benefit it was made, has not done so. Steene v. Aylesworth, 18 Conn. 244; Merriam v. Pine City Lumber Co., 23 Minn. 314. A third person for whose benefit a promise is made may enforce it, though the instrument evidencing it has not been delivered to him. Stevens v. Flannagan, \31 Ind. 122. 25 In re Empress Engineering Co., 16 Ch. Div. 125; Eley v. Posi- tive Government Sec. Life Assur. Co., 1 Exch. Div. 88; Melhado v. Porto Alegre, N. H. & B. Ry. Co., L. R. 9 C. P. 503. These cases supersede the following, which contain language contrary to the rule stated in the text: Touche v. Metropolitan Ry. Warehousing Co., 6 Ch. App. 671; Spiller v. Paris Skating Rink Co., 7 Ch. Div. 368. See page 709, supra, as to liability of corporation on pro- moter's contracts. 26 Anson, Cent. (8th Ed.) 230. (716) Oh. 8] RIGHTS OF THIRD PERSONS. § 351 ties and companies that wish to avoid bringing action in the names of all their members sometimes introduce into their contracts a term to the effect that their rights of action shall be vested in a manager or agent. This stipulation is nuga- tory. The third person cannot enforce the contract.^'' Even though the breach of a contract between third per- sons results in peculiar damage to himself, yet a stranger may not enforce the contract.^* So, it is generally held that a 2TGray v. Pearson, L. R. 5 C. P. 568. 2S Pollock, Cont. 201, note; Playford v. United Kingdom Electric Telegraph Co., L. R. 4 Q. B. 706; Dickson v. Renter's Telegraph Co., 2 C. P. Div. 62, 3 C. P. Div. 1; Second Nat. Bank of St. Louis v. Grand Lodge, M. F. & A. A. M., 98 U. S. 123; Buckley v. Gray, 110 Cal. 339, 52 Am. St. Rep. 88; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482; Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234, 24 Am. St. Rep. 333; Brower Lumber Co. v. Miller, 28 Or. 565, 52 Am. St. Rep. 807; Curtin v. Somerset, 140 Pa. 70, 23 Am. St. Rep. 220. As it is stated in the text, the principle prevails in America; but it is generally held here that the principle does not apply to the state of facts that arose in the two English cases above cited. In those cases a telegraph company erroneously transmitted a message in the one case, and erroneously addressed it in the other, and it was held that the receiver could not recover the damages he sustained thereby, the company not being, his agent, and there being, therefore, no privity of contract between it and him. In some American cases a recovery is permitted upon a similar state of facts upon the ground of agency. New York & W. Printing Telegraph Co. v. Dryburg, 35 Pa. 298; Olympe de la Grange v. Southwestern Telegraph Co., 25 La. Ann. 383, 384. In most states the recovery is justified upon the ground of tort. Elwood v. West- ern Union Telegraph Co., 45 N. Y. 549; Western Union Telegraph Co. V. Fenton, 52 Ind. 1; Aiken v. Western Union Telegraph Co., 5 Rich. (S. C.) 358; Western Union Telegraph Co. v. Carew, 15 Mich. 525; Beaupre v. Pacific & A. Telegraph Co., 21 Minn. 155; Bank of California v. Western Union Telegraph Co., 52 Cal. 280. It is no exception to the rule stated in the text that a consignee of goods which he has purchased may sue the carrier for breach of the contract of shipment made by the consignor, where the con- signor, in making the contract, does so as the consignee's agent. Dutton V. Solomonson, 3 Bos. & P. 584; Dawes v. Peck, 8 Term R. (717) § 35i OPERATION OF CONTRACT. [Ctl. 8 citizen and taxpayer whose property has been destroyed by fire through the failure of a water company to supply water according to its contract with the municipality has no right of action against the company for breach of the contract.^* In those jurisdictions where the English rule prevails, and a third person is not allowed to enforce a promise made for his benefit, much less may he do so when the promise is un- der seal;^" but in those states where the English rule does not prevail, a sealed promise may be enforced by the bene- ficiary, as well as a promise resting in parol.^^ And it is not necessary that the instrument shall specially name the beneficiary, in order to entitle him to sue.^^ 330; Lawrence v. Minturn, 17 How. (U. S.) 100; Arbuckle v. Thompson, 37 Pa. 170. 29 Fowler v. Athens City Water-Works Co., 83 Ga. 219, 20 Am. St. Rep. 313; Becker v. Keokuk Waterworks, 79 Iowa, 419, 18 Am. St. Rep. 377; Davis v. Clinton Water-Works Co., 54 Iowa, 59; Hows- mon V. Trenton Water Co., 119 Mo. 304; Eaton v. Pairbury Water- Works Co., 37 Neb. 546, 40 Am. St. Rep. 510; Ferris v. Carson Water Co., 16 Nev. 44. Contra, Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340; Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 70 Am. St. Rep. 598. 30 Hendrlck v. Lindsay, 93 U. S. 143; Saunders v. Saunders, 154 Mass. 337; Millard v. Baldwin, 3 Gray (Mass.) 484; Sanders v. Filley, 12 Pick. (Mass.) 554; How v. How, 1 N. H. 49; Cock's Adm'r V. Varney, 45 N. J. Eq. 72; Fairchild v. North-Bastern Mut. Life Ass'n, 51 Vt. 613. siHuckabee v. May, 14 Ala. 263; Garvin v. Mobley, 1 Bush (Ky.) 48; Rogers v: Gosnell, 51 Mo. 466; Gifford v. Corrigan, 117 N. Y. 257; Coster v. City of Albany, 43 N. Y. 399; Emmitt v. Brophy, 42 Ohio St. 82; Hughes v. Oregon Ry. & Nav. Co., 11 Or. 437; Clarkson V. Doddridge, 14 Grat. (Va.) 42; Bassett v. Hughes, 43 Wis. 319, HufCcut & W. Am. Cas. Cont. 428; McDowell v. Laev, 35 Wis. 171. Contra, Harms v. McCormick, 132 111. 104, 109; Gautzert v. Hoge, 73 111. 30; Hinkley v. Fowler, 15 Me. 285; Seigman v. Hoff acker, 57 Md. 321. 32 Coster V. City of Albany, 43 N. Y. 399, 411 ; Emmitt v. Brophy, 42 Ohio St. 82. (718) Cb. 8] RIGHTS OF THIRD PERSONS. § 353 § 352. Exceptions, real and apparent. The rule that no one but the promisee may enforce the promise does not apply where a third person, for whose ben- efit the promise is made, furnishes the consideration for the. engagement. In this event, the beneficiary may sue on the promise in his own name.^* At one time it was thought that, if the person who was to take a benefit under the contract was nearly related by blood to the promisee, a right of action would vest in him in spite of the fact that he was not a party to the contract, and some courts still maintain the rule.^* In other jurisdictions, a contrary view prevails.*'"" An agreement between two parties may be so framed as to make one a trustee for the benefit of a third person who does not join in the contract, in which case the latter may compel proper performance of the trust;*® but if a trust is to be created in favor of a third person, there must be words amounting to a declaration of trust by one of the con- 33 Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 70 Am. St. Rep. 598. 34 Bourne v. Mason, 1 Vent. 6, Langdell, Gas. Cont. 170; Button V. Poole, 2 Lev. 210, Langdell, Gas. Cont. 170; Marlett v. Wilson's Ex'r, 30 Ind. 240; Gooden v. Rayl, 85 Iowa, 592; Strong v. Marcy, 33 Kan. 109; Benge v. Hiatt's Adm'r, 82 Ky. 666; Mellen v. Whipple, 1 Gray (Mass.) 317, 323; Felton v. Dickinson, 10 Mass. 287; Todd V. Weber, 95 N. Y. 181. 35Tweddle v. Atkinson, 1 Best & S. 393, Langdell, Cas. Cont. 174; Marston v. Bigelow, IbO Mass. 45, 53; Exchange Bank v. Rice, 107 Mass. 37, 42; Linneman v. Moross' Estate, 98 Mich. 178; Wilbur v. Wilbur, 17 R. I. 295. 36 Anson, Cont. (8th Ed.) 230; per Sir G. Jessel, M. R., in Re Empress Engineering Co., 16 Ch. Div. 125; Murray v. Flavell, 25 Ch. Div. 89; Page v. Cox, 10 Hare, 163; Union Pac. R. Co. v. Durant, 95 U. S. 576; White v. Sherman, 168 111. 589, 61 Am. St. Rep. 132; Preachers' Aid Soc. v. England, 106 111. 125; Ransdel v. Moore, 153 Ind. 393; Mory v. Michael, 18 Md. 227; Chace v. Chapin, 130 Mass. 128; Harrisburg Bank v. Tyler, 3 Watts & S. (Pa.) 373. (719) § 352 OPERATION OF CONTRACT. [Ch. 8 tracting parties.^'' For instance, it is not enough that one should promise another to pay money to a third. This alone creates no trust in favor of the last.-^® So, a transaction which is intended to operate as a transfer of property will not import a trust merely because it is inoperative as a trans- fer;^® nor will an agreement import a trust, because it can- not operate as a contract as intended.*" This question of trust, as has already been pointed out, is really foreign to the subject. It constitutes only an apparent exception to the rule under discussion. ^-"^ A real exception to the rule that only a party to a contract may enforce it occurs in the case of marriage settlements. Covenants inserted therein for the benefit of children to be born of the marriage, or, in the case of a woman marrying pgain, for the benefit of her children by a former marriage, may be enforced by the persons entitled to the benefit there- of.*^ And if, from the circumstances under which the mar- riage articles were entered into by the parties, or as collected from the face of the instrument itseK, it appears to have been s'' Per Sir G. Jessel, M. R., in Re Empress Engineering Co., 16 Ch. Div. 125; Randall v. Randall, 135 111. 398, 25 Am. St. Rep. 373; Bath Sav. Institution v. Hathorn, 8S Me. 122, 51 Am. St. Rep. 382; Beaver v. Beaver, 117 N. Y. 421, 15 Am. St. Rep. 531. Declarations of a purpose to create a trust not carried out are of no value, nor are direct promises to that effect, unaccompanied with considerations turning them into contracts. Allen v. Withrow, 110 U. S. 119. 38 In re Rotheram Alum & Chemical Co., 25 Ch. Div. 103. 3» Anson, Cont. (8th Ed.) 230, note; Richards v. Delbridge, L. R. 18 Eq. 11; Wadd v. Hazelton, 137 N. Y. 215, 33 Am. St. Rep. 707; Smith's Estate, 144 Pa. 428, 27 Am. St. Rep. 641. 40 Anson, Cont. (8th Ed.) 230, note; Richards v. Delbridge, L. R. 18 Bq. 11. ■»i See page 707, supra. 42 Pollock, Cont. 188, 199; per Cotton, L. J., in Re D'Angibau, 15 Ch. Div. 228, 242; Gale v. Gale, 6 Ch. Div. 144; Imlay v. Hunting- ton, 20 Conn. 146; Vason v. Bell, 53 Ga. 416; Michael v. Morey, 36 Md. 239; Burkholder's Appeal, 105 Pa. 31. (720) Ch. 8] RIGHTS OP THIRD PERSONS. § 353 intended that the collateral relatives, in a given event, should take the estate, and a proper limitation to that effect is con- tained in them, a court of equity will enforce the contract for their benefit.*^ If a man has money or property to which, in equity and good conscience, another is entitled, the law creates a prom- ise on his part to pay it to the latter, and the latter may en- force the obligation either at law or in equity. j.t is no ob- jection to the maintenance of the action that the consideration for the implied promise did not move from the plaintiff, and that there is therefore no privity of contract between the par- ties to the suit.*"* This seems to render the case an exception to the rule that a person who is not a party to a contract may not enforce it. The exception is only apparent, however, since the promise thus enforced is not the actual promise be- tween the giver and the receiver of the money or property, if, indeed, an actual promise was made, but, on the contrary, it is' a promise implied by law between the defendant and the plaintiff. And this implied promise, it is to be observed, is 43 Edwards v. Countess of Warwick, 2 P. Wms. 171 ; Neves v. Scott, 9 How. (U. S.) 196. 4* Second Nat. Bank of St. Louis v. Grand Lodge, M. F. & A. A. M., 98 U. S. 123, 124; Crocker v. Higgins, 7 Conn. 342; Taylor V. Taylor, 20 111. 650; Miller v. Billingsly, 41 Ind. 489; Johnson v. Collins, 14 Iowa, 63; Allen v. Thomas, 3 Mete. (Ky.) 198; Keene V. Sage, 75 Me. 138, 140; O'Neal v. School Com'rs of Washington Co., 27 Md. 227; Exchange Bank v. Rice, 107 Mass. 37, 42; Mellen V. Whipple, 1 Gray (Mass.) 317, 322; Hall v. Marston, 17 Mass. 575; Hosford v. Kanouse, 45 Mich. 620; Spencer v. Towles, 18 Mich. 9; Merchants' & Miners' Nat. Bank v. Barnes, 18 Mont. 335, 56 Am. St. Rep. 586; Warren v. Batchelder, 16 N. H. 580; Barker v. Bradley, 42 N. Y. 316; Delaware & H. Canal Co. v. Westchester County Bank, 4 Denio (N. Y.) 97; Hostetter v. HoUinger, 117 Pa. 606; Justice v. Tallman, 86 Pa. 147; Wood v. Moriarty, 15 R. I. 518, Huffcut & W. Am. Cas. Cont. 430; Brown v. O'Brien, 1 Rich. Law (S. C.) 268; Finch v. Park, 12 S. D. 63, 76 Am. St. Rep. 588; Soderberg v. King County, 15 Wash. 194, 55 Am. St. Rep. 878. Cori- tra, Sergeant v. Stryker, 16 N. J. Law, 464. (721) Law of Cont. — 46. § 353 OPERATION OF CONTRACT. [Ch. 8 not a contract, depending for its existence upon the assent of the parties, but is a quasi contract, which the law creates, re- gardless of assent.*^ i 353. Statutory changes. In a few states it is provided by statute that a promise ex- pressly made for the benefit of a third person may be enforced by him at any time before the parties rescind it, even though he is a stranger to the consideration. In those states that have adopted reformed codes of civil procedure it is usually provided that an action shall be brought in the name of the real party in interest. As to whether such a provision changes the common-law rule, so as to allow a man to enforce a contract made betAveen others for his benefit, there is some conflict of opinion. Professor Pomeroy takes the affirmative; "for," he says, "the person for whose benefit the promise is thus made is certainly the real party in interest ;" and this view is supported by judicial authority.*® V. Assignment of Contract. The rights and liabilities arising from a contract may, in certain cases, be assigned so as to effect a substitu- tion of parties. This may occur either : (a) By act of the parties to the contract, or (b) By operation of law, regardless of the parties' consent. 45 As to the nature of quasi contract, see page 23, supra. 46 Pomeroy, Rem. & Rem. Rights (Code Rem.) § 139; Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340; Ellis v. Har- rison, 104 Mo. 270; Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 70 Am. St. Rep. 598. "It is difficult to see, however," says Professor Huffcut, "in what manner this provision as to procedure can have affected the question as to whether the third person has any legal or equitable interest in the contract." Huftcut, Ans. Cont. 228, note. (722) Ch. 8] ASSIGNMENT OF CONTRACT. § 355 § 354. In general. We have seen that two persons cannot, by joining in an agreement, confer rights or impose liabilities in respect of the agreement upon any but themselves. Yet they may, by certain methods and under certain circumstances, drop out of the obligation so created, and be replaced by others, who assume their riglits and liabilities under the contract. Thus, if A. contracts with X., their contract cannot impose liabili- ties or confer rights on M. But in certain cases, either A. or X. may, with M.'s consent, substitute M. for himself as a party to the contract, and, under certain circumstances, the laiv operates to effect a similar substitution, regardless of M.'s consent. This substitution of parties is known as "assign- ment of contract," and, as we have intimated, it may be either by the voluntary act of the parties or by operation of law.*^ VI. ASSIGNMEITT BY ACT OF THE PaBTIES LIABILITIES. As a rule, the promisor may not assign his liabilities under the contract, nor compel the promisee to accept performance from a third person. This rule does not apply, however, where the contract does not involve personal confidence between the parties, or the ex- ercise of the promisor's personal skill. § 355. In general. A man is not only entitled to know to whom he is to look for the satisfaction of his rights under a contract, but be has also a right to the benefit he contemplates from the character, credit, and substance of the other contracting party. A prom- isor cannot, therefore, assign his liabilities imder a contract ; or, conversely, a promisee cannot be compelled by the prom- isor or by a third person to accept performance of the con- 47 Anson, Cont. (8th Ed.) 224, 233. (Y23) § 355 OPERATION OF CONTRACT. [Ch. 8 tract from any but the promisor.** Thus, where A., who had bought ice of B., ceased to take it, on account of dissat- isfaction with B., and contracted for ice with C, and subse- quently B. bought C.'s business, and delivered ice to A., with- out notifying him of his purchase until after the delivery and consumption of the ice, it was held that B. could not maintain an action against A. for the price of the ice.*^ This rule is subject to qualifications, however. Thus, if a man promises to do work which calls for no special skill, and it does not appear that he has been selected with reference to his personal qualifications, he may get the work done by an equally competent person, and the promisee is bound to accept it f as, for instance, where a contract with a city for clear- ing the streets is assigned by the contractor. The assignee may sue the city for moneys due under the contract, and for dam- ^8 Robson V. Drummond, 2 Barn. & Adol. 303 ; Humble v. Hun- ter, 12 Q. B. 310; Boulton v. Jones, 2 Hurl. & N. 564; Arkansas Valley Smelting Co. v. Belden Mln. Co., 127 U. S. 379, Huffcut & W. Am. Cas. Cont. 438; Jones v. "Walker, 2 Paine, 688, Fed. Gas. No. 7,507; Burger v. Rice, 3 Ind. 125; Rappleye v. Racine Seeder Co , 79 Iowa, 220; Cannon v. Kreipe, 14 Kan. 324; Bryant v. Erskine, 55 Me. 153; Inhabitants of Clinton v. Fly, 10 Me. 292; Bethlehem V. Annis, 40 N. H. 34; Flanders v. Lamphear, 9 N. H. 201; Parsons V. Woodward, 22 N. J. Law, 196; Stewart v. Long Island R. Co., 102 N. Y. 601; Van Scoter v. Lefferts, 11 Barb. (N. Y.) 140; Chapin V. Longworth, 31 Ohio St. 421; Palo Pinto County v. Gano, 60 Tex. 249. A liability may, of course, be assigned with the consent of the creditor; but this is in effect the rescission, by agreement, of the original contract, and the substitution of a new one, in which the same act is to be performed by a different party. This substi- tution is dealt with elsewhere under the term "Novation." See sections 356, 426, infra. *9 Boston Ice Co. v. Potter, 123 Mass. 28, Huffcut & W. Am. Cas. Cont. 243. 50 British Waggon Co. v. Lea, 5 Q. B. Div. 149 ; La Rue v. Groe- zinger, 84 Cal. 281; City of St. Louis v. Clemens, 42 Mo. 69; Roches- ter Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209, Huff- cut & W. Am. Cas. Cont. 447; Joslyn v. Parlin, 54 Vt. 670. (724) Ch. 8] ASSIGNMENT OF CONTRACT. § 356 ages resulting from its repudiation by the city.®^ However, the promisor does not, by thus procuring another to perform his obligation, avoid liability for the results of a faulty per- formance. He may procure another to do the work for him, but an obligation still rests upon him to see that it is done according to contract.''^ And if it appears to have been the intention of the parties that the promisor should perform the contract in person, he cannot perform it by an agent. Such an intention is presumed in the case of any duty which in- volves personal confidence between the parties, or the exer- cise of the promisor's personal skill. ^^ VII. Same — Assignment of Rights at Law. At common law, the rights arising from a contract cannot be assigned so as to enable the assignee to sue upon it in his own name. However, the assignee is permitted to sue at law on the contract in the name of the assignor as plaintiff, without the assignor's further assent, and free from his con- trol. § 356. In general. At common law, apart from the customs of the law mer- chant in reference in negotiable instruments, the benefit of a contract, or the right of action arising from a contract, can- not be assigned so as to enable the assignee to sue upon it in his own name.^* The origin of the rule has been attributed 61 Devlin v. City of New York, 63 N. Y. 8. 52 Devlin v. City of New York, 63 N. Y. 8, 16; Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209, 217, Huffcut & W. Am. Cas. Cent. 447. 53 Pollock, Cont. 189; Huffcut, Agency, §§ 92-95. 5* Anson, Cont. (8th Ed.) 235; Powles v. Innes, 11 Mees. & W. 10; Glenn v. Marbury, 145 U. S. 499; Glenn v. Busey, 5 Mackey (D. C.) 233, 241; Hunt v. Mann, 132 Mass. 53; Hay v. Green, 12 Cush. (Mass.) 282; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1; Robertson v. Reed, 47 Pa. 115; Rfad v. Young, 1 D. Chip. (Vt.) 244. (725) § 356 OPERATION OP CONTRACT. [Ch, 8 by writers, both early and modern, to the policy of the found- ers of the law in discouraging maintenance and litigation; but there is now little doubt that it was in truth a logical con- sequence of the primitive view of contract as creating a strict- ly personal obligation between the creditor and the debtor.^* Excepting negotiable instruments, therefore, the only way in which rights under a contract can be transferred at common law is not by assignment, but by means of a substituted agree- ment between the original parties to the contract and the in- tended assignee, which is subject to all the rules for the for- mation of a valid contract, and which is limited in its opera- tion to the transfer of a debt. This substituted agreement is termed "novation," and consists of the substitution of a third person in place of the debtor, with the consent of the debtor, the creditor, and the person substituted. Thus, if A. owes X., and X. owes M. an equal sum, it may be agreed between all three that A. shall pay M. instead of X., who thus terminates his relations with both parties. The considera- tion of A.'s promise is his discharge by X. ; the consideration of X.'s discharge of A. is the extinguishment of X.'s debt It seems that the parties cannot change this rule of law so as to permit the assignee to sue in his own name. Jones v. Carter, 8 Q. B. 134; People v. Gray, 23 Gal. 125; Coolidge v. Ruggles, 15 Mass. 387; Weidler v. Kauffman, 14 Ohio, 455. But if the debtor expressly promises to pay the debt to the assignee, the latter may sue on the promise in his own name. Fenner v. Meares, 2 Wm. Bl. 1269; Smith v. Berry, 18 Me. 122; Crocker v. Whitney, 10 Mass. 316; Jessel v. Wllliamsburgh Ins. Co., 3 Hill (N. Y.) 88, HufEcut & W. Am. Cas. Cont. 444; Compton v. Jones, 4 Cow. (N. Y.) 13, Huffcut & W. Am. Cas. Cont. 444. The rule stated in the text does not apply to the sovereign. Hence, if a claim is assigned either by or to the state, the assignee may sue thereon in his own name. Lambert v. Taylor, 4 Barn. & C. 138, 150; Miles v. Williams, 1 P. Wms. 249, 252, 253, 10 Mod. 243, 245; Breverton's Case, 1 Dyer, 30b; United States v. Buford, 3 Pet. (U. S.) 12, 30. As to negotiable instruments, see page 740, infra. 05 Pollock, Cont. 206. (726) Ch. 8] ASSIGNMENT OF CONTRACT. § 355 to M. ; and the consideration of M.'s discharge of X. is A.'s promise to pay the debt.^^ To render the novation effectual, the two debts must consist of ascertained sums,^'' and there must also be a definite agreement between the parties,^* and it must appear that the original indebtedness was thereby extinguished.^^ Accordingly, a promise by a debtor to pay the debt to a third person, even though it is afterwards as- sented to by the creditor, will not enable the third person to sue for the sum promised.^" And a written authority from the creditor to the 'debtor to pay the debt to a third person, even though the debtor acknowledges in writing the author- ity so given, will not entitle the third- person to sue at law for the debt.®^ While a chose in action may not be assigned at common law, yet this rule does not impair the substantial rights of the assignee. The courts of common law so far take cognizance of the equitable rights created by the assignment that the assignee may bring suit on the contract in the name of the assignor as plaintiff, without the assignor's further as- sent, and free from his control.®^ 56 Anson, Cont. (8th Ed.) 235; Fairlie v. Denton, 8 Barn. & C. 395, 400; Parsons v. Tillman, 95 Ind. 452; McClellan v. Robe, 93 Ind. 298; Foster v. Paine, 63 Iowa, 85; Mulcrone v. American Lum- ber Co., 55 Mich. 622; Finan v. Babcock, 58 Mich. 301; Heaton v. Angler, 7 N. H. 397, 28 Am. Dec. 353, Huffcut & W. Am. Cas. Cont. 442; Cadens v. Teasdale, 53 Vt. 469; Gulchard v. Brande, 57 Wis. 534. Novation as a mode of discharge of contract, see section 426, infra. B7 Anson, Cont. (8th Ed.) 235. esButterfleld v. Hartshorn, 7 N. H. 345; Murphy v. Hanrahan, 50 Wis. 485; Lynch v. Austin, 51 Wis. 287. B8 Irwin V. Atkins, 7 111. App. 17; Butterfield v. Hartshorn, 7 N. H. 345; Jaudon v. Randall, 47 N. Y. Super. Ct. 374. BoCuxon V. Chadley, 3 Barn. & C. 591; McKinney v. Alvis, 14 111. 33, Huffcut & W. Am. Cas. Cont. 443. See page 725, supra. 61 Liversidge v. Broadbent, 4 Hurl. & N. 603 ; Jessel v. Williams- burgh Ins. Co., 3 Hill (N. Y.) 88, Huffcut & W. Am. Cas. Cont. 444. It is otherwise in equity. 62Legh V. Legh, 1 Bos. & P. 447; Welch v. Mandeville, 1 Wheat. (72Y) § 357 OPERATION OP CONTRACT. [Ch. 8 VIII. Same — ^Assignment of Rights in Equity. In equity, contractual rights may, in certain cases and under certain conditions, be assigned, either absolutely or condition- ally, so that the assignee may enforce them in his own name. To render the contract assignable, the rights must relate directly or indirectly to money or to property either specified or capable of being made specific, though they need not be vested. A creditor may split his demand into parts, and assign one or more of them, and equity will enforce the assignments, though all parties interested must be joined in a suit upon the debt. No particular form of assignment is required. The enforcement of an assignment of a contractual right in equity is subject to three conditions, namely: (a) The assignee must have given a consideration for the assignment. (b) Although the assignment is effectual as between the parties to it from the moment it is made, it does not bind the person liable until he receives notice of it. (c) The assignee takes the right subject to all defenses that might have been urged against the assignor had he sued upon it. The assignor can give no bet- ter title than he himself has. § 357. In general. In equity, the right which a man possesses under a contract (U. S.) 233; Mandevllle v. Welch, 5 Wheat (U. S.) 277; Lyon v. Summers, 7 Conn. 399; Dazey v. Mills, 10 111. 67; Riley v. Taber, 9 Gray (Mass.) 372, 373; Pass v. McRea, 36 Miss. 143; Parsons v. Woodward, 22 N. J. Law, 196; Halloran v. Whitcomb, 43 Vt. 306. And see Littlefield v. Storey, 3 Johns. (N. Y.) 425. If suit is so brought, the assignor may demand indemnity against costs. Webb V. Steele, 13 N. H. 230; Hough v. Barton, 20 Vt. 455, Huffcut & W. Am. Cas. Cont. 445. And see Pay v. Guynon, 131 Mass. 31. Want of interest of the nominal plaintiff in the subject-matter of the litigation does not defeat the action. Raymond v. Johnson, 11 (728) Ch. 8] ASSIGNMENT OF CONTRACT. § 357 may in certain cases be assigned, so that the assignee may en- force the same in his own name.®^ This right has been rec- ognized ever since the rules of eqtiity developed into a sys- tem,®* and it does not depend on the consent of the debtor.''" An assignment of a chose in action may be valid in equity, as between the parties to the transfer, where it is not absolute, but conditional ; as where the assignment is made by way of collateral security for the payment of a debt due from the assignor to the assignee."® Nature of right. In order to render a contract assignable in equity, the rights must relate directly or indirectly to money or to property Johns. (N. Y.) 488. And it is immaterial whether the contract is in writing or verbal, and whether it is express or implied. Currier V. Hodgdon, 3 N. H. 82; Clarke v. Thompson, 2 R. I. 146. 63 Anson, Cont. (8th Ed.) 236; Gray v. Garrison, 9 Cal. 325; Tay- lor V. Galland, 3 G. Greene (Iowa) 17; Currier v. Howard, 14 Gray (Mass.) 511; "Walker v. Mauro, 18 Mb. 564; Pier v. George, 86 N. Y. 613; Sears v. Conover, 3 Keyes (N. Y.) 113. However, a court of equitable jurisdiction will not enforce rights so assigned, unless the remedy at law is inadequate. New York Guaranty Co. v. Mem- phis Water Co., 107 U. S. 205; Hay ward v. Andrews, 106 U. S. 672; Adair v. Winchester, 7 Gill & J. (Md.) 114; Walker v. Brooks, 125 Mass. 241; Ontario Bank v. Mumford, 2 Barb. Ch. (N. Y.) 596; Carter v. United Ins. Co. of New York, 1 Johns. Ch. (N. Y.) 463, Huffcut & W. Am. Cas. Cont. 452; Smiley v. Bell, 8 Mart. & Y. (Tenn.) 378; Moseley v. Boush, 4 Rand. (Va.) 392. And, under some circumstances, the assignee is required to join the assignor as a complainant because of his real or supposed interest in the suit. Story V. Livingston, 13 Pet. (U. S.) 359; Mechanics' Bank of Alex- andria V. Seton, 1 Pet. (U. S.) 299; Mason v. York & C. R. Co., 52 Me. 82. As to assignment of contracts involving personal service, see page 730, infra. o-t Pollock, Cont. 207. c3 Brice v. Bannister, 3 Q. B. Div. 569; Merchants' & Miners' Nat. Bank v. Barnes, 18 Mont. 335, 56 Am. St. Rep. 586; Morton v. Naylor, 1 Hill (N. Y.) 583. 66 Warnock v. Davis,, 104 U. S. 775, Huffcut & W. Am. Cas. Cont. 333; Wright v. Ross, 36 Cal. 414; Forman v. Proctor, 9 B. Mon. (Ky.) (729) § 357 OPERATION OP CONTRACT. [Cn. 8 either specified or capable of being made specific.^^ Tor in- stance, a right under a contract to lend money is not, it seems, subject to assignment, since it could give rise only to an ac- tion for unliquidated damages f^ and neither may an execu- tory contract for services be assigned, in the absence of stat- ute, if it imposes a duty that involves personal confidence in the promisor, or if it calls for the exercise of the promisor's personal skill or judgment.^® However, the right need not be vested in order to be assignable. A common illustration of assignment enforced in equity is the assignment of a fu- ture interest. Equity will support assignments of contingent interests and expectancies, — ^things which have no present 124; 1?iiiigaii v. Mutual Benefit Life Ins. Co., 46 Md. 469; Herbstrelt V. Beckwlth, 35 Mich. 93. 6T Anson, Cont. (8tli Bd.) 236; Louisville, N. A. & C. Ry. Co. t. Goodbar, 88 Ind. 213; Mulhall v. Quinn, 1 Gray (Mass.) 105, 107; Dayton v. Fargo, 45 Micli. 153; Hoyt v. Thompson, 5 N. Y. 320. A solicitor's lien is a dormant security, in which it differs from a mortgage; but a solicitor may assign a debt due to him for costs, with the benefit of any lien he may have upon any docu- ments for such costs. Bull v. Faulkner, 2 De Gex & S. 772. The right to enforce an agreement made by a person not to en- gage in a certain business may be passed by assignment. Up River Ice Co. V. Denier, 114 Mich. 296, 68 Am. St. Rep. 480. A chose in action which is transmissible to an executor or ad- ministrator is assignable in equity. Grant v. Ludlow's Adm'r, 8 Ohio St. 1, 37. 08 Anson, Cont. (8th Ed.) 236, citing Tailby v. Official Receiver, 13 App. Cas. 543; Western Wagon Co. v. West [1892J 1 Ch. 271. 69 The Lizzie Merry, 10 Ben. 140, Fed. Cas. No. 8,423; Munsell V. Temple, 8 111. 93; Davis v. Coburn, 8 Mass. 299; Hardy Imple- ment Co. V. South Bend Iron Works, 129 Mo. 222; Lansden v. Mc- Carthy, 45 Mo. 106; Hayes v. Willio, 4 Daly (N. Y.) 259, Huffcut & W. Am. Cas. Cont. 441; Chapin v. Longworth, 31 Ohio St. 421; Stringfield v. Heiskell, 2 Yerg. (Tenn.) 546. Otherwise, a contract of service is assignable in equity. Tugman v. National Steamship Co., 76 N. Y. 207. Of course, the right to compensation may be as- signed after the services have been performed; but the right to call for a performance of services not yet rendered may not be transferred. (730) Ch. 8] ASSIGNMENT OF CONTRACT. § 357 actual existence, but rest in mere possibility, — if fairly made, and not against piiblic policy, not as a transfer operating in praeserdi, for that can be only of a thing in esse, but as a present contract, to take effect and attach as soon as the thing comes into being. '^° Thus, where fruit contracted to be sold for a series of years is to be the product of trees owned by the seller at the time the contract is made, it must be considered as having a potential existence at that time, and as being sub- ject to sale; and an assignee of such contract acquires the right to purchase the fruit for each of the seasons subsequent to the assignment, and assumes the burden of paying the con- tract price for it.'^-^ So, an assignment of money to be earned in the future under an existing employment or contract for employment is valid in equity, the possibility of future earn- ings being coupled with an interest.'^^ This has been held, even though there is no contract and no fixed time of employ- ment,''* and some courts have held that an assignment of wages to be earned in the future in a specified employment 70 phipps V. Lovegrove, L. R. 16 Eq. 80; Langton v. Horton, 1 Hare, 549; Walker v. Bradford Old Bank, 12 Q. B. Div. 511; Nor- ton V. Whiteliead, 84 Cal. 263, 18 Am. St. Rep. 172; La Rue v. Groe- zinger, 84 Cal. 281, 18 Am. St. Rep. 179; Walton v. Horkan, 112 Ga. 814, 81 Am. St. Rep. 77; Bacon v. Bonham, 33 N. J. Eq. 614; Field V. City of New York, 6 N. Y. 179, Huffcut & W. Am. Cas. Cont. 453; Stott v. Franey, 20 Or. 410, 23 Am. St. Rep. 132; Pat- terson V. Caldwell, 124 Pa. 455. Ti Cutting Packing Co. v. Packers' Exchange of California, 86 Cal. 574, 21 Am. St. Rep. 63. 72 Augur V. New York Belting & Packing Co., 39 Conn. 536; Haw- ley v. Bristol, 39 Conn. 26; Manly v. Bitzer, 91 Ky. 596, 34 Am. St. Rep. 242; Emery v. Lawrence, 8 Cush. (Mass.) 151; Kane v. Clough, 36 Mich. 436; Philadelphia v. Lockhardt, 73 Pa. 211; O'Keefe v. Allen, 20 R. I. 414, 78 Am. St. Rep. 884. See, also. Porter v. Dun- lap, 17 Ohio St. 591. 73 Metcalf V. Kincaid, 87 Iowa, 443, 43 Am. St. Rep. 391. See, also, Crocker v. Whitney, 10 Mass. 316. (731) § 357 OPERATION OF CONTRACT. [Ch. 8 is valid in equity, even though there is no existing employ- ment or contract therefor/* Partial assignment. At law, a creditor may not split up a demand into parts and assign one or more of them without the debtor's consent. If the demand is essentially an entirety, the debtor has a right to pay it as a whole, and he may ignore an assignment of it in part.'^^ In equity, however, partial assignments are valid without the debtor's consent.'^® Accordingly, if only a part of a debt is assigned, or if parts of it are assigned to different persons, and afterwards all the owners of the claim unite in a suit upon it, or some unite, and those not joining are made defendants, so that the entire controversy may be determined in one suit, then, and not otherwise, there may be a recovery in spite of the partial assignment.^^ 74 Edwards v. Peterson, 80 Me. 367, 6 Am. St. Rep. 207. 75Trist V. CMld, 21 Wall. (U. S.) 441, Huffcut & W. Am. Cas. Cont. 340; Mandeville v. Welch, 5 Wheat. (U. S.) 277; Thomas V. Rock Island Gold & Silver Mln. Co., 54 Cal. 578; Getchell v. Maney, 69 Me. 442; Tripp v. Brownell, 12 Cush. (Mass.) 376, 382; Palmer v. Merrill, 6 Cush. (Mass.) 282; Gibson v. Cooke, 20 Pick. (Mass.) 15; Milroy v. Spurr Mountain Iron Min. Co., 43 Mich. 231, 235; Beardslee v. Morgner, 73 Mo. 22; Thallhimer v. Brinckerhoff, 3 Cow. (N. Y.) 623, 15 Am. Dec. 308; Carter v. Nichols, 58 Vt. 553. 76 Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; National Bxch. Bank of Boston v. McLoon, 73 Me. 498; Kingsbury v. Burrill, 151 Mass. 199; James v. City of Newton, 142 Mass. 366; Dean v. St. Paul & D. R. Co., 53 Minn. 504; Canty v. Latterner, 31 Minn. 239; Risley v. Phenix Bank, 83 N. Y. 318; McDaniel v. Maxwell, 21 Or. 202, 28 Am. St. Rep. 740; Avery v. Popper, 92 Tex. 337, 71 Am. St. Rep. 849; Harris Co. v. Campbell, 68 Tex. 22, 2 Am. St. Rep. 467. In some cases in Massachusetts the doctrine seems not to have been conceded, but those cases were at law, and not in equity. Bul- lard V. Randall, 1 Gray (Mass.) 605; Dana v. Third Nat. Bank of Boston, 13 Allen (Mass.) 445. If a municipality is a party to a contract, it is not bound to recog- nize partial assignments of it. Appeals of City of Philadelphia, 86 Pa. 179. T7 Schilling v. Mullen, 55 Minn. 122, 43 Am. St. Rep. 475; Dean (732) Ch. 8] ASSIGNMENT OP CONTRACT. § 357 Form of assignment. The assignment of a chose in action need take on no par- ticular form in order to be enforced in equity. It may be in writing or rest in parol, and no set form of words need be followed.'^^ Thus, an order of any kind drawn by the cred- itor on the fund will pass the debt, in the absence of statu- tory limitation, if it is served on the debtor ;''^ and there may be a valid assignment for a valuable consideration by deliv- ery only, without a written transfer of the contract.*" It is no longer necessary that the assignment shall be made by an act of the same solemnity as that which evidences the V. St. Paul & D. R. Co., 53 Minn. 504; Whittemore v. Judd Lin- seed & Sperm Oil Co., 124 N. Y. 565, 21 Am. St. Rep. 708. See Avery V. Popper, 92 Tex. 337, 71 Am. St. Rep. 849. TSRyall V. Rowles, 1 Ves. Sr. 348; Lett v. Morris, 4 Sim. 607; Metcalf v. Kincaid, 87 Iowa, 443, 43 Am. St. Rep. 391; Mc Williams V. Webl), 32 Iowa, 577; Newby v. Hill, 2 Mete. (Ky.) 530; Porter V. Bullard, 26 Me. 448; Currier v. Howard, 14 Gray (Mass.) 511; Weed v. Jewett, 2 Mete. (Mass.) 608; Draper v. Fletcher, 26 Mieh. 154; Pass v. McRea, 36 Miss. 143; Risley v. Phenix Bank, 83 N. Y. 318; Allen v. Brown, 44 N. Y. 228, Huffeut & W. Am. Cas. Cont. 459; Winberry v. Koonce, 83 N. C. 351; MeDaniel v. Maxwell, 21 Or. 202, 28 Am. St. Rep. 740. It need not be sealed. Howell v. Maelvers, 4 Term R. 690. ToRodick v. Gandell, 1 De Gex, M. & G. 763; National Bank of D. 0. Mills & Co. V. Herold, 74 Cal. 603, 5 Am. St. Rep. 476; Walton V. Horkan, 112 Ga. 814; Metcalf v. Kineaid, 87 Iowa, 443, 43 Am. St. Rep. 391; Holbrook v. Payne, 151 Mass. 383, 384, 21 Am. St. Rep. 456; Walker v. Mauro, 18 Mo. 564; Brill v. Tuttle, 81 N. Y. 454; Nimocks v. Woody, 97 N. C. 1, 2 Am. St. Rep. 268; MeDaniel v. Maxwell, 21 Or. 202, 28 Am. St. Rep. 740. However, the order must be drawn against a particular fund, else it does not operate as an assignment. Baer v. English, 84 Ga. 403, 20 Am. St. Rep. 372; Me- Daniel V. Maxwell, 21 Or. 202; Com. v. American Life Ins. Co., 162 Pa. 586, 42 Am. St. Rep. 844; Harris County v. Campbell, 68 Tex. 22, 2 Am. St. Rep. 467.' soLittlefleld v. Smith, 17 Me. 32r; Clark v. Rogers, 2 Me. 143. This is true as to promissory notes also. Pease v. Rush, 2 Minn. 107 (Gil. 89). (733) § 358 OPERATION OF CONTRACT. [Ch. 8 debt itself.^^ Accordingly, a sealed contract may be as- signed by parol.*^ § 358. Conditions of assignability — In general. Certain conditions are attached to the enforcement in equity of an assignment of a chose in action: First. The assign- ment will not be supported unless a consideration therefor has been given by the assignee.®* Second. Although effectual as between the assignor and the assignee from the moment it is made, it does not bind the person liable until he receives notice of it. Third. The assignee takes the right subject to all defenses that might have been urged against the assignor had he sued on it. In other words, the assignor cannot give a better title than he has. Notice. Notice of the assignment of the benefit of a contract is not necessary to complete the assignee's equitable right as against the assignor,®* but the debtor is entitled to know to whom payment is due. An assignment of the claim does not take effect as against him, therefore, until he receives notice of it.®^ Thus, if, after the assignment, and before he learns of 81 Dennis v. Twitchell, 10 Mete. (Mass.) 180. 82 Barrett v. Hinckley, 124 111. 32, 7 Am. St. Rep. 331. 83 Anson, Cont. (Sth Ed.) 237; Tallman v. Hoey, 89 N. Y. 537. 8* Bishop V. Holcomb, 10 Conn. 444; Thayer v. Daniels, 113 Mass. 129; Conway v. Cutting, 51 N. H. 407, 408; Muir v. Schenck, 3 Hill (N. Y.) 228. The same is true as against a creditor of the as- signor who garnishes the debtor after an assignment of the debt, and before notice by the assignee to the debtor. The assignee takes the debt as against the garnishor. Walton v. Horkan, 112 Ga. 814. And the same rule applies against the assignor's assignee in bank- ruptcy. Burn V. Carvalho, 4 Mylne & C. 690. 85 Anson, Cont. (Sth Ed.) 237; Graham Paper Co. v. Pembroke, 124 Cal. 117, 71 Am. St. Rep. 26; Shade v. Creviston, 93 Ind. 591; Schilling v. Mullen, 55 Minn. 122, 43 Am. St. Rep. 475; Miller v. (734) Ch. 8] ASSIGNMENT OF CONTRACT. § 358 it, he pays the debt to the assignor, it is a good discharge, and the assignee cannot require the debtor again to pay the money to him.*® Again, if the debtor acquires a claim against the assignor after the assignment, but before he has received notice thereof, he may, other rules permitting, set it off in an action against him by the assignee.^'^ Kreiter, 76 Pa. 78; Clodfelter v. Cox, 1 Sneed (Tenn.) 330. The notice must tie express, but it need not be in writing. Pollock, Cont. 208; Re Tiehener, 35 Beav. 317. Notice not given by the as- signee, but by a third person, may be sufficient to charge the debtor, if it is such that a reasonable man would act upon it. Pollock, Cont. 210; Lloyd v. Banks, 3 Ch. App. 488; Jones v. Witter, 13 Mass. 304; Commercial Bank of Rochester v. Colt, 15 Barb. (N. Y.) 506; Ward v. Morrison, 25 Vt. 593. Notice must be given within a reasonable time. Adams v. Leavens, 20 Conn. 73. Notice given to the debtor's attorney is not sufficient. Morrison v. Lynch, 36 La. Ann. 611. 86 Williams v. Sorrell, 4 Ves. 389 ; Stocks v. Dobson, 4 De Gex, M. & G. 15; Clark v. Boyd, 6 T. B. Mon. (Ky.) 293; Leahi v. Dugdale's Adm'x, 34 Mo. 99; Van Keuren v. Corkins, 66 N. Y. 77; Heermans V. Ellsworth, 64 N. Y. 159, Huff cut & W. Am. Cas. Cont. 457; Gaul- lagher v. Caldwell, 22 Pa. 300; Harvin v. Galluchat, 28 S. C. 211, 13 Am. St. Rep. 671. Payment to the assignor by the debtor after notice of the assign- ment will not prejudice the assignee. Bean v. Simpson, 16 Me. 49; Schilling v. Mullen, 55 Minn. 122; Duncklee v. Greenfield Steam Mill Co., 23 N. H. 245; Upton v. Moore, 44 Vt. 552. sTMcCabe v. Grey, 20 Cal. 509; Adams v. Leavens, 20 Conn. 73; Miller v. Kreiter, 76 Pa. 78; Burkett v. Moses, 11 Rich. Law (S. C.) 432. If the debtor does not acquire the claim against the assignor until after he receives notice of the assignment, he cannot set it off as against the assignee. Crayton v. Clark, 11 Ala. 787; St. An- drew V. Manchaug Mfg. Co., 134 Mass. 42; Goodwin v. Cunningham, 12 Mass. 193; Lake v. Brown, 7 How. (Miss.) 661; Roberts v. Car- ter, 38 N. Y. 107; Upton v. Moore, 44 Vt. 552. A demand against the assignor cannot be set off against the as- signee unless due and payable when the assignment was made, and notice is unnecessary to prevent set-off of a demand becoming pay- able subsequently. Stadler v. First Nat. Bank of Helena, 22 Mont. 190, 74 Am. St. Rep. 582. (735) § 358 OPERATION OF CONTRACT. [Ch. 8 While, as between assignor and assignee, an assignment of a chose in action takes effect at once, without regard to wheth- er the debtor is notified, yet in some jurisdictions the same principle does not apply as between several successive assign- ees of the same debt. In these courts, upon the principle that equitable titles have priority according to the priority of no- tice, it is held that the several assignees rank as to their title, not according to the dates at which the creditor assigns his rights to them respectively, but according to the dates at which they respectively give notice to the debtor. Upon this view, notice to the debtor is necessary, not only to render the assign- ment operative as against the debtor, but also to perfect the title of the assignee as against those holding under conflict- ing assignments of the same claim. '^^ However, by no means all the courts follow this rule. There is weighty authority to the contrary in America. In these states, notice is neces- sary for the sole purpose of charging the debtor, and, upon the principle that a man can assign only such rights as he himself has, the several assignees take according to the dates of their respective assignments.^^ •88 Anson, Cont. (8th Ed.) 238; Stocks v. Dobson, 4 De Gex, M. & G. 15; Poster v. Cockerell, 3 Clark & P. 456; Loveridge v. Cooper, 3 Russ. 1, 38, 48; Bearle v. Hall, 3 Russ. 1; Laclede Bank v. Scliuler, 120 U. S. 511; Judson v. Corcoran, 17 How. (U. S.) 612, 615; Gra- ham Paper Co. v. Pembroke, 124 Cal. 117, 71 Am. St. Rep. 26; Van- buskirk v. Hartford Fire Ins. Co., 14 Conn. 141; Merchants' & Me- chanics' Bank of Chicago v. Hewitt, 3 Iowa, 93, 66 Am. Dec. 49; Pass V. MoRea, 36 Miss. 143; Murdoch v. Finney, 21 Mo. 138; Clod- felter v. Cox, 1 Sneed (Tenn.) 330; Ward v. Morrison, 25 Vt. 593. 89 Fore V. Manlove, 18 Cal. 436; Summers v. Hutson, 48 Ind. 230; Newby v. Hill, 2 Mete. (Ky.) 530; Talbot v. Cook, 7 T. B. Mon. (Ky.) 438; Gill v. Clagett, 4 Md. Ch. 153; Thayer v. Daniels, 113 Mass. 129; MacDonald v. Kneeland, 5 Minn. 352 (Gil. 283); Kamena V. Huelbig, 23 N. J. Eq. 78; Fortunate v. Patten, 147 N. Y. 277, 283; Muir V. Schenck, 3 Hill (N. Y.) 228; Porter v. Dunlap, 17 Ohio St. 591; Coon v. Reed, 79 Pa. 240; Maybin v. Kirby, 4 Rich. Eq. (S. C.) 105; Brander v. Young, 12 Tex. 332; Tingle v. Fisher, 20 W. Va. 497, 507; Leonard v. Burgess, 16 Wis. 41. (736) Ch. 8] ASSIGNMENT OF CONTRACT. § 35s Title and equities. The assignor of a chose in action can give no better title to it than he himself has. The assignee, therefore, acquires no title to the thing assigned if the assignor had none f and furthermore, even if the assignor's title was perfect, yet the assignee gets no better right to enforce the demand than the assignor himself had. A person who buys a chose in action is bound to take notice of the rights of the debtor. He must ascertain the nature and the extent of the creditor's demand, and he cannot take more than the creditor has to give, or avoid the effect of transactions by which the creditor has lessened or invalidated the rights assigned. In other words, the as- signee of a chose in action takes subject to the equities.®^ The question between an assignee and a subsequent attaching creditor rests upon the same principle as that between conflicting assignees. Williams v. Ingersoll, 89 N. Y. 508, 523; Greentree v. Rosenstock, 61 N. Y. 593. See following pages. 90 Anson, Cont. (8th Ed.) 238; Barrett v. Hinckley, 124 111. 32, 39. However, a iona fide purchaser of a nonnegotiable instrument from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, obtains a valid title, even though the assignment did not in fact pass the title to the instrument. Moore V. Metropolitan Nat. Bank, 55 N. Y. 41; Combes v. Chandler, 33 Ohio St. 178. 91 Crouch V. Credit Foncier of England, L. R. 8 Q. B. 380; Mangles V. Dixon, 3 H. L. Cas. 735; Phipps v. Lovegrove, L. R. 16 Eq. 80, 88; Cowdrey v. Vandenburgh, 101 U. S. 572; Feltz v. Walker, 49 Conn. 93; Burton v. Willin, 6 Houst. (Del.) 522, 22 Am. St. Rep. 363; Jack v. Davis, 29 Ga. 219; Commercial Nat. Bank v. Burch, 141 111. 519, 33 Am. St. Rep. 331; Kleeman v. Frisbie, 63 111. 482; Sharts v. Await, 73 Ind. 304; Boardman v. Hayne, 29 Iowa, 339; Willis v. Twambly, 13 Mass. 204; Dix v. Cobb, 4 Mass. 508; Spinning v. Sulli- van, 48 Mich. 5; Edson v. Gates, 44 Mich. 253; Stevens v. Johnson, 28 Minn. 172; Littlefield v. Albany County Bank, 97 N. Y. 581; Davis V. Bechstein, 69 N. Y. 440; Trustees of Union College v. Wheeler, 61 N. Y. 88; Porter v. Dunlap, 17 Ohio St. 591; Lane v. Smith, 103 Pa. 415; Wetter v. Kiley, 95 Pa. 461; Mott v. Clark, 9 Pa. 399; Stebbins v. Bruce, 80 Va. 389. (737) Law of Cont; — 47. § 358 OPERATION OF CONTRACT. [Ch. 8 An illustration of this principle tlius broadly stated occurs where a man induces another to enter into a contract by means of fraud, and then assigns his interest in the contract. The assignee takes subject to the defrauded party's right to have the contract set aside in a court of equity, and this, even though he had no notice of the wrongdoing, and paid value for the assignment.®^ Again, if two persons have claims each against the other, and a right of set-off exists, and one of them assigns his claim, the other still has his right of set- off as against the assignee, and this, even though the assignee took without notice of the right.®^ So far as the rights of the debtor are concerned, the rule that the assignee of a chose in action takes it subject to the equities is applied without question; but where the equities are latent, — that is to say, where they arise between several successive assignees of the same demand, or between an assignee and some third per- son who claims an interest in the thing assigned, — ^the law is not so well-settled.®* The rule that the assignee of a chose In the case of a bond and mortgage, this rule applies only to de- fenses which grow out of the original transaction, and affect the legal inception of the securities, and which are available to the mortgagor at the time they are assigned. Equities arising after the assignment are not within the application of the rule. Mer- chants' Bank of Buffalo v. "Weill, 163 N. Y. 486, 79 Am. St. Rep. 605. »2 Graham v. Johnson, L. R. 8 Bq. 36; Holbrook v. Burt, 22 Pick. (Mass.) 546. Contra, Combes v. Chandler, 3,3 Ohio St. 178. 93 Cavendish v. Geaves, 24 Beav. 163, 173 ; Hall v. Hickman, 2 Del. Ch. 318; Hunt v. Shackleford, 55 Miss. 94; Sanborn v. Little, 3 N. H. 539; Wood v. City of New York, 73 N. Y. 556; First Nat. Bank of New Windsor v. Bynum, 84 N. C. 24; Metzgar v. Metzgar, 1 Rawle (Pa.) 227; Barney v. Grover, 28 Vt. 391. To preserve this right of set-off, the debt due the defendant must not only have been in existence at the time of the assignment, but also have then been due. Graham v. Tilford, 1 Mete. (Ky.) 112; Avery v. Russell, 125 Mass. 571; Chambliss v. Matthews, 57 Miss. 306; Stadler v. First Nat. Bank of Helena, 22 Mont. 190, 74 Am. St. Rep. 582; Roberts V. Carter, 38 N. Y. 107; Williams v. Helme, 16 N. C. 151; Fuller V. Steiglitz, 27 Ohio St. 355. 94Pomeroy, Eq. Jur. §§ 708-715. (Y38) Ch. 8] ASSIGNMENT OF CONTRACT. § 358 in action takes it subject to the equities existing between the original parties to the contract must yield when it appears from the nature or terms of the contract that it must have been intended to be assignable, free from and unafEected by such equities.®^ It is questionable, however, whether such a stipulation would protect the assignee from a vital defect in the formation of the original contract, such as fraud prac- ticed upon the debtor to induce him to enter into the engage- ment.'® The assignee of a chose in action takes it subject to all existing equities between the parties to the instrument, but not to any latent equities which some third persons may have against the debtor. Bloomer v. Henderson, 8 Mich. 395. A purchaser of a mortgage takes it subject to all the infirmities to which it would have been liable in the hands of the assignor, except the latent equities of third persons, of whose rights he could know nothing. Sumner v. Waugh, 56 111. 531. In Bush V. Lathrop, 22 N. Y. 535, it was held that the remote assignee of a nonnegotiable chose in action takes subject to the equities existing between a prior assignor and assignee thereof; but in Moore v. Metropolitan Nat. Bank, 55 N. Y. 41, it was held that an assignee whose assignor is invested with the indicia of ab- solute ownership takes subject only to the equities existing between the original parties to the instrument. However, the courts of New York now recognize no distinction between equities existing in favor of the debtor and those existing in favor of a third person, and hold that, in the absence of an estoppel, an assignee of a past- due note and mortgage takes them subject to any equity in favor of any person. Owen v. Evans, 134 N. Y. 514; Greene v. Warnick, 64 N. Y. 220. The assignee for value of a lease which is prior to a mechanic's lien by reason of the fact that the assignor took the same without notice of the lien is protected to the same extent as the assignor would be, notwithstanding any actual knowledge he may have had. Floete V. Brown, 104 Iowa, 154, 65 Am. St. Rep. 434. As to the rights of several successive assignees, see page 736, supra. 85 Anson, Cont. (8th Ed.) 238; Ex parte Asiatic Banking Corp., 2 Ch. App. 391, 397; Merchant Banking Co. v. Phoenix Bessemer Steel Co., 5 Ch. Div. 205. 96 Anson, Cont. (8th Ed.) 239. (739) § 359 OPERATION OF CONTRACT. [Ch. 8 IX. Same — Assignment of Rights undek Statute. In many states, the assignment of contractual rights is reg- ulated by statute. § 359. In general. In many states it is provided by statute that choses in ac- tion arising out of contract may be assigned so as to vest the title in the assignee; and in most states the assignee is au- thorized to maintain in his own name any action thereon which the assignor might have brought. It is usually de- clared, however, except in the case of negotiable instruments, that the assignee takes subject to the equities existing at the time of the assignment between the assignor and the debtor. In all probability, these statutes do not affect the rules of as- signment in equity. The rights which are assignable under their authority are doubtless such rights as were previously assignable in equity. The acts simply generalize pre-existing equitable rules, and give legal remedies for rights which pre- viously could be enforced only in a court of equitable juris- diction.®''' X. Same — Assignment of Rights Arising prom Negotiable In- struments. Negotiable instruments are not governed by the rules gen- erally applicable to the assignment of rights arising out of contract. They differ in three respects, namely : (a) Consideration is presumed to have been given by the holder of negotiable paper until the contrary is shown. (b) Notice is not required to perfect the transfer of a negotiable instrument, even as against the debtor. (c) A person who acquires a negotiable instrument for 97 See Anson, Cont. (8tli Ad.) 239. as to the effect of similar legis- lation in England. And see Fuller v. Metropolitan Life Ins. Co., 68 Conn. 55, 57 Am. St. Rep. 84. (740) Ch. 8] ASSIGNMENT OF CONTRACT. § 359 value and before maturity, without notice^ of any defects in his assignor's right or title, does not take subject to such defects. § 360. In general. So far we have dealt with the assignment of contracts at common law, in equity, and imder statute, and we have seen that, under the most favorable circumstances, the assignment of a contract binds the debtor to the assignee only where it is based upon a sufficient consideration, and notice is given to the debtor, and subject always to the rule that the assignee takes no more by the transfer than the assignor has to give. We come now to deal with a class of promises that may be assigned in such a way that the promise may be enforced by the assignee at law as well as in equity, without previous no- tice to the promisor, and without the risk of being defeated by defenses based on facts occurring before he acquired the contract. In other words, we come to consider negotiable in- struments, as distinguished from assignable contracts. Certain contracts are negotiable by the custom of mer- chants recognized by the courts."^ Certain others have been made so by statute. The most important instance of the former class is the bill of exchange or draft, of which bank checks are a species. Of the latter class, the promissory note is an important illustration. Notes of hand were made ne- gotiable by St. 3 & 4 Anne, c. 9. This statute has been sub- stantially re-enacted in most of the American states, and doubtless prevails as a part of the common law where the leg- islature has not interfered.** 08 When a custom has become general throughout the state among all classes of people, the courts take judicial cognizance of it. Munn V. Burch, 25 111. 35, 38. The courts took notice, therefore, of the customs of merchants with reference to negotiable instruments, thereby rendering those customs a part of the common law. Wil- liams V. Williams, Carth. 269. 99 Anson, Cont. (8th Ed.) 241; 3 Kent, Comm. 72; Dunn v. Adams, (741) § 361 OPERATION OF CONTRACT. [Ch. 8 In treating of assignments in equity, we saw that there are three conditions upon which equity will enforce the assign- ment of a nonnegotiable contract: First, there must be a consideration for the transfer ; second, the debtor is not bound by the assignment until he receives notice of it; and, third, the assignee takes subject to the equities existing between the debtor and the assignor at the time of the assignment. The law of negotiable instruments is different in these respects. i 361. Consideration. Firstly. In the case of negotiable instruments, considera- tion is presumed to have been given by the holder of the paper until the contrary is shown.-'-'"' This presumption is dis- pelled if it appears that the paper is based upon an illegal consideration,^"^ or that the execution of it was induced by fraud.^"^ Even apart from this presumption, the doctrine of consideration does not apply to negotiable instruments, as to ordinary contracts. There is usually no consideration be- tween the remote parties to a bill, such as the acceptor and the payee, and there need be none between the drawer and an indorsee when, either from acceptance being refused or the bill being dishonored by the acceptor, recourse is had to the drawer. "The rules of negotiability took their rise out of the custom of merchants," says Sir William Anson, "which assumed that the making of a bill or note was a business transaction. Value must be given at some time in the history of the instrument; but to insist that consideration should have passed between the holder and the party sued would 1 Ala. 527; Yingling v. Kohlhass, 18 Md. 148; Jones v. Fales, 4 Mass. 245, 254. 100 Anson, Cont. (8tli Bd.) 243. 101 Anson, Cont. (Sth Ed.) 243; Ne-w v. Walker, 108 Ind. 365. Huff- cut & W. Am. Cas. Cont. 399. See page 481, supra. io2Bissell V. Morgan, 11 Cush. (Mass.) 198; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191. (742) Ch. 8] ASSIGNMENT OP CONTRACT. | 353 have defeated the ©bject for which such instruments came into existence."^**^ § 362. Notice. Secondly. The assignment of a negotiable instrument gives a right of action to the assignee, even though he and his hold- ing may be alike unknown to the promisor. J^otice of the assignment is not required to perfect the transfer, even as against the debtor.^"* § 363. Title and equities. Thirdly. If a negotiable instrument is assigned before ma- turity to an innocent person, who pays value for it, the as- signee is not prejudiced by defects in the assignor's right or title. His rights are not defeated by a matter, either at law or in equity, merely because it would constitn'^'' !i defense against the assignor. '^"^ 103 Anson, Cont. (8tli Ed.) 245, 246. 104 Anson, Cont. (8th Ed.) 240, 243; Walker v. Ocean Bank, 19 Ind. 247, 250; Odell v. Gray, 15 Mo. 337, 342. 105 Anson, Cont. (8th Ed.) 240; London Joint-Stock Bank v. Sim- mons [1892] App. Cas. 201, 217; Thiedemann v. Goldschmidt, 1 De Gex, F. & J. 4; Shaw v. North Pennsylvania R. Co., 101 U. S. 557, 563, Hufecut & W. Am. Cas. Cont. 460; Swift v. Tyson, 16 Pet.(U. S.) 1, 15; Swall v. Clarke, 51 Cal. 227; Otis v. Gardner, 105 111. 436; New V. Walker, 108 Ind. 365, HufEcut & W. Am. Cas. Cont. 399; Smith v. Livingston, 111 Mass. 342; Walker v. Detroit Transit Ry. Co., 47 Mich. 338; Continental Nat. Bank v. Townsend, 87 N. Y. 8; Burton's Appeal, 93 Pa. 214; Strange v. Houston & T. C. Ry. Co., 53 Tex. 162. As has been said, the rule is otherwise as to nonnego- tiable instruments. Ford v. Mitchell, 15 Wis. 304, Huffcut & W. Am. Cas. Cont. 536. The purchaser of a certified check, payable to order, who obtains title without indorsement by the payee, holds it subject to all equities and defenses existing between the original parties, although he paid full consideration, without notice. Goshen Nat. Bank v. Bingham, 118 N. Y. 349. (Y43) § 364 OPERATION OP CONTRACT. [Ch. 8 XI. Assignment by Opeeation of Law. Rights and liabilities arising from contract may pass to a person not a party to the agreement by operation of the com- mon law, or by operation of statute. At common law, they may pass — (a) Upon the conveyance of real estate. (b) Upon marriage. (c) Upon death. By statute they may pass upon bankruptcy. § 364. In general. Our treatment of the assignment of contractual rights and liabilities has thus far been concerned with assignment by act of the parties, — that is to say, voluntary assignment. Under certain conditions, the law operates to effect a transfer of rights or liabilities arising under a contract, without any act of the parties directed to that end, and, indeed, without the consent of the parties. This is termed "assignment by op- eration of law," and it is with this that we are now to deal. XII. Same — Assignment by Teanspee op Land. Covenants in a lease that touch and concern the thing de- mised pass to the assignee of the lessee, who becomes bound to the lessor by the same obligations, and entitled to the same rights, as his assignor in respect of the covenants. The early common-law rule that covenants affecting the lease- hold do not pass upon an assignment of the reversion has been changed by statute in both England and America. A covenant in favor of the owner of a freehold passes to his assignees if it touches and concerns the land conveyed, and is not merely personal; otherwise, not. If, however, the covenant restricts a man's enjoyment of his own land, it does not bind his assignees, except when he creates certain well-known interests, as easements and profits, recog- nized by law. To this latter rule, there are some exceptions in equity. (744) Ch. 8] ASSIGNMENT OF CONTRACT. § 366 § 365. In general. If an interest in land is acquired by purchase or lease upon terms that bind the parties to the conveyance by contractual obligations in respect of their several interests, the assign- ment by either party of his interest to a third person operates, within certain limits, as a transfer to that person of those obligations.-''*® This doctrine is peculiar to the law of real estate. A contract cannot be annexed to goods so as to fol- low the property in the goods, either at common law or in equity. ^"^ § 366. Covenants affecting leasehold interests — Assignee of leasehold. In the case of a lease, covenants therein that touch and concern the thing demised pass to the assignee of the lessee, whether or not they are expressed to have been made with the lessee and his assigns ; and the assignee is therefore bound to the landlord by the same obligations, and entitled to the same rights, as his assignor in respect of these promises.-'"* 106 Anson, Cont. (8th Ed.) 248; Kellogg v. Robinson, 6 Vt. 276. i»7 Pollock, Cont. 224; Spencer's Case, 1 Smith, Lead. Cas. 68 (8th Am. Ed. 145); Splidt v. Bowles, 10 East, 279; De Mattos v. Gib- son, 4 De Gex & J. 276, 295. 108 Anson, Cont. (8th Ed.) 249; Spencer's Case, 1 Smith, Lead. Cas. 68 (8th Am. Ed. 145); Clegg v. Hands, 44 Ch. Div. 503; Hunt V. Danforth, 2 Curt. 592, Fed. Cas. No. 6,887; Callan v. McDaniel, 72 Ala. 96; Salisbury v. Shirley, 66 Cal. 223; Sexton v. Chicago Storage Co., 129 111. 318, 16 Am. St. Rep. 274; Webster v. Nichols, 104 111. 160; Gordon v. George, 12 Ind. 408, HufCcut & W. Am. Cas. Cont. 468; Donelson v. Polk, 64 Md. 501; Patten v. Deshon, 1 Gray (Mass.) 325; Trask v. Graham, 47 Minn. 571; Willi v. Dryden, 52 Mo. 319; Stewart v. Long Island R. Co., 102 N. Y. 601, 55 Am. Rep. 844; Suydam v. Jonefe, 10 Wend. (N. Y.) 180; Masury v. South worth, 9 Ohio St. 340; Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 10 Am. St. Rep. 553; State v. Martin, 14 Lea (Tenn.) 92, 52 Am. Rep. 167; Overman v. Sanborn, 27 Vt. 54; De Pere Co. v. Reynen, 65 Wis. 271. And see Wills v. Summers, 45 Minn. 90. (745) § 366 OPERATION OF CONTRACT. [Ch. 8 Illustrations of covenants that run with the land are cove- nants to repair, to leave in good repair, and to deal vdth the land in a specified manner. ^**^ Even where the covenants concern the thing demised, yet, if they relate to something not in existence at the time of the conveyance, they do not pass to the lessee's assigns unless the assigns are named in the lease,^^" though it should be said that this exception has been questioned.-"^^ However, the lessee may stlU be sued on his express covenants after an assignment of the term. Spencer's Case, 1 Smith, Lead. Cas. 77 (8th Am. Ed. 156, 157, 226); Wilson v. Gerhardt, 9 Colo. 585; Grommes v. St. Paul Trust Co., 147 111. 634, 37 Am. St. Rep. 248; Harris v. Heackman, 62 Iowa, 411; Greenleaf v. Allen, 127 Mass. 248; Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 10 Am. St. Rep. 553; Bailey v. Wells, 8 Wis. 141, 76 Am. Dec. 233. But where the obligation of the lessee to pay rent is only that which is implied by law from his occupation of the premises, his assign- ment of the lease and surrender of possession to the assignee, with the assent of the lessor, extinguishes the privity of estate between the lessor and lessee, and the consequent implied liability to pay rent. Harmony Lodge v. White, 30 Ohio St. 569. If a receiver of an insolvent corporation takes possession of, its leasehold estate, he is liable only for a reasonable rent during the time that he retains possession, and he does not become an assignee of the term, and is not liable on the covenants of the lease. Bell V. American Protective League, 163 Mass. 558, 47 Am. St. Rep. 481. The liability of the assignee of the lease to the landlord grows out of the privity of estate. It follows that, when the privity ceases to exist, the liability of the assignee for future breaches of cove- nants in the lease, whether express or implied, is then determined. Mason v. Smith, 131 Mass. 510. Where a lessee assigns a lease containing a covenant to pay taxes, which he is afterwards obliged to pay in fulfillment of his obliga- tion to the lessor, he may recover the amount from the assignee, though his own interest in the estate has entirely ceased. Mason V. Smith, 131 Mass. 510. See, also, Jackson v. Port, 17 Johns. (N. Y.) 479. A lease is assignable by act of the parties, whether the word "as- signs" is inserted or not. Spear v. Fuller, 8 N. H. 174, 176. 108 Anson, Cont. (8th Ed.) 249. 110 Spencer's Case, 1 Smith, Lead. Cas. 74, 77 (8th Am. Ed. 155- 157, 229); Bailey v. Richardson, 66 Cal. 416, 420; Hansen v. Meyer, (Y4G) Ch. 8] ASSIGNMENT OF CONTRACT. § 355 If the covenants in a lease do not affect the subject-matter of the conveyance, they do not pass by the assignment. In no case does the assignee of the lease acquire benefit or lia- bility from merely personal or collateral covenants made be- tween the assignor and the landlord.^^^ Thus, a covenant by a lessor with the lessee and his assigns that he will not keep a public house within a certain distance of the premises is personal and collateral, and the assignee of the lessee has no remedy for its breach.^*' , Assignee of reversion. At common law, covenants affecting leasehold interests are said to run mth the land, and not with the reversion, — ^that is, they pass upon an assignment of the lease, but not upon an assignment of the reversion, — ^and, consequently, an as- signee of the landlord does not acquire his rights and liabil- ities under the lease.-^^* This rule of the common law was changed by St. 32 Hen. VIII. c. 34, so that the assignee of the reversion might take the benefits and incur the liabilities of covenants entered into with the lessor. This statute prob- ably prevails in the United States as part of the common law ; and in many states the legislature has expressly declared that the assignee of a reversion has the same rights and rem- 81 111. 321; Coffin v. Tallman, 8 N. Y. 465, 4 N. Y. 134; Thompson V. Rose, 8 Cow. (N.-Y.) 266; Bream v. Dickerson, 2 Humph. (Tenn.) 126; Hartung v. Witte, 59 Wis. 285. 111 Anson, Cont. (8th Ed.) 249; Minshull v. Oakes, 2 Hurl. & N. 793, 808. The word "assigns" in the lease is not indispensable. If the covenant is one which may he annexed to the estate and run with the land. Equivalent words, or clear manifestations of intent that it shall pass, are sufficient. Masury v. Sputhworth, 9 Ohio St. 340. 112 Anson, Cont. (8th Ed.) 250; Newburg Petroleum Co. v. "Weare, 44 Ohio St. 604. 113 Thomas v. Hayward, L. R. 4 Exch. 311. 114 Anson, Cont. (8th Ed.) 249, 250; Crawford v. Chapman, 17 Ohio, 449. (747) § 367 OPERATION OF CONTRACT. [Ch. 8 edies as the lessor asrainst the lessee and his representatives upon covenants contained in the lease.^^^ To thus entitle the assignee of the reversion, the covenants must concern the thing demised in accordance V7ith the rules that govern cove- nants running with the land.^^^ § 367. Covenants affecting freehold interests. At common law, a covenant in favor of the owner of a free- hold interest in land passes to his assignees if it touches and concerns the land conveyed, and is not merely personal; otherwise, not.-'^^ To illustrate, a covenant against incum- 116 Anson, Cont. (8th Ed.) 250; Bailey v. Richardson, 66 Cal. 416, 421; Baldwin v. "Walker, 21 Conn. 168; Fisher v. Deering, 60 111. 114, Huff cut & W. Am. Gas. Cont. 470; Rowland v. Coffin, 12 Pick. (Mass.) 125. The English statute applies only to leases under seal; but it has been held in the case of a lease from year to year that payment of rent by the lessee and acceptance thereof by the assignee of the reversion may justify an inference of consent that the tenancy shall be continued on the same terms as before the assignment. Cornish v. Stubbs, L. R. 5 C. P. 334, 339. See, also, Fisher v. Deering, 60 111. 114, Huffcut & W. Am. Cas. Cont. 470. In Michigan, it is held that the common-law rule is inapplicable to the circumstances of the present day, and it is not enforced. Perrin V. Lepper, 34 Mich. 292. If the reversion is assigned, the assignee is the real party in interest, within the meaning of the reformed codes of civil procedure, and he may accordingly maintain an ac- tion on the covenants in the lease. Smith v. Harrison, 42 Ohio St. 180, 184. 110 Anson, Cont. (8th Ed.) 250; Spencer's Case, Smith, Lead. Cas. 1, 74 (8th Am. Ed. 153); Gardner v. Samuels, 116 Cal. 84, 58 Am. St. Rep. 135; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 94 111. 83; Shaber v. St. Paul Water Co., 30 Minn. 179, Huffcut & W. Am. Cas. Cont. 472; Norman v. Wells, 17 Wend. (N. Y.) 136; Masury v. South- worth, 9 Ohio St. 340. 1" Anson, Cont. (8th Ed.) 251; Talte v. Gosling, 11 Ch. Div. 273; Georgia Southern R. Co. v. Reeves, 64 Ga. 492; Fitch v. Johnson, 104 111. Ill; Dorsey v. St. Louis, A. & T. H. R. Co., 58 111. 65; Shaber V. St. Paul Water Co., 30 Minn. 179; Geiszler v. De Graaf, 166 N. Y. 339, 82 Am. St. Rep. 659; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545; Betz v. Bryan, 39 Ohio St. 320; (748) Ch. 8] ASSIGNMENT OF CONTRACT. § 357 brances has been held to run with the land;^^® and the same is true of a covenarnt of general Avarranty.-'^* On the other Schwaleback v. Chicago, M. & St. P. Ry. Co., 69 Wis. 292, 2 Am. St. Rep. 740; Wooliscroft v. Norton, 15 Wis. 198. Covenants run only with the legal title. Watson v. Blaine, 12 Serg. & R. (Pa.) 131; Beardsley v. Knight, 4 Vt. 471. Where a grantor of land has neither title nor possession, and Immediate possession is not taken by his grantee, the grantor's covenants are personal to the grantee, and are not transmitted to subsequent gran- tees by a mere conveyance of the land. Wallace v. Pereles, 109 Wis. 316. The rule that the covenant of a stranger to the title is personal to the covenantee, and incapable of transmission by a mere conveyance of the land, applies, in the absence of special facts and circumstances, to covenants of a husband in a deed by his wife of her own land, joined in by him. Mygatt v. Coe, 152 N. Y. 457, 57 Am. St. Rep. 521. A covenant to build and maintain a fence is personal, and does not run with the land. Hartung v. Witte, 59 Wis. 285. Contra, KeHogg V. Robinson, 6 Vt. 276. A covenant by an owner of land binding him and his successors in interest to take water of a water company, and providing that such covenant shall "run with and bind the land," creates a lien on the land for the water furnished, which is binding as against the successors in interest of the covenantor, with notice of the covenant; but it is not a covenant running with the land, so as to bind the successor in interest personally. Fresno Canal Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112. An agreement, by the grantee in a deed poll, to keep in repair a building on adjoining land of the grantor, is not a covenant, and will not sustain an action by a subsequent grantee of the adjoin- ing land. Martin v. Drinan, 128 Mass. 515. A covenant that confers an immediate, permanent, and beneficial effect on the use to which real estate is designed to be applied will run with the title. National Union Bank at Dover v. Segur, 39 N. J. Law, 173, 184. iisGeiszler v. De Graaf, 166 N. Y. 339, 82 Am. St. Rep. 659; Cole V. Kimball, 52 Vt. 639. Contra at common law. McPike v. Heaton, 131 Cal. 109, 82 Am. St. Rep. 335. A covenant against incumbrances which are a money charge on the land runs with the land, and an action may be maintained thereon by a remote grantee, who has discharged the incumbrances, although such covenant is one of the covenants in a mortgage through which he acquired title to the land by purchase at fore- (749) § 367 OPERATION OF CONTRACT. [Ch. 8 hand, where adjoining landowners agree that one shall build a party wall, and that the other shall pay one-half the cost whenever he shall use it, the covenant to pay is a personal one, and does not run with the land.^^" With covenants restricting a man's enjoyment of his own land, the rule is different. Such a covenant does not bind his assignees at common law, except when he creates certain well-known interests, as easements and profits, recognized by law. The reason of the distinction is that confusion of rights might arise if parties were allowed to invent new modes of holding real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote.-' ^^ closure sale. Security Bank v. Holmes, 65 Minn. 531, 60 Am. St. Rep. 495. A clause in a deed poll, to the effect that the grantee agrees for herself and for her heirs and assigns that she and they will forever maintain a fence around the granted premises, will, if the deed is seasonably recorded, create an incumbrance on the granted prem- ises, within the meaning of a covenant against incumbrances in a deed subsequently made hy a person claiming under the first gran- tee. Burbank v. Pillsbury, 48 N. H. 475. 119 Chandler v. Brown, 59 N. H. 370. A covenant of warranty runs with the land as an incident to it, although the grantor had neither the legal title nor the possession, where all the grantees have had possession, and the last grantee, who holds through several mesne conveyances, and who was evicted, may sue upon the covenant. Tillotson v. Prichard, 60 Vt. 94, 6 Am. St. Rep. 95. isoBloch V. Isham, 28 Ind. 37; Conduitt v. Ross, 102 Ind. 166; Hart V. Lyon, 90 N. Y. 663; Scott v.- McMillan, 76 N. Y. 141; Cole V. Hughes, 54 N. Y. 444. The right to compensation for the use of a party wall is per- sonal to the huilder. Todd v. Stokes, 10 Pa. 155. However, an agree- ment for a party wall may create an easement that shall be ap- purtenant to the land. Roche v. Ullman, 104 111. 11; Mott v. Op- penhelmer, 135 N. Y. 312. 121 Anson, Cont. (8tli Ed.) 251; Keppell v. Bailey, 2 Mylne & K. 535; Stockport Waterworks Go. v. Potter, 3 Hurl. & G. 300; Con- duitt V. Ross, 102 Ind. 166; Hazlett v. Sinclair, 76 Ind. 489; Bloch (750) Ch. 8] ASSIGNMENT OF CON iriAGT. § 3£,7 To this latter rule the courts of equity allow some excep- tions in prescribed cases. Where a man sells land, and cove- nants with the purchaser that he will use the adjoining land only in a certain way, or where land is bought or hired with a similar covenant as to its use, the covenant will bind any one to whom the land is subsequently assigned with notice of its existence.^ ^^ When such a covenant comes before a court of equitable jurisdiction, the question is not whether the cove- nant runs with the land, and so binds the assignee, but whether a man shall be permitted to use his land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.-'^* The covenants thus enforced in equity against an assignee of the land are re- strictive, it will be observed. They are covenants to use or to abstain from using, and they will be enforced only when V. Isham, 28 Ind. 37; Inhabitants of Middlefield v. Church Mills Knitting Co., 160 Mass. 267, HufEcut & W. Am. Cas. Cont. 476; Bron- son V. Coffin, 108 Mass. 175; Parish v. Whitney, 3 Gray (Mass.) 516; Weld v. Nichols, 17 Pick. (Mass.) 538, 543; Lidegerding v. Zignego, 77 Minn. 421, 77 Am. St. Rep. 677; Brewer v. Cheeseman, 18 N. J. Eq. 337; Blount v. Harvey, 51 N. C. 186; Huston v. Cincinnati & Z. R. Co., 21 Ohio St. 235; Scott v. Moore, 98 Va. 668, 81 Am. St. Rep. 749; West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600. 122 Anson, Cont. (8th Ed.) 251; Wilson v. Hart, 1 Ch. App. 463; Robbing v. Webb, 68 Ala. 393; Midland Ry. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189; Sanborn v. Rice, 129 Mass. 387, 396; Peck V. Conway, 119 Mass. 546; Burbank v. Pillsbury, 48 N. H. 475; Has- kell V. Wright, 23 N. J. Eq. 389; Lewis v. Gollner, 129 N. Y. 227, 26 Am. St. Rep. 516; Trustees of Columbia College v. Thatcher, 87 N. Y. 312; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Stines v. Dorman, 25 Ohio St. 580; St. Andrew's Lutheran Church's Appeal, 67 Pa. 512; Clark v. Martin, 49 Pa. 289; Greene v. Creigh- ton, 7 R. I. 1; Lydick v. Baltimore & O. R. Co., 17 W. Va. 427. Even a court of equity will not permit new and unusual incidents to be attached to land, either by way of benefit or of burden. Nor- cross V. James, 140 Mass. 188. 123 Tulk V. Moxhay, 2 Phillips, 774. (751) § 368 OPERATION OF CONTRACT. [Ch. 8 compliance can be made without an expenditure of money by the assignee.-'^* XIII. Same — Assignment by Maeriage. At common law, marriage effects a conditional assignment of the wife's rights and liabilities ; but this matter is now gen- erally controlled by statute, § 368. In general. At common law, marriage effects a conditional assignment of the wife's rights and liabilities to the husband. He be- comes entitled to her personal property, and burdened with her liabilities.^^^ The common-law rules concerning the prop- erty rights of husband and wife have been greatly modified by statute in both England and America. He does not take her property, as a rule, and a provision is usually found ex- empting him from liability upon her antenuptial debts. In some jurisdictions, where he acquires, property through her, he is liable for her antenuptial debts to the extent of the prop- erty so received.-*^^^ XIV. Same — Assignment by Death. Death passes to the personal representatives of the deceased all his personal estate, including all rights of action affecting it, and all liabilities chargeable upon it to the extent of the assets coming into their hands. 124 Anson, Cont. (8th Ed.) 252; Haywood v. Brunswick Bldg. Soc, 8 Q. B. Div. 403, 410; Hall v. Bwin, 37 Ch. Div. 74. 126 Kies V. Young, 64 Ark. 381, 62 Am. St. Rep. 198; Botts v. Gooch, 97 Mo. 88, 10 Am. St. Rep. 286; Alexander v. Morgan, 31 Ohio St. 546; Platner v. Patchin, 19 Wis. 333, Huffcut & W. Am. Cas. Cont. 478. 126 See Madden v. Gilmer, 40 Ala. 637; Wood v. Orford, 52 Cal. 412; Howarth v. Warmser, 58 111. 48, Huff cut & W. Am. Cas. Cont. 479; Lennox v. Bldred, 65 Barb. (N. Y.) 410. (752) Ch. 8] ASSIGNMENT OF CONTRACT. § 369 This rule does not apply, however, to contracts involving personal service of the deceased, nor to contracts involving a purely personal loss. § 369. In general. At common law, death, passes to the personal representa- tives of the deceased — that is, to his executors or administra- tors — all his personal estate, including all rights of action affecting it, and all liabilities chargeable upon it to the ex- tent of the assets coming into their hands.^^^ Thus, cove- nants attached to a leasehold estate pass, as to benefit and liability, with the personalty to the representatives, whilw covenants affecting a freehold estate, as covenants for title in a conveyance of land in fee, pass to the heir or devisee of the realty.-^^* The rule investing the personal representa- tives of a deceased person with his contractual rights and liabilities in reference to his personal estate is subject to two qualifications, however: First. Performance of such con- tracts as depend upon the personal service of the deceased 127 Anson, Cont. (8th Ed.) 252; Bevon v. Pawlett, 11 Vln. Abr. 133; Snodgrass v. Cabiness, 15 Ala. 160; Ainswortli v. California Bank, 119 Cal. 470, 63 Am. St. Rep. 135; Janin v. Browne, 59 Cal. 37; Beecher v. Buckingham, 18 Conn. 110; Smith v. Wilmington Coal Min. & Mfg. Co., 83 111. 498; Hodge v. Hodge, 90 Me. 505, 60 Am. St. Rep. 285; Neale v. Hagthrop, 3 Bland (Md.) 551; Drummond v. Crane, 159 Mass. 577; Hovey v. Newton, 11 Pick. (Mass.) 420; Cox V. Martin, 75 Miss. 229, 65 Am. St. Rep. 604; Shirley v. Healds, 34 N. H. 407; Chamberlain v. Dunlop, 126 N. Y. 45; Kernochan v. Mur- ray, 111 N. Y. 306; Adams Radiator & Boiler Works v. Schnader, 155 Pa. 394, Huffcut & W. Am. Cas. Cont. 549; Stumpf's Appeal, 116 Pa. 33; Poag v. Miller, Dud. (S. C.) 11. This rule has prevailed from the earliest period of the history of our present system of law. Pollock, Cont. 206. 128 Anson, Cont. (8th Ed.) 253; Chamberlain v. Dunlop, 126 N. Y, 45, 22 Am. St. Rep. 807. The heir or devisee of real estate has a right to have a promis- sory note, given by the decedent for unpaid purchase money, paid out of the personal assets. Wright v. Holbrook, 32 N. Y. 587. (753) Law of Cont.— 48. S 369 OPERATION OP CONTRACT. [Ch. 8 cannot be demanded of his representatives ; nor can they, on the other hand, reqnire the other party to accept of their per- formance. It is a well-established rule that contracts im- posing a dnty which involves personal confidence between the parties, or the exercise of the promisor's personal skill, ex- pire wilh the death of cither of the parties to them.^^" The second qnalificaiion of the rule is that the personal represent- atives cannot sne for a breach of contract M'hich involves a purely personal loss,^^'' at;, for instance, a breach of promise to marry the deceased ;^^^ nor are they liable for the de- * 129 Pollock, Cont. 189; Farrow v. AVllson, L. R. 4 C. P. 744; Bax- ter V. Burfield, 2 Strange, 1266; Howe Sewing-Mach. Co. v. Rosen- steel (C. C.) 24 Fed. 583; Middlesex Water Co. v. Knappmann Whit- ing Co., 64 N. J. Law, 240, 81 Am. St. Rep. 467; Lacy v. Getman, 119 N. Y. 109; Siler v. Gray, 86 N. C. 566; Blakely v. Sousa, 197 Pa. 305, 80 Am. St. Rep. 821; Dickinson v. Calahan's Adm'rs, 19 Pa. 227, HufEcut & W. Am. Gas. Cont. 479. A contract by a partnership with an employe for personal serv- ices in the current business of the iirm for one year, at a given rate per month, is dissolved by a dissolution of the firm within the year by the act of God. Nothing being expressed in the contract to the contrary, both parties should be regarded as having, by im- plication, intended a condition dependent, on the one hand, upon the life of the employe, and, on the other, upon the life of the part- nership, provided the death in either case was not voluntary. Griggs V. Swift, 82- Ga. 392, 14 Am. St. Rep. 176. A contract for the cutting of timber, which does not necessarily involve personal skill or expert knowledge on the part of the con- tractor, and which, by its terms, is extended to the heirs and per- sonal representatives of the parties, and which can be completed ■within a reasonable time, survives the death of one of or both the parties to the contract. Billings' Appeal, 106 Pa. 558. A contract involving personal confidence is not discharged by the death of the party confided in, so as to take away a right of action already vested. Stubbs v. Holywell Ry. Co., L. R. 2 Bxch. 311. See, further, section 416, infra. 130 Anson, Cont. (8th Ed.) 253. 131 Chamberlain v. Williamson, 2 Maule & S. 408. (T54) Ch. 8] ASSIGNMENT OF CONTRACT. g 370 coasecl's breach of sucli a promise, whore 110 special damage is alleged.^'" The assignment, etl'ected by operation of law in case of the death of a contracting party is merely a means of continuing, for certain purposes, the legal existence of the deceased. The representatives take no benefit of the contract, nor are they personally losers by the enforcement of it against them. They represent the deceased to the extent of his estate, and no XV. Same — Assignment by Bankruptcy. An adjudication of bankruptcy, followed by the appointment and qualification of a trustee, operates in law to pass to the trustee the title to all the bankrupt's nonexempt property, in- cluding rights of action arising from contract. § 370. In general. The rnle stated in the black-letter text is imposed by stat- ute, Avhich thus works an assignment of the bankrupt's con- tractual rights.^''* The trustee in bankruptcy may assiime all contracts of the bankrupt, or rights of action arising thereffom, which have -a transferable value, or which would be beneficial to the estate, except those involving special con- fidence in the bankrupt, or an exercise of his skill.^^^ The trustee is not bound to accept property of an onerous or un- i32Finlay v. Chirney, 20 Q. B. Div. 494; Hovey v. Page, 55 Me. 142; Chase v. Fitz, 132 Mass. 359; Smith v. Sherman, 4 Cush. (Mass.) 408; Stebbins v. Palmer, 1 Pick. (Mass.) 71; Wade v. Kalbfleisch, 58 N. Y. 282; Lattimore v. Simmons, 13 Serg. & R. (Pa.) 183; Grubb's Adm'r v. Suit, 32 Grat. (Va.) 203. By statute, in North Carolina, an action for breach of promise to marry does not abate upon the death of the defendant. Allen v. Baker, 86 N. C. 91. 133 Anson, Cont. (8th Ed.) 249. 134 Act Cong. July 1, 1898, § 70. See Beckham v. Drake, 8 Mees. & W. 846; Drake v. Beckham, 11 Mees. & W. 315. 135 Brandenburg, Bankr. 690, 694. (Y55) § 371 OPERATION OP CONTRACT. [Ch. 8 profitable character; but whatever he takes comes to him burdened with the equities which would affect the property in the hands of the bankrupt himself. The trustee cannot take the property and reject the obligations attached to it.-*^® XVI. Joint and Several Contracts. With reference to the rights and liabilities of the parties inter se, a contract having more than one party on one or both sides may be either — (a) Joint, (b) Several, or (c) Joint and several. § 371. In general. With contracts having a single party on each side — that is, a single promisor and a single promisee — this discussion has nothing to do. We are concerned solely with contracts that have more than one promisee, or more than one prom- isor, or more than one party on both sides. In respect of the rights and liabilities of the various prom- isors, or of the various promisees, as the case may be, such a contract is said to be either joint, or several, or joint and several. A joint contract is one in which the various prom- isors are jointly bound to perform the promise or obligation, or in which the various promisees are jointly entitled to en- force performance. A several contract is one in which each of the various promisors is separately and individually bound to performance, without reference to the liability of his co- promisors ; or in which each of the various promisees is sep- arately and individually entitled to call fpr performance, without reference to the right of his co-promisees. A joint and several contract is one in which the various promisors are either jointly or severally bound to performance, at the elec- 188 Brandenburg, Bankr. 689, 690; Mitchell v. Winslow, 2 Story, 630, Fed. Cas. No. 9,673. (Y56) Ch. 8] JOINT CONTRACTS. § 373 tion of the promisee or promisees. A contract cannot be joint and several as to the promisees. XVII. Same — Joint Contracts. Joint promisors are jointly bound to perform the promise. They must be sued jointly; and if the promisee, not observing this rule, takes judgment against one only, the others are dis- charged. Ordinarily, a release of one of several joint promisors operates to release all. If a joint promisor dies, the surviving promisors are exclu- sively liable. Joint promisees are jointly entitled to call for performance. They must sue on the promise jointly. A release by one of several joint promisees operates to dis- cnarge the debt as against all. If one of several joint promisees dies, the others may enforce the promise alone. § 372. In general. From what lias been said, it follows that a contract may be joint either as to the promisors or as to the promisees. In many states, however, contracts which would be joint at com- mon law are declared by statute to be joint and several. § 373. Joint promisors — All liable. Joint promisors are jointly liable each for the full amount of the obligation ;-^®'^ and, upon judgment being rendered against several joint promisors, execution for the entire amount may therefore be levied upon the property of any one of them.-^^^ However, payment of the judgment by any 137 AUin V. Shadburne's Bx'r, 1 Dana (Ky.) 68; Ripley v. Crocker, 47 Me. 370; Green v. Rick, 121 Pa. 130, 6 Am. St. Rep. 760. 138 Abbot V. Smith, 2 Wm. Bl. 947, 949; Bird v. Randall, 1 Wm. Bl. 387, 388. See, also, Land Credit Co. of Ireland v. Fermoy, 5 Ch. App. 323. (757) § 373 OPERATION OF CONTRACT. [Ch. 8 one of the debtors extinguishes the whole recovery, if the pay- ment was intended by the payor to have that effect.^ ^® All must be sued jointly. Joint promisors must be sued jointly. The promise can- not be enforced in an action against one of them alone.^*" And where the plaintiff, having sued all, discontinues against one, he cannot have judgment against the others.-^*^ The rule applies even where the promisors have agreed among themselves that the promise shall be performed by only one of them. All must nevertheless be joined.-^*^ If, however, a joint promisor is non sui juris, he need not be joined as a party defendant;^** nor need he be joined where he lives out of the jurisdiction in which suit is brought.^** At common law, a judgment, though unsatisiied, against one of several joint debtors, bars an action against the others. The entire cause of action is merged in the judgment. ^*^ 139 Williams v. RieM, 127 Cal. 365, 78 Am. St. Rep. 60; Caldwell V. Martin, 29 S. C. 22. 140 whelpdale's Case, 5 Coke, 118b; Byers v. Dobey, 1 H. Bl. 236; Bragg V. Wetzel, 5 Blackf. (Ind.) 95, Huff cut & W. Am. Cas. Cont. 486; Beggs v. Butler, 9 Paige (N. Y.) 226; Pollard v. Collier, 8 Ohio, 43; Lucas v. Sanders, 1 McMul. (S. C.) 311; Jenkins v. Hurt's Com'rs, 2 Rand. (Va.) 446. As long as a legal remedy exists against some of several joint debtors, equity will not extend its relief as to another of such debt- ors to set aside a fraudulent conveyance. Bller v. Lacy, 137 Ind. 436; Wales v. Lawrence, 36 N. J. Eq. 207. "1 Walker v. Windsor Nat. Bank (C. C. A.) 56 Fed. 76; Van Leyen V. Wreford, 81 Mich. 606; Peebles v. Rand, 43 N. H. 337, 339; Hall V. Rochester, 3 Cow. (N. Y.) 374. 1*2 Lodge V. Bicas, 3 Barn. & Aid. 611. 143 Boyle V. Webster, 17 Q. B. 950. "4 Joll V. Howe, 4 C. B. 249. 14B King V. Hoare, 13 Mees. & W. 494; Kendall v. Hamilton, 4 App. Cas. 504; Sessions v. Johnson, 95 U. S. 347, 348; Mason v. Eldred, 6 Wall. (U. S.) 231, 235; People v. Harrison, 82 111. 84; Ward v. Johnson, 13 Mass. 148; Candee v. Smith, 93 N. Y. 349; Robertson V. Smith, 18 Johns. (N. Y.) 477. (758) I Ch. 8] JOINT CONTRACTS. § 373 And if the judgment goes for the defendant because of mat- ter operating to discharge all the debtors alike, it is a bar to a subsequent action against the debtors who were not joined.-^*® In some states it is now provided by statute that a creditor does not, by proceeding against one joint debtor singly, re- lease the others. Release of one. A release of one of several joint promisors operates to re- lease all,^*'^ unless there is some provision in the contract or the release to the contrary.-^** At common law, in order to This rule Is based upon the Idea of the creditor's election to take a judgment against less than all the debtors. Accordingly, if a judgment by default is rendered against two joint debtors, and afterwards, in spite of the creditor's opposition, one of the debtors is let in to plead, he cannot defend on the ground that the debt has been merged in the judgment, which still stands against the other debtor. Heckemann v. Young, 134 N. Y. 170. Where one of two joint guarantors gives a check for the debt, an unsatisfied judgment on the check does not bar an action against the other guarantor for the debt. Prosser v. Evans [1895] 1 Q. B. 108, Keener's Cas. 990. 146 Phillips V. Ward, 2 Hurl. & C. 717; Cowley v. Patch, 120 Mass. 137, 138. i« Brooks v. Stuart, 9 Adol. & E. 854; Cheetham v. Ward, 1 Bos. & P. 630, 633; Allin v. Shadburne's Ex'r, 1 Dana (Ky.) 68; Hale V. Spaulding, 145 Mass. 482, HufEcut & W. Am. Cas. Cont. 487; Row- ley V. Stoddard, 7 Johns. (N. Y.) 207, 210; Maslin's Ex'rs v. Hiett, 37 W. Va. 15. This rule prevails even where the debtor not actually released subsequently promises to remain liable, unless his promise is based on a new consideration. Brooks v. Stuart, 9 Adol. & E. 854. The rule stated in the text refers to a release by act of the cred- itor, not by operation of law. A release obtained by one of several joint debtors under the bankrupt act, for instance, would not affect the liability of the others. 148 North V. Wakefield, 13 Q. B. 536; Solly v. Forbes, 2 Brod. & B. 38; Twopenny v. Young, 3 Barn. & C. 210; Merriman v. Barker, 121 Ind. 74; Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; Shaw V. Pratt, 22 Pick. (Mass.) 305; Seligman v. Pinet, 78 Mich. 50; (759) § 373 OPERATION OF CONTRACT. [Ch. 8 have this effect, the release must be a technical release under seal.^** It has been held, however, that if the release rests on a sufficient consideration, or if it evidences an accord and satisfaction, it need not be sealed in order to discharge all the promisors.^ ^^ In many states it is provided by statute that the release of one of several joint debtors operates as a discharge of only his share of the debt, and that, as to the balance, the obligation may be enforced against the other debtors. Benton v. Mullen, 61 N. H. 125; Whittemore v. Judd Linseed & Sperm Oil Co., 124 N. Y. 565, 21 Am. St. Rep. 708; Goldbeck v. Ken- sington Nat. Bank, 147 Pa. 267. 149 McAllester v. Sprague, 34 Me. 296, 298; Ripley v. Crooker, 47 Me. 370; Pond v. Williams, 1 Gray (Mass.) 630; Shaw v. Pratt, 22 Pick. (Mass.) 308; Berry v. Gillis, 17 N. H. 9, 43 Am. Dec. 584; De Zeng v. Bailey, 9 Wend. (N. Y.) 336; Rowley v. Stoddard, 7 Johns. (N. Y.) 209. A release, not under seal, of one of several joint debtors on pay- ment of his proportion of the debt, does not discharge the others if it was not the intention of the parties. Burke v. Noble, 48 Pa. 168. A covenant not to sue one of two or more joint or joint and sev- eral promisors does not operate to release him, since that would release all, and the intention is to exempt only the one from lia- bility. All remain jointly liable, and the only remedy of the cov- enantee, if he is afterwards sued, is on the covenant. Dean v. New- hall, 8 Term R. 168; Clayton v. Kynaston, 2 Salk. 574; Hutton v. Eyre, 6 Taunt. 289; Fitzgerald v. Trant, 11 Mod. 254; McLellan v. Cumberland Bank, 24 Me. 566; Walker v. McCulloch, 4 Me. 421; Shed V. Pierce, 17 Mass. 622, 628; Tuckerman v. Newhall, 17 Mass. 581; Benton v. Mullen, 61 N. H. 125; Crane v. Ailing, 15 N. J. Law, 423; Couch v. Mills, 21 Wend. (N. Y.) 424; Catskill Bank v. Mes- senger, 9 Cow. (N. Y.) 37. 150 Nicholson v. Revill, 4 Adol. & E. 675 ; Milliken v. Brown, 1 Rawle (Pa.) 391. And see Goss v. Ellison, 136 Mass. 503. A release not under seal requires proof of a consideration to make it valid and binding on the releasor. Kidder v. Kidder, 33 Pa. 268, Huffcut & W. Am. Cas. Cont. 625. As to release and accord and satisfaction in general, see sections 476, 477, infra. (760) Ch. 8] JOINT CONTRACTS. § 374 Death of one. If a joint promisor dies, his estate is not liable on the con- tract, but the surviving promisors are exclusively liable,-' °^ either at law or in equity ;^^^ and if all siiccessively die be- fore suit, the liability finally devolves upon the personal rep- resentative of the one last deceased.^ ^^ In most states it is now provided by statute that, upon the death of one of sev- eral joint promisors, the obligation survives against the es- tate of the deceased, as well as against the surviving debtors. § 374. Joint promisees — All entitled, and must sue jointly. If a promise is made for the benefit of several persons jointly, all are jointly entitled, and any number of them less than all may not enforce the promise. All must join in the suit.-'^* A formal joinder of the promisees as parties plain- " 151-WMte V. Tyndall, 13 App. Cas. 263; Richards v. Heather, 1 Barn. & AM. 29; Simpson v. Vaughan, 2 Atk. 31; Enys v. Donnl- thorne, 2 Burrow, 1190, 1196; Pickersgill v. Lahens, 15 Wall. (U. S.) 140; Waters' Representatives v. Riley's Adm'r, 2 Har. & G. (Md.) 305; Foster v. Hooper, 2 Mass. 572; Davis v. Van Buren, 72 N. Y. 587; Wood v. Fisk, 63 N. Y. 245; Hoskinson v. Eliot, 62 Pa. 393; Kennedy v. Carpenter, 2 Whart. (Pa.) 344; Atwell's Adm'rs v. Mil- ton, 4 Hen. & M. (Va.) 253. See Bldred v. First Nat. Bank of Val- paraiso, 71 Ind. 543. The surviving maker of a note cannot be sued jointly with the executor of the one who has died. Poole v. McLeod, 1 Smedes & M. (Miss.) 391. i52Nilmer v. Currey, 2 De Gex & S. 347; Richardson v. Horton, 6 Beav. 185; Getty v. Binsse, 49 N. Y. 385, 10 Am. Rep. 379; Harrison V. Field, 2 Wash. (Va.) 136. It has been held that the rule does not prevail in equity, where the deceased had enjoyed a share of the benefits of the contract. Richardson v. Draper, 87 N. Y. 337. And see Thorpe v. Jackson, 2 Younge & C. 553; Kennedy v. Carpenter, 2 Whart. (Pa.) 344; Har- rison V. Field, 2 Wash. (Va.) 136. i53Calder v. Rutherford, 3 Brod. & B. 302; Gere v. Clarke, 6 Hill (N. Y.) 350; Neal's Ex'rs v. Gilmore, 79 Pa. 421. 154 Pease v. Hirst, 10 Barn. & C. 122; Hopkinson v. Lee, 6 Q. B. 964; Hatsall v. Griffith, 2 Cromp. & M. 679; Farni v. Tesson, 1 Black (761) § 374 OPERATION OF CONTRACT. [Ch. 8 tiff is all that the law requires. It is immaterial that all do not actually consent to the suit. It is sufficient if all their names appear as plaintiffs ; and for this purpose the law al- lows any one of them to use the names of the others, whether they consent or not.-^^^ This rule as to all joining must be complied with, even where the nonjoining promisee has disclaimed all interest in the debt, by deed or otherwise;^®® and even where one of the joint promisees has been settled with as to his interest, unless all the parties agree to the severance of the joint interest, and the obligor promises to pay each his several share, and the suit is based upon the new promise.^^^ As to this latter point, however, it is held in some states that, if a debtor set- tles with one of several joint promisees as to his proportion of the debt, it woi-ks a severance, and the other promisees may sue alone. ^^® A severance is worked also by the accept- (U. S.) 309; Jordan v. Wilklns, 3 Wash. C. C. 110, Fed. Gas. No. 7,- 527; Archer v. Bogus, 4 111. 526; Quisenberry v. Artis, 1 Duv. (Ky.) 30; Henry v. Mount Pleasant Township, 70 Mo. 500; Bhle v. Purdy, 6 Wend. (N. Y.) 629; Tapscott v. Williams, 10 Ohio, 442; Meason V. Kaine, 67 Pa. 126; Sweigart v. Berk, 8 Serg. & R. (Pa.) 308, Huffcut & W. Am. Cas. Cont. 490; Clapp v. Pawtucket Institution for Savings, 15 R. I. 489, 2 Am. St. Rep. 915; Sims v. Tyre, 3 Brev. 249; Angus v. Robinson, 59 Vt. 585. Thus, all the members of a partnership must join in a suit on a firm debt. Page v. Wolcott, 15 Gray (Mass.) 536; Hewes v. Bayley, 20 Pick. (Mass.) 96; Gould v. Gould, 6 Wend. (N. Y.) 263, 264; Dob v. Halsey, 16 Johns. (N. Y.) 34; Wilson v. Wallace, 8 Serg. & R. (Pa.) 53. And see Seymour V. Western R. Co., 106 U. S. 320. 155 Wright V. McLemore, 10 Yerg. (Tenn.) 235. See Chambers v. Donaldson, 9 East, 471. 156 Petrie v. Bury, 3 Barn. & C. 353; Wetherell v. Langston, 1 Exch. 634; Wright v. Post, 3 Conn. 142; Moody v. Sewall, 14 Me. 295; Tate v. Citizens' Mut. Fire Ins. Co., 13 Gray (Mass.) 79; Dob V. Halsey, 16 Johns. (N. Y.) 34. 157 Angus V. Robinson, 59 Vt. 585. 158 Beach v. Hotchkiss, 2 Conn. 697; Baker v. Jewell, 6 Mass. 460. (T62) Ch. 8J JOINT CONTRACTS. § 374 ance by each of the promisees of new independent promises by the promisor. ^^* Release by one. If one of several joint promisees accepts satisfaction of the obligation, i^; operates as a satisfaction as to all/®" and a re- lease' of the obligation by one is a release as against all.^®^ Death of one. If a promise is made to several persons jointly, and one of them dies, the survivors may enforce the promise,^ ®^ and, in doing so, they cannot join the deceased's personal repre- 159 Austin V. Walsh, 2 Mass. 401; Gould v. Gould, 6 Wend. (N. Y.) 263. See Angus v. Robinson, 59 Vt. 585. 160 Osborn v. Martha's Vineyard R. Co., 140 Mass. 549 ; Henry v. Mount Pleasant Township, 70 Mo. 500; People v. Keyser, 28 N. Y. 228. 181 Rawstorne v. Gandell, 15 Mees. & W. 304; Wilkinson v. Lindo, 7 Mees. & W. 81; Halsey v. Whitney, 4 Mason, 206, Fed. Cas. No. 5,964; Smith v. Stone, 4 Gill & J. (Md.) 310; Myrick v. Dame, 9 Cush. (Mass.) 248; Wiggin v. Tudor, 23 Pick. (Mass.) 434, 444: Newcomb v. Raynor, 21 Wend. (N. Y.) 108; Pierson v. Hooker, 3 Johns. (N. Y.) 68. However, equity will set aside a release given by one joint promisee in fraud of the rights of the others, and in collusion with the debtor. Jones v. Herbert, 7 Taunt. 421; Piercy v. Fynney, L. R. 12 Eq. 69; Barker v. Richardson, 1 Younge & J. 362; Skaife v. Jackson, 3 Barn. & C. 421, 422; Gram v. Cadwell, 5 Cow. (N. Y.) 489. A writing signed by one of two joint promisees, not under seal, and without consideration, forbidding the further prosecution of an action against the promisor, and purporting to be a discharge of the same, is not a release, nor does it amount to an accord and satisfaction. Lunt v. Stevens, 24 Me. 534. 162 Jones v. Yates, 9 Barn. & C. 532, 538; Martin v. Crump, 2 Salk. 444, 1 Ld. Raym.- 340; Anderson v. Martindale, 1 East, 497; Crocker v. Beal, 1 Low. 416, Fed. Cas. No. 3,396; Donnell v. Man- son, 109 Mass. 576; Burnside v. Merrick, 4 Mete. (Mass.) 537, 540; Murray v. Mumford, 6 Cow. (N. Y.) 441; Kinsler v. McCants, 4 Rich. Law (S. C.) 46. And see Jell v. Douglas, 4 Barn. & Aid. 374. (763) § 375 OPERATION OF CONTRACT. [Ch. 8 sentative as a party plaintiff.-'®^ However, if the survivor enforces the promise, he is liable in equity to the personal rep- resentative of the deceased promisee for the latter's propor- tionate share of the proceeds of the suit.-^^* If joint promisees die in succession before the promise is enforced, the right to sue finally devolves upon the personal representative of the one last deceased.-^®® XVIII. Same — Seveeal Conteacts. Several promisors are separately bound to performance. They cannot be sued on the obligation jointly. If one dies, the obligation may be enforced against his estate. Several promisees are separately entitled to performance. Each may enforce the obligation separately. If one dies, his personal representative may enforce the obli- gation as to his interest. § 375. Several promisors. In case two or more persons join in a several promise, the jjromisee may demand performance from any one of the prom- isors separately.-^ ^^ At common law, if the obligation is several as to the prom- 163 Murphy's Adm'rs v. Alabama Branch Bank, 5 Ala. 421; In- diana, B. & W. Ry. Co. V. Adamson, 114 Ind. 282; Clark's Ex'rs v. Parish's Ex'rs, 1 Bibb (Ky.) 547; Smith v. Franklin, 1 Mass. 480. The rule seems to be otherwise in equity, in certain cases. Vick- ers V. Cowell, 1 Beav. 529. A demand of copartners in trade belongs to the survivor to col- lect, notwithstanding an adjustment of all the affairs of the part- nership between him and the administrator of the deceased co- partner, in which it was agreed that the proceeds of such demand should be equally divided between them. Peters v. Davis, 7 Mass. 257. 164 Martin v. Crompe, 1 Ld. Raym. 340. 165 Stowell's Adm'r v. Drake, 23 N. J. Law, 310. leoLurton v. Gilliam, 2 111. 577; Price v. Grand Rapids & I. R. Co., 18 Ind. 137. (764) Ch. 8] JOINT AND SEVERAL CONTRACTS. | 375 isors, they cannot be sued jointly.^"'' In several states, the statute now authorizes the parties to a several obligation to be jointly sued. If one of several promisors who are severally liable dies, the obligation may be enforced against his estate. The rule of survivorship applicable to joint contracts does not here ap- ply_i68 i 376. Several promisees. Where a promise is made to two or more persons severally, so that, on the face of the obligation, each has a distinct in- terest, it is termed a "several promise." Each of the prom- isees is separately entitled, and any one of them may separate- ly enforce the promise as to his interest, without the consent of the others, and without joining them as parties plaintiff.^®® The rule that the death of a joint promisee vests the sole right to enforce the promise in the survivor does not apply where the promise is several. Upon the death of a several promiseCj the right to enforce the promise as to his separate interest may be enforced by his personal representative. The survivors may enforce the promise as to their interests, but as to their interests alone.^^" XIX. Same — Contracts Both Joint and Several. Joint and several promisors are bound to performance either jointly or separately, at the election of the promisee. 167 Price V. Grand Rapids & I. R. Co., 18 Ind. 137; Bunker v. Tufts, 55 Me. 180; Perry v. Turner, 55 Mo. 418. 168 Bachelder v. Piske, 17 Mass. 464. 169 Mills V. Ladbroke, 7 Man. & G. 218; Hall v. Leigh, 8 Cranch (U. S.) 50; Quisenberry v. Artis, 1 Duv. (Ky.) 30; Jacobs v. Davis, 34 Md. 204; Rorabacher v. Lee, 16 Mich. 169; Yates v. Foot, 12 Johns. (N. Y.) 1; Catawissa R. Co. v. Titus, 49 Pa. 277; Geer v. Tenth School Dist, 6 Vt. 76. 170 Enys v. Donnithorne, 2 Burrow, 1190, 1197; Carthrae v. Brown, 3 Leigh (Va.) 98. (765) g 378 OPERATION OF CONTRACT. [Ch. 8 They may accordingly be sued either all together or sepa- rately. A release of one of two or more joint and several promisors operates to discharge all. The death of one does not cast the liability on the survivors exclusively. As to the promisees, a promise cannot be joint and several. § 377. In general. As has been said, a contract may be both joint and several, at the election of the promisee. In many states, contracts that would be joint by the common law are declared by stat- ute to be joint and several. § 378. Joint and several promisors — All bound and suable to- gether or separately. As to the promisors, a promise may be both joint and sev- eral, in which case it consists of a joint promise, and as many several promises as there are promisors. The promisors may accordingly be sued either all together or separately, at the election of the promisee.^^-'^ 1-1 Fletcher v. Dyche, 2 Term R. 32 ; Beecham v. Smith, El., Bl. & Bl. 442; Owen v. Wilkinson, 5 C. B. (N. S.) 526; Minor v. Me- chanics' Bank of Alexandria, 1 Pet. (U. S.) 46; Coburn v. Goodall, 72 Cal. 498, 1 Am. St. Rep. 75; Olmstead v. Bailey, 35 Conn. 584; People V. Harrison, 82 111. 84; Peckham v. Inhabitants of North Parish, 16 Pick, (Mass.) 274; Hemmenway v. Stone, 7 Mass. 58; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 78 Am. St. Rep. 612; Ernst v. Bartle, 1 Johns. Cas. (N. Y.) 319; McCready v. Freedly, 3 Rawle (Pa.) 251; Knisely v. Shenberger, 7 Watts (Pa.) 193. In an action against one of the obligors on a joint and several bond, no notice need be taken of the other, for, if the obligee sues only one of the obligors, he acts upon it as a several bond. Crane v. Ailing, 15 N. J. Law, 423. Partial payments made upon a joint and several note by one of the makers, before the bar of the statute is completed, will not bar the running of the statute as to the others. Shoemaker v. Bene- dict, 11 N. Y: 176. (766) Ch. 8] JOINT AND SEVERAL CONTRACTS. g 378 An obligation cannot be treated as joint so far as concerna some of the obligors, and several so far as concerns the others. It ninst be regarded either as joint as to all, or as several as to all.^'^- However, this rule does not apply where, in the same contract, there are two distinct covenants, one joint and one several. ^'^'* The rule that a judgment upon a joint obligation merges the cause of action, and operates as a release of a joint obligor against whom no judgment is taken, does not apply to a joint and several obligation.^ ^"' In order that a judgment against one of several promisors who are jointly and severally liable may operate as a discharge of the others also, there must be a satisfaction.^"^ Eelease of one. A release of one of two or more joint and several prom- isors operates to discharge all.^'^® Death of one. Upon the death of one of several persons who are jointly and severally liable as promisors, the survivors do not become exclusively liable, but the estate of the deceased promisor is also bound. ^^'' The personal representative cannot be joined 172 Cabell V. Vaughan, 1 Saund. 291; Streatfield v. Halliday, 3 Term R. 779, 782; Cummings v. People, 50 111. 132, Huffcut & "W. Am. Gas. Cont. 492; State v. Chandler, 79 Me. 172; Bangor Bank v. Treat, 6 Me. 207; Pay v. Jenks, 78 Mich. 312. 173 Duval V. Craig, 2 Wheat. (U. S.) 45; Sharp v. Conklin, 16 Vt. 355. 1T4 Giles V. Canary, 99 Ind. 116; Hix v. Davis, 68 N. C. 231. 175 Harlan v. Berry, 4 G. Greene (Iowa) 212; Ward v. Johnson, 13 Mass. 148, 151. 176 Crane v. Ailing, 15 N. J. Law, 423. A creditor's discharge of one joint and several debtor is a dis- charge of all, even though no formal release he given. Nicholson v. Revill, 4 Adol. & E. 675. 177 Prior v. Hembrow, 8 Mees. & W. 873. (767) § 380 OPERATION OP CONTRACT. [Ch. 8 with the survivor as a party defendant, however, since the one is to be charged de bonis testatoris, and the other de honis propriis}''^ § 379. Joint and several promisees. A promise cannot be so framed as to give the promisees the right to sne on it both jointly and severally. A promise may be joint as to the promisees, or it may be several as to the promisees, but it cannot be both joint and several.-''^* XX. Same — Coxstruction of Contract. The question whether a contract is joint, several, or joint and several, depends, for the most part, upon the intention of the parties as gathered from the entire instrument. An obligation entered into by several persons in the singular is presumed to be joint and several as to the promisors. An obligation performable by several promisors is presumed to be a joint promise as to them; not joint and several. If the words of a promise are ambiguous, or will admit of it, and ordinarily not otherwise, the contract will be construed to be joint as to the promisees where their interest is joint, and will be construed to be several where their interest is several. § 380. . In general. The intention of the parties prevails in construing a eon- tract in reference to its operation as to parties; and this is 178 May V. Hanson, 6 Cal. 643, HufCcut & W. Am. Cas. Cent. 496 ; Eggleston v. Buck, 31 111. 254. i79Bradburne v. Botfleld, 14 Mees. & W. 559, 573; James v. Emery, 8 Taunt. 245; Pugh v. Stringfield, 3 C. B. (N. S.) 2, 4 C. B. (N. S.) 364; Jewett v. Cunard, 3 Woodb. & M. 277, Fed. Cas. No. 7,310. It has been held; however, that, where a security is given to several creditors to cover separate debts, the creditors may enforce their claims under the security either jointly or separately. Lyon v. Ballentine, 63 Mich. 97, 6 Am. St. Rep. 284. (768) Ch. 8] CONSTRUCTION OF CONTRACT. § 38I SO, whether the promise is oral or -written, and whether it is express or implied in fact.^*" § 381. Construction as to promisors. The question whether a promise is joint or joint and sev- eral as to the promisors depends upon the intent of the par- ties as indicated by the terms employed by them.^*^ And parol evidence is admissible to show that a promise which is so expressed as to be joint as to the promisors was so drawn by mistake, and that the intention was to make it joint and several.^*^ An obligation is presumed to be joint and several where it is entered into by several persons in the singular,^** in the absence of controlling terms or circumstances to the con- trary.i** An obligation which is, on its face, payable or performable by several promisors, is presumptively a joint promise as to the promisors, and not joint and several ;^^® and the presump- tion is strengthened where the promisors have undertaken to ISO Hall V. Leigh, 8 Cranch (U. S.) 51; Boggs v. Curtin, 10 Serg. & R. (Pa.) 211, HufCcut & W. Am. Cas. Cont. 497. 181 Eaden v. Tltchmarsh, 1 Adol. & E. 691; Lloyd v. Ashby, 2 Car. & P. 138; Jacobs v. Davis, 34 Md. 204; Field v. Runt, 22 N. J. Law, 525; Ludlow v. McCrea, 1 Wend. (N. Y.) 228; Knisely v. Shenber- ger, 7 Watts (Pa.) 193; Carthrae v. Brown, 3 Leigh (Va.) 98. 182 Hunt V. Rousmanler, 8 Wheat. (U. S.) 174, 211; Yorks v. Peck, 14 Barb. (N. Y.) 644. 183 March v. Ward, Peake, 130; Hemmenway v. Stone, 7 Mass. 58; Van Alstyne v. Van Slyck, 10 Barb. (N. Y.) 383; Dill v. White, 52 Wis. 456. See Knisely v. Shenberger, 7 Watts (Pa.) 193. 184 Slater v. Magraw, 12 Gill & J. (Md.) 265. 185 King v. Hoare, 13 Mees. & W. 493 ; English v. Blundell, 8 Car. & P. 332; White v. Tyndall, 13 App. Cas. 263; Taylor v.Reger, 18 Ind. App. 466, 63 Am. St. Rep. 352; Alpaugh v. Wood, 53 N. J. Law, 638; Muzzy v. Whitney, 10 Johns. (N. Y.) 226; Yorks v. Peck, 14 Barb. (N. Y.) 644; Phillips v. Bonsall, 2 Bin. (Pa.) 138; Elliott v. Bell, 37 W. Va. 834. (769) Law of Cont. — 49. § 382 OPERATION OP CONTRACT. [Gh. 8 accomplish together a single result.^®* This presumption yields, however, to the intent of the parties as evidenced by a survey of the entire transaction.-^*'' §. 382. Construction as to promisees. If the words of the promise are ambiguous, or will admit of it, and ordinarily not otherwise,^** the contract will be con- strued to be joint as to the promisees, where their interest is joint, and will be construed to be several where their interest is several.^*^ If the interest of the promisees is entire, and the obligation is limited to them in the aggregate, the pre- sumption is that the promise is joint as to them.-'^*' On the other hand, if it was evidently intended that the promisees should have separate interests, then the promise is presumed to be several.^*^ But these presumptions yield to the intent is"Alpaugh V. Wood, 53 N. J. Law, 638. 187 Price V. Grand Rapids & I. R. Co., 18 Ind. 137; Hall v. Thayer, 12 Mete. (Mass.) 130; Davis v. Belford, 70 Mich. 120; Yorks v. Peck, 14 Barb. (N. Y.) 644. The obligation of "irregular indorsers" of a promissory note, who are liable as original promisors or makers, is joint and several, and not joint, with the obligation of the makers who sign on the face of the note, although the instrument is in form in other respects joint. Schultz v. Howard, 63 Minn. 196, 56 Am. St. Rep. 470. issFarni v. Tesson, 1 Black (U. S.) 309; Clapp v. Pawtueket In- stitution for Savings, 15 R. I. 489. IS" Leake, Cont. 218; Eccleston v. Clipsham, 1 Saund. 153; Sors- bie v. Park, 12 Mees. & W. 146; James v. Emery, 8 Taunt. 245; Sla- ter V. Magraw, 12 Gill & J. (Md.) 265; Capen v. Barrows, 1 Gray (Mass.) 376; Clapp v. Pawtueket Institution for Savings, 15 R. I. 489. 100 Lane v. Drinkwater, 1 Cromp., M. & R. 599; May v. May, 1 Car. & P. 44; Sorsbie v. Park, 12 Mees. & W. 146; Fauble v. Davis, 48 Iowa, 462; Osgood v. Pearsons, 4 Gray (Mass.) 455; Willoughby V. Willoughby, 5 N. H. 244. 101 Servants v. James, 10 Barn. & C. 410 ; Eccleston v. Clipsham, 1 Saund. 153; Gresty v. Gibson, L. R. 1 Exch. 112; James v. Emery, 8 Taunt. 245; Keightley v. Watson, 3 Exch. 716; Owston v. Ogle, 13 East, 538; Brand v. Boulcott, 3 Bos. & P. 235; Hall v. Leigh, 8 (770) Ch. 8] CONSTRUCTION OF CONTRACT. §338 of the parties as gathered from the entire instrument and its general purport, since there is nothing to prevent parties hav- ing separate interests from agreeing to become joint prom- isees, or to prevent parties having joint interests from he- coming several promisees.-^ ®^ If a promise is made to several persons, upon a considera- tion proceeding from each separately, the presumption is that the promise is several as to them.^®^ But the promise is presumed to be joint, where the consideration moves from the promisees jointly, so that they have a joint legal interest in the contract.*^* These principles may be illustrated by the case of several persons who jointly make a payment in another's behalf un- der such circumstances as to raise an implied promise on his part to reimburse them. If they make the payment from a fund belonging to them in solido, their interests are joint, and they must therefore join in the suit for reimbursement; but if the payment is made from a fund made up by them from their individual means, their interests are several, and Crancli (U. S.) 50; Jewett v. Cunard, 3 Woodb. & M. 277, Fed. Cas. No. 7,310; Cross v. "Williams, 72 Mo. 577; Emmeluth v. Home Bene- fit Ass'n, 122 N. Y. 130; Ludlow v. McCrea, 1 Wend. (N. Y.) 228; Yates V. Foot, 12 Johns. (N. Y.) 1; Sharp v. Conkllng, 16 Vt. 355. 192 Poole V. Hill, 6 Mees. & W. 835; Hall v. Leigh, 8 Cranch (U. S.) 50. The mere designation of the shares of the promisees does not render the promise a several obligation, unless it appears that it was intended that each promisee should sue separately for his par- ticular claim. Byrne v. Fitzhugh, 1 Cromp., M. & R. 597; Hall v. Leigh, 8 Cranch (U. S.) 50; Blanchard v. Dyer, 21 Me. Ill; Smith V. Tallcott, 21 Wend. (N. Y.) 202. There should be no presump- tions indulged in that a contract is joint, rather than joint and several. Schultz v. Howard, 63 Minn. 196, 56 Am. St. Rep. 470. 183 See Jones v. Robinson, 1 Exch. 454; Agacio v. Forbes, 14 Moore, P. C. 160. 19* Hill V. Tucker, 1 Taunt. 7; Chanter v. Leese, 4 Mees. & W. 295; Lucas V. Beale, 10 C. B. 739. (YTl) § 383 OPERATION OF CONTRACT. [Ch. 8 any one of them may accordingly sue for what he has thus advanced.-'®^ It being a rule of law that a promise cannot be both joint and several as to the promisees, it follows that an obligation cannot be construed to be joint and several as to the promis- ees. It must be regarded as either joint or several.^^® XXI. Same — Contribution between Joint Debtors. If one of several joint debtors pays more than his share of the debt, he is entitled to contribution from the others, — that is, he may sue them for their proportionate shares of the obli- gation. § 383. In general. If one of several joint debtors pays more than his share of the debt, he is entitled to contribution from the others, — that is to say, he may maintain an action of assumpsit against the others respectively for their proportionate shares of the debt.^®^ This liability is quasi contractual, and the action is allowed on the ground of the unjust enrichment of the de- fendants at the expense of the plaintiff.^ ^® Thus, a surety 195 Lombard v. Cobb, 14 Me. 222; Clapp v. Rice, 15 Gray (Mass.) 557; Appleton v. Bascom, 3 Mete. (Mass.) 169; Pearson v. Parker, 3 N. H. 366; Smith v. Hicks, 1 "Wend. (N. Y.) 206. 196 Slingsby's Case, 5 Coke, 18, 19a; Bradburne v. Botfield, 14 Mees. & W. 559, 573; Pugh v. Stringfield, 3 C. B. (N. S.) 2, 4 C. B. (N. S.) 364; Jewett v. Cunard, 3 Woodb. & M. 277, Fed. Cas. No. 7,- 310. 197 Kemp V. Finden, 12 Mees. & W. 421; Browne v. Lee, 6 Barn. & C. 689; Smith v. Hicks, 1 Wend. (N. Y.) 202. The parties may avoid this rule by agreement, of course. Contribution may be enforced by a bill in equity, although there is also a remedy at law. Handley v. Heflin, 84 Ala. 600. 198 Keener, Quasi Cont. 401 et seq. See Fletcher v. Grover, 11 N. H. 368; Tobias v. Rogers, 13 N. Y. 59. In some cases, this liability is rested upon the ground of implied contract originating at the time the undertaking is executed. Bachelder v. Fiske, 17 Mass. 464; Johnson v. Harvey, 84 N. Y. 363. (772) Ch. 8] CONTRIBUTION. g 383 who pays the debt is entitled to contribvition from the prin- cipal and from his co-sureties.^^® The payment must not have been volimtary; but, to entitle him to contribution, a joint debtor need not delay paying the entire debt until he is sued thereon.^"" Statutes permitting one of several joint debtors to be released, without impairing the obligation as to the other debtors, are declared by statute in some states not to affect the right of contribution in favor of a joint debtor who pays more than his share of the debt. 190 Dering v. Earl of Winchelsea, 1 White & T. Lead. Cas. Bq. (4th Am. Ed.) 120; Dugger v. Wright, 51 Ark. 232, 14 Am. St. Rep. 48; Williams v. Riehl, 127 Cal. 365, 78 Am. St. Rep. 60; Chipman V. Morrill, 20 Cal. 131; Hill v. Morse, 61 Me. 541; Chaffee v. Jones, 19 Pick. (Mass.) 260; Jeffries v. Ferguson, 87 Mo. 244, Huffcut & W. Am. Cas. Cont. 489; Easterly v. Barher, 66 N. Y. 433; Norton V. Coons, 3 Denio (N. Y.) 132; Peebles v. Gay, 115 N. C. 38, 44 Am. St. Rep. 429; Poe v. Dixon, 60 Ohio St. 124, 71 Am. St. Rep. 713. And see Durbin v. Kuney, 19 Or. 71. It is no objection to a recovery that the plaintiff has received a partial indemnity from the principal by an assignment of property; but the property so assigned inures to the benefit of both the sure- ties, and the defendant is liable for his proportion of the balance, paid by the plaintiff, beyond the indemnity. Williams v. Riehl, 127 Cal. 365; Bachelder v. Fiske, 17 Mass. 464. The right of a cosurety to contribution arises out of his payment of more than his due proportion of the debt, and will date from such payment. Therefore, such right is unaffected by the fact that the statute of limitations may have barred any direct liability of the other surety to the creditor. Martin v. Frantz, 127 Pa. 389, 14 Am. St. Rep. 859. 201) Pitt V. Purssord, 8 Mees. & W. 538; Davies v. Humphreys, 6 Mees. & W. 153; Chaffee v. Jones, 19 Pick. (Mass.) 260; Odlin v. Greenleaf, 3 N. H. 270. (773) PART IV. CHAPTER IX. CONSTRUCTION OF CONTRACT. I. In General. § 384. In General. 385. Province of Court and of Jury. 386. Caution. II. Intent Governs. § 387. In General. 388. General and Particular Intent. 389. Intent not Fully or Truly Expressed. III. Same — Parol Evidence. § 390. In General. 391. Unexpressed Terms. 392. Collateral Agreement. 393. Application of Terms. 394. Custom and Usage. IV. Favorable Construction. § 395. In General. 396. Legality. 397. Reasonableness. V. Contemporaneous Construction. § 398. In General. VI. Practical Construction. § 399. In General. VII. Subject-Matter to be Considered. § 400. In General. (774) Ch. 9] IN GENERAL. § 383 VIII. Whole Coktract to be Regakdisd. § 401. In General. 402. Grammar. 403. Punctuation. 404. Clerical Errors. 405. Correlative Documents. 406. Entire Contract to be Given Effect. 407. Surplusage. IX. Conflicting Clauses. § 408. Of Incompatible Clauses, the First Prevails. 409. Restriction of General Words. 410. Writing Controls Printing. 411. Conditions, Exceptions, Reservations, and Provisos. X. Meaning of Particular Teems. § 412. Popular and Literal Meaning. 413. Ambiguous Words. 1. In General. The construction of a contract, as commonly understood, and for all practical purposes, is the operation of determining its meaning and effect; and, thus used, it includes interpretation.^ Generally speaking, the rules of construction are the same in law and in equity, and whether the contract is under seal or rests in parol. 1 In strict propriety, the terms "construction" and "interpreta- tion" are not synonymous. In the first place, the office of interpre- tation is to determine the meaning of words; that of construction is to determine the meaning of the whole transaction of which these words are the ingredients. A contract must be inteiT)reted, therefore, before it can be construed. Secondly, the faculties re- quired for interpretation are linguistic; those required for con- struction are logical. The process of interpretation is analytical; that of construction is synthetical. Interpretation is exploration; construction is induction. However, the rules of interpretation and of construction are necessarily more or less blended, since, in de- termining the meaning of a word, we have sometimes to appeal to the context, just as, in determining the meaning of the context, we have to throw ourselves into the position of the author when he used the particular words. Wharton, Cont. § 627. (7Y5) § 384 CONSTRUCTION OP CONTRACT. [Ch. 9 The construction of a contract is a question for the court, though the meaning of disputed terms may often he a question for the jury under the evidence. § 384. In general. "The necessity of rules of construction," says Mr. Justice Metcalf,^ "arises from the imperfection of language, and from the imperfect use of it in those instances in which language wholly unequivocal and explicit might be selected. 'If,' says Vattel, 'the ideas of men were always distinct and perfectly determined ; if, in order to make them known, they had only proper terms, and none but such expressions as were clear, precise, and susceptible of only one sense, — there would never be any difficulty in discovering their meaning in the words by which they would express it. Nothing more would be necessary than to understand the language.' Even in this state of things, however, it is obvious to those who have experience in the affairs of life that rules of construc- tion would be necessary. In contracts where more than one definite object is stipulated for (at least, wherever a general object is intended to be secured by a stipulation concerning a variety of particulars), it is hardly possible to foresee every case that will arise, even under the course of events that is anticipated. Much less can the state of affairs be foreseen which new conjunctures and unexpected events will certainly produce. Yet it would be ihjurious to both parties if the ex- act literal stipulations of a complicated contract were to be performed, and nothing more; and therefore it is necessary to resort .to construction, — that is, to inductions drawn from the general views of the parties, as expressed in their contract, with reference to the existing circumstances ; in otber words, to collect from the object, drift, and spirit of their agreement what their leading and paramount intentions were, and to carry those intentions into, effect." 2 Metcalf, Cent. 272. (7Y6) ; Ch. 9] IN GENERAL. g 385 Construction, then, being a matter of necessity, it is of great importance that fixed canons of construction should be adopted in order to give a uniform effect to the stipulations of contracting parties who resort to judicial tribunals for the enforcement of rights and the redress of wrongs arising from contracts and the breach of them.* The riiles of construction are various, and their application is as wide as the affairs of life. It is beyond the province of this work, therefore, either to make a complete statement of the rules, or to follow them into all their ramifications. The writer will content himself with an eniimeration of the more prominent rules, and a brief discussion of each, accompanied by a few illustrations. For the most part, the rules of construction are the same, whether the contract rests in parol or is under seal;* and, in general, they are the same in law and in eqriity.^ § 385. Province of court and of jury. The courts take judicial notice of the ordinary meaning of ordinary words, and, if the terms of a contract are not dis- puted, its legal effect is a question of law. Accordingly, the construction of a written contract is ordinarily a matter with- in the exclusive province of the court, and it is therefore error to submit the question to the jury.^ Where, however, sMetcalf, Cent. 274. * Metcalf, Cont. 273 ; per Lord Ellenborough, Seddon v. Senate, 13 East, 63, 74. There is no difEerence between the construction of mercantile contracts and other instruments. Per Jessel, M. R., Southwell V. Bowditch, 1 C. P. Div. 374, 376. Metcalf , Cont. 273; per Lord Mansfield, Hotham v. East India Co., 1 Doug. 272, 277; Eaton v. Lyon, 3 Ves. 690, 692; Scott v. Liver- pool Corp., 3 De Gex & J. 334. Neilson v. Harford, 8 Mees. & W. 806, 823; Bell v. Bruen, 1 How. (U. S.) 169; Levy v. Gadsby, 3 Cranch (U. S.) 180; Beck v. West, 87 Ala. 213; Arkansas Fire Ins. Co. v. Wilson, 67 Ark. 553, 77 Am. St. Rep. 129; School Dist. No. 8 v. Lynch, 33 Conn. 330; Nash v. Drisco, 51 Me. 417; Emery v. Owings, 6 Gill (Md.) 191; Pratt v. (777) § 386 CONSTRUCTION OP CONTRACT. [Ch. 9 terms of art, or technical phrases, or terms having a peculiar sense by usage, are employed in a contract, and the parties are in dispute as to their signification, it becomes necessary to adduce evidence in explanation of the terms, and the de- termination of their meaning upon the evidence is a question for the jury.^ Even in this case, the construction of the en- tire instrument in the light of the meaning placed upon the particular disputed terms by the jury is still a question for the court,^ and the question of the meaning of the contract is therefore to be submitted to the jury under proper instruc- tions, given hypothetically, concerning its legal effect.® § 386. Caution. Some of the rules of construction are in apparent conflict ; more are interdependent ; most of them are analogous ; and Langdon, 12 Allen (Mass.) 544, 546; Hooper v. Webb, 27 Minn. 485; CoQuillard v. Hovey, 23 Neb. 622, 8 Am. St. Rep. 134; Drew V. Towle, 30 N. H. 531; Sattler v. Hallock, 160 N. Y. 291, 73 Am. St. Rep. 686; Jones v. Bunker, 83 N. C. 324; Williamson v. Eastern Bldg. & Loan Ass'n, 54 S. C. 582, 71 Am. St. Rep. 822; Leaphart v. Commercial Bank, 45 S. C. 563, 55 Am. St. Rep. 800; Louisville & N. R. Co. v. Wynn, 88 Tenn. 321; Wason v. Rowe. 16 Vt. 525. This is true, even where the writing has been lost, provided its terms are definitely proved. Berwick v. Horsfall, 4 C. B. (N. S.) 450; semUe, Moore v. Holland, 39 Me. 307, 310. And the same rule applies to oral contracts, where there is no dispute as to their terms. Globe Works v. Wright, 106 Mass. 207, 216; Short V. Woodward, 13 Gray (Mass.) 86. Contra, semble. Brown v. Orland, 36 Me. 376. 7 Hutchison v. Bowker, 5 Mees. & W. 535; Simpson v. Margitson, 11 Q. B. 23; Brown v. McGran, 14 Pet. (U. S.) 479; School Dist. No. 8 V. Lynch, 33 Conn. 330; Illges v. Bexter, 77 Ga. 36; Eaton v. Smith, 20 Pick. (Mass.) 150; Coquillard v. Hovey, 23 Neb. 622, 8 Am. St. Rep. 134; Ganson v. Madigan, 15 Wis. 144, Huffcut & W. Am. Cas. Cont. 504. 8 Hutchison v. Bowker, 5 Mees. & W. 535 ; Simpson v. Margitson, 11 Q. B. 23. 9 Eaton V. Smith, 20 Pick. (Mass.) 150; Fowle v. Bigelow, 10 Mass. 379, 384; Festerman v. Parker, 32 N. C. 474. (778) Ch. 9] INTENT GOVERNS. | 387 for the most part they are of equal authority. It is often a nice question, therefore, which rule shall be applied to a par- ticular contract. To reach a right answer, it is of the highest importance that the various rules shall be read together. Ex- clusive attention should be paid to no one, but each should be read with reference to the others. With these preliminary remarks, we may enter upon a statement of the rules. II. Intent Governs. The primary rule of construction is that, so far as other rules of law will permit, the apparent intention of the parties shall be effectuated. The general intent of the parties may be given effect, even though, by reason of some impediment, the particular intent may fail. If the intention of the parties is apparent, it may be enforced, even though the words of the contract, literally construed, do not fully or truly express it. § 387. In general. To create a contract, the parties must enter into an agree- ment, — their minds must unite in a common intention. The purpose of construction is to ascertain this intention. The primary rule of construction is, therefore, that the apparent intention of the parties shall be regarded, so far as other rules of law will permit.-^" 10 Metcalf, Cont. 274; Gerrard v. Clifton, 7 Term R. 676, 678; Browning v. Wright, 2 Bos. & P. 13, 26; Solly v. Forbes, 2 Brod. & B. 38, 48; Evans v. Sanders, 8 Port. (Ala.) 497; Bartholomew v. Muzzy, 61 Conn. 387, 29 Am. St. Rep. 206; Hunter's Adm'rs v. Miller's Bx'rs, 6 B. Hon. (Ky.) 612, 619; Lovelace v. Travelers' Pro- tective Ass'n, 126 Mo. 104, 47 Am. St. Rep. 638; Sattler v. Hallock, 160 N. Y. 291, 73 Am. St. Rep. 686; Wolfe v. Scarborough, 2 Ohio St. 361; Gray v. Clark, 11 Vt. 583; Weiseger v. Wheeler, 14 Wis. 109, 114; McFarland v. Railway Officials' & Employes' Accident (779) § 388 CONSTRUCTION OF CONTRACT. [Ch. 9 § 388. General and particular intent. It often happens that a contract evinces a general and also a particular intent. The particular intent, perhaps, cannot be carried into effect at all, or, if it should be, it would wholly or in a great measure defeat the general intent. In such cases, though there is no doubt of the parties' views as expressed in their contract, courts will so construe their words as to give effect to the general intent. This is done conform- ably to the design of the parties as displayed by the general spirit of their agreement.*^ This principle is illustrated where some legal impediment or informality prevents the fulfillment of the particular intention of the joarties.^^ Thus, a grant of land by bargain and sale, the gTantee to have and to hold after the death of the grantor, cannot operate as a bar- gain and sale, though the parties so intended, since it is a rule of the common law that a freehold cannot be made to com- mence in future. Yet it may be given effect as a covenant by the grantor to stand seised to his own use during life, and, after his death, to the tise of the grantee, thereby effectuating the chief purpose of the parties. ^^ So, an instrument in- Ass'n, 5 Wyo. i26, 63 Am. St. Rep. 29. This rule is expressed in the maxim, Verba intentioni, non e contra, clebent inservire. 11 Metcalf, Cont. 273. 12 Carrington v. Roots, 2 Mees. & W. 248; Hayne v. Cummings, 16 C. B. (N. S.) 421; Jenkins v. Lykes, 19 Fla. 148; Dismukes v. Par- rott, 56 Ga. 513; Cross v. Weare Commission Co., 153 111. 499, 46 Am. St. Rep. 902; Hastings v. Blue Hill Turnpike Corp., 9 Pick. (Mass.) 80; Pray v. Pierce, 7 Mass. 381, 384; Lynch v. Livingston, 6 N. Y. 422; Van Horn's Lessee v. Harrison, 1 Dall. (Pa.) 137. The particular Intention of the parties is effectuated in these cases rather by legal operation, perhaps, than hy construction. Metcalf, Cont. 305. 13 Doe d. Milbourne v. Simpson, 2 Wils. 22; Doe d. Milburn v. Salkeld, Willes, 673; Barrett v. French, 1 Conn. 354; Wallis v. Wal- lis, 4 Mass. 135. The same effect is given to a release attempting to convey a free- hold in futuro. Roe d. Wilkinson v. Tranmarr, Willes, 682. (Y80) Ch. 9] INTENT GOVERNS. § 389 tended to be a deed, and yet invalid as such by reason of some legal objection, may operate as an agreement to convey, if there is no obstacle to its going into effect as such.^* Again, a writing meant to be a statutory bond, yet void as such for not conforming to the statute, may take effect at common law, and so effectuate the main object of the parties.-* , 15 § 389. Intent not fully or truly expressed. If the words of a contract do not fully express the inten- tion of the parties, as evidenced by the entire instrument, the intention governs. ^"^ Thus, a bond, conditioned in a large sum, that the obligor shall "i^-ender a fair, just, and perfect account in writing of all sums received," is construed to mean that the obligor shall not only prepare a statement of the sums received, but also pay them over to the obligee, even though that intention is not fully expressed.-'^ In certain cases, the evident intention of the parties will be effectuated, even though they employ words having a meaning contrary to their intention. A contract will not be construed literally if that construction would defeat the gen- eral intention of the parties as gathered from the instrument 14 Rex V. Inhabitants of Ridgwell, 6 Barn. & C. 665; Blight's Heirs v. Banks, 6 T. B. Mon. (Ky.) 192; Jewell v. Harding, 72 Me. 124; McCaleb v. Pradat, 25 Miss. 257; Varick v. Edwards, Hoff. Ch. (N. Y.) 382; Bayler v. Com., 40 Pa. 37; Brinkley v. Bethel, 9 Heisk. CTenn.) 786; Conrad v. Schwamb, 53 Wis. 372. 15 Hester v. Keith, 1 Ala. 316; Wolfe v. McClure, 79 111. 564; Bur- roughs V. Lowder, 8 Mass. 373; Gathwright v. Callaway County, 10 Mo. 663; Portland v. Bituminous Paving Co., 33 Or. 307, 72 Am. St. Rep. 713; First Nat. Bank of Brandon v. Briggs' Assignees, 69 Vt. 12, 60 Am. St. Rep. 922. isMetcalf, Cont. 303; Brooks v. Jennings, L. R. 1 C. P. 476; Can- nock V. Jones, 3 Exch. 233; Duke of St. Albans v. Ellis, 16 Bast, 3*52; Doe d. Gaskell v. Spry, 1 Barn. & Aid. 617; Doe d. Bish v. Keeling, 1 Maule & S. 95; Sampson v. Easterby, 9 Barn. & C. 505; Genet v. Delaware & H. Canal Co., 136 N. Y. 593; Quackenboss v. Lansing, 6 Johns. (N. Y.) 49. See pages 796, 798, infra. " Bache v. Proctor, 1 Doug. 382. (Y81) § 389 CONSTRUCTION OP CONTRACT. [Ch. 9 itself. 1^ Thus, a contract by which a purchaser agrees to pay for an electric light plant when it has been completed and found to be in good working order is not satisfied by the existence of good working order at the moment of com- pletion, if events almost immediately succeeding completion conclusively show that the result accomplished was not that contemplated by the contract.^ ^ So, a policy of marine insur- ance providing that the risk should be suspended "while vessel is at Baker's Island, loading," was held to mean that the risk should be suspended while the vessel was at the place named "for the purpose of loading," whether actually loading or not.20 ill. Same^ — Pabol Evidence. While intention ordinarily governs the construction of a con- tract, yet the parties will not, as a rule, be permitted to say that they did not mean what their writing says, nor to adduce parol evidence to vary or to contradict it. This rule is subject to certain exceptions. Oral evidence is admissible : (a) To show unexpressed terms of the agreement, and so complete the writing. (b) To show a collateral agreement not inconsistent with the writing. (c) In certain cases, to explain the terms of the writing, and show their application to the parties, the sub- ject-matter, and the nature of the obligation. isMetcalf, Cont. 303; Vernon v. Alsop, 1 Lev. 77, T. Raym. 68; Saunders v. Clark, 29 ,Cal. 299; Cliism v. Schipper, 51 N. J. Law, 1, 14 Am. St. Rep. 668; Buck v. Burk, 18 N. Y. 337, 342; Quackenboss V. Lansing, 6 Johns. (N. Y.) 49; Bickford v. Cooper, 41 Pa. 142. See pages 798, 807, infra. ii> Edison General Electric Co. v. Canadian Pac. Navigation Co., 8 Wash. 370, 40 Am. St. Rep. 910. 20 Reed V. Merchants' Mut. Ins. Co., 95 XJ. S. 23. (782) Ch. 9] PAROL EVIDENCE. § 390 (d) To show the usage of a trade or a locality for the pur- pose either of annexing a term to a written con- tract, or of explaining a term there used, or to ex- plain terms of art or technical phrases in the con- tract. § 390. In general. The rule that the intention of the parties to a contract governs its construction is subject to this important qualifica- tion, namely, that, in so far as the parties have reduced their agreement to writing, they are bound by the terms thus volun- tarily employed, and they will not be permitted to say that they did not mean what their writing says,^^ nor to adduce evidence to contradict or to vary it. In other words, parol evidence is not, as a rule, admissible to vary, add to, or de- tract from the terms of a written contract. ^^ The rule that 21 Davis V. Robert, 89 Ala. 402, 18 Am. St. Rep. 126; Hatch v. Douglas, 48 Conn. 116; Wilkins v. Young, 144 Ind. 1, 55 Am. St. Rep. 162; Cravens v. Eagle Cotton Mills Co., 120 Ind. 6, 16 Am. St. Rep. 298; Pilmer v. State Bank, 16 Iowa, 321; Muhlig v. Fiske, 131 Mass. 110; Holmes v. Hall, 8 Mich. 66; Huffman v. Hummer, 17 N. J. Eq. 269; Watrous' Heirs v. McKie, 54 Tex. 65; Holston Salt & Plaster Co. V. Campbell, 89 Va. 396. 22 Wake V. Harropi 6 Hurl. & N. 768, 775; Burges v. Wickham, 3 Best & S. 669, 696; Pierce v. Tidwell, 81 Ala. 299; Donahue v. Mc- Nulty, 24 Cal. 411, 85 Am. Dec. 78; Glendale Woolen Co. v. Protec- tion Ins. Co., 21 Conn. 19; Haynes v. Wesley, 112 Ga. 668, 81 Am. St. Rep. 72; Butterfield v. Sawyer, 187 111. 598, 79 Am. St. Rep. 246; Sandage v. Studebaker Bros. Mfg. Co., 142 Ind. 148, 51 Am. St. Rep. 165; Pratt v. Prouty, 104 Iowa, 419, 65 Am. St. Rep. 472; McClernan v. Hall, 33 Md. 293; Coots v. Farnsworth, 61 Mich. 497; Hills v. Rix, 43 Minn. 543; Cocke v. Bailey, 42 Miss. 81; Crane Co. v. Specht, 39 Neb. 123, 42 Am. St. Rep. 562; Middleton v. Griffith, 57 N. J. Law, 442, 51 Am. St. Rep. 617; Long v. New York Cent. R. Co., 50 N. Y. 76; Smith v. Williams, 5 N. C. 426; Kirk v. Hartman, 63 Pa. 97; Roberts v. Minneapolis Threshing Mach. Co., 8 S. D. 579, 59 Am. St. Rep. 777; Bryan v. Hunt, 4 Sneed (Tenn.) 543, 70 Am. Dec. 262; Ripley v. Paige, 12 Vt. 353; Owen v. Henderson, 16 Wash. 39, 58 Am. St. Rep. 17; McQuaid v. Ross, 77 Wis. 470. This rule is appli- (783) § 390 CONSTRUCTION OF CONTRACT. [Ch. 9 the parties will not be allowed to dispute the written evidence of their intention rests upon the assumption that a valid and operative contract was entered into,"^ which has not been subsequently modified, suspended, or discharged,^* and, more- cable alike to contracts under seal and to those resting in parol. Adams v. City Council of Ft. Gaines, 80 Ga. 86; Stanhope v. Swaf- ford, 80 Iowa, 45. Generally speaking, the rule is the same at law and in equity. Sprigg v. Mount Pleasant Bank, 14 Pet. (U. S.) 201; Elysville Mfg. Co. v. Oklsko Co., 1 Md. Ch. 392; Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425, 7 Am. Dec. 499; Wilkinson v. Wilkinson, 17 N. C. 376; Cooper v. Tappan, 4 Wis. 362. Parol evidence is no more admissible to contradict or vary a con- tract implied from a written instrument than it is to contradict or vary the express terms of the Instrument. Fawkner v. Smith Wall Paper Co., 88 Iowa, 169, 45 Am. St. Rep. 230; Bryan v. Duff, 12 Wash. 233, 50 Am. St. Rep. 889. Nor is it admissible to vary the settled legal meaning and effect of a contract. Brandon Mfg. Co. V. Morse, 48 Vt. 322. A distinction should be noted here between the use of the word "parol" in reference to contract and its use in reference to evi- dence. A parol contract is any contract not under seal, whether in writing or not. See page 509, supra. By parol evidence, however, we generally mean oral evidence, not written. 23 Foster v. Jolly, 1 Cromp., M. & R. 708 ; Pym v. Campbell, 6 Bl. & Bl. 370; Totten v. United States, 92 U. S. 105; Thompson v. New England Mortgage Security Co., 110 Ala. 400, 55 Am. St. Rep. 29; Roe v. Klser, 62 Ark. 92, 54 Am. St. Rep. 288; Langley v. Rodriguez, 122 Cal. 580, 68 Am. St. Rep. 70; Burns & Smith Lumber Co. v. Doyle, 71 Conn. 742, 71 Am. St. Rep. 235; Barrie v. Miller, 104 Ga. 312, 69 Am. St. Rep. 171; Ferguson v. Sutphen, 8 111. 547; Cuthrell V. Cuthrell, 101 Ind. 375; Friend v. Miller, 52 Kan. 139, 39 Am. St. Rep. 340; Fenwick v. Ratliff's Representatives, 6 T. B. Mon. CKy.) 154; Jamison v. Ludlow, 3 La. Ann. 492; Marston v. Kennebec Mut, Life Ins. Co., 89 Me. 266, 56 Am. St. Rep. 412; Allen v. Hawks, 13 Pick. (Mass.) 79; Anderson v. Walter, 34 Mich. 113; Westman v. Krumweide, 30 Minn. 313; Newsom v. Thighen, 30 Miss. 414; Koeh- ler V. Dodge, 31 Neb. 328, 28 Am. St. Rep. 518; Shackford v. Town of Newington, 46 N. H. 415; Den d. Wooden v. Shotwell, 23 N. J. Law, 465; Reynolds v. Robinson, 110 N. Y. 654, HufCcut & W. Am. Cas. Cont. 502; Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165, 57 Am. St. Rep. 626; Martin v. Clarke, 8 R. I. 389, 5 Am. Rep. 586; Bedell v. Wilder, 65 Vt. 406, 36 Am. St. Rep. 871. 24 Piatt's Adm'r v. United States, 22 Wall. (U. S.) 496, 507; Canal (784) Ch. 9] PAROL EVIDENCE. § 392 over, it is subject to important exceptions. Certain of these will now be briefly noticed. § 391. Unexpressed terms. If the parties to a contract have not put all its terms into writing, oral evidence of the unexpressed terms is then ad- missible, not to vary, but to complete, the writing.^^ § 392. Collateral agreement. If, at the time of entering into a written contract, or be- fore, the parties also make a collateral agreement not incon- sistent with the tenor of the writing, the collateral agreement may be proved by parol.^" , j Co. V. Ray, 101 U. S. 522; Adler v. Friedman, 16 Cal. 139; Rogers v. Atkinson, 1 Ga. 12; Bowman v. Cunningham, 78 111. 48; Willey v. Hall, 8 Iowa, 62 ; Thomas v. Barnes, 156 Mass. 581 ; Moore v. Detroit Locomotive Works, 14 Mich. 266; Juilliard v. Chaftee, 92 N. Y. 529; Harris v. Murphy, 119 N. C. 34, 56 Am. St. Rep. 656; Holloway v. Frick, 149 Pa. 178; Hogan v. Crawford, 31 Tex. 634; Bannon v. C- Aultman & Co., 80 Wis. 307, 27 Am. St. Rep. 37. 25Jervis v. Berridge, 8 Ch. App. 351; Mobile & M. Ry. Co. v. Ju- rey. 111 U. S. 584; Bradshaw v. Combs, 102 111. 428; Lyon v. Lenon, 106 Ind. 567; Gould v. Boston Excelsior Co., 91 Me. 214, 64 Am. St. Rep. 221; Warfield v. Booth, 33 Md. 63; Walter A. Wood Mow- ing & Reaping Mach. Co. v. Gaertner, 55 Mich. 453; Aultman, Miller & Co. V. Clifford, 55 Minn. 159, 43 Am. St. Rep. 478; Lash v. Parlin,. 78 Mo. 391; Naumberg v. Young, 44 N. J. Law, 331; Hyndman v. Hogsett, 111 Pa. 643; Wood v. Moriarty, 15 R. I. 518, HufEcut & W. Am. Cas. Cont. 430; Steed v. Harvey, 18 Utah, 367, 72 Am. St. Rep. 789; Reynolds v. Hassam, 56 Vt. 449. The question whether the writing is a complete expression of an agreement is one of law. Harrison v. McCormick. 89 Cal. 327, 23 Am. St. Rep. 469. 26 Erskine v. Adeane, 8 Ch. App. 756, 766; Cagle v. Lane, 49 Ark. 465; Raynor v. Drew, 72 Cal. 307; Tucker v. Tucker, 113 Ind. 272; HefEner v. Brownell, 75 Iowa, 341; Schoen v. Sunderland, 39 Kan. 758; Brock v. Sturdevant, 12 Me. 81; Rackemann v. Riverbank Im- provement Co., 167 Mass. 1, 57 Am. St. Rep. 427; Durkin v. Cob- leigh, 156 Mass. 108, 32 Am. St. Rep. 436; Breitenwischer v. Clough, 111 Mich. 6, 66 Am. St. Rep. 372; Naumberg v. Young, 44 N. J. Law, (785) Law of Cont. — 50. § 393 CONSTRUCTION OF CONTRACT. [Ch. 9 ^ S93. Application of terms. It is often laid down that parol evidence is admissible to explain the terms of a written contract where the obscurity or ambiguity is latent, but not when it is patent. A latenc doubt is one which does not appear from the face of the writ- ing, but only from the application of the words to the par- ties or the subject-matter of the contract. A patent doubt is one which arises from the words of the document, and is hence obvious before an attempt is made to apply them.^'' However, the rule that patent ambiguities may not be ex- plained by parol does not fully obtain in all jurisdictions un- der all circumstances. There seems to be an intermediate ■class of cases, partaking of the nature of both patent and ■ latent ambiguities, and comprising those instances where the words are equivocal, and yet admit of definite application by resorting to the circumstances under which the contract was made ; and in these cases parol testimony has been admit- ted.=8 331; Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Lanphire v. Slaughter, 61 How. Pr. (N. Y.) 36; Real Estate Title Ins. & Trust Co.'s Appeal, 125 Pa. 549, 11 Am. St. Rep. 920; Hlnes v. Willcox, 96 Tenn. 148, 54 Am. St. Rep. 823; Kinney v. Hooker, 65 Vt. 333, 36 Am. St. Rep. 864; Green v. Batson, 71 Wis. 54, 5 Am. St. Rep. 194. In order to admit parol evidence o£ a collateral agreement. It must appear, either from the written contract itself or from the surrounding circumstances, that the contract is incomplete, and the collateral agreement must not in any way conflict with the contract. Stacey v. "Walter, 125 Ala. 291, 82 Am. St. Rep. 235; For- syth Mfg. Co. v. Castlen, 112 Ga. 199, 81 Am. St. Rep. 28; Middleton V. Griffith, 57 N. J. Law, 442, 51 Am. St. Rep. 617. 27 Cyclopedic Law Diet. "Latent Ambiguity," "Patent Ambigu- ity"; Anson, Cont. (8th Ed.) 264; Saunderson v. Piper, 5 Bing. N. iC. 425; Fisher v. Deibert's Adm'rs, 54 Pa. 460. And see cases cited In following notes. 28 Bishop, Cont. § 375; Peisch v. Dickson, 1 Mason, 11, Fed. Gas. No. 10,911; Fish v. Hubbard's Adm'rs, 21 Wend. (N. Y.) 651, 659; (786) Ch. 9J PAROL EVIDENCE. § 393 Parties. Oral evidence in explanation of the terms of the contract is admissible to identify the parties,*® as where two persons have the same name.*" Such an ambiguity is latent. Subject-matter. The subject-matter of a written contract may also be iden- tified by parol,*^ as where A. agrees with X. to buy all "your wool."** Such an obscurity also is latent. Ganson v. Madlgan, 15 Wis. 144, 153, HulEcut & W. Am. Cas. Cont. 504. 28 Wake V. Harrop, 6 Hurl. & N. 768; Melone v. Ruffino, 129 Cal. 514, 79 Am. St. Rep. 127; Hancock v. Watson, 18 Cal. 138; Hager V. Rice, 4 Colo. 90, 34 Am. Rep. 68; Nutt v. Humphrey, 32 Kan. 100; Haskell v. Tukesbury, 92 Me. 551, 69 Am. St. Rep. 529; Laflin & Rand Powder Co. v. Sinsheimer, 48 Md. 411, 30 Am. Rep. 472; Bying- ton V. Simpson, 134 Mass. 169; Richardson v. Foster, 73 Miss. 12, 55 Am. St. Rep. 481; Musser v. Johnson, 42 Mo. 74, 97 Am. Dec. 316; Bartlett v. Remington, 59 N. H. 364; Murray v. Blackledge, 71 N. C. 492; Barkley v. Tarrant, 20 S. C. 574; Small v. Elliott, 12 S. D. 570, 76 Am. St. Rep. 630; Aultman & Taylor Co. v. Gunderson, 6 S. • D. 226, 55 Am. St. Rep. 837; Leach v. Dodson, 64 Tex. 185; Brewster V. Baxter, 2 Wash. T. 135; Cleveland v. Burnham, 64 Wis. 347. 30 Simpson v. Dix, 131 Mass. 179. And see Den d. Cubberly v. Cubberly, 12 N. J. Law, 308. 31 United States v. Peck, 102 U. S. 64; Cottingham v. Hill, 119 Ala. 353, 72 Am, St. Rep. 923; Dorr v. School Dist. No. 26, 40 Ark. 237; Hancock v. Watson, 18 Cal. 138; Bennett v. Pierce, 28 Conn. 314; Maril v. Connecticut Fire Ins. Co., 95 Ga. 604, 51 Am. St. R^p. 102; Halliday v. Hess, 147 111. 588; Clark v. Powers, 45 111. 283; Clark V. Crawfordsville Coffin Co., 125 Ind. 277; Haskell v. Tukes- bury, 92 Me. 551, 69 Am. St. Rep. 529; New England Dressed Meat & Wool Co. V. Standard Worsted Co., 165 Mass. 328, 52 Am. St. Rep. 516; Stoops v. Smith, 100 Mass. 63, 97 Am. Dec. 76; Baker v. McArthur, 54 Mich. 139 ; Herrick v. Morrill, 37 Minn. 250, 5 Am. St. Rep. 841; Tucker v. Field, 51 Miss. 191; French v. Hayes, 43 N. H. 30, 80 Am. Dec. 127; Sanders v. Cooper, 115 N. Y. 279, 12 Am. St. Rep. 801; Steadman v. Taylor, 77 N. C. 134; Hildebrand v. Fogle, 20 Ohio, 147; Frost v. Erath Cattle Co., 81 Tex. 505, 26 Am. St. Rep. (787) § 394 CONSTRUCTION OF CONTRACT. [Ch. 9 Nature of obligation. Oral evidence is also admissible to explain a latent obscu- rity or ambiguity in reference to terms not describing either the parties or the subject-matter of the written contract, but affecting the nature of the obligation assumed by one of or both the parties.^'* Thus, if an applicant for a policy of ma- rine insurance warrants the vessel to be seaworthy, he may show that, while she was not seaworthy in a general sense, yet for the purpose of the particular voyage she was so.** § 394. Custom and usage. The usage of a trade or of a locality may be shown by parol for the purpose either of annexing a term to a written con- tract or of explaining or giving a special meaning to a term there used.^° Parol evidence of a usiage that adds a term to the written contract is admissible on the presumption of law that contracts are made with reference to known usages, which become a part of the contract as a matter of law, and that the parties do not, in such cases, mean to express the 831; Brown v. Markland, 16 Utah, 360, 67 Am. St. Rep. 629; Mes- ser V. Oestreich, 52 Wis. 684. 32 Macdonald v. Longbottom, 1 El. & El. 977. 33 Proctor V. Hartlgan, 143 Mass. 462; Wickes v. Swift Electric Light Co., 70 Mich. 322; Manchester Paper Co. v. Moore, 104 N. Y. 680; Ganson v. Madigan, 15 Wis. 144, Huffcut & W. Am. Cas. Cont. 504. SI Surges v. Wickham, 3 Best & S. 669. 35 Anson, Cont. (8th Ed.) 264; Barlow v. Lambert, 28 Ala. 704; Sampson v. Gazzam, 6 Port. (Ala.) 123, 30 Am. Dec. 578; Union Ins. Co. V. American Fire Ins. Co., 107 Cal. 327, 48 Am. St. Rep. 140; Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149; Cox v. O'Riley, 4 Ind. 368, 58 Am. Dec. 633; Destrehan v. Louisiana Cypress Lumber Co., 45 La. Ann. 920, 40 Am. St. Rep. 265; Southwestern Freight & Cotton Press Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Brown Chemical Co. v. Atkinson, 91 N. C. 389; Holmes v. Whitaker, 23 Or. 319; Hubble v. Cole, 85 Va. 87; Bowman v. First Nat. Bank of Spo- kane, 9 Wash. 614, 43 Am. St. Rep. 870. (788) Ch. 9] PAROL EVIDENCE. § 394 whole contract in the writing.^® Parol evidence of usage to explain terms in written contracts, whether commercial, agri- cultural, or otherwise subject to known customs, is admitted on the principle that the parties use the words in a sense dif- ferent from their ordinary meaning, and that evidence of the usage neither adds to, qualifies, nor contradicts the vrritten contract, but only ascertains it by expounding the language.*'' Closely connected with the principle that usage may ex- plain phrases is the rule admitting expert evidence to explain terms of art or technical phrases used in written contracts.*^ ssHutton V. Warren, 1 Mees. & W. 466; Wlgglesworth v. Dalll- son, Doug. 201, 1 Smith, Lead. Gas. 594; Alabama & T. R. Co. v. Kidd, £9 Ala. 221; Ocean Steamship Co. v. McAlpin, 69 Ga. 437; Doane v. Dunham, 79 111. 131; Maud v. Trail, 92 Ind. 521; Florence Mach. Co. V. Daggett, 135 Mass. 582; Henkel v. Welsh, 41 Mich. 664; Cooper V. Kane, 19 Wend. (N. Y.) 386; Swift's Iron & Steel Works V. Dewey, 37 Ohio St. 242; Lacy v. Green, 84 Pa. St. 514; McMasters V. Pennsylvania R. Co., 69 Pa. 374; Walker v. Armstrong, 54 Tex. 609. 37 Anson, Cent. (8th Ed.)_265; Brown v. Byrne, 3 El. & Bl. 703, 716; Norden Steamship Co. v. Dempsey, 1 C. P. Div. 654; Smith v. Wilson, 3 Barn. & Adol. 728, Langdell, Cas. Cont. 909; Berry v. Kowalsky, 95 Cal. 134, 29 Am. St. Rep. 101; Hatch v. Douglas, 48 Conn. 116, 40 Am. Rep. 154; Galena Ins. Co. v. Kupfer, 28 111. 332, 81 Am. Dec. 284; Van Camp Packing Co. v. Hartman, 126 Ind. 177; Pilmer v. State Bank of Des Moines, 16 Iowa, 321; New England Dressed Meat & Wool Co. v. Standard Worsted Co., 165 Mass. 328, 52 Am. St. Rep. 516; Maurin v. Lyon, 69 Minn. 257, 65 Am. St. Rep. 568; Soutier v. Kellerman, 18 Mo. 509, Huffcut & W. Am. Cas. Cont. 508; Smith v. Clews, 114 N. Y. 190, 11 Am. St. Rep. 627; Newhall v. Appleton, 114 N. Y. 140; Walls v. Bailey, 49 N. Y. 464; Hinton v. Locke, 5 Hill (N. Y.) 437; Wayne v. Steamboat General Pike, 16 Ohio, 421; Ganson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659, Huft- cut & W. Am. Cas. Cont. 504. 38 Anson, Cont. (8th Ed.) 265; Hills v. Evans, 31 Law J. Ch. 457; Willmering v. McGaughey, 30 Iowa, 205; Eaton v. Smith, 20 Pick. (Mass.) 150; New Jersey Zinc Co. v. Boston Franklinite Co., 15 N. J. Eq. 418; Collender v. Dinsmore, 55 N. Y. 200; Welsh v. Hucke- stein, 152 Pa. 27; Hart v. Hammett, 18 Vt. 127. (789) § 396 CONSTRUCTION OF CONTRACT. [Ch. 9 IV. Favobable Consteuction. If the terms of a contract are susceptible of two construc- tions, one of which would render the contract valid, reasonable, and fair, the other not, they are to be understood in the former sense, so as to effectuate the contract. § 395. In general. Construction is to be what the common lawyers term "fa- vorable" ; that is, if the terms of a contract are susceptible of two meanings, one of which would effectuate the contract, the other not, they are to be understood in the former sense.^® However, this rule yields to the intention of the parties. If they evidently intended to enter into an invalid or unreasona- ble agreement, they must take the legal consequences. The rule gives them aid only in case of doubt. Where the inten- tion is clear, it can afford no help.*" § 396. Legality. A construction that will make a contract illegal will not be put upon it if it is susceptible of any other meaning.*^ 39 Metcalf, Cont. 277; Wright v. Cartwright, 1 Burrow, 282, 285; Lincoln v. Field, 54 Ark. 471 ; Saunders v. Clark, 29 Cal. 299 ; Hughes V. Lane, 11 111. 123, 50 Am. Dec. 436; Gano v. Aldridge, 27 Ind. 294; Patrick v. Grant, 14 Me. 233; Riley's Adm'rs v. Vanhouten, 4 How. (Miss.) 428; Reilly v. Chouquette, 18 Mo. 220; Powers v. Clarke, 127 N. Y. 417; Hunter v. Anthony, 53 N. C. 385; New Memphis Gaslight Co. Cases, 105 Tenn. 268, 80 Am. St. Rep. 880. This rule is expressed in the maxim. Verba aliquid operari debent, et cum effectu sunt acdpienda; debent intelligi ut aliquid operentur. 4oMetcalf, Cont. 278; Stadhard v. Lee, 3 Best & S. 364; Russell V. Allerton, 108 N. Y. 288, 292. 41 Metcalf , Cont. 278 ; Coke, Litt. 42b ; Dobson v. Crew, Cro. Eliz. 705; United States v. Central Pae. R. Co., 118 U. S. 235; Wyatt v. Larimer & Weld Irrigation Co., 18 Colo. 298, 36 Am. St. Rep. 280; Crittenden v. French, 21 111. 598 ; Hunt v. Elliott, 80 Ind. 245 ; Guern- sey v. Cook, 120 Mass. 501; Merrill v. Melchior, 30 Miss. 516; Loril- lard V. Clyde, 86 N. Y. 384; Ormes v. Dauchy, 82 N. Y. 443, 37 Am. Rep. 583, 584; Watters v. McGuigan, 72 Wis. 155. (790) Ch. 9] FAVORABLE CONSTRUCTION. § 397 An analogous principle of construction is that, if a contract is in derogation of law, — that is to say, if the parties, by it, establish for the particular case a rule contrary to what the law would provide in a like case, — it will be strictly con- strued.^^ Thus, a contract by which a carrier undertakes to limit its common-law liability as such, which it may do within certain limits, will be given effect only so far as the words plainly require. It will be strictly construed in favor of the other party, and against the limitation.*^ Again, upon the same principle, the court will construe a clause as a covenant or promise, rather than as a condition working a forfeiture, if the language of the contract will permit.** § 397. Eeasonableuess. If the words of a contract are susceptible of two meanings, and one sense would render the contract absurd, or frivolous, or otherwise unreasonable, they will be construed in their other sense, so as to give the contract effect.*® Thus, "to," "from," "until," are, in their strict sense, exclusive of the 42 Bishop, Cont. § 410; Dufief v. Boykin, 9 La. Ann. 295; Brothers V. McCurdy, 36 Pa. 407. « Menzell v. Chicago & N. W. Ry. Co., 1 Dill. 531, Fed. Cas. No. 9,429; Baltimore & O. R. Co. v. Brady, 32 Md. 333; Lamb v. Cam- den & A. Railroad & Transportation Co., 46 N. Y. 271. See, also, page 817, infra. 4* Sanders v. Maclean, 11 Q. B. Div. 327, 337; Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328, 5 Am. St. Rep. 680; Kilpatrick v. City of Balti- more, 81 Md. 179, 48 Am. St. Rep. 509. See Dunlap v. Motley, 71 Ala. 102; Crane v. Inhabitants of Hyde Park, 135 Mass. 147; Wier V. Simmons, 55 Wis. 637. «Shreffler v. Nadelhoffer, 133 111. 536, 23 Am. St. Rep. 626; Cra- vens V. Eagle Cotton Mills Co., 120 Ind. 6, 16 Am. St. Rep. 298; Clay V. Ballard, 9 Rob. (La.) 308; Dederick v. "Wolfe, 68 Miss. 500, 24 Am. St. Rep. 283; Russell v. Allerton, 108 N. Y. 288; Town of Royalton v. Royalton & W. Turnpike Co., 14 Vt. 311; Thrall v. New- ell, 19 Vt. 202, 47 Am. Dec. 682; Kentzler v. American Mut. Accident Ass'n, 88 Wis. 589, 43 Am. St. Rep. 934. (791) § 397 CONSTRUCTION OF CONTRACl'. [Ch. 9 subject to which they refer; but if this sense would render the contract nugatory, they may be construed to include the subject.^® An analogous principle which is founded on a different rea- son, but which may be stated here for the sake of convenience, is that, in case a contract is susceptible of two constructions, the court will so construe it as to make it just and reasonable as between the parties, if that course can be taken without violating the evident intention of the parties, or infringing upon rules of law.*^ Thus, in the case of a contract consist- ing of mutual promises, the promises may be dependent or independent. An independent promise may be enforced by the promisee, whether or not he stands ready to perform the reciprocal promise given by himself. With a dependent promise it is otherwise. Upon the principle just stated, the court will construe the promises to be dependent, rather than independent, so that neither party may demand performance unless himself ready to perform.*^ This rule will not be al- lowed to override the obvious intention of the parties to the agreement, however, for it is within their power to enter into a contract consisting of independent promises.*" V. Contemporaneous Construction. A contract is to be construed as of the time when, and the circumstances under which, it originated. 10 Metcalf, Cont. 277; Pugh v. Leeds, Cowp. 714; Evans v. San- ders, 8 Port. (Ala ) 497, 33 Am. Dec. 297. *7Noonan v. Bradley, 9 Wall. (U. S.) 395; Wyatt v. Larimer & "Weld Irrigation Co., 18 Colo. 298, 36 Am. St Rep. 280; Town of Roy- alton V. Royalton & W. Turnpike Co., 14 Vt. 311. ■is Graves v. Legg. 9 Exch. 709, Langdell, Cas. Cont. 532; Colum- bia Bank v. Hagner, 1 Pet. (U. S.) 455; Mecum v. Peoria & O. R. Co., 21 111. 533; Clopton v. Bolton, 23 Miss. 78; Hamilton v. Thrall, 7 Neb. 210; Dakin v. Williams, 11 Wend. (N. Y.) 67; Halloway v. Lacy, 4 Humph. (Tenn.) 467. •!» Clopton V. Bolton, 23 Miss. 78. See section 460 et seq., infra, for a full discussion of this matter of independent promises. (792) €h. 9] CONTEMPORANEA BXPOSITIO. § 398 § 398. In general. Contemporaneous construction of a contract is that drawn from the time when, and the circumstances under which, the contract originated. It is of great weight in determining the intent of the parties.^" To take an old illustration : "If 1 ^ant an annuity to J. S. until he be promoted to a competent benefice, and at the time of the grant he was but a mean per- son, and afterwards is made an archdeacon, yet, if I offer him a competent benefice according to his estate at the time of the grant, the annuity doth cease. "^^ In construing an an- cient document, the sense intended at the time it was made must be adopted. A modern construction should not be put upon its terms, nor modern methods considered in determin- ing their force and effect.°^ And the state of the country and of the manners of society at the time the contract was made is also to be regarded in giving it a construction.®^ Upon this principle, if the meaning of the contract is doubtful, the circumstances under which it was made, and the object of the parties, must be considered in giving it effect ; and these may therefore be shown by parol evidence, even though the contract is in writing.®* 50 Cyclopedic Law Diet. "Contemporanea Expositio"; Hurley v. Brown, 98 Mass. 545. The rule is expressed in the maxim, Contem- poranea expositio est optima et fortissima in lege. A restriction that no building shall be placed upon a parcel of land within a certain distance of a street refers to the street as existing at the time the restriction is imposed. Tobey v. Moore, 130 Mass. 448. The terms of the contract may exclude an applica- tion of this rule. Berkey v. Judd, 22 Minn. 287 ; Crocker v. City of Buffalo, 90 N. Y. 351. 51 Per Wray, C. J., Mildmay v. Standish, Cro. Eliz. 34, 35. 62Metcalf, Cont. 308; Adams v. Frothingham, 3 Mass. 352, 360; Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14, 23. 63Metcalf, Cont. 309; Adams v. Frothingham, 3 Mass. 352, 360. 64 Bell V. Bruen, 1 How. (U. S.) 169; Excelsior Needle Co. v. Smith, 61 Conn. 56; Wood v. Clark, 121 111. 359; Black v. Wabash, (Y93) § 399 CONSTRUCTION OF CONTRACT. [Ch. 9 Similarly, a contract is ordinarily to be construed accord- ing to the law as it existed at the time the engagement was made. It is a well-settled rule that the laws subsisting at the time and place of making a contract enter into and form a part of it, the same as if they were expressly referred to or incorporated in its terms.^* VI. Practical Construction. If the meaning of a contract is doubtful, the court may con- strue it in accordance with the construction placed upon it by the parties themselves in acting under it. § 399. In general. Practical construction of a contract is that given to the agreement by the parties themselves by acts subsequently done with reference to the contract.''® To such an exposition of the contract the courts pay high regard, and will effectuate it if they can do so consistently with the rules of law.^^ St. L. & P. Ry. Co., Ill 111. 351, 53 Am. Rep. 628; Knight v. New- England Worsted Co., 2 Cush. (Mass.) 271, 283; Atkins v. Bord- man, 2 Mete. (Mass.) 457, 37 Am. Dec. 100; Wilbur v. Stoepel, 82 Mich, 344, 21 Am. St. Rep. 568; Nordyke & Marmon Co. v. Kehlor, 155 Mo. 643, 78 Am. St. Rep. 600; Salmon Falls Mfg. Co. v. Ports- mouth Co., 46 N. H. 249; Sattler v. Hallock, 160 N. Y. 291, 73 Am. St. Rep. 686; Smith v. Kerr, 108 N. Y. 31, 2 Am. St. Rep. 362; Fra- zier V. Monroe, 72 Pa. 166; Bortz v. Bortz, 48 Pa. 382, 86 Am. Dec. 603; McNairy v. Thompson, 1 Sneed (Tenn.) 141; Soye v. McCal- lister, 18 Tex. 80, 67 Am. Dec. 689; Kinney v. Hooker, 65 Vt. 333, 36 Am. St. Rep. 864; Gray v. Clark, 11 Vt. 583. 55 Curry v. American Freehold Land Mortgage Co., 107 Ala. 429, 54 Am. St. Rep. 105; Miller v. Wilson, 146 III. 523, 37 Am. St. Rep. 186; Fuller v. Kane, 110 Mich. 549, 64 Am. St. Rep. 362; Clark v. Pinney, 7 Cow. (N. Y.) 681; Evans v. Myers, 25 Pa. 114. 56 Cyclopedic Law Diet. "Practical Construction." 57 Drummond v. Aitorney General, 2 H. L. Cas. 837; Paige v. Banks, 13 Wall. (U. S.) 608; Alabama Great Southern R. Co. v. South & North Alabama R. Co., 84 Ala. 570, 5 Am. St. Rep. 401; Robbins v. Kimball, 55 Ark. 414, 29 Am. St. Rep. 45; Hill v. Mc- (794) Ch. 9] PRACTICAL CONSTRUCTION. § 399 Thus, in 1694, a grantor gave the grantee the privilege of cut- ting timber from adjacent land for the purpose of building on the premises passed by the deed. In order to determine what meaning the parties intended to give the word "build- ing," the court looked to the fact that the grantee and his heirs, with the knowledge of the grantor and his heirs, had cut wood, not only to erect houses, but also for the purpose of erecting fences on the premises.^* Practical construction is to be regarded, however, only where the language of the contract is obscure or ambiguous. It cannot be resorted to if the terms of the agreement are clear and precise, for then the c»urt will construe the intention of the parties to have been in accordance with the writing, regardless of their subse- quent conduct.^® Kay, 94 Cal. 5; Wyatt v. Larimer & Weld Irrigation Co., 18 Colo. 298, 36 Am. St. Rep. 280; French v. Pearce, 8 Conn. 439; People v. Murphy, 119 111. 159; Wilson v. Carrico, 140 Ind. 533, 49 Am. St. Rep. 213; Pratt v. Prouty, 104 Iowa, 419, 65 Am. St. Rep. 472; D'Aquin v. Barbour, 4 La. Ann. 441; Simpson v. Blaisdell, 85 Me. 199, 35 Am. St. Rep. 348;' Citizens' Fire Ins., Security & Land Co. v. Doll, 35 Md. 89; Codman v. Winslow, 10 Mass. 146, 149; First Nat. Bank of Luverne v. Jagger, 41 Minn. 308; Ellis v. Harrison, 104 Mo. 270; Paxton v. Smith, 41 Neb. 56; Camden & A. Land Co. V. Lippincott, 45 N. J. Law, 405; Sattler v. Hallock, 160 N. Y. 291, 73 Am. St. Rep. 686; Gass' Appeal, 73 Pa. 39; Williamson v. East- ern Building & Loan Ass'n, 54 S. C. 582, 71 Am. St. Rep. 822; Gray V. Clark, 11 Vt. 583; Caperton's Adm'rs v. Caperton's Heirs, 36 W. Va. 479; Hosmer v. McDonald, 80 Wis. 54. These acts may, of course, be shown by parol evidence. Knight v. New England Wor- sted Co., 2 Cush. (Mass.) 271, 283. The rule stated in the text ap- plies also to the construction of charters. Rex v. Bellringer, 4 Term R. 810; Mayor of London v. Long, 1 Camp. 22; Rex v. Varlo, Cowp. 248; Rex v. Osbourne, 4 East, 327; Attorney General v. Par- ker, 3 Atk. 577; Withnell v. Gartham, 6 Term R. 388; Blankley v. Winstanley, 3 Term R. 279; Gape v. Hanley, 3 Term R. 288, note; Master of Newcastle v. Bradley, 2 Bl. & Bl. 428. note, 16 Jur. 494; Attorney General v. Corporation of Boston, 9 Jur. 838. 58 Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14. 59Metcalf, Cont. 311; Philadelphia, W.,& B. Co. v. Trimble, 10 Wall (IT S ) 367; Pierce v. Merrill, 128 Cal. 464; Wilkins v. Young, .(Y95) § 400 CONSTRUCTION OP CONTRACT. [Ch. 9 VII. Subject-Mattee to be Considebed. In construing a contract, the court considers its subject-mat- ter, and reads it in the sense most agreeable to the nature of the contract. § 400. In general. The subject-matter of a contract is to be considered in con- struing its terms, which are to be understood in the sense most agreeable to the nature of the contract.®" Thus, a stip- ulation in a policy of marine insurance that a ship shall "sail or depart with convoy" means "convoy for the voyage," since the subject-matter of the contract is a voyage, and merely de- parting with convoy, and then proceeding alone, would be no protection to the ship on the voyage.®^ And the captain of the ship must take sailing orders, or directions as to keeping with the convoy, obeying signals, etc., else the security intend- ed by convoy would not be procured.*^ Again, a bond condi- 144 Ind. 1, 55 Am. St. Rep. 162; Fawkner v. Smith Wall Paper Co., 88 Iowa, 169, 45 Am. St. Rep. 230; Bishop v. White, 68 Me. 104, 107; Citizens' Fire Ins., Security & Land Co. v. Doll, 35 Md. 89; St. Paul & D. R, Co. V. Blackmar, 44 Minn. 514; Cortelyou v. Van Brundt, 2 Johns. (N. Y.) 357. ^ 00 Metcalf, Cont. 278 ; Doe v. Burt, 1 Term R. 701, 703 ; Mobile & M. Ry.' Co. V. Jurey, 111 XJ. S. 584; Kennedy v. Richardson, 70 Ind. 524; Pilmer v. State Bank at Des Moines, 16 Iowa, 321; Higgins v. Wasgatt, 34 Me. 305; Roberts v. Bonaparte, 73 Md. 191; Warren v. Merrifield, 8 Mete. (Mass.) 93, 96; Pratt v. Pratt, 42 Mich. 174; De Graff V. Queen Ins. Co., 38 Minn. 501, 8 Am. St. Rep. 685; Salmon Palls Mfg. Co. V. Portsmouth Co., 46 N. H. 249, 255; Penfold v. Universal Life Ins. Co., 85 N. Y. 317; Hahn v. Baker Lodge, 21 Or. 30, 28 Am. St. Rep. 723; Blakely v. Sousa, 197 Pa. 305, 80 Am. St. Rep. 821; Bailey v. Hill, 77 Va. 492; Caperton's Adm'rs v. Caper- ton's Heirs, 36 W. Va. 479. This rule is expressed in the maxim. Verba generalia restringuntur ad TiaMlitatem rei, vel aptitudinem personae. 01 Jefferyes v. Legendra, 1 Show. 297 ; Lilly v. Ewer, 1 Doug. 72. 02 Webb V. Thompson, 1 Bos. & P. 5 ; Anderson v. Pitcher, 2 Bos. & P. 164. (796) Ch. 9] WHOLE CONTRACT REGARDED. § 40I tioned that the cashier of a bank shall "well and truly" per- form his official duties includes not only honesty, but also rea- sonable discretion and diligence, since security for the faith- ful discharge of the cashier's duties would be utterly illusory if its import were to be narrowed down to a guaranty against personal fraud only.*** In these two illustrations of the rule, a consideration of the subject-matter of the contract operated to enlarge the strict terms of the promise. Illustrations in which the rule operates to the contrary will be found in an- other connection.®* In order that the subject-matter may be considered by the court in construing a contract, parol evidence is admitted to show the facts and circumstances respecting the relations of the parties, and the nature, quality, and condition of the property affected by the agreement.®" VIII. Whole Contract to be Regarded. In construing a contract, the court regards the entire agree- ment, and interprets each provision with reference to the others. Grammatical correctness will not be enforced if it will de- feat the intention of the parties as gathered from the instru- ment as a whole. Punctuation may aid in determining the intention of the parties, but it will not be allowed to defeat their evident in- tention. Obvious clerical errors will be corrected in the light of the context, and in view of the entire instrument. Correlative documents are to be construed together. Effect is to be given to every provision of the contract, if it may be done consistently with the intention of the parties. 63 Minor v. Mechanics' Bank, 1 Pet. (U. S.) 46; State Bank at Elizabeth v. Chetwood, 8 N. J. Law, 1. This rule does not apply to a mere clerk in a bank. Union Bank v. Clossey, 10 Johns. (N. Y.) 271. Contra, American Bank v. Adams, 12 Pick. (Mass.) 303. , 6* See page 807, infra. es See cases cited in note 54, supra. (797) § 401 CONSTRUCTION OF CONTRACT. [Oh. 9 However, insensible or repugnant matter may be rejected as surplusage, in order to effectuate the intention of the parties as gathered from the entire instrument. S 401. In general. " The whole contract is to be regarded in giving it a con- struction. Each provision is to be interpreted with reference to the others. The name given the transaction by the parties is not material, nor are particular expressions controlling, if the evident intent of the parties as gathered from the whole agreement runs to the contrary. Greater regard is paid to the clear intent of the parties as gathered from the fentire contract than to any particular words they may have used in attempting to give expression to their intent.*® This rule giving effect to the intention of the parties as gathered from 68Metcalf, Cont. 285; Ford v. Beech, 11 Q. B. 852, 866; Northum- berland V. Errington, 5 Term R. 522, 526; Saward v. Anstey, 2 Bing. 519, 522; Barton v. Fitzgerald, 15 Bast, 530, 541; Cleaveland v. Smith, 2 Story, 278, 287, Fed. Cas. No. 2,874; Evans v. Sanders, 8 Port. (Ala.) 497, 33 Am. Dec. 297; Hershey v. Luce, 56 Ark. 320; Stockton Sav. & Loan Soc. v. Purvis, 112 Cal. 236, 53 Am. St. Rep. 210; ScovlU v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Pensa- cola Gas Co. v. Lotze, 23 Fla. 368; Walker v. Douglas, 70 111. 445; Steinspring v. Bennett, 16 La. Ann. 201; Metcalf v. Taylor, 36 Me. 28; Chase v. Bradley, 26 Me. 531; Thayer v. Lapham, 13 Allen (Mass.) 26; Atwood v. Cobb, 16 Pick. (Mass.) 227; Heywood v. Perrin, 10 Pick. (Mass.) 228, 20 Am. Dec. 518; Plummer v. Gould, 92 Mich. 1, 31 Am. St. Rep. 567; Lindley v. Groff, 37 Minn. 338; Dederick v. Wolfe, 68 Miss. 500, 24 Am. St. Rep. 283; Hamilton v. Thrall, 7 Neb. 210; Bell v. Woodward, 46 N. H. 315; Sattler v. Hall- ock, 160 N. Y. 291, 73 Am. St. Rep. 686; Staton v. Mullis, 92 N. C. 623; Killian v. Harshaw, 29 N. C. 497; Butler v. Moses, 43 Ohio St. 166; Gibson v. Tyson, 5 Watts (Pa.) 34, 41; Arbuckle v. Kirk- patrick, 98 Tenn. 221, 60 Am. St. Rep. 854; Haldeman v. Chambers, 19 Tex. 1; Gray v. Clark, 11 Vt. 583; Fidelity Ins., Trust & Safe Deposit Co. V. Shenandoah Valley R. Co., 86 Va. 1, 19 Am. St. Rep. 858; Cobbs v. Fountaine, 3 Rand. (Va.) 484; Jacobs v. Spalding, 71 Wis. 177. This rule is expressed in the maxim. Ex antecedenti- ius et consequentiius fit optima interpretatio. (7&8) Ch. 9} WHOLE CONTRACT REGARDED. § 403 the entire instrument is in apparent conflict with the rule that words are to be understood in their literal meaning. To- gether they amount to this: "Men will be taken to have meant precisely what they have said, unless, from the whole tenor of the instrument, a definite meaning can be collected which gives a broader interpretation to specific words than their literal meaning would bear. The courts will not make an agreement for the parties, but will ascertain what their agreement was, — if not by its general purport, then by the lit- eral meaning of its words. "®'^ § 402. Grammar. The court is to ascertain the meaning of the parties by a consideration of the contract as a whole, even though, by do- ing so, it is compelled to impose an ungrammatical construc- tion upon the writing. Grammatical correctness will not be enforced so as to defeat the evident intention of the parties as gathered from the entire instrument.*^ Thus, general words grammatically applicable to only one covenant may be construed to extend to other covenants also, if the sense of the entire contract is thus more fully realized.*® § 403. Punctuation. It is upon this principle that the court will disregard punc- tuation where it would impose upon the writing a construction not warranted by a view of the contract as a whole. The oiSce of punctuation is to aid in expressing the intention of 67 Anson, Cont. (8th Ed.) 267. See page 813, infra, as to literal meaning. «8 Hancock v. Watson, 18 Cal. 138; Jackson v. Topping, 1 Wend. (N. Y.) 388; Knisely v. Shenberger, 7 Watts (Pa.) 193; Watson v. Blaine, 12 Serg. & R. (Pa.) 131, 14 Am. Dec. 669; Gray v. Clark, 11 Vt. 583. 69 Young V. Raincock, 7 C. B. 340; Browning v. Wright, 2 Bos. & P. 13. And see Morey v. Homan, 10 Vt. 565. (799) § 404 CONSTRUCTION OF CONTRACT. [Ch. 9 the parties, not to control or defeat that intention.'" How- ever, in gathering the intention of the parties, the court takes into consideration the punctuation of the document, and, if conflicting theories of construction are equal, punctuation might turn the scale in favor of the one or the other. It is only when the punctuation does violence to the evident intent of the parties that it is disregarded.'^^ § 404. Clerical errors. For the same reason, obvious clerical errors, in whatsoever consisting, will be corrected in the light of the context, and in view of the entire instrument;'^ as, for instance, where there is an obvious omission from the contract, and it is appa- rent what word the parties intended to insert. Such an omis- sion will be supplied by the court.'^ But clerical errors may TO Doe d. Willis v. Martin, 4 Term R. 39, 65; Bwing's Lessee v. Burnet, 11 Pet. (U. S.) 41; Osborn v. Farwell, 87 111. 89; White v. Smith, 33 Pa. 186; Amory Mfg. Co. v. Gulf, C. & S. F. Ry. Co., 89 Tex. 419, 59 Am. St. Rep. 65. The absence of punctuation is immaterial if the intention of the parties can be gathered without it. English's Bx'r v. McNair's Adm'rs, 34 Ala. 40, 51. 71 Swing's Lessee v. Burnet, 11 Pet. (U. S.) 41; Osborn v. Far- well, 87 111. 89; White v. Smith, 33 Pa. 186; Caston v. Brock, 14 S. C. 104; Amory Mfg. Co. v. Gulf, C. & S. F. Ry. Co., 89 Tex. 419, 59 Am. St. Rep. 65. 72 Hogans v. Carruth, 19 Fla. 84, 90; Fowler v. Woodward, 26 Minn. 347; Bennehan v. Webb, 28 N. C. 57. Mere verbal criticism should not be resorted to in construing con- tracts. Caldwell v. Layton, 44 Mo, 220. An obvious confusion of proper names may be corrected by the court. Wilson v. Wilson, 5 H. L. Cas. 40, 66; Ferguson v. Harwood, 7 Cranch (U. S.) 408, 414; Hibbard v. McKindley, 28 111. 240. T3Whitsett V. Womack, 8 Ala. 466; Atlanta & W. P. R. Co. v. Speer, 32 Ga. 550; Dodd v. Mitchell, 77 Ind. 388; De Soto Co. v. Dickson, 34 Miss. 150; Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 39 Am. St. Rep. 626; Bennehan v. Webb, 28 N. C. 57; Kincannon v. Carroll, 9 Yerg. (Tenn.) 11. Thus, the court may supply the word "dollars" or "pounds," which has been omlt- (800) Ch. 9] WHOLE CONTRACT REGARDED. § 405 not be disregarded or corrected under all circumstances. This may be done only when the intent of the parties clearly appears in spite of the error.'''' § 405. Correlative documents. Correlative documents are to be construed together; that is to say, if two or more instruments are executed at the same time, between the same parties, with reference to the same subject-matter, they must, as a rule, be construed together as forming a single contract.''^ This rule is given effect, in the ted from a contract for the payment of money. Phipps v. Tanner, 5 Car. & P. 488; Coles v. Hulme, 8 Barn. & C. 568; Butler v. Bohn, 31 Minn. 325; Harman v. Howe, 27 Grat. (Va.) 676. TiFowle V. Bigelow, 10 Mass. 379, 383; Frazier v. Monroe, 72 Pa. 166. And see cases cited in the two preceding notes. 75 Weeks v. Maillardet, 14 East, 568; Coldham v. Showier, 3 0. B. 312; Mobile & M. Ry. Co. v. Gilmer, 85 Ala. 422; Sewell v. Henry, 9 Ala. 24; Isham v. Morgan, 9 Conn. 374, 23 Am. Dec. 361; Wilson V. Roots, 119 111. 379; City of Alton v. Illinois Transportation Co., 12 111. 38; Wood v. Ridgeville College, 114 Ind. 320; Wichita Univer- sity V. Schweiter, 50 Kan. 672; Clap v. Draper,' 4 Mass. 266, 3 Am. Dec. 215; McNamara v. Gargett, 68 Mich. 454, 13 Am. St. Rep. 355; Sutton v. Beckwith, 68 Mich. 303, 13 Am. St. Rep. 344; Jennings v. Todd, 118 Mo. 296, 40 Am. St. Rep. 373; Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653; Berry v. Wisdom, 3 Ohio St. 241; Bradt- feldt V. Cooke, 27 Or. 194, 50 Am. St. Rep. 701; Cordray v. Mordeoai, 2 Rich. Law (S. C.) 518; Dunlap's Adm'r v. Wright, 11 Tex. 597, 62 Am. Dec. 506; Coughran v. Bigelow, 9 Utah, 260; Raymond v. Rob- erts, 2 Aiken (Vt.) 204, 16 Am. Dec. 698; Hagerty v. White, 69 Wis. 317. On the other hand, stipulations included in the same writing may be construed to be different and distinct contracts. Berryman v. Hewit, 6 J. J. Marsh. (Ky.) 462. The rule stated in the text will not be applied against the evident intention of the parties to the contrary. Weber v. Rothchild, 15 Or. 385, 3 Am. St. Rep. 162. If an agreement is executed in duplicate, and there are variances between the two copies, neither controls, as a rule, and they must be read together to ascertain what the parties intended. Morss v. Salisbury, 48 N. Y. 636. Printed matter on a letter head forms no part of the letter writ- (801) Law of Cent. — 51 § 406 CONSTRUCTION OF CONTRACT. [Ch. 9 absence of statute, even though isp reference is made in either instrument to another/® and even though they were executed at different times ;'''^ provided that it is made to appear in these cases that the documents evidence but one contract. To render this rule effectual, parol evidence is admitted to show that several documents that appear to be independent are connected parts of one transaction, and accordingly form one contract.'^® § 406. Entire contract to be given effect. Construction is to be such that every part of the contract may take effect, if this may be done consistently with other rules of law and with the intention of the parties.''^ A famil- ten thereon, and does not, therefore, qualify either an offer con- tained in the letter or an acceptance of the offer. Summers v. Hib- bard, 153 111. 102, 46 Am. St. Rep. 872. 78 Bailey v. Hannibal & St. J. R. Co., 17 Wall. (U. S.) 96, 108; Wood V. Bibbins, 58 Ind. 392; Sawyer v. Hammatt, 15 Me. 40; Hunt V. Frost, 4 Cush. (Mass.) 54; Cooper v. Shaver, 101 Pa. 547. 7T Stuckey v. Bailey, 3 Fost. & F. 1; Casey v. Holmes, 10 Ala. 776; Chicago Trust & Sav. Bank v. Chicago Title & Trust Co., 190 111. 404, 83 Am. St. Rep. 138; Stacey v. Randall, 17 111. 467; Sawyer v. Hammatt, 15 Me. 40; Walker v. Boynton, 120 Mass. 349; Reed v. Lammel, 28 Minn. j06. See Van Hagen v. Van Rensselaer, 18 Johns. (N. Y.) 420; Thompson v. McClenaehan, 17 Serg. & R. (Pa.) 110. 78 Edwards v. Aberayon Mut. Ship Ins. Soc, 1 Q. B. Div. 563, 587; Casey v. Holmes, 10 Ala. 776; Myers v. Munson, 65 Iowa, 423; Ber- gan V. Williams, 138 Mass. 544; Beer v. Aultman-Taylor Co., 32 Minn. 90; Colby v. Dearborn, 59 N. H. 326, HufiCcut & W. Am. Cas. Cont. 501; Wilson v. Tucker, 10 R. I. 578; Blake v. Coleman, 22 Wis. 396. Contra, Hennersbotz v. Gallagher, 124 Pa. 1. This is not true as to contracts that the statute ot frauds requires to be in writing. See page 604, supra. 78 Metcalf, Cont, 287; Doe d. Phillips' Heirs v. Porter, 3 Ark. 18; Randel v. Chesapeake & D. Canal Co., 1 Har. (Del.) 151; Lake Brie & W. R. Co. V. Whitham, 155 111. 514, 46 Am. St. Rep. 355; City of Alton v. Illinois Transportation Co., 12 111. 37; Corbln v. Healy, 20 Pick. (Mass.) 514, 515; Sattler v. Hallock, 160 N. Y. 291, 73 Am. St. Rep. 686; Ward v. Whitney, 8 N. Y. 442, 446; Hazelton Coal Co. (802) Ch. 9] WHOLE CONTRACT REGARDED. § 407 iar illustration of this rule is one given by Lord Hobart: "If," he says, "I have in D. black acre, white acre, and green acre, and I grant unto you all my lands in D., — that is to say, black acre and white acre, — ^yet green acre shall pass too."*** § 407. Surplusage. Surplusage may be rejected in construing a contract, so as to give effect to the intention of the parties as evidenced by the entire contract.*^ Thus, if the subject-matter of a con- tract is otherwise adequately described, the agreement is not vitiated by the fact that it contains details of description that are erroneous.^^ So, a clause which has meaning, but which is repugnant to the intention of the parties as shown by the entire contract, may be regarded as surplusage, and accord- ingly rejected.** Thus, where A. acknowledged the receipt V. Buck Mountain Coal Co., 57 Pa. 301; Collins v. Lavelle, 44 Vt 230. 80 Stukeley v. Butler, Hob. 168, 172. The following cases are in accord with this illustration: Cummings v. Browne, 61 Iowa, 385; Willard v. Moulton, 4 Me. 14; Child v. Fieket, 4 Me. 471. 81 Cope V. Cope, 15 Sim. 118; Whittseck v. Womack, 8 Ala. 466; Berry v. Kowalsky, 95 Cal. 134, 29 Am. St. Rep. 101; Harrison v. McCormick, 89 Cal. 327, 23 Am. St. Rep. 469; Clark v. Powers, 45 111. 283; Iredell v. Barbee, 31 N. C. 250; Bennehan v. Webb, 28 N. C. 57. If an unauthorized condition is added to a statutory bond, it may be rejected as surplusage. United States v. , 1 Brock, 195, Fed. das. No. 14,413 ; Walker v. Chapman, 22 Ala. 116 ; Hall v. Cush- ing, 9 Pick. (Mass.) 395. 82Lambe v. Reaston, 5 Taunt. 207; Brown v. Huger, 21 How. (U. S.) 305; Cleaveland v. Smith, 2 Story, 278, 287, Fed. Cas. No. 2,874; Phillips' Heirs v. Porter, 3 Pike (Ark.) 18; Harris v. Hull, 70 Ga. 831; Getchell v. Whittemore, 72 Me. 393; Worthington v. Hylyer, 4 Mass. 196; Shewalter v. Pirner, 55 Mo. 218; Woods v. Hart, 50 Neb. 497; DrlscoU v. Green, 59 N. H. 101; White v. Williams, 48 N. Y. 344; Miller v. Cherry, 56 N. C. 24, 29; Jackson v. Hodges, 2 Tenn. Ch. 276. ssMetcalf, Cont. 290; Bldridge v. See Yut Co., 17 Cal. 44; Case v. Dwire 60 Iowa, 442; Erskine v. Moulton, 66 Me. 276; Emerson v. (803) § 407 CONSTRUCTION OF CONTRACT. [Ch. 9 of certain tobacco in part payment of his claim against B., "ke, the said A.," to be allowed per cent, the highest six months' credit price, the words "the said A." may be rejected, as repugnant to the clear intent of the parties.^* And where the condition of a bond for the payment of money is that the bond shall be void if the money is "not" paid, the quoted word may be rejected for the same reason.*^ This rule as to surplusage does not authorize the court to reject material words or provisions in construing a contract. To justify its rejection, the matter must be insensible and superfluous,*^ or else repugnant to the evident intent of the parties. And re- pugnant matter may be rejected only in cases where there is a full and intelligible contract left to operate after the re- pugnant matter is excluded ; otherwise, the whole contract, or such separable parts of it as are defective, will be pro- nounced void for uncertainty. *'' IX. Conflicting Clauses. It is a rule of construction at common law that, of conflicting clauses in a deed of conveyance, the first controls; and some courts apply the rule to contracts in general. The rule has been criticised, however, and might better be stated to be that, if clauses of a contract are repugnant, the one which expresses the chief object of the agreement must prevail. General words in a contract will not be given their full effect White, 29 N. H. 482; Butterfleld v. Cooper, 6 Cow. (N. Y.) 481; Waterman v. Andrews, 14 R. I. 589; Flagg v. Eames, 40 Vt. 16. 84 Ferguson v. Harwood, 7 Ccanch (U. S.) 408, 414. SBBacbe v. Proctor, 1 Doug. 382, 384; Wells v. Tregusan, 2 Salk. 483; Stockton v. Turner, 7 J. J. Marsh. (Ky.) 192; Gully v. Gully, 8 N. C. 20. 80 Harrison v. McCormick, 89 Cal. 327, 23 Am. St. Rep. 469; City of Decorah v. Kesselmeler, 45 Iowa, 166; Churchill v. Reamer, 8 Bush (Ky.) 256, 260; Heywood v. Heywood, 42 Me. 229, 233; Worth- ington V. Hylyer, 4 Mass. 196. sTMetcalf, Cont. 292; Ford v. Unity Church Soc, 120 Mo. 498, 41 Am. St. Rep. 711. And see the cases cited in note 83, supra. (804) Ch. 9] CONFLICTING CLAUSES. § 408 if an intention to the coatrary appears from a view of the entire instrument. Thus: (a) A clause in wider terms, following a specific enumera- tion, will generally be restricted to things of a like sort with those named. (b) Eecitals in a contract may limit general words there- in. In case of conflict between written and printed clauses, the writing governs; and as between figures and words intended to express the same number, the words control. Conditions, exceptions, reservations, and provisos are strictly construed against the person in whose favor they are intro- duced; nor will the law permit a thing which is expressly granted, covenanted, or promised to be defeated by subsequent restrictions. i 408. Of incompatible clauses, the first prevails. "The old books say," says Mr. Justice Metcalf,®^ "that, if there be two clauses or parts of a deed repugnant the one to the other, the first part shall be received, and the latter rejected, unless there be some special reason to the contrary," but in modern times, be continues, the rule "has very little operation. A 'reason to the contrary' is almost always found. The rules of construction now applied in cases of repugnancy give effect to the whole and every part of a * * * contract, when that is consistent with the rules of law and the intention of the party. And when this is impossible, the part which is repugnant to the general intention, or to an obvious particu- lar intention, is wholly rejected. Parts which were once re- garded as repugnant are now deemed consistent." JSTeverthe- less, the rule is a subsisting one;®^ and in some courts it is 88 Metcalf, Cont. 290. For an early statement of the rule, see Cother v. Merrick, Hardr. 89, 94. 89 Phillips' Heirs v. Porter, 3 Pike (Ark.) 18; Saunders v. Hanes, 44 N. Y. 353; Jackson v. Ireland, 3 Wend. (N. Y.) 99, 102; Green Bay & M. Canal Co. v. Hewett, 55 Wis. 96, 42 Am. Rep. 701. Contra, (805) § 408 CONSTRUCTION OF CONTRACT. [Ch. 9 given effect, not only with reference to deeds of conveyance, but also to contracts in general.®" However, the rule will not be applied in a case where it would defeat the evident in- tention of the parties as gathered from the entire contract f^ and it has been said, moreover, that the rule is resorted to only when all other means of ascertaining the intention of the parties have failed.®^ In applying the rule to contracts other than deeds of conveyance, the court should proceed with caution, and with a view of the form and object of the partic- ular contract before it. In its application to deeds, the rule probably results in an enforcement of the general intention of the parties ; but to apply it to all contracts, without regard to their particular form and object, would often result in a per- version of that intention. Having reference to contracts in general, it is therefore probably more in consonance with rea- son and authority to say that, if clauses of a contract are re- pugnant, that one which expresses the chief object of the agreement must prevail, while clauses containing subordinate provisions must give way.®* Bodine's Adm'rs v. Arthur, 91 Ky. 53, 34 Am. St. Rep. 162. The rule is subject to this qualification, however: the law construes that part of a deed to precede which ought to take precedence, no matter in what part of the instrument it may in fact be found. Phillips' Heirs v. Porter, 3 Pike (Ark.) 18. For application of the rule to exceptions, reservations, provisos, and conditions, see page 811, infra. 00 Straus v. Wanamaker, 175 Pa. 213, 226; Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. Ill, 60 Am. St. Rep. 86. 01 Wiggins Ferry Co. v. Ohio & M. Ry. Co., 72 111. 360; Brskine V. Mpulton, 66 Me. 276, 280; Fogarty v. Stack, 86 Tenn. 610. See Greenfield v. Gilman, 140 N. Y. 168, 175. 02 B-ush v. Watkins, 14 Beav. 425, 432. 03 Note, 60 Am. St. Rep. 94 ; A. B. Dick Co. v. Sherwood Letter File Co., 157 in. 325, 337; Grand Rapids & B. C. R. Co. v. Van Dusen, 29 Mich. 431, 441; First Nat. Banli of Brandon v. Briggs' Assignees, 69 Vt. 12, 60 Am. St. Rep. 922. (806) , Ch. 9] CONFLICTING CLAUSES. | 409 § 409. Restriction of general words. General words in a contract will not be given their full effect if it is apparent from a view of the entire instrument that such was not the intention of the parties.** Thus, spe- cific words of description in a deed of conveyance will limit and control general words of description therein;®^ as where the owner of three-fourths of a tract of land granted a moiety thereof by metes and bounds, with all the estate, right, title, etc., which he had "in the above-described premises." The latter words were construed with reference to the granting clause, and only a moiety of his estate passed by the deed.*® Again, a general covenant for quiet enjoyment of land is lim- ited by the subject-matter of the contract, and accordingly extends only to evictions and disturbances by title.*'' Guar- anties and letters of credit are also construed strictly with ref- erence to their subject-matter; the generality of the words being restrained to the particular case in view of the guaran- tor in all instances in which such a course is not inconsistent with the terms employed.** However, this rule will not be applied so as to defeat the evident intention of the parties. If they meant that the broader words should have full effect, their intent will govern.^* 94 Hesse v. Stevenson, 3 Bos. & P. 565, 574; Folsom v. McDon- ough, 6 Cush. (Mass.) 208; Heywood v. Perrin, 10 Pick. (Mass.) 228; Whallon v. Kauffman, 19 Johns. (N. Y.) 97. 05 Doe d. Smith v. Galloway, 5 Barn. & Adol. 43 ; Jenner v. Ten- ner, L. R. 1 Eq. 361; Cleavela,nd v. Smith, 2 Story, 279, Fed. Cas. No. 2,874; Emery v. Fowler, 38 Me. 99; Bosworth v. Sturtevant, 2 Cush. (Mass.) 392; Dawes v. Prentice, 16 Pick. (Mass.) 435; Cun- ningham V. Curtis, 57 N. H. 157; Butler v. Widger, 7 Cow. (N. Y.) 723; Blasdell v. Bissell, 6 Pa. 258. 86 Stevens v. Stevens, 16 Johns. (N. Y.) 110. 9T Chanudflower v. Prestley, Yel. 30; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1. And see Thorne v. Clark, 112 Iowa, 548, 84 Am. St. Rep. 356. 98 Metcalf, Cent. 283 ; Melville v. Hayden, 3 Barn. & Aid. 593. See, also, page 817, infra. 99 White V. Luning, 93 U. S. 514; Holmes v. Martin, 10 Ga. 503; (807) § 409 CONSTRUCTION OP CONTRACT. [Ch. 9 A clause in wider terms, following a specific enumeration, will generally be restricted to things of a like sort with those enumerated. The object of a sweeping clause is to guard against accidental omission, and it is construed to refer to things of the same nature and description with those previ- ously mentioned.^*"' Thus, if a man receives a sum certain, and gives a receipt for it, and thereby in terms releases the payor of all debts and demands, the last words are limited by the first, and nothing is released but the sum mentioned.^"^ If, however, the contract shows an intent that the general words shall have effect, the court will give them full force.^"^ Upon the same principle, where parties enter into written engagements with express stipulations, the presumption is that, having expressed some, they have expressed all the con- ditions by which they intend to be bound under that instru- ment ;^'*^ but if an intention to the contrary appears, it will prevail.^"* Hamilton v. Foster, 45 Me. 32; Estabrook v. Smith, 6 Gray (Mass.) 572; Emigrant Industrial Sav. Bank v. Roche, 93 N. Y. 374. looMetcalf, Cent. 280; Cullen v. Butler, 5 Maule & S. 461, 465; Moor's Lessee v. Moor, Loffit, 398 ; Phillips V. Barber, 5 Barn. & Aid. 161, 164; Stettauer v. Hamlin, 97 111. 312; Ellery v. New England Ins. Co., 8 Pick. (Mass.) 14, 20; Vaughan v. Porter, 16 Vt. 266; Rountree v. Denson, 59 Wis. 522. This rule is included in the maxim, Expressio unius est exclusio alterius. 101 payler v. Homersham, 4 Maule & S. 423; Lampon v. Corke, 5 Barn. & Aid. 606; Thorpe v. Thorpe, 1 Ld. Raym. 235; Lyall v. Edwards, 6 Hurl. & N. 337; Lyman v. Clark, 9 Mass. 235. This rule does not apply, of course, where the general words of release stand alone. Metcalf, Cont. 280; Thorpe v. Thorpe, 1 Ld. Raym. 235; Pierson v. Hooker, 3 Johns. (N. Y.) 68. 102 Ringer v. Cann, 3 Mees. & W. 343; Corwin v. Hood, 58 N. H. 401. io3Aspdin v. Austin, 5 Q. B. 671, 684. 10-4 The maxim, Expressio unius exolusio alterius est, as applied to stipulations in contracts, will not be allowed to defeat the evi- dent intention of the parties. It does not exclude all implied stip- ulations simply because one stipulation is expressed. It excludes only those of the same nature with that expressed, or relating to (808) Ch. 9] CONFLICTING CLAUSES. § 409 Recitals in a contract may limit general words therein.^ "^ Thus, if the condition of a bond is larger than the recital, the recital is construed to restrain it.^"^ An illustration of this occurs where the bond recites that the obligee has accepted, indorsed, etc., divers bills of exchange for the accommoda- tion of X., several of which are outstanding, and, in order to indemnify the obligee in respect thereof from all losses, char- ges, etc., the obligor stipulates to pay all that the obligee has advanced or shall thereafter advance on account of X. The recital confines the condition to payments in respect of bills accepted before the date of the bond.^"'' Again, if the con- dition of a bond is for the good conduct of a person in an office which is annual, though the condition purports to be commensurate with his continuance in office, and he is re-elect- ed or reappointed, yet the obligor is liable only during the continuance of the office under the first election or appoint- ment.-^"® However, a recital will not be construed to limit general words in a manner inconsistent with the evident in- a similar particular, such as the parties might reasonably be sup- posed to have had in mind and have Intentionally excluded when they made the contract. Gage v. Tlrrell, 9 Allen (Mass.) 299, 305. losBoyes v. Bluck, 13 C. B. 652; Walsh v. Trevanion, 15 Q. B. 733, 751; Rich v. Lord, 18 Pick. (Mass.) 322; Woodruff v. Morristown Savings Institution, 34 N. J. Bq. 174. 106 Stoughton V. Day, Style, 18, Aleyn, 10; Arlington v. Merricke, 2 Saund. 411: Bell v. Bruen, 1 How. (U. S.) 169; Bennehan v. Webb, 28 N. C. 57; Sanger v. Baumberger, 51 Wis. 593. 107 Pearsall v. Summersett, 4 Taunt. 593. 108 Hassell v. Long, 2 Maule & S. 363; Board of Adm'rs v. Mc- Kowen, 48 La. Ann. 251, 55 Am. St. Rep. 275; Bigelow v. Bridge, 8 Mass. 275; Com. v. Baynton, 4 Dall. (Pa.) 282; South Carolina Ins. Co. V. Smith, 2 Hill (S. C.) 589; First Nat. Bank of Brandon v. Briggs' Assignees, 69 Vt. 12, 60 Am. St. Rep. 922; Com. v. Fairfax, 4 Hen. & M. (Va.) 208. And see Liverpool Water Works v. Atkin- son, 6 East, 507; Chelmsford Co. v. Demarest, 7 Gray (Mass.) 1. It is otherwise, however, if the office is not by law an annual one, even though the officer is annually elected or appointed. Curling V. Chalklen, 3 Maule & S. 502; Dedham Bank v. Chickering, 3 Pick. (Mass.) 335. (809) § 410 CONSTRUCTION OF CONTRACT. [Ch. 9 tent of the parties as gathered from a view of the entire con- tract.i°3 § 410. Writing controls printing. In modern times, many kinds of contract are drawn up on printed forms in which blanks are left by the printer to be filled in with writing to suit the peculiarities of the particu- lar case. As the printed words are general, being intended for any like occasion, and the written words were specially selected by the parties for the particular case, the latter will govern in case of conflict between them and the former.-^^" However, this rule will not be enforced so as to defeat the in- tention of the parties; and the printed stipulations will therefore give way to those in writing only so far as it ap- pears that the parties intended to modify or disregard them.^^^ And the rule is resorted to only in a case of neces- sity. To justify an application of it, there must be an irrec- oncilable inconsistency between the clauses in writing and those in printing. -^^^ An analogous rule that may be mentioned here is that, where the same number is intended to be expressed both by 109 Sansom v. Bell, 2 Camp. 39; Watson v. Boylston, 5 Mass. 411. 110 Joyce V. Realm Marine Ins. Co., L. R. 7 Q. B. 580, 583; Dudgeon V. Pembroke, 2 App. Cas. 284; Robertson v. French, 4 Bast, 130, 136 Hernandez v. Sun Mat. Ins. Co., 6 Blatchf. 317, Fed. Cas. No. 6,415 Thornton v. Sheffield & B. R. Co., 84 Ala. 109, 5 Am. St. Rep. 337 Summers v. Hibbard, 153 111. 102, 46 Am. St. Rep. 872; Goss v. Cit- izens' Ins. Co., 18 La. Ann. 97; Smith v. Flanders, 129 Mass. 322, 323; Murray v. Pillsbury, 59 Minn. 85; Chadsey v. Guion, 97 N. Y. 333; Benedict V. Ocean Ins. Co., 31 N. Y. 389; Commonwealth Title Ins. & Trust Co. v. Ellis, 192 Pa. 321, 73 Am. St. Rep. 816; Gilbert V. Stockman, 76 Wis. 62, 20 Am. St. Rep. 23. 111 Goicoechea v. Louisiana State Ins. Co., 6 Mart. (N. S.) 51, 17 Am. Dec. 175; Frost's Detroit Lumber & Wooden Ware Works v. Millers' & Manufacturers' Mut. Ins. Co., 37 Minn. 300, 5 Am. St. Rep. 846. iiaMichaelis v. Wolf, 136 111. 68; Miller v. Hannibal & St. J. R. Co., 90 N. Y. 430, 43 Am. Rep. 179. (810) Ch. 9] CONFLICTING CLAUSES. § 4]! words and by figures, and there is conflict between the two, the words control. -^^^ §411. Conditions, exceptions, reservations, and provisos. Conditions, exceptions, reservations, and provisos are to be strictly construed against the person in whose favor they are introduced ;i" nor will the law permit a thing which is expressly granted, covenanted, or promised to be defeated by subsequent restrictions."^ An exception or a proviso which would nullify the grant, if given effect, is void."^ Thus, if there be a demise of described lands and woods, except the woods, the exception is void ; and if there be a lease for years to a man and his assigns, provided he shall not assign, the proviso is void."'^ And a condition which is so repugnant to the grant as to utterly defeat it is void ajid without effect."* 113 Story, Prom. Notes, § 21; Bradshaw v. Bradbury, 64 Mo. 334. ii*Stukeley v. Butler, Hob. 168, F. Moore, 880; Earl of Cardigan V. Armitage, 2 Barn. & C. 197, 206; Taylor v. Liverpool & G. W. Steam Co., L. R. 9 Q. B. 546; Bullen v. Denning, 5 Barn. & C. 842; House v. Palmer, 9 Ga. 497; City of Fort Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 32 Am. St. Rep. 277; Cocbeco Mfg. Co. v. Whittier, 10 N. H. 305; Grafton v. Moir, 130 N. Y. 465, 27 Am. St. Rep. 533; Duryea v. City of New York, 62 N. Y. 592; Jackson T. Lawrence, 11 Johns. (N. Y.) 191. It has been said that the rule Is otherwise as to conditions in bonds. Butler v. Wigge, 1 Saund. 65, 66; Bennehan V. Webb, 28 N. C. 57. ii5Eldridge v. See Yup Co., 17 Cal. 44; Ricketts v. Louisville, St. L. & T. Ry. Co., 91 Ky. 221, 34 Am. St. Rep. 176; Cutler v. Tufts, 3 Pick. (Mass.) 272, 278; Robinson v. Payne, 58 Miss. 690; Haeussler v. Missouri Iron Co., 110 Mo. 188, 33 Am. St. Rep. 431; Salmon Falls Mfg. Co. V. Portsmouth Co, 46 N. H. 249, 255; Saunders v. Hanes, 44 N. Y. 353; Hardy v. Galloway, 111 N. C. 519, 32 Am. St. Rep. 828. 116 Furnivall v. Coombes, 5 Man. & G. 736, 6 Scott, N. R. 522; Benjamin v. McConnel, 9 111. 536, 46 Am. Dec. 474. For instance, if a covenant creating a personal liability is followed by a proviso that the covenantor shall not be personally liable upon the cove- nant, the proviso is void. Williams v. Hathaway, 6 Ch. Div. 544. 117 Stukeley v. Butler, Hob. 168, 172, 173, F. Moore, 880. 118 Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 682; Case v. Dwire, (811) § 412 CONSTRUCTION OF CONTRACT. [Ch. 9 However, general or doubtful clauses precedent may be limited or explained by subsequent words not repugnant to the express grant, covenant, or promise ;^^^ and the rule that a condition, exception, reservation, or proviso which is repugnant to the granting part of a deed is void applies only in cases where the repugnancy is such that the intention of the parties cannot be ascertained from the whole instrument, or, if ascertained, cannot be carried into effect in accordance with established principles of law.^^* X. Meaning op Particulae Teems. As a rule, the words of a contract are to be taken in their ordinary and popular sense, rather than in their strict gram- matical or etymological meaning. Subject tp this i;ule, words are ordinarily to be understood in their plain and literal meaning. To these rules there are two exceptions, namely: (a) Technical words, formally employed, will be given their technical sense, rather than their popular meaning. (b) Words having a peculiar meaning attached to them by usage will be taken in that sense, if it comports with the intention of the parties. Subject to certain qualifications and exceptions, it is a rule of construction that ambiguous words are to be taken most strongly against the party that introduced them into the con- tract. § 412. Popular and literal meaning — ^In' general. As a rule, the terms of a contract are to be understood in 60 Iowa, 442; Ricketts v. Louisville, St. L. & T. Ry. Co., 91 Ky. 221, 34 Am. St. Rep. 176; Hartung V. Wltte, 59 Wis. 285, 293. 119 Metcalf, Cont. 291 ; Stukeley v. Butler, Hob. 168, P. Moore, 880; Doe d. Jackson v. Ashburne, 5 Term R. 163; Holmes v. Martin, 10 Ga. 503; Moore v. Griffin, 22 Me. 350; Cutler v. Tufts, 3 Pick. (Mass.) 272. 278. 120 Bassett v. Budlong, 77 Mich. 338, 18 Am. St. Rep. 404. (812) Ch 9] PARTICULAR TERMS. § 412 their ordinary and popular sense, rather than in their strict grammatical or etymological meaning.^^^ Subject to this rule, words are ordinarily to be understood in their plain and literal meaning; and this is true, even though such a construction may lead to consequences which the parties did not in fact contemplate when they entered into the agreement. Having chosen the words, they are bound by them.^^^ In the absence of obscurity or ambiguity, there- fore, parol evidence is not admissible to attach a special meaning to words of a common signification by showing that the parties used them in a particular sense.^^^ However, the literal meaning will not be adopted by the court against the intention of the parties as evidenced by the entire contract.^^* i2iMetcalf, Cont. 275; Hemet v. Painter, 1 Bulst. 174; Robertson v. French, 4 East, 130, 135; Taylor v. Corporation pf St. Helens, 6 Ch. Div. 264, 270; Stanley v. Western Ins. Co., L. R. 3 Exch. 71; Ware v. Hylton, 3 Dall. (U. S.) 199, 240; Stettauer v. Hamlin, 97 111. 312; Stearns v. Sweet, 78 111. 446; Willmering V. McGaughey, 30 Iowa, 205; RindskofC v. Barrett, 14 Iowa, 101; Grant t. Dabney, 19 Kan. 388; Hawes v. Smith, 12 Me. 429; Hall v. Farmers' Nat. Bank of Annapolis, 53 Md. 120; Bradshaw v. Bradbury, 64 Mo. 334; Moore v. Phoenix Ins. Co., 62 N. H. 240, 13 Am. St. Rep. 556, Huffcut & W. Am. Cas. Cont. 531; Mansfield & S. C. R. Co. v. Veeder, 17 Ohio, 385; Schuylkill Navigation Co. v. Moore, 2 Whart. (Pa.) 477, 491; Monongahela Navigation Co. v. Coons, 6 Watts & S. (Pa.) 101, 114. Words should be understood as the parties evidently intended. Con well V. Pumphrey, 9 Ind. 135; Warn v. Brown, 102 Pa. 347. Words should be given a reasonable meaning. Wadlington v. Hill, 10 Smedes & M. (Miss.) 560. 122 Anson, Cont. (SthEd.) 267; Mallan v. May, 13 Mees. & W. 511; Biddlecombe v. Bond, 4 Adol. & E. 332; Canterberry v. Filler, 76 111. 355; Maryland Coal Co. v. Cumberland & P. R. Co., 41 Md. 343, 352; Rogers v. Danforth, 9 N. J. Eq. 289; Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Noyes v. Nichols, 28 Vt. 159. See, in this connection, page 783, supra. 123 Bullock V. Consumers' Lumber Co. (Cal.) 31 Pac. 367; McAvoy V. Long. 13 111. 147; Pillsbury v. Locke, 33 N. H. 96; Armstrong v. Lake Champlain Granite Co., 147 N. Y. 495, 49 Am. St. Rep. 683; Abraham v. Oregon & C. R. Co., 37 Or. 495, 82 Am. St. Rep. 779. See, also, page 783, supra. 124 Thus, the word "give" in a contract may be construed to mean (813) § 412 CONSTRUCTION OP CONTRACT. [Ch. 9 Exceptions. , To these rules there are two exceptions, — one dealing with technical words, formally employed ; the other dealing with words which have been given a peculiar meaning by usage. Same — Technical words. Words having an accepted technical meaning in relation to a particular subject, and also a popular meaning, are to be taken in their technical sense, where they are employed in writings relating to that subject.^^' Thus, technical words in a deed are to be construed according to their accepted legal meaning.^^* Same — Usage. If a term employed in a contract has acquired a peculiar meaning by usage, whether mercantile or otherwise, the courts will give it that signification in order to effectuate the intention of the parties in the particular case ; and this is true, even though the special meaning differs from the popular or ordinary sense of the word, and from its strict grammatical or etymological meaning.-'^'' To render this rule effective, "convey," so as to effectuate the intention of the parties as shown by the entire transaction. Carter v. Alexander, 71 Mo. 585. And see page 798, supra. The literal meaning may be departed from if it leads to absurdity, or violates the evident intention of the parties. Wallis v. Smith, 21 Ch. Div. 243, 257. And see page 781, supra. 125 willmering v. McGaughey, 30 Iowa, 205; Maryland Coal Co. v. Cumberland & P. R. Co., 41 Md. 343, 352; Baton v. Smith, 20 Pick. (Mass.) 150; Ellmaker v. Ellmaker, 4 Watts (Pa.) 89; Hart v. Hammett, 18 Vt. 127; Pindley's Bx'rs v. Pindley, 11 Grat. (Va.) 434. 126 Metealf, Cont. 277; Line v. Stephenson, 5 Bing. N. C. 183; Mostyn v. West Mostyn Coal & Iron Co., 1 C. P. Div. 145; Taylor v. Corporation of St. Helens, 6 Ch. Div. 264, 270. 12T Metealf, Cont. 275; Brough v. Whitmore, 4 Term R. 206, 210; Anderson v. Pitcher, 2 Bos. & P. 164, 167; Taylor v. Briggs, 2 Car. & P. 525 ; Doe d. Hall v. Benson, 4 Barn. & Aid. 588 ; Furley v. Wood, ' 1 Esp. 198; Van Ness v. Pacard, 2 Pet. (U. S.) 137, 148; Washington Bank v. Triplett, 1 Pet. (U. S.) 25; Leach v. Beardslee, 22 Conn. (814) Ch. 9] PARTICULAR TERMS. § 413 parol evidence is admissible to attach, to the terms of a con- tract a special meaning which it has acquired by usage.-' ^* The rule that usage is to govern in the application of lan- guage does not prevail, however, unless the terms of the con- tract are on their face general or doubtful ; for the rule will not be allowed to defeat the apparent intention of the parties. If, therefore, definite words are evidently employed in a sense inconsistent with the special meaning given them by usage, that meaning will not be adopted by the court.^^* § 413. Ambiguous words — In general. It is a rule of law, as well as of ethics, that, where the lan- guage of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had rea- 404; Pilmer v. State Bank at Des Moines, 16 Iowa, 321; Rindskoff V. Barrett, 14 Iowa, 101; Destrehan v. Louisiana Cypress Lumber Co., 45 La. Ann. 920, 40 Am. St. Rep. 265; Perkins v. Jordan, 35 Me. 23; Robinson v. Fiske, 25 Me. 401; Appleman v. Fisher, 34 Md. 540; Seccomb v. Provincial Ins. Co., 10 Allen (Mass.) 305, 313; Warren Bank in Danvers v. Parker, 8 Gray (Mass.) 221; Maurin v. Lyon, 69 Minn. 257, 65 Am. St. Rep. 568; Moore v. Phoenix Ins. Co., 62 N. H. 240, 13 Am. St. Rep. 556, HufCcut & W. Am. Cas. Cont. 531; Smith V. Clews, 114 N. Y. 190, 11 Am. St. Rep. 627. This rule is expressed in the maxim, Consuetudo, cum omnium domina rerum,, turn maxime verborum est. 128 See page 788, supra. 120 Gibbon v. Young, 8 Taunt. 254; Webb v. Plummer, 2 Barn. & Aid. 746; Doe d. Spicer v. Lea, 11 East, 312; Stagg v. Connecticut Mut. Life Ins. Co., 10 Wall. (U. S.) 589; Corwin v. Patch, 4 Cal. 204; Cadwell v. Meek, 17 111. 220; Van Camp Packing Co. v. Hartman, 126 Ind. 177; Woods v. Miller, 55 Iowa, 168; Castleman v. Southern Mut. Life Ins. Co., 14 Bush (Ky.) 197; Baltimore Baseball Co. v. Pickett, 78 Md. 375, 44 Am. St. Rep. 304; Haskins v. Warren, 115 Mass. 514; Greenstine v. Borchard, 50 Mich. 434; Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153; Wolff v. Campbell, 110 Mo. ri4; Cummings v. Blanchard, 67 N. H. 268, 68 Am. St. Rep. 664; Col- lender V. Dinsmore; 55 N. Y. 200; Bradley v. Wheeler, 44 N. Y. 495; Sleght V. Rhinelander, 1 Johns. (N. Y.) 192; McCulsky v. Kloster- man, 20 Or. 108; Sweeney v. Thomason, 9 Lea (Tenn.) 359. (815) § 413 CONSTRUCTION OF CONTRACT. [(Jh. 9 son to suppose that it was understood by the promisee.^ ^^ If this matter is in doubt, the presumption is that the promisee construed the language of the contract most favorably to him- self, and from this results the rule that, other things being equal, that construction should be adopted which is most beneficial to the promisee ;^^^ or, as it is often expressed, am- biguous words are to be taken most strongly against the per- son using them.-'^^ Thus, if a provision of a policy of insur- ance emanating from the insurer is susceptible of more than one meaning, that meaning is to be adopted which is the most favorable to the insured.^ ^^ And the rule is especially ap- 130 Paley's Moral & Pol. Phil. 104; 2 Kent, Comm. 557; Hamer v. Sidway, 124 N. Y. 538, 21 Am. St. Rep. 693, 699; Hoffman v. Aetna Fire Ins. Co., 32 N. Y. 405, 88 Am. Dec. 337; Kendrick v. Mutual Benefit Life Ina. Co., 124 N. C. 315, 70 Am. St. Rep. 592; Williamson V. McClure, 37 Pa. 402, 408. isiNoonan v. Bradley, 9 Wall. (U. S.) 394; Wyatt v. Larimer & Weld Irrigation Co., 18 Colo. 298, 36 Am. St. Rep. 280; Paul v. Trav- elers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758; Marvin v. Stone, 2 Cow. (N. Y.) 781, 806; Kendrick v. Mutual Benefit Life Ins. Co., 124 N. C. 315, 70 Am. St. Rep. 592. i32Metcalf, Cont. 312; Thorpe v. Thorpe, 1 Ld. Raym. 235; Warde v. Warde, 16 Beav. 103; Browning v. Wright, 2 Bos. & P. 13, 22; Evans v. Sanders, 8 Port. (Ala.) 497; Hill v. John P. King Mfg. Co., 79 Ga. 105; Richardson v. People, 85 111. 495; Barney v. Newcomb, 9 Cush. (Mass.) 46; Bennehan v. Webb, 28 N. C. 57; White v. Smith, 33 Pa. 186. This rule is expressed in the maxim, 7er6a fortius ac- cipiuntur contra proferentem. The rule is applied to exceptions and provisos in deeds. They are taken most favorably to the grantee. See page 811, supra. 133 Powkes V. Manchester & L. Assur. & Loan Ass'n, 3 Best & S. 917, 929; Teutonia Ins. Co. v. Boylston Mut. Ins. Co. (C. C.) 20 Fed. 148; Wells, Fargo & Co. v. Pacific Ins. Co., 44 Cal. 397; Commercial Ins. Co. V. Robinson, 64 111. 265; Bartlett v. Union Mut. Fire Ins. Co., 46 Me. 500; Allen v. St. Louis Ins. Co., 85 N. Y. 473; Rolker v. Great Western Ins. Co., 4 Abb. Dec. (N. Y.) 76; Franklin Fire Ins. Co. V. Brock, 57 Pa. 74; Wilson v. Conway Fire Ins. Co., 4 R. I, 141, 156; Mosely v. Vermont Mut/ Fire Ins. Co., 55 Vt. 142. This rule should not apply to the so-called "standard policy," in so far as its form is prescribed by the state. Forfeitures are construed most strongly against the insurer, and (816) Ch. 9] PARTICULAR TERMS. § 4I3 plicable against carriers in construing bills of lading issued by thena.^^* As applied to deeds of conveyance, the rule is said to be that the grant is construed most strongly against the gran- ^Qj._i35 Thus, if a lease for seven, fourteen, or twenty-one years is given, and it does not specify at whose option it is that the lease may be determined at either of the prescribed periods, the court will construe the option to rest in the lessee as being the more favorable to him.^^® The application of the rule to contracts of guaranty and suretyship is disputed. The liability of a surety or a guaran- tor is not to be extended by implication beyond what the terms of the contract fully import ;^^'' and some courts hold are never extended beyond the strict words of the policy. Arlian- sas Fire Ins. Co. v. Wilson, 67 Ark. 553, 77 Am. St. Rep. 129; Bover Glass Works Co. v. American Fire Ins. Co., 1 Marv. (Del.) 32, 65 Am. St. Rep. 264; Snyder v. Dwelling House Ins. Co., 59 N. J. Law, 544, 59 Am. St. Rep. 625. See Schroeder v. Imperial Ins. Co., 132 Cal. 18, 84 Am. St. Rep. 17. 134 Amory Mfg. Co. v. Gulf, C. S. F. Ry. Co., 89 Tex. 419, 59 Am. St. Rep. 65. And see Munn v. Baker, 2 Starkle, 255. See, also, page 791, supra. 135 Taylor v. Corporation of St. Helens, 6 Ch. Div. 264, 270; Pro- prietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. (U. S.) 420, 589; Phillips' Heirs v. Porter, 3 Pike (Ark.) 18; Sharp v. Thompson, 100 111. 447; City of Alton v. Illinois Transpor- tation Co., 12 111. 38; Winslow v. Patten, 34 Me. 25; Salisbury v. An- drews, 19 Pick. (Mass.) 250, 253; Cocheco Mfg. Co. v. Whittier, 10 N. H. 305; Beeson v. Patterson, 36 Pa. 24; Waterman v. Andrews, 14 R. I. 589 ; Mills v. Catlin, 22 Vt. 98 ; Green Bay & M. Canal Co. v. Hewett, 55 Wis. 96. i36Dann v. Spurrier, 3 Bos. & P. 399, 442, 7 Ves. 231. And see Doe d. Webb v. Dixon, 9 East, 15. 137 Sprigg v. Mount Pleasant Bank, 14 Pet. (U. S.) 201; Glassell V. Coleman, 94 Cal. 260; Shreffler v. NadelhofCer, 133 111. 536, 23 Am. St. Rep. 626; Salem v. McClintock, 16 Ind. App. 656, 59 Am. St. Rep. 330; Kepley v. Carter, 49 Kan. 72; First Nat. Bank of Baltimore v. Gerke, 68 Md. 449, 6 Am. St. Rep. 453; Grasser & Brand Brewing Co V. Rogers, 112 Mich. 112, 67 Am. St. Rep. 389; Crane Co. v. (817) Law of Cont.— 52. § 413 CONSTRUCTION OF CONTRACT. [Ch. 9 that, upon this view, ambiguous words of a surety or a guar- antor are to be construed, not most strictly against him, but rather liberally in hisJavor.^^* However, in these contracts, the intention of the parties governs the construction, the same as in other contracts ;^^^ and, by the better opinion, if the language of the surety or guarantor is fairly susceptible of two interpretations, either of which is within the spirit of the contract, he cannot dispute the right of the person to whom it is given to act upon either interpretation.^*"' Exceptions and qualifications. The rule that a man's words are, in case of doubt, to be con- strued most strongly against him, is subject to several excep- tions and qualifications. First. To justify an application of the rule, there must exist in the terms of the contract an ajnbiguity justifying more than one construction of the contract.-'*^ Second. The rule will not be allowed to defeat the plain intent of the parties as gathered from the entire instru- ment."^ Third. The rule is inapplicable where the terms of the con- tract were concurrently settled by both parties, since in this case neither party can be regarded as having propounded any Specht, 39 Neb. 123, 42 Am. St. Rep. 562; Staver v. Locke, 22 Or. 519, 29 Am. St. Rep. 621. See, also, page 807, supra. 138 Sherman v. Mulloy, 174 Mass. 41, 75 Am. St. Rep. 286. 138 Hooper v. Hooper, 81 Md. 155, 48 Am. St. Rep. 496; Mathews V. Phelps, 61 Mich. 327, 1 Am. St. Rep. 581; Fink v. Farmers' Bank, 178 Pa. 154, 56 Am. St. Rep. 746; Gardner v. Watson, 76 Tex. 25. 140 London & S. F. Bank v. Parrott, 125 Cal. 472, 73 Am. St. Rep. 64; Taussig v. Reid, 145 111. 488, 36 Am. St. Rep. 504; Hoey v. Jar- man, 39 N. J. Law, 523 ; White's Bank of Buffalo v. Myles» 73 N. Y. 335; Deblois v. Earle, 7 R. I. 26. 1*1 Lindus v. Melrose, 3 Hurl. & N. 177, 182; Borradaile v. Hunter, 5 Man. & G. 639; Failey v. Giles, 29 Ind. 114; Varnum v. ThrusLon, 17 Md. 470; Foot v. Aetna Life Ins. Co., 61 N. Y. 571; Adams v. War- ner, 23 Vt. 395, 411. "2 Flagg V. Eames, 40 Vt. 16, 24. (818) Ch. 9] PARTICULAR TERMS. § 4I3 particular term."^ Thus, the rule does not apply to deeds of indenture, since they are bipartite, and the terms are regard- ed as having been used by both parties alike.^** Fourth. The rule is not applied in cases where the contract contains anything in its nature odious or unequally burden- some ;^*^ nor where it would operate as a wrong upon third persons.^*® Fifth. The rule does not apply to grants from the sover- eign.^*^ Sixth. The rule is not resorted to in any case until all other rules of construction have been tried and proved inef- fectual."8 "There seems to be little of good sense or of principle in the maxim as it originally stood," says Mr. Justice Metcalf .^^^ "sNordyke & Marmon Co. v. Kehlor, 155 Mo. 643, 656, 78 Am. St. Rep. 600, 6()9. And see cases cited in note 132, supra. i«Metcalf,~ Cent. 312; Browning v. Beston, 1 Plowd. 131, 134; Say's Case, 10 Mod. 40, 48; Beckwitli v. Howard, 6 R. I. 1. i*BMetcal£, Cont. 313; 1 Powell, Cont. 397 et seq. "oMetcalf, Cont. 313; Coke, Litt. 42; 1 Cliltty, Cont. (11th Ed.) 138. 147 Metcalf, Cont. 313 ; Attorney General v. Ewelme Hospital, 17 Beav. 366; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. (U. S.) 420, 589 ; Hartford Bridge Co. v. Un- ion Perry Co., 29 Conn. 210; Northwestern Fertilizing Co. v. Village of Hyde Park, 70 111. 634; State v. Morgan, 28 La. Ann. 482; City of New York v. Broadway & S. A. R. Co., 97 N. Y. 275, 281; Raleigh & G. R. Co. V. Reid, 64 N. C. 155, 158; City of Allegheny v. Ohio & P. R. Co., 26 Pa. 355. This exception in favor of the public does not apply, at least to its full extent, to a grant made by the state upon a valuable and adequate consideration. It applies more particularly, if not exclu- sively, to gratuitous grants, or grants substantially gratuitous, made by the sovereign upon the solicitation of the grSntee. Lang- don V. City of New York, 93 N. Y. 129. 1*8 Metcalf, Cont. 313 ; 2 Kent, Comm. 557 ; Lindus v. Melrose, 3 Hurl. & N. 177, 182; Falley v. Giles, 29 Ind. 114; Varnum v. Thrus- ton, 17 Ind. 470; Foot v. Aetna Life Ins. Co., 61 N. Y. 571, 575; Flagg V. Eames, 40 Vt. 16, 24. 149 Metcalf, Cont. 312. (819) § 413 CONSTRUCTION OP CONTRACT. [Ch. 9 "The assent of two or more minds is necessary to constitute a contract, and there is great force in the argument of Ser- jeant Catline, in Plowden, 140, namely. tWhat difference is there when the lessor saith, "I wiU have twenty shillings yearly for the land," and the lessee agrees to it, and when the lessee says, "I will give you twenty shillings yearly for the land," and the lessor agrees to it? Certainly there is no difference at all ; for in contracts it is not material which of the parties^ speaks the words, if the other agrees to them, for the agreement of the minds of the parties is the only thing the law respects in contracts.' " Nevertheless, as has been shown, the rule does exist, subject, however, to the exceptions and qualifications just noted. (820) PART V. CHAPTER X. DISCHARGE OF CONTRACT. I. Discharge of Contract — In General. II. Discharge by Operation of Law — In General. § 414. In General. III. Same — Impossibility of Performance. ^ § 415. In General. 416. Exceptions. 416a. Same — Impossibility Arising from a Change in the Law. 416b. Same — Impossibility Arising from Destruction of the Sub- ject-Matter. 416c. Same — Impossibility Arising from Death or Disability of Promisor. 416d. Same — Effect of Discharge — Quasi Contract. IV. Same — Merger. § 417. In General. V. Same — Alteration oh Loss of Instrument. § 418. Alteration of Instrument. 419. Loss of Instrument. VI. Same — Bankruptcy. § 420. In General. VII. Discharge by Operation of Terms of Contract. § 421. In General. 422. Conditions Subsequent. 423. Options to Determine Contract. VIII. Discharge by New Contract. § 424. In General. 425. Waiver or Rescission. 426. Substitution of Contract. 427. Form of New Contract. (821) DISCHARGE OP CONTRACT. [Ch. 10 IX. Discharge by Peefokmance. § 428. In General. X. Same — Payment. § 429. In General. 430. Negotiable Instrument as Payment. 431. Same — Negotiable Obligation of Third Person. 432. Presumption of Payment. 433. Payment by Volunteer. 434. Appropriation of Payment. XI. Same — Tender. § 435. In General. 436. By Whom and to Whom Tender must be Made. 437. Time, Place, Mode, and Means of Tender. 438. Conditional Tender. 439. Keeping Tender Good. 440. Effect of Tender. XII. Same — Substantial and Satisfactory Performance. § 441. In General. 442. Substantial Performance. 443. Performance to Satisfaction of Promisee. XIII. Same — Time of Performance. § 444. In General. 445. Time as Essence of Contract. XIV. Same — Alternative Promises. § 446. In General. 447. Election by Promisor. 448. Election by Promisee. 449. Time of Election. 450. Effect of Election. XV. Discharge by Breach — In General. § 451. In General. 452. Rights and Remedies of Innocent Party upon Discharge of Contract. XVI. Same — Repudiation of Contract. § 453. In General. 454. Repudiation by Promisor. 455. Repudiatipn by Promisee. 456. Limits of Rule. (822) Ch. 10] DISCHARGE OF CONTRACT. XVII. Same — Prevention of Performance. § 457. In General. 458. Breach by Promisor. 459. Breach by Promisee. XVIII. Same — Failure of Performance — In General. § 460. In General. XIX. Same — Independent Promises. § 461. In General. 462. Absolute Promises. 463. Divisible Contracts. 464. Subsidiary Promises. XX. Same — Conditional Promises. § 465. Concurrent Conditions. 466. Conditions Precedent — Vital and Suspensory Conditions. 467. Same — Failure of Consideration. 468. Same — Conditions Proper. 469. Same — ^Waiver of Condition. XXI. Same — Remedies for Breach of Contract — In General. § 470. In General. XXII. Same — Remedies at Law. § 471. Liquidated Damages. 472. Unliquidated Damages. XXIII. Same — Remedies in Equity. § 473. In General. 474. Specific Performance. 475. Injunction. XXIV. Same — Discharge of Right of Action. XXV. Same — Discharge by Consent. § 476. Release. 477. Accord and Satisfaction. XXVI. Same — Discharge by Judgment. § 478. In General. 479. Arbitration and Award. (823) g 414 _ DISCHARGE OP CONTriACT. [Qh. 10 XXVII. Same — Discharge by Lapse of Time. § 480. In General. 481. Revival of Right of Action. II. Dischakge of Contract — In General. A contract may be discharged and the parties freed from its obligation in any one of the following modes : (a) By operation of law. (b) By operation of its terms. (c) By new contract. (d) By performance. (e) By breach. II. Discharge by Operation of Law — In General. A contract may be discharged by operation of law through either — (a) Impossibility of performance. (b) Merger. (c) Alteration of instrument. (d) Bankruptcy. S 414. In general. The first mode of discharge we have to consider is that oc- curring through operation of law. This occurs without any conscious act of the parties to that end, and is brought about by certain rules of law that operate on certain sets of circum- stances, and work a discharge of the contract independently of the agreement of the parties. These sets of circumstances have been briefly enumerated in the black-letter text preced- ing this introduction. III. Same — Impossibility op Performance. Impossibility of performance arising after the contract is made does not, as a rule, excuse the promisor from performing or paying damages for the breach. This rule is subject to three important exceptions, namely: (824) Ch. 10] IMPOSSIBILITY. § 415 (a) If a contract between citizens of a state who enter into it there subsequently becomes impossible of lawful performance because of a change in the law of that jurisdiction, the promisor is excused from perform- ing. • (b) If the continued existence of a specific thing is essen- tial to the performance of the contract, its destruc- tion after the contract is made, from no default of either party, discharges the promisor from the ob- ligation to perform, (e) A contract involving the rendition of purely personal services is discharged by the death of either party, as a rule, or, in certain cases, by mental or physical disability that prevents the promisor from perform- ing. In case a contract is discharged by impossibility of perform- ance after the promisor has partly performed it, he may recover in quasi contract for the benefits thereby conferred upon the de- fendant. And upon the same principle, if one party has paid money to the other under a contract that is subsequently dis- charged by impossibility of performance, he may recover the money back. § 415. In general. "Impossibility of performance," says Sir William Anson,* "may appear on the face of the contract, or may exist, un- known to the parties, at the time of making the contract, or may arise after the contract is made. It is with this last sort of impossibility that we have to do. Where there is obvious physical impossibility or legal impossibility apparent upon the face of the promise, there is no contract, because such a promise is no real consideration for any promise given in re- spect of it.^ Impossibility which arises from the nonexiat- 1 Anson, Cent. (Sth Ed.) 321. zDuvergier v. Fellows, 5 Bing. 248, 265; PuUerton v. Agnew, 1 Salk. 172; Pindar v. Upton, 44 N. H. 358. See page 640, supra. (825) § 41 5 DISCHARGE OF CONTRACT. [Ch. 10 ence of the subject-matter of the contract avoids it. This may be based on mutual mistake, for the parties have con- tracted on an assumption, which turns out to be false, that there is something to contract about."^ Lastly, as to impos- sibility which arises after the contract is made, it does not, as a rule, excuse from performance. If a promisor makes performance of the promise conditional upon its continued possibility, the promisee takes the risk, and, if performance becomes impossible, he must bear the loss. This finds illus- tration in certain cases of condition subsequent, hereafter to be considered.* In the absence of such a condition, the promisor is ordinarily bound to performance, and must ac- cordingly pay damages for nonperformance, even though it has become impossible by reason of circumstances beyond his control ;'" and this is so, even though he could not have fore- seen the accident that prevents performance.* Still less will unexpected difficulty or inconvenience of performance short of impossibility serve as an excuse for failure to perform;'' 3 See page 108, supra. Unless the parties assume the existence of the apparent subject-matter, the nonexistence of It affords no ground for relief. Bute v. Thompson, 13 Mees. & W. 487. * See page 847, infra. 5 Brown v. Royal Ins. Co., 1 El. & El. 853; Chicago, M. & St. P. Ry. Co. V. Hoyt, 149 U. S. 1; Wilmington Transportation Co. v. O'Neil, 98 Cal. 1, Huff cut & W. Am. Cas. Cont. 654; Summers v. Hibbard, 153 111. 102, 46 Am. St. Rep. 872; Steele v. Buck, 61 111. 343, 14 Am. Rep. 60; Jemison v. McDaniel, 25 Miss. 83; Davis' Adm'r v. Smith, 15 Mo. 467. And see Hesketh v. Gray, Sayer, 185, Lang- dell, Cas. Cont. 798. As to the effect of Impossibility of performing one of several al- ternative promises, see page 889, infra. 6 Jones V. United States, 96 U. S. 24; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, 81 Am. St. Rep. 467. See, however, Harrison v. Muncaster [1891] 2 Q. B. 680, 686. T Pollock, Cont. 360; Smoot's Case, 15 Wall. (U. S.) 36; Bacon v. Cobb, 45 111. 47; Eugster v. West, 35 La. Ann. 119, 48 Am. Rep. 232; Wareham Bank v. Burt, 5 Allen (Mass.) 113; Nicol v. Fitch, 115 Mich. 15, 69 Am. St. Rep. 542; Matthews v. American Cent. Ins. Co., 154 N. Y. 449, 61 Am. St. Rep. 627; Anspach v. Bast, 52 Pa. (826) Ch. 10] IMPOSSIBILITY. I 415 as, for instance, where the factory of the employer of a trav- eling salesman is destroyed hy fire.* In the language of a much quoted case : "Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest or by enemies, the lessee is excused. * * * But when the party, by his own contract, creates a duty or charge upon him- self, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore, if the lessee covenant to repair a house, though it be burnt by light- ning, or thrown down by enemies, yet he ought to repair it.'" The rule that subsequent impossibility of performance does not discharge the contract has many illustrations, a few of which will be noticed. For instance, the promise of a char- terer to have the cargo unloaded at a specified time is not dis- charged by storms preventing performance within the time named.^'' Upoii the same principle, if a definite time for perform- ance is fixed, the promisor is not discharged from performing within that time by a strike affecting the labor to be employed by him in carrying out the contract,^ ^ in the absence of what 356; Eddy v. Clement, 38 Vt. 486. And see cases cited In note 16, infra. Imprudence of rendering performance does not excuse a failure. Dewey v. Union School Dlst.., 43 Mich. 480. Contra, Lakeman v. Pol- lard, 43 Me. 463. 8 Turner v. Goldsmith [1891] 1 Q. B. 544. 9Paradlne v. Jane, Aleyn, 26; The Harriman, 9 Wall. (U. S.) 161, 172; Harrison v. Missouri Pac. Ry. Co., 74 Mo. 364, 371; Harmony, V. Bingham, 12 N. Y. S9, 107. This illustration of the lessee's lia- bility under a covenant to repair is unquestionably the rule at common law, and is supported by many courts in America, though some courts take an opposing view. Note, -61 Am. St. Rep. 566. 10 Thiis V. Byers, 1 Q. B. Div. 244. 11 Budgett V. Binnington [1891] 1 Q. B. 35, (827) § 416 DISCHARGE OF CONTRACT. [Ch. 10 has, in many cases, become a customary stipulation, to the contrary. If, however, the parties do not specify a partic- ular time for performance, then, as we shall see, a reason- able time is allowed,^^ and a strike may therefore excuse a delay that Avould otherwise be regarded as imreasonable.^* Subject to an important exception, soon to be discussed, the destruction of the subject-matter of a promise does not ter- minate the contract, and relieve the promisor from future performance.^* Thus, if a man agrees to construct a build- ing, and, when nearly completed, the structure is destroyed by some cause not within his control, performance of the contract is not ordinarily thereby excused.-^' And the same rule applies where completion of the building is rendered im- possible by reason of a latent defect in the soil.^® § 416. Exceptions. There are certain forms of impossibility which are said to excuse from performance because "they are not within the contract" ; that is to say, they are such that neither party can 12 See page 882, infra. isCastlegate Steamship Co. v. Dempsey [1892] 1 Q. B. 854; Pitts- burg, C. & St. L. R. W. Co. V. HoUowell, 65 Ind. 188; Geismer v. Lake Shore & M. S. Ry. Co., 102 N. Y. 563; Gulf, C. & S. F. Ry. Co. V. Levi, 76 Tex. 337, 18 Am. St. Rep. 45. " Anderson v. May, 50 Minn. 280, 36 Am. St. Rep. 642, Huffcut & W. Am. Cas. Cont. 639; Smith v. Kerr, 108 N. Y. 31, 2 Am. St. Rep. 362; Ross v. Overton, 3 Call (Va.) 309, 2 Am. Dec. 552. 15 Kirkland v. Oates, 25 Ala. 465; School Dist. No. 1 v. Dauchy, 25 Conn. 530; Schwartz v. Saunders. 46 111. 18, 22; Butterfield v. Byron, 153 Mass. 517, 25 Am. St. Rep. 654; Adams v. Nichols, 19 Pick. (Mass.) 275, 31 Am. Dec. 137; Flldew v. Besley, 42 Mich. 100, 36 Am. Rep. 433; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349; Law- ing V. Rintles, 97 N. C. 350; Neman Lumber Co. v. Purdum, 41 Ohio St. 373; Galyon v. Ketchen, 85 Tenn. 55. isDermott v. Jones, 23 How. (U. S.) 220, 2 Wall. (U. S.) 1, Huff- cut & W. Am. Cas. Cont. 641; Stees v. Leonard, 20 Minn. 494 (Gil. 448); Leavitt v. Dover, 67 N. H. 94, 68 Am. St. Rep. 640; School Trustees of Trenton v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373. (828) Ch. 10] IMPOSSIBILITY. § 416a reasonably be supposed to have contemplated their occur- rence, so that the promisor neither excepts them specifically nor promises unconditionally in respect of them.^'^ Certain of these exceptions may be contracted against. If the parties stipulate either expressly or by implication that the promise shall be unconditional in every respect, their intention will in some cases be given effect.^* § 416a. Same — Impossibility arising from a change in the law. If a contract between citizens of one state who enter into it there subsequently becomes impossible of lawful perform- ance because of a change in the law of that jurisdiction, the promisor is excused from performance.^® Thus, if a con- tract is made with a corporation, and subsequently the state, pursuant to power reserved, amends the corporate charter, and the contract cannot be performed consistently with the alteration, performance is excused.^" This rule applies only to changes in the domestic law. A change in the law of a "Anson, Cont. (8tli Ed.) 323; Bailey v. De Cresplgny, L. R. 4 Q. B. 180, 185. 18 Robinson v. Davison, L. R. 6 Exch. 269; Wilmington Trans- portation Co. v. O'Neil, 98 Cal. 1, Huffcut & W. Am. Cas. Cont. 654. 19 Newby v. Sharpe, 8 Ch. Div. 39 ; Bailey v. De Crespigny, L. R. 4 Q. B. 180; Gates v. Goodloe, 101 U. S. 612; Scovill v. McMahon, 62 Conn. 378, 36 Am. St. Rep. 350; Jamieson v. Indiana Natural Gas & Oil Co., 128 Ind. 555, 561; Wareham Bank v. Burt, 5 Allen (Mass.) 113, 117; Cordes v. Miller, 39 Mich. 581; Middlesex Water Co. V. Knappmann Whiting Co., 64 N. J. Law, 240, 81 Am. St. Rep. 467; Mutual Benefit Life Ins. Co. v. Hillyard, 37 N. J. Law, 444, 18 Am, Rep. 741; People v. Globe Mut. Life Ins. Co., 91 N. Y. 174; Corporation of KnoxvlUe v. Bird, 12 Lea (Tenn.) 121, 47 Am. Rep. 326. See Semmes v. Hartford Ins. Co., 13 Wall. 158, Keener, Cas. Cont. 1245; Hughes v. Wamsutta Mills, 11 Allen (Mass.) 201, Huff- cut & W. Am. Cas. Cont. 647. A law laying an embargo does not, as a rule, discharge a con- tract, but merely suspends its operation till the law expires or is repealed. Hadley v. Clarke, 8 Term R. 259; Baylies v. Fettyplace, 7 Mass. 325. And see page 320, supra, as to contracts with aliens. 20 Macon & B. R. Co. v. Gibson, 85 Ga. 1, 21 Am. St. Rep. 135. (829) § 416b DISCHARGE OP CONTRACT. [Ch. 10 foreign state, even though the contract is, by its terms or of necessity, to be performed there, is regarded as making the contract impossible, not in law, but in fact, and accordingly does not excuse from performance.^^ § 416b. Same — Impossibility arising from destruction of the subject-matter. If the continued existence of a specific thing is essential to the performance of the contract, its destruction after the contract is made, from no default of either party, operates as a discharge.*^ In the absence of an express or implied war- ranty that the thing shall exist, the contract is not to be con- strued as a positive promise, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the promisor.^* Thus, where the owner of a hall agreed to let the plaintiff have the use of it on certain days for the purpose of giving concerts, and, before the time for performance arrived, the hall was de- stroyed by fire, the owner was discharged, and accordingly was not liable as for a breach of his agreement.^* So, if a man undertakes to erect machinery upon the plaintiff's prem- 21 Pollock, Cont. 362; Barker v. Hodgson, 3 Maule & S. 267. 22 The Tornado, 108 U. S. 342; Slegel, .Cooper & Co. v. Baton & Prince Co., 165 111. 550; Price v. Pepper, 13 Bush (Ky.) 42; But- terfleld v. Byron, 153 Mass. 517, 25 Am. St. Rep. 654; Anderson v. May, 50 Minn. 280, 36 Am. St. Rep. 642, Huffcut & W. Am. Cas. Cont. 639; Haynes v. Second Baptist Church, 88 Mo. 285, 57 Am. Rep. 413; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, 81 Am. St. Rep. 467; Stewart v. Stone, 127 N. Y. 500; Blakeley v. Sousa, 197 Pa. 305, 80 Am. St. Rep. 821; Huguenin v. Courtenay, 21 S. C. 403; Cook v. McCabe, 53 Wis. 250, 40 Am. Rep. 765. 23 Taylor v. Caldwell, 3 Best & S. 826; Howell v. Coupland, 1 Q. B. Div. 258; School Dist. No. 1 v. Dauchy, 25 Conn. 530; Walker v. Tucker, 70 111. 527. 24 Taylor v. Caldwell, 3 Best & S. 826. (830) Ch. 10] IMPOSSIBILITY. § 416c ises, and keep it in repair for two years, and while the work is in progress the premises are destroyed by fire, the contract is discharged.^^ If the subject-matter of a contract for a conveyance is destroyed in the interim between the time of making the contract and the time for performance of it, the vendor is discharged.^® And, in the case of a lease of apart- ments, the lessee, having no interest in the soil, is discharged by the destruction of the building before the term expires.*'' § 416c. Same — Impossibility arising from death or disability of promisor. If the object of a contract is the rendition of services by the promisor which involve his personal skill or aptitude, or which involve a special confidence placed in him, then the contract is discharged by his death. Both parties are dis- charged in this event. The promisor's personal representa- tive is not liable for a failure to perform, nor can he compel the surviving party to accept performance at his hands.** 25 Appleby v. Myers, L. R. 2 C. P. 651. 26 Gould V. Murch, 70 Me. 288; Wells v. Caiman, 107 Mass. 514, Langdell, Cas. Cont. 615; Dexter v. Norton, 47 N. Y. 62, Hulfcut & W. Am. Cas. Cont. 649; Powell v. Dayton, S. & G. R. R. Co., 12 Or. 489. 27 McMillan v. Solomon, 42 Ala. 356; Womack v. McQuarry, 28 Ind. 103; Graves v. Berdan, 26 N. Y. 498. Contra, Helburn v. Mof- ford, 7 Bush (Ky.) 169. 28 Farrow v. Wilson, L. R. 4 C. P. 744; Hall v. Wright, El., Bl. & El. 765, 793, 29 Law J. Q. B. 51; Howe Sewing-Mach. Co. v. Rosen- steel (C. C.) 24 Fed. 583; McGill's Creditors v. McGill's Adm'r, 2 Mete. (Ky.) 258; Knight v. Bean, 22 Me. 531, 536; Marvel v. Phillips, 162 Mass. 399, 44 Am. St. Rep. 370; Anderson v. May, 50 Minn. 280, 36 Am. St. Rep. 642, HufCcut & W. Am. Cas. Cont. 639; Blake v. Niles, 13 N. H. 459, 38 Am. Dec. 506; Middlesex Water Co. v. Knapp- mann Whiting Co., 64 N. J. Law, 240, 81 Am. St. Rep. 467; Siler v. Gray, 86 N. C. 566; Blakely v. Sousa, 197 Pa. 305, 80 Am. St. Rep. 821; Dickinson v. Calahan's Adm'rs, 19 Pa. 227. The dissolution of a corporation does not ordinarily annul its con- tracts except in those cases where the death of an individual con- (831) § 416c DISCHARGE OP CONTRACT. [Ch. 10 And this is true, even though the contract purports, in general terms, to be binding upon the promisor and his legal repre- sentatives. It requires explicit words to show that the par- ties intended that the promisor's executors or administrators should perform a contract of this character in case of his death. ^* Thus, the death of the promisor discharges a con- tract involving a promise to an inventor to pay all expenses of his application for a patent, to manage the business and advance all requisite funds, to use all reasonable efforts to increase and supply the demand for the patented invention, and to do all things that a wise and energetic owner of a patent right, with ample financial ability, ought to do.^" Mental or physical disability that prevents the promisor tractor would annul his engagements. People v. O'Brien, 111 N. Y. 1, 7 Am. St. Rep. 684. So far as liability upon its contracts of employment is concerned, dissolution is the same as death, and the contract of employm.ent then ceases. People v. Globe Mut. Life Ins. Co., 91 N. Y. 174. The death of a member of a partnership does not terminate a contract for services entered into between the firm and a third person, where the business is carried on by the surviving partner the same as before, and all parties for some time after assume that the contract is still in existence. Hughes v. Gross, 166 Mass. 61, 55 Am. St. Rep. 375. However, it has been held that, in the case of contracts of service with partnerships, both parties should be re- garded as having, by implication, intended a condition dependent on the life of both firm and individual, provided that death is not in either case voluntary. Griggs v. Swift, 82 Ga. 392, 14 Am. St. Rep. 176. Contra, Fereira v. Sayres, 5 Watts & S. (Pa.) 210, 40 Am. Dec. 496. If the dissolution is voluntary, the firm is not dis- charged. Madden v. Jacobs, 52 La. Ann. 2107. As to the rights and liabilities of the personal representative of the deceased party, in case of death, see, also, page 753, supra. 29 Marvel v. Phillips, 162 Mass. 399, 44 Am. St. Rep. 370. How- ever, a promisor is presumed to intend to bind his personal repre- sentative, unless the contract is of such a nature as to call for some personal quality of the promisor, or is so worded as plainly to nega- tive such a presumption. Tremeere v. Morison, 1 Bing. N. C. 89; Chamberlain v. Dunlop, 126 N. Y. 45, 22 Am. St. Rep. 807, 30 Marvel v. Phillips, 162 Mass. 399, 44 Am. St. Rep. 370. (832) Ch. 10] IMPOSSIBILITY. § 416c from performing an engagement involving personal service not infrequently works a discharge of the promise.*^ For instance, a musician who promises to perform at a concert is discharged from liability by a sickness rendering him un- able to perform.^^ The applicability of this principle to cases of insanity seems in doubt. If a man is sane when he makes a contract, he is not ordinarily discharged from it upon subsequently becoming insane f'^ and this is true in some states, whether or not the contract involves the rendition of strictly personal service, and whether the lunatic is prom- isor or promisee.^* To discharge the contract either for sickness or for death, it need not be the promisor who dies or becomes disabled. The death or disability of the promisee relieves the prom- 31 Dickey v. Linscott, 20 Me. 453 ; Johnson v. Walker, 155 Mass. 253; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, 81 Am. St. Rep. 467; Spalding v. Rosa, 71 N. Y. 40, HufEcut & W. Am. Cas. Cont. 655. See, also, note 43, infra. It is otherwise where the promisor should have foreseen and pro- vided against the sickness when he made the promise. Jennings V. Lyons, 39 Wis. 553. 32 Rohinson v. Davison, L. R. 6 Exch. 269. 33 Owen V. Davies, 1 Ves. Sr. 82; Hudson v. Hudson, 87 Ga. 678, 27 Am. St. Rep. 270; Kansas City School Dist. v. Sheidley, 138 Mo. 672, 60 Am. St. Rep. 576. This is true as to the contract of partnership (Pollock, Cont. 93; 1 Lindlcy, Partn. 224), except in case of inquest of lunacy found against one of the partners (Story, Partn. § 295; Isler v. Baker, 6 Humph. [Tenn.] 84). Agency is determined by the principal's becoming insane, except as to persons who deal in good faith with the agent in ignorance of the insanity. Pollock, Cont. 88; Davis v. Lane, 10 N. H. 156; Mat- thiessen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536; Hill's Ex'rs v. Day, 34 N. J. Eq. 150; Merritt v. Merritt, 43 App. Div. (N. Y.) 68, 27 App. Div. (N. Y.) 208. 34 Sands v. Potter, 165 111. 397, 56 Am. St. Rep. 253; Williams v. Hays, 143 N. Y. 442, 42 Am. St. Rep. 743. Contra, semble, Hall v. Wright, El., Bl. & El. 765, 793, 29 Law J. Q. B. 51; Scully v. Kirk- patrick, 79 Pa. 324. (833) Law of Cont. — 53 § 416d DISCHARGE OF CONTRACT. [Ch. 10 isor of the obligation to perform, and excuses the personal representative of the deceased party from accepting perform- ance.^° As a rule, no contract that may be performed by an agent of the promisor as well as by the promisor himself comes within the exception under discussion.*® Accordingly, if the personal representative of a deceased promisor can execute the promise as well as the promisor could have done, he may do so and enforce the contract ; and, on the other hand, the representative may be compelled to perform such a promise, or to pay damages for the breach, out of the assets in his hands.* ^ Thus, a contract made to induce the organization of a water company, whereby a man agrees to take a speci- fied amount of water per annum for ten years at a certain price, is not terminated by the promisor's death, and his es- tate is liable for performance.** § 416d. Same — Effect of discharge — Quasi contract. While a man may not voluntarily abandon a contract after part performance, and recover for what he has done,*® the law 35 Farrow v. Wilson, L. R. 4 C. P. 744; Knight v. Bean, 22 Me. 531, 536; Stewart v. Loring, 5 Allen (Mass.) 306; Lacy v. Getman, 119 N. Y. 109, 16 Am. St. Rep. 806; Yerrlngton v. Greene, 7 R. I. 589. And see Griggs v. Swift, 82 Ga. 392, 14 Am. St. Rep. 176. 30 Robinson v. Davison, L. R. 6 Exch. 269; Cassady v. Clarke, 7 Ark. 123; Alsup v. Banks, 68 Miss. 664, 24 Am. St. Rep. 294. 37 Siboni v. Kirkman, 1 Mees. & W. 418, 423; Janin v. Browne, 59 Cal. 37; Smith v. Wilmington Coal Min. & Mfg. Co., 83 111. 498; Hawkins v. Ball's Adm'r, 18 B. Mon. (Ky.) 816, 68 Am. Dec. 755; White V. Allen, 133 Mass. 423; Cox v. Martin, 75 Miss. 229, 65 Am. St. Rep. 604; Kernochan v. Murray, 111 N. Y. 306, 7 Am. St. Rep. 744; Siler v. Gray, 86 N. C. 566; Stumpf's Appeal, 116 Pa. 33; Bil- ling's Appeal, 106 Pa. 558. As to the rights and liabilities of the personal representative of the deceased party, see, also, page 753, supra. 38 Drummond v. Crane, 159 Mass. 577, 38 Am. St. Rep. 460. 38 Dermott v. Jones, 2 Wall. (U. S.) 1, HufEcut & W. Am. Cas. (834) Ch. 10] IMPOSSIBILITY. § 416d is otherwise in case the contract is discharged by impossibil- ity of performance after he has partly performed it. In the latter event, he may, upon the theory of quasi contract, re- cover for the benefits conferred upon the defendant.**' And this is true, whether the impossibility arose from a change in the law,*^ the destruction of the subject-matter of the eon- tract,*'' or the sickness ©r death of one of the contracting par- ties.*^ Since, in quasi contract, the benefit received by the defendant, and not the detriment incurred by the plaintiff, is the basis of the defendant's liability, a plaintiff shoiild not be allowed to recover from a defendant, unless it be shown that the defendant has received some benefit from the plain- tiff's part performance.*'* In some cases, however, the courts seem to have lost sight of this doctrine, and to have allowed a recovery rather upon the theory of detriment to the plain- tiff than of benefit to the defendant.*' Cont. 641; Stark v. Parker, 2 Pick. (Mass.) 267. Contra, Britton v. Turner, 6 N. H. 481. *o Gove V. Islana City Mercantile & Milling Co., 19 Or. 363. Contra, Appleby v. Dods, 8 East, 300; Brumby v. Smith, 3 Ala. 123; Huyett & Smith Mfg. Co. v. Chicago Edison Co., 167 111. 233, 59 Am. St. Rep. 272. These cases to the contrary of the text might be justified on the ground that the defendant had-received no benefit from the part performance. See note 44, infra. It has been held that the compensation recoverable for the part performance is not confined to a quantum meruit, but is to be meas- ured by the contract. Clark v. Gilbert, 26 N. Y. 279. *i Manhattan Life Ins. Co. v. Buck, 93 U. S. 24; Jones v. Judd, 4 N. Y. 412. *2 Buiterfield v. Byron, 153 Mass. 517 ; Lord v. Wheeler, 1 Gray (Mass.) 282; Haynes v. Second Baptist Church, 88 Mo. 285, 57 Am. Rep. 413; Niblo v. Binsse, 3 Abb. Dec. (N. Y.) 375; Cook v. McCabe, 53 Wis. 250. *3Lakeman v. Pollard, 43 Me. 463; Wolfe v. Howes, 20 N. Y. 197; Parker v. Macomber, 17 R. I. 674; Hubbard v. Belden, 27 Vt. 645; Green v. Gilbert, 21 Wis. 395. 4* Keener, Quasi Cont. 253; Partridge v. Forsyth, 29 Ala. 200; Clark V. Collier, 100 Cal. 256 ;i Parker v. Scott, 82 Iowa, 266, 270; Hubbard v. Belden, 27 Vt. 645. And see note 40, supra. 45 Luke V. Lyde, 2 Burrow, 882 ; Angus v. Scully, 176 Mass. 357, (835) § 417 DISCHARGE OF CONTRACT. [Ch. 10 Upon the same principle, if one party pays money to the other pursuant to the terms of a contract which is subse- quently discharged by reason of impossibility of performance, he may recover the money back.** IV. Same — Mebgek. As a rule, if a higher security is accepted by the creditor in place of a lower, the security which, in legal coutemplatioiL, la inferior in operative power, merges and is extinguished in the higher. To result in merger, three things are essential, namely : (a) The two securities must be different in their legal op- eration. (b) Their subject-matter must be identical. (c) Their parties must be the same. § 417. In general. In opening the discussion, it may be well to distinguish the meaning of the term "merger" as here used from its meaning as employed in certain other connections. It is often stated as a rule of evidence, that, where two or more persons enter into an agreement and reduce it to writing, the writing merges all preceding negotiations, and must be 79 Am. St. Rep. 318; Cleary v. Sohier, 120 Mass. 210; Haynes v. Second Baptist Church, 88 Mo. 285, 57 Am. Rep. 413; Whelan v. Ansonia Clock Co., 97 N. Y. 293; Weis v. Devlin, 67 Tex. 507, 60 Am. Rep. 38. is.Butterfield v. Byron, 153 Mass. 517; Thompson v. Gould, 20 Pick. (Mass.) 134; Griggs v. Austin, 3 Pick. (Mass.) 20; 'semble, Kelly v. Bliss, 54 Wis. 187. It is otherwise In England in some cases. Byrne v. Schiller, L. R. 6 Bxch. 319; De Silvale v. Kendall, 4 Maule & S. 37. Upon the same principle, a vendor cannot retain the price if the property is destroyed before the sale is complete. Wells v. Calnan, 107 Mass. 515, 9 Am. Rep. 65, Langdell, Cas. Cent. 615. And if a building is burned before completion, the owner may recover back installments of the price paid to the contractor. School Trustees of Trenton v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349. (836) Ch. 10] MERGER. § 417 received as conclusive evidence of their final understand- ing.*'' This, however, is not a strictly accurate use of the term "merger" as used in the law of contract, since a simple or parol contract in writing is of no higher nature in law than an oral contract.** The term "merger" is also employed in the law of crimes, the law of torts, and the law of property. Its meaning in those branches of the law is foreign to the present discussion. Generally speaking, if a higher security is accepted by the creditor in the place -of a lower, the security which, in legal contemplation, is inferior in operative power, merges and ia extinguished in the higher.** There are two illustrations of merger, so far as the law of contract is concerned, both of which we have already had occasion to notice: First. If the parties to a simple or parol contract embody its contents in a specialty which they both execute, the simple contract is thereby discharged, and the rights of the parties are governed by the deed."**" However, this is a matter of intention, and *TGalpin v. Atwater, 29 Conn. 93, 97; Savercool v. Farwell, 17 Mich. 308; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 1 Am. St. Rep. 721. See page 783, supra, as to parol evidence. *8 Knowlton, Ans. Cont. 327, note. See page 509, supra, as to classification of contracts. 49 Anson, Cont. (8th Ed.) 326; Van Vlelt v. Jones,'20 N. J. Law, 340. Merger is "the absorption of a thing of lesser importance [in the eye of the law] by a greater, whereby the lesser ceases to exist, but the greater is not increased." Cyclopedic Law Diet. "Merger." 60 Carter v. Beck, 40 Ala. 599; Bryan v. Swain, 56 Cal. 616; Gib' son V. Richart, 83 Ind. 313, 315; Davenport v. Whisler, 46 Iowa, 287; Williams v. Hathaway, 19 Pick. (Mass.) 387; Clifton v. Jack- son Iron Co., 74 Mich. 183, 16 Am. St. Rep. 621, Huffcut & W. Am. Cas. Cont. 659; Martin v. Hamlin, 18 Mich. 354; Slocum v. Bracy, 55 Minn. 249, 43 Am. St. Rep. 499; Donisthorpe v. Fremont, E. & M. V. R. Co., 30 Neb. 142, 27 Am. St. Rep. 387; Davis v. Clark, 47 N. J. Law, 338; Howes v. Barker, 3 Johns. (N. Y.) 506; Curson v. Monteiro, 2 Johns. (N. Y.) 308; Jones v. Wood, 16 Pa. 25; St. Philip's Church V. Zion Presbyterian Church, 23 S. C. 297. See page 535, supra. (837) § 417 DISCHARGE OP CONTRACT. , [Ch. 10 if the parties intended that the higher security should not ex- tinguish the lower, but shoiild be merely collateral, their in- tention will be effectuated.*^ Second. If a judgment is ren- dered on a contract, the right of action arising from a breach of the contract is merged or extinguished therein.''^ The rules governing merger are thus summarized by Sir William Anson:** (1) To result in merger, the two securities must be different in their legal operation, — the one of a higher efficacy than the other. A second security, taken in addition to one similar in character, will not affect the validity of the earlier, unless there be a discharge by substituted agree- ment.** (2) The subject-matter of the two securities must be identical.** Collateral agreements, though i^lating gen- erally to the same subject-matter, are not merged in the high- er contract.*® (3) The parties to the two securities must be the same.*^ V. Same — Altebation or Loss of Insteument. The unauthorized alteration, either by addition or by erasure, 51 Van Vleit v. Jones, 20 N. J. Law, 340. 52 Olmstead v. Bach, 78 Md. 132, 44 Am. St. Rep. 273; TourvlUe v. Wabash R. Co., 148 Mo. 614, 71 Am. St. Rep. 650; Russell v. Mc- Call, 141 N. Y. 437, 38 Am. St. Rep. 807; Ryan v. Southern Building & Loan Ass'n, 50 S. C. 185, 62 Am. St. Rep. 831. See page 945, infra. 53 Anson, Gont. (8th Ed.) 326. 54Higgens' Case, 6 Coke, 45b; Bill v. Porter, 9 Conn. 23; Andrews V. Smith, 9 Wend. (N. Y.) 53. And see Harrison v. Missouri Pac. Ry. Co., 74 Mo. 364. See page 855, infra, as to substituted agreement 55 Holmes V. Bell, 3 Man. & G. 213; Witbeck v. Waine, 16 N. Y. 532. And see Hutchins v. Hebbard, 34 N. Y. 24. 5S Rackemann v. Riverbank Improvement Co., 167 Mass. 1, 57 Am. St. Rep. 427; Close v. Zell, 141 Pa. 390, 23 Am. St. Rep. 296. 57 Doty V. Martin, 32 Mich. 462. It has been held, however, that, if one of several partners gives his individual bond for a simple contract debt of the firm, the creditor who receives it thereby re- linquishes his claim against the rest. Banorgee v. Hovey, 5 Mass. 11; Tom V. Goodrich, 2 Johns. (N. Y.) 213. (838) Ch. 10] ALTERATION OF INSTRUMENT. § 418 of a document embodying an executory eoatract, ordinarily dis- charges the obligation. To work a discharge of the contract on this ground, four things are essential, namely: (a) The alteration must, as a rule, be made either by a party to the instrument or by his agent. (b) It must be made intentionally, though there need b« no fraudulent intent. (c) It must be made without the consent of the other party. (d) It must be material. Subject to a qualification with reference to negotiable instru- ments, the loss of a document evidencing a contract does not discharge it. § 418. Alteration of instrument. Generally speaking, if a writing embodying a contract ia altered either by addition or by erasure, it is discharged, and no action may be maintained upon it,*** unless the injured party waives the objection.^® This applies to all written contracts, whether resting in parol or under seal. It does not apply to contracts executed in duplicate, however, where only one of the copies is altered."" But if a contract is evidenced by several writings, all which are material to show the actual agreement of the parties, the fraudulent alteration of any one of them by one of the parties invalidates all, as against the other party.^^ The rule applies only to executory contracts. If a con- tract has been executed — that is,- performed — on both sides, 58 Johnson v. Moore, 33 Kan. 90; Warder, Bushnell & Glessner Co. V. Willyard, 46 Minn. 531, 24 Am. St. Rep. 250; Smith v. Mace, 44 N. H. 553, HufEcut & W. Am. Gas. Cont. 660; Thompson v. Massie, 41 Ohio St. 307; Neff v. Horner, 63 Pa. 327. 59 Montgomery v. Crossthwait, 90 Ala. 553, 24 Am. St. Rep. 832. See, also. Hemming v. Trenery, 9 Adol. & E. 926. 60 Jones v. Hoard, 59 Ark. 42, 43 Am. St. Rep. 17. 61 Meyer v. Huneke, 55 N. Y. 412. (839) § 418 DISCHARGE OF CONTRACT. [Ch. 10 80 that nothing remains for either party to do under it in order to carry out its terms, no alteration of the instrument can affect the rights of either party as to what has been so done. Thus, by the weight of authority, the alteration o£ a deed of conveyance that has been finally delivered has no ef- fect, so far as the deed passes an estate, and is not merely executory.®^ The alteration of an instrument may be accomplished, not only by changing what already exists, but also by adding new matter which is either entirely without authority, or not in- cluded within a previous authorization.®* The general rule is subject to four important qualifications, which will now be briefly discussed. Alteration by stranger. First. In order to discharge the contract, the alteration must ordinarily be made by a party to the instrument or his agent. An alteration made without his knowledge or consent does not, as a rule, destroy his rights under the contract.** 62 Alabama State Land Co. v. Thompson, 104 Ala. 570, 53 Am. St. •Rep. 80; Speer v. Speer, 7 Ind. 178; Bacon v. Hooker, 177 Mass. 335, 83 Am. St. Rep. 279; Kendall v. Kendall, 12 Allen (Mass.) 92; Jack- son V. Jacoby, 9 Cow. (N. Y.) 125. And see Potter v. Adams, 125 Mo. 118, 46 Am. St. Rep. 478. Contra, Abbott v. Abbott, 189 111. 488, 82 Am. St. Rep. 470; Doe d. Campbell v. Roe, 9 N. C. 33, 11 Am. Dec. 738. The conveyance is avoided by an alteration, if it is executory. Holllngsworth v. Holbrook, 80 Iowa, 151, 20 Am. St. Rep. 411; Lewis v. Payn, 8 Cow. (N. Y.) 71. 63 Green v. Sneed, 101 Ala. 205, 46 Am. St. Rep. 119. For illus- trations, see page 844, infra. 64Henfree v. Bromley, 6 East, 309, 311; Davis v. Carlisle, 6 Ala. 707; Fordyce v. Kosminski, 49 Ark. 40, 4 Am. St. Rep. 18; Nichols V. Johnson, 10 Conn. 192; Condict v. Flower, 106 111. 105; Piersol v. Grimes, 30 Ind. 129; Terry v. Hazlewood, 1 Duv. (Ky.) 104; Croft V. White, 36 Miss. 455; Lubbering v. Kohlbrecher, 22 Mo. 596; Eliza- beth V. Force, 29 N. J. Eq. 587; Martin v. Tradesmen's Ins. Co., 101 N. Y. 498; Rees v. Overbaugh, 6 Cow. (N. Y.) 746; Wilmington & W. R. Co. V. Kitchin, 91 N. C. 39; Evans v. Williamson, 79 N. C. (840) Ch. 10] ALTERATION OF INSTRUMENT. | 413 This rule is subject to a qualification. If the holder of an instrument commits its custody to a third person, who makes a material alteration in it for the^ benefit of the holder, though without his authority, then the holder's rights are destroyed the same as if he himself had made the alteration.^* Intent. Second. The alteration must be made intentionally. Al- teration by accident or mistake, occurring under such cir- cumstances as to negative the idea of intention, will not in- validate the document.** Upon this principle, a note is not vitiated because the holder inserts in blank spaces memo- randa concerning the place of payment, where there was no intent thereby to alter the instrument.*^ There need not be a fraudulent intent, however. If an intentional alteration varies the legal effect of the instrument, so that it is legally prejudicial to the innocent party, it is immaterial that the alteration was made without a fraudulent design. Under such circumstances, the law may reasonably presume fraud, and the innocent party is discharged.*^ The authorities are 86; FuUerton v. Sturges, 4 Ohio St. 529; NefE v. Horner, 63 Pa. 327; Bigelow V. Stilphen, 35 Vt. 521; Murray v. Peterson, 6 Wash. 418. 36 Am. St. Rep. 129, note. s 5 Vance v. Lowther, 1 Bxch. Dlv. 176; Pattinson v. Luckley, L. R. 10 Exch. 330; Morrison v. Welty, 18 Md. 169., Contra, Hunt v. Gray, 35 N. J. Law, 227. And see NIckerson v. Swett, 135 Mass. 514; Flinn v. Brown, 6 S. C. 209. 68 Anson, Cont. (8th Ed.) 327; Aldous v. Cornwell, L. R. 3 Q. B. 573; Wilkinson v. Johnson, 3 Barn. & C. 428; Nichols v. Johnson, 10 Conn. 192; Reed v. Kemp, 16 111. 445; Shelton v. Deering, 10 B. Men. (Ky.) 405; Milbery v. Storer, 75 Me. 71; Rhoades v. Castner, 12 Allen (Mass.) 130; Adams v. Frye, 3 Mete. (Mass.) 103; Hunt V. Adams, 6 Mass. 519; Burnham v. Ayer, 35 N. H. 351; Dunn v. Clements, 52 N. C. 58; Huntington v. Finch, 3 Ohio St. 445; NefE V. Horner, 63 Pa. 327; Kountz v. Kennedy, 63 Pa. 187; Park v. Glovers' Heirs, 23 Tex. 469; Langdon v. Paul, 20 Vt. 217. Contra, Morrison v. Garth, 78 Mo. 434. 67 Light V. Killinger, 16 Ind. App. 102, 59 Am. St. Rep. 313. 68 Hirschman v. Budd, L. R. 8 Bxch. 171 ; Richmond Mfg. Co. v. (841) § 418 DISCHARGE OF CONTRACT. [Ch. 10 in conflict as to whether the holder of an instrument may alter it for the purpose of correcting a mistake so as to make it conform with the original intention of the parties to it.®' Alteration by consent. Third. The alteration must be made without the consent of the other party to the contract, else it operates as a new agreement, and is accordingly valid and binding. '''' The matter of discharge by new agreement will be discussed in another place. '^^ Materiality of alteration. Fourth. The alteration must be in a material part.^^ The question of what amounts to a material alteration must needs depend upon the character of the instrument. Generally speaking, no alteration is material that does not vary the legal effect of the instrument.''^ Conversely, any Davis, 7 Blackf (Ind.) 412; Owen v. Hall, 70 Md. 97, 99; Stoddard v. Penniman, 108 Mass. 366; Pay v. Smith, 1 Allen (Mass.) 477; Wash- ington Sav. Bank v. Bcky, 51 Mo. 272; Smith v. Mace, 44 N. H. 553; Porter v. Dohy, 2 Rich. Eq. (S. C.) 49; Schwalm v. Mclntyre, 17 Wis. 232. Contra, Croswell v. Labree, 81 Me. 44, 10 Am. St. Rep. 238. "opro: Duker v. Franz, 7 Bush (Ky.) 273, 3 Am. Rep. 314; Foote V. Hambrick, 70 Miss. 157, 35 Am. St. Rep. 631; McRaven v. Crisler, 53 Miss. 542; McClure v. Little, 15 Utah, 379, 62 Am. St. Rep. 938. Con: Kelly v. Trumble, 74 111. 428; Newman v. King, 54 Ohio St. 273, 56 Am. St. Rep. 705; Miller v. Gilleland, 19 Pa. 119; Otto v. Haeff, 89 Tex. 384, 59 Am. St. Rep. 56. Such an alteration may be made if it could not prejudice the other party. Lee v. Butler, 167 Mass. 426, 57 Am. St. Rep. 466. 70 Anson, Cont. (8th Ed.) 327; Wilson v. Henderson, 9 Smedes & M. (Miss.) 375; People v. Call, 1 Denio (N. Y.) 120. '1 See section 424, infra, 72 For cases, see following notes. Contra, Morrison v. Garth, 78 Mo. 434; Munney v. Cotton, 8 N. C. 222. TSAldous V. Cornwell, L. R. 3 Q. B. 573; Crawford v. Dexter, 5 Sawy. 201, Fed. Cas. No. 3,368; Burlingame v. Brewster, 79 111. 515; Kline v. Raymond, 70 Ind. 271; Rowley v. Jewett, 56 Iowa, 492; (842) Ch, 10] ALTERATION OF INSTRUMENT. § 4IS alteration that does vary the legal effect of the instrument, however slightly, to the prejudice of the innocent party, is regarded as material, and accordiagly invalidates the con- tract.'^* If the alteration affects the rights of the parties in any respect, it avoids the contract;''® and, in some jurisdic- tions, it is held that an alteration may be material, even though it does not prejudice the innocent party.''® It is possible for the character of an instrument to be affected by an altera- tion that does not touch the contractual rights set forth in it; yet the contract is discharged under such circumstances. In other words, to effect a discharge of the contract, the al- teration need not be a change of the contract itself. It is enough that it materially changes the instrument evidencing the contract.'''' Thus, while the alteration of the number of a bank note does not change the bank's promise to pay, yet, in view of the fact that bank notes are a part of the currency, and that the numbers placed on them are put to important uses by the bank and the public for the detection of forgery and theft, it has been held in England that the alteration of the number is material, and so invalidates the note.''* The alteration of an instrument in an immaterial part does not vitiate it, althoTigh made with a fraudulent design. The motive for an act cannot be inquired into unless the act itself materially affects the rights of the parties.'"' Leonard v. Phillips, 39 Mich. 182; Miller v. Gilleland, 19 Pa. 119; Fuller V. Green, 64 Wis. 159. T4 Laub V. Paine, 46 Iowa, 550; Chadwick v. Eastman, 53 Me. 12; Osborn« v. Van Houten, 45 Mich. 444; White v. Johns, 24 Minn. 387. 75 Mollett V. Wackerbarth, 5 C. B. 181. T6Wood V. Steele, 6 Wall. (U. S.) 80; Coburn v. Webb, 56 Ind. 96; State Sav. Bank v. Shaffer, 9 Neb. 1. 77 Anson, Cont. (8th Ed.) 327. 78 SufCell V. Bank of England, 9 Q. B. Div. 555. So far as this particular illustration is concerned, the law is per- haps otherwise in the United States. Com. v. Emigrant Industrial Sav. Bank, 98 Mass. 12; Birdsall v. Russell, 29 N. Y. 220. 79Moye v. Herndon, 30 Miss. 110; Fuller v. Green, 64 Wis. 159. (843) § 418 DISCHARGE OP CONTRACT. [Ch. 10 These principles may be aptly illustrated by a succinct quo- tation from Mr. Bishop:*" "Adding interest or increasing the rate,*^ changing the date,*^ yet not ordinarily inserting the true date where none appears,®* defacing or adding a seal,** changing the place*® or time®* of payment, detaching a qual- ifying memorandum,®'' commonly, but not in all circum- stances, adding or releasing parties,®® adding or altering 80 Bishop, Cont. § 751. 81 Lewis V. Shepherd, 1 Mackey (D. C.) 46; Hoopes v. Collingwood, 10 Colo. 107, 3 Am. St. Rep. 565; Hert v. Oehler, 80 Ind. 83; Conger T. Crabtree, 88 Iowa, 536, 45 Am. St. Rep. 249; Woodworth v. An- derson, 63 Iowa, 503; Davis v. Henry, 13 Neb. 497; Long v. Mason, 84 N. C. 15; Harsh v. Klepper, 28 Ohio St. 200; Gettysburg Nat. Bank v. Chisholm, 169 Pa. 564, 47 Am. St. Rep. 929; Plyler v. Elliott, 19 S. C. 257. 82 Lemay v. Williams, 32 Ark. 166; Hamilton v. Wood, 70 Ind. 306; Bank of Commonwealth v. McChord, 4 Dana (Ky.) 191, 29 Am. Dec. 398; Mitchell v. Ringgold, 3 Har. & J. (Md.) 159, 5 Am. Dec. 433; Aubuchon v. McKnight, 1 Mo. 312, 13 Am. Dec. 502; Brown v. Straw, 6 Neb. 536; Newman v. King, 54 Ohio St. 273,-56 Am. St. Rep. 705. But see Duker v. Franz, 7 Bush (Ky.) 273, 3 Am. Rep. 314. 83 Keane v. Smallbone, 17 C. B. 179; Lemay v. Johnson, 35 Ark. 225; Inglish v. Breneman, 5 Ark. 377, 41 Am. Dec. 96. 84 Davidson v. Cooper, 13 Mees. & W. 343; Evans v. Williamson, 79 N. C. 86; Vaughan v. Fowler, 14 S. C. 355. 85 Cowie V. Halsall, 4 Barn. & Aid. 197, 3 Starkie, 36; Adair v. Bgland, 58 Iowa, 314. But see Major v. Hansen, 2 Biss. .195, Fed. Cas. No. 8,982; Wessel v. Glenn, 108 Pa. 104. 86Alderson v. Langdale, 3 Barn. & Adol. 660; Wood v. Steele, 6 Wall. (U. S.) 80. 8T Scofield V. Ford, 56 Iowa, 370; Davis v. Henry, 13 Neb. 497; Gerrish v. Glines, 56 N. H. 9. Words written on the back of a note are prima facie no part of the contract. Bay v. Shrader, 50 Miss. 329. Accordingly, a memorandum of payment on the back of a note may be erased without destroying the instrument. Minneapo- lis Sash & Door Co. v. Metropolitan Bank, 76 Minn. 136, 77 Am. St. Rep. 609. 88 Montgomery v. Crossthwait, 90 Ala. 553, 24 Am. St. Rep. 832; Nicholson v. Combs, 90 Ind. 515; John v. Hatfield, 84 Ind. 75; Rhoades v. Leach, 93 Iowa, 337, 57 Am. St. Rep. 281; Sullivan v. Rudisill, 63 Iowa, 158; Chadwick v. Eastman, 53 Me. 12; Aldrich v. (844) Ch. 10] LOSS OF INSTRUMENT. § 119 words of negotiability,^^ — these are severally instances of material alterations;" to which enumeration may be added, changing the amount of a money demand.*" § 419. Loss of instrument. Ordinarily, the loss of an instrument evidencing a con- tract affects the rights of the parties only so far as it may oc- casion a difSculty of proof, and, as a rule, if an instrument is shown to be lost, parol evidence may be given of its con- tents.®^ The application of this rule to negotiable instru- ments is subject to an important qualification. If such a writing is lost by the holder after indorsement in blank and before maturity, he loses his rights under it also, unless he offers to the party primarily liable upon it an indemnity against possible claims on the part of the finder or persons claiming under him. If the loser does this, or if the instru- ment has not been indorsed, or if it was not lost until after maturity," then he may recover the same as if he had posses- sion of the instrument ; otherwise, not.®^ Smith, 37 Mich. 468; Brickson v. First Nat. Bank of Oakland, 44 Net). 622, 48 Am. St. Rep. 753. But see Montgomery R. Co. v. Hurst, 9 Ala. 513; Brownell v. Winnie, 29 N. Y. 400. soHollis V. Vandei grift, 5 Houst. (Del.) 521; Needles v. Shaffer, 60 Iowa, 65. Striking out "to the order of" before the payee's name, and inserting "or hearer" after his name, vitiates a note. Booth v. Powers, 56 N. Y. 22; Union Nat. Bank v. Roberts, 45 Wis. 373. 90 Fordyce v. Kosminski, 49 Ark. 40, 4 Am. St. Rep. 18; Burrows V. Klunk, 70 Md. 451, 14 Am. St. Rep. 371; State Sav. Bank v. Shaf- fer, 9 Neb. 1. 91 Phoenix Assur. Co. v. McAuthor, 116 Ala. 659, 67 Am. St. Rep. 154; Lumbert v. Woodard, 144 Ind. 335, 55 Am. St. Rep. 175; Spears v. Lawrence, 10 Wash. 368, 45 Am. St. Rep. 789. The same rule applies, with greater reason, to executed contracts. Woods v. Montevallo Coal & Transportation Co., 84 Ala. 560, 5 Am. St. Rep. 393; Potter v. Adams, 125 Mo. 118, 46 Am. St. Rep. 478; Brown V. Westerfleld, 47 Neb. 399, 53 Am. St. Rep. 532. 92 Hansard v. Robinson, 7 Barn. & C. 90; Conflans Stone Quarry ^ Co. V. Parker, L. R. 3 C. P. 1; City of Bloomington v. Smiuh, 123 (845) § 420 DISCHARGE OF CONTRACT. [Ch. 10 VI. Same — Bankruptcy. Bankruptcy effects a statutory release from debts and liabili- ties provable under the statute when the bankrupt obtains from the court an order of discharge. § 420. In general. The national bankruptcy act of 1898 provides that, if a person has been adjudged a bankrupt, the court may, under prescribed conditions, discharge and release him from such of his debts and liabilities as are provable under the act and are not excepted from its operation. The magnitude of this subject precludes any attempt to enter upon the discussion of it in a work of this character. VII. DiSOHAK&E BY OPERATION OF TERMS OF CONTRACT. A contract may be discharged by force of its own terms, which may take the form either of conditions subsequent or of options to determine the contract. A condition subsequent is a provision either that the occur- rence or that the nonoccurrence of a specified event shall dis- \ charge the contract. The contract may confer upon one party or the other the right to determine the contract, at his election, upon specified terms, or upon mere notice. Ind. 41, 18 Am. St. Rep. 310; Bainbridge v. City of Louisville, 83 Ky. 285, 4 Am. St. Rep. 153; Kirkwood v. First Nat. Bank of Hastings, 40 Neb. 484, 42 Am. St. Rep. 683; Citizens' Nat Bank v. Brown, 45 Ohio St. 39, 4 Am. St. Rep. 526; Adams v. Baker, 16 R. I. 1, 27 Am. St. Rep. 721; Clark v. Snow, 60 Vt. 205, 6 Am. St. Rep. 108. If the holder of a negotiable instrument willfully destroys it, he cannot maintain an action on the same consideration. Booth v. Smith. 3 Woods, 19, Fed. Cas. No. 1,649; Martendale v. FoUet, 1 N. H. 95; Blade v. Noland, 12 Wend. (N. Y.) 173, Huffcut & W. Am. Cas. Cont. 666; McVey v. Ely, 5 Lea (Tenn.) 438. See Steele v. Lord, 70 N. Y. 280. (846) Ch. 10] CONDITIONS SUBSEQUENT. § 422 § 421. In general. "A contract may contain within itself the elements of its own discharge," says Sir William Anson,^* "in the form of provisions, express or implied, for its determination under certain circumstances." These provisions commonly take the form either of conditions subsequent or of options to deter- mine the contract, reserved to one of or both the parties by its terms. § 422. Conditions subsequent. A condition subsequent, in the law of qontract, consists in a provision either that the occurrence or that the nonoc- currence of a specified event shall discharge the parties from further obligation upon the contract. It may be express, or it may be implied from the other terms of the contract, read in connection with the circumstances surrounding the parties at the time they entered into the agreement.®*" A common il- lustration of contract depending vipon a condition subsequent is a penal bond. This is a promise to pay money defeasible upon either the occurrence or the nonoccurrence of a speci- 93 Anson, Cont. (8th Ed.) 277. M Elliott V. Blake, 1 Lev. 88, Langdell, Gas. Cont. 771; New York Life Ins. Co. v. Statham, 93 U. S. 24; Pope v. Farmers' Union & Milling Co., 130 Cal. 139, 80 Am. St. Rep. 87; Dover Glass Works Co. V. American Fire Ins. Co., 1 Marv. (Del.) 32, 65 Am. St. Rep. 264; Rappleye v. Racine Seeder Co., 79 Iowa, 220; Gray v. Gardner, 17 Mass. 188, Langdell, Cas. Cont. 785; Olney v. German Ins. Co., 88 Mich. 94, 26 Am. St. Rep. 281; Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 42 Am. St. Rep. 523 ; Germania Fire Ins. Co. v. Home Ins. Co., 144 N. Y. 195, 43 Am. St. Rep. 749; Philadelphia Fire Ass'n v. Flournoy, 84 Tex. 632, 31 Am. St. Rep. 89; Carey v. German Ameri- can Ins. Co., 84 Wis. 80, 36 Am. St. Rep. 907. Once discharged by breach of condition subsequent, th« contract cannot be revived except by new agreement. Thus, if a policy of fire insurance is rendered void by breach of a condition against the building becoming vacant for a period of ten days, it is not re- vived merely by the subsequent reoccupation of the building before a loss occurs. Moore v. Phoenix Ins. Co., 62 N. H. 240. (847) § 422 DISCHAKGE OF CONTRACT. ]Ch. 10 fied event.^* Another illustration is the charter party. The ship owner agrees with the charterer to make the voyage on the terms expressed in the contract, — the act of God, the pub- lic enemies, restraint of princes and rulers, fire, and risks of navigation, always excepted. The occurrence of an ex- cepted risk releases the ship owner from a strict performance of his contract ; and if it should take place while the contract is wholly executory, and amounts to a frustration of the en- tire enterprise, the parties are altogether discharged.*^ Sim- ilar exceptions enter into the contract of a common carrier of goods, and with like effect. A carrier insures the safe delivery of goods intrusted to him, excepting for hindrances imposed by the act of God and the public enemy. This qual- ification of his promise to carry safely is implied in every eon- tract made with him, if not inserted there expressly, and the occurrence of the risks exonerates him from liability for loss thereby incurred.*'' And the exception of the restraint of 95 Cage V. Action, 1 Ld. Raym. 515, Langdell, Cas. Cont. 772 ; Mil- bourn V. Ewart, 5 Term R. 381; Gibson v. Robinson, 90 Ga. 756, 35 Am. St. Rep. 250; Carey v. Mackey, 82 Me. 516, 17 Am. St. Rep. 500; Whereatt v. Ellis, 103 Wis. 348, 74 Am. St. Rep. 865. Official bond: Wilson v. People, 19 Colo. 199, 41 Am. St. Rep. 243; Jones V. Lucas County Com'rs, 57 Ohio St. 189, 63 Am. St. Rep. 710; City of Wilkes-Barre v. Rockafellow, 171 Pa. 177, 50 Am. St. Rep. 795. Employe's fidelity bond: Singer Mfg. Co. v. Reynolds, 168 Mass. 588, 60 Am. St, Rep. 417; First Nat. Bank of Brandon v. Briggs' Assignees, 69 Vt. 12, 60 Am. St. Rep. 922. 88 Anson, Cont. (8tli Ed.) 278; Geipel v. Smith, L. R. 7 Q. B. 404; Hotham v. Bast India Co., 1 Term R. 638; The Edwin I. Morrison, 153 U. S. 199; Brauer v. Campania Navigacion La Flecha (C. C.) 66 Fed. 776; The Calvin S. Edwards (C. C.) 50 Fed. 477. 97 Nugent v. Smith, 1 C. P. Div. 423 ; Haas v. Kansas City, F. S. & G. R. Co., 81 Ga. 792 ; Yazoo & M. V. R. Co. v. Millsaps, 76 Miss. 855, 71 Am. St. Rep. 543. A loss or injury is due to the act of God when it is occasioned ex- clusively by natural causes, such as cannot be prevented by human care, skill, and foresight. Wald v. Pittsburg, C, C. & St. L. R. Co., 162 111. 545, 53 Am. St. Rep. 332. A familiar illustration is a flood. Memphis & C. R. Co. v. Reeves, 10 Wall. (U. S.) 176; Smith v. (848) Ch. 10] OPTIONS TO END CONTRACT. § 433 princes and rulers is often incorporated into the bill of lading issued by the carrier.^* Again, it is a common provision in policies of insurance that if, by any act of the insured, the risk is increased, the insurer shall be relieved from liability. This also is a condition subsequent, and the increase of risk under such circumstances discharges the contract.®* Dis- charge of a contract by the fulfillment of a condition subse- quent must be distinguished from discharge arising from a subsequent impossibility of performance not expressly pro- vided against in the contract. In the latter case, the dis- charge occurs by operation of law, which is treated of in an- other place.^"" i 423. Options to determine contract. A provision giving either party the right, upon certain terms, to terminate the contract at his option, may be either express or implied. So far as implied options are concerned, Western Ry. Co., 91 Ala. 455, 24 Am. St. Rep. 929; Norris v. Savan- nah & W. Ry. Co., 23 Fla. 182, 11 Am. St. Rep. 355; Morrison v. Davis, 20 Pa. 171; Nashville & C. R. Co. v. David, 6 Heisk. (Tenn.) 261. 98 Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489, 34 Am. St. Rep. 579. 99 German Fire Ins. Co. v. Shawnee County Com'rs, 54 Kan. 732, 45 Am. St. Rep. 306; First Congregational Church v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475, 35 Am. St. Rep. 508; Kyte v. Commercial Union Assur. Co., 149 Mass. 116; Angler v. Western Assur. Co., 10 S. D. 82, 66 Am. St. Rep. 685; Pool v. Milwaukee Mechanics' Ins. Co., 91 Wis. 530, 51 Am. St. Rep. 919. Condition against premises becoming vacant: Schuermann v. Dwelling-House Ins. Co., 161 111. 437, 52 Am. St. Rep. 377; Limburg V. German Fire Ins. Co., 90 Iowa, 709, 48 Am. St. Rep. 468; Home Ins. Co. V. Scales, 71 Miss. 975, 42 Am. St. Rep. 512; Moore v. Phoenix Ins. Co., 62 N. H. 240; East Texas Fire Ins. Co. v. Kempner, 87 Tex. 229, 47 Am. St. Rep. 99; Connecticut Fire Ins. Co. v. Tilley, 88 Va. 1024, 29 Am. St. Rep. 770; England v. Westchester Fire Ins. Co., 81 Wis. 583, 29 Am. St. Rep. 917. 100 See page 824, supra. (849) Law of Cont. — 54. § 423 DlbOHARGE OF (CONTRACT. [Ch. 10 they usually arise from conditions precedent, and will accord- ingly be considered in connection with that form of condi- tion.^"^ We are presently concerned with express options, and with them alone. Express options, as well as those im- plied, may arise from conditions subsequent. Thus, if a man buys goods which are warranted to answer to a certain de- scription as to kind, quality, etc., and by the terms of the sale he may return them and incur no liability if they do not answer that description, this provision confers an option on the buyer, and, if he exercises it upon rightful grounds, he is discharged from the contract.^ "^ Another illustration of this point is the contract "on sale and return." This is an agreement by which goods are delivered by a wholesale to a retail dealer, to be paid for at a certain rate if sold again by the latter, and, if not sold, to be returned, if no time is specified, within a reasonable time. The property in the goods passes to the buyer subject to- an option in him to re- turn them within a reasonable time. If he so returns them, the contract of sale is at an end ; otherwise, the sale becomes absolute, and the seller may recover the price. The sale is made subject to a condition subsequent that, if the goods are not resold, they shall be returned. The property in the goods vests presently in the buyer, defeasible upon the performance of the condition, and, if he performs it, the contract is dis- charged.^"* 101 See page 911, infra. 102 Head v. Tattersall, L. R. 7 Exch. 7; Buswell v. Bicknell, 17 Me. 344; Dearborn v. Turner, 16 Me. 17; McKlnney v. Bradlee, 117 Mass. 321; Martin v. Adams, 104 Mass. 262; Ray v. Thompson, 12 Cush. (Mass.) 281, Hufflcut & W. Am. Cas. Cont. 534; Kimball & Austin Mfg. Co. V. Vroman, 35 Mich. 310, 327; Ganson v. Madigan, 13 Wis. 67. This form of sale must be distinguished from a bailment of goods, under which the bailee has a right to purchase the prop- erty. Sturm V. Boker, 150 U. S. 312; Hunt v. Wyman, 100 Mass. 198. 103 House V. Beak, 141 111. 290, 33 Am. St. Rep. 307. (850) Ch . 10] NEW CONTRACT. § 423 Contracts calling for continuous acts of performance for an indefinite period are often made determinable at the op- tion of one or the other of the parties upon certain terms, or upon mere notice.^"'' An illustration of this option, which prevails in England, is found in the ordinary contract of domestic service, whereby the servant may terminate the con- tract by a month's notice, and the master may terminate it by a month's notice or the payment of a month's wages.-'"^ This particular illustration, however, does not obtain in the United States. Here it is generally held that, where the hiring is for a definite period, the master cannot discharge the servant before the expiration of the time stated without rendering himself liable in damages, and, conversely, that the servant forfeits all right to compensation under the contract if he abandons the service before the time is completed.^"* VIII. Discharge by New Contract. An executory contract may be waived or rescinded by a new contract, express or implied, between the parties, which re- quires for its validity all the elements necessary to the forma- tion of any other contract of like dignity. A contract may be discharged also by substituting in its place a new contract, express or implied, which oc- curs in one of the three following ways, namely : (a) The parties may make an entirely new contract with reference to the same subject-matter, the terms of 104 Parker v. Ibbetson, 4 C. B. (N. S.) 347; Morrissey v. Broomal, 37 Neb. 766; Dick v. Ireland, 130 Pa. 299. 105 Nowlan v. Ablett, 2 Cromp., M. & R. 54. 106 1 Cooley, Bl. 425, note; Wood, Mast. & Serv. §§ 2, 116; Moss v. Decatur Land Improvement & Furnace Co., 93 Ala. 269, 30 Am. St. Rep. 55; Saxonia Min. & Reduction Co. v. Cook, 7 Colo. 569, 572; Louisville & N. R. Co. v. OfEutt, 99 Ky. 427, 59 Am. St. Rep. 467; Miller v. Goddard, 34 Me. 102; Davis v. Maxwell, 12 Mete. (Mass.) 286; Marsb v. Rulesson, 1 Wend. (N. Y.) 514; Weed v. Burt, 78 N. y 191- Slierman v. Champlain Transportation Co., 31 Vt. 162. (851) § 425 DISCHARGE OF CONTRACT. rCh. 10 which are coextensive with and repugnant to the original contract. (b) They may modify one or more of the terms of an ex- isting contract, which is in effect to create a new contract having some of the old terms and some new. (c) They may substitute a new party in the place of one of themselves, the effect of which is to substitute for the original contract a new contract with differ- ent parties. As a rule, a contract may be discharged only by an ^ree- ment of equal dignity. With reference to sealed instruments, however, this rule is subject to important qualifications. A parol contract may be discharged by word of month; and this is true, in the absence of statute, whether it is in writing or not. § 424. In general. The discharge of a contract by a new contract occurs in one of two ways: The parties agree, without making any new engagement in reference to the same subject, that the original contract shall no longer bind them ; or else they agree that a new engagement, which they presently enter into, shall take the place of the old one, which is thereupon discharged. In the former case, the discharge occurs by waiver or rescis- sion of the contract; in the l&tter, by the substitution of a new contract. § 425. Waiver or rescission. A contract cannot be waived or rescinded except by a new contract between the parties,^"'^ and this new contract requires all the elements necessary to the formation of any other con- 107 Shellenbarger v. Blake, 67 Ind. 75; Goebel v. Linn, 47 Mich. 489; Thompson v. Poor, 147 N. Y. 402; McCreery v. Day, 119 N. Y. 1, 16 Am. St. Rep. 793, Huffcut & W. Am. Gas. Cont. 524. (852) Ch. llG NEW CONTRACT. § 425 tract of a like class.^°* Among these elements, if the new contract is a simple one, is consideration.^"® In this connec- tion, a distinction is to be noted between contracts which are wholly executory and contracts which have been executed on one side ; that is to say, contracts of which neither party has performed his part, and contracts under which all that one of the parties is required to do has been done. In case the original contract is executory on both sides at the time of the waiver or rescission, the consideration for the new contract is found in the mutual promises, whereby each party aban- dons his rights against the other.^^" If, therefore, one party does not abandon his rights under the original contract, there is no consideration for the other's abandonment of his, and the attempted waiver or rescission is accordingly void.^^^ In case the original contract has been executed on one side, the consideration for a waiver of performance on the other side cannot consist in a mutual abandonment of rights under the original contract, since the party who has not performed has no rights thereunder which he may abandon. He has received the performance due to him, and nothing remains 108 RockclifEe v. Pearce, 1 Fost. & F. 300; West v. Blakeway, 2 Man. & G. 729; Wheeler v. New Brunswick R. Co., 115 TJ. S. 29, 34; Cooper T. Mcllwaln, 58 Ala. 296; McCreery v. Day, 119 N. Y. 1, Huff- cut & W. Am. Cas. Cont. 524. 100 "The rule, as often stated, that 'a simple contract may, before breach, be waived or discharged, without a deed and without consid- eration,' must be understood to mean that, where the contract is executory, no further consideration is needed for an agreement to rescind than the discharge of each party by the other from his lia- bilities." Anson, Cont. (8th Ed.) 273. 110 King v. Gillett, 7 Mees. & W. 55; Taylor v. Hilary, 1 Cromp., M. & R. 741; Langden v. Stokes, Cro. Car. 383; Hobbs v. Columbia Falls Brick Co., 157 Mass. 109; Alden v. Thurber, 149 Mass. 271. Huffcut & W. Am. Cas. Cont. 630; Taylor v. Seaboard & Roanoke R. Co., 99 N. C. 185, 6 Am. St. Rep. 509; Collyer v. Moulton, 9 R. I. 90, Huffcut & W. Am. Cas. Cont. 522; Kelley v. Bliss, 54 Wis. 187. One promise as consideration for another, see page 680, supra. 111 Williams v. Stern, 5 Q. B. Div. 409. (853) § 425 DISCHARGE OF CONTRACT. [Oh. 10 to be done under the contract but for him in turn to perform his part of it. Therefore, the other's promise to waive the right to call for this performance is without consideration unless he receives something of value.^^^ What is said in this connection in reference to considera- tion applies only to simple or parol contracts. Sealed con- tracts at common law require no consideration to render them enforceable. In the absence of statute, therefore, a contract may be waived or rescinded by a new contract under seal, whether it is wholly executory or partly performed, and whether or not a consideration moves to the party making the waiver. A waiver under seal usually takes the form of a release.^ ^^ It is a rule of the law merchant, imported into the common law, that the holder of a negotiable instrument may waive and discharge his rights without consideration and without seal.^^* This exception does not prevail in the United States,-'-'^® unless the instrument is surrendered at the time of waiver,^^^ in which event it operates as an executed gift.''^'' 112 Foster v. Dawber, 6 Exch. 839, 851; Edwards v. Weeks, 2 Mod. 259; Kidder v. Kidder, 33 Pa. 268, Huffcut & W. Am. Gas. Cent. 625; CoUyer v. Mbulton, 9 R. 1. 90, Huffcut & W. Am. Cas. Cent. 522. 113 Foster v. Dawber, 6 Exch. 839, 851; Spence v. Healey, 8 Exch. 688. See, further, as to release, page 943, infra. in Poster V. Dawber, 6 Exch. 831, 851. 115 Myers v. Bylngton, 34 Iowa, 205; Smith v. Bartholomew, 1 Mete. (Mass.) 276; Seymour v. Minturn, 17 Johns. (N. Y.) 169; Crawford v. Millspaugh, 13 Johns. (N. Y.) 87. "It is sometimes said that the holder of a bill of exchange may, by parol waiver, discharge the acceptor. The true ground is that a waiver works by way of estoppel, rather than by way of contract, and is effectual only when the holder's renunciation of his rights has induced the acceptor to part with funds or change his condition, so that it would be inequitable to enforce the contract of acceptance. 1 Parsons, Notes & B. 326, note; 1 Daniel, Neg. Inst. § 544." Knowl- ton, Ans. Cont. 260, note. lis Price V. Dime Sav. Bank, 124 111. 317, 7 Am. St. Rep. 367; Bragg v. Danielson, 141 Mass. 195 ; Vanderbeck v. Vanderbeck, 30 N. (854) Ch. 10] NEW CONTRACT. § 426 As well as express, waiver or rescission may be implied from the circumstances of the case.^^® Thus, where an archi- tect is employed to supervise the erection of a building, at a special place and within a definite time, his failure to offer performance will be construed as a waiver of the contract on his part, and he cannot recover damages if the other party employs some one else to superintend the work.-'^® Full performance discharges the obligation of a contract, as will elsewhere be seen. Accordingly, if a contract has been fully performed on both sides, it no longer exists, and may not, therefore, be the subject of waiver or rescission, since there is nothing to waive or to rescind.^ ^^ If the par- ties wish to place themselves in the positions which they re- spectively occupied before the contract was carried out, they may, of course, do so, circumstances permitting. But this is not a waiver or a rescission of the original agreement. It is a new contract which accidentally deals with the same sub- ject-matter, and which requires the same formalities to make it valid as did the original contract.^^^ § 426. Substitution of contract. The parties to a contract may discharge it by substituting in its place a new contract.^ ^^ This may occiir in any one of J. Eq. 265, 270; Larkin v. Hardenbrook, 90 N. Y. 333, 334; In re Campbell's Estate, 7 Pa. 100. And see Paxton v. Wood, 77 N. C. 11; Albert's Bx'rs v. Zlegler's Ex'rs, 29 Pa. 50. 117 Slade V. Mutrie, 156 Mass. 19. 118 De Bernardy v. Harding, 8 Excb. 822; Jewell v. Reddington, 57 Iowa, 92; Paul v. Meservey, 58 Me. 419; Endriss v. Belle Isle Ice Co., 49 Mich. 279, Huffcut & W. Am. Cas. Cont. 180; Fine v. Rogers, 15 Mo. 315; Wheeden v. Fiske, 50 N. H. 125; Washabaugh v. StaufEer, 81* Pa. 497. iisWehrli v. Rehwoldt, 107 111. 60. 120 Chapman v. Searle, 3 Pick. (Mass.) 38, 44. As to discharge of a contract by performance, see page 863, infra. 121 Quincy v. Tilton, 5 Me. 277. 122 Cutter V. Cochrane, 118 Mass. 408; McCreery v. Day, 119 N. Y. (855) § 426 DISCHARGE OF CONTRACT. [Ch. lU three ways, each of which has the same effect: First, the parties may enter into an entirely new contract with reference to the same subject-matter, the terms of which are coextensive with and repugnant to the terms of the original agreement; second, the parties may modify one or more of the terms of an existing contract, which is, in effect, to create a new con- tract having some of the old terms and some new ; third, the parties may substitute a new party in the place of one of themselves, the effect of which is to substitute for the original contract a new contract with different parties. The change of rights and liabilities, and the consequent ex- tinction of those which existed under the original agreement, forms the consideration on each side for the new contract.^^* Discharge by the substitution of a new contract may be either express or implied.-'^* To justify an implication of dis- charge, however, the terms of the new agreement must be clearly inconsistent with the terms of the old, and the new agreement must be clearly intended to supplant the original contract.-*^^ An apparent exception to the general rule as to substitution occurs in the case of a mere postponement of the time of performance of an existing contract. The cases are not entirely clear on this question, but the true rule is thought to be this : If the creditor's promise to postpone is made gratuitously, so that the creditor is not legally bound to abide by it, it does not constitute a new contract, since it lacks the* 1, Huffcut & W. Am. Cas. Cont. 524; Taylor v. Seaboard & R. R. Co., 99 N. C. 185, 6 Am. St. Rep. 509. 123 Anson, Cont. (4th Ed.) 261; Connelly v. Devoe, 37 Conn. 570; Spann v. Baltzell, 1 Fla. 301; Montgomery r. Morris, 32 Ga. 173; Taylor v. Meek, 4 Blackf. (Ind.) 388; Carruthers v. McMurray, 75 Iowa, 173; Rollins v. Marsh, 128 Mass. 116; Scott v. McKinney, 98 Mass. 344, 348; Calhoun v. Calhoun, 37 Miss. 668; Woodward v. Miles, 24 N. H. 289; Dreifus v. Columbian Exposition Salvage Co., 194 Pa. 475, 75 Am. St. Rep. 704; Perry v. Buckman, 33 Vt. 7. 121 Hart V. Alexander, 2 Mees. & W. 484. 125 Ogle V. Vane, L. R. 2 Q. B. 275; Id., L. R. 3 Q. B. 272. (856) Ch. 10] NEW CONTRACT. § 426 element of consideration; and the original contract is not thereby discharged.^*® And this should be the case, even though the creditor actually keeps his promise. His keeping it does not turn it into a contract. On the other hand, if the promise to postpone the time of performance is based on a sufficient consideration moving to the creditor, then it con- stitutes a new contract, and, if it is otherwise valid, the mod- ification thereby made in the terms of the original contract operates to discharge it.-^*^ All this is said with reference to simple promises. A promise made under seal needs no consideration, at common law. Therefore, a sealed promise to postpone the time of performance ought, in reason, to work a discharge of the original contract, without regard to wheth- er the new promise was in fact based upon a consideration. This last statement would not be true in states where the com- mon-law effect of a seal as dispensing with the necessity for a consideration has been changed by statute.^ ^* If the parties to an existing contract enter into a new agree- ment with reference to the same subject-matter, the terms of which are coextensive with and repugnant to the terms of the original contract, it operates to discharge the latter.^^' For instance, if the parties to a construction contract afterwards enter into a new agi'eement for the same work at a different price, the original contract is discharged, and Avill not sup- port an action.^ ^^ 126 Hickman v. Haynes, L. R. 10 C. P. 598, 606; Bacon v. Cobb, 45 111. 47. And see McCombs v. McKennan, 2 Watts & S. (Pa.) 216. 127 Goss V. Nugent, 5 Barn. & Add. 58, 65; Noble v. Ward, L. R. 2 Exch. 135; Carpenter v. Galloway, 73 Ind. 418; Burns v. Fidelity Real-Estate Co., 52 Minn. 31; Packer v. Steward, 34 Vt. 127, 133; Dana v. Hancock, 30 Vt. 616. 128 As to the necessity of a consideration for a sealed contract, see page 530, supra. 129 Chrisman v. Hodges, 75 Mo. 413; Munford v. Wilson, 15 Mo. 540; Church v. Florence Iron Works, 45 N. J. Law, 129; Renard v. Sampson, 12 N. Y. 561; Reed v. McGrew, 5 Ohio, 375. 130 Howard v. Wilmington & S. R. Co., 1 Gill (Md.) 311, 340. (857) § 426 DISCHARGE OP CONTRACT. [Ch. 10 If the parties make a substantial alteration in the terms of an existing contract between them, it is thereby discharged.^^^ Thus, if a man undertakes to construct a building for an- other by a certain time, or pay a certain sum for the delay, and, while the work is in progress, the parties make an^agree- ment for additional work, which makes it impossible that the building shall be done within the time limited, the subsequent agreement amounts to a waiver of the time limit, and the con- tractor is thereby discharged from payment of the sum stip- ulated.^ ^^ New parties may be introduced into an existing contract only by the consent of all parties concerned, and this neces- sarily amounts to a new contract, which discharges the old, even though the terms of the latter remain unaltered.^^* A common illustration of this is the contract termed "novation." It amounts to a substitution of debtors, and occurs where a creditor accepts the liability of a third person in place of the liability of the original debtor, who is thereupon discharged from liability.^ ^'' Whether or not a transaction amounts to 131 Howard v. Wilmington & S. R. Co., 1 Gill (Md.) 311; Rogers V. Rogers, 139 Mass. 440; Stewart v. Keteltas, 36 N. Y. 388; Dreifus V. Columbian Exposition Salvage Co., 194 Pa. 475, 75 Am. St. Rep. 704; Brigss v. Vermont Cent. R. Co., 31 Vt. 211. 132 Thornhill v. Neats, 8 C. B. (N. S.) 831; Norton v. Browne, 89 Ind. 333; Maxwell v. Graves, 59 Iowa, 613; Lawson v. Hogan, 93 N. Y. 39. 133 Moore v. Fowler, Hempst. 536, Fed. Gas. No. 9,761; Byrd v. Bertrand, 7 Ark. 321; Litchfield v. Garratt, 10 Mich. 426; Mlllerd v. Thorn, 56 N. Y. 402; Collyer v. Moulton, 9 R. I. 90, Huffcut & W. Am. Cas. Cont. 522. See, further, as to consent, page 723, supra. 134 Pairlie v. Denton, 8 Barn. & C. 395 ; Roe v. Haugh, 12 Mod. 133 ; Crowfoot V. Gurney, 9 Bing. 372; Wilson v. Coupland, 5 Barn. & Aid. 228; Miller's Case, 3 Ch. Div. 391; Sampson v. Fox, 109 Ala. 662, 55 Am. St. Rep. 950; Barnes v. Hekla Fire Ins. Co., 56 Minn. 38, 45 Am. St. Rep. 438; Heaton v. Angler, 7 N. H. 397, Huff cut & W. Am. Cas. Cont. 442; Griggs v. Day, 136 N. Y. 152, 32 Am. St. Rep. 704; Corbett v. Cochran, 3 Hill (S. C.) 41; Sterling v. Ryan, 72 Wis. 36, (858) Ch. 10] NEW CONTRACT. § 426 a novation is a question of intention, to be decided from all the circumstances of the case, although nothing positive be expressed.-'^'' Novation of contract is never presumed, and the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. A mere modification will not do, and anything remaining of the original obligation prevents novation.^^* To constitute a valid novation, all three parties must consent to the sub- stitution of debtors.-''^'' In the case of a novation, the con- sideration for the creditor's releasing the original debtor is the new debtor's promise to pay the debt. The consideration for this promise of the new debtor is the creditor's release of the original debtor. If, therefore, one member of a partner- ship retires, and a new member comes in, the debts of the old firm may, by the consent of all parties interested, be trans- ferred to the new firm, and the retiring partner be discharged frgm liability. -"^^ But if a new partner does not enter to take the place of the retiring member, and the debts of the old firm are in form transferred to the new, then the attempted release of the retiring partner is without consideration and void. The remaining members are already liable to pay the old firm's debts, and their new oral promise to pay them af- 7 Am. St. Rep. 818. This matter is dealt witli in other connections, also. See pages 723, 726, supra. , 135 Parsons v. Tillman, 95 Ind. 452; Fidelity Ins., Trust & Safe Deposit Co. V. Shenandoah Valley R. Co., 86 Va. 1, 19 Am. St. Rep. 858. 136 Wharton v. Walker, 4 Barn. & C. 163; Liversidge v. Broadbent, 4 Hurl. & N. 603; Cochrane v. Green, 9 C. B. (N. S.) 448; Kelso v. Fleming, 104 Ind. 180; Studehaker Bros. Mfg. Co. v. Endom, 51 La. Ann. 1263, 72 Am. St. Rep. 489; Butterfield v. Hartshorn, 7 N. H. 345; Scott v. Atchison, 36 Tex. 76; Spycher v. Werner, 74 Wis. 456. 13T Kelso V. Fleming, 104 Ind. 180; Studebaker Bros. Mfg. Co. v. Endom, 51 La. Ann. 1263, 72 Am. St. Rep. 489; Ayer v. Kilner, 148 Mass. 468; Adams v. Power, 48 Miss. 450. 138 Hart V. Alexander, 2 Mees. & W. 484. (859) § 427 DISCHARGE OP CONTRACT. [Ch, 10 fords the creditor no consideration for the release. •'^^* How- ever, if the creditor receives a consideration for the release, such, for instance, as a new note from one or more of the remaining members of the firm, his release of the retiring partner is effectual.^^" § 427. Form of new contradt. As a rule, a contract may be discharged only by an agree- ment of equal dignity.^*-' A corollary of this rule. would be, and so it is sometimes expressed, that a sealed contract may be discharged only by a sealed writing, and that an attempt- ed parol waiver or modification of it is void ; but in the Unit- ed States this rule has its qualifications. It is true that a contract under seal may not be waived or modified by a parol agreement which is merely executory,^ *^ but, if the parol contract has been carried out, the rule is otherwise;^** and, 139 Lodge v. Dicas. 3 Bam. & Aid. 611; David v. BUice, 5 Barn. & C. 196; Frentress v. Markle, 2 G. Greene (Iowa) 556; Eagle Mfg. Co. V. Jennings, 29 Kan. 657; Wildes v. Pessenden, 4 Mete. (Mass.) 12; Cole V. Sackett, 1 Hill (N. Y.) 516; Walstrom v. Hopkins, 103 Pa. 118. It has been held, on the contrary, that the acceptance by the creditor of the sole and separate liability of one of two or more joint debtors is a valid consideration for an agreement to discharge all the other debtors from liability. Lyth v. Ault, 7 Bxch. 669. 140 Stone V. Chamberlin, 20 Ga. 259; Maxwell v. Day, 45 Ind. 509; Powell v. Blow, 34 Mo. 485; Millerd v. Thorn, 56 N. Y. 402; Luding- ton v. Bell, 77 N. Y. 138, 141. To have this effect, it has been said, the note must be received with the intention that it shall satisfy the original obligation, else it will not effect a discharge, and this may be determined from the circumstances of the case. Gates v. Hughes, 44 Wis. 332. 1" Mitchell v. Hawley, 4 Den. 414, 47 Am. Dec. 260, 262. This rule finds expression in the maxim, Eodem Ugamine quo ligatum est dissolvitur. i*2Spence v. Healey, 8 Exch. 668; Smith v. Lewis, 24 Conn. 624, 641; Loach v. Farnum, 90 111. 368; Chapman v. McGrew, 20 111. 101; McMurphy v. Garland, 47 N. H. 316, 322; French v. New, 28 N. Y. 147, 150; Sherwin v. Rutland & B. R. Co., 24 Vt. 347. Contra, Robinson v. Bullock, 66 Ala. 548, 554. 143 Whiting V. Heslep, 4 Cal. 327; Munroe v. Perkins, 9 Pick. (860) Ch. 10] NEW CONTRACT. § 427 furthermore, if the parties have acted on the parol agreement, and thereby altered their situation, the sealed contract is as eflFectually discharged as if the waiver or modification were under seal.^^* Some courts draw a distinction between cases at law and those in equity, holding that a parol waiver or modification, while void at law, is valid in equity.^*' And it' has been held in England that, while a specialty may not be discharged by parol, yet the parties may make a parol con- tract which may create valid obligations separate from the deed, and substantially at variance with it, giving a right of action to which the deed furnishes no answer.-^*® A parol or simple contract may be discharged by word of mouth; and this is so, in the absence of statute, whether it is in writing or not. If a written contract is not under seal, the writing is not the agreement, but only the evidence of it, and the contract may therefore be discharged by a simple ex- pression of an intention to that effect.^ *'^ If a parol con- (Mass.) 298; Siebert v. Leonard, 17 Minn. 433 (Gil. 410); McCreery V. Day, 119 N. Y. 1, Huff cut & W. Am. Cas. Cont. 524; Allen v. Jactuish, 21 "Wend. (N. Y.) 628; Dearborn v. Cross, 7 Cow. (N. Y.) 48; Davis v. Inscoe, 84 N. C. 396. 144 Canal Co. v. Ray, 101 U. S. 522; Green v. Wells, 2 Cal. 584; Cook v. Murphy, 70 111. 96; Central Ry. Co. v. Read, 37 111. 484, 511; Dick- erson v. Ripley, 6 Ind. 128; Herzog v. Sawyer, 61 Md. 344; Hastings V. Lovejoy, 140 Mass. 261; Mill Dam Foundry v. Hovey, 21 Pick. (Mass.) 417, 428; Munroe v. Perkins, 9 Pick. (Mass.) 298; Thomp- son V. Poor, 147 N. Y. 402; McKenzie v. Harrison, 120 N. Y. 260; Allen V. Jaquish, 21 Wend. (N. Y.) 628, 632; Le Fevre v. Le Fevre, 4 Serg. & R. (Pa.). 241; Cutler v. Smith, 43 Vt. 577; Lawrence v. Dole, 11 Vt. 549; Phelps v. Seely, 22 Grat. (Va.) 573. 145 Canal Co. v. Ray, 101 U. S. 522; McCreery v. Day, 119 N. Y. 1, 16 Am. St. Rep. 793, Huffcut & W. Am. Cas. Cont. 524. 146 Anson, Cont. (8th Ed.) 280; Nash v. Armstrong, 10 C. B. (N. S.) 259, Langdell, Cas. Cont. 304. 147 Anson, Cont. (8th Ed.) 281; Goss v. Nugent, 5 Barn. & Adol. , 58; Swain v. Seamens, 9 Wall. (U. S.) 254; Borum v. Garland, 9 Ala. 452; Gatlin v. Wilcox, 26 Ark. 309; Cartright v. Clopton, 25 Ga. 85; Rhodes v. Thomas, 2 Ind. 638; Aldrich v. Price, 57 Iowa, 151; Wiggin V. Goodwin, 63 Me. 389; Seaman v. O'Hara, 29 Mich. 66; Miles v. (861) § 427 DISCHAEGE OF CONTRACT. [Ch. 10 tract is reduced to writing pursuant to the requirement of statute, even then a simple waiver of performance may be made by word of mouth ;^*^ but if the discharge is more than a simple rescission, and is such as arises from the making of a new agreement inconsistent with the old one, then the statute is construed to require it to be in writing, else it has no effect,^*® unless, of course, the new agreement has been executed.-""' And even though the original agreement is in writing, and contains a provision that it may not be modified by word of mouth, yet it may be so modified, since the par- ties cannot change rules of law to suit their pleasure.-"^ Roberts, 34 N. H. 245; Taylor v. Seaboard & R. R. Co., 99 N. C. 185, 6 Am. St. Rep. 509; Thurston v. Ludwig, 6 Ohio St. 1; Mc- Nlsh V. Reynolds, 95 Pa. 483; Flanders v. Fay, 40 Vt. 316; Brown v. Everhard, 52 Wis. 205. An obvious exception to this rule is the case of an attempted oral modification in the terms of a negotiable instrument. Bishop, Cont. § 770. 1*8 Goman v. Salisbury, 1 Vern. 240; Goss v. Nugent, 5 Barn. & Adol. 58, 65; Beach v. Covillard, 4 Cal. 315; Wulschner v. "Ward, 115 Ind. 219; Guthrie v. Thompson, 1 Or. 353; Lauer v. Lee, 42 Pa. 165. 1*0 Noble V. Ward, L. R. 2 Exch. 135; Goss v. Nugent, 5 Barn. & Adol. 58, 65; Swain v. Seamens, 9 Wall (TJ. S.) 254, 272; Carpenter V. Galloway, 73 Ind. 418; Abell v. Munson, 18 Mich, 306, 312; Burns V. Fidelity Real Estate Co., 52 Minn. 31; Hill v. Blake, 97 N. Y. 216; Musselman v. Stoner, 31 Pa. 265; Dana v. Hancock, 30 Vt. 616. There is, however, a line of decisions holding that the time or man- ner of performing a contract within the statute of frauds may be changed by subsequent oral agreement. Stearns v. Hall, 9 Cush. (Mass.) 31; Blanchard v. Trim, 38 N. Y. 225, 227; Negley v. JefCers, 28 Ohio St. 90. Contra, Noble v. Ward, L. R. 2 Exch. 135. See pages 543, 856, supra. 150 Beach v. Covillard, 4 Cal. 315; Whittier v. Dana, 10 Allen (Mass.) 326. See page 541, supra. 151 Ford v. United States, 17 Ct. CI. 60; McFadden v. O'Donnell, 18 Cal. 160; Carrugi v. Atlantic Fire Ins. Co., 40 Ga. 135; West- chester Fire Ins. Co. v. Earle, 33 Mich. 143; Smith v. Gugerty, 4 Barb. (N. Y.) 614; Morrison v. Insurance Co. of North America, 69 Tex. 353, 5 Am. St. Rep. 63. See, however, White v. San Rafael & S. Q. R. Co., 50 Cal. 417. (862) Ch. 10] PAYMENT. § 428 IX. Discharge by Peeformance. A contract may be discharged by doing what the contract requires to be done. § 428. In general. Performance that discharges one of two parties from his liabilities under a contract must be distinguished from per- formance that discharges the obligation in its entirety. "Where a promise is given upon an executed consideration," says Sir William Anson/^^ "the performance of his promise by the promisor discharges the contract. All has been done on both sides that could be required to be done under the con- tract. Where," however, "one promise is given in considera- tion of another, performance by one party does no more than discharge him who has performed his part. Each must have done his part in order that performance may be a solutio obli- gationis, and so, if one has done his part, and not the other, the contract is still in existence, and may be discharged in any one of the ways we have mentioned." "Whether the alleged performance is a discharge to the party concerned," he con- tinues, "must be a question to be answered, first, by ascer- taining the construction of the contract, so as to see what the parties meant by performance, and then by ascertaining the facts, so as to see whether that which has been done corre- sponds to that which was promised." X. Same — Patment. As applied to money demands, payment is the rendition of a sum of money due the payee. The medium of payment must be genuine, else the debt re- mains in full force. If the creditor, by agreement, express or implied, accepts, in discharge of the debt, a negotiable instrument issued by the debtor, his rights are merged in the new contract. 152 Anson, Cont. (8th Ed) 282. (863) § 429 DISCHARGE OF CONTRACT. [Ch. 10 If the creditor makes no agreement, express or implied, the presumption is that the instrument was intended to be only a conditional discharge, so that, if the instrument is not paid when due, the creditor may enforce the original debt. This presumption does not always apply where the instru- ment taken by the creditor is not the debtor's, but a third per- son's. An unexplained delay of twenty years or more from the ma- turity of the debt, before attempting to enforce a money demand, if the debtor has not in the meantime recognized the debt, raises a presumption of payment. If a creditor accepts payment from a volunteer, the debtor may, in some jurisdictions, take advantage of it. If a man owing several debts to the same person makes a partial payment, he has a right to say to what debt ii shall be applied. If the debtor gives no direction, the creditor may, as a rule, apply the payment to any debt he sees fit. If neither debtor nor creditor applies the payment to a par- ticular debt, the court will apply it so as to dispense justice in the particular case. § 429. In general. In a general sense, payment is the rendition by the prom- isor to the promisee of the exact thing promised, with the as- sent of both parties that it is rendered and received in satis- faction of the promise, and not for another purpose. In a more restricted sense, payment is the rendition of a snm of money due.^®^ The present discussion concerns itself with payment in the latter and more common sense. The medium of payment must be genuine, — ^must be what it purports on its face to be. Payment in forged paper, spii- rious bills, or base coin, whether the debt be antecedent or con- temporaneous, is void, and, where there has been, no improper 163 Cyclopedic Law Diet. "Payment." (864) Ch. 10] PAYMENT. § 430 conduct on the part of the creditor, it leaves the debt in full force and effect. ^^* Payment may be a discharge either of an original contract between the parties or of a new contract substituted for the original one. Thus, if a contract calls for the payment of a sum of money at a certain time and place, payment of the prescribed sum in the manner specified discharges the debtor. Again, a contract may call for the payment of a sum of money, and the creditor may afterwards agree to receive something, else in payment, in which case payment in the substituted medium will discharge the debtor the same as if he had paid the original contract by means of money.-^®^ However, it re- quires an agreement to admit of this substitution. A debtor cannot transfer property in payment of a money demand un- less the creditor consents to it.^^® § 430. Negotiable instrument as payment. Another illustration of payment through the substitution of a new contract occurs where a bill, note, check, or other negotiable instrument is given in payment of a sum due, whether as the performance of the original contract or in sat- isfaction for the breach of it. This substitution may affect 154 Eagle Bank v. Smith, 5 Conn. 71, 13 Am. DeNesbitt V. Pearson's Adm'rs, 33 Ala. 668; Townsend v. Wells, (890) Ch. 10] BREACH OF CONTRACT. § 452 son,***^ " a new obligation will in every case arise, — a right of action conferred upon the party injured by the breach. Be- sides this, there are circumstances under which the breach will discharge the injured party from such performance as may still be due from him. * * * By discharge we must understand, not merely the right to bring an action .upon the contract because the other party has not fulfilled its terms, but the right to consider one's self exonerated from any further performance under the contract, — the right to treat the legal relations arising from the contract as having come to an end, and given place to a new obligation, a right of action. * * * But though every breach of the con- tractiial obligation confers a right of action upon the injured party, it is not every breach that will discharge him from doing what he has undertaken to do under the contract. The contract may be broken wholly or in part, and, if in part, the breach may or may not be sufficiently important to operate as a discharge, or, if it be so, the injured party may choose not to regard it as a breach, but may continue to carry out the contract, reserving to himself the right to bring action for such damages as he may have sustained. It is often very diSicult to ascertain whether or no a breach of one of the terms of a contract discharges the party who suffers by it." § 452. Rights and remedies of innocent party upon discharge of contract. If a contract is discharged by the default of one of the parties, the other has certain rights and remedies, which may be thus briefly defined: First. The innocent party may waive the breach, and thus keep the contract alive and sub- 3 Day (Conn.) 327; McNitt v. Clark, 7 Johns. (N. Y.) 465; Wag- goner V. Cox, 40 Ohio St. 539; Choice v. Moseley, 1 Bailey (S. C.) 136; Stewart v. Donelly, 4 Yerg. (Tenn.) 176. 251 Anson, Cont. (8th Ed.) 286. (891) § 452 DISCHARGE OF CONTRACT. [Ch. 10 sisting.^^^ Second. He may consider himself exonerated from any further performance that may have been due on his part, and successfully defend an action brought for non- performance,^''^ or for specific performance.^*^ Third. He may sue at once upon the contract for such damages as he has sustained by its breach,^*® without being obliged tci show that performance has been rendered or tendered by him.^^' Fourth. If he has done all or a portion of that which lie promised, and, accordingly, has a money claim therefor, he may treat the claim as being due \ipon a new contract aris- ing from the other party's implied promise to pay for what has thus been done f^^ or, if the part that he has done under the contract is apportionable as to price, he may recover tlicrefor on tlie contract. ^^^ XVI. Same — Replmatkw of Contract. If either party to a contract repudiates its obligation, either before performance is due or in the course of performance, the other party is entitled to consider the contract broken, and may immediately bring action, and is himself discharged from performing his part of the contract. To constitute a breach by repudiation — -■''- See page 896, infra. 25.! Anson, Cont. {8tu Ed.) 289; Behn v. Burness, 3 Best & S. 751, Langdell, Cas Cont. 556; Morgan v. Bain, L. R. 10 C. P. 15; Davison v. Von Lingeu, 113 U. S. 40, Huftcut & W. Am. Cas. Cont. 265; Lalie Shore & M. S. Ry. Co. v. Richards, 152 111. 59; Canda V. Wick, 100 N. Y. 127. 2">^ Anderson v. Haskell. 45 Iowa, 45. 250 Hale V. Trout, 35 Cal. 229, Huffcut & W. Am. Cas. Cont. 561. 257 Anson, Cont. (8lh Ed.) 289; Cort v. Ambergate, N. & B. & E. J. Ry. Co., 17 Q. B. 127. 259 Anson, Cont. 289; Blanche v. Colburn, 8 Bing. 14; Greene v. Haley, 5 R. I. 260; Suber v. PuUin, 1 Rich. (S. C.) 273; Derby v. Johnson, 21 Vt. 17, Huffcut & W. Am. Cas. Cont. 568. 260 Hale V. Trout, 35 Cal. 229, Huffcut & W. Am. Cas Cent. 561. (S02) Ch. 10] REPUDIATION OF CONTRACT. § 454 (a) The renunciation of the contract must be absolute and unequivocal. (b) It must refer to the entire performance to which the con- tract binds the party making the renunciation. (c) The other party must act upon the renunciation, and treat it as such. § 453. In general. If a party to a contract in terms repudiates its obligation, or expresses a determination not to fulfill its terms, or no- tifies the other party not to perform it, the innocent party is entitled to consider the contract broken. This repudia- tion of the contract may be made either by the promisor or by the promisee, and it may occur while the contract is wholly execiitory, — that is, before the promisee is entitled to call for performance, — or it may occur in the course of perform- ance. The repudiation of a contract may be withdrawn at any time before the other party acts upon it,^®^ but not after that event. If the promisee acts upon the renunciation, the promisor may not afterwards withdraw it, and compel the promisee to accept performance, or hinder him from bring- ing action. ^"^ § 454. Repudiation by promisor. "The parties to a contract which is wholly executory have a right to something more than a performance of the con- tract when the time arrives," says Sir William Anson.^^' "They have a right to the maintenance of the contractual re- lation up to that time, as well as to the performance of the contract when due." Accordingly, the renunciation of the obligation of the contract by one of the parties before the 261 Nilson V. Morse, 52 Wis. 240. 262 Daniels v. Newton, 114 Mass. 530, 533; Rayburn v. Comstock, 80 Mich. 448. 263 Anson, Cont. (8th Ed.) 290. (893) § 454 DISCHARGE OP CONTRACT. [Ch. 10 time for performance arrives discharges tlie other party, if he so elects, and at once entitles him to sue for a breach. ^®^ Thus, where a contract was made in April for the rendition of services to commence in June, and in May the employer wrote the employe that his services would not be required, it was held that the employe might immediately sue for breach of the contract, without waiting until the time for perform- ance arrivad.'^^" The rule applies even where the contract is a conditional one, as where a man promises to marry a woman upon his father's death, and renounces the contract before that event. The woman may sue at once for the breach. ^^' If, during performance of a contract, or after the time for performance arrives, one of the parties, by word or act, open- ly and clearly refuses to perform his promise in whole or in part, the other party is thereupon exonerated from perform- ing his part of the contract, and is at once entitled to bring action.^"'* Thus, if a man orders goods to be nianufactTired 265 Roper V. Johnson, L. R. 8 C. P. 178; Dingley v. Oler (C. C.) 11 Fed. 372; Danforth v. Tennessee & C. R. Co, 93 Ala. 614; Remy V. Olds, 88 Cal. 537; Roebling's Sons Co. v. Lock Stitch Fence Co., 130 111. 660; Kurtz v. Frank, 76 Ind. 594, Huffcut & W. Am. Gas. Cont. 358; McGormick v. Basal, 46 Iowa, 235; Piatt v. Brand, 26 Mich. 175; Nichols v. Scranton Steel Co., 137 N. Y. 471; Windmul- ler V. Pope, 107 N. Y. 674, Huffcut~& W. Am. Gas. Cont. 555; Ferris V. Spooner, 102 N. Y. 10; Howard v. Daly, 61 N. Y. 362; James v. Adams, 16 W. Va. 267. And see Burtis v. Thompson, 42 N. Y. 246. Contra. Daniels v. Newton, 114 Mass. 530; sem'ble, Stanford v. Mc- Gill, 6 N. D. 536. If one party to a contract notifies the other that he will no longer be bound by it, the latter is excused from tender- ing a sum that he would otherwise be required to pay thereunder. McPherson v. Fargo, 10 S. D. 611, 66 Am. St. Rep. 723. It is well settled everywhere that repudiation of an executory contract gives the innocent party a right of action after the day for performance has passed. Eckenrode v. Canton Chemical Co., 55 Md. 51; Shaw V. Republic Life Ins. Co., 69 N. Y. 286. 260HQchster v. De la Tour, 2 El. & Bl. 678. 267 Frost V. Knight, L. R. 7 Exch. Ill, 114. 288 Hulle V. Heightman, 2 East, 145, 2 Smith, Lead. Gas. 21; ( S04) Ch. 10] REPUDIATION OP CONTRACT. § 45f, for him, and afterwards, and before all the goods have been made and delivered, refuses without cause to keep his prom- ise, the seller may recover the damages thereby sustained, without making or tendering the rest of the goods. ^"^ § 455. Repudiation by promisee. If the promisee renounces the contract before full perform- ance, and notifies the promisor not to proceed, the latter may at once treat it as a breach of the contract, and maintain an action therefor. ^^^ He may not, however, complete the con- tract, and thereby increase the damages recoverable by hiin.^''^ S 456. Limits of rule. To constitute a breach by renunciation, the repudiation of United States v. Behan, 110 U. S. 338; Hale v. Trout, 35 Cal. 229, HufEcut & W. Am. Cas. Cont. 561; Smith v. Lewis, 24 Conn. 624; Lake Shore & M. S. Ry. Co. v. Richards, 152 111. 59; Durkee v. Ounn, 41 Kan. 496, 13 Am. St. Rep. 300; Parker v. Russell, 133 Mass. 74; Collins v. Delaporte, 115 Mass. 162; Clement & Hawkes Mfg. Co. -V. Meserole, 107 Mass. 362; Hosmer v. Wilson, 7 Mich. 304; Haines T. Tucker, 50 N. H. 311; Derby v. Johnson, 21 Vt. 17, Huff cut & W. Am. Cas. Cont. 568. 2S9 Cort V. Ambergate, N. & B. & E. J. Ry. Co., 17 Q. B. 127, Langdell, Cas. Cont. 937; Central Lithographing & Engraving Co. T. Moore, 75 Wis. 170, 17 Am. St. Rep. 186. 270 Strauss v. Meertief, 64 Ala. 299; Jewett v. Brooks, 134 Mass. 505; Pond v. Wyman, 15 Mo. 175; semhle, Nebraska City v. Ne- l)raska City Hydraulic Gas Light & Coke Co., 9 Neb. 339, 343; Windmuller v. Pope, 107 N. Y. 674, Huffcut & W. Am. Cas. Cont. 555. . 271 Moline Scale Co. v. Beed, 52 Iowa, 307, 35 Am. Rep. 272; Col- lins V. Delaporte, 115 Mass. 159; Hosmer v. Wilson, 7 Mich. 294; Gibbons v. Bente, 51 Minn. 499; Butler v. Butler, 77 N. Y. 472; Dillon V. Anderson, 43 N. Y. 231; Clark v. Marsiglia, 1 Denio (N. Y.) 317, 43 Am. Dec. 670, Huffcut & W. Am. Cas. Cont. 572; Davis -V. Bronson, 2 N. D. 300, 33 Am. St. Rep. 783, and note; Unexcelled Fire Works Co. v. Polites, 130 Pa. 536, 17 Am. St. Rep. 788; Tufts V. Lawrence, 77 Tex. 526; Derby v. Johnson, 21 Vt. 17, Huffcut & W. Am. Cas. Cont. 568; Danforth v. Walker, 37 Vt. 239. And see Wando Phosphate Co. v. Gibbon, 28 S. C. 418, 13 Am. St. Rep. 690. (80.5) § 456 DISCHARGE OF CONTRACT. [Ch. 10 the contract must be unequivocal and absolute. A mere as- sertion that the party will be unable to fulfill his promise, or that he intends in the future to refuse to perform it, is in- sufiicient. There must be, in substance, an avowed deter- mination not to abide by the contract.^''^ The renunciation must deal with the entire performance to which the contract binds the promisor, else it does not dis- charge the promisee.^'^* Thus, a landlord's repudiation of a covenant to repair does not entitle the tenant to throw up the lease before the term expires. ^^* The innocent partj' may, if he wishes, keep the contract alive for certain purposes, in spite of the other's renunciation of it : provided, always, that he may do nothing to increase the damages otherwise recoverable. In order that a mere no- tice of an intention not to perform may constitute a breach, the other party must act upon it.^^" If the innocent party will not accept the other's renunciation, and continues to insist upon performance, the contract remains in existence for the benefit and at the risk of both parties ;^'"^ and if anything subsequently occurs to discharge it, the promisor may take advantage of the discharge."'^ Thus, if a promisor repudiates the contract, and the promisee nevertheless con- tinues to insist upon performance, and afterwards war breaks 272Dingley v. Oler, 117 U. S. 490, 503, HufEcut & W. Am. Cas. Cont. 556; Fay v. Oliver, 20 Vt. 118, 49 Am. Dec. 764. 2'3 Wharton v. Wincli, 140 N. Y. 287. This matter closely con- cerns independent promises and conditions precedent. See page 901, infra. 2T4 Johnstone v. Milling, 16 Q. B. Div. 460. 275 Leigh V. Paterson, 8 Taunt. 540, 4 E. C. L. 267; Phillpotts v. Evans, 5 Mees. & W. 475; Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8; Roebling's Sons Co. v. Lock Stitch Fence Co., 130 111. 660; Kadish v. Young, 108 111. 170; Davis v. Bronson, 2 N. D. 300, 33 Am. St. Rep. 783, 785; Zuck v. McClure, 98 Pa. 541. As to increas- ing damages, see page 895, supra. ^T« Roebling's Sons Co. v. Lock Stitch Fence Co., 130 111. 660. 277 Anson, Cont. (8th Ed.) 291. (896) Ch. 10] PREVENTION OF PERFORMANCE. § 453 out, and renders performance legally impossible, the promisor is discharged, and is not liable as for a breach of the con- tract.-'** XVII. Same — Prevention of Peufoemance. If, before performance of a contract has commenced, or dur- ing performance, either the promisor or the promisee by his own act renders fulfillment of the contract impossible, it con- stitutes a breach, and the innocent party is entitled to sue, and is himself discharged from performance. § 457. In general. If a party to a contract by his own act destroys the possi- bility of the engagement's being laerformed, it constitutes a breach, and the innocent party is entitled to sue. This form of breach may occur either before performance is due, or after perfoi-mance has begun, and it may occiir on the part of either promisor or jDromisee. The innocent party may sue for a breach in a case of this kind, even though he has not performed acts which would otherwise be a condition preced- ent to his recovery. ^^^ § 458. Breach by promisor. Impossibility of jserformance created by the promisor him- self does not excuse from performance.^*" If the promisor, before performance is due, by his own act makes it impossi- ble that he should perform his promise, the effect is the same as if he had i*enonnced the contract, and the other party is entitled at once to sue for the breach, even thoiigh in con- tingent circumstances it may again become possible to per- 278 Avery V. Bowden, 5 El. & Bl. 714. 2-9Woolner v. Hill, 93 N. Y. 576; Hawley v. Keeler, 53 N. Y. 114. And see page 921, infra. -^" Dill V. Pope, 29 Kan. 289. (897) Law CI Cont. — 57. § 458 DISCHARGE OF CONTRACT. £Ch. 10 form the contract.^^^ An illustration of this occurs where a man enters into a marriage engagement, and subsequently marries a third person. The injured party may sue at once for the breach.^^^ So, if a man enters into a contract to con- vey property, real or personal, and afterwards transfers the property to a third person, it constitutes a breach, and the other party may sue.^®* If, unknown to the promisee, ' the promisor is, at the time he makes the contract, unable to perform the promise, the breach is simultaneous with the promise, and the promisee may sue at once.^®* If, during the performance of a contract, the promisor by his own act renders it impossible that he should perform the 281 United States v. Peck, 102 TJ. S. 64; Reusens v. Mexican Na- tional Construction Co. (C. C.) 22 Fed. 522; Wolf v. Marsh, 54 Cal. 22S, Huffcut & W. Am. Cas. Cont. 560; Crabtree v. Messer- smith, 19 Iowa, 179, 182; Dill v. Pope, 29 Kan. 289; Burton v. Shot- well, 13 Bush (Ky.) 271; Liovering v. Lovering, 13 N. H. 513; Wool- ner v. Hill, 93 N. Y. 576. Upon the same principle, where one is hound to perform on demand, and by his own act he renders per- formance iinpossibJe, nO demand is necessary to put him in de- fault and to entitle the other party to sue. Boyle v. Guysinger, 12 Ind. 273; Bassett v. Bassett, 55 Me. 127; Laybourn v. Seymour, 53 Minn. 105, 39 Am. St. Rep. 579; Delamater v. Miller, 1 Cow. (N. Y.) 75, Huffcut & W. Am. Cas. Cont. 561. 282 Clements v. Moore, 11 Ala. 35; King v. Kersey, 2 Ihd. 402; Sheahan v. Barry, 27 Mich. 217; Brown v. Odill, 104 Tenn. 250, 78 Am. St. Rep. 915. 283 Lovelock V. Franklyn, 8 Q. B. 371; Synge v. Synge [1894] 1 Q. B. 466; Buttrlck v. Holden, 8 Cush. (Mass.)' 233; Newcomb v. Brackett, 16 Mass. 161; James v. Burchell, 82 N. Y. 108; Harriss V. Williams, 48 N. C. (3 Jones, Law) 483; Branson v. Oregonian Ry. Co., 10 Or. 278; Phillips v. Herndon, 78 Tex. 378, 22 Am. St. Rep. 59; Packer v. Steward, 34 Vt. 127. The mere making of a second executory contract to sell property that the vendor has already agreed to sell is not of itself a breach of the prior agree- ment, since it does not incapacitate him from carrying out the orig- inal contract. Stanford v. McGill, 6 N. D. 536. 284 Blattmacher v. Saal, 29 Barb. (N. Y.) 22; Woods v. North, 6 Humph. (Tenn.) 309; Harrington v. Wells, 12 Vt. 505. (S9S) Ch. 10] PREVENTION OF PERFORMANCE. g 459 engagement, the other party is thereupon exonerated from performance on his part, and may at once bring action.^*' Thus, if the publisher of a serial makes a contract for a trea- tise, and, before the time for delivery of the article arrives, discontinues the publication, it puts an end to the contract, and the aiithor may recover on a qvxmtum meruit for what he has done in part performance.^*^ § 459. Breach by promisee. If the promisor is prevented from performing his contract, or any part of it, by the default or the refusal of the promisee, performance is to that extent excused ;^®^ and the promisor 285Hulle V. Heightman, 2 Bast, 145; Lovell v. St. Louis Mut. Life Ins. Co., Ill U. S. 264; Woodberry v. Warner, 53 Ark. 488, HufCcut & W. Am. Cas. Cont. 574; Smith v. Roe, 7 Colo. 95; Rankin v. Dar- nell, 11 B. Men. (Ky.) 30, 52 Am. Dec. 557; Western Union Tele- graph Co. V. Semmes, 73 Md. 9; Suber v. Pullln, 1 Rich. (S. C.) 273. 286pianche v. Colburn, 8 Blng. 14. 28T O'Neil V. Armstrong [1895] 2 Q. B. 418; Blandford v. An- drews, Cro. Eliz. 694, Langdell, Cas. Cont. 787; Clearwater v. Mere- dith, 1 Wall. (U. S.) 25, 39; Warner v. Wilson, 4 Cal. 310; Ruble V. Massey, 2 Ind. 636; Shulte v. Hennessy, 40 Iowa, 352; Jones v. Walker, 13 B. Mon. (Ky.) 163; Lynch v. Sellers, 41 La. Ann. 375; Parker Vein Coal Co. v. O'Hern, 8 Md. 197; Fredenburg v. Turner, 37 Mich. 402; Davis v. Crookston Water Works, Power & Light Co., 57 Minn. 402, 47 Am. St. Rep. 622; Hammer v. Breidenbach, 31 Mo. 49; McAndrews v. Tippett, 39 N. J. Law, 105; Gallagher v. Nichols, 60 N. Y. 438; Whitney v. Spencer, 4 Cow. (N. Y.) 39; Cape Fear & D. R. Navigation Co. v. Wilcox, 52 N. C. (7 Jones, Law) 481; Gibson v. Dunnam, 1 Hill (S. C.) 289; Bright v. Taylor, 4 Sneed (Tenn.) 158; Camp v. Barker, 21 Vt. 469; Jones v. Chesa- peake & O. R. Co., 14 W. Va. 514. The promisee's default may con- sist either in his active interruption or interference, or in the mere omission of something without which the promisor cannot perform his part of the contract. Pollock, Cent. 380; Mackey v. Dick, 6 App. Cas. 251; Williams v. United States Bank, 2 Pet. (U. S.) 96; Aller V. Pennell, 51 Iowa, 537; Majors V. Hickman, 2 Bibb (Ky.) 217; Rayburn v. Comstock, 80 Mich. 448. And see cases cited s«pj"a, in this note. (899) § 459 DISCHARGE OP CONTRACT. [Ch. 10 may treat it as a breach, and recover any loss he may have incurred thereby;^*® or he may rescind the contract, and re- cover back any money he may have paid under itf^^ or he may recover the value of the benefit conferred on the prom- isee by the part performance, either by way of services ren- dered,^^" or by way of goods furnished.^^^ Thus, if the fail- ure of a building contractor to complete the work by the day specified is due to the failure of the promisee to supply plans, or to deliver possession of the land, or other act or omission on his part, the default is excused, and the promisee cannot take advantage of a provision in the contract making it de- terminable at his option in the event of the contractor's fail- ing in the due performance in any part of his undertaking, or a provision imposing a penalty on the contractor for delay beyond the time fixed in the contract for completion. ^^^ Again, if sureties on a bail bond are unable to surrender the prin- cipal because of his subsequent arrest and detention by the state, there is no forfeiture, since the state itself, a party to the bond, has by its own act prevented performance of the condition. -^^ 288 Roberts v. Bury Improvement Com'rs, L. R. 5 C. P. 310; Haw- ley v. Smith, 45 Ind. 183; Black v. Woodrow, 39 Md. 194; Smith v. Boston, C. & M. R. Co., 36 N. H. 458; Kugler v. 'Wiseman, 20 Ohio, 361; Curtis v. Smith, 48 Vt. 116. ^sfi Giles V. Edwards, 7 Term R. 181; United States v. Behan, 110 U. S. 338; Seipel v. International Life Ins. & Trust Co., 84 Pa. 47. 290 City of Chicago v. Tilley, 103 U. S. 146; Woodberry v. Warner, 53 Ark. 488, Huffcut & W. Am. Gas. Cont. 574; Connelly v. Devoe, 37 Conn. 570; Marquis v. Lauretson, 76 Iowa, 23; Canada v. Can- ada, 6 Cush. (Mass.) 15; Blood v. Enos, 12 Vt. 625. 201 Humaston v. American Telegraph Co., 20 Wall. (U. S.) 20. 282 Roberts v. Bury Improvement Com'rs, L. R. 5 C. P. 310, 329; Holme V. Guppy, 3 Mees. & W. 387; Van Buren v. Digges, 11 How. (U. S.) 461; Weeks v. Little, 89 N. Y. 566. 293 Com. v. Overby, 80 Ky. 208; People v. Bartlett, 3 Hill (N. Y.) 570; Peacock v. State, 44 Tex. 11; Caldwell v. Com., 14 Grat. (Va.) 698. And see Puller v. Davis, 1 Gray (Mass.) 612. Subsequent ar- (900\ Ch. 10] FAILURE OF PERFORMANCE. | 4(,0 XVIII. Same — Failure of Performance — In General. Whether the simple failure of one party to perform his part of a contract operates to discharge the innocent party from the corresponding duty to perform, or whether the latter merely acquires a right of action for the other's breach, depends upon whether the promises are independent of or conditional upon one another. If independent, a breach by one party does not discharge the other from performance. If conditional, either party is discharged by the other's breach. Whether a promise is independent or conditional depends upon the intention of the parties, as gathered from the lan- guage of the contract, construed as a whole, with reference to its subject-matter. § 460. In general. We have just seen that if a man repudiates the obligation of his contract, or does something that destroys the possibility of its being performed, the innocent party is discharged from performing his part of the contract, and may at once bring an appropriate action for relief. Where, however, the fail- ure to perform a contract after performance becomes due is not accompanied by a repudiation of the obligation, and where nothing has been done to destroy the possibility of per- formance, the innocent party is not always discharged. The question whether simple failure of performance on the part of one party operates to discharge the innocent party from the reciprocal duty to perform his part of the contract, or whether he is nevertheless bound to perform, and merely ac- quires a right of action for the other's breach, is one of diffi- culty, which resolves itself into this : Were the respective promises of the parties independent of, or conditional upon, rest and detention of the principal in another state does not ex- cuse a default, however. Taylor v. Taintor, 16 Wall. (U. S.) 366; Cain V. State, 55 Ala. 170; State v. Horn, 70 Mo. 466; Devine v. State, 5 Sneed (Tenn.) 623. (901) §461 DISCHARGE OF CONTRACT. [Ch. 10 one another ? If independent, the failure of one party to per- form his promise does not discharge the other from perform- ance of what he has promised. in return ; if conditional, either party is discharged hy the failure of the other to fulfill his obligation. The question whether promises are independent or conditional is one of construction, depending upon the in- tention of the parties as expressed in the terms of the con- tract, considered as a whole, with reference to its subject-mat ter.'»^ XIX. Same — Ikdepehdent Pbomisbs. Eeciprocal promises in a contract may be independent — (a) Where they are absolute. (b) Where performance of them is divisible. (c) Where they are subsidiary, An absolute promise occurs where the promisor neither ex- pressly nor by implication makes the obligation to perform his promise conditional upon performance of the reciprocal prom- ise given him by the other party. Accordingly, the promisor is not discharged from performance by a breach on the part of the other party. Where a contract is susceptible of being divided into several distinct and independent contracts, in accordance with the in- tention of the parties, it is said to be separable or divisible, as distinguished from an entire or indivisible contract; and a breach of one of the several contracts does not preclude a re- covery upon the others. Where the performance of one of the several undertakings in a contract is not vital to the existence of the agreement, the promise is said to be subsidiary, and a breach of it does not discharge the innocent party from the duty to perform his part of the contract. 294 Roberts v. Brett, 11 H. L. Gas. 337, Langdell. Gas. Cent. 575; Philadelphia, W. & B. R. Co. v. Howard, 13 How. (U. S.) 307; Pro- prietors of Mill Dam Foiindery v. Hovey, 21 Pick. (Mass.) 417, 438; Grant v. Johnson, 5 N. Y. 247, Langdell, Cas. Cont. e03. And see pages 909, 921, infra. (t)02) Ch. 10] ■ INDEPENDENT PROMISES. § 462 § 461. In general. A promise may be said to be independent in several ways : First. It may be absolute, as where A.'s promise to X. is wholly unconditional upon the performance by X. of his re- ciprocal promise to A. Second. The performance of a prom- ise, otherwise absolute, may be divisible, as where it consists of an obligation to do several distinct things. The failure of A. to do one of the several things he promises does not discharge X. from doing what he promised in return. Third. A promise, otherwise absolute, may be subsidiary, as where the parties do not regard it as being vital to the existence of the contract. The failure to perform such a promise does not discharge the innocent party, but merely gives him a right of action for the breach. § 462. Absolute promises. If a contract consists of mutual promises, and neither party, either expressly or by implication, makes the perform- ance of his promise depend upon the performance of the promise given him in return, the promises are said to be ab- solute. A breach of neither promise mil discharge the other, and either party may recover for a breach without showing performance on his part.^®^ The reason given for the rule 20^ Seeger y. DutMe, 29 Law J. C. P. 253, 30 Law J. C. P. 65, Langdell, Cas. Cont 691; Cbristie v. Borelly, 29 Law J. C. P. 153^. Langdell, Cas. Coat. 688; Philps v. Clift, 28 Law J. ExcIl 153, Landgell, Cas. Cont. 685; Fillieul v. Armstrong, 7 Adol. & E. 55T, Langdell, Cas. Cont. 657; SpUler v. Westlafce, 2 Bam. & Add. 155, Langdell, Cas. Cont. 654; Dawson v. Dyer, 5 Bam. & Adol. 584, Langdell, Cas. Cont, 655; Winstone v. Linn, 1 Bam. & C. €60, Lang- dell, Cas. Cont. 649; Stavers v. Curling, 3 Bing. N. C. 355, Lang- dell, Cas. Cont. 876; Terry v. Dnntze, 2 H. Bl. 389, Langdell, Cas. Cont. 634; Davidson v. G-wynne, 12 East, 381, Langdell, Cas. Cont. 865; Judson v. Bowden, 1 Exch. 162, Langdell, Cas. Cont. 673; Gibbons v. Prewd, Hardres, 102, Langdell, Cas. Cont. 624; New- son V. Smythies, 3 Hurl. & N. 840, Langdell, Cas. Cont. 882; Beany V. Turner, 1 Lev. 293, Langdell, Cas. Cont. 629; Cole v. Shallet. 3 Lev. 41, Langdell, Cas. Cont. 631; Thorp's Case, March, 75, Lang- (903) § 462 DISCHARGE OP CONTRACT. [Ch. 10 is this: In entering into a contract consisting of absolute promises, each party relies, not on the prospective perform- ance of the promise given him, but solely upon the promise itself ; each is satisfied with the other's liability, and does not insist upon the other's performance as a security for his prom- ise. This being the case, the law will not interfere to change the contract by making performance by either party a con- dition upon his right to recover for the other's breach.^^® Some of the old cases ujDon this subject turn upon a very technical construction of terms, and the early tendency was to construe promises to be absolute, rather than dependent. ^*^ dell, Cas. Cont. 622; Storer v. Gordon, 3 Maule & S. 308, LangdeU, Cas. Cont. 639; Hays v. Bickerataffe, 2 Mod. 34, Langdell, Cas. Cont. 630; Spanish Ambassador v. Gifford, 1 RoUe, 336, Langdell, Cas. Cont. 620; Everard v. Hopkins, 1 RoUe, 124, Langdell, Cas. Cont. 620, note; Caton v. Dixon, 1 Rolle, Abr. 415, pi. 10, Langdell, Cas. Cont. 622; Bragg v. Nightingale, 1 Rolle, Abr. 416, pi. 15, Langdell, Cas. Cont. 623; Hunlocke v. Blacklowe, 2 Saund. 156, Langdell, Cas. Cont. 627; Ware v. Chappell, Style, 186, Langdell, Cas. Cont. 623; Pothergill v. Walton, 8 Taunt. 576, La,ngdell, Cas. Cont. 645; Martin- dale V. Fisher, 1 Wils. 88, Langdell, Cas. Cont. 632; Bettisworth v. Campion, Yel. 133, Langdell, Cas. Cont. 619; Bean v. Atwater, 4 Conn. 3; Runkle v. Johnson, 30 111. 328; Gillum v. Dennis, 4 Ind. 417; Hutchings v. Moore, 4 Mete. (Ky.) 110; Sewall v. Wilkins, 14 Me. 168; Stansbury v. Fringer, 11 Gill & J. (Md.) 149; Rowland V. Leach, 11 Pick. (Mass.) 151, 154; McRaven v. Crisler, 53 Miss. S42; Clough v. Baker, 48 N. H. 254; Dodge v. McClintock, 47 N. H. 383; Tracy v. Albany Exchange Co., 7 N. Y. 472, Huffcut & W. Am. Cas. Cont. 579; Dey v. Dox, 9 Wend. (N. Y.) 129; Gould v. Banks, 8 Wend. (N. Y.) 562, 24 Am. Dec. 90; Lutz v. Thompson, 87 N. C. 334; Gould v. Brown, 6 Ohio St. 538; McCrelish v. Church- man, 4 Rawle (Pa.) 26; Adrian v. Lane, 13 S. C. 183; Kettle v. Harvey, 21 Vt. 301; Todd v. Summers, 2 Grat. (Va.) 167. 206 Thorp V. Thorp, 12 Mod. 455, Langdell, Cas. Cont. 446. 287 Anson, Cont. (4th Ed.) 288, 289; per Grose, J., in Glazebrook V. Woodrow, 8 Term R. 366, Langdell, Cas. Cont. 732. Thus, it was said that, if A. makes a promise to X. in consideration of its lieing "agreed" that X. shall do something for A., each promise is absolute and independent; but if A.'s promise is made "provided" that X. shall do something for A., A.'s promise is conditional, and (904) Cll, 10] INDEPENDENT PROMISES. § 462 This, however, is no longer the case. The modern tendency is to construe promises to be dependent upon each other, -where they form the whole consideration for one another, un- less there is some definite expression of the parties to the con- trary ; and accordingly the failure to perform one promise excuses performance of the other, and neither party may re- cover without showing performance on his part.*^* An important test for determining whether reciprocal promises in a contract are absolute or independent is the or- der in which the things promised are to be done. The prom- ise to be performed first is independent, and may be enforced without reference to whether the other has been performed, provided the time for performance of the last has not arrived. The promise to be performed last is dependent upon the per- formance of the first promise, and may not, therefore, be sued upon until the first has been fulfilled.^^® For instance, if a is discharged by X.'s nonperformance. Holder v. Tayloe, 1 Rolls, Abr. 518, Langdell, Cas. Cent. 620. See, also, Anonymous, Y. B. 15 Hen. VII. p. 10, pi. 7, Langdell, Cas. Cont. 442. 298 Anson, Cont. (4th Ed.) 289, 290; Tidey v. Mollett, 33 Law J. C. P. 235, Langdell, Cas. Cont. 567; Grafton v. Eastern Counties Ry. Co., 8 Exch. 699, Langdell, Cas. Cont. 527; Rolt v. Cozens, 25 Law J. C. P. 254, Langdell, Cas. Cont. 543; Bank of Columbia v. Hagner, I Pet. (U. S.) 465; Mecum v. Peoria & O. R. Co., 21 111. 533; Smith V. Boston & M. R. R., 6 Allen (Mass.) 262; Robinson v. Harbour, 42 Miss. 795; Hamilton v. Thrall, 7 Neb. 218; Dakin v. Williams, II Wend. (N. Y.) 69; Lutz v. Thompson, 87 N. C. 334; Scheland v. Brpelding, 6 Or. 258; Quigley v. De Haas, 82 Pa. 267. 299 Dicker v. Jackson, 6 C. B. 103, Langdell, Cas. Cont. 676; Mor- ton V. Lamb, 7 Term R. 125, Langdell, Cas. Cont. 727; Philadelphia, W. & B. R. Co. V. Howard, 13 How. (U. S.) 307; Goldsborough v. Orr. 8 Wheat. (U. S.) 217; Langley v. Rodriguez, 122 Cal. 580; Sheeren v. Moses, 84 111. 448; Kane v. Hood, 13 Pick. (Mass.) 281, Langdell, Cas. Cont. 760; State v. Winona & St. P. R. Co., 21 Minn. 474; McRaven v. Crisler, 53 Miss. 542, Huff cut & W. Am. Cas. Cont. 577; Eddy v. Davis, 116 N. Y. 247; Grant v. Johnson, 5 N. Y. 247, Langdell, Gas. Cont. 603; Northrup v. Northrup, 6 Cow. (N. Y.) 296, Langdell, Cas. Cont. 721; McCoy's Adm'rs v. Bixbee's Adm'rs, 6 Ohio, 312. (905) g 462 DISCHARGE OF CONTRACT. [Ch. iQ man promises to do a thing, and no time for performance is set, and the other party promises in return to pay him a cer- tain sum at a fixed time, the payment is independent of per- formance, and the promisor may recover the money without first having performed his promise; or if the promisee fails to make the payment when due, the promisor may rescind, and refuse to perform.^''*' On the other hand, if one of the parties is to do a thing, whereupon the other party is to do something else, the former cannot sue the latter for nonper- formance until he himself has performed.^"^ Thus, a man cannot recover an agreed compensation until he has done the act for which it was agreed to be given.^"^ soopordage v. Cole, 1 Saund. 319i, Langdell, Cas. Cont. 625; Wllks V. Smith, 10 Mees. & W. 355, Langdell, Cas. Cont. 666; Camp- bell V. Jones, 6 Term R. 570, Langdell, Cas. Cont. 839; Mattoek v. Klnglake, 10 Adol. & B. 50, Langdell, Cas. Cont. 662; Moggridge V. Jones, 14 Bast, 486, Langdell, Cas. Cont. 638; Sibthorp v. Bru- nei, 3 Excb. 826, Langdell, Cas. Cont. 679; Dwinel v. Howard, 30 Me. 258. 301 Worsley v. Wood, 6 Term R. 710, Langdell, Cas. Cont. 472 ; Roper V. Lendon, 1 El. & El. 825, Langdell, Cas. Cont. 546; Coward V. Gregory, L. R. 2 C. P. 153; Thorp v. Thorp, 12 Mod. 455, Lang- dell, Cas. Cont. 446; Lea v. Exelby, Cro. Eliz. 888, Langdell, Cas, Cont. 789; Thomas v. Cadwallader, Willes, 496, Langdell, Cas. Cont. 458; Mason v. Harvey, 8 Bxch. 819, Langdell, Cas. Cont. 530; Slater V. Stone, Cro. Jac. 645, Langdell, Cas. Cont. 444; Ranay v. Alex- ander, Yel. 76, Langdell, Cas. Cont. 443; Loud v. Pomona Land & Water Co., 153 U. S. 564; Hill v. Grigsby, 35 Cal. 656, HufEcut & W. Am. Cas. Cont. 580; Taylor v. Jackson, 5 Houst. (Del.) 224; Branch v. Palmer, 65 Ga. 210; Vinton v. Baldwin, 88 Ind. 104; White v. Day, 56 Iowa, 248; Jewett v. Brown, 71 Me. 485; Fay v. Guynon, 131 Mass. 31; Cadwell v. Blake, 6 Gray (Mass.) 402, Lang- dell, Cas. Cont. 609; Ehlert v. Klenger, 43 Mich. 61; Pratt v. Can- ton Cotton Co., 51 Miss. 470; Cornell v. Cornell, 96 N. Y. 108; Gil- bert V. Port, 28 Ohio St. 276; Lyndon Granite Co. v. Farrar, 53 Vt. 585. 302 Smith V. Wilson, 8 Bast, 438, Langdell, Cas. Cont. 909; Peo- ple V. Gardner, 55 Cal. 304; Wehrli v. Rehwoldt, 107 m. 60; Alle- gany County School Com'rs v. Adams, 43 Md. 349; Weber v. Clark, 24 Minn. 354; Cunningham v. Morrell, 10 Johns. (N. Y.) 203, Lang- dell, Cas. Cont. 600. (906) CJl. 10] INDEPENDENT PROMISES. § 463 $ 463. Bivisible contracts. If a contract, although evidenced by one instrument, is severable into distinct and independent contracts, it is said to be divisible, rather than entire. A breach of one of these independent contracts does not constitute a breach of anoth- er,^"^ and a breach of one is actionable without reference to the performance of the others.***"' The principal feature of a divisible contract is that either party, having fully performed any one of the several agreements into which the contract may be divided, may siie thereon for its breach by the other party, without pleading or proving performance on his (plaintiff's) part of all tlie several agreements.*"^ If the consideration of a contract is single, the contract is, generally speaking, entire and indivisible, whatever the niTm- ber of items embraced in its subject, and the promises in- volved in an entire contract are mutual and dependent.*"'' If, however, the part of a contract to be performed by one party consists of several and distinct items, and the consid- eration to be paid by the other party is apportioned to each item to be performed, or is left to be implied under the law, the contract is generally held to be severable or divisible ; and the failure of the promisor to perform one item does not en- title the other party to rescind the contract, and refuse to ac- sosHutchens v. Sutherland, 22 Nev. 363. 304 Hill V. Chipman, 59 Wis. 211. 305 Harber Bros. Co. -v. Moffat Cycle Co., 151 111. 84. 306 Reuter v. Sala, 4 C. P. Div. 239; Neale v. Ratcliff, 15 Q. B. 916, Langdell, Cas. Cont. 510; Smith v. Lewis, 40 Ind. 98; Dibol v. Mi- nott, 9 Iowa, 403; Thompson v. Conover, 32 N. J. Law, 468; Cole- man v. New Orleans Ins. Co., 49 Ohio St. 310, 34 Am. St. Rep. 565; Fullmer v. Poust, 155 Pa. 275, 35 Am. St. Rep. 881; Rugg v. Moore, 110 Pa. 236. Whether negotiations for separate articles result in one entire contract for the whole, or whether each forms the subject of a separate and distinct contract, may depend upon many circum- stances, and raises a question of fact that is properly passed upon by the jury. Weeks v. Crie, 94 Me. 458, 80 Am. St. Rep. 410. (907) § 463 DISCHARGE OF CONTRACT. [Ch. 10 cept further performance, nor discharge him from the ob- ligation of paying for the other items, if they have been per- formed.^"^ An important illustration of this occurs where goods are sold to be delivered and paid for in installments of a specified amount. As to whether the faikire of the seller to deliver any one installment, or the substantial part of it, according to the contract, entitles the buyer to rescind the contract, and refuse to accept further installments, and as to whether the failure of the buyer to accept and pay for each installment when tendered entitles the seller to rescind, the authorities are in conflict. In England and some of the American states the right of rescission does not, as a rule, exist f°^ but the weight of authority in America is to the con- trary.^*"' 807 Ritchie V. Atkinson, 10 East, 295, 308, Langdell, Cas. Cont. 848; More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Leonard v. Dyer, 26 Conn. 172, 68 Am. Dec. 382; Bank of Antigo v. Union Trust Co., 149 111, 343; Dibol v. Mlnott, 9 Iowa, 403; Plerson v. Crooks, 115 N. Y. 539, 12 Am. St. Rep. 831; Wooten v. Walters, 110 N. C. 251; Fullmer v. Poust, 155 Pa. 275, 35 Am. St. Rep. 881. See Cahen v. Piatt, 69 N. Y. 348. However, a contract may be entire and indivisible, even though the promise is to do several distinct things, and the consideration is apportionable to each item, if such appears to be the intention of the parties. Broxton v. Nelson, 103 Ga. 327, 68 Am. St. Rep. 97; Smith v. Lewis, 40 Ind. 98; Maryland Fertilizing & Mfg. Co. v. Lorentz, 44 Md. 218; Thompson v. Con- over, 32 N. J. Law, 468; Grant v. Johnson, 5 N. Y. 247, Langdell, Cas. Cont. 603 ; Quigley v. De Haas, 82 Pa. 267. A total failure to perform a divisible contract discharges the other party, the same as if it were indivisible. Poussard v. Spiers, 1 Q. B. Div. 410, Lang- dell, Cas. Cont. 591. 308 Simpson v. Crippin, L. R. 8 Q. B. 14, Langdell, Cas. Cont. 710; Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434; Preeth v. Burr, L. R. 9 C. P. 208, Langdell, Cas. Cont. 712; Myer v. Wheeler, 65 Iowa, 390; BoUman v. Burt, 61 Md. 415; Blackburn v. Reilly, 47 N. J. Law, 308; Trotter v. Heckscher, 40 N. J. Eq. 656; Gerli v. Poidebard Silk Mfg. Co., 57 N. J. Law, 432, 51 Am. St. Rep. 611; Scott V. Kittanning Coal Co., 89 Pa. 231, 33 Am. Rep. 753; Tucker V. Billing, 3 Utah, 82. Contra, Hoare v. Rennie, 5 Hurl. & N. 19, (908) Ch. 10] INDEPENDENT PROMISES. § 463 The question whether a contract is entire or separable into several independent contracts depends upon the intention of the parties, which is to be ascertained, without regard to technicalities, from the langiTage employed by them, construed as a whole, with reference to the subject-matter of the engage- ment.'^^'-' Langdell, Cas. Cont. 549; Honck v. Muller, 7 Q. B. Div. 92. The parties may, by the express terms of the contract, make perform- ance of each stipulation a condition precedent to the continuing obligation of the contract. Cutter v. Powell, 6 Term R. 320; Nor- rington v. Wright, 115 U. S. 211, Huffcut & W. Am. Cas. Cont. 584; Tyson v. Doe, 15 Vt. 571. If it appears from the nature of the contract and the surrounding circumstances that performance of each stipulation was an inducement to entering into the engage- ment, and so went to the root of the matter as to make its per- formance a condition of the obligation to proceed in the con- tract, then a failure as to one installment gives a right to rescind. Norrington v. Wright, 115 U. S. 211, Huffcut & W. Am. Cas. Cont. 584; Jenness v. Shaw, 35 Mich. 20; Catlin v. Tobias, 26 N. Y. 221. If the failure to make one installment is accompanied by a repudi- ation of the obligation of the contract, then of course the other party may treat it as a breach, and terminate the contract. Anson, Coat. (4ih Ed.) 292; Withers v. Reynolds, 2 Barn. & Adol. 882, Lang- dell, Cas. Cont. 740, Stephenson v. Cady, 117 Mass. 6; Haines v. Tucker, 50 N. H. 307; Blackburn v. Reilly, 47 N. J. Law, 308. See Winchester v. Newton, 2 Allen (Mass.) 492. See page 894, supra. And the same is true where the price is payable in installments as the goods are delivered, and the nonpayment of one installment is accompanied by circumstances giving the seller reasonable ground for thinking that the buyer will not be able to pay for the rest. The seller may, in this event, terminate the contract, and refuse to make further deliveries. Bloomer v. Bernstein, L. R. 9 C. P. 588. 360 Norrington v. Wright, 115 V. S. 211, Huffcut & W. Am. Cas. Cont. 584; McGrath v. Gegner, 77 Md. 331, 39 Am. St. Rep. 415; Barrie v. Earle, 143 Mass. 1; Robson v. Bohn, 27 Minn. 333; Pope v. Porter, 102 N. Y. 366, 371; Hill v. Blake, 97 N. Y. 216, 221; Rugg V. Moore, 110 Pa. 236; King Philip Mills v. Slater, 12 R. I. 82. And see Bradley v. King, 44 111. 339. sioPoUak V. Brush Electric Ass'n of St. Louis, 128 U. S. 446; More V. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Morris v. Wibaux, 159 111. 627; Weeks v. Crie, 94 Me. 458, 80 Am. St. Rep. 410; State (909) § 464 DISCHARGE OF CONTRACT. :[Ch. 10 S 464. Subsidiary promises. If one of the parties to a contract undertakes on his part to do several things, one of these undertakings may be sub- sidiary in the sense that performance of it is not vital to the existence of the contract.^^^ Thus, where a professional sing- er entered into a contract to sing in opera and at concerts for a specified time upon certain terms, a further provision by which he agreed to be present at least six days before the com- mencement of his engagement, for the purpose of rehearsals, was regarded as subsidiary, and a breach of it did not dis- charge the other party from performance.^^^ It has been laid down as a general rule that where a stipulation is to be per- formed in the course of the performance of a contract, and after some of the consideration of which it forms a part has been given, it will be regarded as subsidiary, and its breach will not effect a discharge, unless tbere are words expressing that it is a condition jDrecedent, or unless performance of the thing promised is plainly essential to the contract. '^^ For the pvirpose of determining whether a promise is subsidiary or vital, the court will look to the whole contract, and see whether the particular stipulation goes to the root of the matter, so that a failure to perform it would render perform- ance of the rest of the contract by the promisor a thing dif- V. Jones, 21 Nev. 510; Tipton v. Feitner, 20 N. Y. 423; Steamboat Wellsville v. Geisse, 3 Ohio St. 333; Southwell v. Beezley, 5 Or. 458; Shinn v. Bodine, 60 Pa. 182, 100 Am. Dec. 560. 311 MacAndrew v. Chappie, L. R. 1 C. P. 643, Langdell, Cas. Cont. 706; Bornmann V. Tooke, 1 Camp. 377, Langdell, Cas. Cont. 847. However, if a promise otherwise subsidiary is broken in such a way as to frustrate the objects of the contract, it operates as a condition, and the breach of it works a discharge of the other party. Anson, Cont. (4th Ed.) 303; Jackson v. Union Marine Ins. Co., L. R. 10 C. P. 148. 312 Bettini v. Gye, 1 Q. B. Div. 183, Langdell, Cas. Cont. 717. 313 Graves v. Legg, 9 Exch. 716, Langdell, Cas. Cont. 532. See White V. Beeton, 7 Hurl. & N. 42, Langdell, Cas. Cont. 884. (910) Ch. 10] CONDITIONAL PROMISES. § 464 ferent in substance from what he undertook to do, or whether the nonperformance affects the contract only in part, and may be compensated for in damages.*^* XX. Same — ^Conditional Promises. Conditions are either subsequent, concurrent, or precedent. A condition subsequent i% a stipulation by which the hap- pening of a specified event in the future is made to terminate the contract.'^' Concurrent conditions are those by which the rights of each party to a contract are dependent upon his doing or being prepared to do some specified thing simultaneously with the performance of his promise by the other party. A condition precedent is one by which the rights of a party under a contract are dependent upon some one's doing a speci- fied thing, or upon the happening of a certain event, or upon the lapse of a specified time. In a narrower sense, it is a state- ment or a promise, the untruth or nonperformance of which dis- charges the contract. Conditions precedent are either vital or suspensory. A vital condition precedent is one whose nonperformance dis- charges the contract. A suspensory condition precedent is one that merely suspends the operation of the promise until the condition is fulfilled. Where a contract consists of reciprocal promises, and each man's promise is the entire consideration for the promise of the other, either party is discharged by the failure of the other to perform-his promise. Performance of a condition precedent may be waived by the party in whose favor it was introduced into the contract. siiBettini v. Gye, 1 Q. B. Div. 183, Langdell, Cas. Cont. 717; Tar- rabochia v. Hickie, 1 Hurl. '& N. 183, Langdell, Cas. Cont. 681; Brad- ford V. Williams, L. R. 7 Exch. 259, Langdell, Cas. Cont. 588. 315 These conditions have been discussed elsewhere. See page 847, svpra. (911) § 465 DISCHARGE OP CONTRACT. [Ch. 10 § 465. Concurrent conditions. "Concurrent conditions seem, in point of fact, to be condi- tions precedent," says Sir William Anson ;^^'^ "for the simul- taneous performance of his promise by each party must needs be impossible except in contemplation of law. But what we mean by the phrase is that there must be a concurrent readi- ness and willingness to perform the two promises, and that, if one is not able or willing to do his part, the other is dis- charged." Where a contract consists of mutual promises, and the performance of each is a condition of the performance of the other, neither party may sue for a breach on the part of the other imless he himself has performed*^ ^ or is ready to perform^^* his part of the contract. This form of condi- tion is particularly applicable to contracts of sale. Where no time is set for payment of the price, payment and deliv- ery are concurrent conditions, and the right of the seller to receive the price, and that of the buyer to receive the goods, are dependent upon the readiness of each, the one to deliver and the other to pay.^^" The same rule applies to contracts for the jjurchase and sale of real estate.^ ^^ 318 Anson, Cont. (4th Ed.) 298. See, also, Kingston v. Preston, Doug. 688, 691; Stockton Savings & Loan Soc. v. Hildreth, 53 Cal. 721. 317 Collins V. Gibbs, 2 Burrow, 899, Langdell, Cas. Cont. 462; Worsley v. Wood, 6 Term R. 710, Langdell, Cas. Cont. 472; Anony- mous, 4 Leon. 50, Langdell, Cas. Cont. 443; Claflin v. Common- wealth Ins. Co., 110 U. S. 81; Webb v. Smith, 6 Colo. 365; Harber Bros. Co. V. Moffat Cycle Co., 151 111. 84; Drake v. Hill, 53 Iowa, 37; Morford v. Mastln, 6 T. B. Mon. (Ky.) 609, 17 Am. Dec. 168; Toombs V. Consolidated Poe Min. Co., 15 Nev. 444; Pullman v. Corning, 9 N. Y. 93; Payetteville First Nat. Bank v. Clark, 9 Baxt. V. Cutting, 734. Cooch V. Goodman, 518. Cook V. Bradley, 633, 644. V. Brown, 522. V. Bybee, 435. V. Deaton, 244. V. Doggett, 620. V. Elliott, 545. V. Grant, 132. V. Johnson, 452, 455. V. McCabe, 830, 835. V. Mix, 698, 702. V. Murphy, 861. V. Phillips, 339. V. Sherman, 131, 485. T. Shipman, 404. V. Stearns, 564, 565. V. Toumbs, 269. V. Wright, 675, 687. 972 TABLE OF CASES. [BEFEBENCES ABE TO PAGES ] Cooke V. Clayworth, 289, 293. V. Cooke 419 V. Millard, 580, 583, 585. T. Murphy, 668. V. Nathan, 151. T. Oxley, 67, 70, 628. Cookes V. Culbertson, 34. Cookingham t. Dusa, 176, 180. Cool V. Peters Box & Lumber Co., 563, 564. Coolldge V. Euggles, 726. Coombe v. Greene, 915. Coombs V. Bristol & E. Ry. Co., 608. Coon V. Reed, 736. V. Smith, 115. Cooper V. Brewster, 365. T. Cooper, 60, 83. V. Foss, 715. V. Hornsby, 33, 606, 616. V. Hunter, 150. V. Kane, 789. T. King, 699. v. Lansing Wheel Co., 68. V. Lovering, 149. V. McCrimmin, 691. T. Mcllwain, 853. V. Pena, 938. V. Phibbs, 118. V. Schlesinger, 159. V. Shaver, 802. V. Simmons, 232, 233. T. State, 246, 247. V. Tappan, 376, 378, 784. Coots V. Farnsworth, 783. Cope V. Cope, 803. V. Hastings, 219. T. Rowlands, 338, 340, 341, 347, 486. Copeland v. Boaz, 434. V. Cunningham, 517. Copenrath v. Klenby, 295, 296, 304. Coppell V. Hall, 409. Copper Miners v. Fox, 682. Coppock V. Bower, 413. Coquard v. Joplin School Dist., 85. Coquillard v. Hovey, 778. Coqulllard's Adm'r v. Bearss, 406, 428. Corbett v. Cochran, 555, 858. V. Norcross, 527. V. Spencer, 265. Corbin v. Fairbanks, 889. T. Healy, 802. Corbitt v« Stonemetz, 888. Corcorn v. White, 77. Cordes v. Miller. 346, 829. Cordray y. Mordecai, 801. Cork V. Baker, 558. Cork & T. Ry. Co., In re, 335. Corley v. Williams, 415. Cornell v. Cornell, 906. V. Green. 877. Cornfoot v. Fowke, 171. Corning v. Abbott, 341. V. Colt, 38, 77. Cornish t. Abingtou, 8. V. Stubbs, 748. Cornwall v. Hoyt, 313. V. McFarland Real-Estate Co., 148. Corwin V. Hood, 808. Corpe T. Overton, 273. Corporation of Knoxville v. Bird, 829. Corson v. Neatheny, 492. Corson's Appeal, 367. Cort V. Ambergate, N. & B. & B. J. Ry. Co., -892, 895, 922. V. Lassard, 941, 942. Cortelyou v. Van Brundt, 796. Cortland Mfg. Co. v. Piatt, 146. Corwin v. Patch, 815. Cory V. Gertcken, 251. Coryell v. Colbaugh, 934. Cosgrove v. Bennett, 917. Cossitt V. Hobbs, 597. Costello V. Cady, 865. V. Ten Eyck, 358. Coster V. City of Albany, 718. Cote V. Murphy, 449. Cotheal v. Talmage, 927-929. Cother v. Merrick, 805. Cothran v. Ellis, 368, 4-59, 490. V. Forsyth, 531. Cottage St. M. E. Church v. Kendall, 634, 691. Gotten V. McKenzie, 468, 469, 701. Cottingham v. Hill, 787. Cottrell V. Southwick, 477. Couch V. Meeker, 526. V. Mills, 760. Coughlin V. New York Cent. & H. R. R. Co., 428. V. Knowles, 621. Coughran v. Bigelow, 801. Coulter V. Robertson, 475. Coulton V. Depew, 950. Counts V. Bates, 254, 255. Coursolle v. Weyerhauser, 232. Courtney v. Staudenmayer, 869. Courtright v. Burnes, 430. Couturier v. Hastie, 108, 553. Coverdale v. Eastwood, 130., Covington v. Threadgill, 338, 340, 469. Cowan V. Fairbrother, 454, 941. V. Milbourn, 388, 458, 486, 489. V. Musgrave, 59. V. O'Connor, 48. Coward v. Clanton, 566. V. Gregory, 906. Co^din V. Gottgetreu, 551. Cowdry y. Vandenburgh, 737. Coweta Falls Mfg. Co. v. Rogers, 932. Cowhick V. Shingle, 948, 950, 951. Cowie V. Halsall, 844. Cowles V. Peck, 639. V. Warner, 571. V. Whitman, 936. Cowley V. Dobbins, 160-162. V. Patch, 759. V. Smyth, 147, 160, 161. Cox V. Brookshire, 380. V. Highley, 161. V. Martin, 753, 834. V. Montgomery, 177. V. O'Blley, 788. V. Prentice, 115, 122. V. Smith, 380. V. Troy, 16. Coxe V. State Bank at Trenton, 874. Coxwell V. De Vaughn, 871. Coyle V. Campbell, 347. V. Davis, 610. Coyner v. Lynde, 668. Crablll V. Marsh, 613. Crabtree v. May, 262. TABLE OF CASES. 973 [BEFEBENCES ARE TO PAGES.] Crabtree v. Messersmith, 898. Craft T. McConoughy, 443, 485. Craig V. Harper, 66, 683. V. Leslie, 319. V. McMullin, 378. T. Pleiss, 385. V. Seltz, 655. v. Van Bebber, 265, 270, 281. T. Ward, 158. Craighead v. Wells, 269. Cram v. Hendricks, 377. Crane v. Ailing, 760, 766, 767. V. Baudaulne, 56. T. C. Crane & Co., 683. V. Elder, 147. V. Gougb, 33, 542, 607, 614. V. Inhabitants of Hyde Park, 791. v. Powell, 617. V. Reeder, 319. V. Wheeler, 549. Crane Co. v. Specht, 783, 817. Cranmer t Graham, 61. Crans v. Hunter, 656, 685, 687. Cranson t. Goss, 352, 353, 358, 481. Cravens v. Eossiter, 525, 527, 528. V. Eagle Cotton Mills Co., 783, 791. Crawford v. Aetna Life Ins. Co., 325. V. Cato, 196. V. Chapman, 747. T. Dexter, 842. T. Edison, 554. T. King, 553. V. Parsons, 607, 623. V. Kussell, 432. V. Scovell, 302, 305-307. V. Speneer, 368-371, 458, 479, 481. T. The William Penn, 321, 323. V. Wick, 441. Crawfords t. Millspaugh, 854. Crawshaw v. City of Roxbury, 81. Crayton v. Clark, 735. Crears v. Hunter, 679. Creekmore v. Baxter, 295, 303. v. Chitwood, 341. Crehore t. Crehore, 166. Cremer v. Higglnson, 870. Creainger v. Welch's Lessee, 266, 268, 278. Cresswell v. McCaig, 616. Crews V. Williams, 546. Crlbbs V. Sowle, 189, 194. Crlchfield v. Bermudez Asphalt Paving Co., 404, 406, 487. Crim V. Fitch, 549, 550. Cripps V. Hartnoll, 557. Crisp V. Gamel, 703. V. Golding, 702. Crisup V. Grosslight, 418. Crltcher v. Hoiloway, 460. Crittenden v. French, 790. Crocker v. Beal, 763. T. City of Buffalo, 793. V. Higgins, 721. V. New London, W. & P. B. Co., 38, 76. V. Whitney, 726, 731. Crockett v. Scrlbner, 580. Croft V. White, 840. Cromwell v. Benjamin, 24, 55. v. Grunsden, 518. V. Tate's Ex'r, 521. T. Wilkinson, 883. Crook V. Cowan, 56. Crooks V. Nlppolt, 175. Crookshank v. Burrell, 577. Croosley v. Moore, 475. Crosby v. Wadsworth, 563, 616. T. Wood, 665, 697. Cross V. Cross, 433. T. People, 374. V. Richar4son, 553. T. Weare Commission Co., 780. T. Williams, 771. Crossley v. Maycock, 78, 495. V. Moore, 475, 495. Grossman v. Wohlleben, 670. Croswell v. Labree, 842. Crouch V. Credit Foncier of England, 737. V. Gutmann, 878. Grouse v. Holman, 287, 290, 291. Crow V. Rogers, 712. Crowder v. Keyes, 552. T. Reed, 415. Croweil V. Gleason, 191. V. Hopkinton, 76. V. Jackson, 135. V. Maughs, 561, 565. Crowfoot V. Gurney, 858. Crowther v. Farrer, 685. V. Rowlandson, 285. Croyle v. Moses, 145, 146. Cruess v. Fessler, 636. Crumlish's Adm'r v. Central Improve- ment Co., 869, 870. Crump V. Morgan, 294. V. United States Min. Co., 172. Crutchfleld v. Donathon, 609. Cubbedge v. Napier, 499. Cucullu V. Hernandez, 950. Cud V. Eutter, 936. Cuff V. Penn, 543. Cullen V. Butler, 808. Cullum V. Branch of State Bank, 132. Culp V. Love, 443. Culver V. Banning, 628. V. Bigelow, 380. V. Culver, 90. Culverhouse v. Beach, 320. Cumberland Valley Ey. Co. v. Baab, 399. Cummer v. Butts, 88. Cummings v. Blanchard, 815. V. Browne. 803. V. Gann, 75. V. Henry, 301. V. People, 767. V. Powell, 231, 269, 276, 277. V. Sanx. 474. T. Arnold, 543. V. Dennett, 580. V. Union Blue Stone Co., 443, 445. Cnmmings' Appeal, 201. Cummins v 1-iavkalow, 407.- V. Wire. S70, .')82. Cundy v. Lindsay, 32, 104. Cunningham v. Curtis, 807. V. Morrell, 906. V. Munroe, 666. V. National Bank of Augusta, 368, 479. 481. V. Shields, 169. V. Williams, 600. Cunningham's Heirs v. Cunningham's Ex'rs, 328. Curling V. Chalklen, 809. Curran v. Curran, 608. 974 TABLE OF CASES. [BEFEBENCES ABE TO FAGE8.] Curran v. Downs, 341. V. Galem, 448. V. Eummell, 944. Currie v. Misa, 633. Currier v. Hodgdon, 729. v. Howard, 729, 733. Curry v. American Freeliold Land Mortg. Co., 794. Curson t. Monteiro, 837. Curtin t. Patton, 250, 255, 262. V. Somerset, 717. Curtis V. Brownell, 288. V. Gokey, 452, 456. V. Leavitt, 117, 495. v. Sage, 574. V. Smith, 900. Curtiss V. Howell, 153. T. McDougal, 275. Cusack V. White, 390. Cushing V. Drew, 928. Cuthrell t. Cuthrell, 784. Cutler V. Close, 878. T. Dickinson, 534. V. Everett, 545. V. Pope, 562, 563. V. Smith, 861. T. Southern, 915. T. Tufts, 811, 812. T. Welsh, 460. Cutter V. Cochrane, 637, 672, 855. V. Powell, 909. Cutting V. Grand Trunk Ey. Co., 933. Cutting Packing Co. v. Packers' Ex- change of California, 731. Cutts V. Guild, 108, 109. Cuxon T. Chadley, 727. D. D. M. Osborne & Co. v. Poket, 933. Da Costa v. Jones, 364, 387. Dacosta v. Davis, 618, 889. Dade Coal Co. v. Haslett, 325, 327. Daggett V. Johnson, 89. Daggers v. Van Dyck, 948. Dahlman v. Hammel, 595. Dahms v. Sears, 425-427. Dakin v. Williams, 792, 905. Dalbiac v. Dalbiac, 131. Dalby v. India & London Life Assur. Co., 366. Dale V. Hamilton, 566. V. Knepp, 356. V. Robinson, 315. Da Lee v. Blackburn, 128, 157, 158, 161. Daley v. Minnesota Loan & Inv. Co., 382 383 Dallas V. Heard, 315, 316. Dalpay, In re, 503. Dalrymple v. Craig, 148. Dalton V. Midland Counties Ey. Co., 310. V. Thurston, 134. Daly V. Smith, 940. Dambmann v. Schultlng, 145. Dame v. Flint, 498. Dana V. Coombs, 275. T. Hancock, 510, 543, 857, 862. V. St. Paul Investment Co., 883. V. Stearns, 259. V. Third Nat; Bank of Boston, 732. Danforth v. Schoharie & Duanesburgh Turnpike Eoad, 223. V. Streeter, 424. V. Tennessee & C. E. Co., 894. V. Walker, 895. D'Angibau, In re, 720. Dangler v. Baker, 169. Daniel v. Frazer, 606. V. Mitchell, 109, 115. V. Tarver, 699. Daniels v. Bailey, 563. V. Barney, 463, 479. V. Mowry, 384. V. Newton, 893, 894. Dann v. Spurrier, 817. Danolds v. State, 217, 220. Dant V. Head, 573. Danvers v. Parker, 815. D'Aquin v. Barbour, 795. Darby v. Boucher, 240. V. Cabanne, 298, 299. Darland v. Greenwood, 912. Darling v. Stuart, 160. Darraugh v. Blackford, 261. Darren v. Tibbitts, 137. Darst V. Bates, 549, 553. V. Brockway, 703. Dart v. Lowe, 630. Dashiel v. Harshman, 100, 151, 168. Davenport v. First Congregational Soc, 667, 674. V. Newton, 77, 311. v. Whisler, 837. Davey v. Shannon, 571. David V. Ellice, 860. V. Park, 156. v. Ryan, 346. Davidson v. Carter, 494. V. Cooper, 844. V. Gwynne, 903. V. Jordan, 160. V. Moss, 153. V. Wood, 299. V. Young, 250, 251, 259, 260. Davie v. Lumberman's Mln. Co., 683. Davies v. Burns, 396, 664. v. Davies, 449, 456, 643. V. Humphreys, 773. V. London & P. Marine Ins. Co., 135, 146. V. Stowell, 423. Davis V. Arledge, 464. V. Badders, 914. V. Barger, 351. V. Bean, 702. V. Bechstein, 737. V. Belford, 770. V. Betz, 173, 174. V. Bronson, 503, 504, 895, 896. V. Caldwell, 243-245. V. Carlisle, 840. V. Central Vermont E. Co., 438. V. Chicago, M. & St. P. Ey. Co., 437, 497. V. Clark, 837. V. Clinton Water-Works Co., 713, 718. V. Coburn, 730. V. Com., 388. V. Crookston Water Works, Power & Light Co., 899. TABLE OF CASES. 975 [KEPEBENCES ABE TO PAGES.] Davis V. Davis, 529. V. Dodd, 644. V. Driscoll, 159. V. Dudley, 261, 278. V. Duffle, 327. V. Duke of Marlborougli, 403. V. Foreman, 939. V. Freeman, 926. V. Garrett, 529. V. Gerber, 567. V. German American Ins. Co., 651. V. Gray, 693. V. Heard, 129, 159. V. Henry, 844. V. Inscoe, 616, 861. V. King, 709. V. Lane, 66, 833. V. Laning, 327. V. Luster, 189, 193. V. McFarlane, 562. v. McVicliers, 698. V. Maxwell, 851. V. Moore, 607, 610. v. Munson, 664. V. Nuzum, 159, 161. V. Old Colony E. Co., 224. V. Parish's Representatives, 72. V. Patrick, 553. V. Phillips, 285. V. Phoenix Ins. Co., 155. V. Eeyner, 546. V. Robert, 783. V. Robertson, 578, 602. V. Rowell, 578. v. School Dist. No. 2, 43. V. Settle, 430. V. Shields, 599, 601. V. Sloman, 382. V. Spencer, 944. V. Stuard, 176. V. Tibbats, 464. V. Tift, 551, 594. V. United States, 927. V. Van Buren, 761. V. Wait, 702. V. Walker, 561. V. Webber, 427, 429, 488. T. Wells, 47. T. Williams, 524. Davis' Adm'r v. Smith, 826. Davis Sewing Mach. Co. v. Buckles, 871. v. Richards, 47. Davison v. Von Lingen, 127, 886, 892, 920. Davisson v. Ford, 677, 687. Dawe V. Morris, 150, 153, 154. Dawes v. Peck, 717. V. Prentice, 807. Dawkins v. Gill, 413, 467. V. Sappington, 43, 81. Dawson v. Dyer, 903. V. Ewlng, 874. / V. Hall, 523, 526. V. Helmes, 265, 268. Dawson's Lessee v. Godfrey, 318. Day V. Caton, 56. V. Cloe, 555. V. Davis, 531. V. Griffith, 525, 528. V. Lacasse, 603. V. Leal, 537. V. McAllister, 358. Day V. McLea, 944. V. New York Cent. R. Co., 619, 620. V. Putnam Ins. Co., 396, 664. V. Spiral Springs Buggy Co., 226. V. Wilson, 622. Dayton v. Fargo, 730. V. Stone, 88. Dazey v. Mills, 728. Deal V. Maxwell, 580. Dean v. Adams, 535. V. Anderson, 610. V. Emerson, 471. V. Morey, 133. V. Newhall, 760. V. Richmond, 314. V. St. Paul & D. R. Co., 732. V. Tallman, 583. V. Walker, 713, 715. V. Wilson, 929. Deans v. McLendon, 335, 349, 484. Dearborn v. Bowman, 635, 640, 647, 649. V. Cross, 861. V. Turner, 850. Dearden v. Adams, 281. Dearie v. Hall, 736. Deatly's Heirs v. Murphy, 494. Deatou v. Tennessee Coal & R. Co., 573. Deaver v. Bennett, 492. Debenham v. Ox, 391. De Bernardy v. Harding, 855. Deblois V. Earle, 818. De Bussche v. Alt, 65. De Camp v. Hammar, 99. Decell V. Lewenthal, 241, 243, 345, 348. Dederick v. Wolfe, 791, 798. Dedham Bank v. Chickering, 809. Dee V. Downs, 544, 555. Deering v. Chapman, 469. Deering Harvester Co. v. Melheim, 697, 701. De Forest v. Strong, 382. De Graff v. Queen Ins. Co., 796. De Groot v. Van Duser, 477. De Herques v. Marti, 609. De Hoghtou v. Money, 425. De Jarnette v. De Giverville, 320, 324. Delafield v. Anderson, 201. V. State, 218, 220. Delamater v. Miller, 898. Delano v. Blake, 260. V. Montague, 569, 571. V. Rice, 156. Delavinia v. Hill, 460. Delaware & H. Canal Co. v. Westches- ter County Bank, 419, 721, 914. De Leon v. Trevino, 485. Delier v. Plymouth Co. Agricultural Soc, 372. Dellone v. Hull, 174. De Longuemere v. New York Fire Ins. Co., 137. Delp V. Bartholomay Brewing Co., 550. De Luneville v. Phillips, 324. De Mattos v. Benjamin, 478. V. Gibson, 745. Demeritt v. Bickford, 557. Demlng v. Darling, 155. Demoss v. Noble, 38. Den d. Ballew v. Clark, 291, 293. Den d. Cubberly v. Cubberly, 787. Den d. Gibson v. Partee, 526. Den d. Hoyle v. Stowe, 254. 976 TABLE OF CASES. [UEFEEENCES ARE TO PAGES.] Den d. Inskeep v. Lecony, 31. Den d. Martin v. Brown, 318. Den d. Murray v. Shanklin, 266. Den d. Obert v. Hammel, 531. Den d. Osborne v. Tunis, 217. Den a. Springs v. Hanks, 660. Den d. Wooden v. Shotwell, 4T4, 488, 489, 784. Denison v. Crawford Co., 405. Denmead v. Glass, 583. Dennehy v. McNulta, 467. Dennett v. Dennett, 285, 287. Denney v. Jolinson, 409. Dennis v. Moses, 337. V. Twitcliell, 734. Denniston v. Bacon, 699. Denny v. Williams, 583, 618. Dent V. Bennett, 131. T. Long, 199. V. North American Steamship Co., 56. Dentler v. O'Brien, 252, 253. Denton v. English, 463. V. Great Northern Ey. Co., 76. T. Perry, 530. Denver Fire Ins. Co. v. McClelland, 225. Denver & N. O. Construction Co. v. Stout, 420. De Pere Co. v. Keynen, 745 Deputy V. Stapleford, 196. Derby v. Johnson, 892, 895. V. Phelps, 558, 569. Dering v. Earl of Wlnchelsea, 773. Dermott v. Jones, 828, 834, 919. Derocher v. Continental Mills, 280, 281. Derrick v. Brown, 570. Derry v. "Peek, 158, 159, 162. Derry Bank v. Webster, 528. Deshon v. Fosdick, 78. De Silvale v. Kendall, 836. Desilver, In re, 295. Des Moines Ins. Co. v. Mclntire, 235, 252 Des Moines Nat. Bank v. Chisholm, 285. De Sobry v. De Laistre, 390, 500, 503. De Soto Co. V. Dickson, 800. Destrehan v. Louisiana Cypress Lumber Co., 788, 815. Devaux^v. Connolly, 702. Devecmon v. Shaw, 692. Dever v. Corcoran, 653. Devln v. Himer, 517. V. Scott, 297. Devine v. Edwards, 115. V. State, 901. Devlin v. Brady, 406. V. Chamblin, 867, 868. V. City of New York, 725. Devoe v. Brandt, 183. Devol V. Mcintosh, 715. Devon V. Pawlett, 753. Dew V. Parsons, 666. De Wahl v. Braune, 313. Dewees v. Miller, 364, 492. Dewey v. Alleire, 287, 308. V. Humphrey, 874. V. Union school Dlst., 827. De Witt V. Eoot, 551. De Wolf T. City of Chicago, 56. V. Johnson, 499. De Worms v. Mellier, 914. De Wutz v. Hendricks, 410. Dexter v. Hall, 293, 295. V. Norton, 641, 831. Dey v. Dox, 904. De Zeng v. Bailey, 760. Dial T. Wood, 235, 236. Diamond Match Co. v. Eoeber, 451, 453, 454, 925, 941. Dibblee v. Sheldon, 174. Dibol V. Minott, 907, 908. Dick V. Ireland, 851. Dicken v. Johnson, 290. V. Morgan, 682. Dicker v. Jackson, 905. Dickerman v. Day, 377. Dickerson v. Gordon, 271. V. Eipley, 861. Dickey v. Llnscott, 833. Dickin, Ex parte, 871. Dickinson v. Calahan's Adm'rs, 754, 831. V. Dodds, 67, 70. v, Seaver, 425. Dickson v. Dickson, 711. v. Eeuter's Telegram Co., 157, 717. Dickson's Ex'r v. Thomas, 365, 368, 479. Dietz's Assignee v. Sutclifife, 185. Dilburn v. Youngblood, 936. Dilk V. Keighley, 241. Dill T. Bowen, 270, 273. V. Pope, 897, 898. V. White, 769. Dillaby v. Wilcox, 547, 554. Dillard v. Manhattan Life Ins. Co., 325. Dillingham v. Blood, 481. Dillman v. Nadlehoffer, 155, 639. Dillon V. Allen, 340, 484. V. Anderson, 895. V. Bowles, 242. Dills V. Doebler, 928, 941. Dimmock v. Hallett, 155. Dimock v. United States Nat. Bank, 915. Dingeldein v. Third Ave. B. Co., 715. Dingley v. Oler, 894, 896. Dinsmore v. Tidball, 135. Disborough v. Neilson, 887. Disbrow v. Durand, 83. Dismukes v. Parrott, 780. Dix V. Cobb, 737. Dixie V. Worthy, 654. Dixon V. Adams, 667. V. Clark, 873, 877. V. Duke, 616. V. Merritt, 231, 256, 266. V. Olmstead, 418, 489. Doane v. Chicago City Ey. Co., 411. V. Dunham, 789. Dob V. Halsey, 761, 762. Dobbin v. Hubbard, 314-316. Dobbins v. Cruger, 534. Dobson v. Crew, 790. V. Collis, 573. Docket V. Voyel, 647. Dodd V. Mitchell, 800. Dodge V. City of Council Bluffs, 224. V. Crandall, 542. V. Emerson, 866. V. Essex Ins. Co., 123. V. McClintock, 904. V. Oatls, 697. V. Eogers, 922. V. Stiles, 663. Dodson V. Harris, 63. Doe V. Burnham, 480. TABLE OF CASES. 977 [references are to pages.] Doe V. Burt, 796. Doe d. Bish v. Keeling, 781. Doe d. Campbell v. Eoe, 840. Doe a. Garnons v. Knight, 529. Doe d. Gaskell v. Spry, 781. Doe d. Hall v. Benson, 814. Doe d. Jackson t. Ashburne, 812. Doe d. McCormic t. Leggett, 256, 263, 276. Doe d. Mllburu v. Salkeld, 780. Doe d. Milbourne t. Simpson, 780. Doe d. Moore v. Abernathy, 231, 277. Doe d. Murray v. Sbanklin, 260. Doe d. Phillips' Heirs v. Porter, 802. Doe d. Smith v. Galloway, 807. T. Greenlee, 392. Doe d. Spicer v. Lea, 815. Doe d. Thomas v. Roberts, 231. Doe d. Webb v. Dixon, 817. Doe d. Whitney v. Cochran, 615, 617. Doe d. Willis v. Martin, 800. Doebler v. Waters, 701. Doggett V. Emerson. 132, 159. Doher'ty v. Doe, 542. V. Hill, 596. Dohoney v. Dohoney, 354. Doll V. Noble, 880. Dolph V. Hand, 278. T. Froy Laundry Mach. Co., 444, 445. Dolson V. Hope, 341. Domiuiek v. Randolph, 287. Donahue v. McNulty, 783. T. Parkman, 930. Donaldson v. Benton, 874. V. Farwell, 134, 143, 183. Donehoo's Appeal, 296. Donellan y. Read, 569, 573. Donelson v. Polk, 745. Donelson's Adm'rs v. Posey, 289. Donisthorpe v. Fremont, E. & M. V. R. Co., 837. Donnell v. Manson, 763. Donovan v. Daiber, 458. T. Richmond, 572. Doollttle T. Dininny, 595. Doran v. McConlogue, 199. Doremus v. Hennessy, 711. V. Howard, 576. Dorman v. Bigelow, 594. Dorr V. Alford, 175. V. Munsell, 531. V. School Dist. No. 26, 787. Dorrell v. Hastings, 240. Dorris v. Sullivan, 565. Dorsey v. Kyle, 323-325. V. St. Louis, A. & T. H. R. Co., 748. v. Thompson, 324. Dorwin v. Smith, 422, 557, 628. Doty V. Martin, 536, 838. v. Wilson, 650. Dougherty v. Rosenberg, 569. y. Seymour, 462. V. Sprinkle, 315. Doughten v. Camden Bldg. & Loan Ass'n, 180. Doughty v., Owen, 417. Douglas V. Scott, 534, 535. v. Howland, 47, 531, 595. V. Patrick, 875. Douglass V. Matting, 101. v. Snow, 612. T. Spears, 599. Douville V. Merrick, 433, 492. Dover Glass Works Co. v. American Fire Ins. Co., 817, 847. Dow V. Haley, 347. V. Wortheu, 586. Dowling V. Lawrence, 133. v. McKenney, 619, 620. Downer v. Chesebrough, 607, 618. Downey v. Hinchman, 680. Downing v. Punk, 679. v. Mount Washington Road Co., 224. V. Stone, 282. Downs V. ilinchew, 501. Dows V. Swett, 555. Doyle V, Continental Ins. Co., 414. V. Dixon, 569, 571. y. Reilly, 658. V. Trinity Church, 83. Drake y. Beckham, 755. V. Harrison, 889. T. Hill, 912. V. Latham, 150. V. Seaman, 593, 598. V. White, 889. Draper v. Fletcher, 733. Draughan v. Bunting, 557. Dreifus v. Columbian Exposition Sal- vage Co., 856, 858, 945. Drennan v. Douglas, 434, 483. Dresel v. Jordan, 682, 883. Drew V. Nunn, 73, 287. V. Towle, 77S. Driscoll V. Green, 803. Driver v. Broad, 5(i0. Drummond v. Attorney General, 794. V. Burrell, 572, 574. V. Crane, 753, 834. V. Hopper, 289, 302. V. United States, 43. Drury v. Defontaine, 349, 350, 352. V. Young, 598, 600, 601, 603. Dublin & W. Ry. Co. v. Black, 277. Dubose r. Wheddon, 246. Ducie V. Ford, 614. Dudgeon v, Pembroke, 810. Dudley V. Butler, 406. V. Collier, 348. V. Lindsey, 511. V. Odom, 392. Duer y. James, 522-524. Duftany v. Ferguson, 147. DuflEy V. Shockey, 692, 927. V. Wuusch, 554. Dufief V. Boykin, 791. Dufolt V. Gorman, 555. Dugan V. Gittings, 637. V. Thomas, 419. Duggan V. Pacific Boom Co., 868. Dugger V. Wright, 773. Duke V. Asbee, 412. V. Harper, 428. Duke of St. Albans v. Ellis, 781. Duker v. Franz, 842, 844. Dulaney v. Rogers, 158. Du Laurans v. First Div. St. Paul & Pac. R. Co., 76. Dumont v. Dufore, 463. Dun V. City Nat. Bank of Birmingham, 709. Dunbar v. Port Royal & A. Ey. Co., 437. Duncan v. Miller, 651. 978 TABLEf OF CASES. [refebbhces akb to faces.] Duncan v. New York Mut. Ins. Co., 108. T. Pope, 527. V. Sanders, 695. V. Topham, 52. Duncklee v. Greenfield Steam Mill Co., 735. Dungan t. Mutual Benefit Life Ins. Co., 730. Dunham v. Griswold, 190, 193. T. Inhabitants of Stockbridge, 396. T. Pettee, 913. T. Peterson, 669, 8«i>. T. Pitkin, 524. Dunham Lumber Co. ^. Holt, 155. Dunkin v. Hodge, 476, 489. Dunks V. Fuller, 173, 175. Dunlap T. Berry, 577. T. Mobley, 791. Dunlap's Adm'r t. Wright, 801. Dunlop V. Gregory, 453. T. Higglns, 49. Dunmore t. Alexander, 69. Dunn v. Adams, 74. , V. Barnum, 698. V. Bell, 368. T. Chambers, 201. I -v. Clements, 841. t V. Moore, 612. V. West, 557. Dunning v. Leavltt, 715. Dunphy t. Ryan, 618. Dunscomb v. Bunker, 498. Dunton T. Brown, 229, 230, 276. V. Dunton, 635, 643, 6T5. V. Niles, 685. Duplex Safety Boiler Co, v. Garden, 684, 880. Dupuy V. Swart, 655. Durand v. Curtis, 562. Durant v. Ehener, 352. Durbin v. Kuney, 773. Durfee v. Abbott. 259. V. O'Brien, 573. Durgin v. Dyer, 340, 349, 350. Durkee v. Gunn, 895. V. Vermont Cent. R. Co., 44. Durkin v. Coblelgh, 785. Durment v. Tuttle, 698, 702. Durnford v. Messiter, 869. Durnham v. Kidwell, 295. Durnherr v. Rau. 714. Duryea v. City of New York, 811. Dusenbury v. Hoyt, 655. Dustin T. Farrelly. 196. Dutton V. Poole, 661, 719. V. Pyle, 159. V. Solomonson, 717. Duval V. Craig, 767. V. Wellmaii. 62. 432, 494. Duvall V. Graves, 231. Duvergler v. Fellows, 440, 825. Dwight v. Germania Life Ins. Co., 813, V. Hamilton, 452. Dwinel v. Howard, 906. D'Wolt v.Rabaud, 594. Dyer v. Hargrave, 156. ■ V. McPhee, 636. Dykers v. Townsend, 591. Dykes v. Bottoms, 377. Dvnan v. MeCuUoch, 682. B. f Eaden v. Titehmarsh, 769; Eadie v. Slimmon, 189. Eagan v. Scully, 278. Eagle V. Smith, 43, 81. Eagle Bank v. Smith, 865. Eagle Mach. Co. v. Shattuck, 553. Eagle Mfg. Co. v. Jennings, 628, 860. Eagle Mill Co. v. Caven, 48. Eagle Fire Co. v. Lent, 265. Eaglesfield v. Marquis of Londonderry, 119. Eames v. Preston, 521. Earl V. Page, 697. Earl Beauchamp v. Winn, 118. Earl of Cardigan v. Armitage, 811. Earle v. Coburn, 59. V. Hopwood, 428. V. Oliver, 653, 6o6. V. Peale, 240. V. Reed, 247. i;arly v. Mahon, 658. Earnest v. Parke, 655. East V. Matheny, 128. East Anglian Eys. Co. v. Eastern Coun- ties Ry. Co., 225. East Tennessee, V. & G. R. Co. v. Staub, 571. East Texas Fire Ins. Co. v. Kempner, 849. I''aster v. White, 556. Easterly v. Barber, 773. Eastham v. Powell, 529. Eastland v. Burchell, 63. V. Longshorn, 876. Eastman v. Wright, 19. Kaston v. Strother, 116. I'astwood V. Kenyon, 550, 644, 647, 653. i:aton V. Baton, 285, 295, 301, 304, 306. V. Fairbury Water Works Co., 718. V. Hill, 249. V. Kegan, 339, 349, 350. V. Llbbey, 675. V. Lyon, 777. V. Smith, 778, 789, 814. V. Winnie, 156. Eaton's Adm'r v. Perry, 302. Baton, Cole & Burnham Co. v. Avery, 164. Eberle v. Mehrbach, 352. Eberstein v. Willets, 177, 196. Eblin V. Miller's Bx'r, 663. Eccleston v. Clipsham, 770. Echols V. Phillips, 521. Eckenrode v. Canton Chemical Co., 894. Ecker v. McAllister, 609, 687. Eckman v. Chicago, B. & Q. R. Co., 436. Eckstein v. Downing, 936. V. Frank, 250. V. Reynolds, 876. Eddy V. Capron, 400. V. Clement. 827. V. Davis, 905, 913. V. Herrin, 191. V. Roberts. 545. 555. Edelen v. Gough, 595. Fdelin v. Clarkson's Ex'rs, 609. Edelman v. Latshaw, 157. Eden y. Chaffee. 555. V. People, 337, 350. j TABLE OF CASES. 979 [BGFEBENCES ABE TO PAGES.] Bdgell V. McLaughlin, 365. Bdgerly v. Shaw, 255, 258. Edgerton v. Hodge, 586. V. Weaver, 678. T. Wolf, 276. Edge ware Highway Board v. Harrow Dist. Gas Co., 465. Edick V. Crlm, 166. Bdinboro Academy v. Eobinson, 690. Edison General Electric Co. v. Canadian Pac. Nav. Co., 342, 782. Edmond's Case, 653. Edmunds v. Merchants' Despatch Transp. Co.., 103, 104. Edson V. Gates, 737. Edwards v. Aberayon Mut. Ship Ins. Soc, 420, 802. V. Baugh, 677, 687. V. Countess of Warwick, 720. V. Davenport, 293, 304, 306. V. Estell, 397. V. Fry, 611. V. Grand Trunk Ry. Co., 588, 582. V. Handley, 195. V. Nelson, 655. V. Peterson, 732. V. Porter, 703. V. Pyle, 700. T. Handle, 400, 489. V. Eoberts, 175. V. Sheridan, 310. V. Skirving, 475. V. Weeks, 854. Edwin I. Morrison, The, 478, 848. Egan V. Bowker, 535. Egbert v. Peters, 375, 379. Egerton v. Brownlow, 387, 404, 406, 408. V. Mathews, 593. Bggleston V. Buck, 768. V. Wagner, 77, 596. Ehle V. Judson, 647. T. Purdy, 761. Ehlert v. Klenger, 906. Ehrmanntraut v. Eobinson, 590. Eibel V. Von Pell, 159, 163. Eicholz V. Bannister, 703, 919. Eingartner t. Illinois Steel Co., 950. Einstein v. Marshall, 161. Eising V. Andrews, 950. Elder v. Schumacher, 295, 306. Elderkin v. Fellows, 876. Elderton v. Emmens, 650. Eldou V. Doe, 319. Eldred v. First Nat. Bank of Valpa- raiso, 761. V. Malloy, 365. Eldredge v. Palmer, 306. Bldridge v. See Yup Co., 808, 811. Electric Appliance Co. v. United States Fidelity & Guaranty Co., 714. Electric Lighting Co. of Mobile v. Mo- bile & S. H. Ry. Co., 938, 941. Eley V. Positive Government Security Life AsBur. Co., 716. Bliason v. Henshaw, 50, 51, 77, 78. Elizabeth v. Force, 840. Elkhart County Lodge v. Crary, 408, 469. Elkins V, Edwards, 34. Ellen V. Topp, 918. Rller V. Lacy, 758. Ellerman v; Chicago J. Rys. & U. Stock- yards Co., 454. Bllery v. Xew England Ins. Co., 808. Ellicott v. Peterson's Bx'rs, 570. v. Turner, 573, 574. Elllman v. Carriugton, 444. Elliott V. Barrett, 598. V. Bell, 769. V. Blake, 847. V. Caldwell, 879. V. Horn, 235. V. McClelland, 427. T. Richardson, 413. Ellis V. Adderton, 699. V. Alford, 260. , V. Andrews, 147, 155. V. Bray, 598. V. Cary, 566, 620. V. Cleveland, 60. V. Deadman's Heirs, 598. V. Hammond, 490. V. Harrison, 722, 795. V. Secor, 632. Ellison V. Brigham, 580. V. Jackson Water Co., 667. Ellmaker v. Ellmaker, 814. Ellsworth V. Mitchell, 489. Elmondorff v. Carmichael, 320. Elmore v. Stone, 585. Blmstedt v. Nicholson, 285. El Paso Nat. Bank v. Fink, 402. Elrod V. Myers, 243. Elsberry v. Boykin, 529. Elsee V. Gatward, 629. Blston V. Jasper, 295, 296. Eltham v. Kingsman, 364. Biting V. Vanderlyu, 545, 679. Elwell V. Martin, 248. V. Russell, 157. Elwood V. Western Union Telegraph Co., 717. Ely V. Hallett, 136. V. Positive Government Security Life Assur. Co., 573. V. Stewart, 166. V. Webster, 460. V. Wolcott, 535. Elysville Mfg. Co. v. Okisko Co., 222, 223 784 Embrey v. Jemison, 368, 480. Embry v. Morrison, 328. Emerlne v. O'Brien, 866. Emerson v. Burns, 481. V. Hutchinson, 147. V. Miller, 64. V. Providehce Hat Mfg. Co., 65. V. Slater, 543. V. Townsend, 459. V. White. 803, 875. Emery v. Burbank, 618. V. Fowler, 807. V. Hoyt, 287, 290. V. Kempton, 464. V. Lawrence, 731. V. Ohio Candle Co., 443. V. Owings, 777. V. Seavey, 104. V. Smith,- 572, 573, 619, 621. Emigrant Industrial Sav. Bank v. Roche, 808. Emmel v. Hayes, 614. Bmmeluth v. Home Benefit Aas'n, 771. Emmerson v. Heelis, 562. . Emmerson's Case, 108. 890 TAbi^B OF CASES. [EEFEKENCES ABE TO PAGES.] Emmitt V. Brophy, 718. Emmons v. Murray, 259, 261, 276. Empress Engineering Co., In re, 716, 719, 720. Enders v. Enders, 435. Endriss v. Beile Isle Ice Co., 668, 855. Endsiey v. Jolins, 163. Engeman v. Tayior, 173. Engiand v. Davidson, 664. V. Westchester Fire Ins. Co., 849. Englander v. Rogers, 875. Engle V. Chipman, 400, 401. Englebert v. Troxell, 230, 245, 256, 270, 271. Englisli V. Blundell, 769. V. Porter, 285. T. Young, 294, 300, 460. English's Ex'r v. McNalr's Adm'rs, 800. Bngmann v. Immel, 950. Enos T. Sanger, 713. Ensmiuger v. Horn, 43. Buys T. Donnithorne, 761, 765. Epperson v. Nugent, 242. Eppich V. Clifford, 591, 595, 598. Equitable Co-operative Foundry Co. v. Ilersee, 175. Equitable Gas Light Co. v. Baltimore Coal Tar & Mfg. Co., 544, 611. Erb V. Brown, 667. V. German-American Ins. Co., 476. Erben v. Lorillard, 619. Erhart v. Dietrich, 59. Brickson v. First Xat. Bank of Oakland, 845. Erie City Iron Works v. Barber, 162, 163, 171. Erie Ey. Co. v. Union Locomotive & Exp. Co., 470. Erianger v. New Sombrero Phosphate Co., 177. Ernst V. Bartle, 766. V. Crosby, 462. Erskine v. Adeane, 785. V. Moulton, 803, 806. V. Plummer, 564. Ertz V. Produce Exchange of City of Minneapolis, 441. Erwin v. Parham, -01, 695. Esmay v. Gorton, 77. Esposito V. Bowden, 321, 324, 346. Essery v. Cowlard, 703. Essex V. Essex, 566. Bstabrook v. Gebhart, 553. V. Smith, 808. V. Swett, 180. Esterly v. Eppelsheimer, 99. Esterly Harvesting Mach. Co. v. Berg, 147, 150. Estes V. Eeynolds, 174, 176. Estrigge & Owles' Case, 916. Esty V. Aldrich, 569. Etheredge v. Barkley, 38. Eubanks v. Banks, 503. Eugster v. West, 826. Eureka Co. v. Bailey Co., 522. V. Edwards, 261, 269. 270. Eureka Iron & Steel Works v. Bresna- han, 224. Evans, In re, 396, 423, 429. V. Bell, 429. V. Carrington, 142. V. City of Trenton, 479. Evans V. Coleman, 528. V. Edmonds, 158. V. Evans, 433. V. Gale, 180. V. Horan, 295, 302. V. Inhabitants of City of Trenton, 395, 396, 694. V. Kittrell, 497. V. McCormick, 47. V. Miller, 185. V. Morgan, 250, 270. V. Myers, 794. V. Nicholson, 48. V. Powis, 945. V. Roberts, 562. V. Sanders, 779, 792, 798, 816. V. Williamson, 840, 844. Everard v. Hopkins, 904. Bverhart v. Searle, 397. Everingham v. Meighan, 475, 479, 686. Bverman v. Hyman, 43, 81. Everson v. Carpenter, 230, 258. Ewell V. Daggs, 31. Ewin's Lessee v. Burnet, 800. Bwing V. Composite Brake-Shoe Co., 180. V. Crouse, 885. V. Toledo Sav. Bank, 224. Ewins V. Gordon, 682, 883, 884. Exall V. Partridge, 650. Excelsior Needle Co. v. Smith, 793. Exchange Bank v. Rice, 719, 721. Exchange Bank of Kentucky v. Gaits- kill, 156. Exchange Bank of St. Louis v. Rice, 713. Exchange Nat. Bank o£ Pittsburgh v. Third Nat. Bank of New York, 709. Exhaust Ventilator Co. v. Chicago, M. & St. P. Ry. Co., 880. Exley V. Berryhill, 475. Eyre v. I'otter, 695. F. Pairbank v. Leary, 444. Fairbanks v. Metcalf, 527. V. Snow, 188, 197. Pairchild v. King, 709. V. McMahon, 171. V. North-Eastern Mut. Life Ass'n, 718. V. Rogers, 932. Fairfax's Devisee v. Hunter's Lessee, 319, 320. Fairhurst v. Liverpool Adelphi Loan Ass'n, 309. Fairlie v. Denton, 727, 858. Fairplay School Township v. O'Neal, 89, 643. Falson v. Grandy, 481, 499. Faithorne v. Blaquire, 314. Palconbury v. Kendall, 688. Fall River Whaling Co. v. Borden, 567. Falley v. Giles, 818, 819. Falls V. United States Sav., Loan & Bldg. Co., 382, 502, 534. Fanning v. Dunham, 382. Fanson v. Linsley, 185. Fant V. Cathcart, 230, 252. V. Miller, 498. TABLE OF CASES. 981 [eefekences are to pages.] Farebrother v. Simmons, 602. Fareira v. Gabell, 361, 479. Fargo Gas & Coke Co. v. Pargo Gas & Electric Co., 156. Faribault t. Sater, 157. Faris v. King, 481. Farley v. Parker, 295. Farmers' Bank v. Flint, 655. Farnham v. Brooks, 285-287. T. Davis, 552. V. O'Brien, 645. Farni v. Tesson, 761, 770. Farnsworth v. Dutfner, 153, 155, 167. Farr v. Peterson, 155. V. Sumner, 256, 272. Farrar v. Bessey, 310. V. Churchill, 167. V. Toliyer, 637. Farrell v. Enright, 319. V. Farrell, 227. Farrelly v. Ladd, 547. Farrington v. Hodgdon, 688. Farrier v. New England Mortgage Se- curity Co., 348. Farris v. Ware, 185. Farrow v. Wilson, 754, 831, 834. Farwell v. Lowther, 590. V. Hanchett, 134, 186. V. Webster, 354. Fauble t. Davis, 770. Faulder v. Silk, 296. Faulkner v. Faulkner, 712. V. Lowe, 19. Fauntleroy v. Wilcox, 167. Faurie v. Morin's Syndics, 400. Favor v. Philbriek, 341, 465. Fawcett v. Eberly, 395. V. Freshwater, 670. Fawkner v. Smith Wall Paper Co.," 784, 796. Pay V. Burditt, 295, 304. V. Guynon, 728, 906. V. Jenks, 767. V. Lovejoy, 385. V. Oatley, 416, 418. V. Oliver, 896. V. Richardson, 523. V. Smith, 842. Fay's Adm'r v. Richards, 699. Fayetteville First Nat. Bank v. Clark, 912. Fears v.. Story, 553. Peatherston v. Hutchinson, 467. Featherstone v. Betlejewski, 270. Feeney v. Howard, 544, 617. Feeter v. Weber, 685, 687. Fehlinger v. Wood, 547, 548, 551. Feiertag v. Feiertag, 60. Feital v. Middlesex R. Co., 355. Feldman v. Beier, 866. v. Gamble, 393, 469. Pelger v. Coward, 564. Feller v. Green, 190. Fellows V. Stevens, 688. Pelthouse v. Bindley, 46, 48, 49, 79. Felton V. Dickinson, 719. V. Gregory, 191. Feltz V. Walker, 737. Fennell v. Bidler, 351. Fenner v. Lewis, 64. V. Meares, 726. Fenton v. Emblers, 570. Fentou v. White, 247. Fenwlck v. Grimes, 150. T. Phillips, 669. T. RatlitE's Representatives, 784. Pereira v. Sayres, 832. Peret v. Hill, 489. Ferguson v. Bell's Adm'r, 253, 234, 261. V. Bobo, 248, 250, 251, 272. T. Carrington, 143, 174, 185, 186. T. Coleman, 363. V. Crick, 561. T. Harwood, 800, 804. V. Houston Bast & West Texas Ry. Co., 278: V. Neville, 320. T. Sutphen, 784. V. Yunt, 476. Fergusson v. Norman, 341. Ferrell v. Maxwell, 557. Ferrler v. Storer, 52. Ferris v. Adams, 401. T. American Brewing Co.. 452, 714. V. Carson Water Co., 718. V. Montgomery Land & Imp. Co., 218. T. Spooner, 894. Perry t. I-Iazelwood, 840. Fessenden v. Taft, 499. Festerman v. Parker, 667, 778. Fetrow v. Wiseman, 230, 231, 258, 262. Fidelity Ins.. Trust & Safe Deposit Co. T. Shenandoah Valley R. Co., 798, 859, 865. Fidelity Loan & Trust Co. v. Engleby, 38 Fidelity Trust & Safety Vault Co. v. Ryan, 384. Fidelity & Casualty Co. v. Biekho^ 414. Field T. Chipley, 402. T. City of New Tork, 731. T. Fisher, 528. V. Herrick, 231, 253. V. Holland, 872. V. Morse, 157. V. Runk, 583, 769. T. Stagg, 517. T. Stearns, 183. Fields V. Clayton, 698. Fightmaster v. Levi, 188. Filby v. Hounsell, 87. Pildew V. Besley, 828. Piles T. McLeod, 549. Pilley V. Thomas, 884. Fillieul V. Armstrong, 903. Filson's Trustees v. Himes, 400, 469. Pinan t. Babcock, 727. Finch V. Barclay, 349. V. Brook, 875. V. Finch, 558, 615, 661. V. Mansfield, 464. V. Park, 721. Findley v. Richardson, 698. Pindley's Ex'rs v. Findley, 814. Pindon v. Parker, 422. Fine T. Rogers, 855. Pinegan v. Theisen, 131. Pink T. Cox, 645, 660, 662. T. Farmers' Bank, 637, 685, 818. T. Smith, 637, 665. Finlay v. Chirney, 755. Finn v. Donahue, 351, 489, 490. V. United States, 219. 982 TABLE OF CASES. [EEFERENCBS ABE TO PAGES.] Finney v. Apgar, 577, 580. Firestone v. Werner, 133. First Baptist Churcli t. Bigelow, 602. V. Brooklyn Fire Ins. Co., 538. First Congregational Church v. Holyoke Mut. Fire Ins. Co., 849. First M. B. Church v. Donnell, 356, 691. First Nat. Bank t. Bryan, 189, 190. V. Hall, 38. V. Hart, 76. V. Johns, 101. V. Kingsley, 352, 353. V. Lierman, 99. V. Payne & Co.'s Assignees, 74. v. Watkins, 57. T. Yocum, 168. First Nat. Bank of Appleton v. Bertschy, 616. First Nat. Bank of Athens v. Bu- chanan, 865. First Nat. Bank of Baltimore v. Gerke, 817. First Nat. Bank of Brandon v. Briggs' Assignees, 781, 806, 809, 848. First Nat. Bank of Cedar Eapids v. Hendrle, 399. First Nat. Bank of Flora v. Clark, 72. First Nat. Bank of Johnson City v. Mann, 377. First Nat. Bank of Luyerne v. Jagger, 795. First Nat. Bank of Milwaukee v. Plank- ington, 385. First Nat. Bank of New Windsor v. Bynum, 738. First Nat. Bank of Paw Paw v. House- knecht, 182. First Nat. Bank of Quincy v. Hall, 72, 78. First Nat. Bank of Eacine v. Case, 866. First Nat. Bank of Sturgis v. Peck, 697. First Presbyterian Church of Albany v. Cooper, 691. Fish V. Cleland, 131, 150, 155. V. Hubbard's Adm'rs, 786. Fishback t. Miller, 168. Fishburne v. Ferguson's Heirs, 291. Fishel V. Bennett, 461. Flshell V. Gray, 468. Fisher v. ApoUinaris Co., 416. T. Bridges, 475. T. Budlong, 148. V. Deering, 748. V. Deibert's Adm'rs, 786. T. Donovan, 550. V. Hall, 522, 524. V. Hildreth, 493. T. May's Heirs, 685. T. Melen, 160. y. New York Common Pleas, 150. v. Seitzer, 66. T. Shattuck, 190. V. Waltham, 364. Fisher's Ex'r v. Mossman, 34. Fishkill Sav. Inst. v. National Bank, 170. Fiske V. McGregory, 551. T. New England Marine Ins. Co., 136. Fitch V. Johnson, 748. v. Jones, 481. V. Bemer, 501. Fitch V. Snedaker, 43, 81, 82. T. Sutton, 671. Fltts T. Hall, 250. Fitz T. Bynum, 180. Fitzgerald v. Barker, 715. V. Peck, 119. T. Keed, 292, 306. V. Trant, 760. Fitzhugh T. Bennington, 228. T. Jones, 79, 481. Fitzmaurice v. Mosier, 146. Fitzsimmons v. Allen's Adln'r, 614. T. Joslin, 170, 172. Fiach T. Gottschalk Co., 304. Flagg T. Baldwin, 364, 368, 479, 503. V. Barnes, 804, 818, 819. V. Gilpin, 368. v. Inhabitants of Millbury, 357. Flaherty v. Atlantic Lumber Co., 223. V. Miner, 878. Flake v. Nuse, 876. Flanders v. Abbey, 316. V. Fay, 862. T. Lamphear, 724. Flanigan v. City of Minneapolis, 190. Flannagan t. Kilcome, 686, 687, 692. Fleetwood v. Brown, 121, 698. T. City of New York, 195. Fleming t. Bills, 375. V. Ramsey, 685. Flenner t. Flenner, 614. Fletcher v. Dyehe, 766. T. Grover, 772. T. Peck, 11, 220. V. Pynsett, 915. Flexner v. Dlckerson, 230, 231, 246, 247, 258. Flickinger v. Shaw, 611. Flight V. BoUand, 253. 938. V. Booth, 132. V. Reed, 658. Flindt T. Waters, 325. Flinn y. Brown, 841. )T. St. John, 358, 359. Flint V. Cadenasso, 713. Floete V. Brown, 739. Flood v. Jackson, 711. Florence Mach. Co. v. Daggett, 789. Florida Cent. & P. E. Co. t. State, 399. Flower v. Barnekoft. 567. T. Sadler, 416, 482. Floyd Acceptances, 220. Floyd V. Goodwin, 426. Poakes ¥. Beer, 667, 671, 944. Foard t. Grinter's Bx'rs, 679. V. McComb, 160. Fogg T. Pew, 166. Fogarty v. Stack, 806. T. Proprietors of Portsmouth Athe- neum, 56. Foggart V. Blackweller, 127. Foley V. Cowgill, 526. V. Crow, 176. 885. V. Greene, 494. V. McKeegan, 026, 927, 929, 930. T. Speir, 468. Follansbee v. Johnson, 715. Pollett V. Brown, 175. Folsom T. McDonough, 807, 882. V. Mercantile Mut. Ins. Co., 187. Folts V. Ferguson, 269, 271, 272. Foltz V. Cogswell, 406. TABLE OF CASES. 983 [REFERENCES ARE TO PAGES.] Fonda v. Van Home, 231. Fouseca v. Cunard S. S. Co., 46, 100. Fontaine v. Bush, 583, 617. Foot V. Aetna Life Ina. Co., 818, 819. Foote V. Emerson, 376, 396. V. Hambrick, 842. Forbes v. Hamilton, 561. V. McDonald, 401. ■ Forcheimer v. Holly, 409. Ford V. Beech, 798, 943. V. Buckeye State Ina. Co., 498. v. Chicago Milk Shippers' Ass'n 344. V. Harrington, 495. V. Mitchell, 743, 866, 868. V. Phillipa, 263, 280. V. United States, 862. V. Unity Church Soc, 804. Fordley's Case, 888. Fordyce v. Kosminski, 840, 845. Fore V. Manloye, 736. Foreman v. Blgelow, 173. Fores v. Johnes, 390. Forman v. Proctor, 729. Formby t. Fryer, 407. Forney v. Shipp, 680. Forscht V. Green, 492. Forsyth v. Maun. 580. V. Woods, 396. Forsyth Mfg. Co. v. Castlen, 369, 371, 487, 786. Forsythe v. State, 389. Fort V. Allen, 562. Forth V. Stanton, 545. 636. Fortunate v. Patten, 736. Fosdick V. Van Arsdale, 415. Foshay v. Ferguson. 192, 193, 196. Foss V. Hildreth, 306. V. Richardson, 703. Fossett T. Wilson, 190. Foster v. Bartlett, 184. V. Beardsley Scythe Co., 530. V. Charles, 164. V. City of Boston, 66. V. Clark, 395. V. Cockerell, 736. V. Dawber, 672, 854. V. Hooper, 761. V. Jolly, 784. T. McO'Blenis, 571. T. Mackinnon, 97, 100, 101. T. Metts, 677, 678. V. Paine, 727. V. Perkins. 516. V. Shaw, 657. T. Stewart, 26. V. Thurston, 461. V. Wooten. 353, 463. Fothergill v. Walton, 904. Fournier v. Cyr, 516, 517. Foust T. Board of Publication, 691. Fowke T. Bowie, 871. Fowkes V. Manchester & L. Assur. & Loan Ass'n, 816. Fowle V. Bigelow, 778, 801. V. Park, 454, 455, 457. Fowler v. Athens City Water-Works Co., 718. V. Brooks, 670. V. Burget, 33. 604. V. Callan, 426-428. V. Woodward, 800. Fowler's Appeal, 499. Fox V. Boston & M. R. R., 933. V. Davis, 433. V. Hempfleld R. Co., 420. V. Kimberly, 613. v. Southack, 319. V. Turner, 72, 77. V. Webster, 143. Fox's Heirs v. Longley, 610. Foy V. Haughton, 166. Foye T. Patch, 101. Frame v. August, 545. V. Dawson, 613. France v. Smith, 460. Francis v. Barry, 604. V. Felmit, 239, 281. Franco-Texan Land Co. v. ("haptive, 319. Frank v. Brunnemann, 940. V. Eltringham, 591. T. Miller, 604. Frankfort Bridge Co. v. City of Frank- fort, 223. Franklin v. Miller, 701, 918. Franklin Bank v. Cooper, 136. 870, 872. Franklin Fire Ins. Co. v. Brock, 816. Franklin Ins. Co. v. Louisville & A. Packet Co., 348. Franklin Life Ins. Co. v. Hazzard. 367. Frary v. American Rubber Co., 880. V. Sterling, 573. Fraser v. Gates, 573. V. Hill, 465. Frazer v. Fulcher, 327. V. Howe, 598. V. Robinson. 12. Frazler v. Lanahan, 872. V. Massey, 253. v. Monroe, 794. 801. Frear v. Hardenberg, 561. Fredenburg v. Turner, 899. Freeland v. Ritz, 603. Freeman v. Bernard, 947. V. Boland, 249. V. Bridger. 241, 243. 249. V. City of Boston, 66. 75. V. Cooke, 8. V. Freeman. 611, 938. V. Fulton Fire Ins. Co., 367. V. Headley, 661. T. More, 314. V. Robinson. 647. V. Taylor. 921. V. Venner, 168. Freeth v. Burr, 908. Freiberg v. Treitschke, 393. French v. French. 553. V. Hayes. 787. V. McAndrew, 280. V. Motley, 657. V. New, 860. V. Parker, 452, 456, 941. V. Pearce, 795. V. Townes, 117. V. Vining, 133, 164. French's Heirs v. French, 289. French Lumbering Co. v. Theriault, 2n."i. Frentress v. Markle. 860. Frenzel v. Miller, 128. 158. 1.59. Fresno Canal Co. v. Rowell, 749. Frevall v. Fitch, 521. Friend v. Lamb, 187, 935. 984 TABLB3 OF CASES. [EEFEEENCES ARE TO PAGES.] Friend t. Miller, 415, 418, 488, 784. Friend & Terry Lumber Co. v. Miller, 933. Frlsble v. Larned, 670. Fritzler v. Eobinson, 108. Fromer v. Stanley, 155. Frost T. Erath Cattle Co., 787. V. Gage, 484. V. Inhabitants of Belmont, 405. V. Johnson, 944. V. Knight, 894. V. Tarr, 570. V. Vought, 233. Frost's Detroit Lumber & Wooden Ware Works V. Millers' & Manufacturers' Mut. Ins. Co., 810. Fruitt V. Anderson, 298. Fry V. Piatt, 596, 598. Frybarger v. Simpson, 491, 492. Fugua V. Carrlel, 929. Fuga T. Carrlel, 929. Fullam V. Adams, 550. Fuller V. Bartlett, 311. V. Dame, 391, ^98, 399. V. Davis, 900. V. Duren, 61. V. Green, 087, 843. Y. Hasbrouck, 31. V. Kane, 794. V. Kemp, 686. V. Little, 875. V. Metropolitan Life Ins. Co., 740, 046. V. Rice, 020. V. Roberts, 1!I6. V. Steiglltz, 738. Fuller's Case, 680. Fullerton v. Dalton, 116. V. Sturges, 841. Fullmer v. Poust. 007, 008. Fulton V. Ilood, l.l.'.'.. 155. V. Prlddy, 526. Funk V. Galllvan, 339, 340, 374, 484. T. Hough, 680. Furley v. Wood, 814. Furman v. Parke, 75. Fuvnivall v. Coombes, 811. Furry v. O'Connor, 165. G. Gaar v. Louisville Banking Co., 379, 384. Gable v. Moss, 915. Gadsden v. Lance, 570, 580. Gaftney v. Hayden, 281. Gage V. Du Puy, 430. V. Fisher, 401, 468. V. Lewis, 149, 150. V. Tirrell, 809. Gaines v. Miller, 869. Galnsville Nat. Bank v. Bamberger, 165. Galbraith v. McLain, 567. Gale V. Gale, 720. V. Grannis, 384. V. Leckle, 389. V. Nixon, 588, 590. Galena Ins. Co. v. Kupter, 789. Gallagher v. Delargy, 313. V. Gallagher, 612. V. Nichols, S99. Gallagher v. Sharpless, 878. Galley v. Galley, 608, 610. Galloway v. Barr, 694, 695. Galpin v. Atwater, 837. Gait V. Galloway, 66. Galton V. Emuss, 392. Galusha v. Galusha, 433. V. Sherman, 194. Galvin v. MacKenzie, 585. V. Prentice, 623. Galway v. Shields, 622. Galyon v. Ketchen, 828. Gamble v. Grimes, 701. Gambril v. Doe, 379. Gambs v. Sutherland's Estate, 460. Gamewell Fire Alarm Telegraph Co. v. Crane, 440, 445, 455. Gammage v. Alexander, 61, 488. Gangwere's Estate, In re, 296. Gano v. Aldridge, 790. Ganson v. Madigan, 778, 787-789, 850. Gape V. Hanley, 795. Garbutt v. Bank of Prairie du Chien, 134. Garcelon's Estate, In re, 413. Gardels v. Kloke, 599. Gardiner v. Morse, 392. V. Suydam, 577. Gardner v. Lane, 108, 109, 111, 113, 120, 121. V. Merritt, 632. V. Samuels, 748. V. Southern R. Co., 437. V. Tatum, 347, 472. V. Watson, 818. Gardner's Adm'rs v. Schooley, 665. Garfield v. Paris, 585. Garland v. Gaines, 639. V. Lane, 481. Garner v. Cook, 253. Garnett v. Kirkman, 679. Garr v. Bright, 219. Garrard v. Frankel, 107. Garrett v. Crosson, 699. Garrett's Adm'rs v. Garrett, 622. Garrey v. Stadler, 329. Garst V. Harris, 8, 457. Gartner v. Hand, 80. Garvin v. Mobley, 718. Gas Light & Coke Co. v. Turner, 459. Gaskell v. King, 470. Gaslin v. Pinney, 583. Gasque v. Small, 694. Gass' Appeal, 795. Gaston v. Drake, 402. Gates V. Hackethal, 679. V. Hamilton, 672. v. Hughes, 860. V. Goodloe, 829. v. Lancashire & Y. Ry. Co., 672. V. Renfroe, 435. V. Shutts, 687. Gath V. Lees, 890. Gathwright v. Callaway County, 781. Gatlin y. Wilcox, 861. Gatling v. Newell, 174, 181. V. Rodman, 169. Gaudette v. Travis, 585. Gaullaher v. Caldwell, 735. Gault V. Brown, 583. 598. Gauthier v. Cole, 500. Gautzert v. Hoge, 718. TABLE OP CASES. 985 [REPEBENCES ABE TO PAGES.] Gavin v. Burton, 234. Gaw V. Bennett, 372, 475. Gay T. Ballon, 237. T. Botts, 628. Geary v. O'Neil, 552. Gebhard v. Gamier, 511. Geddes v. Pennington, 153. Geddes' Appeal, 155. Geer v. Archer, 653. V. Frank, 426-428, 488. ' V. Tenth School Dist., 765. Geere v. Mare, 475. Geier v. Shade, 416. Geiger v. Cook, 697. V. .Western Maryland E. Co., 880, 928. Geipel t. Smith, 848. Gelsmer v. Lake Shore & M. S. Ey. Co. 828 Geiszl'er v. De Graaf, 748, 749. Gelpcke v. City of Dubuque, 470. Gem Chemical Co. v. Youngblood, 157 Genereux v. Sibley, 227, 241. Genesee College v. Dodge, 915. Genesee County Sav. Bank y. Michigan Barge Co., 164. Genet v. Delaware & H. Canal Co., 781. Gentry t. Gatlin, 87. George v. Conhaim, 88. V. Harris, 690. V. Skivington, 164. Georgia Pac. Ey. Co. v. Brooks, 176. Georgia Southern E. Co. v. Eeeves, 748, Gere v. Clarke, 761. V. Council Bluffs Ins. Co., 420. Gerhard v. Bates, 640. Gerkins v. Williams, 133. Gerli v. Poidebard Silk Mfg. Co., 601, 908. German Bank v. De Shon, 384, 481. German Fire Ins. Co. v. Shawnee Com'rs, 849. German Fire Ins. Co. v. Home Ins. Co., 847. German Nat. Bank v. First Nat. Bank, 223. Germantown Farmers' Mut. Ins. Co. v, Dhein, 224. Gerner v. Mosher, 155. V. Yates, 153. Gerrard t. Clifton, 779. Gerrish v. Glines, 844. Gervais v. Edwards, 938. Gerz V. Weber, 60. Getchell v. Maney, 732. T. Whittemore, 803. Getty T. Binsse, 761. Gettysburg Nat. Bank v. Chisholm, 844. Gibbon v. Young. 815. Gibbons v. Bell, 562, 567. V. Bente, 895. V. Gouverneur, 373. v. Prewd, 903. V. Vouillon, 943. Gibbs V. Bryant, 62. V. Clayton, 916. V. Consolidated Gas Co. of Balti- more, 398, 455. T. Guild, 949. V. Linabury, 99. V. McNeely, 442. Glbbs v. Smith, 392. Gibbs & Sterrett Mfg. Co. v. Brucker, 354. Gibson v. Cooke, 732. V. Cranage, 879. V. Dunnam, 899. T. Holland, 600, 603. V. Pelkie, 108. V. Eichart, 837. V. Eobinson, 848. v. Soper, 301, 302, 306. V. Stearns, 384. V. Tyson, 798. Gibson County Com'rs v. Cincinnati Steam Heating Co., 543, 551, 553. Giddings v. Eastman, 499. V. Giddings' Adm'r, 692. V. Iowa Sav. Bank, 193. Gieve, In re, 368. GlfEord V. Carvill, 147, 187. V. Corrigan, 529, 716, 718. V. Thorn, 694. V. Willard, 620. Gil V. Williams, 405, 406. Gilbert v. Holmes, 426, 475. V. North American Fire Ins. Co., 524. V. Port, 906. V. Sanderson, 716. V. Stockman, 810. V. Sykes, 364. Gilchrist v. Manning, 184. Giles V. Canary, 767. V. Edwards, 900. V. Giles, 913. V. Little, 432. Gilgallon v. Bishop, 298, 305. Gilkes V. Leonino, 38. Gill V. Bicknell, 590, 602. V. Clagett, 736. , V. Ferris, 452, 456. V. Hewett, 602. Gilleland v. Failing, 424. Gillespie v. Bailey, 278. V. Battle, 608. Gillespie Tool Co. v. Wilson, 879. Gillett V. Camp, 59. V. Logan Co., 413. Gilley v. Gilley, 24, 55. Gilliam v. Brown, 479. Gillighan v. Boardman, 545, 594. Gillum V. Dennis, 904. Gilman v. Dwight, 454. V. Hill, 579, 582. V. Kibler, 678. V. Peck, 865. Gilmore v. Ferguson, 377. V. Lewis, 75, 396, 664. V. Pope, 65. V. Wilbur, 26. V. Woodcock, 492, 493. Gilson V. Spear, 250. Ginn v. New England Mortgage Se- curity Co., 381-383. Gipps Brewing Co. v. De France, 471. Girardy v. Eichardson, 462. Gisaf V. Neval, 489. Given v. Driggs, 476. Glaholm v. Hays, 127, 921. Glasgow V. Hobbs, 633. Glaspie v. Keaior, lon. Glass V. Beach, 645. 986 • TABLE OF CASES. [REFERENCES ABE TO PAGES.] Glass T. Hulbert, 544, 611. Glasscock v. Glasscock, 521, 879. Glassell v. Coleman, 817. Glazebrook v. Woodrow, 904. Gleason v. Chicago, M. & St. P. K. Co., 396. V. Dyke. 647. 650, 869. V. Smith, 878. Glen V. Hodges, 328. Glencoe Land & Gravel Co. v. Hudson Bros. Commission Co., 711. Glendale Woolen Co. v. Protection Ins. Co., 783. Glenn v. Busey, 725. V. Farmers' Bank, 481. v. Marbury, 725. V. Mathews, 391. V. Savage, 59. Glidden v. Chamberlin, 659, 671. Globe Milling Co. v. Minneapolis Ele- vator Co., 815. Globe Works v. Wright, 778. Glock vl Howard & Wilson Colony Co., 884. Gloucester Isinglass & Glue Co. v. Rus- sia Cement Co., 445. Glover v. Radford, 175. Goad V. Hart, 397. Goddard v. Beebe. 433. V. Binney, 580. V. Monitor Mut Fire Ins. Co., 137. V. O'Brien, 669. 672, 945. Godden v. Pierson. 616. Goebel v. Linn, 668, 852. Goetz V. Foos, 550. GoJE V. Rogers, 617. Goicoechea v. Louisiana State Ins. Co. 810. Goldbeck v. Kensington Nat. Bank, 760. Golder v. Lund, 348. Goldman v. Oppenheim, 392. Goldsborough v. Gable, 667. V. Orr, 905. Goldsmith v. Guild, 884, Golsen v. Brand, 55. Goman v. Salisbury, 862. Gompertz v. Denton, 184. Gonzales v. Chartier. 570. Gooch V. Faucette, 497, 503. V. Holmes, 581. Good V. Cheeseman, 688. 689, 945. V. Daland, 440. V. FlUott, 364. V. Herr. 119. Goodal V. Thurman. 390. Goodall V. Cooley, 329.. V. Stewart, 175. Goode V. Harrison, 256. Gooden v. Rayl, 7)3. 714, 719. Goodger v. Finn, 175. Goodisson v. Nunn, 913. Goodland v. Le Clair. 581. Goodlett V. Kelly, 524. Goodman v. Alexander, 243. V. Chase, 555. V. Harvey, 631. V. Henderson. 452. V. Simonds. 182. Goodnow V. Bond. 594. V. Empire Lumber Co., 277, 278 Goodrich v. Lathrop, 181. V. Tenney, 413, 485. Goodrich v. Tracy, 865. Goodrum v. Smith, 576. Goodsell V. Myers, 230, 258, 259. V. Stinson, 528. Goodspeed v. Fuller, 422, 703. V. Wiard Plow Co., 74. Goodwin V. Bishop, 383. V. Clark, 468. V. Cunningham, 735. V. Follett, 671. r. Gilbert, 541. V. Goodwin, 433. V. Thompson, 238. Goodwin Gas Stove & Meter Co.'s Ap- peal, 937. Goon Gan v. Richardson, 320. Goos V. Goos, 192. Gordon v. Manchester & L. R. Co., 76. V. Butler, 147. V. Collett, 589. V. George, 745. V. Gordon, 674. V. Hobart, 872. V. Irvine, 158. V. Moore, 943. 945. v. Parmelee. 147. V. Street, 102. 1^^. Gore V. Gibson, 288, 298. V. Mason, 699. Goree v. Wilson, 692. Gorham v. Dodge. 613, 614. V. Keyes, 417. V. Reeves, 699. Gorham's Adm'r v. Meaeham's Adm'r, 19, 522. Goring v. Fitzgerald. 184. Gormely v. Gymnastic Ass'n. 150. Gorrell v. Greensboro Water Supply Co.. 713. 718. 719. 722. Gorringe v. Read, 494. Goshen Nat. Bank v. Bingham, 743. Goss V. Austin, 487. V. Citizens' Ins. Co., 810. V. Ellison, 685, 760. V. Nugent, 543, 857, 861, 862. V. Stevens. 64. V. Whitnev. 352. 354. Gottschalk v. Stein. 937. V. Witter, 571. Goucher v. Northwestern Traveling Men's Ass'n, 139. Goudv V. Gebhart. 531. Goush V. Pratt. 481. Gould V. Banks. 904. V. Boston Exrelsior Co., 785. V. Brown, 904. V. Cavuga County Nat. Bnpk. 178. V. Puller. 224. V. Gould. 7fil. 763. V. KendHll. 485. V. Mansfield- 566. V. Muroh. 831. V. TbompRon, 621. V. Wise. RH". 523. Gould'ug V. n.ividson. 650. 654. Gourdin v. Cnmmauder. 517. Gove V. Island Citv Mercantile & Mill- ing Co.. 835. V. Newton. 676. Governors of Alms House v. American Art Union, 375. Gower v. Capper, 680. TAB1,B OP CASES. 987 [REFERENCES ARE TO PAGES.] Gower v. Klous, 591. V. Stuart, 555. Gowing V. Wajner, 182. Grabenhorst v. Nicodemus, 67. Grace v. Hale, 240, 241, 245. Gracy v. Bailee, 55. Graeme v. Adams, 376, 377. Graff V. Buchanan, 38. V. Fitcli, 562. Graffam v. Pierce, 617. Graffensteln v. Epstein, 148. Graft V. Loucks, 614. Grafton v. Cummings, 591, 597, 598. V. Eastern Counties Ey. Co., 905. V. Moir, 811. Graham v. Burch, 199. V. Castor, 285. V. Dreutzer, 655. V. Graham, 309, 526. V. Graham's Ex'rs, 619. T. Johnson, 677, 738. V. Paucoast, 148. v. Tllford, 738. Graham Paper Co. v. Pembroke, 734, 736. Grain v. Nichols, 732. Gram t. Cadwell, 763. Grand Island Banking Co. v. Wright, 315, 316. Grand Lodge v. Farnham, 691. Grand Eapids & B. C. R. Co. v. Van Dusen, 806. Grand Rapids & I. R. Co. v. Diether, 877. Grandin v. Grandin, 687, 692. Grannis v. Hooker, 175. Grant v. Dabney, 813. V. Diebold Safe & Lock Co., 713. T. Fletcher, 602. T. Grant, 565, 567, 613, 615, 618, 619. V. Green, 665. V. Johnson, 902, 905, 908, 918. T. Ludlow's Adm'r, 730. V. McGrath, 358. V. Merrill, 384. V. Porter, 656. V. Thompson, 293. Grasselli v. Lowden, 454, 685, 692. Grasser & Brand Brewing Co. v. Rog- ers, 817. Grauel v. Wolfe, 167. Graves v. Adams Exp. Co., 437. V. Berdan, 831. V. Goldthwait, 615. V. Key City Gas Co., 941. T. Johnson, 410, 460, 461. V. Lebanon Nat. Bank, 135. V. Legg, 792, 910, 923. T. Tucker, 526, 630. Gray v. Barton, 674. V. Central R. Co. of New Jersey, 89 V. Clark, 779, 794, 795, 798, 799. V. Fowler, 174. V. Gardner, 847. V. Garrison, 729. V. Hamil, 645. T. Handkinson's Ex'rs, 532, 698, 702. V. Herman, 555. V. Hook, 400, 402, 531. Gray v. McReynolds, 391. V. Mathias, 462, 483. V. Pearson, 717. T. Richmond Bicycle Co., 946. V. Seiger, 416. T. Sims, 346, 410. Graybill v. Brugh, 533. Great Berlin Steamboat Co., In re, 489. Great Northern Ry. Co. v. Witham, 684. Great Western Ins. Co. v. Rees, 702. Greathouse v. Dunlap, 531, 534. Greaves v. Ashlin, 598. Grebert Borgnis v. Nugent, 933. Greeley v. Stilson, 565. Green v. Armstrong, 563. V. Batson, 786. V. Biddle, 217, 220. V. Brookins, 582. V. Brooks, 636. V. Clark, 534. V. Collins, 461, 485, 494. V. Cressweil, 557. V. Davis, 535. V. Estes, 551. v. First Parish in Maiden, 647. V. Gilbert, 835. V. Gosden, 153. V. Green, 264, 271, 278. V. Greenback, 250. V. Groves, 614. V. Hart, 561. V. Hathaway, 566. V. Hollingsworth, 489. V. Humphreys, 951. V. Jones, 611. V. Lake, 520. V. Morrison, 713. V. Moss, 189, 191. V. North Carolina R. Co., 563, 622. V. Rick, 757. V. Scranage, 199. V. Sevin, 882. V. Sizer, 409, 477. V. Sneed, 840. V. Sperry, 250. V. State, 220. V. Thompson, 695. V. Wells, 861. V. Wilding, 229. Green Bay & M. Canal Co. v. Hewett, 805, 817. Greenby v. Wilcocks, 725, 807. Greene v. Bateman, 116. V. Creighton, 751. V. Godfrey, 490. V. Haley, 892. V. Latcham, 555. V. Warnick, 739. Greenfield v. Gilman, 456, 806. Greenfield Bank v. Crafts, 415. Greenheld v. Morrison, 319. Greening v. Brown, 547. Greenleaf v. Allen, 746. V. Cook, 701. Greenman v. Cohee, 430. Greenough v. Balch, 343, 469. V. Blchholtz, 552. Greenstlne v. Borehard, 815. Greentree v. Rosenstock, 737. Greenwich Bank v. De Groot, 53. Greenwood v. Curtis, 503, 504. 988 TABLE OF CASES. [references abb to pases.] Greenwood v. Law, 581. v. Strother, 571. Gregg V. Pierce, 664. V. Thompson, 328. V. Wooliscroft, 66. Gregory v. Logan, 595. V. Pierce, 313. V. Schoenell, 157, 166. T. Walker, 524. V. Wattowa, 370. T. Wendell, 101, 102, 868, 369, 372, 458, 491, 494. T. Wilson, 485. Gregory's Ex'rs V. Com., 869. Grell V. Levy, 500. Greneaux v. Wheeler, 631. Grennia v. Grennia, 319. Gresty v. Gibson, 770. Greton v. Smith, 622. Grey v. Tubbs, 884. Gribben v. Maxwell, 306. Gridley v. Bane, 182. T. Dorn, 364, 486. i Grieser v. Hall, 382. 384. ' Grlffln V. Colver, 930, 932. V. Farrier, 148. Griffith V. Schwenderman, 231. V. Spratley, 695. V. Wells, 340-342, 349. V. Young, 622. Griffiths V. Earl of Dudley, 436. V. Parry, 701. V. Sears, 475. Griggs V. Austin, 836. V. Day, 858. V. Swift, 754, 832, 834. Grigsby v. Stapleton, 133. Grim v. Byrd, 128. Grimston v. Cuningham, 940. Grindrod v. Wolf, 694. Gring v. Lerch, 131. Grisewood v. Blane, 368. Griswold v. Butler, 296. T. Case. 528. V. Hazard, 135. v. Illinois Cent. Ey. Co., 437. ¥. Waddington, 323, 324. GrofC V. Hansel, 180, Grogg V. Landis, 883. Grommes v. St. Paul Trust Co., 746. Groner v. Smith, 520. Grosh T. Ivanhoe Land & Imp. Co., 128, 164. Gross V. Leber, 119. Groton v. Inhabitants of Waldoborough, 400, 489. Grubb's Adm'r v. Suit, 755. Grymes v. Sanders, 177. Guardian Fire & Life Assur. Co. v. Thompson, 135: Guardian Mut. Life Ins. Co. of New York V. Hogan, 367. Guckenheimer v. Angevine, 179. Guelich v. National State Bank of Bur lington, 709. Guerand t. Dandelct, 454, 692, 941. Guernsey v. Cook, 401, 790. Guichard v. Brande, 727. Guild V. Atchison, T. & S. F. E. Co., 685. 947. v. Butler, 670, 671, 944. y. Hull, 287. Guilford County Com'rs v. March, 415, 417. Guilford M. E. Parish w Clarke, 634. Guilford's Estate, In re, 318. Guilleaume v. Rowe, 191. Gulf, C. & S. F. Ey. Co. v. Levi, 828. V. Morris, 398. Gulick V. Ward, 403. Gulledge v. Howard, 630. Gulliher v. Chicago, E. I. & P. R. Co., 45. Gully V. Gully, 804. V. Grubbs, 535. Gump V. Halberstadt, 554. Gunby v. Sinter, 129. Gundlach v. Fischer, 65. Gunn V. Cantine, 65. V. McAden, 670. Gunter v. Leckey, 486. Gupton V. Gjpton, 610. Gustafson v. Eustemeyer, 147, 148, 157. Gustin V. Carpenter, 312. Guthing V. Lynn, 88. Gutham v. Kearn, 876. Guthrie v. Morris, 247. V. Murphy, 239, 243. V. Thompson, 862. Gwathney v. Cason, 590. H. H. A. Thierman Co. v. Lanpheimer, 464. Haacke v. Knights of Liberty Social & Literary Club, 358, 479. Haas V. Fenlon, 400. V. Kansas City, F. S. & G. E. Co., 848. V. Myers, 52, 53. Habricht v. Alexander's Bx'rs, 320, 322. Hacker's Appeal, 520. Hackett v. King, 191. Hackley v. Headley, 190-192, 195, 190. Hadcock v. Osmer, 161, 163. Hadley v. Baxendale, 933. V. Clark, 829. V. Clinton County Importing Co., 145. Haeussler v. Missouri Iron Co., 811. Hagee v. Grossman, 167. Hager v. Catlin, 400. V. Rice, 787. Hagerty v. Nashua Lock Co., 281. V. White. 801. Haggard v. Conkwright, 322. Haggart v. Morgan, 418, 420. Haggerty v. St. Louis Ice Mfg. & Stor- age Co., 343, 389. Hagood V. Harley, 526. Hahn v. Baker Lodge, 796. V. Horstman, 926, 927. Haigh V. Brooks, 692. Haight V. Hayt, 164. Halne's Adm'r v. Tan-ant, 247. Haines v. Busk. 465. V. Lewis, 418. V. Tucker. 80.3. 900. I-Iairston v. Jaudon, 620. Hakes v. Hotchkiss, 679. TTaldeman v. Chambers, 798. V. Massachusetts Mut. Life Ins. Co., 383. TABLE OP CASES. 989 [liEFEBENCES ABE TO PAGES.] Hale V. Brown, 290. V. Forbis, 670. v. Gerrish, 254, 280. V. Hale, 566. V. Henderson, 392. V. Spaulding, 759, 943. T. Stuart, 567. V. Trout, 892, 895, 032. V. Wall, 325. Haley v. Bellamy, 419. Hall V. Butterfield, 245, 272. V. Cazenove, 921. V. Cone, 131. V. Costello, 490. V. Crowley, 928. V. Cushing, 803. T. Denckla, 948. V. Dyson, 394. T. Ewin, 751. T. Farmers' Nat. Bank of Annap- olis, 813. T. Finch, 60. V. Garltt, 400, 401. T. Gird, 430. V. Hall, 227, 529. V. Hickman, 738. V. Hinks, 181. T. Huntoou, 65. V. Johnson. 154. V. Jones, 279. v. Leigh, 765, 769-771. V. McArthur, 702. V. McLeod, 564. T. Manning, 285. V. Marston, 721. V. Parker, 354. V. Perkins, 694. V. Potter, 482. V. Rochester, 758. T. Rodgers, 553. V. Stevens, 866, 867. V. Thayer, 770. T. Thompson, 167. V. United States, 328. V. Virginia, 690. V. Warren, 290, 296. V. Wright, 831, 833. Hall Mfg. Co. V. American Railway Silp- ply Co., 693. • Hallenbeck v. Kindred, 715. Hallett V. Novion, 340. V. Oakes, 298, 299. Halley v. Troester, 302, 303, 306. Halliday v. Hess, 787. Hallock V. Commercial Ins. Co., 49, 52. Halloran v. Whitcomb, 728. Halloway v. Davis, 61. V. Lacy, 792. Halluck V. Bush, 529. Halsa V. Halsa, 593. Halsey v. Whitney, 763. Halstead v. Lake County, 320. Halsted v. Francis, 71'!. Ham V. Goodrich. 610. V. Greve, 135. Hambel v. Tower, 888. Hambell v. Hamilton, 620. Hamburger v. Lusky, 152. Hamer v. Harrell, 380. V. Sidway, 14, 617, 633, 676, 692, 816. Hamet v. Letcher, 104. Hamilton v. Austin, 356. V. Benbury, 872. V. Cummings, 186. V. Foster, 808. V. Hamilton, 433. V. Home Ins. Co., 420, 914. V. Liverpool, L. & G. Ins. Co., 420. V. Lycoming Mut. Ins. Co., 538. V. Mutual Life Ins. Co., 324, 325. V. Thrall, 792, 798, 905. V. Watson, 135. V. Wood, 844. Hamlin v. Abell, 160. V. Great Northern Ry. Co., 931. V. Stevenson, 228. Hammatt v. Emerson, 160. Hammer v. Breidenbach, 899. Hammond, i;x parte, 134. V. Hopping, 379, 478, 658. V. Pennock, 129, 175, 178, 170^ Hammond's Adm'x v. Cadwallader, .j61. Hammons v. State, 357. Hampden v. Walsh, 361, 493. Hanauer v. Doane, 409, 460, 461, 475. V. Gray, 470. V. Woodruff, 409. I-Ianchett v. Jordan, 354. Hancock v. Peaty, 294. V. Watson, 787, 799. V. Yaden, 865. Hand v. Evans Marble Co., 38. V. Osgood, 569. Handforth v. Jackson, 179. Handley v. Heflin, 772. Handrahan v. O'Regan, 640. Hands v. Slaney, 239. Handy v. St. Paul Globe Pub. Co., 345, 351, 356, 357, 468, 487. V. Waldron, 147, 168. I-Ianford v. McNair, 64'. Hanger v. Abbott, 323-325. I-Iankins v. Ottinger, 373. Hanks v. Naglee, 390. Hanley v. National Loan & Inv. Co., 296. Henlon v. Wheeler, 242. Hannah v. Fife, 403. Hannahs v. Sheldon. 303. Hannum's Appeal, 297. Hans V. Louisiana, 218-220. Hansard v. Robinson, 845. Hanscom v. Drullard, 160. Hansen v. Meyer, 746. Hansley v. Jamesville & W. R. Co., 934. Hanson v. Marsh, 577. Hapgood V. Shaw, 912, 913. Harber Bros. Co. v. Moffat Cycle Co., 907,912. Harbers v. Gadsden, 936. Harbison v. Lemon, 285, 289. Harcrow v. Gardiner, 485. Hardee v. Howard, 925. Harden v. McClure, 580. Hardenberg v. Schoonmaker, 516. Harder v. Marion County Com'rs, 919. Harding v. Ambler, 535. V. Davies. 875. V. Tifft, 871, 872. Hardman v. Booth, 104. Hardy v. Brier, 186. V. Galloway, 811. V. Waters, 254. 990 TABLE OF CASES. [rbfebences are to pages.] Hai-dy v. Winter, 562. Hardy Implement Co. t. South Bend Iron Works, 730. Hargadlne-McKittrick Dry-Goods Co. T. SwofEord Bros. Dry-Goods Co., 183. Hargan v. Purdy, 347. Harger v. Worrall, 482. Hargrove v. Adcock, 592. Harkreader t. Clayton, 523, 525, 526, 528. Harlan v. Berry, 767. Harland v. Lilienthal, 847. Harley v. State, 819. Harlow v. Curtis, 78. V. Putnam, 698. Harman t. Howe, 801. T. Kingston, 825. V. Eeeve, 578. Harmer v. Killing, 262. V. Priestly, 877. Harmon v. Bird, 699. V. Harmon, 193, 194, 802, 565. T. James, 83. T. Lehman, Durr & Co., 879. Harmony v. Bingham, 827. Harmony Lodge t. White, 746. Harms v. McCormlck, 718. Harner v. Dlpple, 230. Harney v. Owen, 239. Harper v. Pairley, 657. T. Graham, 669. y. Terry, 179. T. Young, 481. Harran v. Foley, 108. Harrell v. De Normandie, 116. V. Miller, 568. Harrhy v. Wall, 516. Harriet Ann, The, 948. Harrlman t. Harriman, 663. Harrlman, The, 641, 827. Harrington v. Grant, 494. V. Long, 425. T. Rich, 546. V. Victoria Graving Dock, 397. V. Wells, 898. Harris v. Brisco, 423. V. Cannon, 266. V. Carmody, 189. v. Frank, 552, 617. V. Great Western Ey. Co., 45. V. Harris' Ex'r, 531. V. Heackman, 746. V. Howard's Estate, 951. V. Hull, 803. V. More, 664. V. Murphy, 785. V. Nlekerson, 85. V. Pepperell, 108. V. Porter, 573. V. Roberts, 399. V. Ross, 254. V. Runnels, 340. V. Scott, 77. V. Smith, 59, 99. V. Taylor, 313. V. Tyson, 132, 144. V. White, 364, 373, 497. V. Wicks, 382. V. Young, 554. Harris' Case, 79. Harris County v. Campbell, 732, 788. Harrisburg Bank v. Tyler, 719. Harrison v. Adcock, 266. V. Cage, 681. Harrison y. Close, 671. v. Colton, 358. V. Field, 761. V. McCormick, 785, 808, 804. V. Missouri Pac. Ry. Co., 827, 838. V. Mitford, 915. V. Muncaster, 826. V. Otley, 304. V. Town, 694. Harriss v. Williams, 898. Harrod v. Myers, 282. Harsh v. Klepper, 844. Harshberger's Adm'r v. Alger, 316. Harson v. Pike, 48, 55, 66, 75. Hart V. Alexander, 856, 859. V. Deamer, 296. V. Georgia R. Co., 88. V. Hammett, 789, 814. V. Hart, 89. V. Lyon,. 750. V. Miles, 630, 638. V. Porter's Bx'rs, 702. V. Prater, 239. V. State, 430. V. Thompson, 78. Hart's Case, 322. Hartford Bridge Co. v. Union Ferry Co., 819. Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co., 437. Hartford Protection Ins. Co. v. Harmer, 137. Hartford & N. H. R. Co. v. Jackson, 116. Hartley v. Harrison, 716. V. Ponsonby, 667. V. Rice, 431. V. Varner, 551. Hartman's Appeal, 83. Hartness v. Thompson, 254. Hartranft v. Uhlinger, 377. Harts V. Emery, 58. Hartung v. Witte, 747, 749, 811. Hartwell v. Jewett, 623. V. Young, 623. Hartzell v. Saunders, 638. Harvey v. Briggs, 254, 270. V. Pacey, 85. V. Grabham, 543. • V. Harris, 109, 113. V. Merrill, 365, 368, 371, 479. Harvin v. Galluchat, 735. Harvy v. Gibbons, 642. Harwood v. Jones, 550. V. Knapper, 393, 486. Haseltine v. Wilson, 552. Haskell v. Tukesbury, 679, 787. V. Wright, 751. Hasket v. Wootan, 344. Haskins v. Royster, 710. V. Warren, 815. Haslam v. Sherwood, 641. Hassell v. Long, 809. Hassinger v. Newman, 558, 556. Hastelow v. Jackson, 498. Hastings v. Blue Hill Turnpike Corp., 780. v. Dollarhide, 280-232, 254, 256, 259-261, 263, 265, 276, 277, 279. V. Lovejoy, 861. V. Vaughn, 520. Hatch V. Douglas, 368-370, 783, 789. TABLB OF CASES. 991 [BEFEEENCES ARE TO PAGES.] Hatch V. Hatch's Estate, 59. 258, 259, 263. v. McBrien, 578. V. Mann, 389, 395, 664, 694. V. Purcell, 647. Hatcher v. Andrews, 452. V. Hall, 948. Hatchett v. Baddeley, 312, 313. Hathaway v. Hagan, 377. V. Moran, 343. Hatsall V. Griffith, 761. Hatton, In re, 945. Hatzfleld v. Gulden, 407. Haugh V. Blythe's Ex'rs, 574. Hauser v. Harding, 88, 452. Haussman v. Burnham, 570. Havelock v. Geddes, 918. Haven v. Foster, 117. V. Neal, 184. Haverleigh v. Leighton, 915. Haverly v. Mecur, 555. Haviland v. Halstead, 434. Hawes v. Miller, 412. V. Smith, 673, 813. V. Woolcock, 545, 680. Hawk V. Harris, 233. Hawkes v. Pike, 525. T. Sannders, 651. Hawkins v. Ball's Adm'r 834. V. Bone, 2SS. V. Davis, 104. V. Graham, 880. V. Hawkins, 101. Hawkinson v. Harmon, 79. Hawley v. Bibb, 368, 479-481, 499. V. Bristol, 731. V. Keeler, 897, 922. V. Moody, 607. v. Smith, 900. Haworth v. Montgomery, 347. Hay V. Green, 725. V. Landis, 148, 149. Hay's Adm'r v. McFarlan, 416. Haycraft v. Creasy, 147, 161. Havden v. Bradley, 915. V. Davis, 476, 498. V. Snow. 715. V. Souger, 48, 76. V. Weldon, 555. Hayes v. Fine, 564. V. Livingston, 609. V. Massachusetts Mut. Life Ins. Co., 671. V. O'Brien, 596. V. Southern Home Building & Loan Ass'n, 500 V. Warren, 649. V. Willo, 730. Haymond v. Camden, 323. Haynes v. Bennett, 256, 266. V. Doman, 454, 456, 470. V. Nice. 607, 872. V. Rudd, 468 489, 494. V. Second Baptist Church, 830, 835, 836. V. Slack, 253. V. Wesley, 783. TIayncy v. Coyne, 426, 429. Hays V. Bickerstaffe, 904. Hayward v. Andrews, 729. V. Barker, 654. V. Hayward, 310. V, Le Baron, 385. Hayward v. Leonard, 878. Haywood v. Brunswick Bldg. Soc, 751. Hazard v. Griswold, 100. V. Irwin, 531. V. Loring, 876. V. New England Marine Ins. Co., 107. Hazelrigg v. Donaldson, 195. Hazelton Coal Co. v. Buck Mountain Coal Co., 802, 882 Hazlett V. Burge, 150. V. Sinclair, 750. Head v. Baldwin. 640. V. Diggon, 67. V. Goodwin, 606. V. Providence Ins. Co., 224. V. Tattersall, 850, Headley v. Hackley, 687. Heany v. Schwartz, 951. Heaps V. Dunham, 191. Hearn v. CuUin, 869. Heath v. Stevens, 282. V. West, ^75. Heaton v. Angler, 727, 858. V. Bldridge, 618. V. Myers, 698. V. Norton Co. State Bank, 189, Jt93. Heaton-Peninsular Button Fastener Co. V. Eureka Specialty Co., 440. Heatwole v. Gorrell, 929. Hebb's Case, 46. Hecht V. Batcheller, 113. Heckemann v. Young, 759. Heckman v. Schwartz, 190. Hedden v. Griffin, 154. Hedge v. Gibson, 913. Hedges v. Wallace, 460. Hedgley v. Holt, 241. Heermans v. Ellsworth. 735. Heffner v. Brownell. 785. Heffron v. Brown, 59. V. Flanigan, 522. Heflin v. Milton, 570. Hefter v. Cahu, 393. Heichew v. Hamilton, 636, 931. Heideman v. Wolfstein, 588, 590, 603. Heineman v. Newman, 393, 486. Heintz v. Burkhard, 580. Heirn v. Carron, 944. Heise v. Bumnass. 481. Heiserman v, Burlington, C. R. & N. Ry. Co., 666. Heist V. Blaisdell, 376. Heizer v. Kingsland & Douglass Mfg. Co., 717. Helburn v. Mofford, 831. Helen, The 410. Helfenstein's Estate. 690, 691. Hellams v. Abercrombie. 351, 352. Heller v. Crawford, 344. V. National Marine Bank, 388. Helms V. Crane, 670. Helton V. Asher, 518. Hemet v. Painter, 813. Hemmenway v. Stone, 766, 769. , Hemming v. Trenery, 839. Hemmingway v. Stansell, 943. Hemphill v. McClimans. 654. Hemnstead v. Easton, 535. Hendee v. Pinkerton, 520. Henderson v. Beard, 591. V. Pox. 245, 246, 254. V. Henderson, 434. 992 TABLE OP CASES. [references ABE TO PAGES.] Henderson v. Henshall, 157. T. Hudson, 566. V. Lauck, 913. v. McGregor, 285. V. Palmer, 415, 467-469. v. San Antonio & M. G. E. Co., 128, 171. V. Steyenson, 45. T. Stobart, 685. V. Waggoner, 459. Henderson Bridge Co. t. McGrath, 83, 89 Hendrlct v. Lindsay, 713, 718. Hendricks v. Rasson, 524. V. Eoblnson, 647. Hendrlx v. Boggs, 520. Hendy v. Kler, 628. Henfree y. Bromley, 840. Henkel v. Pope, 44. T. Welsh, 789. Hennen v. Gilman, 322. Hennersdorf v. State, 357. Hennershotz v. Gallagher, 802. Hennessy t. Metzger, 914, 926-928. Henning's Case, 915. Hennlnger v. Heald, 180. Henninges v. Paschke, 517. Henry v. Allen, 159. T. Carson, 523. V. Fine, 298. V. Flagg, 380. T. Henry, 558, 615. V. Mount Pleasant Township, 761, 763. T. Root, 258-260, 589. v? Ritenour, 285, 289. Hensinger t. Dyer, 193. Henthorn v. Fraser, 51, 52, 68. Hepburn v. Auld, 876. Hepler v. Hosack, 285. Herbert v. Ford, 702. V. Turball, 228. Herbstrelt v. Beckwlth, 730. Hereford & S. W. Wagon & Engineering Co., In re, 166. Herman v. Jeuchner, 489. Hernandez v. Sun Mut. Ins. Co., 810. Herreshoff y. Boutineau, 453, 454, 456. Herrlck v. Morrill, 787. v. Newell, 620. Herriman v. Menzies, 445, 456. Herring v. Dorell, 677. Hersey v. Bennett,' 872. Hershey v. Luce, 798. Hert V. Oehler, 844. Hertzler v. Geigley, 480. Hertzog v. Hertzog, 23, 25, 58. Herzog v. Heyman, 697. V. Sawyer, 861. Heseltlne v. Siggers. 581. Hesketh v. Gray, 826. Hess' Estate, 521. Hesse v. Stevenson, 807. Hester v. Keith, 781. V. Wesson, 545. Hetherlngton v. Hixon, 654. Hewes v. Bayley, 761. V. Jordan, 583. Hewitt V. Anderson, 81. V. Dement, 382. V. Jones, 99. V. Wilcox, 345. Ileyu V. Phillips, 560. Heysham y. Dettre, 195. Heywood t. Brooks, 59. V. Heywood, 804, 888, 889. V. Perrin, 798, 807. , v. Tillson, 711. I-Ilbbard v. McKlndley, 800. Hlbberd v. Smith, 528. Hibbette v. Bains, 435. Hibblewhlte v. McMorine, 517. Hickerson v. Benson, 493. Hickey v. Dole, 683, 938. T. Lake Shore & M. S. Ry. Co., 748. T. O'Brien, 683. Hickey's Lessee t. Stewart, 946. Hickman v. Haynes, 543, 857. Hicks V. Aylsworth, 885. V. Burhans, 647, 650. V. Cleveland, 608. V. Deemer, 151. T. Hamilton, 715. V. State, 512. V. Stevens, 155. Hieronymus v. New York Nat. Building & Loan Ass'n, 500. Higert v. Indiana Asbury University, 690. Hlggens' Case, 838. Higgins, In re, 234. V. Dale, 655. V. Kusterer, 564. V. Lessig, 84. V. Murray, 580. V. Scott, 33. V. Senior, 592. V. Wasgatt, 796. Higgons V. Burton, 104. Highley v. Barron, 261. Hightower v. State, 710. Hilborn v. Bucknam, 193. Hild V. Liune, 884. Hildebrand v. American Pine Art Co., 641. v. Fogle, 787. Hill V. Anderson, 282. V. Baker, 320, 321. V. Balls, 133. V. Blake, 543, 862, 909. V. Chipman, 907. V. Dunham, 353, 354. V. Freeman, 485, 489. V. Frost, 555. V. Gray, 146. V. Grigsby, 906, 913. V. Hooper, 571. V. Jamieson, 569. V. John P. King Mfg. Co., 816. V. Kidd, 865, 486. V. Keyes, 253. V. McKay, 794. V. McNichol, 523, 525. V. More, 42t). V. Morse, 773. V. Nelms, 278. V. Sherwood, 351. V. Smith, 571. V. Spear, 343, 460, 461, 497, 500, 502-504. • V. Tucker, 771. V. Wade, 915. Hill's Ex'rs V. Day, 285, 286, 296, 833. Hillebrant v. Brewer, 632. TABLE OF CASES. 993 [KEFEBENCKS ARE TO PAGES.] Hiller v. Ellis, 381. Hills V. Evans, 789. V. Rix, 783. T. Sughrue, 108. Hilton v. Ectersley, 448. V. Hougliton, 354. V. Shepherd, 259. V. Woods, 430. Himrod Furnace Co. v. Cleveland & M. K. Co., 599, 601. Hinehman v. Ijlucoln, 584. Plinekley v. Pittsburgh Bessemer Steel Co., 932. V. Southgate, 572. Hind V. Holship, 692, 715. Hindley v. Westmeath, 433. Hinds V. Chamberlin, 417. Hinely v. Margaritz, 258, 262. Hines v. Willcox, 786. Hinkle v. Minneapolis & St. L. Ey. Co., 685. Hinkley v. Fowler, 718. Hinman v. Hapgood, 330. Hinton v. Locke, 789. Hirscnfeld v. London, B. & S. C. Ey. Co., 151. Hirschman v. Budd, 841. Hirth v. Graham, 563. Hissam v. Parrish, 682, 936, 938. Hissong V. Richmond & D. E. Co., 436. Hitchcock V. Coker, 452, 692. V. Galveston, 89. V. Giddings, 108. V. Supreme Tent, K. M. W., 932. Hite V. Wells, 553. Hittson V. Browne, 347. Hix T. Davis, 767. Hoadley v. McLaine, 594. Hoare v. Rennie, 908. Hobbs V. Columbia Falls Brick Co., 853. T. Manhattan Ins. Co., 414. V. Massasoit Whip Co., 57. V. Nashville, C. & St. L. Ry. Co., 269. Hobough V. Murphy, 655. Hochmark v. Richler, 380. Hochster v. De la Tour, 894. Hockenbury v. Meyers, 676, 679. Hodgdon v. Golder, 701. v. White, 34. Hodge V. Hodge, 753. V. Sloan, 455. V. Twitchell, 567. V. Vavisor, 651. Hodges V. Kowing, 596 599. V. Richmond Mfg. Co., 570. V. Sublett, 87. Hodgkins v. Farrlngton, 565. Hodgson V. Farrell, 201. V. Halford, 432. V. Temple, 460. Hodsdon v. Wilkins, 476. Hodson V. Davis, 316. Hoe V. Sanborn, 133. Hoeflinger v. Wells, 866. Hoey v. Jarman, 818. Hoffman v. Aetna Fire Ins. Co., 816. V. McMullen, 403. V. Vallejo, 429. Hoffman's Fx'x v. McMullen, 485. Hogan V. Crawford, 785. V. Curtin, 431, 432. Hogan V. Kurtz, 949. llogaus V. Carruth, 800. Hogg V. Ashman, 949. V. Ruffuer, 377. v. Wilkins, 561. Hoggatt V. Thomas, 557. Hoggins V. Gordon, 329. Hogue V. Mackey, 117. Hohn V. Concordia Society of Baltimore, 941. Hoit V. Underbill, 258, 259. Holbrook v. Armstrong, 573. V. Burt, 738. V. Connoi-, 147. V. Payne, 733. Holcomb V. Noble, 157, 158, 160, 161 V. Stimpson, 416. V. Tiffany, 329. V. Weaver, 397. Holdeu V. Banes, 654. V. Cosgrove, 475. V. Hardy, 338. Holder v. Tayloe, 905. Holderbaugh v. Turpin, 548, 556. Holdipp V. Otway, 916. Ilolladay v. Patterson, 398. Holland v. Hall, 466. Holies V. Wyse, 929. Hollingsworth v. Holbrook, 840 Hollins V. Hubbard, 640. Hollis V. Burgess, 596. V. Edwards, 569. V. Pond, 521. V. Vandergrift, 845. Holllster v. Stewart, 947. Holloway v. Prick, 785. V. Lowe, 488. Holm V. Sandberg, 555. Holman v. Johnson, 411, 487, 498 Holme V. Guppy, 900. Holmes v. Bell, 838. V. Blogg, 256. V. Board of Trade of Kansas City, 43, 59. V. Boyd, 663, 670. V. Briggs, 868. V. Doane, 668. V. Hall, 783. V. McCray, 567. V. McDonald, 528. V. Martin, 807, 812 V. Eice. 253. V. Eichet, 420. V. Shaver, 698. V. Twist, 915. V. Whitaker, 783. Hoist V. Stewart, 160. Holston Salt & Plaster Co. v. Campbell, 783. Holt V. Clarencieux, 233, 253, 680 V. Green, 338, 341, 343, 476. V. Gage, 951. V. Holt, 264. V. O'Brien, 471. Holton V. Noble, 168. Holtz V. Dick, 233. Holzworth V. Koch, 678, 702 Home Ins. Co. v. Scales, 849. Home Life Ins. Co. v. Pierce, 65. Homer v. Thwing, 249. Honaker v. Board of Education, 406 Honck V. Muller, 909. Honeyman v. Marryatt, 78, 86. 994 TABLE OP CASES. [references are to FAGES.J Honsucle v. Ruffm, 155. Hook V. Donaldson, 278. V. Turner, 392. Hooker v. De Palos, 340, 389, 491, 677. V. Eussell, 555. Hoop V. Plummer, 310. Hooper, Ex parte. 613. V. Hooper, 550, 818. V. Payne. 253. V. Pike, 680. T. Webb, 778. Hoopes V. Collingwood, 844. T. Newman, 134. Hoover v. Kinsey Plow Co., 277. V. Pierce, 489. Hope V. Hope, 433, 435, 502. Hopkins v. Logan, 647. V. Prescott, 400. T. Snedaker, 179. T. Stefan, 359. V. Tanqueray, 127. flopkinson v. Lee, 761. Hopper V. Ludlum. 330. 'Hopson V. Boyd, 296. "Horaeek v. Keebler, 351, 352. :Horm V. Shamblin, 609. 'Hornby t. Close, 446. :Horne T. Midland By. Co., 934. T. Niwer, 48. :Horner t,. Prazier, 573. Horrigan v. First Nat. Bank, 161. Eorsfall v. Thomas, 166. Hort V. Norton, 43, 59. Horton v. Bufflngton, 489. V. Lee, 148. V. McCarty, 590. Hostord v. Kanouse, 721. Hoskinson v. Eliot, 761. Hosier v. Hursb, 944. Hosmer v. McDonald, 795. V. Wilson, 895. Hostetter v. Holinger, 721. HoBtlera's Case, 915. Hotchkin v. Third Nat. Bank of Ma- lone, 166. Hotchkins v. Hodge, 390, 483. Hotchkiss T. Judd, 703. Hotham t. East India Co., 777, 848. Houck T. Wright, 444, 452, 478. Houck Ex'rs v. Ilouck, 59. Hough T. Barton. 728. V. Brown. 77. V. Richardson. 155, 168, 179. Hough's Adm'rs v. Hunt, 695. Houghtaling v. Ball, 583, 618. V. Hills, im. V. Houghtaling, 565. Houghton V. Pattee, 928. Houghwout V. BoisaubiD, 38, 63, 68. Houldsworlh v. City of Glasgow Bank, 183. Houlton V. Dunn. 404. V. Jtanteutfel, 279. v. Nichols, 406. Household Fire & Carriage Ace. Ins. Co. V. Grant, 51. 52. House V. Alexander, 241, 260, 282. V. Beak, 850. V. Fort. 128. V. Kendall, 697. T. McKenney, 492. House V. Palmer, 811. Houser v. Lamont, 616. T. Planters' Bank, 658. V. Reynolds, 261. Houston V. LatCee, 565. V. Sledge, 560, 620, 621. V. State, 218. Houston & T. C. Ry. Co. t. Hill, 933. Hovey V. Chase, 285. V. Hobson, 282, 285, 295, 296, 300- 302, 304, 306, 308. V. Newton, 753. V. Page, 755. V. Storer, 408. How V. How, 718. V. Kemball, 595. Howard v. Daly, 51, 894, 931. V. Edgell, 201. T. First Independent Church, 411. V. Gould, 146, 158. V. Gresham, 561 V. Maine Industrial School, 85. V. Massengale, 534. V. Simpkins, 282. V. Stillwell & Bierce Mfg. Co., 932. T. Wilmington & S. E. Co., 857, 858. Howarth v. Warmser, 752. Howe T. Hayward, 586. T. Howe, 295, 301, 302. V. Litchfield, 475. V. North, 59. V. Striker, 19. V. Taggart, 678, 679. V. Wildes, 309. Howe Mach. Co. t. Bryson, 932. Howe Sewing Mach. Co. v. Bosensteel, 754, 831. Howell V. Cincinnati Ins. Co., 136. V. Coupland, 830. , T. Field, 554. V. Fountain, 395. T. Kelly, 567. V. Maclvers, 733. ,v. Stewart, 459, 461. Howes V. Barker, 837. Howland v. Coffin, 407, 748. T. George F. Blake Mfg. Co., 60. V. Leach, 904. T. Lounds, 43, 81. Howlet's Case, 648. Howley v. Whipple, 44. , Howry v. Eppinger, 631. Howsmon v. Trenton Water Co., 714. 718. Hoxie V. Hodges, 639. T. Lincoln, 281. Hoy V. Gronoble, 932. Hoyle V. Stowe, 264-266. Hoyt V. Byrnes, 874. T. Casey, 243, 263. V. Thompson. 730. V. Thompson's Ex'r. 498. V. Wijkinson, 276, 280. Hoyt & Bros. Mfg. Co. y. Turner, 175. Hubbard v. Belden. 835. V. City of Hickman, 657. V. Coolridge, 692. V. Cummings. 260. V. Farrell, 656. V. Miller, 454, 692. TABLE OF CASES. 995 [REFEBKNCES ABE TO PAGES.] Hubbard v. Moore, 460. V. Ogden, 670. V. Rowell, 932. V. Weare, 128, 160, 165. Hubbell T. Palmer, 78. V. Von Schoening, 884. Hubble V. Cole, 788. Huber v. Guggenheim, 147, 150, 166. Hubert v. Turner, 610. Huck V. Flentye, 57. Huckabee v. May, 718. Huckins v. Hunt, 393, 491. V. Second Nat. Bank of East Sag- inaw, 636. Hudson V. Hudson, 59, 833. V. Gilliland, 26. V. Lutz, 59. V. McCartney, 420, 914. V. Revett, 527. Huff V. Watkins, 710. Huffman v. Hummer, 783, 884. V. Wyrick, 60. Hugall T. McLean, 915. Huggins V. People, 191. Hughes V. Fisher, 550. V. Gallans, 250. V. Gross, 832. V. Klingender, 504. T. Lane, 790. V. Oregon Ey. & Nav. Co., 718. T. Palmer, 32. V. Wamsutta Mills, 829. V. Watson, 265. Huguenln v. Courtenay, 830. V. Eayley, 154. Hulbert v. Atherton, 510. Hull V. Louth, 305-307. V. Ruggles, 374. Hulle V. Helghtman, 894. 899. HuUet T. King of Spain, 220. Humaston t. American Telegraph Co., 900. Humbert v. Brisbane, 596. Humble v. Hunter, 101, 104, 105, 724, v. Mitchell, 581. Hume V. United States, 218. Hummel t. Lilly, 869. Humphrey v. Merriam, 158, 161, 163. Hund V. Geier, 686. Hunlocke v. Blacklowe, 904. Hunnewell v. Duxbury, 165. Hunt T. Adams, 639, 641. V. Barker, 156. v. Bate, 648, 649. T. Brewer, 871. V, Danforth, 745. V. Daniel, 168. V. Elliott, 392, 790. V. Frost, 396, 802. V. Gray, 841. T. Hunt, 433. V. Jones, 618. V. Llpp, 613. V. Livermore, 913. T. McConnell, 153. V. Mann, 725. V. Maynard, 561. V. Peake, 233, 253. v. Postlewait, 670. V. Rabitoay, 302. V. Rhodes, 118. Hunt V. Eousmanier, 769. V. Shackelford, 738. V. Silk, 703. T. Test, 922. v. Wyman, 850. Hunter v. Anthony, 790. V. Daniel, 424. V. Giddings, 591, 601. V. McLaughlin, 695. V. Nolf, 402. y. Tolbard, 293. V. Walters, 99, 118. V. Wetsell, 587. Hunter's Adm'rs t. Miller's Ex'rs, 779. Huntington t. Bardwell, 403. V. Finch, 841. V. Knox, 104, 592. V. Wellington, 549, 553. Huntley v. Bedford Hotel Co., 44. Hurd V. Dunsmore, 933. Hurlburt v. Wheeler & Wilson Mfg. Co., 609. Hurley v. Brown, 589, 793. Hurlstou's Case, 218. Hurst V. Litchfield, 419, 420. Hurt T. Ford, 617. Husband v. Kpling, 685. Hussey v. Home-Payne, 78. V. Jewett, 254. v. Kirkman, 951. V. Roquemore, 351. Husted V. Craig, 919. Huston V. Cincinnati & Z. R. Co., 751. Hutchen t. Gibson, 406. Hutchens v. Sutherland, 907. Hutcheson v. Blakeman, 77, 78. Hutchings v. Moore, 904. Hutchins v. Hebbard, 838. v. Kimmell, 497. V. King, 563. V. Olcutt, 866. Hutchinson v. Brown, 289. V. Cummings, 915. V. Hutchinson, 570. V. Snider, 933. Hutchison v. Bowker, 778. Hutley V. Hutley, 422, 423, 426. Hutton V. Dewing, 175. V. Byre, 760. V. Warren, 789. V. Wetherald, 185. Huyett & Smith Mfg. Co. v. Chicago Edison Co., 835. Hyde v. Goodnow, 500. y. Hyde, 497. y. Wrench, 72, 78. Hyer v. Hyatt, 230, 246. Hyman y. Cain, 237. Hyndman y. Hogsett, 785. Hynds v. Hays, 467, 469, 472. Hypes y. Griffin, 592. I. lasigi V. Brown, 164. Ide y. Leiser, 67, 68, 634. y. Stanton, 593, 603. Ihley y. Padgett, 263, 278. lies V. Cox, 531. lUges y. Dexter, 778. Illinois Cent. R. Co. v. Beebe, 437. 996 TABLE OF CASES [REFEUE.Nt'ES ARE TO PAGES.] Illinois Cent. It. Co. v. Bogard, 437. V. Cobb, 933. V. Southern Seating & Cabinet Co., 927, 928, 933. Illinois Land & Loan Co. v. Bonner, 254, 255. V. Speyer, 42,"). Ilsley V. Jewett, 657. Imhoff V. Witmer's Adm'r, 297. Imlay v. Huntington, 315, 720. Imperial Loan Co. v. Stone, 303, 305. India Bagging Ass'n v. Kock, 443. Indiana, B. & W. Ry. Co. v. Adamson, 764. Indiana Ins. Co. v. Brehm, 150. Indiana Mfg. Co. v. Hayes, 56. Indianapolis Chair Mtg. Co. t. Wilcox, 281. Indianapolis, D. & S. R. Co. v. Brvin, 398, 399. Indianapolis, 1'. & C. Ry. Co. v. Einard, 76, 160. Ingersoll v. Campbell, 479. V. Martin, 657. V. Randall, 349, 350. Inglish V. Breneman, 844. Ingraham v. Baldwin, 295, 303. Ingram v. Ingram, 392. Inhabitants of Boothbay v. Giles, 521. Inhabitants of Bordentown Tp. v. Wal- lace, 234. Inhabitants of Clinton v. Fly, 724. Inhabitants of Middlefleld v. Church Mills Knitting Co., 751. Inhabitants of Milford v. Com., 24. Inhabitants of Montville v. Haughton, 519. Inhabitants of South Berwick v. Hunt- ress, 517. Inhabitants of South Scituate v. Inhab- itants of Hanover, 869. Inhabitants of Whitfield v. Longfellow, 193. Inhabitants of Worcester v. Eaton, 197, 254, 256, 489. Inman t. Stamp, 062. Innis V. Templeton, 311. ^ International Bldg. & Loan Ass'n v. Abbott, 376. Inter-Ocean Pub. Co. v. Associated Press, 444. lonides v. Pender, 136, 154. Iowa Sav. & Loan Ass'n v. Heidt, 383. Iredell v. Barbee, 803. Ireland v. Geraghty, 524. Iron Age Pub. Co. t. Western Union Tel. Co., 938, 939. Irvine v. Armstrong, 544. V. Irvine, 231, 256, 259, 261, 276, 278. Irvine's Heirs v. Crockett, 253. Irwin V. Atkins, 727. V. Dyke, 938. T. Lombard University, 633, 638, 690, 713. V. Marquett, 481. V. Wllliar, 362, 365, 368, 369, 479. V. Wilson, 109. Isham V. Morgan, 801. V. Post, 630. V. Therasson, 66. Isherwood v. Whitmore, 875. Isler V. Barker, 833. Issitt V. Dewey, 530. Iverson v. Cirkel, 617. Ives V. Bosley, 335, 667. V. Carter, 149. V. Hazard, 598, 599. V. Jones, 464. Ivey V. Lalland, 411, 498, 504. J. J. .T. Douglas Co. v. Minnesota Transfer Ky. Co., 437. J. M. Brunswick & Balke Co. v, E. L. Martin & Co., 913. Jack V. Davis, 737. Jackson v. Burchin, 26.j. V. Burke, 872. V. Cassidy, 376. V. Collins, 147, 155. V. Colegrave, 361, 364. V. Covert's Adm'rs, 577. V. Delancy, 660. V. Dillon's Lessee, 533. V. Dysling, 561. V. Gumaer,-303. V. Hayner, 99. V. Hodges, 186, 803. V. Ireland. 805. V. Jackson, 497. V. Jacoby, 840. V. Johnson, 949. V. King, 285, 291. V. Lawrence, 811. V. Ligon, 884. V. McLean, 485. V. Miner, 136. V. Myers, 544, 565. V. Parkhurst, 535. V. Port, 746. V. Sheldon, 525. V. Thornell, 915. V. Topping, 799. V. Union Marine Ins. Co., 910. Jacksonville, M. P. Ey. & Nav. Co. v. Hooper, 520. Jacob V. Smith, 617. Jacobs, In r«, 338. V. Credit Lyonnais, 410. V. Davis, 765, 769. V. Featherstone, 311. V. Marks, 157. V. Moseley, 561. V. Eichards, 296. V. Spalding, 798. V. Stokes, 489. V. Tobiason. 411. Jacquinet v. Boutron, 889. Jaffray v. Davis, 669. Jaggar v. Winslow, 150. Jalass V. Young, 12,6. James v. Adams, 894. V. Burchell, 898. V. City of Newton, 732. V. Emery, 768, 770. V. Fulcrod, 392, 681. V. Hodsden, 167, 184. V. Isaacs, 944. V. James, 940. TABLE OF CASES. 997 [references are to pages.] James v. Jellison, 468. V. Kerr, 426. V. Langdon, 287. v. Marion Fruit Jar & Bottle Co 42, 48. V. Patten, 601. V. Roberts, 193, 194. Jameson v. Gregory's Ex'r, 461. V. Eixey, 869. Jamieson v. Indiana Natural Gas & Oil Co 829 V. Eenwiels, 663, 675. Jamison V. CuUigan, 295, 304, 306. V. Ludlow, 657, 784. Janes v. Mercer University, 146. Janin v. Browne, 753, 834. Janis T. Roentgen, 417. Janson v. Colomore, 651. Janvrin v. Town of Bxeter, 76. Jaques t. Trustees of M. E. Church, 314, 315. V. Withy, 345. Jaquith v. Hudson, 927. Jarboe v. Severin, 620. Jarrett v. Hunter, 592. Jarvis v. Peclc, 457. *. S^itton, i677. Jasper County v. Tavis, 676. Jaudon v. Randall, 727. Jaufman v. Broughton, 951. Jecket V. Montgomery, 320. Jefferson t. Asch, 714. Jefferson County Bldg. Ass'n v. Hell, 529. Jeffery t. Underwood, 518. Jefferyes t. Legendra, 796. Jefferys t. Gurr, 223. Jefford's Adm'r v. Ringgold, 254. Jeffrey v. Bigelow, 133, 170, 171. Jeffries t. Ferguson, 773. V. Lamb, 69?. V. Wiester, 131, 157. Jefts T. York, 65. Jelks T. Barrett, 590. Jell T. Douglas, 763. Jellett r. Rhode, 571, 574. Jellison v. Jordan, 620. Jemison v. Birmingham & A. R. Co., 467. V. McDaniel, 826. Jenlsins v. Bradford, 427. T. Frinit, 392. ^^. Harrison, 603. V. Hurt's Com'rs, 758. V. Jenljins, 231, 270, 277, 282. V. Jenkins' Heirs, 294. y. Lykes, 780. V. Morris, 287, 288. V. Temples, 452, 455. V. Trager, 561, 562. Jenks,v. Fritz, 115, 121. Jenner v. Jenner, 807. Jenners v. Howard, 288. Jenness v. Lane, 663. 671. V. Mount Hope Iron Co., 47, 77, 78. V. Parker, 698. V. Shaw, 909. V. Wendell, 579. Jennings v. Broughton, 166. V. Brown, 647. v. Chase, 667. V. Jennings, 529. V. Johnson, 428. Jennings v. Lyons, 833. T. Rundall, 249. V. Smith, 437. V. Throgmorton, 462. V. Todd, 631, 801. Jepherson t. Hunt, 551. Jeremy v. Goochman, 647. Jerome v. Bigelow, 394. Jervis v. Berridge, 785. Jessel V. Williamsburgh Ins. Co., 726, 727. Jewel V. Neidy, 422, 428. Jewell V. Harding, 781. V. Reddington, 855. v. Wright, 500. Jewett T. Brooks, 895. V. Brown, 906. V. Carter, 171. V. Cunard, 768, 771, 772. V. Petit, 173, 951. Jewett Pub. Co. v. Butler, 391, 465, 476. Jilson T. Gilbert, 570. Joest V. Williams, 294, 301, 306. John V. Hatfleld, 844. T. John, 638. John S. Brittain Dry-Goods Co. t. Mer- kel, 183. John Weber & Co. v. Hearn, 104. Johns V. Fritchey, 289. Johnson v. Albany & S. R. Co., 34. T. Beeney, 160. T. Brook, 603. V. Brooks, 937. V. Buck, 602. 604. V. Charleston & S. Ry. Co., 436. V. Clark, 251. V. Collins, 721. V. Cummins, 314, 316. V. Dodgson, 589, 603. V. Fall, 364. V. Farley, 522, 529, 530. V. Filkingtou, 38, 66. v. Gallagher, 314, 316. V. Gulick, 157, 161. V. Harvey, 772. V. Hubbell, 391. V. Hulings, 342, 347, 477. V. Johnson, 287. V. Knapp, 715. V. Lewis' FjX'rs, 83. V. Lines, 238, 244, 245. V. McLane, 176. V. Meeker, 342, 345. V. Moore, 839. V. Northwestern Mut. Life Ins. Co., 273. V. Otterbein University, 631. V. Peck, 183. v. Pie, 250. V. Reynolds, 630. V. Rockwell, 231, 252, 253. V. Seymour, 184. V. Stevens, 632. V. Terry, 435. V. The Frank S. Hall, 55. V. Thirteen Bales & Thirteen Cases of Goods of Merchandise, 323. V. Travis, 934. V. Union Marine & Fire Ins. Co., 476. V. Van Wyck, 428, 430. V. Walker, 833. 998 TABLE OF CASES. [BEFEBEKCES ABE TO PAGES.] Johnson v. Willis, 463. V. Youngs, 65. Johnson's Adm'r v. Hunt, 432, 944. V. Seller's Adm'r, 667, 674. Johnson's Adm'x v. Richmond & D. E. Co., 436. Johnson-Brinkman Commission Co. t. Central Bank of Kansas City, 867. Johnston v. Barrills, 669, 866. V. Crawley, 522. V. Decker, 323, 324. V. Elizabeth Bldg. & Loan Ass'n, 639. V. McConnell, 349. T. Russell, 365, 493. V. Smith, 696. V. Trask, 578. V. Wadsworth, 595. Johnston Harvester Co. v. McLean, 678. Johnstone v. Milling, 896. JoU V. Howe, 758. JolUtFe V. Collins, 697. Jonassohn v. Young, 918. Jones, Ex parte, 252. v. Anderson, 180. T. Arthur, 875. T. Ashburnham, 546, 678. V. Atkinson, 64. T. Barkley, 922. V. Binford, 682. Y. Blacklldge, 406, 408. T. Blocker, 710. v. Brewer, 234. V. Bunker, 778. V. Carter, 726. T. Chesapeake & O. B. Co., 899. V. Christian, 182. T. Clifford, 118. T. Colvin, 243. V. Dannenberg Co., 416. V. Davis. 585. V. Dow, 592. V. Emery, 173. V. Pales, 742. V. Flint, 562. V. Herbert, 763. V. Higgins, 716. V. Hoar, 61. V. Hoard, 839. V. Jones, 608, 949. V. Judd, 835. V. Just, 113, 917, 919. V. Lees, 452. V. Loveless, 523. V. Lucas County Com'rs, 848. V. McMichael, 572. V. Mechanics' Bank of Baltimore, 582, 583. V. New York Life Ins. Co., 66, 79. V. North, 404. V. Perkins, 669, 944. v. Peterman, 613, 614. V. Phoenix Bank, 260. V. Planters' Bank, 459. V. Pouch, 570. v. Reynolds, 583, 696. V. Rice, 415. V. Risley, 667. V. Rittenhouse, 686, 687. V. Robinson, 771. T. Shorter, 557. Jones V. Stanly, 711. V. Swayze, 530. V. Thomas, 715. V. Tyler, 632. V. United States, 826. V. Victoria Graving Dock Co., 601. V. Walker, 724, 899, 922. V. Williams, 401. V. Witter, 735. V. Wood, 887. V. Yates, 763. Jones' Adm'r v. Perkins, 289, 290, 301. Jordan v. Coffleld, 240, 244, 245. V. Davis, 523. V. Dobbins, 73. V. Elliott, 194, 195. V. Humphrey, 383. V. Kent, 362. V. Miller, '570. V. Mitchell, 384. V. Osgood, 143. V. Overseers, 347. V. Parker, 183, 186. V. Westerman, 434. V. Wilkins, 762. V. Wilson, 714. Joslin V. New Jersey Car Spring Mfg. Co., 715. Joslyn V. Parlin, 724. Joy V. Adams, 34. Joyce V. Realm Marine Ins. Co., 810. V. Swann, 79. Juchter v. Boehm, 701. Judah V. McNamee, 329. Judd V. Harrington, 443. V. Weber, 164. Judefind v. State, 337. Judge V. Wilkins, 201. Judson V. Bowden, 903. V. Corcoran, 736. Juilliard v. Chafeee, 785. Jump V. Johnson, 344. Junction R. Co. v. Ashland Bank, 500. Juniata Bank v. Brown, 176. Justice V. Lang, 599. V. Tallman, 721. Juzan V. Toulmin, 201. K. Kadish v. Garden City, E. L. & B. Ass'n, 225, 386. V. Young, 896. Kagel V. Totten, 99. Kahn v. Walton, 369, 479, 485. Kanaga v. Taylor, 503. Kanawha Coal Co. v. Kanawha & O. Coal Co., 320, 323. Kamena v. Huelbig, 736. Kane v. Chester Traction Co., 147. V. Clough, 731. V. Hood, 905, 913. V. Kane, 271. Kansas City,- M. & B. R. Co. v. Southern Railway News Co., 398. Kansas City, P. & G. Ry. Co. v. Moon, 252. TABLE OF CASES. 999 [REFEKENCES ABB TO PAGES.] Kansas City School Dlst. v. Sheidley, 406, 487, 691, 833. Kansas Pac. Ey. Co. v. Peavey, 436. Kantrowitz v. Prather, 315, 316. Katz T. Bedford, 878. V. Moessinger, 655. Kaufman y. Hamm, 352. V. United States Nat. Bank, 715. Kaye t. Dutton, 634, 650. Kean v. McKlusey, 545. Keane v. Boycott, 229, 253. V. Smallbone, 844. Kearley v. Thomson, 491, 492. Kearney v. Taylor, 392. V. Vaughan, 31. Keates v. Cadogan, 133, 144-146. Keck T. Bieber, 926, 929. V. McKinley, 49. Keeble v. Cummins, 287. v. Keeble, 926-929. Keedy v. Moats, 523. Keeler v. Taylor. 454, 456, 532. Keely v. Turbeviile, 168. Keen v. Coleman, 311. V. Hartman, 310. Keene v. Sage, 721. Keener v. Crull, 657. Keep V. Goodrich, 681, 682. Keesling v. Prazier, 556, 557. Kefter v. Grayson, 663. Keightley v. Watson, 770. Keir v. Leeman, 416. Keirn v. Andrews, 670. Keiser v. Decker, 381. Keith T. Haggart, 528. V. Herschberg Optical Co., 452. V. Kelland, 694. Kekewich t. Manning, 533, 937. Keller v. Ashford, 715. V. Gill, 533. V. Holderman, 84. T. Orr, 45. V. Schmidt, 182. V. Vowell, 701. Kelley v. Highfleld, 166. V. Noyes, 191. Kellogg T. Curtis, 101. V. Larkin, 452, 455. T. Olmsted, 670. V. Richards, 669. T. Eobiuson, 745, 749. V. Turple, 174. Kellogg Bridge Co. t. Hamilton, 917. Kelly, Matter of, 49. V. Bliss, 836, 853. V. Board of Public Works, 224. T. Central Pac. R. Co., 937. v. Hendricks, 609. V. Perrault, 199, 285. V. Roberts, 716. V. Solari, 122. V. Terrell, 571. V. Town of Bradford, 878. V. Trumble, 842. Kelsey v Harrison, 134. V. Hibbs, 557. Kelso T. Fleming, 859. V. Eeid, 928. Kemble t. Farren, 925, 928, 930. V. Kean, 942. Kemmitt v. Adamson, 382. Kemp v. Finden, 772. Kempner v. Cohn, 50, 68. Kemprer v. Rosenthal, 528. Kenan v. Holloway, 650. Kendall v. Hamilton, 758. V. Kendall, 840. * T. Lawrence, 253. T. May, 298, 299. T. Eobertson, 481. Kendrick v. Neisz, 230, 253, 258, 653. V. Kyle, 344. V. Mutual Benefit Life Ins. Co., 816. Kennedy, In re, 511. V. Baker, 261, 275. V. Brown, 329, 649. V. Carpenter, 761. T. Cochrane, 498. V. Doyle, 279. V. Knight, 499. V. McKay, 171. V. Panama N. Z. & A. R. M. Co., 111. V. Richardson, 796. V. Roberts, 176, 193, 194. V. Ware, 645. Kenner v. Harding, 149, 157. Kennett v. Chambers, 410. Kent V. Kent, 571. T. Pratt, 665. V. Rand, 654. V. St. Michaels Church, 883. Kentzler v. American Mut. Ace. Ass'n, 791. Kenworthy v. Sehofleld. 578. Keuyon v. Saunders, 327. T. Worsley, 655. Kepley v. Carter, 817. Kepner v. Keefer, 352. Kepp V. Wiggett, 535. Keppell V. Bailey, 750. Kercheval t. Swope, 884. Kerchner v. Gettys, 699. Kernion v. Hills, 663, 693. Kernochan v. Murray, 753, 834. Kerr v. Bell, 231. V. Birnie, 463. V. Hill, 562. v. Lucas, 699. V. Russell, 519. Kerrison v. Cole, 470. Kershaw v. Kelsey, 321, 323, 325. V. Kirkpatrick, 870. Kershaw's Ex'rs v. Whitaker, 545-547. Ketchum v. Catlin, 107. V. Evertson, 622. Ketletas v. Fleet, 328. Kettle V. Harvey, 904. Key's Lessee y. Davis, 294, 303. Keyes v. Allen, 553, 556. Kick V. Merry, 396, 664. Kidder v. Blake, 677. V. Hunt, 610. V. Kidder, 669, 760, 854, 943. Kies V. Young, 751. Kiewert v. Rindskopf, 492. Kilborn v. Field, 433. Kilcrease v. Johnson, 502. V. Shelby, 234. Kiley v. Western Union Telegraph Co., 438. Kilgore v. Jordan, 249, 251. V. Rich, 239, 241. Killian v. Ashley. 545. V. Harshaw, 798. 1000 TABLE OF CASES [KEFEBENCES ARE TO PAGES.] KlUmore v. Hewlett, 563. Kilpatrlck v. City of Baltimore, 791. Kimball v. Bangs, 147. V. Cuddy, 286. V. Goodburn, 885. V. Morton, 936. V. Noyes, 715. V. Whitney, 509. Kimball, The, 866. KimtiUll & Austin Mfg. Co. v. Vroman, 850. Kimbrough v. Lane, 415, 487. V. Lukius, 380. Kimmell v. Skelly, 100. Kincannon v. Carroll, 800. King V. Andrews, 870. V. Batterson, 101, 104, 105. V. Brown, 620. V. Bushnell, 616. V. Daris, 287. v. Doolittle, 117-119. V. Dulutb, M. & N. Ry. Co., 667. y. Eagle Mills, 157. V. Fleming, 354, 358. V. Fountain, 454. V. Gillett, 853. T. Green, 490. V. Hawkins, 402. V, Hoare, 758, 769. V. Inhabitants of Whitnash, 352. V. Jarman, 585. V. Kersey, 898. V. King, 468, 472, 694. V. Eandlett, 564. V. Sears, 694. V. Smith, 608. v. State Mut. Fire Ins. Co., 367. V. Upton, 545, 679. V. Welcome, 616, 623. V. Williams, 166. V. Winants, 403, 485. V. Wood, 596. V. Woodbridge, 933. King of Prussia v. Kuepper's Adm'r, 220. King of Spain v. Oliver, 220. King Philip Mills v. Slater, 909. Kingman v. Stoddard, 17.5, 184. Kingsbury y. Burrill, 732. V. Sargent, 195. V. Taylor, 157. Kingsford v. Jleri-y, 104. Kingsland v. Roberts, 869. Kingsley v. I-Iolbrook, 563. Kingston v. Preston, 912. Kinley v. Fitzpatrick, 127. Kinnebrew's Distributees v. Kinnebrew's Adm'rs, 531, 534. Kinney v. Baltimore & 0. Employes' Re- lief Ass'n, 420. V. Com., 502. V. Dodge, l.")!, y. Hooker, 786, 794. V. McDermot, 488, 490. V. South & X. A. R. Co., 56. Kinsey v. Wallace, 676. Kinsler y. McCants, 763. Kinsman v. Parkhurst, 440, 432, 693 Kintrea, Ex parte, 167. Kintzing v. McElrath, 145. Kinyon v. Young, 613, 614. Kip V. Norton, 561. Kirby v. Harrison, 882, 885, 886. Kirby v. Johnson, 586. V. Western Union Telegraph Co., 438. Kirk T. Hartman, 783. V. Morrow, 480. Kirkendall v. Hartsock, 168. Kirkham v. Marter, 548. Kirkland v. Benjamin, 417. T. Lott, 187. V. Gates, 828. Kirkman r. Philips' Heirs, 185. Kirkpatrick v. Adams, 371, 372, 458, 479. y. Bonsall, 369, 443. V. Reeves, 160, 161. V. Tattersall, 656. Kirksey v. Kirksey, 617. Kirkwood v. First Nat. Bank of Hast- ings, 846. Kirton v. Braithwaite, 874. Kistler v. Hereth, 949. Kitchen v. Lee, 270. V. Loudenbatk, 361. Kittle V. De Lamater, 459. Kittredge v. Holt, 946. Klapworth v. Dressier, 715. Kleckley v. Leyden, 340, 389. Kleeman v. Collins, 33, 600, 607, 618. y. Frisbie, 737. Kley V. Healy, 181. Klinck v. Price, 497. Kline v. Beebe, 259, 278. V. L'Amoureux, 243, 244. V. Raymond, 842. Knaggs V. Green, 275. Knapp V. Hoyt, 656. V. Mills, 671. V. Roche, 511. Knauss y. Cahoon, 567. Knight V. Abbott, 875. V. Barber, 581. V. Bean, 831, 834. V. Bowyer, 424. y. Cooley, 86. V. Godbolt, 34. V. Lee, 344. V. Mann, 583, 584. V. New England Worsted Co., 794, 795. Knisely v. Shenberger, 766, 769, 799. Knobb V. Lindsay, 695. Knott V. Knott, 567. Knowles v. Lord, 183. Kuowltou V. Congress & B. Spring Co., 491. V. Erie Ry. Co., 498. Knox V. Flack, 232. V. Haralson, 563. V. Haug, 296. V. Martin, 422. V. White, 480. Koch V. Williams, .'ia. 185, 623. Koehler v. Buhl, .S80. V. Dodge, 784. Kofka V. Rosicky, 613, 935. Kohl V. Lindley, 133. Kohn V. Melcher, 460. V. Renaisance, 411. Koonce v. Wallace, 233. Kopp V. Reiter, 589. Koser, Ex parte. 337. Kountz V. Davis, 278. V. Kennedy, 128, 159, 161, 162, 841. TABLE OF CASES. 1001 [REFERENCES ARE TO PAGES.j Eountz T. Price, 353, 358. Kraft V. Thomas, 915. Kraker v. Byrum, 243. Kramer v. Ewing, 88. V. Old, 436, 636, 941. Kranert t. Simon, 33. Kiapp T. Eldrldge, 946. Kraus v. Thompson, 175. Krause v. Busaclser 159, 185. Krebs v. O'Grady, 313. V. Olmstead, 951. Kreli V. Codman, 538. Kreps T. Kreps, 534. Kribben v. Haycraft, 407. Kribbs v. Downing, 177. Kriete v. Myer, 598. Kriger t. Leppel, 623. Krohn v. Bantz, 586, 599. Kromer v. Heim, 944. Krum V. Chamberlain, 77, 86. Krumm v. Beach, 172. Krutz T. Stewart, 554. Kugler V. Wiseman, 900. Kuh T. Garvin, 530. Kuhl T. M. Gaily Universal Press Co. 364, 460, 481. Kuhns V. Gates, 358. Kunlsel v. Wherry, 928. Kull V. Farmer, 655. Kuliman v. Greenebaum, 393. Kurtz V. Prank, 390, 894. Kutzmeyer v. Ennis, 553. Kyger v. Sipe, 253. Kyle V. Kavanagh, 109. Kyte V. Commercial Union Assnr. Co., 849. Labbe v. Corbett, 156. Lackey v. BorufE, 309. Laclede Bank v. Schuler, 736. Lacy V. Getman. 754, 834. V. Green, 789. V. Kossuth County, 348. V. Mann, 294. V. Pixler, 278. V. Sugarman, 322. Ladd V. Kenney, 659. V. Lord, 172. V. Rogers, 359. Ladies Collegiate Institute v. French, 690. La Du-King Mfg. Co. v. La Du, 607, 623. Lady Superior of Congregational Nun- nery of Montreal v. McNamara, 529. Laevison v. Baird, 702. La Fayette Co. Monument Corp. v. Ma- goon, 691. Lafayette & I. R. Co. v. Pattison, 194, 195. Laffertv v. Jelley, 427, 491. Laflin v. Howe, 703. Lafiin & Rand Powder to. v. Sinshei- mer, 787. Lafontain v. Hayhurst, 83, 640. Lagonda Nat. Bank v. Portner, 481. Lahay v. City Nat. Bank of Denver, 156. Laldlaw v. Organ, 133, 144, 145. Laidley's Adm'r v. Bright's Adm'r, 508. Laidlou v. Hatch, 555. Laing v. Fidgeon, 917. V. McCall, 417, 474. Laing's Ex'rs v. Byrne, 716. Laird v. Pirn, 922. Lake v. Brown, 735. V. Tyree, 168. V. Weber, 156. Lake Erie & W. R. Co. v. Whitham, 802. Lake Shore & M. S. Ry. Co. v. Richards, 892, 895. V. Spangier, 436. Lakeman v. Mountstephen, 551. V. Pollard, 827, 835. Lakeside Land Co. v. Dromgoole, 83. Lamar v. Micou, 323. Lamare v. Dixon, 129. Lamb v. Brewster, 342. V. Camden & A. Railroad & Trans- portation Co., 791. V. Crafts, 580. V. Lathrop, 873. Lambe v. Reaston, 803. Lambert v. Taylor, 726. Lamberton v. Grant, 950. Lamm v. Port Deposit Homestead Ass'n, 171. Lamore v. Prisbie, 353, 463. L'Amoureux v. Crosby, 296. V. Gould, 674, 682. Lampleigh v. Brathwait, 649. Lampman v. Cochran, 929. Lampon v. Corke, 808. Lamprey v. Lamprey, 533, 674. Lancaster Co. Nat. Bank v. Moore, 296, 298, 307. Lance v. Hunter, 409. Laucy v. Havender, 429. Land Credit Co. of Ireland v. Permoy,-' 757. Landa v. Obert, 193, 194. Landigan v. Mayer, 638. Lane v. Dayton Coal & Iron Co., 270, 271, 276. V. Drinkwater, 770. V. Shackford, 622. V. Smith, 737. V. Washington Life Ins. Co., 382. Lang V. Henry, 510. V. Johnson, 628. V. Whidden, 285, 292. Laugden v. Stolies, 853. Langdon v. City of New York, 819. V. Clayson, 275. V, Paul, 841. V. Richardson, 551. Lange v. Werk, 453, 454, 456. Langford v. Monteith, 486. Langfort v. Tiler's Adm'x, 586. Langley v. Rodriguez, 784, 905. Langridge v. Levy, 164. Langton v. Horton, 731. V. Hughes, 460. Laukton v. Stewart. 944. Lanphire v. Slaughter, 785. Lansden v. McCarthy, 730. Lansing v. Dodd, 929. V. Michigan Cent. R. Co., 276. Lantis v. Davidson, 290. Lapham v. Whipple, 573. Large v. Cheshire, 913. Larimer v. Kelley, 570. 1002 TABLE OF CASES. [REFERENCES ABE TO PAGES.] Larimer v. McLean County Sup'rs, 43 Larkin t. Hardenbrook, 855. Larmon v. Jordan, 48, 67. Lamed v. Andrews, 341. Larrabee v. Baldwin, 511. Larsen v. Hansen, 59. V. Johnson, ^58. Larson t. Jensen, 552. La Eue v. Gilkyson, 298, 299. V. Groezinger, 724, 731. Lash V. Parlin, 785. Lassence v. Tierney, 614. Latham v. Udell, 199. Lathrop v. Hiekson, 697. V. Knapp, 690. v. Page, 671. Lattlmore v. Harsen, 668. V. Simmons, 755. Laub V. Paine, 843. Laubenheimer v. Mann, 454. Lauer v. Lee, 862. V. Kichmoud Co-operative Mercan- tile lust., 617. Laughter's Case, 889. Lauten v. Rowen, 469, 498. Layery v. Turley, 542. Law T. Grant, 169, 171, 172. V. Local Board of Kedditch, 928. T. Long, 254, 256, 265, 269. Law Trust Soc. v. Hogue, 379. Lawing v. Eintles, 828. Lawrence v. Beaublen, 119. V. Campbell, 535. T. Clark, 480. y. Cooke, 569. V. Davey, 668. V. Dole, 861. V. Fox, 715. y. Gayetty, 143, 146, 149, 150. V. Hester, 61. V. McArter, 231. T. McCalmont, 692. V. Milwaukee, L. & S. W. By. Co., 87. y. Minturn, 718. V. Willis, 285. Lawson y. Hogan, 858, 883. V. Loyejoy, 260. Lawson's Bx'r v. Lawson, 26, 29. Laybourn y. Seymour, 898. Layman y. Conrey, 199. Layne v. Bone, 169. Layton v. Pearce, 887. Lea y. Cassen, 477, 478. y. Exelby, 906. V. Whitaker, 925. Leach v. Beardslee, 814. y. Dodson, 787. V. Fobes, 937. V. Nichols, 101. y. Tilton, 703. Leahi y. Dugdale's Adm'x, 735. Leake y. Ball, 549. Leaphart y. Commercial Bank, 778 Lear y. Choteau, 564. Leask v. Scott, 183, 651, 678, 679. Leather Cloth Co. v. Lorsont, 451, 453, 457. Leavitt V. De Launy, 376, 378, 379. y. Dover, 828. v. Palmer, 472. V. Sizer, 159. Lebby v. Ahrens, 168. Le Blanche y. London & N. W. Ey. Co., 920. Le Bret v. Papillon, 323. Lecomte v. Toudouze, 561. Ledbetter v. McGhees, 549. Ledlow y. Becton, 551, 552. Lee v. Burnham, 176, 186. V. Butler, 842. V. Cherry, 89. V. Davis, 637. V. Early, 870. V. Fletcher, 525. y. Griffin, 73, 579. y. Hawks, 542. y. Jones, 146. V. Kimball, 183. V. Kirby, 201. y. Muggeridge, 644, 654. V. Mahoney, 604. V. Newman, 549. V. Portwood, 182. V. Savannah Guano Co., 665. y. Trustees of Flemingsburg, 43, 81. V. Yandell, 302. Lee's Adm'r v. Hill, 572. Leeds v. Little, 878. Leep V. St. Louis, I. M. & S. Ry. Co., 337. Lees V. Whitcomb, 642. Leeson v. Anderson, 671. Lefavour v. Insurance Co., 139. Lefever v. Lefever, 156. Le Fevre v. Le Fevre, 861. LefEerson v. Dallas, 616. Legh V. Legh, 727. Le Grand V. Eufaula Nat. Bank, 181. Lehman v. Feld, 65, 499. V. Shackleford, 151, 195. V. Strassberger, 479. Lehmann v. Schmidt, 185. Lehow y. Simonton, 713. Leigh V. Paterson, 896. Leightman v. Kadetska, 481. Leitensdorfer v. Hempstead, 265. Lemay v. Johnson, 844. V. Williams, 844. Lemmon v. Beeman, 231, 271. Lemon v. Grooskopf, 480. Lenderman v. Talley, 310. Leneret v. Rivet, 665. Lenhart v. State, 228. Lennig's Estate,' In re, 391. Lennon v. Napper, 883, 884. Lennox v. Bldred, 752. Lenox V. Fuller, 184. Lent V. Padelford, 603. Lente v. Clarke, 596. Leonard v. Beaudry. 932. V. Burgess, 736. V. Clough, 561. V. Dyer, '908, 921. V. Hughlett, 536. V. Leonard, 296. V. Medford, 563. v. Piney, 949. V. Phillips, 843. V. Poole, 480. y. Vredenburgh, 545, 552, 594. Le Page v. McCrea, 670. Leppoc V. National Union Bank, 527, 528. Lerch v. Gallup, 556. Lerned v. Wannemacher, 590. TABLE OF CASES. 1003 [REFERENCES ABE TO PAGES.] Leroux v. Brown, 33, 607, 618. Lerow v. Wilmarth, 655, 656. Lesem v. Miller, 166. Leskle v. Haseltine, 85. Leslie V. Lorillard, 444. Lester v. Buel, 368. V. Heidt, 598. V. Howard Bank, 348. V. Jewett, 913. V. Mahan, 152. T. Palmer, 697. Letchford, In re, 234. Lett V. Morris, 733. Leverenz v. Haines, 675. Levering v. Heighe, 254. Levet V. Creditors, 463. Levey v. Allien, 475. Levi V. Marsha, 813. Levlne v. Taylor, 324. Levistones v. Landreaux, 716. Levy V. Brusli, 566. V. Cohen, 52. V. Gadsby, 777. V. Merrill, 594. V. Spencer, 397. Levystein v. Whitman, 870, 871. Lewark v. Carter, 169. Lewis V. Alexander, 459. V. Arbuckle, 287. V. Baird, 288, 291. V. Bright, 389. V. Brookdale Land Co,, 169. V. Broun, 422, 427. T. Browning, 53. V. Bruton, 498. V. GoUner, 751. V. Headley, 499. V. Jewell, 156. V. Jones, 150. V. Knox, 400. V. Latham, 409, 461. V. Lee, 314. V. Lewis' Adm'x, 429. V. Littlefleld, 250, 365. V. McLemore, 129. V. Owen, 639. V. Payn, 840. V. Pead, 287. V. Phoenix Mut. Life Ins. Co., 367. V. Schwenn, 869. V. Seabury, 567. V. Shepherd, 844. V. Tapman, 569. V. Watson, 519, 523, 524. V. Welch, 341, 849. V. Wood, 591. Lewis' Ex'rs v. Overby's Adm'r, 520. Lexington Fire, Life & Marine Ins. Co, V. Paver, 136. Libby v. Downey, 349. LIchty V. Hugus, 329. Liddell v. Sims, 886. Liddle v. Needham, 618. Lldegerding v. Zignego, 751. Liebke v. Knapp, 397. Liening v. Gould, 671. Life Ass'n of Scotland v. Slddal, 175. Light V. Killlnger, 841. Lightfoot V. Heron, 289. V. Tenant, 460. V. Wallis, 196. Likes V. Baer, 183. Llllard v. Turner, 316. Lillle V. Dunbar, 563. Lilly V. Ewer, 796. V. Waggoner, 284, 285, 288, 290, 297. Limburg v. German Fire Ins. Co., 849. Lime Eock Bank v. Mallett, 670. Linch V. Paris Lumber & Grain Eleva- tor Co., 878. Lincoln v. Buckmaster, 298, 303, 304. v. Erie Preserving Co., 75, 86. V. Field, 790. V. Gay, 66. V. Little Eock Granite Co., 928. Lindauer v. Hay, 146, 163, 164. Linden v. Eokes, 676. Lindenau v. Desborough, 138, 154. Llnder v. Carpenter, 398. Lindley v. GrofT, 798. V. Sharp, 378. Lindsay v. Smith, 417, 470. V. United States Sav. & Loan Co., 345. Lindsay Petroleum Co. v. Hurd, 149, 175. Lindsey v. Eutherford, 341. V. Veasy, 169. Lindus V. Melrose, 818, 819. Line V. Nelson, 671. V. Stephenson, 814. Lines v. Smith, 545. Lingenfelder v. Wainwright Brewing Co., 667. Linington v. Strong, 156. Linn v. McLean, 80. V. Sigsbee, 451, 455. Linneman v. Moross' Estate, 713, 719. Liuscott v. Mclntire, 566. Linton v. National Life Ins. Co., 379. Llppold V. Lippold, 522, 526. Lipsmeier v. Vehslage, 639. Litchfield v. Garratt, 858. V. McDonald, 949. Little V. Allen, 687. V. Banks, 715. V. Dougherty, 600. V. Duncan, 261. V. Edwards, 553. V. Hobbs, 669. V. Little, 291, 297. V. McCarter, 549, 567. V. Martin, 122, 616, 621. V. Mills, 481. V. Wllletts, 632. Littlefleld v. Albany County Bank, 737. V. Shee, 644, 654. V. Smith, 733. V. Story, 728. Littlejohu v. Patlllo, 628. Livermore v. Northrup, 616, 617. Liverpool Adelphi Loan Ass'n v. Fair- hurst, 250, 309, 310. Liverpool Water Works v. Atkinson, 809. Liversidge v. Broadbent, 727, 859. Livesey v. Omaha Hotel Co., 922. Livingston v. Maryland Ins. Co., 147. V. Peru Iron Co., 132. V. Ealli, 418. V. Sogers, 681. V. Ten Broeck, 793, 795. Lizzie Merry, The, 730. Llanelly Railway & Dock Co. v. London c N. W. Ey. Co., 948. 1004 TABLE OF CASES. [REFERENCES ARE TO PAGES.] Llewellyn v. Llewellyn. 685. Lloyd V. Ashby, 769. V. Banks, 735. V. Harden, 630. V. Fulton, 558, 614. T. Guibert, 499. V. Johnson, 459. v. Keachj 377. T. Scott, 376, 378, 379, 481, 484. Loach V. Farnum, 860. Load V. Green, 143, 183. Lochenmeyer v. Pogarty, 866. Lock y. Wright, 913. Locke V. Smith, 246, 247, 272. T. Wilson, 951. Lockhart v. Geir, 565. Lockwood V. Barnes, 619. y. Gilson, 590. Lodge y. Dicas, 758, 860. Loeb y. Flash, 183. Loewer v. Harris, 146. Logan V. Gardner, 231, 256, 261. T. McGinnis, 391. V. Mathews, 677. V. Plummer, 531. y. Wallis, 185. Logging V. Buck's Adm'r, 699. Lomax v. Smyth, 639, 679. Lombard y. Cobb, 772. Lomerson y. Johnston, 152. London Assur. Co. t. Mansel, 138. London, C. & D. Ey. Co. y. Southeast- ern Ry. Co., 933. London Joint-Stock Bank y. Simmons, 743. London & N. W. Ry. Co. y. McMichael, 234. London & Northern Bank, In re, 53. London & Proyincial Ins. Co. v. Sey- mour, 186. London & S. F. Bank t. Parrott, 818, 872 London & S. W. Ry. Co. y. Flower, 915. Long y. Allen, 698, 701. V. Battle Creek, 88. y. Fox, 308. y. Gilbert, 148. y. Hartwell, 542. ■V. Howard, 873. V. Mason, 844. V. Millar, 604. T. New York Cent. R. Co., 783. T. Towl, 452, 677. v. Warren, 155. V. Williams, 278. y. Woodman, 150. Longfellow v. Barnard, 651. Longmeid y. HoUiday, 164. Lohgridge y. Doryille, 685. Longshore Printing Co. y. Howell, 447, 448. Longworth v. Higham, 671. V. Mitchell, 48. Lonsdale v. Brown, 642, 648, 657, 679. Loomis y. Newhall, 694. y. Spencer, 298, 305. Loop's Ex'rs y. Loop's Adm'r, 248. Loper y. Robinson, 161. Lord y. Goddard, 161. y. Underdunck, 614. V. Wheeler, 835. V. Wilcox, 946. Lord Ilowden y. Simpson, 465. Lorillard v. Clyde, 790. Loring y. City of Boston, 49, 76. Losey v. Bond, 260, 265. Loubat y. Kipp, 526, 530. Loucks y. Taylor, 145. Loud y. Hamilton, 416. V. Pomona Land & Water Co., 906. Louisiana y. Mayor, 511. Louisyille Asphalt Varnish Co. y. Lo- rick, 590, 600, 603. Louisyille, N. A. & C. Ry. Co. y. Sum- ner, 399, 730. Louisyille & N. E. Co. y. Dies, 437. y. Grant, 437. y. Oftutt, 851. y. Wynn, 778. Lounsbury v. Beebe, 883. Loye y. Cobb, 561. V. Haryey, 365, 493. V. Moyhehan, 313. y. Wells, 338, 344, 362, 354. Lovejoy y. Isbell, 156. V. Richardson, 519. Y. Whipple, 354. Lovelace y. Travelers' Protective Ass'n, 779. Loveland v. Green, 44. Lovell v. St. Louis Mut. Life Ins. Co., 899. Lovelock v. Franklyn, 898. Loveridge v. Cooper, 736. Loveri'ng v. Lovering, 898. Low V. Andrews, 618. v. Hutchinson, 422. V. Rees Printing Co., 338. Lowber v. Bangs. 127, 921. Lowe v. Bryant, 628. y. Gist, 231. V. Griffith, 241. v. Kirby, 915. V. Peers, 431. V. Ring, 396. V. Sinklear, 281. V. Turpie, 565. V. Young, 368, 372, 465, 474. Lowell V. Daniels, 311. Lower v. Schumacher, 297. Lower Latham Ditch Co. v. Louden Irrigating Canal Co., 946. Lowerson v. Johnson, 146. Lowis V. Conrad Seipp Brewing Co., 190, 195. Lowndes v. Chisholm. 120. Lowman v. Sheets, 573. Dowry v. Dillman, 368. 372. y. Drake's Heirs, 275. V. Tile, Mantel & Grate Ass'n of California, 442. Loyd V. Lee, 677. Lozear v. Shields, 288. Luark v. Malone, 553. Lubbering v. Kohlbreeher, 840. Lucan, In re, 937. Lucas V. Allen, 406. v. Beale, 771. V. Coulter, 133. V. Sanders, 758. V. Waul, 481. Lucke v. Clothing Cutters' & Trimmers' Assembly. 711. Luckett y. Williamson, 612. Ludington v. Bell, 860. V. Benick, 167. TABLE OF CASES. 1005 [KEFERENCES ARE TO PAGES.] 159, 171. 482. Ludlow V. Uardy, 635, 653. V. McCrea, 769, 771. V. Van Kensselaer, 498. Luey V. Bundy, 020. Lufkin V. Mayall, 281. Lufkin Rule Co. v. Fringeli, 443, 453- 455 Luke V. Lyde, 835. Lukens v. Hazlett, 385. Lum V. MeEwen, 397. Lumbert v. Woodard, 845. Lumley v. Gye, 711. V. Palmer, 537. V. Wagner, 939, 940. Lumsden's Case, 256. Lundberg v. Xorthwestern Elevator Co., 676. Lungerhausen t. Crittenden, 89. Lunt V. Stevens, 763. Lurton v. Gilliam, 764. Lutz V. Thompson, 904, 905. Lyall V. Edwards, 808. Lycoming Fire Ins. Co. v. Wrigbt, 349. Lydick v. Baltimore & O. R. Co., 663, 751. Lyman v. Babcock, 929. V. Clark, 808. V. Robinson, 87. V. Townsend, 462. Lynch v. Austin, 727. V. Doran, 287. V. Fallon, 397. V. Livingston, 780. V. Mercantile Trust Co. V. Rosenthal, 374. V. Sellers, 899. Lynchburg Nat. Bank v. Scott, Lynde v. Budd, 260, 275. Lyndon Granite Co. v. Farrar, 906. Lynn v. Bruce, 943. Lyon V. Annable, 613. V. Ballentine, 768. V. Culbertson, 370. V. Jerome, 65. V. Lenon, 785. V. Mitchell, 408. V. Strong, 352, 486. V. Summers, 728. Lyons v. Bleukin, 435. V. Briggs, 147. V. Hodgen, 368. Lyth v. Ault, 860. Lytle V. State, 424. M. McAleer v. Horsey, 153, 154. McAlister v. Howell, 452. McAIlester v. Sprague, 760. McAllister v. Hoffman, 493. V. Howell, 452. V. Smith, 498, 499. McAnaw v. Tiffin, 295, 301, 302. MacAndrew v. Chappie, 910. V. Electric Telegraph Co., 438. McAndrews v. Tippett, 899. McAnnulty v. McAnnulty, 558, 590, 614. McArthur v. Bloom, 313. McAvoy V. Long. 813. McBlair v. Gibbes, 477, McBratney v. Chandler, 329, 404, 405, 408, 468. llcBrlde v. Macon Telegraph Pub. Co., 156. JlcCabe v. Caner, 675. V. Grey, 735. McCaleb v. Pradat, 781. V. Price, 663, 665. McCall V. Davis, 132. V. Parker, 234. McCall's Adm'r v. Capehart, 391. McCall Co. V. Icks, 90. McCalley v. Otey, 875-877. McCalop V. Hereford, 354. McCandless v. Allegheny Bessemer Steel Co.. 388, 395, 396, 664. McCann v. Atherton, 523, 526. V. Eddy, 437. V. Lewis, 670. McCarley v. Tippah County, 519. McCarren v. McNulty, 879. McCarthy v. Nash, 584. V. Nicrosi, 259, 264, 265, 276, 278. V. Pope, 542. McCartney v. McCartney, 39. V. Shepard, 464. McCarty v. Beach, 531, 534. V. Blevins, 639. V. Hampton Bldg. Ass'n, 667. V. Woodstock Iron Co., 264, 268- 270, 280. McCauley v. Davidson, 630. V. Holtz, 872. McCaull V. Braham, 940, 942. McClain v. Davis, 294, 302, 307. McClallen v Adams, 329. McClanahan v. McKinley, 147. V. Williams, 265. McClary v. Michigan Cent. R. Co., 56. McCleerey v. Wakefield, 517. McClellan v. Kennedy, 685. V. Robe, 727. V. Santord, 573. V. Scott, 147, 148. McClelland v. Citizens' Bank, 392. V. Rush, 543. McClintick v. Cummins, 189. 197. McClung V. Kelley, 577. McClure v. Briggs, 879. V. Little, 842. V. Missouri River, Ft. S. & G. R. Co., 399. V. Otrich, 617. V. Wilson. 690. McClui-g's Appeal, 452, 456, 692, 941. V. Terry, 84. McClernan v. Hall, 783. McCombs V. McKenuan, 857. McConihe v. I\Tc]\Tann, 461. McConnfil v. Brillhart, 589, 595. V. Hector, 320. V. Kitchens, 340-342, 349. McCorkle v. Doby, 458. McCormack v. Molburg, 100. McCormick v. Basal. 894. V. Cheevers, 567 V. Drnmmett, 571. V. Holbrook, 316. V. Lamin, 131. V. Littler, 290, 296, 298, 299. McCormick Harvesting Mach. Co. v. Miller, 193. \ McCotter v. City of New York, 77. ^ McCoun V. New York Cent. & H. R. R. Co., 24. McCoy V. Metropolitan Life Ins. Co.. 139. 1006 TABLE OF CASES. [BEFERENCES AEE TO PAGES.] McCoy T. Moss, 576. McCoy's Adm'rs t. Bixbee's Adm'rs, 905. McCracken t. West, 165, 166. McCraith v. National Mohawk Valley Bank, 553. McCrea t. PUrmort, 535. McCready v. Freedly, 766. V. Phillips, 143, 184. McCreery v. Day, 852, 853, 855, 861, 945. McCrelish v. Churchman, 904. McCrillis v. Allen, 104. T. Bartlett, 298, 299, 308. V. Carlton, 175, 179, 180. T. How, 247. McCroy t. Toney, 569. McClie T. Smith, 542. McCuUoch V. Eagle Ins. Co., 47, 52, 68. V. Scott, 175. McCuUough V. Day, 524. McCulsky V. Klosterman, 815. McCurdy v. Rogers, 65. McCurry t. Gibson, 637, 692, 928, 941. MciDaniel v. Maxwell, 732, 733. McDonald v. Aufdengarten, 475, 481. T. Boeing, 47. T. Dickson, 511. V. Bggleston, 518. T. B"'leming, 483. V. Gray, 690. T. Haughton, 397. T. Hewett, 584. V. Kneeland, 736. T. Lynch, 122. T. Peacemaker, 185. V. Sargent, 230. V. Tungbluth, 544. McDonel v. State, 318. McDougall V. Page, 656. McDowell V. Laev, 718. McElroy v. Buck, 597, 598. V. Carmichael, 364. T. Ford, 511. V. Ludlum, 572, 573, 611, 620, 621. V. Seery, 591. V. Swope, 567. McElven v. Sloan, 655. McEntire v. McEntire, 133. McEwen v. Bamberger, 530. McFadden v. Missouri Pac. Ry. Co., 887. V. O'Dounell, 862. v. Ross, 529. McFarland t. McGill, 143. V. Railway Officials' & Employes' Accident Asa'n, 779. McGan v. Marshall, 264, 265. McGar v. Williams, 155. McGatrick v. Wason, 357. McGaTock v. Morton, 8. McGee v. Mathls, 220. McGill V. Griffin, 384. V. Woodward, 264. McGill's Creditors v. McGill's Adm'r., 831. McGinnis v. Fernandes, 616. McGloin's Ex'rs v. Vanderlip, 547. McGoren v. Avery, 122. McGovem v. Hern, 591. McGowen v. West, 609. McGrath v. Gegner, 875, 909, 931. McGrath v. Merwin, 356. McGraw v. McGraw, 522. MacGreal v. Taylor, 229, 268, 270-272, 280. McGregor v. Brown, 563. V. McGregor, 318. McGrew t. City Produce Exchange, 368. McGuire t. Bidwell, 866. T. Stevens, 596, 598. McGunn v. Hanlin, 419. McHenry v. Hazard, 186. V. Yokum, 702. McInifEe v. Wheelock, 874. Macintosh v. Miner, 88. Mclntyre v. Buell, 163. V. Parks, 498. McJilton V. Love, 947. McKamy v. Cooper, 251, 259. McKanna v. Merry, 239, 243, 245. McKay v. Jackman, 45, 110. McKee v. Eaton, 156. V. Jones, 498. V. Reynolds, 433. McKee's Adm'r v. Ward, 299. McKelvey v. Jarvis, 871. McKennon v. Winn, 065. McKenzie v. Culbreth, 669. V. Garnett, 380. V. Harrison, 861. V. Hesketh, IIG. McKiernan v. Lenzen, 224. McKindley v. Drew, 184. McKinley v. Watkins, 38, 682, 687. McKinuell v. Robinson, 459. McKinney v. Alvls, 727. V. Bradlee, 850. V. Harvie, 622. V. Miller, 534. V. Wilson, 583. McKinney's Adm'x v. Andrews, 460. McKinnis v. Estes, 354. McKinnon v. McBwan, 933. V. McKinnon, 567. McKnight v. Bell, 562. V. Dunlop, 583. McKown V. Purgason, 159. McLamb v. McPhail, 533. McLanahan v. Universal Ins. Co., 136, 137, 140. McLaughlin v. McManigle, 524. McLauren v. Graham, 481. McLean v. Pastime Gymnasium Ass'n, 80. McLellan v. Cumberland Bank, 760. MpLennan v. McLennan, 501, 502. MacLeod v. Skiles, 536. McMahan v. Bowe, 424. *■ McMahon v. Boden. 339. V. New York & E. R. Co., 933. V. Smith, 416« McManus v. Bark, 943. V. Cooke, 611. McMasters v. Pennsylvania R. Co., 789. McMichael v. Carlyle, 516, 949. McMillan v. Ames, 67, 531. V. Solomon, 831. McMinn v. Richmonds. 246, 247. McMinn's LegatPes v. Phipps, 392. McMuUen t. Riley, 562. McMurphy v. Garland, 860. McMurry y. Brown, 519. McNair v. Toler, 324. McNairy v. Bell, 379. V. Thompson, 794. TABLE OF CASES. 1007 [UllFEKENCES ABE TO PAGES.] McNairy County v. McCoin, 298. McNamara v. Gargett, 387, 394, 468 801. McNaughten v. Partridge, 536. McNisli T. Eeynolds, 680, 862. McNitt T. Clark, 889, 891. McPherson v. Cox, 196, 429, 570. V. Fargo, 15, 682. 894. McPike V. Heaton, 749. McQnade v. Eosecrans, 469. McQuaid v. Ross, 783. McEaven v. Crisler, 842, 904, 905. McShane v. Hazlehurst, 187. McSparran v. Neeley, 307. McTaggart v. Eose, 583. McVeigh v. United States, 324. McVey v. Cantrell, 315, 316. V. Ely, 846. McWilliams v. Phillips, 485. V. Webb, 733. Mabln v. Coulon, 502. Macbryde v. Weeks, 885. Macdonald v. Longbottom, 788. Mack T. Bragg, 623. Mackay, Ex parte, 343, 344. V. Commercial Bank, 170. Mackbee v. Griffith, 462. Maekey v. Dick, 899. V. Peterson, 101. V. Smith, 552. Maclary v. Eeznor, 672. Maclay t. Harvey, 49, 53, 78. Macomber v. Doane, 402. Macon & B. E. Co. T. Gibson, 829. Macoupin Co. v. People, 201. Mactier's Adm'rs v. Frith, 47, 51, 57, 73. Macullar v. McKinley, 165, 166. Madden v. Gilmer, 751. V. Jacobs, 832. Maddick T. Marshall, 65. Maddison v. Alderson, 33, 607, 613, 615. Maddon v. White, 233. Maddox v. Miller, 245. V. Simmons, 285. Maddux v. Bevan. 669. Mader v. Cool, 631, 667, 702. Madison v. Shockley, 632. Madison Square Bank v. Pierce, 869. Maffet V. Ijams, 392. Magee v. Pacific Imp. Co., 225. V. Welsh, 240. Maggart v. Freeman, 169. Magnlac v. Thompson. 636. Maguire t. Pingree, 499. V. Smock, 411. Magwood V. Duggan, 345. Mahan v. United States, 608. Mahana v. Blunt, 614. Mahurin v. Harding, 157, 161. Main's Case, 923. Maine Bank v. Butts. 384. Mains v. Haight, 922. Maisenbacker v. Society Concordia, 934 Maitland v. Backhonsp. 200. V. Zanga, 487. Major T. Hansen. 844. Major's Ex'r v. Gibson, 427. Majors t. Hickman, 899. Maicarell v. Bachelor. 239. Makemson v. KautCman, 412. Makin v. Watkinson, 915. Malins y. Freeman, 31. Mallalieu v. Hodgson, 393. Mallam v. Arden, 888. Mallan v. May, 455, 456, 813. Mallet V. Bateman, 544. Malli T. Willett, 416. Mallory v. Gillett, 554-556. T. Leach, 145, 184. Mallory's Adm'rs v. Mallory's Adm'r, 558. Maloue t. Boston & W. E. Corp., 45. V. Keener, 549, 553. V. Plato, 585. Maltby v. Austin, 884. Manchester t, Braedner, 951. Manchester Fire Assur. Co. v. Feibel- man, 476. Manchester Paper Co. v. Moore, 788. Manchester & L. E. Co. v. Concord E. Co 225 Mand v. Trail, 789. Mandeyille v. Harman, 454, 456. V. Welch, 728, 732. Mandlebaum v. Gregovich, 341. Mangles v. Dixon, 737. Manhattan Life Ins. Co. v. Buck, 835. Manley v. Felty, 157. Manly v. Bitzer, 731. T. Howlett, 938. Maun V. Higgins, 597. Manning v. Albee, 148. T. Johnson. 231, 259, 272. v. Plppen, 565. V. Eiley, 558, 614. V. Sprague, 421, 429. v. State of Nicaragua, 219. Mansfield v. Gordon, 253. V. Hodgdon, 8. T. Watson, 289, 290, 294, 300. Mansfield & S. C. R. Co. v. Veeder, 813. Manson v. Felton, 308. Manter v. Churchill, 678. V. Truesdale, 146. Manton v. Ray, 937. Manufacturing Co. v. Hobbs, 90. Marble v. Grant, 393. T. Standard Oil Co., 88. March v. Eastern R. Co., 419, 420. V. Ward, 769. Marcy v. Marcy, 573. Marden v. Champlin, 589. V. Phillips, 475. Mardton v. Swett. 609. Marie v. Garrison, 392. Maril v. Connecticut Fire Ins. Co., 787. Marine & R. Phosphate Min. & Mfg. Co. T. Bradley, 637, 671. Marion v. Heimbach, 671. Markel v. Moudv, 148. Marking v. Needy, 396, 664. Markle v. Hatfield, 865. Marksbury v. Taylor, 485, 489. Marlett v. "Wilson's Ex'r, 719. Marlor v. Tpxas & P. R. Co., 889. Marlow v. Pitfleld, 241. Marquis v. Lauretson, 900. Marriner v. Dennison, 132, 168. Marryat v. Marryat. 536. Marsden v. More. 913. Marsh v. Fuller. 632. V. Gold, 464. V. Hyde, 583. 1008 TABLE OF CASES. [kefekences are to pages.] Marsh v. Eainsford, 648. V. Sulesson, 851. V. Kussell, 403. T. Webber, 133. Marshall v. Baltimore & O. R. Co., 404-407. y. CoUett, 107, 119. V. Ferguson, 562, 585, 888. V. Lyna, 543. V. Means, 425. V. Old, 40. V. Eutton, 314. V. Thurston, 479. V. White's Creek Turnpike Co., 15. Marston v. Bigelow, 713, 719. T. Gale, 565. V. Kennebec Mut. Life Ins. Co., 784. V. Simpson, 176. V. Swett, 693. Martendale v. Follet, 846. Martin v. Adams, 850. V. Amos, 426. T. Bartow Iron Works, 387, 486. T. Black's Ex'rs, 49, 545. T. Byrom, 258. T. Campbell, 169. V. Clarke, 426, ,429, 488, 784. T. Crump, 763. V. Crompe, 764. V. Decatur Branch Bank, 949. V. Deetz, 932. V. Drinan, 749. V. Dwelly, 309, 314. V. FlahSrty, 524, 526. V. Frantz, 773. V. Gale, 240. T. Hamlin, 837. V. Hortin, 4u9. V. McCormick, 119, 122. V. Martin, 500. V. Morgan, 885. T. Murphy, 452, 455. V. Mayo, 254, 258. V. New Eochelle Water Co., 192. T. Northwestern Fuel Co., 77, 79, 86. T. Paterson. 614. V. Eoyster, 400. V. Sitwell, 108, 122. T. Smith, 913. V. Tradesmen's Ins. Co., 840. T. Wade, 343, 402, 478. T. Weyman, 515. V. Wharton, 150. Martin's Adm'r v. United States, 218. Martindale r. Fisher, 904. Marvel t. Phillips, 831, 832. Marvin t. Bennett, 115. V Lewis, 295. V. Stone, 816. V. Treat, 81. V. Wallis, 585. Marvine v. Hymers, 381, 384. Maryland Coal Co. y. Cumberland & P. R. Co. 813, 814. Maryland Fertilizing & Mfg. Co. v. Lorentz, 908. Maryland Ins. Co. v. Ruden's Adm'r, 136. Marzetti v. Williams, 54. Mascolo V. Montesanto, 191. Maslin's Ex'rs v. Heitt, 759. Mason v. Bair, 613. V. Bauman, 131. Mason v. Callender, 929. V. Campbell, 657, 669, 944. V. Chappell, 69. V. Chappell, 699. T. Decker, 599. T. Eldred, 758. T. Hall, 713, 715. V. Harvey, 906. V. Jordan. 311, 313. V. McLeod, 340, 341, 389, 495. V. Mason, 608. V. Smith, 746. V. Wright, 227, 241. V. York & C. E. Co., 729. Massachusetts General Hospital t. Fairbanks, 298. Massey v. Wallace. 390, 483. Masson v. Bovet, 180, 186. Master v. Miller, 424. Master of Newcastle v. Bradley, 795. Master Stevedores' Ass'n v. Walsh, 446, 447. Mastersou v. Howard, 324. Masury v. Southworth, 745, 747, 748. V. Whiton, 947. Materne v. liorwitz, 394. Mather v. Butler County, 931. Mathes v. Dobschuetz, 241. Mathews v. Cowan, 249. V. Phelps, 818. V. Sharp, 930. V. Toogood, 380. Mathewson v. Fitch, 426. Matthiesson & Weichers Refining Co. V. McMahon's Adm'r, 304, 583, 833. Jlathis V. Thomas, 876. Mathison v. Hanks, 416. Matlock V. Fry, 562. V. Malory, 377. V. Todd, 156. Matson v. Blossom, 394. V. Wharam, 551. Matteson v. Scofield, 79. Matthew's Adm'r v. Meek, 681. Matthews v. American Cent. Ins. Co., 641, 826. V. Associated Press, 444. V. Baxter, 29, 32, 144, 288, 294, 300, 302. V. Coe, 382, 384. V. Lindsay, 876. V. McStea, 324. V. Milton, 551, 552. V. Paine, 497. V. Smith, 632. Mattock V. Kinglake, 906. Maurier v. Mitchell, 647. Maurin v. Fogelberg, 551, 552. V. Lyon, 789, 815. Maxcy v. New Hampshire Fire Ins. Co., 713. Maxfield v. Jones, 698. V. West, 613. Maxwell v. Allen, 928. V. Clarke, 946. y. Day, 860. y. Graves, 632, 858. y. Griswold, 195. V. Haynes, 550. May v. Baskin, 562. V. Flint, 382. v. Hanson. 768. y. May. 770. V. Ward, 598. TABLE OP CASES. 1009 I HICFERBNCES ARE TO PAGES.] Martin v. "Webb, 234. V. Williams, 557. Maybee t. Moore, 617. Maybin t. Coulon, 341, 502. V. Kirby, 736. Mayer v. Adrian, 591, 604. T. Dwinell, 887. Mayhew v. Mather, 104. Maynard v. Maynard, 133. V. Tidball, 61. Mayo V. Wahlgreen, 149, 171. Mayo's Ex'r v. Carrlngton's Bx'r, 201. Mayor of Loudon v. Long, 795. Mays v. Dwight, 109. V. Prewett, 289. V. Williams, 344, 345. Meacb v. Stone, 610. Meacham v. Dow, 400. V. Meacham, 562. Mead v. Bunn, 156. V. Hughes* Adm'r, 312, 313. V. Parker, 596. V. Stegall, 302. V. Watson, 551, 549. V. Welch, 181, 185. Meade t. Watson, 552. Meader v. White, 351. Meadow t. Bird, 407, 480. Meadows v. Meadows, 598, 602. Meagher v. Reed, 566. Meares, In re, 299. Mears v. Waples, 181. Mease t. Wagner, 551. Meason t. Kaine, 761. Mechanics' Bank of Alexandria v. Se- ton, 729. Mechanics' & Farmers' Bank of Albany V. Wixson, 676. Mecum v. Peoria & O. R. Co., 792, 905. Medbury t. Watrous, 274, 281. Medlin t. Steele, 562. Medsker v. Richardson, 60. Meech t. Ensign, 715. V. Lee, 193, 415, 494. Meek v. Atkinson, 191. Meeks t. Dewberry, 428. Meguire v. Corwine, 400, 402. Meincke v. Falk, 878. Melbourne v. Louisville & N. R. Co., 630. Melchers v. Springs, 39. Melchoir t. McCarty, 343, 349, 486. Melhado v. Porto Alegre, N. H. & B. By. Co., 716. Melick T. Kelley, 37, 77. Mellen v. Whipple, 715, 719, 721. Mellish V. Robertson, 118. Mellon T. Davison, 596. Melms V. Pabst Brewing Co., 948. Melone v. Ruffino, 787. Melton V. Katzenstein, 245. V. Lambard, 564. Melville v. Hayden, 807. Memphis & C. B. Co. v. Beeves, 848. Mendenhall v. Stewart, 163. V. Treadway, 182. Menkins v. Llgbtner, 288, 289, 291. Mentz V. Armenia Fire Ins. Co., 418, 420. V. Newwitter, 591. Menzell v. Chicago & N. W. Ry. Co., 791. Mercer v. Clark, 109. Merchant Banking Co. v. Phoenix Bes- semer Steel Co., 739. Merchants' Bank v. Griswold, 499. v. Spalding, 411. Merchants' Bank of Buffalo v. Weill, 738. Merchants' Dispatch & Transp. Co. v. Cornforth, 437. Merchants' Nat. Bank of West Vir- ginia V. Spates, 949. Merchants' Savings, Loan & Trust Co. V. Goodrich, 361, 365. Merchants' & Mechanics' Bank of Chi- cago V. Hewitt, 736. Merchants' & Miners' Nat. Bank v. Barnes, 721, 729. Merck v. American Freehold Lanfl Mortgage Co., 380, 381, 383. Meredith v. Crawford, 281. V. Ladd, 400. V. Meredith, 191. Mereuess v. First Nat. Bank, 950. V. First Nat. Bank of Charles City, 949. Meriden Britannia Co. v. Zingsen, 555. .Meriwether v Smith, 358. Meroney v. Atlanta Nat. Building & Loan Ass'n, 502. Merriam v. Cunningham, 245, 251. v. Pine City Lumber Co., 716. v. Stearns. 351, 354. Merrick v. Burlington & Warren Plank Road Co., 222, 223. V. Giddlngs, 640, 650, 667, 674, 716. Merrill v. Carr. 417. V. Downs, 354. v^ Melchior, 790. V. Peaslee, 434. V. Packer, 394, 480. V. Wilson, 174, 175, 179, 180. Merriam v. Barker, 759. V. Lacefield. 695. V. McManus, 551. V. Moore, 715. V. Social Mfg. Co., 715. Merritt v. Barle, 352. V. Gumaer, 295. V. Lambert, 329. V. Merritt, 833. V. Millard, 463. V. Robinson, 133. Mers V. Franklin Ins. Co., 682. Mersereau v. Lewis. 551. Mersey Steel & Iron Co. v. Naylor, 908. Merwin f. Arbuckle, 157, 161. V Huntington, 489. Messenger v. Pennsylvania R. Co., 398. Messer v. Oestreich, 787. V. Smyth. 155. Messmore v. Cunningham, 614. Metcalf V. Kincaid, 731, 733. V. Taylor, 798. Methodist Orphans' Home Ass'n v. Sharp. 690. Metropolitan Exhibition Co. v. Ewing, 939. Metropolitan Life Ins. Co. v. Meeker, 192. Mette V. Peltgen, 280. Metz V. Soule, 218. Metzgar v. Metzgar, 738. Meyer v. Amidon, 160, 161. 1010 TABLE OF CASES. [EEPEEENCES ABE TO PAGES.] Meyer v. Estes, 454. V. Green, 944, V. Ilartman, 550. V. Haworth, 313, 6S4. V. Huueke, 839. Meyers v. Merillion, 181. Michael \. Bacon, 459. V. Foil, 882. V. Morey, 720. Mlchaelis v. Wolf, 810. Michigan State Bank v. Hammond, 218. 219. V. Hastings, 218, 219. V. Leavenworth's Estate, 73. Michigan Trust Co. v. Chopin, 665. Middieborough v. Rochester, 294. Middlebury College v. Chandler, 239. ' Middlesex Water Co. v. Knappmann Whiting Co., 641, 754, 826, 829-831, 833 Middleton v. Griffith, 783, 786. V. Hoge, 260, 263, 271. Midland Ey. Co. v. Fisher, 751. Mighell V. Dougherty, 581. Milbank v. Jones, 487. Miibery v. Storer, 841. .Mllbourne v. Ewart, 848. Mlldmay v. Standish, 793. Mildmay's Case, 533, 660. Miles V. Llngerman, 282, 269. V. Mutual Reserve Fund Lite Ass'n, 425. 426, 430. V. New Zealand Alford Estate Co., 686, 678, 687. I V. Roberts, 861. I -V. Stevens, 107. V. Thorne, 405. V. Williams, 726. Miliken v. Pratt, 498. Milks V. Rich, 553. Mill Dam Poundery v. Hovey, 520, 522, 861, 917, 918. Millar v. Cuddy, 89. Millard v. Baldwin, 718. V. Hewlett, 273. Miller V. Ammon, 339, 340, 342, 349. V. Auburn & S. R. Co., 565. V. Billingsly, 721. V. Cherry, 803. V. Covert, 946. V. Craig, 147. V. Finley, 289, 293. V. Gardner, 676. V. Gilleland, 842, 843. V. Goddard, 851. V. Hannibal & St. J. E. Co., 810. V. Hirschberg, 464. V. Kendig, 642. V. Kreiter, 734, 735. V. Larson, 489, 491. V. Lynch, 555. V. McClain, 888, 889. V. McKenzie, 634. V. McManis, 609. V. Miller, 192. 194, 196, 432, 665. V. Minor Lumber Co., 197. V. Post, 340. V. Ruble, 518. V. Savage. 533. V. Simonds, 199. V. Sims, 259, 262, 275. V. Smith, 238, 239, 270, 276, 277. Miller v. Tiffany, 500. V. Trustees of Mariners' Church, 931. V. Union Cent. Life Ins. Co., 108. V. Whelan, 131. V. Wilson, 794. V. Thorn, 715, 858, 860. Miller's Case, 858. Milliken v. Brown, 760. V. Pratt, 498. V. Thorndike, 187. Millison v. Nicholson, 285, 293, 302. Mills V. Brown, 557. V. Catlin, 817. V. City of Osawatomie, 176. V. Fowkes, 33, 871. V. Graham, 249, 250. V. Ladbroke, 765. V. Mills, 405. V. Williams, 352. V. Wyman, 645. Mills' Heirs v. Lee, 136. Millward v. Llttlewood, 464. Milne v. Huber, 318. 345. Miiner v. Field, 914. V. Patton, 461. Milroy v. Spurr Mountain Iron Min. Co., 732. Milton V. Haden, 475. Milwaukee Boiler Co. v. Duncan, 917. 931. Milwaukee Brick & Cement Co. v. Seho- knecht, 149. Milwaukee Masons' & Builders' Ass'n v. Nlezerowski, 443, 447, 474. Milwaukee & M. Ry. Co. v. Milwaukee & W. R. Co., 425. Miner v. Lorman, 950. V. Medbury, 159. Minett v. Forester, 65. Ming V. Woolfolk, 166. Minneapolis Gas Light Co. v. Kerr Mur- ray Mfg. Co., 882. Minneapolis Land Co. v. McMillan, 675. Minneapolis Sash & Door Co. v. Met- ropolitan Bank, 844. Minneapolis & St. L. Ey. Co. v. Colum- bus Eolling Mill, 72, 78. Minnesota Linseed Oil Go. v. Collier White-Lead Co., 52. Minnesota Lumber Co. v. Whitebreast Coal Co., 370, 683. Minnesota Thresher Mfg. Co. v. Gruben, 175. Minns v. Morse, 33, 606. Minock v. Shortrldge. 230, 255. 258, 260, 275, 279, 654. V. Mechanics' Bank of Alexandria, 65, 766, 797. V. Sharon, 132. Minshull V. Cakes, 747. Minturn v. Seymour, 533. Miriek v. French, 690. Misner v. Knapp, 372. Mission Ridge Land Co. v. Nixon, 260. Missisquoi Bank v. Sabiu, 680, 681. Mississipoi River Logging Co. v. Wheell- han, 88. MissiKsinpi & D. S. S. Co. v. Swift. 87. Missouri Valley Life Ins. Co. v. Sturges, 367. Mitchel V. Reynolds, 532. TABLE OF CASES. 1011 [kbb'ekbnces aee to pages.] Mitchell V. Bailey, 385. V. Beck, 553. V. Doggett, 345. v. Griffltli, 877. T. Hawley, 860, 944. V. Jones, 201. V. Kingman, 292. V. McUougall, 128, 132. V. Eailton, 105. y. Ringgold, 844. T. Roberts, 873. V. Scott, 459. V. Winslow, 756. T. Zimmerman, 160. Mitchell's Lessee v. Ryan, 524, 527, 529. Mitcherson t. Dozier, 700. Mitts V. McMorran, 549. Mixer V. Howarth, 580. V. Sibley, 324. Mizell V. Burnett, 50. Mizner t. Kussell, 146, 152. Mobile & G. R. Co T. Jones, 553, 554. Mobile & M. By. Co. v. Gilmer, 801. V. Jurey, 785, 796. V. Steiner, 666. Mobile & O. R. Co. v. People, 398, 399. Moens v. Heyworth, 151, 152. Moffltt V. Carr, 951. Moggridge v. Jones, 906. Mohr V. Meisen, 362, 868, 869, 371, 372 465, 479, 497. V. Tulip, 296. Moline Scale Co. v. Beed, 895. Moiler T. Tuska, 174. Mollett T. Wackerbarth. 843. Molton V. Camroux, 303, 304. Molyneux t. Collier, 636, 638. Monmouth County Mut. Fire Ins. Co. v. Hutchinson, 186. Monmouth Park Ass'n v. Wallis Iron Works, 800, 927, 929. Monongahela Navigation Co. v. Coons, 813. Monroe v. Smelly, 365, 386, 387. Montague v. Garnett, 620, 621. V. Stelts, 871. V. Well, 87. Montciair Military Academy t. North Jersey St. Ey. Co., .411. Montelius v. Wood, 697. Montgomery v. American Cent. Ins. Co., 419, 420. V. Crossthwait. 839, 844. V. Edwards, 607, 617. V. Lampton, 644, 656. V. Morris, 856. V. United States, 321. Montgomery R. Co. y. Hurst, 845. Monumental Building Ass'n No. 2 T. Herman, 244. Moody V. Blake, 104. y. Harper, 426, 428. y. Mahurln, 874. V. Sevsrall, 762. V. Smith, 620. Mooney v. Miller, 147. Moor V. Metropolitan Nat. Bank, 737. Moor's Lessee y. Moor, 808. Moore y. Adams, 193, 489. V. City of Walla Walla, 535. V. Clopton, 498. y. Colt, 929. Moore v. Detroit Locomotive Works, 785. y. Dunn, 946. V. Plynn, 527, 529. V. Fowler, 858. V. Giles, 529. y. Griffin, 812. y. Hersey, 302, 307. y. Holland, 778. y. Leseur, 521. y. Metropolitan Nat. Bank, 739. y. Moore, i81. V. Mountcastle, 600. y. Murdock, 352. V. Norman, 873, 875, 876. y. Phoenix Ins. Co., 813, 815, 847, 849. y. Pierson, 68. y. Platte County, 926. y. Bedding, 670. Moore & Handley Hardware Co. T. Towers Hardware Co., 709. Moorehouse y. Crangle, 551. Mooring y. Stanton, 460. Moote y. Scriyen, 884. Moran y. Dunphy, 711. Mordecal y. Dawkins, 459, 480, 481. y. Reed, 273. More y. Bennett, 443, 447. y. Bonnet, 458, 455, 467, 470, 471, 908, 909. V. Morecomb, 889. Morehouse y. Comstock, 647. y. Second Nat. Bank of Oswego, 944. Moreland v. Atchison, 151. Morey v. Enke, 888. V. Homan, 799. Morford y. Ambrose, 61, 62. y. Mastin, 912. y. White, 185. Morgan, Ex parte, 534. y. Bailey, 353. y. Bain, 892. V. Bergen, 884. v. Birnie, 914. V. Chester County, 43. y. GrofE, 462, 490, 492. y. Oyerman Silver Min. Co., 715. y. Perhamus, 456. y. Skiddy, 168. v. Skidmore, 184. Morley v. French, 19. Morphet v. Jones, 613. Morrell v. Quarles, 76, 395, 396, 664, 693. Morrill v. Aden, 250, 261, 275. y. Blackman, 134. y. Lane, 713. y. Tehama Consolidated Mill & Min. Co., 87. y. Wallace, 127. Morris y. Caudle, 522. V. Clay, 293. y. Colman, 456. y. Gaines, 549. V. Graves, 233. y. Great Northern Ey. Co., 296, 301. 305, 306. v. Hall, 463. V Henderson, 423. V. Nixon, 289. y. Osterhout, 551. 1012 TABLE OF CASES. [REPEEENCES ABE TO PAGES.] Morris v. Peckham, 572. V. Tuskaloosa Mfg. Co., 455. V. Western Union Tel. Co., 368. v. Wibaux, 909. Morris Run Coal Co. v. Barclay Coal Co., 443, 447, 454. Morrison v. Adone, 162. V. Baker, 551. T. Bennett, 485. V. Citizens' Nat. Bank, 871. V. Darling, 392. T. Davis, 849. V. Deaderick, 425. T. Flournoy, 329. V. Garth, 841, 842. V. Herrick, 610. V. Hogue, 549. V. Insurance Co. of North America, 862. V. Ives, 61. V. Loda, 168. V. Lynch, 735. V. Universal Marine Ins. Co., 137, 141, 177, 179. V. Welty, 841. Horrissey, In re, 234. y. Broomal, 850. V. Kinsey, 549, 552. Morrow v. Robinson, 869. Morse v. Bellows, 50. V. Crate, 659. V. Ely, 269. V. Inhabitants of Wellesley, 563. V. Lowe, 632. V. Bathburn, 929. V. Eyan, 171, 400. V. Toppan, 511. • V. Wheeler, 263. V. Woodworth, 188, 189, 191, 193, 194, 197. Morse Twist Drill & Mach. Co. v. Morse, 440, 457. Morss V. Salisbury, 801. Mortimer's Ex'rs v. I'ritchard, 384. Mortimore v. Wright, 647. Morton v. Burn, 676, 682. V. Dean, 602. V. Lamb, 905, 912. V. Murray, 603. V. Naylor, 729. V. Kainey, 60. V. Scull, 157. V. Steward, 230, 246, 247. V. Thurber, 385. V. Tibbett, 584. Morville v. American Tract Soc, 495. Mory v. Michael, 719. Moseley v. Boush, 729. T. Hatch, 344. V. Vanhooser, 354. Mosely v. Vermont Mut. Fire Ins. Co., 816. Moses V. Bagley, 329, 427. V. Delaware Ins. Co., 137. V. Lawrence County Bank, 594. V. Stevens, 281. Mosher v. GrifBn, 462. Moss V. Decatur Land Improvement & Furnace Co., 851. Mostyn v. West Mostyn Coal & Iron Co., 814. Mott V. Clark, 737. Mott V. Hicks, 223. V. Hurd, 608. V. Oppenheimer, 750. V. Rowland, 499. Motz V. Mitchell, 195. Mouflet V. Cole, 455. Moulor v.- American Life Ins. Co., 138. Moulthrop V. Hyett, 932. Moulton V. Kershaw, 86. Mound City Land & Water Ass'n v. Slauson, 693. Mount V. Waite, 495. Mt. Washington Hotel Co. v. Marsh, 223. Mowatt V. Wright, 107. Mower County Com'rs v. Smith, 950. Mowry v. Home Life Ins. Co., 367. Moxley's Adm'rs v. Moxley, 50. Moye V. Herndon, 843. Moyer v. Cantieny, 407. Moynahan v. Moore, 876. Mueller v. Wiebracht, 622. Muhlig V. Fiske, 783. Muir V. Schenck, 734, 736. Mulcrone v. American Lumber Co., 555, 727. Mulhall V. Quinn, 730. Mulholland v. Bartlett, 677, 687. Mullaly V. Holden, 609. Muller V. Eno, 870. Mulliken v. Millar, 143. MuUoy V. Ingalls, 285. Mulvey v. King, 162. Mumford v. Mumford, 323. Munday v. Whissenhunt, 427. Mundy v. Louisville & N. R. Co., 914. V. Whittemore, 197. Munford v. Wilson, 857. Munn V. Baker, 817. V. Burch, 741. V. Commission Co., 65. Muuney v. Cotton, 842. Munro v. Bowles, 523. Munroe v. Perkins, 860, 861. Munsell v. Temple, 730. Munson v. Syracuse, G. & C. R. Co., 709. V. Washband, 242. Murchie v. Cornell, 917. Murdoch v. Finney, 736. Murdock v. Anderson, 596. Murphy v. Boese, 602. V. English, 412. V. Hanrahan, 727. V. United States, 685. V. Webber, 607. Murphy's Adm'rs v. Alabama Braocli Bank, 764. Murray. In re, 498. V. Beckwith. 631. V. Blackledge, 787. V. Carlin, 290. V. Earl Stair, 526. V. Plavell. 719. V. Harding, 385. V. Jennings, 183. V. Mumford, 763. V. Peterson, 841. V. Pillsbury, 810. V. Snow, 688. Murry v. Ocheltree, 458. Musick V. Dodson, 313, 654, TABLE OF CASES. 1013 [eefebekces aee to pages.] Musselman v. Cravens, 294, 296, 300, 305. V. Stoner, 862. Musser t. Ferguson Township, 645. T. Johnson, 787. Mussey v. Bates, 561. Mustard t. Wohlford's Heirs, 231, 254, 266, 270, 271, 280, 282. Mutual Benefit Life Ins. Co. v. Hill- yard, 320, 324, 325, 829. V. Ruse, 108. V. Wise, 139. Mutual Building & Loan Ass'n v. McGee, 163. Mutual Life Ins. Co. v. Hunt, 304. V, Phinney, 150. Mutual Life Ins. Co. of New York v. Allen, 367. Muzzy V. Whitney, 769. Myer v. Grafflin, 552. V. Hart, 927. V. Wheeler, 908. Myers v. Alpena Lrfjan & Building Ass'n, 147. V. Byington, 854. V. Jenkins, 419, 420. V. Knabe, 304, 305. V. Meinrath, 463. V. Munson, 802. V. Sanders' Heirs, 282. V. Tobias, 372. Mygatt V. Coe, 749. V. Tarbell, 680. Myrlek v. Dame, 763. V. Merritt, 922. N. Nabb V. Koontz, 594. NafE T. Crawford, 409. Nally V. Beading, 562. Nance v. Stockburger, 285. Napier v. Rlam, 132. Nash V. Armstrong, 685, 861. v: Drisco, 777. V. Jewett, 250. V. Kreling, 87. V. Lull, 692. T. Minnesota Title Ins. & Trust Co., 163, 169. Nashville, C. & St. L. Ry. Co. v. United States, 946. Nashville & C. R. Co. v. David, 849. Nassoly v. Tomlinson, 685, 944. Nathan v. Nathan, 186. Nathans v Arkwright, 277, 278. National Bank v. Bonnell, 530. V. Sprague, 392. V. Union Ins. Co. of San Francis- co., 137. National Bank of Commerce v. Allen, 224 V. Chicago, B. & N. R. Co., 867. National Bank of D. O. Mills & Co. v. Herold, 733. National Bank of Metropolis v. Sprague, 392. National Bank of the Commonwealth v. Mechanics' Nat. Bank, 871. National Benefit Co. v. Union Hospital Co., 453-455. National Exch. Bank v. Cumberland Lumber Co., 314. National Exch. Bank of Boston v. Mc- Loon, 732. National Furnace Co. v. Keystone Mfg. Co., 683. National Harrow Co. v. Hench, 440. National Union Bank at Dover v. Segur, 749. Naughton v. City of Sioux Falls, 61. Naumberg v. Young, 785. Nave V. First Nat. Bank of Lebanon, 713. Neal V. Coburn, 118. V. Reynolds, 179. Neal's Ex'rs v. Gilmore, 636, 761. Neale v. Hagthrop, 753. V. Ratcllffi, 907. Nealley v. Greenough, 191. Nealou v. Henry, 173, 176. Neate v. Harding, 60. Neblett v. Macfarland, 180, 181. Nebraska City v. Nebraska City Hy- draulic Gas Light & Coke Co., 895. Needles v. Shaffer, 845. Neeley v. Rich, 59. Neely v. Anderson, 285. NelE v. Horner, 839, 841. V. Landis, 250. Negley v. Jeffers, 543, 862. Neibles v. Minneapolis & St. L. Ky. Co., 687. Neidefer v. Chastain, 147. NelU V. Shamburg, 132. Neilley, In re, fl48. Neilson, Ex parte, 338. V. Harford, 777. Keiswanger v. McCIellan, 549. Nelson V. Boynton, 554. V. Brown, 670. V. F.vans, 429. V. Hanson. 051. V. Serle, 678. V. Shelby Mfg. & Improving Co., 622. V. State, 357. V. Stocker, 252. V. Von Bonnhorst, 89. Nelson's Will, In re, 199. Neman Lumber Co. v. Purdum, 828. Nerac's Estate, In re. 325, 327. Nerot V. Wallace, 640. Nesbitt V. Pearson's Adm'rs, 889, 890. Nester v. Continental Brewing Co., 443, 445, 485. Nettleton v. Sikes, 563. Neumann v. Shroeder, 537. Neustadt v. Hall, 395, 485. Nevada Bank of San Francisco v. Port- land Nat. Bank, 147. Neves v. Scott, 720. Neville v. Kelly, 43. New V. Walker, 480, 481, 742, 743. New Br\Tnswick & C. Ry. & Land Co. v. JIuggeridge, 135. New England Dressed Meat & Wool Co. V. Standard AVorsted Co., 787, 789. New England F. & M. Ins. Co. v. Rob- inson, 224. 1014 TABLE OF CASES. [EBPERENCES ABE TO PAGES.] New England Marine Ins. Co. v. De Wolf, 637. New England Mortgage Security Co. v. McLaughlin, 501. V. Sandford, 385. New Hampshire Mut. Fire Ins. Co. v. Noyes, 242, 260. New Hanover Bank v. Bridgers, 654, 680. New Jersey Zinc Co. v. Boston Frank- linite Co., 789. . .ew Memphis Gaslight Co. Cases, 790. New Orleans, St. L. & C. E. Co. v. Burke, 521. New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 137. New York Building L. B. Co. v. Fisher, 251, 271. New York Cent. E. Co. v. Lockwood, 437. New York Guaranty Co. v. Memphis Water Co., 729. New York Life Ins. Co. v. Clopton, 325. V. Btatham, 325, 847. New York & W. Printing Telegraph Co. T. Dryburg, 717. Newberry v. Wall, 598, 602. Newburg Petroleum Co. v. Weare, 747. Newby v. Hill, 733, 736. V. Sharper, 829, Newcomb v. Brackett, 898, 923. V. Clark, 594. V. De Eoos, 48. V. Eaynor, 763. Newell V. Fisher, 288, 293. T. MeyendortE, 452. V. Kadford, 591. v. Randall, 145. ( Newhall v. Appleton, 789. V. Clark, 919. Newkirk v. Burson, 377. Newlin v. Duncan, 657, 658. Newman t. Freitas, 433, 434. V. H. B. Claflin Co., 128. V. King, 842, 844. V. Nellls, 542. V. Neman, 470. V. Sylvester, 166. Newmarch v. Clay, 871. Newnan v. Washington, 329. Newsom v. Thighen, 784. Newson v. Smythles, 903. Newton v. Bronson, 588, 607. V. Carson, 676. Newton Mfg. Co. v. White, 185. Niagara Fire Ins. Co. v. De GralE, 476. V. Greene, 569. Nibert v. Baghurst, 344, 352, 610, 613. Niblo V. Binsse, 835. Nlchol V. Davidson County, 524, 528. V. Steger, 243. V. Thomas, 295, 306. Nichols V. Fearson, 377. V. Godts, 917. V. Johnson, 591, 598, 840, 841. V. Knowles, 871. T. Michael, 183. V. Mudgett, 412. V. Palmer, 433. V. Pinner, 134. V. Poulson, 345. Nichols V. Haynbred, 680. V. Buggies, 391. V. Scranton Steel Co., 894. V. United States, 219. V. Weaver, 569. Nichols & Shepard Co. v. Snyder, 255. V. Soderquist, 697. Nicholson V. Combs, 844. V. Guardians of Bradfleld Union, 222. V. Eevilli 760, 767. V. Spencer, 243, 244. V. Wilborn, 232, 243, 244. Nickels v. Kane's Adm'r, 428. Nickelson v. Wilson, 415. Nickerson v. Saunders, 608. V. Swett, 841. Nickiser v. Cook, 131. Nickum v. Burckbardt, 946. Nicol V. Fitch, 826. V. Steger, 270, 271. V. Young, 155. Niel V. Morley, 304. Niemeyer v. Wright, 340, 341, 349. Nightingale v. Withington, 230, 253. Nlles V. Davis, 612. Nilmer v. Currey, 761. Nilson V. Morse, 893. Nimocks v. Woody, 733. Nims V. Sherman, 622. Nine v. Starr, 647. Nipp V. Diskey, 888. Noble V. Ames Mfg. Co., 930. V. Edwards, 913. V. Ward, 543, 857, 862. Noel V. Drake, 401. V. Karper, 289, 291, 296. V. Murray, 868. Noetling v. Wright, 147. Noice V. Brown, 710. Nolan V. Whitney, 878, 914. Nolte V. Eeichelm, 156, 157. Noonan v. Bradley, 792, 816. Norcross v. James, 751. Norcum v. Sheahan, 266. Norden Steamship Co. v. Dempsey, 789. Nordenfelt v. Maxlm-Nordenfelt Guns & Ammunition Co., 453-455. Nordholdt v. Nordholdt, 235. Nordyke & M. Co. v. Kehlor, 89, 107. 641, 794, 819. Norman v. Georgia Loan & Trust Co., 290, 291. V. Wells, 748. Norrington v. Wright, 879, 886, 909. Norrls v. Doniphan, 323. V. Graham, 552. V. Lantz, 309. V. Savannah & W. Ey. Co., 849. V. School Dist. , No. 1, 878. V. Vance, 251, 259, 262. North V. Forest, 581. V. Mendel, 604. V. Wakefield, 759. North American Fire Ins. Co. v. Throop, 137. North British Ins. Co. v. Lloyd, 135. North Carolina v. Temple, 219. North Chicago St. R. Co. v. Ackley, 429. North Hudson County Ey. Co. v. An- derson, 874. TABLE OF CASES. 1015 [references are to pages.] Northern Cent. Ry. Co. v. "Walworth, 89, 643, 683, 937, 938. Northern Kansas Town Co. v. Oswald, 531. Northrup v. Foot, 352, 498. V. Northrup, 905. T. Phillips, 485. Northumberland t. Cobleigh, 521. V. Errington, 798. Northwestern Fertilizing Co. v. "Vil- lage of Hyde Park, 819. Northwestern Iron Co. v. Aetna Ins. Co., 538. Northwestern Mut. Fire Ins. Co. v. Blankenship, 302, 306. Xorthwestern Mut. Hail Ins. Co. of Elk- ton V. Fleram^-;, 184. .NurUnvestern ft! at. Life Ins. Co. t. A1- 11s, 310. V. Elliott, 478. .Northwestern Ky. Co. v. McMlchael, U':i4, 256. .Norton V Blinn, 480. V. Browne, 858. V. Colby, 657. V. Coons, 773. V. Doherty, 946. V. Janvier, 691. V. Marden, 117. V. Sanders, 534. y. Simonds, 542. V. Webb, 887. V. "Whitehead, 731. Noryeil v. Walker, 520, 521. Norwegian Plow Co. v. Hanthorn, 585, 587. Norwood V. De Hart, 714. Nott V. Johnson, 680. Nounnan v. Sutter County Land Co., 155. Nourse v. Pope, 475. Nowack v. Berger, 615, 636. Nowlan v. Ablett, 851. Noyes v. Nichols, 813. T. Parker, 703. V. WyckofE, 876. Nugent V. Smith, 848. T. Teachout, 122. V. Wolfe, 556. Nunez v. Morgan, 609, 616. Nunn V. Fabian, 610, 614. Nunnelly v. Southern Iron Co., 564. Nutall's Adm'r v. Brannin's Ex'rs, 870. Nutt V. Humphrey, 787. Nutting V. Dickinson, 608. Nye V. Lowry, 519. V. Merriam, 153. O. & W. Thum Co. t. Tloczynskl, 457. Oakdale Mfg. Co. t. Garst, 444, 454, 455. Oakes v. Cattaraugus Water Co., 444. V. Turquand, 173. Oakland Sav. Bank v. Applegarth, 876. Oakman v. Rogers, 598. Oates V. First Nat. Bank of Montgom- ery, 651. Oatfield V. Waring, 650. Obear v. First Nat. Bank of Birming- ham, 618. O'Brien v. Brientenbach, 458. V. Young, 24, 511. O'Bryan v. Fitzgerald, 460, 479, 491. Ocean Ins. Co. v. Carrington, 72. Ocean Steamship Co. v. McAlpln, 789. Ockford V. Barelli, 686. O Connor v. Beckwith, 650. V. O'Connor, 525. V. Ward, 494. Gdell V. Buck, 285. T. Gray, 743. V. Montross, 613. V. Moss, 533. V. Rogers, 278. Odlneal v. Barry, 406. Odlin V. Greenleaf, 773. Odom V. Eiddlck, 303, 306. O'Douald V. Constant, 175. O'Donnell v. Leeman, 578, 598, 604, 882. O'Fallon v. Kennerly, 885. Offord V. Davies, 67. Ogboru T. Hoffman, 685. Ogden T. Ogden, 554, 558, 593. V. Eedd, 656. Ogilvie V. Foljambe, 601. V. Hallam, 944. V. Knox Ins. Co., 175. Ogle V. Vane, 856. Oglesby Coal Co. v. Pasco, 310. O'Hara v. Carpenter, 406. Ohio Wesleyan Female College v. Love, 690. Ohio & M. Ry. Co. v. Kerr, 181. Ohiendorf v. Kanne, 637. O'Keefe v. Allen, 731. Okerson v. Crittenden, 493. O'Keson v. Barclay, 686. Okeson's Appeal, 546. Olcott v. Bolton, 156, 167. Old Alms House Farm of New Haven v. Smith, 951. Old Colony R. Corp. v. Evans, 599. Old Colony Trust Co. v. Dubuque Light & Traction Co., 142, 148, 156. Old Dominion Steamship Co. v. Mc- Kenua, 447, 710. Oldershaw v. King, 679. Olds V. East Tennessee Stone & Marble Co., 77. O'Leary v. Tillinghast, 172. Oliphant v. Markham, 196. Olive V. Booker, 921. V Lewis, 555. Oliver V. Alabama Gold Life Ins. Co., 604. V. Fielden, 921. V. Gilmore, 454, 486. V. Houdlet, 229, 232, 253. V. Hunting, 604. V. McCIellan, 250. V. Woodroffe, 232. Oliverson v. Wood, 648. Olmstead v. Bach, 838. V. Bailey, 766. Olney v. German Ins. Co., 847. Olson V. Lamb, 174. V. Orton, 156. V. Sharpless, 603. Olympe de la Grange v. Southwestern Telegraph Co., 717. 1016 TABLE OF CASES. [EEPEBENCES ARE TO PAGES.] Omaha Hotel Co. v. Wade, 385. O'Mealey v. Wilson, 320. O'Neal V. Duncan, 534. V. School Com'rs. of Washington Co., 721. O'Nell V. Armstrong, 899. V. Crain, 597. O'Neill V. New York Cent. & H. E. E. Co., 608. Ontario Bank v. Mumford, 729. Openheimer t. Levy, 319. Ordinary t. Thatcher, 526. O'Eear's Adm'rs. v. Kiger, 400, 401. O'Eegan v. Cunard Steamship Co., 498. Oregon Pac. E. Co. t. Forrest, 197. Oregon Steam Nav. Co. v. Winsor, 450, 453, 455, 470. Oregon & C. E. Co. v. Potter, 677. Oregonian Ey. Co. v. Oregon Eaiiway & Navigation Co., 938. Orleans County Nat. Bank v. Moore, 872. Orme v. Cooper, 56. Ormerod v. Dearman, 406, 418. Ormes v. Beadel, 175, 196. V. Dauchy, 497, 500, 790. Ormrod v. Huth, 161, 163. Ormsbee v. Howe, 182, 687. Ormsby v. Ehoades, 59. Ormund v. Hobart, 475. O'Eourke v. Hall, 254, 277. Orr V. Equitable Mortgage Co., 303, 304. V. Meek, 347. V. Tanner, 427. Ort V. Fowler, 101. Orth V. Orth, 566. Ortlotf V. Klitzke, 583. Ortman v. Dixon, 532. V. Weaver, 49. Orvis V. Kimball, 258. Osborn v. Farwell, 800. V. Governors of Guy's Hospital, 83. V. Martha's Vineyard E. Co., 763. v. Nicholson, 346. V. Phelps, 612. V. Eabe, 563. V. Eobins, 189, 191. Osborne v. Baker, 595. V. Bndicott, 535. V. Eslinger, 522. V. Farmers' Trust Co., 554. V. Kimball, 574, 611. V. O'Eellly, 667, 668. V. Van Houten, 843. V. Williams, 403, 494. Oaburn v. Farr, 230. V. Throckmorton, 119. Oscanyan v. Winchester Eepeating Arms Co., 408, 487, 503. Osgood V. Pearsons, 770. O'Shea v. Collier White Lead & Oil Co. 393 Osier V. Hobbs, 83, 649. Osterhout v. Shoemaker, 296. O'Sullivan v. Overton, 591. V. Thomas, 492. Oswald y. Legh, 869. V. McGehee, ]56. Oswego Starch Factory v. Lendrum 143, 178, 182. Otis V. Gardner, 743. Otis V. Spencer, 523, 524. Ott V. Garland, 609. Ottaway v. Lowden, 345. Otteridge v. Thompson, 323. Ottman v. Moak, 275. Otto V. HaefC, 842. Oudin V. Grossman, 164. Outon V. Eodes, 400. Outwater v. Dodge, 583, 584. Overdeer v. Wiley, 168. Overman v. Kerr, 522. V. Sanborn, 745. Overseers of Poor of Hopewell v. Over- seers of Poor of Amwell, 514, 520. Overton v. Banister, 251, 671. Owen V. Davies, 833. V. Evans, 739. V. Hail, 842. V. Henderson, 783. V. Long, 229, 230, 263. V. Wilkinson, 766. Owens V. Boyd Land Co., 147. V. Lewis, 563, 616. V. McNally, 611, 612. V. Mynatt, 189. Owings V. Tucker, 529. Owings' Case, 292. Owston V. Ogle, 770. Oxford V. McFarland, 59. Oxford Iron Co. v. Spradley, 409, 459, 490. P. P. Cox Shoe Co. v. Adams, 164. Pabodie v. King, 672. Pabst Brewing Co. v. Liston, 365, 493. Pacific Guano Co. v. Mullen, 24, 399, 469. Packard v. Boardman, 594. Packer v. Benton, 554. V. Steward, 857, 898. Paddleford v. Thacher, 688. Paddock v. Davenport, 67, 68. V. Eobinson, 434, 464. V. Strobridge, 133. Paddon v. Taylor, 182. Paducah Lumber Co. v. Puducah Water Supply Co., 713, 714, 718, 722, 933. Page V. Cox, 719. V. Monks, 543. V. Morgan, 584. V. Newman, 933. V. Norfolk, 86. V. Trufant, 531. V. Walcott, 761. Paget V. Marshall, 108. Paige V. Banks, 794. V. Fullerton Woolen Co., 87. Paine v. Benton, 651. V. Dwinel, 866. v. Fulton, 587. V. Hutchinson, 108. V. Upton, 115. Painter v. Drum, 403. Palfrey v. Portland, S. & V. E. Co., 677, 678. Palmer v. Bell, 153. V. Blaln, 554. V, Breen, 882. TABLE OF CASES. 1017 [befbkences are to paces ] Palmer v. Hudson River State Hos- pital, 29K. V. Lorillard, 325. V. Merrill, 732. V. Miller, 265, 280. T. Palmer, 529, 801. V. Phoenix Mutual Life Ins. Co., 49. y. Stebbins, 452, 532. T. Stephens, 600. T. Temple, 916, 946. V. Tingle, 420. V. Witcherly, 555. Palo Pinto County v. Gano, 724. Palolto, The, 66, 68, 73. Palyford v. United Kingdom Electric Telegraph Co., 717. Pana t. Bowler, 481. Pancoast v. Travelers' Ins. Co., 501. Pangborn v. Westlalte, 339, 340. Pape V. Wright, 458. Paradine v. Jane, 827. Pardey v. American Shlp-Wlndlass Co., 239 Paris y. Strong, 569. Parish v. Stone, 701. v. Whitney, 751. Park V. Glovers' Heirs, 841. V. Modern Woodmen of America, 709. Parker v. Parker, 603. V. Butterworth, 950. V. Carter, 555. V. Cousins, 381. V. Cowan, 654. V. Davis, 297. V. Dillingham, 554. V. Bnslow, 685, 687. V. Garrison, 937. V. Great Western Ey. Co., 666. V. Ibbetson, 851. T. Macomber, 835. V. Marco, 289, 293. V. Otis, 370. V. Pettit, 89, 642, 876. V. Pitts, 359. V. Russell, 895. V. Scott, 835. V. Southeastern By. Co., 45. V. Tainter, 621. Parker's Ex'r v. Lambert's Adm'rs, 314. Parker Vein Coal Co. v. O'Hern, 899. Parkersburg v. Brown, 495. Parkham v. Pulliam, 502. Parkhurst v. Hosford, 295. Parkin v. Thorold, 883, 884. Parkinson v. Wentworth, 323. Parks V. Hazlerlgg, 518. V. McKamy, 488. Parmalee v. Wilks, 356. Parmele v. McGinty, 261. Parmelee v. Simpson, 525, 528. V. Thompson. 663, 670-672. Parris v. Cobb, 287. Parsell v. Stryker, 391. Parson v. Hill, 254. Parsons v. Keys, 243, 245, 246. V. Loucks, 580. V. Phelan, 566. V. Sutton, 931. V. Tillman, 727. 859. V. Woodward, 724, 728. Partridge v. Forsyth, 835. V. Hood, 416. Pasewalk v. Bollmau, 866. Pasley v. Freeman, 168. Pass V. McRea, 728, 733, 736. V. New England Mortgage Security Co., 380, 382. Patchin v. Cromach, 230. V. Swift, 888. Pate V. Wright, 356. Patent Brick Co. v. Moore, 928. Patmor v. Haggard, 593. Baton V. Stewart, 394, 701. Pattee v. Greely, 351. Patten v. Deshon, 745. V. Glatz, 147. V. Hicks, 571. Patterson v. Boehm, 393. V. Caldwell. 731. v. Clark, 493. V. Cunningham, 608. V. Donner, 168, 413. V. Judd, 878. V. Lawrence, 311. V. Yeaton, 610. Pattinson v. Luckley, 841. Pattison v. Hull, 871. V. Staw, 218. Patton V. Gilmer, 220. Patton's Ex'r v. Hassinger, 57. Patrick v. Bowman, 69. V. Grant, 790. V. Littell, 316. V. Miiner, 884. Paul V. Meservey, 855. V. Smith, 241, 244. V. Travelers' Ins. Co., 816. Pawelski v. Hargreaves, 580. Pawley v. Vogel, 655. Paxton V. Smith, 705. V. Wood, 855. Payler v. Homersham, 808. Payne v. Burdette, 296. T. Cave, 66. V. New South Wales Coal & I. S. Navigation Co., 709. V. Newcomb, 383. V. Powell, 632. V. Pusey, 34. V. Wilson, 676. Paynter v. Chamberlyn, 638. V. Williams, 56. Peabody v. Kendall, 286. V. Norfolk, 940. V. Speyers, 582, 600. Peacock v. State, 900. Peake v. La Baw, 315. Pearce v. Brooks, 460, 462, 489. V. Langflt, 53. V. Madison I. R. Co., 225. V. Spalding, 85. V. Watts, 88. V. Wilson, 415, 469. Pearl v. McDowell, 296, 298, 299. Pearle & Edwards' Case, 647. Pearsall v. Summersett, 809. Pearsoll v. Chapin, 31, 32. Pearson v. Parker, 628, 772. Pease v. Hirst, 761. V. Rush, 733. Peavey v. Tilton, 524, 529. Peck V. Conway, 751. 1018 TABLE OF CASES. [BEFEEEWCES ARE TO PAGES.] Beck V. "Brewer, 184. ¥ Brighton Co., 883. T. Burr, 488. V. GofE, 550. T. Vandemark, 604. Peck, Phillips & Wallace Co. v. Steven- son, 147. Pecke V. Mithwolde, 915. Peckham v. Balch, 613. T. Inhabitants of North Parish, 766. Peden t. Chicago, R. I. & P. Ry. Co.. 791. Pedrlck v. Post, 884. Peebles v. Gay, 773. T. Rand, 758. T. Stephens, 132. Peed V. McKee, 415. Peek V. Gurney, 144, 145, 164, 105. V. Peek, 614, 644. Peerless Glass Co. v. Pacific Crockery & Tinware Co., 8, 88. Pegram v. Western Union Tel. Co., 44. Peigne v. Sutcllffe, 250. Peirce v. United States, 218. Pelsch V. Dickson, 786. Pekkins v. Eaton, 365, 491, 492. Pellage v. Pellage, 59. Peltz V. Eichele, 471. Pence v. Arbuekle, 130, 517. V. Langdon, 176. v. Young, 155. Pendergrass v. York Mfg. Co., 946. Penfold V. Uniyersal Life Ins. Co., 796. Penn t. Bornmau, 339, 343. V. Whitehead, 227. Penniman v. Hartshorn, 601. Pennington v. Howland, 879, 880. V. Townsend, 348. Pennoyer v. McConnaughy, 219. Pennsylvania Co. v. Dolan, 637, 682. V. Lombardo, 430. Pennsylvania Coal Co. v. Blake, 676, 680. Pennsylvania B. Co. v. Atha, 64. V. Shay, 100. Pennybacker v. Leary, 567. Penrose v. Curren, 249. Pensacola Gas Co. v. Lotze, 798. People V. Call, 842. V. Bartlett, 900. V. Chicago Live-Stock Exch., 441. V. City of St. Louis, 219. V. Coler, 337. V. Eliott, 374. V. Fallon, 373, 374. V. Fisher, 447. V. Gardner, 906. V. Globe Mut. Life Ins. Co., 829, 832. V. Gray, 726. V. Harrison, 758, 766. V. Keyser, 763. V. McCutcheon, 511. V. Mercein, 435. V. Moores, 234. V. MuUin, 235. V. Murphy, 795. V. North Kiver Sugar Refining Co., 442. V. O'Brien, 832. V. Spelr, 23, 58. People V. Stephens, 175, 184, 403. V. Suburban B. Co., 634. V. Supervisors of San Francisco, 150. V. Talmage, 218. People's Bank v. Bogart, 134, 144. V. Jackson, 377. People's Furniture & Carpet Co. v. Crosby, 875. People's Sav. Bank of Woonsocket v. James, 149, 150. Peoria County Snp'rs v. Gordon, 949. Peoria & R. I. Ry. Co. v. Coal Valley Min. Co., 398. Pepper v. Telegraph Co., 44. Perez v. Everett, 99. Ferine v. Dunn, 423. Perkins v. Clay, 451, 452, 45(), 378, 692. v. Cummings, "^469. V. Eaton, 365. V. Elliott, 315. V. Gay, 107. V. Hadsell, 599. v: Hart, 61, 62. V. I-Ioyt, 637. V. llyde, 493. V. Jones, 358, 359. V. Jordan, 815. V. Lockwood, 671, 688, 689. V. Lougee, 150. V. Pendleton, 711. V. Rogers, 322, 323. V. Savage, 491. V. Trinka, 192. Perley v. Balch, 702. Perot V. Cooper, 631, 870, 871. Perrin v. Lepper, 748. T. Wilson, 243, 244. Perrine v. Cheeseman, 510, 520. Perry v. Buckman, 699, 856. V. Dwelling House Ins. Co., 47. V. Mount Mope Iron Co., 52. V. Pearson, 175, 285. V. Perry, 59. V. Price, 533. V. Turner, 765. Persch v. Quiggle, 630. Person v. Chase, 227, 254. V. Warren, 304. Personette v. Pryme, 567. Persse, In re, 299. Peter v. Compton, 569. Peters v. Anderson, 871, 872. V. Davis, 764. V. Fleming, 244, 245. v. Grim, 492. V. Inhabitants of Westborough. 573. Peters' Adm'rs v. Craig, 61. Peterson v. City of New York, 223. V. Christeusen, 388. V. Hatfner, 248. V. Johnson, 702. V. Russell, 589, 675, 680. V. Seagraves, 347. V. Seattle Traction Co., 437. Petillon V. Hippie, 492. Peto V. Blades, 133. Petre v. Williams, 246. Petrie v. Bury, 762. V. Williams, 246, 276. TABLE OF CASES. 1019 ' I^FSBENCES ABE TO PAGES.] Petrle's Exrs v. Wright, 223. Pettibone v. Koberts, 703. Pettigrew v. Chellis, 146. Pettis V. Eay, 944. Pettit V. Braden, 551. Pettit's Adm'r v. Pettit's Distributees, 468. Pettyjohn v. Liebscher, 697. Peyson v. Conniff, 552. Pfenning v. Scholar, 383. Pfeuffer v. Maltby, 485. Pflaum V. McClintoek, 190. Phelps V. Dennett, 657. V. Hubbard, 878. V. Seely, 861. V. Stillings, 593. V. Walther, 813. Phalen v. Clark, 478. Phelan ¥. Gardner^288. V. Worcester, 232. V. Zuschlag, 191. Phelps' Bx'r v. Dond, 632. Philadelphia v. Lockhardt, 731. Philadelphia Fire Ass'n v. Flournoy. 847. Philadelphia Loan Co. v. Towner, 499. Philadelphia, W. & B. E. Co. v. How- ard, 902, 905. T. Lehman, 353. v. Trimble, 795. Phllbrook t. Beliinap. 33, 615, 623. Philips V. Hatch, 320, 321, 323. Phillip V. Gallant, 8, 99. Phillips V. Adams, 617. V. Barber, 808. v. Bistolll, 116. V. Bonsall, 769. V. Fielding, 918. V. Frye, 662. V. Graves, 815. V. Green, 261, 276. T. Herndon, 870-872, 898. T. Hooker, 409. V. Innes, 357. V. Lloyd,. 241. V. Meyers, 434. V. Moore, 320. V. Preston, 680. V. South Park Com'rs, 428. V. Thompson, 615. T. Thorp, 432, 433. V. Van Schaick, 83. V. Ward, 759. Phillips' Bx'r V. Morrison's Bx'r, 882. Phillips' Heirs v. Porter, 817. Phillips & Colby Construction Co. v. Seymour, 921. Phillpotts T. Evans, 896. Philomath College v. Hartless, 690. Philpot V. Bingham, 229, 231. V. Gruninger, 635, 681. Phllpott V. Brown, 946. V. Jones, 872. Phllps T. Clift, 903. Phinizy v. Guernsey, 936. Phinney v. Baldwin, 503. Phlppen V. Stickney, 392. Phlpps T. Buckman, 167. V. Jones, 73, 691. V. Lovegrove, 731, 737. T. McFarlane, 580. V. Tanner, 801. Phoenix Assur. Co. v. McAuthor, 845. Phoenix Ins. Co. v. iBai^^r, 421. V. Eink, 663. Phoenix Mut. Life Ins. Co. v. Bailey, 186. V. Eaddin, 139. Picard v. Hlne, 316. y. McCormlck, 148. Pickard v. Sears, 8. Pickas T. Guile, 630. Pickens v. Eymer, 521. Pickering v. Busk, 64, 65. V. Cease, 868. V. Ilfracombe Ey. Co., 467. Pickersglll v. Lahens, 761. Pickett V. Merchants' Nat. Bank of Memphis, 871. r. Sutter, 289. Pier V. George, 729. Pierce y. Cooley, 913. y. Corf, 604. y. Burnham, 314. y. Feagans, 947. v. Fuller, 455, 692. y. Gibson, 586. y. Goldsberry, 670. y. Indseth, 520. v. Jones, 688. v. Kibbee, 475. V. Kittredge, 537. v. Knight, 871, 872. y. Merrill, 795, 951. y. Paine's Estate, 574, 613. y. Eichardson, 516. y. Euley, 690. y. Seymour, 951. y. Southern Pac. Co., 437. y. Tidwell, 783. y. Wright, 534. Piercy y. Fynney, 763. Pierpont v. Wilson, 24. Pierrepont y. Barnard, 564. Piersol v. Grimes, 840. Plerson y. Crooks, 908. y. Hooker, 763, 808. v. Morch, 75. Pigot's Case, 470. Pike y. Balch, 602. y. Brown, 541, 549. y. Fitzglbbon, 315. y. Martindale, 430. Pille v. City of New Orleans, 665. Plllans y. Van Mierop, 628. Pillen y. Erickson, 351. Pillow y. Eoberts, 520. Plllsbury v. Locke, 789, 813. Pilmer v. State Bank, 783, 789, 796, 815. PUmore y. Hood, 171. Pinckston y. Brown, 494. Pindall's Ex'r y. Marietta Bank, 871. Pindar y. Upton, 825, 890. Pingry y. Washburn, 411. Pinkham y. Pinkham, 533. Pinnel's Case, 669. Plnney v. Fellows, 314. y. Jorgenson, 876. Piper y. Fosher, 573. v. Goodwin, 547. Plpp y. Eeynolds, 713. Pippen y. Wesson, 315, 316. Pireaux y. Simon, 542. 1020 TABLE OF CASES. [KEFEUENCES ARE TO PAGES.] Pistel V. Imperial Mut. Life Ins. Co., 643. Pitcher V. Laycock, 266. V. Turin Flank Eoad Co., 273. V. Wilson, 572. Pitman v. Poor, 565. Pitt V. Gentle, 580, 636, 687. 691. v. Purssord, 773. Pittman v. Elder, 658. Pittsburgh, C, C. & St. L. Ey. Co. v. Cox, 436. V. Mahoney, 436. V. Moore, 436. Pittsburgh, C. & St. L. Ey, Co. v. Hol- lowell, 828. V. Keokuk & Hamilton Bridge Co., 225, 226. Pixley V. Boynton, 370, 458. Plaisted v. Palmer, 358. Planche v. Colburn, 892, 899. Plank V. Jackson, 460. Plant V. Gunn, 191, 416. Plant Seed Co. v. Hall, 78. Planters' Bank v. Union Bank, 479. Plaster v. Eigney, 295. Plainer v. Patchin, 751. V. Sherwood, 327. Piatt V. Brand, 894. T. City of Waterbury, 936. Plowman v. Eiddle, 889. Plumer v. Smith, 415, 490. Plummer v. Bucknam, 622. T. Gould, 798. V. People, 189, 190. Plyler v. Elliott, 844. Poag V. Miller, 753. Poche V. New Orleans Home Inv. Co., 223. Poe V. Dixon, 715, 773. Poindexter v. Dayis, 460. Poland T. Brownell, 148, 155. Polglass V. Oliver, 875. Polhill v. Walter, 164. Pollak V. Brush Electric Ass'n of St. Louis, 909. Pollard V. Collier, 758. V. Boylors, 379. T. Lyman, 698. Pollock V. Carolina Interstate Bldg. & Loan Ass'n, 630. Poison V. Stewart, 675, 676. Pomeroy v. Benton, 157. V. Slade, 672. Pond V. Carpenter, 309. V. Sheean, 566, 567, 613. V. Smith, 409, 410. V. Williams, 760. V. Wyman, 895. Ponder v. Jerome Hill Cotton Co., 369, 371, 458. Pool T. City of Boston, 664. T. Horner, 649. V. Milwaukee Mechanics' Ins. Co., 849. T. Pratt, 233. Poole T. Hill, 771, 913. V. McLeod, 761. Pooly T. Gilberd, 677. Poor T. Woodburn, 183. Pope V. Allis, 917. T. Farmers' Union & Milling Co., 847. Pope V. Hanke, 479, 481, 502, 503. T. Hays, 699. T. Porter, 909. V. Terre Haute Car Mfg. Co., 882. Poplett T. Stockdale, 389, 390. Popp V. Swanke, 603. Poppers T. Meagher, 929. Pordage v. Cole, 586, 906. Pormann v. Walsh, 880. Port Clinton E. Co. v. Cleveland & T. E. Co., 940. Port Jervis Water Works Co. v. Village of Port Jervis, 55. Porter v. Androscoggin & K. B. Co., 522. V. Bradley, 310. V. Bullard, 733. V. Day, 373. V. Doby, 842. V. Duulap, 731, 736, 737.- V. Jeffries, 469. V. Jones, 400, 415. V. Eose, 680. V. Woodruff, 131. V. Woods, 878. Porter's Case, 465. Porterfleld v. Butler, 209, 654. Portland v. Bituminous Paving Co., 781. Portland Lumbering & Mfg. Co. v. City of East Portland, 224. Posey V. Scales, 888. Postoji V. Baleh, 494. Potter V. Adams, 840, 845. V. Ajax Min. Co., 427, 428, 430. 487. V. Arnold, 562. V. Douglass, 685. V. Duffleld, 592. V. Jacobs, 612. V. Necedah Lumber Co., 168. V. Potter, 149. V. Sanders, 52. V. Taggart, 178. V. Tuttle, 886. Potts V. Bell, 321. v. Merrit, 558. V. Plaisted, 874. V. Whitehead, 48, 77. Poussard v. Spiers, 908. Powder Elver Live-Stock Co. v. Lamb, 569, 582. Powell V. Blow, 860. v. Bradlee, 134. V. Dayton, S. & G. E. E. Co., 831. V. Duflf, 517. V. Flanary, 416, 487. V. Inman, 393. V. Powell, 294. Powers V. Benedict, 173, 174. V. Bumcratz, 47. , V. Clarke, 790. V. Clarkson, 563. V. Hale, 694. V. Skinner, 405, 465. Powle V. Hagger, 915. Powles V. Innes, 725. Prater v. Miller. 580, 677. Prather v. Harlan's Adm'r, 354. Pratt v. Adams, 501. y. Bates, 550. v. Canton Cotton Co., 906. V. Hudson Elver E. Co., 87. TABLE OF CASES. 1021 [REFERENCES ARE TO PAGES.] Pratt V. Humphrey, 546, 550. V. Langdon, 777. V. Pliilbrook, 176. T. Pratt, 796. V. Prouty, 39, 783, 795. V. Short, 341, 343. V. Trustees of Baptist Soc, 73, 691. Pratt's Admr v. United States, 784. V. Vineyard, 557. Pray v. Burbank, 349, 350. V. Mitchell, 581. V. Pierce, 780. Preachers' Aid Soc. v. England, 719. Prentiss t. Kuss, 134. Presbury v. Idsher, 470. V. Hull, 327. Presbyterian Soc. of Knoxboro v. Beach, 690. Prescott V. Battersby, 341. T. Locke, 580. V. Norris, 248, 250. Preston, In re, 337. V. Grant, 945. V. Henning, 670. V. Hull, 517. V. Prather, 630. Presby v. Parker, 171. PreTost V. Gratz, 177. Prewitt V. Trimble, 129. Price V. Campbell, 385. V. Caperton, 413, 400. V. Dime Sav. Bank, 854. V. Baston, 712. y. First Nat. Bank of Atchison, 946. V. Furmau, 270-272, 277, 280, 281. T. Grand Rapids & I. R. Co., 764, 765, 770. V. Green, 471. V. Hay, 329. V. Hewett, 250. V. Jennings, 241, 251, 254. V. Macaulay, 156. V. Moulton, 537. V. Nixon, 887. T. Pepper, 830. V. Salusbury, 615. V. Sanders, 240, 241, 244, 246, 913. V. Spencer, 19. V. Sturgis, 608. v. Summers, 416. -v. Supreme Lodge, Knights of Hon- or, 367. Prlchard v. Sharp, 191. Pridgeon v. Greathouse, 949. Prime t. Koehler, 553. Primrose v. Western Union Telegraph Co., 438. Prince v. Case, 564. v. McRae, 329. V. Overholser, 155. Princeton & K. Turnpike Co. v. Gullek, 62. Printing & Numerical Registering Co. y. Sampson, 338, 440. Prior V. Hembrow, 767. Pritchard v. Brown, 535. V. Merchant's & Tradesman's Mut. Life Assur. Soc, 108. V. Norton, 618. Pritchet v. Insurance Co. of North America, 367. Pritchett v. Ahrens, 474. Probart v. Knouth, 240. Proctor V. Hartigan, 788. V. Sears, 258. Pronger v. Old Nat. Bank, 184, Proprietors of Canal Bridge v. Gor- don, 223. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 817, 819. Proprietors of Mill Dam Foundery v. Hovey, 902. Prosser v. Edmonds, 421, 425. V. Eyans, 759. Protector Endowment, Loan & Annuity Co. T. Grice, 929. Prout v. Wiley, 265, 278. Prouty T. Edgar, 235. Providence Tool Co. v. Norris, 408. Pruitt V. Pruitt, 716. Prutsman v. Baker, 522. iPryor v. Cain, 638. Puckett V. Alexander, 343, 345, 347. ' V. Roquemore, 418, 489. Pueblo & A. V. R. Co. v. Taylor, 399. 468, 470. Puffer V. Smith, 99. Pugh V. Good, 610. V. Jenkins, 362. V. Leeds, 792. T. Stringfleld, 768, 772. Pulbrook V. Lawes, 619. Pullerton v. Agnew, 825. Pulliam V. Schlmpf, 88. Pullman v. Corning, 912. Pulse V. Hamer, 572. Purdy V. Austin, 951. Purner v. Piercy, 562. Pursley v. Hays, 261. Purslow V. Jackson, 131. Purvlance v. Schultz, 233. Pust V. Dowie, 923. Puterbaugh v. Puterbaugh, 614. Putnam v. Bromwell, 154. V. Tennyson, 654. V. Woodbury, 674. Putney v. Farnham, 549. Pyke, Ex parte, 460, 474, 490. Pyle V. Cravens, 231. Pym V. Campbell, 784. Pyne v. Wood. 240. Q. Quackenboss v. Lansing, 781, 782. Quarles v. State. .•?62, 365. Queen Ins. Co. v. State, 445. Quick V. Wheeler, 66. Quigley v. De Haas, 905, 908. V. Thompson, 427. Quimby v. Cook, 381. V. Pennsylvania Ins. Co., 414. Quincy v. Tilton, 855. Qulnn V. Champagne, 596. V. Ladd, 319. V. Roath, 884, 885. Quirk V. Muller, 426. V. Thomas, 462, 480, 494. Quisenberry v. Artis, 762. 765. 1022 TABLE OF CASES. tBEFKEENCES ABE TO PAGES.] R. Rackemann v. Eiverbank Improvement Co., 785, 838. Eadford v. Carwile, 315. V. Westcott's Ex'x, 229, 233. Radley v. Kenedy, 281. Eae v. Hackett, 915. V. Hulbert, 24, 511. Kafferty v. Sougee, 602. Raffles V. Wicheltiaus, 109. Rafolovite V. American Tobacco Co., 683. Eagsdale v. Robinson, 517. Raguet V. Roll, 468, 469. Rahter t. First Nat. Bank of Lancaster, 341. Rallsback v. Walke, 569, 614. Rains V. Wlieeler, 433. Rainwater v. Durham, 240, 247. Raisin v. Clark, 397. Rake's Adm'r v. Pope, 574. Raleigli & G. R. Co. v. Reid, 819. V. Swanson, 486. Ralston v. Boady, 462. Ramloll Thackoorseydass v. SoojumnuU Dhondmull, 364. Ramsey v. Morrison, 379. V. Wallace, 162. Ramsgate Victoria Jiotel Co. v. Mon- teflore, 50. Ranay v. Alexander, 906. Randall v. Morgan, 83. V. Randall, 433, 720. V. Sweet, 240, 241. V. Tuell, 348. Randel t. Chesapeake & D. Canal, 419, 802. Randolph Co. v. Jones, 395. Randolph Iron Co. v. Elliott, 103. Rankin t. Darnell, 899, 922. Rann v. Hughes, 510, 545, 628, 629. Rannells v. Gerner, 290, 296. Rannie t. Irvine, 452, 455. Ransdell v. Moore, 634, 713, 719. Rapid Transit Land Co. v. Sanford, 277, 282. Rapid, The, 320. Rappleye v. Racine Seeder Co., 724, 847. Ratcliffe t. Sangston, 183. V. Smith, 463. Rathbon v. Budlong, 65. Rathbun v. Rathbun, 528. EatlifE T. Vandikes, 187. Ran V. Zedlitz, 189. Raudabaugh v. Hart, 913. Rawdon v. Hawdon, 290, 294. Rawlins v. Nickham, 160. V. Wickham, 143, 159, 167, 173. Rawson t. Johnson, 913. Rawstorne t. Gandell, 763. Ray V. Haines, 281. V. Mackin, 403. V. Thompson, 684, 850, 880. T. Tubbs. 235, 247, 249. T. Williams, 715. T. Young. 621. Rayburn v. Comstock, 893, 899. Raycroft t. Tayntor, 711. Raymond v. Bearnard, 61, 62, 274. V. Johnson, 729. Raymond v. Leavitt, 443, 460. V. Minton, 922. V. Roberts, 801. v. Smith, 676. Raynor v. Drew, 785. Rea V. Bishop, 307. V. Owens, 671. V. Smith, 43. Read v. Anderson, 474, 478. V. Chambers, 168. V. Goldring, 874. T. Legard, 299. V. Robinson, 529. V. Smith, 485. T. Young, 725. Reader t. Kingham, 556. Real Estate Title Ins. & Trust Co.'s Ap- peal, 786. Reando v. Misplay, 298. Reason y. Jones, BU2, 304. Redding v. Lamb, 698. Redgrave v. Uurd, 129, 161, 167, 176. Redman v. Bellamy, 534. Reece v. Kyle, 428. Xteed V. Batchelder, 230, 654. V. Beazley, 433. V. Boardman, 871. V. Boshears, 258, 259, 262. V. Breeden, 885. V. Coale, 384. V. Evans, 594. V. First Nat. Bank of Pueblo, 639. V. Golden, 636. V. Holcomb, 557. V. Kemp, 841. V. Kilburn Co-operative Soc, 887. V. Lammel, 802. V. Lane, 230. V. McGrew, 857. V. McKee, 415. V. Merchants' Mut. Ins. Co., 782. V. Prentiss, 699. V. Washington F. & M. Ins. Co., 419, 421. Rees V. Overbaugh, 840. V. Smith, 878. Reese River Silver Min. Co. v. Smith, 159 178 Reeve' v. Dennett, 152, 166. V. Ladies' Bldg. Ass'n, 378. Reeves v. Butcher, 358. Reg. V. Rowlands, 447. Regan v. Howe, 526. Regents v. Detroit Young Men's Soc, 223. Reichenbach v. Sage, 928. Reid V. Cowduroy, 154. V. Hibbard, 669. V. Vanderheyden, 706. Reid, Murdoch & Co. v. Bird, 183. Reif V. Paige, 43, 48, 56, 76, 81, 665. Reiger v. Worth, 933. Reilly v. Chouquette, 790. Reinheimer v. Carter, 574. Reinieker v. Smith, 289. Relnskopf v. Rogge, 288, 300. Reis V. Lawrence, 311. Relief Fire Ins. Co. v. Shaw, 537. Remick v. Sandford, 583, 585. Remington v. Palmer, 567. V. Wright, 191. Remington Sewing Mach. Co. v. Eezer- tee, 146. TABLiE OF CASES. 1023 [references ABE TO PAGES.] Remy t. Olds, 894. Kenard v. Sampson, 857. Kenfro v. Harrison, 529. Eepettl T. Maisak, 592, 604. Republic of Mexico v. Arrangola, 220. Reusens v. Mexican National Construc- tion Co., 898. Reuss V. PicUsley, 590, 599, 600, 603. Renter v. Sala, 886, 907. Revel V. Revel, 310. Rex T. Atkins, 915. V. Bellringer, 795. V. Inhabitants of Rldgwell, 781. V. Osbourne, 795. V. Stephens, 869. V. Varlo, 795. Reynell v. Sprye, 143, 146, 167. Reynolds v. Bridge, 928. V. Burlington & M. R. R. Co., 628. V. Dechaums, 289. V. Hassam, 785. V. McCurry, 270. V. Nichols, 343. V. Nugent, 663, 667. V. Pinhowe, 671. V. Robinson, 784. V. Stevenson, 352. V. Waller's Heir, 293. Reynolds' Heirs v. Trustees Glasgow Academy, 522. Rhea v. Bagley, 529. V. Ehenner, 313. V. White, 463. Rhine v. Ellen, 535. Rhoades v. Castner, 599, 603, 841. V. Fuller, 296, 303. V. Leach, 844. Rhoda V. Aunis, 171. Rhode V. Louthain, 517. Rhodes v. Neal, 418. V. Rhodes, 298, 613. v. Sparks, 413. V. Summerhill, 322. V. Thomas, 861. Rice V. Boyer, 248, 250, 280. V. Butler, 240, 273. V. Carter's Adm'r, 550, 551. V. Caudle, 932. V. Dwight Mfg. Co., 45, 108, 109, 118. V. Gist, 365. V. Goddard, 698. V. Manley, 711. V. Maxwell, 393. V. Peet, 292. V. Shook, 321, 323. V. Williams, 396. V. Wood, 397. Rich V. Lord, 809. V. New York Cent. & H. R. R. Co., 22. Richards v. Allen, 619, 620. V. American Desk & Seat Co., 454. V. Day, 517. V. Delbridge, 720. V. Grinnell, 567. T. Heather, 761. V. London, B. & S. C. By. Co., 920. V. Reeves, 39. V. Richards, 561. Richardson v. Brown, 499. T, Buhl, 441, 443, 446, 484, 487. Richardson v. Campbell, 344, 929. V. Chemical Laboratory, 876. V. CrandSiU, 495. V. Dorman's Ex'x, 347. V. Draper, 761. V. Duncan, 190, 191. V. Foster, 787. V. Horton, 761. V. Jackson, 876. V. Lenhard, 72. V. Maine F. & M. Ins. Co., 410. V. Noble, 149. V. Pate, 278. V. Peacock, 941. V. People, 816. V. Pierce, 571. V. Robblns, 555. V. Rowland, 426, 500. V. Scott River W. & M. Co., 521, 522. V. Squires, 583. V. Strong, 298, 299, 329. V. Williams, 628. Richmond v. Aiken, 34. V. Moore, 352. V. Morford, 523, 526. Richmond Mfg. Co. v. Davis, 841. Rickards v. Cunningham, 33. Ricketts v. Harvey, 418. V. Jolliff, 290, 291, 298, 303, 307. V. Louisville, St. L. & T. Ry. Co., 811, 812. V. Scothorn, 631. Riddle v. Brown, 564. V. Hall, 416. V. Varnum, 576. Ridgeley v. Crandall, 229. Rldgeway v. Herbert, 251, 262. Ridgway v. Grace, 640. V. Ingram, 604. V. Wharton, 86, 87. Ridley v. McNairy. 612. V. Ridley, 570. Riegei v. American Life Ins. Co., 108. Riegelman v. Focht, 554, 555. Ries V. Rowland, 945. Eigby V. Connol, 446. V. Norwood, 595. Eigdon V. Walcott, 173, 180. Riggan v. Green, 295, 304, 305. Riggs V. American Tract Soc, 287, 306. V. Bullingham, 648. V. Fisk, 254, 266. V. Magruder, 581. Righter v. Philadelphia Warehouse Co., 383. Riley v. Carter, 295. V. Farnsworth, 598. V. Jordan, 459. V. Kershaw, 685. V. Mallory, 234, 276, 282. V. Taber, 728. V. Williams, 622. Riley's Adm'rs v. Vanhouten, 790. RindskotC v. Barrett, 813, 815. Rindskopf v. De Ruyter, 583. Ringer v. Canu, 808. Ripley V. Crooker, 757, 760. V. McClure, 922. V. Paige, 783. Uippy V. Gant, 285, 296. Risch V. Von Lillienthal, 156. 1024 TABLE OP CASES. [reperencbs abb to pages.] Riser v. Walton, 171. Kisley v. Phenix Bank, 732, 733. Rltcliie V. Atkinson, 908, 917, 921. V. Boynton, 340. V. People, 337, 338. T. Smith, 460. Kitter v. Singmaster, 865. Bitter's Appeal, 289. Eittler v. Smltli, 367. Rittmaster v. Brisbane, 529. Eivaz V. Gerussi, 136. River Steamer Co., In re, 950. Rivers v. Gregg, 243. Roaeti V. Karr, 101. V. Quick, 236. Eobb V. rialsey, 500. Robl>ins v. Butler, 613. V. Eaton, 260, 275. T. Kimball, 566, 794. V. Mount, 231. V. Eascoe, 530. V. Webb, 751. Robert v. Barnum, 671, 689. Roberts v. Beatty, 887, 889. v. Bonaparte, 796. v. Brett, 902. V. Bury Improvement Com'rs, 890, 900. V. Carter, 735, 738. V. Cobb, 683. V. Griswold, 694. V. Hardy, 320. V. HoUiday, 156. V. Kniglits, 319. V. McMeely, 500. V. Minneapolis Tlireshing Macli, Co., 783. V. Rockbottom Co., 571. V. Smitli, 89. V. Tennell, 574. V. Trenayne, 378. V. Wiggin, 254. Robertson v. Coleman, 103. V. French, 810, 813. V. Hunter, 552. V. Reed, 713, 725. V. Robinson, 400. V. Smitli, 758. Robinson v. Barrows, 345. V. Berry, 275. V. Bland, 499. V. Bullock, 860. V. Cook, 875. V. Coulter, 229. v. Crensliaw, 416. V. Davison, 829, 833, 834. V. Ezzell, 666. V. Fiske, 815. V. Glass, 100, 101. V. Gould, 189, 528. V. Green, 472. V. Harbour, 905, 912. V. Harman, 930, 931. V. Hathaway, 227. V. Hosklns, 259. V. Hurst, 645. V. Jewett, 663. V. Kind, 295, 304. V. Payne, 811. V. Read, 866. V. Reynolds, 312, 313. V. Robinson, 12. Robinson v. Weeks, 229, 270, 276, 277, OQO Robison v. Beall, 430. Robson V. Bohn, 909. V. Drummond, 724. V. McKoin, 701. Roby V. West, 345, 471. Roche V. Dllmau, 750. Rochester Lantern Co. v. Stiles & Park- er Press Co., 724, 725, 933. Rock Island Nat. Bank v. Nelson, 481. Rockatellow v. Baker, 133. V. Newcomb, 681. Rockcliffe v. Pearce, 853. liockhill V. Spraggs, 661. Rocks V. Cornell, 231. Rockwood V. Wiggin, 632. Roddy V. Missouri Pac. Ry. Co., 717. Rodecker v. Littauer, 377. Rodger v. Comptolr d'Bseompte de Paris, 183. Rodgers v. Bass, 825, 409. v. Dibrell, 324. V. Jones, 585. Rodlck V. Gandell, 733. Rodliffi V. Dallinger, 104. Rodman v. Thalheimer, 134. Rodwell V. Phillips, 563. Roe v. Haugh, 858. V. Kiser, 784. Roe d. Wilkinson v. Tranmarr, 780. Roebling's Sons Co. v. Lock Stitch Fence Co., 894, 896. Roehl V. Haumesser, 602. Roesner v. Hermann, 436. Roger Williams Ins. Co. v. Carrington, 538. Rogers v. Atkinson, 543, 785. V. Blackwell, 295, 302, 308. V. Bollinger, 534. V. Carey, 524, 527. V. Danforth, 813. V. Gosnell, 715, 716, 718. T. Heads Iron Foundry, 528. V. I-Iiggins, 175, 176, 198, 309. V. Ilillhouse, 660. V. Ingham, 120. V. Phillips, 311, 313. V. Rogers, 668, 858. V. Sample, 379. V. Saunders, 936, 938. V. Sheerer, 919. V. AValker, 291, 295, 296, 306. V. Wolfe, 613, 615. Rogers' Ex'rs v. Berry, 256. Rohan v. Hanson, 607. Rohrbough v. Leopold, 183. Rolkei- V. Great Western Ins. Co., 816. Roll V. Raguet, 415. Roller V. Ott, 452. Rollins V. Marsh, 668, 856. Rollins Inv. Co. v. George, 936. Rolt V. Cozens, 905. Roman v. Mali, 494, 495. Rood V. Jones, 680. Roof V. Stafford, 273. Root V. Merriam, 481. Roper V. Johnson, 894, 932. V. Landon, 906. Roquemore v. Alloway, 461, 480. Rorabacher v. Lee, 765. Roscorla v. Thomas, 647, 650. Rose V. Daniel, 253. V. Daniels, 671. TABLE OF CASES. 1025 [BEFEBENCES ABE TO PAGES.] Rose V. Mitchell, 460. V. Munford, 381. V. Wollenberg, 557. ^ Rosebrough' t. Ansley, 377. Roseman v. Canovan, 145, 157. Rosenblatt v. Townsley, 354, 472. Rosenfleld v. Swenson, 56. Rosenheim t. America Ins. Co., 136. Rosenthal v. Mayhugh, 311, 313. Rosewarne v. Billing, 478. Ross V. Allen, 591, 595. V. City of Madison, 222, 223. V. Doland, 101. V. Drinkard s Adm'r, 151. V. Green, 364. T. Hurd, 659. V. Overton, 828. V. Parks, 599. V. Sadgbeer, 532. Rosslter v. Miller, 592. Rossman v. McFarland, 343. V. Tilleuy, 946. Rossmann v. Townsend, 709. Rotberam Alum &. chemical Co., In re, 720. Rbthholz V. Schwartz, 937. Rothschild t. Mack, 160. Roughtou V. Eawlings, 566. Roundtree v. Baker, 498. V. Smith, 465. Rountree v. Denson, 808. Rousillon V. Rouslllon, 449, 453, 502. Routledge v. Grant, 67. Rouzle V. Daingerfleld, 174. Rovegno v. Defferari, 116. Rowe V. Blanchard, 697, 701. V. Rand, 65. v. Whittier, 549. Rowell V. Chase, 162. Rowland v. New York, N. H. & H. R. Co., 116. T. Rorke, 553. V. Windley, 869. Rowley v. Bigelow, 33, 182. V. Jewett, 842. V. Stoddard, 759, 760. Roy V. Boteler, 914. Royal T. Lindsay, 671. Royal Ins. Co. v. Beatty, 58. Roys V. Johnson, 464. Ruble V. Massey, 899. Ruchizky v. De Hayen, 227, 269. Rucker v. Cammeyer, 602. V. Harrington, 542. Rnckman v. Bergholz, 341. V. Bryan, 459, 490. v. Lightner's Plx'rs, 409. V. Ruckman, 523, 524. Rudolf V. Winters, 368. RufC V. Jarrett, ]58, 167, 168. Rugg V. Moore, 907, 909. Rumball v. Ball, 915. Rumsey v. Berry, 368, 369, 371. V. Matthews, 379. Runkle v. Johnson, 904, 913. Runnamaker v. Cordray, 651. Rupley V. Daggett. 116. Rnse V. Mutual Ben. Life Ins. Co., 367. Rush V. Wick, 233. Rusk V. Fenton^ 305. Russ V. Mitchell, 324. Russ Lumber & Mill Co. v. Muscuplabe Land & Water Co., 143, 150, 701, 702, 917. Russel V. Skipwith, 323. Russell V. AUerton, 790, 791. T. Babcock, 676. V. Bell, 185. V. Briggs, 613. V. Burton, 487. V. Cook, 686. V. McCall, 838. T. Minor, 913. T. Murdock, 358, 359. V, Slade, 569. T. Stewart, 43. V. Wisconsin, M. & P. Ry. Co., 580. Rust V. Gott, 365. V. Larue, 329, 488; Rutland v. Paige, 519. Rutland Marble Co. v. Ripley, 538. Ryall V. Rowles, 733. Ryan v. Ashtou, lai. v. Lynch, 60. V. McLane, 683, 935, 937, 938. V. Mutual Tontine Westminster Chambers Ass'n, 936. v. School Dist. of Dakota Co., 347. V. Southern Building & Loan Ass'n, 838 V. Trimble, 637. V. United States, 596. Ryder v. Wombwell, 244, 245. Ryer v. Stockwell, 55, 76, 634, 636. Ryno V. Darby, 358. St. Albans v. Shore, 917. St. Andrew v. Manchaug Mfg. Co., 735. St. Andrew's Lutheran Church's Ap- peal, 751. St. John V. Hendrickson, 184. St. Joseph & D. C. R. Co. v. Ryan, 399. St. Joseph & G. I. R. Co. t. Palmer, 437. St. Louis, A. & T. H. R. Co. V. South, 76. St. Louis Agricultural & Mechanical Ass'n V. Delano, 487. St. Louis, Ft. S. & W. R. Co. v. Davis, 671. St. Louis, I. M. & S. Ry. Co. v. Matthews, 470. V. Ruddell, 529. St. Louis, J. & C. R. Co. T. Mathers, 468, 489. St. Louis, L. & W. Ry. Co. v. Maddox, 508. St. Mark's Church v. Teed, 675. St. Paul & D. R. Co. V. Blackmer, 796. St. Philip's Church v. Zlon Presbyterian Church, 837. Sackett v. Montgomery, 946. Sackman v. Camnbell, 192. Safford v. Grout." 167. Sage V. Wilcox, 545, 593, 594. Sale V. Lambert, 591. Salem v. McClintock, 817. Saliras v. Bennett, 275. Salisbury v. Andrews, 817. V. Howe, 158, 162. 1026 TABLE OF GAflna. LHBMBBENCBS ABE TO PAGES.] Salisbury v. Shirley, 745. Salmon Falls Mfg. Co. t. Goddard, 591, eoo. V. Portsmouth Co., 794, 796, 811. tSalomou V. Hertz, 940. Sfttter V. Kidley, 534. Saltmarsh v- Planters' & Merchants' Bank, 74. Saltonstall t. Gordon, 144. V. Little, 885. Sampson v. Eagterby, 781. V. Fox, 858. T. Gazzam, 788. y. Shaw, 443, 490, 492, 494. Sams V. Stockton, i!40. Samson v. Thornton, 525, 530. Samuel v. Marshall, 290. Samuels v. Oliver, 443, 457, 479, 480. San Antonio v. Lewis, 223. Sanborn t. Fireman's Ins. Co., 538. V. Flagler, 591, 599, 600. V. Little, 'J38. V. Nockin, 604. V. Elce, 751. V. Sanborn, 600, 613. Sandage v. Studebaker Bros. Mfg. Co., 340, 697, 701, 783. Sandeeo v. ICansas City, St. J. & C B. E. Co., 185. Sanders v. Clark, 782. V. Cooper, 787. V. Filley, 718. V. Gillespie, 553. V. Jobnson, 352. T. Knox, 871. V. Maclean, 791. V. Pottlitzer Bros. Fruit Co., 87, Sanderson v. Alorgan, 320. Sandford v. Catawissa, W. & B. E. Co., 398. Sands t. Clarke, 923. V. Crooke, 636. V. New Tork Life Ins. Co., 325. T. Potter, 833. Sauford v. Howard, 66. V. Hnxford, 039. V. Sornborger, 191, 193. T. Weeks. 884. Sanger v. Baumberger, 809. y. Dun, 100. y. Hibbard, 263, 270. Sanquirico v. Benedetti, 942. Sanson v. Bell, 810. Santa Clara Valley Mill & Lumber Co, T. Hayes, 443, 471. Santissima Trinidad, The, 410. Santos V. lUidge, 501. Sappho. The, 223, Saratoga County Bank v. King, 463 468, 486. V. Pruyn, 317. Sard T. Rhodes, 866. Sargeant y. French, 315. Sargent y. Graiiam, 875. y. Sturn. 182, 183. Sartwell v. Sowles, 617, 947. Satterwbite's Adm'rs v. McKie, 379. Sattler v. Hallock, 89, 778, 779, 794, 795, 798, 802. Saul y. Busenbark, 58. Saum y. La Shell, 877. Saunders v. Blythe, 516, 531. Saunders v. Clark, 790. y. Frost, 876. y. Hackney, 518. y. Hanes, 805, 811. y. Hatterman, 148, 149. y. Milsome, 536. y. Ott's Adm'r, 239, 240, 246. y. Saunders, 718. y. Wakefield, 593, 594. Saunderson y. Marr, 232. V. Piper, 786. Savage y. Blanchard, 944. y. LIchlyter, 255. v. Stevens, 160. Savercool y. Farwell, 837. Saville y. Chalmers, 536. Savin v. Hoylake Ey. Co., 343. Sayings Bank of Kansas v. National Bank of Commerce, 503. Saward v. Anstey, 798. Sawyer v. Brossart, 78. v. Chambers, 699, 701. T. Hammatt, 802. y. Lufkin, 298. V. Prickett, 148, 150. y. Taggart, 369, 371. y. Ware, 542, 577, 581. Sax V. Detroit, G. H. & M. By. Co., 569, 682, 880. Saxon y. Wood, 300. Saxonia Min. & Eeduction Co. y. Cook, 851. Say y. Barwick, 289. Say's Case, 819. Sayer v. WagstafE, 866. Sayles v. Christie, 259, 262, 265, 553. V. Sayles, 433. y. Smith, 352. v. Wellman, 358. Sayre v. Wheeler, 355, 478, 497. Sayward y. Gardner, 592. Seadden Fiat Gold Min. Co. v. Scad- den, 709. Scales y. State, 337. Scanlan v. Cobb, 304, 306. Scaulon y. Oliver, 622. Searamanga y. Stamp, 389. Scarritt, In re, 435. Sceva y. True, 24-26, 29, 298. Schaedel y. Eeibolt, 60. Scbaferman y. O'Brien, 424. Schaps V. Lehner, 304. Scheland y. Erpelding, 905. Schenectady Stone Co. y. Holbrook, 86. Schenk y. Strong, 249. Schlerman v. Beckett, 609. Schiffer y. DIetz, 175, 179, 180. Schilling v. Mullen, 732, 734, 735. Schlicher y. Keeier, 524. Schlitz y. Meyer, 944. Schloss v. Hewlett, 400-402. Schmaling v. Thomlinson, 59, 709. Schmidt v. Mesmer, 184. v. Pfau, 951. y. Thomas, 358, 584. Schmitheimer v. Elseman, 251. Sehmueckle v. Waters, 394, 480. Schneider y. Staihr, 276. Sehnell v. Neil, 644, 647, 687, 603. Schoen y. Sunderland, 785. Schofleia v. Ford, 844. Scholefield v. Fichelberger, 321, 322. v. Templer, 177, 182. TAHLE OF CASES. 1027 [BBFEBENOBS ABE TO PAGES.] Scholey v. Central By. Co. of Vene zuela, 175. Schollleld y. Walker, 199. Scholfleld Gear & Pulley Co. t. Schol- field, 168, 164. Schommer v. Farwell, 191, 416. Scbomp y. Schenck. 330, 426. School Committee v. Kesler, 101. School Directors y. Boombonr, 160. School Dist. No. 1 y. Dauchy, 828, 830. School Dist. No. 8 y. Lynch, 777, 778. School Dist. No. 61 y. Alderson, 416. School District of Kansas City y. Sheidley, 631, 639. School Trustees of Trenton y. Bennett, 828, 886. Schoonoyer y. Yachon, 620. Schrader y. Decker, 199, 200. Schramm y. O'Connor, 289. Schrenkeiser y. Klshbangh, 166. Schribner y. Collar, 397. Schrimpf y. Settegast, 60. Schroeder y. Fink, 638, 677. y. Imperial Ins. Co., 817. y. Loeber, 620. y. Nielson, 637. y. Palmer Hardware Co., 583. y. Taatre, 597. Schuchman y. Knoebel, 702. Schuermann v. Dwelling-House Ins. Co., 849. Schuff y. Bansom, 295, 301. Scbuler y. Myton, 674. Schultz V. Bradley, 543. y. Catlln, 189, 195. y. Culbertson, 189, 415, 417. y. Howard, 770, 771. Sehumaker y. Mather, 156. Schuman y. Garratt, 535. Schumate y. Parlow, 574. Schuyler y. Hoyle, 310. Schuylkill Co. y.' Copley, 99, 101. Schuylkill Nay. Co. y. Harris, 672. y. Moore, 813, Schwab y. Bigby, 354. Schwalebaek y. Chicago, M. & St. P. By. Co., 749. Schwaln y. Holmes, 452. V. Mclntyre, 842. Schwartz y. Ballou, 517. y. Saunders, 828. y. Schwartz, 190. Schwarzbach y. Ohio Valley Protectiye Union, 138. Schweider y. Lang, 669, 944. Schweinber y. Great Western Eleyator Co., 516. Schweizer y. Tracy, 182. Schwenke y. Wyckoff, 402. Scioto Pire Brick Co. y. Pond, 108. Scobey y. Boss, 427. y. Walker, 516. Scofield y. Lake Shore & M. S. By. Co. 399 Seofleld Boiling Mill Co. y. State, 171. Scoggin V. Blackwell, 571, 574. Scollans y. Flinn, 460. Scotson y. Pegg, 674. Scott y. Atchison, 859. y. Ayery, 419. y. Brown, 389. T. Buchanan, 265, 266, 278. Scott V. Bush, 622, 623. y. Duffy, 490. y. Fisher, 872. y. Kittanning Coal Co., 908. y. Littledale, 114. y. Liyerpool Corp., 777. y. McKinney, 856. y. McMillan, 750. y. Moore, 751. V. Periee, 600. y. Perrin, 180. y. Bay, 871. y. Bogers, 64. y. Scott, 260, 269, 696. y. White. 553. Scotten y. Brown, 616. y. State, 495. y. Sutter, 583. Scoyili y. Barney, 201. y. McMahon, 791, 798, 829. Scranton y. Stewart, 266, 264, 277. Scribner y. Collar, 307. Scrugham y. Wood, 624. Scudder y. Union Nat. Bank, 537, 618. Scully y. Kirkpatrick, 833. Seagrayes y. City of Alton, 223. Seaman y. O'Hara, 861. y. Whitney, 550. Seamans y. Temple Co., 503. Searcy y. Hunter, 242, 265, 277, 282. Searing y. Searing, 310. Searle y. Galbraith, 287. V. Hill, 544, 937. Searles y. Beed, 351. Sears y. Brink, 594. y. Conoyer, 729. V. Eastern E. Co., 76. Seaver v. Phelps, 303-805. Seavey y. Potter, 175. Second Nat. Bank of Leayenworth y. Smoot, 501. Second Nat. Bank of Nashua y. "^ood, 655. Second Nat. Bank of St. Louis y. Grand Lodge, M. F. & A. A. M., 714, 717, 721. Security Bank y. Holmes, 750. Seddon y. Bosenbaum, 570, 573. y. Senate, 777. Sedgwick y. Stanton, 408, 426. Seeber y. People's Building, Loan & Say. Ass'n 184 Seeger v. Duthie, 127, 903. Seeley y. Price, 157. Seery y. Socks, 65. Segars y. Segars, 620. Seiber y. Price, 191. Seidenbender y. Charles' Adm'rs, 339, 374, 475. Selgman y. Hoffacker, 713, 718. Seim y. Krause, 420. Seipei y. International Life Ins. & Trust Co., 900. Selby y. Selby, 599. Selden y. Delaware & H. Canal Co., 665. Self y. Clark, 389, 483. Seligman V. Plnet, 759. Sell y. Steller, 637. Selma y. Mullen, 508. Selman y. King, 915. Selser y. Brock, 182. 1028 TABLE OF CASES. [eefeeences aee to pages.] Semmes v. City Fire Ins. Co., 320, 323, 325 V. Hartford Ins. Co., 829. V. Worthington, 615, 617. Semple v. Pinli, 679. Senter v. Bowman, 500. V. Senter, 156. Sentman v. Gambie, 563. Sergeant v. Dwyer, 89. V. Sttyker, 721. Servante v. James, 770. Sessions v. Johnson, 758. Seton V. Slade, 884. Setter v. Alvey, 489. Sewall V. Willslns, 904. Seward v. Mitcliell, 680. Sewall V. Henry, 801. V. Royal Exchange Assur. Co., 465. T. Sewall, 227, 252. Sext V. Geise, 553. Sexton V. Chicago Storage Co., 745. V. Sexton, 131. Seylar t. Carson, 31. Seymour v. Bailey, 324. V. Bridge, 474, 478. V. Chicago Guaranty Fund Life See, 225. V. Delancy, 694, 695, 936. V. Howard, 68. V. Minturn, 854. T. Prescott, 192. T. Town of Marlboro, 650. V. Western E. Co., 761. Shaber v. St. Paul Water Co., 748. Shackelford t. Handley's Ex'rs, 154. Shackell v. Rosier, 476. Sbackelton v. Sebree, 289. Shackford v. Town of Newlngton, 784. Shacklett v. Polk, 322. Shadburne v. Daly, 678. Shaddle T. Disborpugh, 695. Shade v. Creviston, 148, 734. Shadtorth v. Hlggin, 921. Shadwell v. Shadwell, 63T, 674. Shafer y. Senseman, 431. Shaffer v. Kyan, 551. Shaffers E!state v. McKanna, 637. ShaflCner v. Pinchback, 490. Shales v. Seignoret, 922. Shamp V. Meyer, 713. Shannon y. Baumer, 492. T. Georgia State Bldg. & Loan Ass'n 500 Shardlow v. Cotterell, 596. Sharman v. Brandt, 602. Sharon v. Sharon, 487. Sharp v. Carroll, 586. T. Conklin, 767, 771. T. Gibbs, 536. V. Taylor, 465, 685. T. Teese, 393. V. Thompson, 817. Sharpe t. Rogers, 677. Sharpley v. Louth & B. C. Ry. Co., 175, Sharts v. Await, 737. Sharer v. Bear River & A. W. & Mln. Co., 682. Shaw V. Ball, 287. V. Boyd, 262, .269. T. Carlile, 485. V. Carpenter, 469, 470. V. Clark, 368, 481. Shaw V. Coffin, 235, 248. V. Graves, 59. V. North Pennsylvania R. Co., 743. V. Nudd, 64. V. Pratt, 759, 760. V. Reed, 417. V. Republic Life Ins. Co., 894. V. Spooner, 191, 418. T. Thompson, 299, 312, 314. V. Woodbury Glass Works, 86. Sheahan v. Barry, 898. Shealy v. Toole, 647. Shearer v. Jewett, 888. Shed V. Pierce, 760. Sheehy v. Adarene, 574. V. Fulton, 590. Sheeren v. Moses, 905. Sheets v. Bray, 290. V. Sweeney, 561. Sheffield Canal Co. v. Sheffield & R. Ry. Co., 72. Sheffield Furnace Co. v. Hull Coal & Coke Co., 683. Sheffield Nickel & S. P. Co. v. Unwin, 179. Shelby v. Chicago & B. I. R. Co., 536. Sheldon v. Buesner, 379. V. Butler, 549, 553. V. Capron, 109. V. Davidson, 147, 150. V. Haxtun, 475, 477. V. Pruesner, 379, 487. V. Rockwell, 942. Sheldon's Lessee v. Newton, 235. Sheldon Hat Blocking Co. v. Eicke- meyer Hat Blocking Mach. Co., 64. Shellenbarger v. Blake, 852. Shelley v. Wright, 534. Sheltou V. Deerlng, 841. V. Ellis, 108. V. Johnson, 329. V. Marshall, 498. Shenandoah Nat. Bank v. Marsh, 631. Shenandoah Valley E. Co. v. Dunlop, 536. Shenk v. Mingle, 416, 483. Shepard v. Carpenter, 86. V. Rhodes, 647, 649, 654, 656-658, 662. Sheperd v. Bevin, 201, 694, 695. V. Busch, 868. V. Groff, 942. V. Pressey, 585. V. Rhodes, 693. V. Sawyer, 366. V. Temple, 697. V. Young, 60. Sherburne v. Shaw, 591. Sherley v. Riggs, 423, 427. Sherman v. Barrett, 389. V. Chamolain Transportation Co., 851. V. Kitsmiller, 88, 642. V. Mulloy, 818. V. Roberts, 354. V. Sherman, 189. V. Wilder, 488. Sherman Center Town Co. v. Leonard, 931, 932. Sherwin v. Brigham, 663. V. Fletcher, 690. V. Rutland & B. E. Co., 860. TABLE OP CASES. 1029 [BEFEBENCES ABE TO PAGES.] Sherwln v. Sanders, 656. Sherwood v. Salmon, 147. V. Stone, 553. T. Walker, 107, 110-113, 116. Shewalter v. Pirner, 803. Shields t. Bush, 525. y. I>rysdale, 642. Shilser v. Van Dike, 415. Shlnn T. Bodlne, 910. Shlntz T. McManamy, 517. Shipley V. Eeasouer, 394, 484. Shipman v. Horton, 276. T. Seymour, 143. Shlppey V. Eastwood, 358. T. Henderson, 655. Shirk T. Shultz, 270, 272, 275, 276, 282, Shirley v. Beard, 195. T. Healds, 753. V. Shirley, 599. V. Welty, 377. Shirley's Lessee v. Ayres, 526. Shirts v. Overjohn, 101. Shisler v. Vandike, 415. Shlvely t. Black, 594. Shobe V. Luff, 79. Shober & CarquevlUe Lithographing Co. V. Kerting, 715. Shoe & Leather Nat. Bank v. Wood, 699. Shoemaker t. Benedict, 766. Shoptaw V. Eidgwa^'s Adm'r, 523, 524, 528. Short V. Bullion-Beck & C. Mln. Co., 63. V. Price, 533. V. Stone, 923. V. Stotts, 558. V. Woodward, 778. Shotwell V. Ellis, 821. V. Hamblin, 464. Shoulters v. Allen, 285, 303, 307. Shreffler t. NadelhoCter, 791, 817. Shrciner v. Cummins, 657. Shrewsbury & Birmingham By. Co. T. Northwestern Ey. Co., 224. ShPiner t. Keller, 868. Shrock V. Crowl, 254, 264. Shropshire v. Burns, 230, 254, 259. Shubrick v. Adams, 869. Shuder v. Newby, 637. Shuetze t. Bailey, 64. Shney v. United States, 66, 70. Shufeldt T. Pease, 183. Shulte y. Hennessy, 899. Shumate y. Com., 363, 365. Shupe y. Galbraith, 678. ShurtlefE y. Millard, 273, 281. Shute y. Dorr, 572, 574. Sibley y. Felton, 77, 86. Sibley v. Pine County, 713. Siboni y. Kirkman, 834. Sibree y. Tripp, 663, 669. Sibthorp y. Brunei, 906. Sicard's Lessee y. Dayis, 565. Sidenbam's Case, 647. Sidle V. Anderson, 546. Sidney School Furniture Co. y. War- saw School Dist., 880. Sldwell y. Eyans, 679. Siebert y. Leonard, 861. Sieckman y. Allen, 546, 589. Slegel, Cooper & Co. y. Eaton & Prince Co., 830. Slemon y. Wilson, 285. Slgafus y. Porter, 164. Sigerson y. Mathews, 659. Sikes y. Johnson, 248. Slier V. Gray, 754, 831, 834. Silllman y. United States, 192. Silsbee y. Ingalls, 546. Silsby y. Frost, 550, 556. Silsby Mfg. Co. y. Town of Chlco, 879, 880. , Silyernail y. Cole, 637. Simar y. Canaday, 148. Simmons y. Brown, 932. y. Green, 873, 913. y. Hamilton, 943. y. Simmons, 233. Simmons Hardware Co. y. Mullen, 583. Simms y. Hervey, 517. Simon v. Goodyear Metallic Eubber Shoe Co., 159, 184. V. Wildt, 937. Simonton y. Bacon, 285. V. Clark, 657. Simpson y. Bailsdell, 795. V. Bloss, 477. V. Crippin, 908. V. Dlx, 787. V. Evans, 381, 670. V. Hall, 616. V. Hughes, 78. V. Krumdick, 584. y. Lamb, 425. y. London & N. W. By. Co., 931. y. McGlathery, 526. y. Margitson, 778. y. Nance, 557. y. Vaughan, 761. Sims y. Bardoner, 278. y. Eiland, 157, 162. V. Everhardt, 227, 251, 278, y. Ferrill, 151. y. Hutchins, 33, 606, 622. y. McEwen's Adm'r, 619. y. McLure, 303. y. Tyre, 761. Slmson y. Brown, 706. V. Ingham, 870. Sinclair y. Bradley, 551. y. Healy, 182. y. Learned, 874. Singer y. Carpenter, 937. y. Schilling, 183. Singer Mfg. Co. v. Eeynolds, 848. T. Sammons, 182. Singerly v. Thayer, 881. Singleton v. Bremar, 483. V. St. Louis Mut. Ins. Co., 367. y. Thomas, 669. Singleton's Adm'r y. Kennedy, 146. $lngstack's Ex'rs y. Harding, 602. Sinking Fund Com'rs y. Northern Bank, 220. Sioux Nat. Bank v. Norfolk State Bank, 168. Sltton y. Macdonald, 933. Slzer y. Daniels, 412. Skalfe y. Jackson, 763. Skeate y. Beale, 195. Skeels v. Phillips, 485. Skldmore v. Bradford, 638. Skiff y. Johnson, 461. Skllbeck y. Hilton, 175, 179. SkilUng y. Bollman, 18S. 1030 TABLE OF CASES. [BBFKEENCES ABE TO PAGES.] Skinker v. Armstrong, 549. BUnncT v. McDouall, 617. V. Maxwell, 231, 264, 275, 276, 281 v. Tinker, 498. Skipwith V. Dodd, 611. Skottowe V. Williams, 174. Skrainka v. Scharringhausen, 444, 451. Black V. McLagan, 698. v. Moss, 677. Slade T. Arnold, 351. V. Mutrle, 855. v. Rhodes, 427. Slater v. Jones, 688. V. Magraw, 769, 770. T. Stone, 906. Slater Woolen Co. t. Lamb, 62, 226. Slatter t. Meek, 542. Slaughter t. Cunningham, 252, 267. Slaughter's Adm'r v. Gerson, 155, 166. Blaymaker v. Irwin, 78. Slayton v. Barry, 249, 250. Sleeper t. Davis, 183, 186. Slegbt V. Khlnelander, 815. Slim T. Croucher, 159. Sllngsby's Case, 772. Sloan V. Wilson, 594. Slocum V. Braey, 837. T. Seymour, 563. Small V. Chicago, R. I. & P. R. Co., 430. V. Elliott, 787. T. Reeves, 913. V. Schaefer, 713. V. Williams, 469. Smalley v. Greene, 452, 573, 628. Smart v. Chell, 685. V. Jones, 564. V. White, 495. Smiley v. Bell, 729. Smith V. Algar, 680. V. Applegate, 411. V. Arnold, 341, 349. V. Atwood, 191. V. Barksdale, 533. V. Bartholomew, 854. V. Beach, 385. V. Bean, 490. V. Beatty, 146, 286, 287. V. Berry, 726. V. Bettger, 866. V. Boston & M. R. R., 905. V. Boston, C. & M. R. Co., 419, 900. T. Bouck, 582. V. Bradley, 541. V. Bromley, 393. V. Brown, 364. V. Burnham, 560, 561, 567. V. Case, 359. ▼. Chadwick, 152, 167. V. Chicago, M. & St. P. Ry. Co., 352. V. Clews, 789, 815. V. Collins, 512. V. Coolidge, 889. V. Countryman, 148, 149, 187. V. Cross, 376. V. Cuff, 495. T. Delaney, 556. V. Elliott's Adm'r, 289. V. Evans, 269, 584. T. Finch, 545. T. Flanders, 810. V. Franklin, 764. Smith V. Godfrey, 461, 498. V. Gower, 699. V. Graham, 671. V. Gugerty, 862. T. Harrison, 748. V. Hatch, 619. V. Hicks, 772. V. Hornback, 173. V. Hughes, 8, 106, 107, 114, 115, 145. T. Jones, 598. V. Kay, 167. V. Kelley, 258, 259. V. Kerr, 794, 828. V. Elttridge, 662. V. Land & House Property Corp., 147. V. Lewis, 860, 895, 907, 908, 912. V. Livingston, 182, 748. V. Loyd, 872. V. McLean, 498. V. Mace, 839, 842. V. Marconnay, 410. V. Mawhood, 341, 342. V. Mayo, 258, 263. V. Mohn, 883. V. Monteith, 680. v. Morse, 683. V. Muncie Nat. Bank, 497, 500. V. Newton, 159. V. O'Donnell, 610. V. O'Hara, 564. V. Owens, 393. V. Parker, 143, 150. T. Penn, 120. V. Ferine, 651. V. Pettingill, 942. V. Phillips, 671. V. Pierce, 615. V. Porter, 516. V. Richards, 156, 159, 415, 483. V. Richmond, 655. V. Robertson, 340, 342, 348, 389. V. Roe, 899. V. Sanborn, 887. V. Sayward, 557. V. Sherman, 755. V. Silence, 313. V. Sinclair, 701. V. Smith, 134, 157, 185, 291, 297, 365. V. Smith's Adm'rs, 621. V. Snyder, 883. V. Sparrow, 353. V. Stanchfleld, 656. V. Stewart, 621. V. Stone, 763. V. Stotesbury, 406. V. Surman, 563, 564. V. Tallcott, 771. V. Townsehd, 397. V. Tripp, 658. V. Ullman, 392. V. Watson, 356. V. Weaver, 86, 683. V. Wedgwood, 929. V. Western Ry. Co., 848. V. Whlldin, 396, 664, 694. V. White, 462. V. Wilcox, 351. V. Williams, 783. V. Williamson, 288, 294, 301, 307. TABLE OP CASES. 1031 [BEFEBENCEB ABE TO PAGES.] Smith V. Wilmington Coal Min. & Mfg. Co., 753, 834. T. Wilson, 789, 906. V. Wood, 533. V. Wooding, 621. Smith's Adm'r y. Smith, 180. Smith's Appeal, 455, 471, 599. Smith's Case, 160, 169, 628. Smith's Estate, 720. Smith's Bx'x V. Profitt's Adm'r, 884. Smltherman t. Sanders, 461. Smlthwick t. Shepherd, 546. Smock y. Pierson, 636, 699. Smoot's Case, 826. Smott y. People's Perpetual L. & B Ass'n, 345. Smull y. Jones, 392. Smyth y. Holmes, 685. Smythe y. Allen, 384, 385. Sneed y. Wiggins, 884, 886. Snell y. Bray, 637. y. Cottingham, 933. y. Dwight, 485. y. lyes, 713. Sneyily y. Johnston, 545. y. Read, 644, 656. Snipes y. City of Winston, 397. Snoddy y. American Nat. Bank, 481. Snodgrass y. Cabiness, 753. Snook y. Watts, 296. Snow y. Alley, 179. y. Grace, 685. y. Perry, 875. y. Wheeler, 447. Snowhill y. Snowhill's Ex'r, 310. Snowman y. Harford, 884. Snyder v. Dwelling House Ins. Co., SIT*. V. Findley, 160. V. Grandstaff, 640. V. Hegan, 168. y. Kurtz, 697. y. Laubach, 307. Sobey v. Brisbee, 569. Soccomt* V. Provincial Ins. Co., 815. Soderberg y. King County, 721. Solinger v. Earle, 189, 495. Solly y. Forbes, 759, 779. Solomon v. Dreschler, 341, "349, 469. y. Kimmel, 532. Soltau y. Gerdau, 104. Somerby y. Buntln, 569, 582. Somers v. Pumphrey, 285, 302, 307. y. Richards, 148. Semersall v. Barneby, 915. Somerset Freeholders v. Holt, 950. Sondheim v. Gilbert, 368-370, 458, 481 499. Soper V. Buffalo & R. R. Co., 85. y. Peck, 99. Sorrells y. McHenry. 697. SorSbie y. Park, 770. Sortwell y. Hughes, 461. Sottomayor v. De Barros, 497. Sonhegan Nat. Bank v. Wallace, 492. Sonle V. Bonney, 191, 417. South Baptist Soc. y. Clapp, 522. South Carolina Ins. Co. y. Smith, 809. South Eastern Ry. Co. y. Reg., 887. South Milwaukee Bouleyard Heights Co. y. Harte, 155, 176. South of Ireland Colliery Co. v. Wad- dle, 222. South Yorkshire Ry. & Riyer Dam COi V. Great Northern Ry. Co., 224. South & North Alabama R. Co. v. High- land Ave. & Belt K. Co., 938. Southall V. Rigg, 109. Southard v. Boyd, 407. Southern Development Co. v. Silva, 151, 155, 168. Southern Life Ins. & Trust Co. v. Cole, 582. Southeriu v. Mendum, 561. Southertou v. Whitloek, 279. Southwell V. Beezley, 910. v. Bowditch, 777. Southwestern Freight & Cotton Press Co. V. Stanard, 788. Southworth v. Smith, 876. Soutier v. Kellerman, 789. Sovereign v. Ortmann, 542, 620. Sowles V. Hall, 885. . Soye V. McCallister, 794. Spaids V. Barrett, 195, 196. Spain V. Hamilton's Adm'r, 378. Spalding V. Archibald, 564. V. Ewing. 404, 406. v. Rosa, 833. V. Vandercook, 702. Spangler v. Danforth, 589. V. Spangler, 657. Spanish Ambassador v. Gifford, 804. Spaun V. Baltzell. 856. Sparenburgh v. Banuatyne, .320. Sparks v. Pico, 34. V. Pittsburgh Co., 86. Spaulding v. Andrews, .'537. V. Crawford. 190, 191, 64T. Spear v. Bach, 58S. V. Fuller, 746. V. Orendorf, 014. Spears v. Lawrence, 845. Specht V. Beindorff, 36a. Speer v. Speer, 840. Speers v. Sewell, 286. Speirs v. Union Drop-Forge Co., 223. Spence v. Harvey, 395. V. Healey, 854, 860. V. Windier, 395. Spencer v. Brockway, 219. V. Cone, 580. V. Harding, 85. V. Johnston, 166. V. McLean, 667. V. Tilden, 378. V. Towles, 721. V. Vance. 632. Spencer's Case, 745. 746, 748. Spencer & Newbold's Appeal, 613. Speyer v. , Desjardin^, 566, 567. Spicer v. Earl, 246, 274. V. Jarrett, 424. Spiller V. Paris Skating Rink Co., 716. V. Westlake, 903. Spinks V. Davis, 397. Spinning v. Sullivan, 737. Splidt V. Bowles, 745. Spooner v. McConnell, 217, 220. Sprague v. Haines, 619, 620. V. Kempe, 143. V. Train, 66. V. Tyson, 316. Sprague, Warner & Co. v. Kempe, 165. Spratt v. Wilson, 153. 1032 TABLE OF CASES. [BEFSBEKCES ABE TO PAGES.] Sprlgg V. Mount Pleasant Bank, 784, 817. Springfield Bank v. Merrick, 345. Springfield F. & M. Ins. Co. t. Hull, 415, 478, 484. Sprott V. United States, 409. Sprye v. Porter, 426. Spurgeon t. McBlwaln, 459. Spurr V. Benedict, 109. Spycher v. Wefner, 859. Squier v. HydlifE, 246. Squire v. Whitton, 15. Staab V. Ortiz, 702. Stabler v. Cowman, 519. Stacey v. Randall, 802. Y. Walter; 786. Stacy V. Baker, 497. V. Foss, 365, 491, 493. T. Kemp, 353, 354, 702. Stadhard v. Lee, 790. Stadler v. First ~Sat. Bank of Helena, 735 738 Stafford v. Baton, 657. T. Newsom, 163. V. Roof, 231, 276. T. Stafford, 660. Stagg V. Compton, 77. T. Connecticut ilut. Life Ins. Co., 815. Stamford, Spalding & Boston Banking Co. V. Smith, 951. Stamper v. Temple, 43, 81, 84, 396, 664. Standard Fashion Co. v. Siegel-Cooper Co., 941, 941;, Standard Furniture Co. v. Van Alstine, 461. Standlford v. Gentry, 558. Standley v. Hemmington, 913. Stanford v. McGill, 894, 898. Stanhope v. Swafford, 783. Stanley v. Dunn, 190. T. Western Ins. Co., 813. Stanley's Adm'r v. Jones, 426. Stanly v. Hendricks, 553, 555. Stansbnry t. Fringer, 904. Stanton v. Allen, 474. V. Embrey, 408, 429, 947. V. Hughes, 179. V. New York & E. Ry. Co., 931. Staples T. Nott, 499, 501. T. Wellington, 291. Stark V. Parker, 835. V. Bauey, 464, 557; T. Sperry, 382. Starr v. Bennett. 150. V. Earle, 545. Startup V. Macdonald, 873, 874. State v. Aiken, 441. T. Andrews, 932, 933. T. Associated Press, 444, 445, 628. V. Barker, 220. V. Baum's Heirs, 88. V. Bevers, 218. V. Boneil, 374. V. Boston, C. & M. E. Co., 320. V. Brown, 43. V. Bnrkeholder. 220. V. Chandler, 767. T. Chltty, 423. V. City of Davenport, 671. V. City of New Orleans, 24. State V. Clarke, 228, 376. V. Connoway, 59. V. Corlies, 950. V. Curran, 219, 220. V. Dalton, 374. V. Donaldson, 447. v. Edwards, 396. T. Elting, 412. T. Glldden, 447. T. Gott, 531. V. Grant, 219. V. Hartford & N. H. R. Co.. 398. V. Hastings, 218. V. Horn, 901. T. Howard, 241. 267. T. Humbird, 521. V. Illyes, 108. V. Interstate Sav. Investment Co., 374. V. Johnson, 406, 407. V. Jones, 910. V. Julow, 338. V. Kennedy, 497. V. Laclede Gaslight Co., 713. V. Little Rock, M. B. & T. By. Co., 217. T. Loomis, 338. V. Martin, 745. V. Moren, 375. T. Morgan, 819. V. Ohio Oil Co., 219. V. Ohmer, 357. V. Overton, 374. V. Perrysburg Board of Educatloff, 386, 468, 470, 471. V. Powell, 337. V. Purdy, 412. V. Rice, 224. V. Richmond, 31. V. Ross. 497. T. Ryan, 351. V. Shattuck, 402, 497. V. Spartanburg & TJ. R. Co.. 518, 521. v. Standard Oil Co., 442. V. Stewart, 447. T. Story, 685. V. Stout, 412. V. Thompson, 519. V. Wetherwax, 235. V. Webster, 337. T. Williamson, 402. V. Windier, 395. V. Winona & St. P. B. Co., 905. V. Worthington's Ex'rs, 887. V. Young, 354, 517. V. Zanco's Heirs, 220. State Bank v. Hamilton, 161, 162. V. Hastings. 402. V. McCoy, 289, 307. V. Moore, 415. State Bank at Elizabeth v. Chetweod, 797. State Bank of Midland v. Bryne, 865. State Sav. Bank v. Shaffer, 843, 845. State Treasurer v. Cross, 691. Statham v. New York Life Ins. Co., 326. Staton V. Mullls, 798. Staunton v. Wood, 912. Staver v. Locke, 818. Stavers v. Curling, 903, 921. Steadman v. Guthrie, 592. V. Taylor, 787. TABLES OF CASES. 1033 LBEFEBENCES ABE TO PAGES.] Steam Stoker Co., In re, 876. Steamboat Wellsville v. Qelsse, 910. Stearns v. Barrett, 440. V. Felker, 480, 488. y. Hall, 543, 862. V. Sweet, 813. Stebblns v. Bruce, 737. V. Crawford, 658. V. Leowolf, 499. V. Palmer, 755. V. Smith, 547. Stedman y. Hart, 298, 299. Steed y. Haryey, 785. Steeds y. Steeds, 944. Steel y. Payne, 614. Steele y. Biggs, 884, 885. y. Buck, 826. y. Branch, 884. y. Culyer, 534. y. Hobbs, 703. y. Lord, 846. y. Lowry, 525. y. Steele, 638. y. White, 687. y. Worthington, 201. Steene y. Aylesworth, 713, 716. Stees y. Leonard, 641, 828. Stein y. Swensen, 383. Steinfeld y. Leyy, 390. Stelnhart y. National Bank of D. O. Mills & Co., 867. Stelnhauer y. Whitman, 698, 702. Steinsprlng y. Bennett, 798. Stensgaard y. Smith, 68, 682. Stepham v. Lent, 326. Steph^s y. Southern Pac. Co., 344, 437. V. Winn, 594. Stephenson y. Allison, 175. y. Arnold, 608. V. Cady, 909. y. Piscataqua F. & M. Ins. Co,, 420. Sterling y. Klepsattle, 938. y. Kyan, 858. y. Slnnickson, 431. Stern y. Freeman, 259, 654. y. Harris, 567. y. Meikleham, 241. Sternback y. Friedman, 175, 190. Sternburg v. Bowman, 393. Stettauer y. Hamlin, 808, 813. Steuben Co. Bank y. Matbewson, 415. Steyens y. Adams, 329. y. Alabama State Land Co., 147. T. Brennan, 183. y. City of Muskegon, 603. y. Coon, 642. V. Cooper, 784. y. Flannagan, 713, 716. y. Fuller, 133. y. Gourley, 349, 350. y. Hatch, 524. V. Johnson, 702, 737. y. Ludlum, 130. y. Steyens, 807. y. Rainwater, .151. y. Webb, 889. Steyenson v. Crapnell, 526. V. Ewlng, 347. y. Gray, 497. V. McLean, 70. y. Newnham, 181. Stevenson v. Payne, 498. y. Hobinson, 950. y. State, 865. Stewart y. Bradford, 677. y. Casey, 649. V. Davis, 355. v. Donnelly, 891. y. Eddowes, 590, 600. y. Emerson, 143. V. Flint, 291. V. Houston & T. C. Ey. Co., 427. y. Jerome, 629. y. Keteltas, 668, 858. v. Lehigh Valley K. Co., 470. y. Long Island R. Co., 724, 745. V. Loring, 834. V. Northampton Mut. Live Stock Ins. Co., 348. y. Schall, 479. V. Stearns, 157. V. Stewart, 120. V. Stone, 830. y. Trustees of Hamilton College, 640, 714. V. Wyoming Cattle Ranche Co., 144. Stewartson v. Lothrop, 348. Stlkeman y. Dawson, 252. Stiles V. McClellau, 681, 682. V. White, 169. Stilk V. Myrick, 667. Stllson V. Stilson, 484. Stimson v. Helps, 160. Stines v. Dorman, 751. Stinson v. Anderson, 522. Stitt V. Huidehopers, 38, 67. Stock v. Stoltz, 59. Stocker v. Merrimack Marine & Fire Ins. Co., 136. Stockham v. Cheney, 702. V. Stockham, 52. Stockport Waterworks Co. y. Potter, 750. Stocks y. Dobson, 735, 736. Stockton y. Turner, 804. Stockton Say. & Loan Soc. v. Hildreth, 912. y. Purvis, 798. Stockwell V. Bramble, 537. V. <}ldney, 922. Stoddard v. Ham, 104. V. Martin, 365. y. Penniman, 842. Stokes V. Anderson, 433. v. Mackay, 922. Stone V. Browning, 583, 585, 598. v. Chamberlln, 860. v. Covell, 158. v. Dennis, 419. v. Dennison, 246, 274, 542. V. Denny, 161, 163. y. French, 525. V. Godfrey, 119. V. Graves, 357. y. Harmon, 49. V. Hooker, 464. V. Peacock, 577. y. Perry, 913. V. Wllbern, 286. V. Wythlpol, 255. Stookey v. Hughes, 698. Stoops V. Smith, 787. 1034 TABLE OF CASES. [refebencbs are to pages.] Storer v. Gordon, 904. Storm T. United States, 634. Story V. Livingston, 729. V. Pery, 244. V. Salomon, 369, 371. Storz V. Finkelstein, 486. Stott V. Franey, 731. Stotts T. Leonhard, 265. Stoudenmeler v. Williamson, 547. Stouffer V. Latshaw, 191. Stoughton V. Day, 809. Stout V. Enuls, 400, 477, 607. V. Jdud, 192. Stoutenbourgh v. Konkle, 175. Stoutenburg r. Ly brand, 433. Stovall V. Barnett's Ex'rs, 534, 660. T. McCutcheon, 680. Stover V. Mitchell, 120. Stow V. Russell, 885. V. Wyse, 534, 535. Stowe V. United States, 517. Stowell V. Chamberlain, 946. V. Fowler, 950. V. Read, 877. V. Robinson, 543. Stowell's Adm'r v. Drake, 764. Stowers v. Hollis, 234. Strafford v. Welch, 877. Strain v. Wright, 230, 264, 270, 282. Strand v. Griffith, 157. Strangborough's Case, 680. Strange v. Breunan, 427. V. Houston & T. C. Ry. Co., 743. Straus V. Wanamaker, 806. Strauss v. Meertief, 895, 896, 930. Stray v. Russell, 700. Streatfleld v. Halliday, 767. Streeper v. Williams, 926. Street v. Blay, 702, 919. V. Rlgby, 419. ffl Streeter v. Sumner, 61. Stribley v. Imperial Marine Ins. Co., 136. Strickland v. Graybill, 149, 184. V. Turner, 108. Stringer v. Northwestern Mut Life Ins. Co., 277. Strlngfleid v. Heiskell, 730. Strodder v. Southern Granite Co., 180. Stromberg v. Rubensteln, 271. Strong V. Darling, 341, 342. V. Foote, 239. V. Marcy, 713, 714, 719. V. Sheffield, 679. V. Strong, 167, 168. Strother's Adm'r v. Butler, 185. Stroud V. Smith, 400. Strouse v. Lanctot, 351. Strubhar v. Sborthose, 155. Struthers v. Drexel, 376. Stuart V. Bank of Staplehurst, 164. V. Blum, 393. V. Lander, 611. Stubbs V. Holywell Ry. Co., 754. V. Houston, 287. Stuber v. Schack. 663. Stuckey v: Bailey", 802. Stndebaker Bros. Mfg. Co. v. Endom, 859. Stndley v. Ballard, 664. V. Earth, 552.- Studwel! «. Shapter, 251. Stukeley t. Butler, 803, 811, 812. Stull's Estate, In re, 502. Stumpf V. Sargent, 148. V. Stumpf, 151. Stumpf's Appeal, 753, 834. Stures V. Crowninshleld, 6. Sturge V. Starr, 169. Sturlyn v. Albany, 628. Sturm V. Boker, 850. Suber v. Pullin, 61, 62, 580, 892, 899. Suffell V. Bank of England, 843. Suggett's Adm'r v. Cason's Adm'r, 569, 616. Sullivan v. Eddy, 525. V. Flynn, 295, 303. T. Horgan, 468. T. Jackson BIdg. & Loan Ass'n, 376. V. McMillan, 930. T. Maine Cent. E. Co., 356. V. O'Neal, 614. V. Rudisill, 844. V. Sullivan, 618, 657, 665. Suman v. Sprlngate, 617. Summerall v. Thomas, 571. Summers v. Hibbard, 802, 810, 826. V. Hutson, 736. V. Vaughan, 647. V. Wilson, 277. Sumner v. Summers, 415, 468. Sun Mut. Ins. Co. v. Ocean Ins. Co., 137. Supreme Assembly of Royal Soc. of Goodfellows v. Campbell, 687. Surcome v. Pinniger, 614. Surles V. Pipkin, 298, 299. Sussex Peerage Case, 339. Sutcliffe V. Atlantic Mills, 572. Sutherland v. Parkins, 73. Sutphen v. Sutphen, 569. Sutter V. Raeder, 77. Sutton V. Beckwith, 801. T. Grey, 556. V. Hayden, 613. V. Head, 451, 455, 940. V. Warren, 497. Suydam v. Jones, 745. SwalEord v. Ferguson, 229. Swain v. Burnette, 589. V. Schieffelin, 933. V. Seamens, 861, 862. Swall V. Clarke, 743. Swaji V. Chorpenning, 403. V. Manchester & L. R., 76. V. Nesmith, 553. V. Scott, 476. Swann v. Swann, 349, 350, 352, 498, 502. Swanzey v. Moore, 33, 542, 621, 623. Swasey v. Vanderheyden's Adm'r, 247. Swash V. Sharpstein, 566. Swayne v. Riddle, 377. Sweany v. Hunter, 663. Swearingen v. Robertson, 949. Sweatland v. Illinois & M. Telegraph Co., 438. Sweatman v. Parker, 555. Sweeney v. McLeod, 405. V. Owsley, 576. V. Pratt, 871. V. Tbomason, 815. Sweeny v. Bienville Water Supply Co., 108. TABLE OF CASES. 1035 [EBFBKENCE8 ABE TO PAGES.] Sweetland v. Barrett, 609. T. Buell, 625. Sweigart v. Berk, 761. Swift V. Bennett, 241, 245. V. Crocker, 647. T. Pierce, 551. T. Swift, 33, 623. V. Tyson, 743. Swift's Iron & Steel Works t. Dewey, 789. Swift' Co. V. United States, 666. Swlney v. Swlney, 524. Swlnney v. Edwards, 481. Swlnt V. Carr, 937. Swire V. Francis, 170. Swltzer T. Skiles, 392. y. Swltzer, 433. Sykes t. Beadon, 335. V. Chadwlck, 693. Synge v. Synge, 898. T. Taft T. Montague, 699. V. Pike, 270, 272. V. Sergeant, 263. Tagart T. State of Indiana, 220. Tague T. Hayward, 623. Tallby v. Official Eecelver, 730. Tait T. New York Life Ins. Co., 325. Talte T. Gosling, 748. Talbot V. Cook, 786. Talbott V. Barber, 638. T. Manard, 533. V. Stemmons' Ex'r, 676. Talbott's Devisees \. Hooser, 695. Talcott V. Henderson, 134. Talley v. Robinson's Assignee, 188. Tallman y. Franklin, 596. y. Hoey, 734. Talmadge v. Wallis, 702. Talmage v. Bierhause, 65. Tamplln y. James, 110, 116. Tandy y. Masterson's Adm'r, 227. Tanner v. Merrill, 686, 943. Tapley y. McGee, 231. y. Tapley, 191. Tappan v. Brown, 395. Tappenden v. Kandall, 491. Tapscott y. Williams, 761. Tarleton y. Baker, 365, 492, 502. V. Southern Bank, 322. Tarrabocbia y. Hickie, 127, 911. Tasker v. Bartlett, 520, 521. Tate V. Citizens' Mut. Fire Ins. Co., 762. y. Commercial Bldg. Ass'n, 367. V. Pensacola, Gulf, Land & Devel- opment Co., 884, 936. y. Tate, 529. Tate's Adm'r v. Jones' Ex'r, 611. Tatum y. Kelley, 461. Taussig y. Reld, 818. Tayloe v. Merchants' Fire Ins. Co., 68, 79, 867. y. Sandlford, 871. Taylor v. Allen, 596. y. Ashton, 158. v. Bemlss, 329, 429. v. Blanchard, 455, 456. Taylor v. Bowers, 491, 492. V. Brewer, 89, 643. y. Briggs, 814. y. Brooklyn Elevated Ry. Co., 877. V. Caldwell, 830. V. Carpenter, 319. V. Cedar Rapids & St. P. B. Co., 399. V. Chester, 490, 494. v. Chichester & M. By. Co., 345. v; Corporation of St. Helen's, 813, 814, 817. V. Cottrell, 191. V. Drake, 544. y. Dudley, 292. y. Ford, 147, v. Galland, 729. v. Guest, 168. v. Hall, 219. T. Hiestand, 380. V. Hilary, 853. V. Hinton, 428. y. Hutchison, 324. v. Jacksbn, 906. v. Jaques, 190, 415. y. Jones, 48. v. Laird, 43, 59. y. Leith, 162. V. Lendey, 492. v. Liverpool & G. W. Steam Co., 811. V. Longworth, 884, 885. v. Meek, 545, 856. y. Merchants' Fire Ins. Co., 52. V. Pratt, 594. v. Preston. 549. y. Reger, 769. y. Rennle, 49. V. Ross, 594. V. Seaboard & R. R. Co., 851, 853. 862. y. Smetten, 374. V. Smith, 584. V. Sutton, 811. V. Taintor, 901. V. Taylor, 83, 721. y. Weeks, 677. v. Young, 354. Teachout V. Van Hoesen, 147, 157. Tedder v. Odom, 346, 347, 460. Teeters v. Lamborn, 549. Telford v. Garrels, 382. TSmperton v. Russell, 581,' 611, 711. Tenant v. Elliott, 479. v. Tenant, 500. Tennessee Coal, Iron & R. Co. v. Wheel- er, 524. Tenney v. Bast Warren Lumber Co.. 522. V. Foote, 468. V. Prince, 545, 628. Terrell v. Bennet, 157. Terrill y. Auchauer, 31. Territory v. King, 694. Terrltt v. Bartlett, 339, 349, 461. Terry v. Duntze, 903. v. Bissell, 108, 111. V. McCllntock, 278. v. Robbins, 309. Teutonla Ins. Co. v. Boylston Mut. Ins. Co., 816. Tewksbnry y. Howard, 592. 1036 TABLE OF CASES. [BEI^BENCES ARE TO FAOEB.] Texas & St. L. Ry. Co. v. Rust, 399, 665, Thacker v. Hardy, 371, 478. Thackrah v. Haas, 306. Thallhimer v. BrinckerhofE, 421-424. 732. Thatcher t. Wardens & Vestrymen of St. Andrew's Church, 523, 524, 528. Thayer t. Daniels, 734, 736. V. Elliott, 500. V. Lapham, 798. T. Luce, 589, 604. y. Mann, 34. T. Mowry, 658. V. Rock, 567. V. Viles, 535, 608. V. Wilmington Star Miu. Co., 885. V. Young, 692. Thedford v. Reade, 299. Thetford v. Hubbard, 400. Thiedemann v. Goldschmidt, 743. Thiis V. Byers, 827. Thing V. Libbey, 262, 280. Third Nat. Bank y. Harrison, 368. Tholen v. Duffy, 381. Thomas v. Armstrong, 570. T. Barnes, 123, 668, 785. V. Brown, 622. T. Cadwallader, 906. T. Caulkett, 396. V. Coultas, 174, 178. V. Croft, 545. T. Cronise, 365, 463. T. Greenwood, 77. T. Hammond, 593, 594. V. Hayward, 747. T. McCann, 159. v. Miles' Adm'r, 454, 456, 471. V. Miller, 382. V. People, 374. V. Reg., 218. V. Richmond, 495. V. Eock Island Gold & Silver Min Co., 732. v. Thomas, 635, 640. v. Thomasvilie Shooting Club, 88. V. West Jersey R. Co., 225, 398. V. Winchester, 164. Thomas' Bx'x v. Harrodsburg, 599. Thomason v. Dill, 680. Thompson v. Alger, 587. y. Blanchard, 595. V. Bertram, 715. V. Conover, 907, 908. V. Chambers, 160. T. Cummings, 491. V. Dearborn, 529. V. Dorsey, 632. T. Dulles, 882. V. Easton, 524. V. Gillespy, 919. V. Gould, 108, 836. V. Gray, 679. V. Hall, 594. V. Hamilton, 253. y. James, 73. V. Jones, 384. T. Lay, 258. y. McClenachan, 802. V. Massie, 839. V. Nesbit, 384. Thompson v. New England Mortgage Security Co., 784. r. Niggley, 197. T. Parker, 716. T. Peck, 173, 178, 180, 186. V. Phoenix Ins. Co., 150. V. Poor, 852, 861. T. Reynolds. 428. V. Robinson, 671. V. Rose, 143. 182, 747. T. Stevens, 642. V. Strickland, 277. V. Taylor, 503. V. Tod, 613. V. Warren, 426, 699. V. Wharton, 407. V. Wheeler & Wilson Mfg. Co., 697. V. Whitman, 418. Thomson v. Gortner, 88. V. Kyle, 922. V. James, 73. V. Leech, 295. Thormaehlen v. Kaeppel, 277, 852. Thorn v. City Rice Mills, 252, 277, 888. V. Knapp, 934. V. Thorn, 531. Thornburg v. Masten, 593. Thorndike v. Stone^ 378. Thorne v. Clark, 807. V. Deas, 629, 640. V. Travellers' Ins. Co., 348, 486. V. Yontz, 404, 480. Thornett v. Haines, 184. Thornhiil v. Neats, 858. v. O'Rear, 489, 490. Thornton v. Appleton, 292. V. Dean, 500. V. Guice, 637. V. Kelly, 112. V. Kempster, 591. V. McCormick, 947. V. Sheffield & B. R. Co., 810, 883. V. Village of Sturgis, 43, 59. Thoroughgood v. Walker, 926. Thoroughgood's Case, 99, 101. Thorp V. Thorp, 497, 808, 816, 904, 996. Thorp's Case, 903. Thorpe v. Jackson, 761. V. Ricks, 376. V. Thorpe, 808, 816. Thouvenln v. Lea, 570. Thrall v. Newell, 90, 791. V. Wright, 238, 242. Three Towns Banking Co. v. Maddever, 948. Throughton's Adm'rs v. Hill's Ex'rs, 312. Thum y. Tloczynski, 940, 941. Thurber v. Jewett, 874. Thurneli v. Balbirnie, 915. Thurston v. Arnold, 883-885, 935. V. Blanchard. 186. v. Ludwig, 862. V. Perclval, 478. y. Perry, 60. V. Thornton, 37, 38, 83. Thweatt v. McLeod, 175. Thwing V. Hall & Ducey Lumber Co., 109 122. Tibbet's v. Ayer, 698. V. Gerrish, 258, 259, 654. Tibbetts V. Flanders, 816. TABLE OF CASES. 1037 [eefeeences aee to pages.] Tice V. Freeman, 596, 598, 604. Tichener, In re, 735. Tlclinor v. Hart, 44. Tidey v. Mollett, 905. Tiernan v. Roland, 884. Tlfft V. Tifft, 248. Tighe T. Morrison, 557. TlUcock V. Webb, 355. Tilley v. American Bldg. & Loan Ass'n, 376. V. Damon, 190. Tillman v. Fuller, 569. Tillotson V. Grapes, 698. V. Prichard, 750. Tillou V. Brltton, 874. Tilman v. Searcy, 422. Timothy v. Wright, 407. Tlndal v. Touchberry, 557. Tindle v. Birkett, 165. Tingle v. Fisher, 736. Tinkler v. Swaynie, 543. Tinn v. Hoffmann, 49, 51. Tippecanoe Co. Com'rs v. Reynolds, 135. Tippets T. Heane, 951. Tipton V. Feitner, 910. Tisdale v. Harris, 581. Tisdale's Case, 675. Tisher v. Beckwith, 523. Titcomb y. Wood, 181. Titus V. Scantling, 499. Tobey v. Br.stol Co., 419. V. Moore, 793. V. Robinson, 489. V. Wood, 255, 259, 262. Tobias v. Rogers, 772. Todd V Myres, 329. V. Rafferty's Adm'rs, 485. T. Stokes, 750. V. Summers, 904. V. Weber, 76, 719. V. Whitney, 700. Tode T. Gross. 457. 927, 928. Toland v. Corey, 118. Toledo, A. A. & N. M. Ry. Co. v. Penn sylyania Co., 710. Toledo, W. & W. By. Co. v. Chew, 185. Tolhurst V. Powers, 663, 677. Tolman v. Johnson, 461. V. Ward, 636. Tolroie v. Dean, 667. Tolson's Adm'r v. Garner, 292. Tom V. Goodrich, 838. Tomblin v. Callen, 371. Tome T. Dubois, 576. Tomlinson v. Gill. 547. Tompkins v. Batie, 876. T. Dudley, 828, 836. Toombs V. Consolidated Poe Min. Co., 912 Topliff V. McKendree, 86. Topp V. White, 699. Topping V. Swords, iB5. Torinus v. Buckham, 701, 702. Torkelson v. Jorgenson, 127. Tornado, The, 830. Torrence v. Shcdd, 430. Totten V. United States. 784. Tottenham v. Green, 200. Touohe V Metropolitan Ry. Warehous- ing Co., 716. Tourtelot v. Whitbed, 489, 498. Touro V. Cassin, 225. Tourville v. Wabasha R. Co., 383. Towle T. Carmelo Land & Coal Co., 597. V. Dresser, 232, 254, 276. V. Larrabee, 351. T. Leavitt, 391. V. Wadsworth, 566. Town of Barkhamstead v. Case, 698. Town of Hamden v. Merwin, 222, 223. Town of New Athens v. Thomas, 89. Town of Royaltou v. Royalton & W. Turnpike Co., 791, 792. Town of Sharon v. Gager, 189. Town of Sheldon v. Fairfax, 223. Town of Solon t. Williamsburgh Sav. Bank, 519, 520. Town of Stonington v. Powers, 395. Town of Thetford v. Hubbard, 388. Towne v. Wiley, 249. Townsend v. Cowles, 151. V. Derby, 631. V. Hunt, 647. V. Townsend, 33, 583, 607, 608. V. Tyndale, 590. V. Wells, 888-890. Townsley v. Sumrall, 554. Townson v. Tickell, 39. Towsley v. Moore, 620. Toyle V. Dresser, 280. Tozer v. Saturlee, 290, 296. Trabue t. Dwelling House Ins. Co., 847. Tracy y. Albany Exchange Co., 904. V. Keith, 309. T. Talmage, 460, 461, 492, 494, 495. Trader v. Jarvis, 235, 948. V. Lowe, 262. Traders' Bank v. Alsop, 481. Traders' Nat. Bank v. Parker, 679, 680. Tradesmen's Bank v. Curtis, 680. Traill v. Baring, 129, 146. Train v. Gold, 75, 692. Trainer v. Trumbull, 237, 243, 244, 246, 247. Trambly v. Rieard, 99, 101. Trammell v. Traimmell, 564. V. Vaughan, 934. Trasher v. Kverbart, 520, 521. TTrask t. Graham, 745. Traver t. Stevens, 700. V. , 638. Travis v. DufEau, 628. Treadwell v. Herndon, 590. Treasurers v. Cleary, 218. Treat v. Hiles, 567, 571. Tredway v. Riley, 498. Tremeere v. Morison, 832. Trenton Banking Co. v. Duncan, 130. Trenton Mut. Life & Fire Ins. Co. v. .Johnson, 366. Trenton Passenger Ry. Co. v. Guaran- tors' Liability Ind. Co., 398. Trenton Potteries Co. v. Ollphant, 456, 471, 766. Trevor v. Wood, 51, 52, 600. 1'rewinian v. Howell, 644. Trigg V. Read. 107, 119, 120, 122. Trimble v. Reid, 129, 162. v. Strother, 716. Trlmbo v. Trimbo. 286, 291. Trion v. Mills, 609.- Tripp V. Brownell, 732. 1038 TABLE OF CASES. [BEFEBENCES ABE TO PAGES.] Trist T. Child, 405, 732. Trivlnger v. McBurney, 648. Troewert v. Decker, 352, 355, 359, 490. Trott V. City Ins. Co., 420. Trotter v. Ueckscher, 908. Trounstine v. Sellers, 47, 49, 51, 67. Troutman t. Lucas, 944. Trovinger v. McBurney, 462. Trowbridge v. Holcomb, 887. T. Wetherbee, 567. Trower v. Elder, 929. Troy V. Bland, 686. Troy & G. R. Co. v. Com., 218. True V. International Telegraph Co., 933. Y. Banney, 294, 503. Truebfood v. Trueblood, 231. Truby v. Mosgrove, 378. Trueman y. Fenton, 655. V. Loder, 592. TrulBnger v. Kofoed, 873. Trundle's Adm'r t. Kiley, 395, 396. Trustees of Church in Pembroke Second Precinct? v. Stetson, 690. Trustees of Cincinnati Tp. v. Ogden, 223. Trustees of Columbia College v. Lynch, 751. T. Thatcher, 751. Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 569. Trustees of Hamilton College v. SteV- art, 690. Trustees of Maine Cent. Institute v. Haskell, 690. Trustees Methodist Church v. Garvey, 690. Trustees of Union College t. Wheeler, 737. Trustees of University v. McNair's Ex'rs, 83. Trustees Troy Conference Academy v. Nelson, 690. Tuck T. Downing, 148, 149, 155, 167. Tucker v. Aiken, 400. T. Bartle, 663. V. Billing, 908, 914. V. Field, 787. T. Lawrence, 65. V. Moreland, 234, 262, 264-266. V. Preston, 122. T. Eonk, 677. V. Tucker, 785. T. West, 350, 351, 357, 358, 478. V. White, 147, 157, 161, 163. Tucker's Lessee v. Moreland, 229, 269 Tuckerman v. Newhall, 760. Tufts V. Gold Min. Co., 601. v. Lawrence, 895. T. Plymouth Gold Min. Co., 589. Tugman v. National Steamship Co, 730. Tulk T. Moxhay, 751. Tnllett V. Armstrong, 315. Tully T. Howling, 918. Tumiltz V. Tumiltz, 60. Tupper T. Cadwell, 241, 245. Tnrle v. Sargent, 637, 639. Turlington t. Slaughter, 658. Tumbull V. Brock, 667, 671, 672. Turner v. Chrisman, 655. T. Gaither, 239, 258, 262. Turner v. Goldsmith, 827. V. Harvey, 132. V. Hubbell, 548. V. McFee, 651. T. Mason, 580. V. Moore, 913. V. Owen, 667. V. Eeynall, 347. V. Bogers, 700. V. Rusk, 291, 292, 302. V. Trisby, 246. V. Webster, 122. Tuscaloosa Ice Mfg. Co. v. WlUiama, 445, 454. Tuttle V. Armstead, 550. V. Holland, 461. T. Turner, 529. Tuxbury y. Miller, 393. Tweddle v. Atkinson, 719. Twenty-Third St. Baptist Church T. Cornell, 73, 691. Twopenny v. Young, 759. Tyler v. Carlisle, 459, 460, 491. V. Fleming, 255. T. Gallop's Estate, 227, 258, 259, 277. V. Moses, 177. V. Smith, 489. y. Trabue, 500. V. Waddingham, 357. V. Western Union Telegraph Co., 438. Tyler Cotton-Press Co. v. Cheyaller, 674. Tyson v. Doe, 909. V. Blckard, 376, 378. Udell V. Atherton, 145, 170. Uecker v. Koehn, 275. Ugerlcht v. State, 355, 357. Ulen V. Kittredge, 589. Unckles y. Hentz, 150, 157. Underbill y. Mobile Fire Department Ins. Co., 949. Underwood v. Barker, 454, 456. V. Hossack, 676. V. Scott, 347. V. Wolf, 883. Unexcelled Fire Works Co. v. Polites, 895. Unger y. Smith, 715. Ungericht v. State, 855, 357. Union Bank v. Clossey, 797. y. Jacobs, 224. Union Bank of Georgetown y. Geary, 120, 687. Union Bank of Louisiana v. Coster's Ex'rs, 47. Union Cent. Life Ins. Co. v. HHHard, 230, 380. v. Schidler, 183. Union Fraternal League v. Walton, 367. Union Hardware Co. v. Plume & Atwood Mfg. Co., 225. Union Ins. Co. v. American Fire Ins. Co., 788. y. Stoney, 136. Union Locomotive & Exp. Co. v. Brie Ry. Co., 503. TABLE OF CASES. 1C39 [BEFEBENCES ARE TO PAOEB.] Union Mut. Life Ins. Co. y. Kirchoff, 535. Union Nat. Bank t. Hunt, 156. T. Roberts, 845. Union Pac. Ry. Co. T. Barnes, 161. V. Durant, 719. Union Strawl)oard Co. T. Bonfleld, 453. Union Trust Co. T. Zynda, 676. United States v. , 803. T. Bainbridge, 234. V. Barker, 219, 322. V. Beban, 895, 900, 932. T. Benner, 218. T. Blakeney, 235. V. Bradiey, 467. V. Buford, 726. T. Central Pac. R. Co., 790. T. Chesapeake & O. Fuel Co., 442, V. Clarke, 218. T. Cumming, 219. T. Deyereux, 220. T. Great Falls Mfg. Co., 220. T. Grossmayer, 322. y. Holmes, 219. y. Huckabee, 196. y. Ingate, 220. y. January, 872. y. Lafontalne, 218. y. Lane's Adm'rs, 217. y. Maurice, 217. y. Peck, 787, 898. y. Tlngey, 217. y. Wallls, 374, 375. y. Workingmen's Amalgamated Council, 447, 448. United States Bank y. Waggener, 384. United States Tel. Co. y. Glldersleye, 438. Unity Joint-Stock Mut. Banking Ass'n, 251. University of Des Moines y. Livingston, 691. Up River Ice Co. y. Denier, 637, 730. Updike v. Titus, 647. y. Ten Broeck, 570, 571, 621. Upperton v. Nicholson, 883. Upton y. Englehart, 117, 156, 173. y. Moore, 735. y. O'Donahue, 379. y. Tribilcock, 100, 117, 150. Urban y. Grimes, 278. Urquhart v. Brayton, 713, 714. y. Macpherson, 175, 179. Usher y. McBrantney, 411. v. Liyermore, 886. Uaparleha v. Noble, 323. Vail y. Foster, 866. Vale V. Phoenix Ins. Co., 135. Valentine y. Foster, 644, 656, 672. v. Stewart, 413, 468. Vallance y. Blagden, 390. Vallandlngham v. Johnson, 265, 269. Vallett y. Parker, 481. Vaipey v. Rea, 302. Van Alstyne y. Van Slyck, 769. Van Atta v. McKinney's Ex'rs, 330. Van Bramer v. Cooper, 254. Van Buren y. Digges, 900. Vanbuskirk v. Hartford Fire Ins. Co., 736. Van Camp Packing Co. y. Hartman, 780, 815. Vance y. Davenport, 698. y. Funk, 520. V. Lowther, 841. V. Wells, 654. Van Clief v. Van Vechten, 879, 917. Vandail v. South San Francisco Dock Co., 224. Vanderbeck y. Vanderbeck, 854. Vanderbilt v. Schreyer, 663, 667. Van Deusen y. Sweet, 295, 296. Van Dyne v. Vreeland, 613. Van Epps y. Harrison, 702. V. Redfleld, 648. Van Hagen v. Van Rensselaer, 802. Van Horn y. Hann, 298. v. Eeenan, 290. Van Horn's Lessee v. Harrison, 780. Van Houten v. Morse, 131. Van Hoven v. Irish, 358. Van Eeuren v. Corkins, 735. Van Lew v. Parr, 702. Van Leyen v. Wreford, 758. Van Ness v. Pacard, 814. Vannoy v. Patton, 349. Vanover v. Thompson, 416, 418. Van Patton v. Reals, 298, 306, 307. Van Pelt v. Corwlne, 281. Van Scoter v. Lefferts, 724. Van Shaack v. Bobbins, 31. Vansittart v. Vansittart, 435. Van Slyke v. Broadway Ins. Co., 88. Vanuxem v. Burr, 946* Van Valkenburg v. Smith, 531. Van Vechten v. Smith, 148. Van Vleit y. Jones, 537, 837, 838. Van Voorhis v. Brintnail, 497. Van Winkle v. Wilkins, 883. Van Woert v. Albany & S. R. Co., 569. Van Wyck v. Brasher, 289. Varick v. Edwards, 781. Varney v. Conery, 669, 944. v. French, 352. Vamum v. Thruston, 818, 819. Vason V. Bell, 720. Vass V. Rlddick, 169. Vassar v. Camp, 52, 53. Vassault v. Edwards, 599. Vasse v. Smith, 248, 250. Vaughan v. Fowler, 844. V. Godman, 529. y. Hancock, 562. y. Marable, 422. V. Porter, 808. Vaughn v. Smith, 554. Vaught V. Rider, 460. Vawter v. Grilfln, 582. Veal V. Portson, 254. Veazie v. Williams, 171, 176. Vega Steamship Co. v. Consolidated El- evator Co., 947. Veiteh v. Russell, 329. Venable v. Brown, 622. Vent v. Osgood, 229, 259, 264, 280, 281. Vermont Loan & Trust Co. v. HolfmaA, 340, 341. Vernon v. Alsop, 782. V. Keys, 148, 149, 155. Veth V. Gierth, 937. 1040 TABLE OF CASES. [bbfebenobs abf. to pages.] Vlcary v. Moore, 510. Vickers v. Cowell, 764. Vickery v. Welch, 457. Vicksburg & M. K. Co. v. Eagsdale, 609. Victors T. Davies. 58. Vlditz T. O'Hagan, 255, 277. Vielie v. Osgood, 601. Vigers v. Pike, 175, 179. Vilas V. Downer, 329. Vilett V. Moler, 148. Vinal T. Continental Construction & Imp. Co., 117. V. Richardson, 545. Vincent v. Groom, 418. T. Rogers, 61, 62. Viney v. Bignold, 420. Vining v. Bricker, 339, 341. Vinsen t. Lockard, 251. Vinton v. Baldwin, 906. Violett V. Mangold,- 475. V. P.atton, 593, 594. Virden v. Murphey, 475, 482. Virginia Land Co. v. Haupt, 77, 135. Vischer v. Yates, 365, 492. Viser t. Bertrand, 433, 460, 655. V. Rice, 517. Vitty T. Eley, 81. Vogel V. Melms, 557. Vogelsang v. Null, 232. Vohue V. Pinkham, 281. Voltz T. Grummett, 885. Von Trotha v. Bamberger, 566. Von Winisch v. Klaus, 416. Voorhees v. Combs, 61, 667. Voorhles v. Voorhies, 265, 278. Vose T. Dolan, 517. Vought T. Williams, 914. Vreeland v. Vreeland, 529. Vrooman v. Turner, 714, 715. Vyse T. Wakefield, 888, 915. W. W. W. Kimball Co. t. Raw, 192. Wachsmuth v. Martini, 166. Wadd v. Hazelton, 720. Wade V. Kalbfleisch, 755. T. Pulsifer, 176. V. Simeon, 686. Waddell v. Blockey, 181. Wadlington v. Hill, 813. Wadsworth v. Henderson, 511. V. Sharpsteen, 290, 297. T. Wendell, 519. Wager v. Wagoner, 304, 307. Wagg's Ex'r v. Gibbons, 313. Waggoner v. Cox, 891, 928. Wahl V. Barnum, 572, 574, 611. Wailing v. Toll, 238, 243. Wain V. Warlters, 593, 594. Waiuwright v. Wilkinson, 232. Wait V. Brewster, 866. V. Maxwell, 295, 296. Waite V. Merrill, 488. Wake V. Harrop, 783, 787. Wakefield v. Greenhood, 555. Wakeham v. Barker. 039. Wakeman v. Dalley, 158. V. Wheeler & Wilson Mfg. Co., 932. Wald T. Pittsburg, C, C. & St. L. E. Co., 848. Walden v. Murdock, 576. V. Louisiana Ins. Co., 137. Waldron v. Evans, 400. T. Murphy, 874. Wales V. Lawrence, 758. V. Stout, 547. Walet V. Haskins, 948. Walker v. Abt, 379. V. Armstrong, 789. V. Boynton, 802. V. Bradford Old Bank, 731. T. Brooks, 729. T. Brown, 62. V. Casgrain, 167. V. Chapman, 803. V. City of Springfield, 19. T. Cronin, 711. V, Davis, 249. V. Denison, 65. V. Detroit Transit Ry. Co., 743. V. Douglas, 798. V. Duncan, 185. V. Ebert, 99. V. Gregory, 389, 486. V. Ilerring, 602. V. Jeffries, 459. V. Johnson, 573, 569. V. McCulloch, 672, 760. V. Mauro, 729, 733. V. Nightingale, 391. V. Norton, 551. V. Nussey, 587. V. Ocean Bank, 743. V. Perkins' Adm'r, 390. V. Perryman, 423. V. Shackelford, 542. V. Supple, 581. V. Tucker, 830. V. Walker's Ex'rs, 38, 433. V. Wilmington, C. & A. R. Co., 571. V. Windsor Nat. Bank, 758. Walker's Ex'rs v. United States, 409. Walkner v. Brown, 61. Wall V. Mines, 279. V. Scales, 637. V. Schneider, 369-371, 458. V. Wall, 524, 528. Wall's Appeal, 642. Wallace v. Carpenter, 428, 567. V. Prey, 296. V. Harris, 199. T. Lark, 460. V. Latham, 278. V. Lewis, 231, 265. V. Long, 566. V. Morss, 249, 250. V. Pereles, 749. V. Rapplcye, 389, 483. V. Townsend, 73. V. Wortham, 551. Wallace's Lessee v. Lewis, 278, 280. V. Miner, 535. Waller v. Lacy, 870. V. Long, 929. V. Parker, 196. Walling V. Kiunard, 936. Wallis V. Carnenter. 927. V. Day, 456, 470. V. Loiibat, 329. V. Scott, 015. liJ TABLE OF CASES. 1041 [references are to pages.] Wallis V. Smith, 814, 930. V. Wallis, 780. Walls V. Bailey, 789. Walmesley v. Cooper, 943. Walmsley t. Lindenbergcr, 230. Walsh V. Barton, 591. V. Fisher, 641, 928. V. Morse, 160. V. Powers, 260. V. St. Louis Exposition & M. H. Ass'n, 75. V. Trevaulon, 809. V. Young, 270. Walsingham s Case, 218. Walstrom v. Hopkins, 860. Walter v. Victor G. Bloede Co. of Bal- timore City, 543. Walter A. Wood Reaping & Mowing Mach. Co. V. Smith, 89, 785, 880. Walters v. Palmer, 182. Walton V. Burton, 525. v. Horkan, 731, 733, 734. V. Mandeville, 537. V. Mascall, 873. Walton Guano Co. v. Copelan, 101, 378. Wambole v. Foote, 229, 231. Wando Phosphate Co. v. Gibbon, 895. Wann v. Kelly, 485. Waples V. Hastings, 231. Ward V. Allen, 417. T. Anderson, 260. V. Dulaney, 294. V. Hobbs, 133, 144. V. Holiins, 641. V. Jack, 951. V. Johnson, 758, 767. V. Laverty, 278. T. Lloyd, 416. V. Matthews, 572. V. Monaghan, 928. V. Morrison, 735, 736. V. Powell, 56. V. Smith, 325. V. Steamboat "Little Bed," 232, 254. V. Vosburgh, 499. V. Whitney, 802. Warde v. Warde, 816. Warden v. Fosdick, 184. Warden t. Adams, 561. Warder, Bushnell & Glessner Co. v. Willyard, 839. Ware v. Allen, 550. V. Cartledge, 231. V. Chappell, 904. V. Curry, 476, 478, 657. V. Hylton, 325, 813. V. Morgan, 687. Ware's Adm'r v. Russell, 424. Wareham Bank v. Burt, 826, 829. Warfield v. Booth, 452, 455, 785. Warn v. Brown, 813. Warner t. Benjamin, 147. V. Campbell, 670. V. Hale, 574. T. Martin, 65. v. Texas & P. Ry. Co., 573, 574, 610. V. Willington, 57. V. Wilson, 899. Warnick v. Grosholz, 553. Warnock v. Campbell, 289. V. Davis, 367, 729. V. Warren v. Batchelder, 721. V. Bean, 883. V. Caatello, 936, 938. V. Chapman, 469. V. Doolittle, 147. V. Hodge, 672. V. Lynch, 520. V. Mains, 875. v. Manufacturers' Ins. Co., 340. V. Merrlfield, 796. V. Saxby, 345. v. Smith, 555. V. Whitney, 636, 656. V. Williamson, 687. Warrington v. Pollard, 877. Warwick v. Bruce, 232, 233, 241. V. Cooper, 233. Washabaugh v. Stau(C6r, 855. Washaw v. Gimble, 435. Washband v. Washbaud, 660. Washburn v. Dosch, 452, 456, 571, 573. V. Fletcher, 52. Washington, A. & G. Steam Packet Co. V. Sickles, 573. Washington Bank v. Triplett, 814. Washington Co. Mut. Ins. Co. v. Has- tings, 348. Washington Ice Co. v. Webster, 597. Washington Inv. Ass'n v. Stanley, 380, 385, 502. Washington Mills Emery Mfg. Co. t. Weymouth & B. Mut. Fire Ins. Co., 137. Washington Natural Gas Co. v. John- son, 745, 746, 870. Washington Sav. Bank v. Ecky, 842. Washington University v. Finch, 324. Washington & W. B^nk v. Farmers' Bank, 628. Wason V. Bowe, 778. V. Wareing, 119. Wassermann v. Sloss, 491. Wassum v. Feeney, 234. Water Com'rs of Jersey City v. Brown, 87. Waterbury v. Andrews, 164. Waterhouse v. Skinner, 913. Waterman v. Andrews, 804, 817. V. Meigs, 577, 580. Waters v. Barral's Heirs, 285. V. Bean, 654. V. Mattingley, 133. V. Thanet, 949. V. Tompkins, 951. V. Van Winkle, 186. Waters' Representatives v. Riley's Adm'r, 761. Watkins v. Baird, 191. V. Fames, 690. V. Halstead, 654. V. Hodges, 61. V. Nash, 527. V. Bymill, 45. Watrous' Heirs v. McKie, 788. Watson V. Billings, 265. V. Blaine, 749, 799. V. Boylston, 810. V. Brightwell, 567. T. Brown, 167. V. Crandall, 169. 1042 TABLE OF CASES. [eepeeences aee to pages.] Watson V. Cross, 239, 241. V. Dunlap, 647, 654. V. Earl of Charlemont, 167. V. i'letcher, 485. V. Turner, 650. T. Erb, 610, 611. V. Hillman, 529. V. Jacobs, 555. T. Jones, 160. V. Mahan, 610. T. Murray, 485. V. Spratley, 581. V. Walker, 888. Watson Coal & Miu. Co. v. Casteel, 175, 179. Watt V. Wisconsin Cranberry Co., 598, 604. Watte V. Wickersham, 368, 372. Watters v. McGuigan, 560, 790. Watts T. Ainswo'rth, 604. V. Camors, 926. , T. Frenche, 671. V. Friend, 581. V. Van Ness, 351. , "W'augh V. Beck, 459, 460, 462.^ T. Cope, 872. V. Morris, 463, 465. ■Waul T. Klrkman, 599. "Way V. Hearn, 166. V. Langley, 393. V. Rytlier, 157. T. Sperry, 655. Wayland I'niversity v. Boorman, 224. Wayman v. Cochrane, 945. V. Taylor, 534. Waymell y. Reed, 341, 502. Waymire v. Jetmore, 294. Wayne v. Steamboat General Pike, 789. Weakly v. Hall, 429. Wear v. Jacksonville & S. R. Co., 888. Wear-Boogber Ury-Goods Co. v. Crews, 182. Weatberford. M. «'. & N. W. R. Co. v. Wood, 571. Weaver v. Burr, 72. V. Jones, 231, 272. ■V. Nugent, 877. V. Waterman, 393. V. Whitney, 395. V. Wood, 89. Webb V. Armstrong, 430. V. City of Alexandria, 118. V. Baltimore & E. S. E. Co., 682. v. Hughes, 883. V. Plummer, 815. V. Smith, 912. V. Steele, 728. V. Thompson, 796. Webber v. Barry, 710. V. Donnelly, 461. V. Howe, 345. Weber v. Christen, 525, 529. V. Clark, 906. V. Couch, 671. V. Marshall, 610. V. Rothchild, 801. V. Shay, 417. Webster v. Cecil, 122, 937. V. Cobb, 589. V. Bla, 15. V. Gray, 611. V. I.e Compte, 655. Webster v. Munger, 503. V. Nichols, 745. V. Woodford, 292. Weed V. Beebe, 275. V. Burt, 851. V. Jewett, 733. Weed Sewing Mach. Co. v. Maxwell, 309. Week V. Tibold, 83. Weekly v. Hall, 426. Weeks v. Crie, 577, 907, 909. T. Hill, 432, 434. V. Lippencott, 411. V. Little, 900. V. Maillardet, 517, 801. V. Martin, 561. Weguer v. Bieriug, 417. Wehrli v. Rehwoldt, 855, 906. Wehrum v. Kuhn, 686, 687. Welden v. Woodruff, 66. Weidler v. Kauffman, 726. Weidner v. Phillips, 149. Weir V. Bell, 170. V. Hudnut, 586. Weis V. Devlin. 836. Weiseger v. Wheeler, 779. Weisser v. Maitlaud, 921. Welborn v. Norwood, 417. Welch V. Bunce, 276. V. Mandeville, 727. V. Marvin, 555. V. Sackett, 528. V. Welch, 273. V. Whelpley, 614. Weld V. Lancaster, 403. V. Nichols, 751. Weller v. Bartlett, 128. Wellington v. Downer Kerosene Oil Co . 164. V. Kelly, 413, 426. Wells V. Alexandre, 683. V. Caiman, 831, 836. V. Carr, 699. V. Caywood, 309. V. Foster, 403. V. Houston, 174, 289. V. Kingston-upon-Hull, 222, 564. V. McGeoch, 157. V. Monihan, 617. V. People, 344, 347. V. Sexias, 278. V. Stout, 433. V. Thorman, 316. V. Tregusau, 804. V. Sutton, 417, 390. V. Waterhouse, 168. V. Williams, 323. V. Wells, 228. Wells, Fargo & Co. v. Pacific Ins. Co., 676. 816. Welsh V. Huckestein, 789. V. Morris, 941. Wemple v. Knopf, 599. Wendlinger v. Smith, 527. Wentworth v. Dav. 76. V. Wentworth, 697. Werckman v. Werckinan, 327. Werner v. Humphreys, 73. Werner's Appeal, 237, 239. Wertz V. Western Union Telegraph Co., 439. Wesleyan Seminary v. Fisher, 701. TABLE OF CASES. 1043 [BEFEBENOES ABE TO FA6E8.J Wesner v. Stein, 657. Wessell V. Glenn, 844. West V. Blakeway, 853. T. Camden, 401. V. Equitable Mortgage Co., 382, 383. V. Graff, 186. V. Gregg's Adm'r, 241. V. Holmes, 365, 491, 493. v. Moore, 250. V. O'Hara, 551. T. Penney, 229, 261, 279. V. Baymond, 425. V. Western Union Tel. Co., 713. V. Wright, 160. West Branch Bank v. Moorehead, 871. West Philadelphia Nat. Bank v. Field, 865. West Virginia Tranap. Co. v. Ohio Klver Pipe Line Co., 455, 751. Westbury v. Aberdein, 154. Westchester Fire ins. Co. v. Earle, 862. Westerfeld v. New York Life Ins. Co., 184. Western Bank v. Addie, 162, 179, 180. Western Maryland E. Co. v. Franklin Bank, 170. Western Paper Co. v. Comstock, 415. Western Union Tel. Co. v. American Union Tel. Co., 443, 455. T. Atlantic & P. Tel. Co., 448. V. Baltimore & O. Tel. Co., 448. V. Blanchard, 438. T. Burlington & S. W. Ey. Co., 443, 470. V. Carew, 438, 717. V. Chamblee, 369, 438. V. Chicago & P. E. Co., 443, 601, 603. V. Crall, 438. V. Fenton, 717. V. Griswold, 438. V. Linn, 438. V. Semmes, 899. V. Shotter, 44. V. Steyenson, 438. V. Tyler, 438. T. Union Pac. By. Co., 398. T. Wilson, 357. V. Yopst, 356. Western Wagon Co. \. West, 730. Western Wooden-Ware Ass'n v. Starkey, 454. Western & A. E. Co. t. Bishop, 436. V. Exposition Cotton Mills, 499. Westervelt v. Baker, 316. Westlake v. Adams, 692. V. City of St. Louis, 666. Westman v. Krumweide, 527, 784. Westmeath v. Westmeath, 433. Weston V. Hodgkins, 951. Weston Paper Co. v. Comstock, 415. Wetherell v. Jones, 465. v. Langston, 762. Wetmore v. Brien, 377, 381. Wettenhall v. Wood, 473, 490. Wetter v. Hardesty, 377. V. Kiley, 737. Wetzell T. Bussard, 950. Whaley v. Hinchman, 600. Whallon v. Kauffman, 807. Wharton v. Anderson, 671. r. Mackenzie, 239, 244, 245. Wharton v. O'Hara, 703. V. Stoutenburgh, 87, 604. V. Walker, 859. T. Winch, 896. Wheadon v. Olds, 115, 117. Wheat V. Cross, 68, 698. V. Eice, 714. Wheatley v. Low, 630. Wheaton v. Ansiey, 416. V. East, 229, 260, 278, 279. V. Wheaton, 118. Wheeden v. Fiske, 855. Wheeler y. Garcia, 922. T. Hall, 56. V. Hawkins, 339. V. Knaggs, 876. T. McNeil, 173, 179. T. Marchbanks, 377. V. New Brunswick E. Co., 853. V. Newton, 515. V. Founds, 426. V. Eeynolds, 615. V. Eussell, 349. V. Spencer, 365, 492. T. Wheeler, 671. - Wheeler & Wilson Mfg. Co. v. Long, 100. Wheelton v. Hardisty, 138, 169. Whelau v. Ansonia Clock Co., 836. Wheldeu v. Chappel, 355. Whelpdale's Case, 758. Whereatt v. Bills, 848. Whipple V. Barnes, 34. V. Parker, 573, 619. Whitaker v. Miller, 517. T. Whitaker, 644. Whitbeck v. Van Ness, 868. T. Whitbeck, 608. Whitby V. Whitby, 593. Whitcomb v. Denio, 173, 177, 181. V. Gllman, 356. V. Hardy, 179, 301. V. Joslyn, 251, 273. White V. Allen, 834. V. Barber, 370, 490. V. Baxter, 638. V. Beeton, 910. V. Bigelow, 558. V. Bluett, 636. T. Breen, 604. T. Buss, 343, 460. V. Core, 596. V. Corlies, 47, 57. V. Cox, 290. V. Day, 906. V. Drew, 636. T. Dwyer, 383. v. Elgin Creamery Co., 56. V. Equitable Nuptial Benefit Union, 367, 431, 432, 463. T. Franklin Bank, 62, 491, 495. T. Garden, 181. V. Hart, 346. V. Hermann, 89. V. Holland, 572. V. Hoyt, 686. V. Hunter, 485, 489. V. Jones, 843. V. Kuntz, 393, 688. V. Lee, 693. V. Lunlng, 807. v. McLaren, 878. V. Middlesex E. Co., 419. 1044 TABLE OF CASES. [BEFEEENCES ABE TO PAGES.] White V. New Bedford Cotton-Waste Corp., 268. T. Eintoul, 556. V. San Eafael & S. Q. R. Co., 862 T. Sberman, 719. y. Solomonsky, 555. T. Smith, 567, 800, 816. V. Tyndall, 761, 769. T. Wieland, 6^1. V. Williams, 803. V. Wilson's Adm'rs, 460. T. Wright, 378. T. Yarborough, 460. White Star Line Steamboat Co. v. Mo- ragne, 526. White Water Valley Canal Co. v. Val- lette, 376, 378. White's Bank of Buffalo v. Mylea, 818. Whitehill v. Wilson, 510. Whitesell t. Heiney, 567. Whitesides t. Hunt, 368, 479. V. Taylor, 169. Whitfield V. Levy, 926, 927. V. Kiddle, 409. Whiting V. Daniel, 516. V. Heslep, 860. V. Hill, 166. V. Ohlert, 569. V. Price, 164, 183. V. Sullivan, 61. Whitlock V. Heard, 185. Whitman Agricultural Co. v. Hern brook, 57. Whitmarsh v. Hall, 276, 281. V. Walker, 562, 565. Whitney v. Allaire, 184. V. Boardman, 133. V. Dutch, 232, 258. V. Goin, 868. V. Kirtland, 430. V. Merchants' Union Exp. Co., 64, V. Richards, 148. V. Slayton, 452, 455. V. Snyder, 99. V. Spencer, 899. V. Swett, 565. Whitney Arms Co. v. Barlow, 225, 386. Whitsett V. Clayton, 669, 944. V. Pre-emption Presbyterian Church, 690. Whittaker, Ex parte, 134. V. Southwest Virginia Imp. Co., 177. Whittemore v. Gibbs, 582. V. Judd Linseed & Sperm Oil Co., 733, 760. V. Wentworth, 555. Whltten V. Fitzwater, 134. V. Whitten, 314. Whittier v. Dana, 862. Whittingham v. Hill, 239. Whittingham's Case, 254. Whlttseck V. Womack, 800, 803. Whitwell V. Emory, 511. Whltwood Chemical Co. v. Hardman, 941. Whywall v. Champion, 241. Wichita University v. Sehwelter, 801. Wlckes V. Swift Electric Light Co., 788. Wlckham v. Grant, 159. Wicks V. Mitchell, 316. V. Smith, 177, 180. Wldlman v. Brown, 667. Widoe V. Webb, 469. Wielxeler v. Milwaukee Mechanics' Mnt. Ins. Co., 570. Wieland v. Kobick, 251. Wiener v. Whipple, 602. Wler V. Batdorf, 603. v. Simmons, 791. WIgand V. Sichel, 185. , Wiggin V. Bush, 393. V. Goodwin, 861. V. Hodgdon, 656. V. Tudor, 763. Wiggins V. Keizer, 694. Wiggins Ferry Co. v. Chicago & A. R. Co., 452. V. Ohio & M. Ry. Co., 748, 806. Wigglesworth v. Dallison, 789. V. Steers, 288, 289, 302. Wight V. Kindskopf, 406, 415. Wightman v. Coates, 681. V. Wightman, 294. Wilbur V. Flood, 177. V. Stoepel, 401, 471, 794. V. Wilbur, 713, 719. Wilcox V. Arnold, 654. V. Cline, 79. V. Henry, 323, 325. V. Rowland, 192, 380, 381. V. Iowa Wesleyan University, 128, 159. V. Roath, 258. V. Wilcox, 60. Wilde V. Wilde, 433, 487. Wilder v. Aldrich, 310. Wildes V. Dudlow, 557. v. Fessenden, 860. Wildey v. Collier, 405, 406. V. Crane, 542. Wildrick v. Swain, 287. Wiles V. People's Gas Co., 38. Wiley V. Baumgardner, 454, 457, 471. V. Bradley, 619. V. Inhabitants of Athol, 923. V. Moor, 517. V. Robert, 598. Wilhelm v. Eaves, 929. V. Hardman, 246, 273, 274. Wilhtte V. Roberts, 429. Wllkerson v. Bishop, 190. V. Hood, 194, 196. Wilkes V. Cornelius, 60. Wilkes-Barre v. Rockafellow, 412. -Wilkie V. Womble, 620. Wilkins v. Toung, 783, 795. Wilkinson v. Buster, 234, 251. V. Byers, 685. V. Buster, 234. V. Cook, 699. V. Coverdale. 629. V. Flowers, 34. V. Gibson, 314. V. Heavenrich, 33, 599, 682. V. Johnson, 841. V. Loudonsack, 463, 464. V. Lindo, 763. V. Oliveira, 628. V. Root, 166. V. Sherman, 177. V. Stitt, 372. V. Tousley, 365, 493. V. Wilkinson, 783. Wilkinson's Adm'r v. Wilkinson, 58S. TABLE OF CASES. 1045 [eeferences are to pages.] WUks V. Smith, 906. WlUard v. Busshard, 555. V. Eastham, 316. T. Moulton, 803. V. Stone, 233. V. Worsham, 716. Wlllcox T. Jackson, 289. Willemin v. Dunn, 287. Willetts T. Sun Mut. Ins. Co., 683. WlUey V. Hall, 785. V. Hodge, 533. Willi V. Dryden, 745. William Bagley, The, 324. William Butcher Steel Works v. Atkin- son, 571, 619, 621. William Kogers Mfg. Co. T. Sogers, 942. Williams v. Bemis, 620, 621. V. Bayley, 415. T. Brown, 231, 259, 328. V. Bryan, 383. V. Carr, 458, 479, 499. V. Carrington, 689. V. Carwardine, 81. V. Bnglebrecht, 475. V. Forbes, 631, 644, 662. V. Fowie, 422. V. Glenton, 230, 882. V. Harrison, 230. T. Hathaway, 811, 837. T. Hays, 833. V. Hedley, 495. T. Helme, 738. V. Higgins, 527, V. Hugunin, 316. V. Inabnet, 288, 301. V. IngersoU, 737. V. Jensen, 692. V. Jones, 511. V. Jordan, 591. V. King, 316. V. Lake, 591. Y. Latham, 524. V. Long, 949. V. Mabee, 260. v. Maull, 314. V. Mitchell, 65. V. Mobile Sav. Bank, 322. V. Moor, 230, 252, 653. V. Morris, 267, 613, 615. V. Gates, 502. V. Phelps, 196. V. Pomeroy Coal Co., 949. T. Riehl, 758, 773. V. Robinson, 698. V. Rogers, 550. V. Sapleha, 295, 303, 307. V. Schatz, 522. T. Scott, 670. T. Silllman, 651. V. Smith, 528. V. Sorrell, 735. V. Spurr, 13J, 144. V. Stern, 853. V. United States, 636. V. United States Bank, 899, 922. V. Urmston, 816. V. Vance, 825. V. Wentworth, 298, 299. V. West Chicago St. E. Co., 43, 81. V. Williams, 741. v. Wood, 165. I Williams' Case, 167. Williamsou v. Baley, 459. T. Berry, 865. V. Brandenberg, 353. V. Chicago, K. I. & P. R. Co., 399. V. Clements, 635. T. Eastern Building & Loan Ass'n, 778, 795. T. Gihon, 482. V. Jones, 251. V. Losh, 661. V. McClure, 816. V. New Jersey Southern E. Co., 177, 182. V. Rainey, 169. T. Russell, 181, 182. V. Watts, 246. Williamsport & 10. 11. Co. v. Com., 218. Willie V. Green, 377. Williford v. Gadsden, 877. Willing V. Peters, 656. Willingham v. King, 326, 327. Willis V. Eyans, 253. V. Gammlll, 671. V. Grand Trunk Ey. Co., 437. T. Hoover, 493. V. Twambley, 230, 280, 737. Willison V. Berkley, 218. v. Patteson, 322. Willmering v. McGaughey, 789, 813, 814. Wllloughby V. Moulton, 176, 179. V. Wllloughby, 770. Wills T. Brown, 553. T. Evans, 253, 255. V. Ross, 596, 607, 679. T. Shinn, 544. V. Summers, 745. Willson V. City of Baltimore, 928, 930. V. Force, 185. Wilmington Transportation Co. T. O'Neil, 821, 829. Wilmington & \V. R. Co. v. King, 409. V, Kitchin, 840. Wilson V. Bevans, 549. V. Bigger, 288. V. Bozeman, 475. v. Branch, 278. V. Carrico, 795. V. City of Baltimore, 927. V. Conway Fire Ins. Co., 816. V. Coupland, 858. V. Darragh, 260. V. Edmonds, 647, 650. V. Ensworth, 389, 390. V. Gerhardt, 746. V. Guyton, 76. •» V. Hart, 751. V. Henderson, 842. V. Hentges, 549, 553. T. Hundley, 173, 176, 180, 184, 187. V. Jordan, 701. V. King, 327. T. McClure, 48. V. McMillan, 227. V. Martin, 572. V. Milligan, 358, 359. V. Minneapolis & N. W. K. Co., 44. V. Nichols, 156, 183. V. Oldham, 286, 287, 293. V. People, 848. V. Powers, 670. V. Ray, 495, 572, 573. 1046 TABLE OP CASES. [BEFEBENCES ABE TO FA6ES.] Wilson V. Roots, 801. V. Stratton, 461, 502. V. Strugnell, 489. V. Tucker, 802. T. Wallace, 761. T. White, 134. V. Wilson, 800. Wilson's Assignee v. Beam, 543. Wilson's Guardian v. Wilson, 251. Wilt T. Welsh, 249. Wimmer v. Flcklin, 609. Wlnans v. Glbbs & Starrett Mfg. Co., 639. Winberry v. Koonce, 733. Winchell v. Carey, 358. V. Noyes, 185. Winchester t. Howard, 101, 105. V. Newton, 909. V. Nutter, 365. Wfnchester & Lexington Turnpike Co. v. Wickliffie's Adm'r, 949. Wind V. Her, 502. Windell t. Hudson, 550. Winders t. Sperry, 639. Windham v. Doles, 637. Windhill Local Board of Health v. Vint, 416. Windland v. Deeds, 60. Windmuller t. Pope, 894, 895. Windsor v. McVeigh, 324. Winebrinner v. Welsiger, 389, 648. WInfleld V. Dodge, 358. Winfleld Nat. Bank v. Croco, 193. Winfrey v. Drake, 917. Wing V. Chase, 520, 531. T. Mill, 650. T. Peck, 531. Wlngate v. King, 176. Winn V. Thomas, 398. Winne v. Winne, 391, 935, 937. Winpenny v. French, 407. Winslow V. Central Iowa Ry. Co., 427. V. Patten, 817. V. Winslow, 15. Winston v. Young, 153. Wlnstoue v. Linn, 903. Winter v. Bandel, 155, 168. V. Hlte, 589. V. Kansas City Cable Ry. Co., 181. Winterbottom v. Wright, 165. Winters v. Cherry, 573. V. Elliott, 607. V. Hub Min. Co., 709. Wirebach's Ex'r v. First Nat. Bank of Easton, 307. Wisconsin Marine & Fire Ins. Co. Bank V. Wilkin, 806. Wise T. Foote, 199. V. Ray, 601. Wiser v. Lockwood's Estate, 271. Wislizenus v. O'lTallon, 655. Wisner v. Bardwell, 468. Wiswall V. McGowan, 882. Witbeck v. Waine, 838. Withers v. Ewing, 663. T. Reynolds, 909. V. Richardson, 569. Wlthnell T. Gratham, 795. Wittenberg v. MoUyneaux, 443, 453, 456. Wlttkowsky v. Baruch, 393. Wolcott V. Mount, 917, 932. Wolf V. Dietzsch, 274. Wolf V. Marsh, 898. Wolfe v. McClure, 781. V. Howes, 835. V. Scarborough, 779. Wolflf T. Bluhm, 192, 194. T. Campbell, 815. Wolford V. Cook, 951. V. Powers, 692, 693. Wolke T. Fleming, 549, 573, 574, 620. Wolverhampton & W. Ry. Co. v. London & N. W. Ry. Co., 939. Wolvertou v. Davis, 557. Womack v. Loran, 412. V. McQuarry, 831. V. Smith, 937. V. Womack, 657. Wonsettler v. Lee, 621. Wood V. Augustine, 34. V. Barker, 393. V. Bibblns, 802. V. Boynton, 111, 113. V. Callaghan, 53, 871. V. Chetwood, 523. V. City of New York, 738. V. Clark, 793. V. Corcoran, 227, 555. V. Davis, 591, 592, 595. V. Duncan, 492. V. Faut, 946. V. Fisk, 761. V. Hitchcock, 876. V. Jones, 613. V. Losey, 238. V. McCann, 405, 406. V. Moriarty, 551, 713, 714, 721. 785 V. Oxford, 752. V. Rldgeville College, 801. V. Roeder, 117, 150. V. Sheldon, 122. V. Steele, 843, 844. V. Warden, 314. V. Whitehead Bros. Co., 454. Woodberry v. Warner, 899, 900. Woodbury v. Fisher, 530. Woodcock V. McQueen, 491. V. R?ed, 311. Woodham v. Allen, 494. Woodland v. Newhall's Adm'r, 328, 712. Woodruff V. Berry, 403. v. Garner, 129. V. Hinman, 468. V. Morristown Savings Institution, 809. V. Saul, 161. V. Scalfe, 550. V. Semi-Tropic Land & Water Co., 885. V. Wentworth, 397, 401. Woodruff's Adm'r v. Berry, 392. Woods V. Armstrong, 340, 345. v. Ayres, 24, 25, 29. V. Hart, 89, 803. V. Miller, 815. V. Montevallo Coal & Transporta- tion Co., 845. V. North, 898. V. Rankin, 380. V. Schlater, 697. V. Wilder, 321, 322. Woods' Lessee v. Pindall. 289. Woodslde v. Lippold, 107. TABLE OF CASES. 1047 [befebbnces are to pages.] Woodstoct Iron Co. v. Riclimond & D. Extension Co., 391, 398. Woodward v. Barnes, 310. V. Bugsbee, 60. V. Campbell, 218. V. FelB, 703. r. Milea, 856. V. Washburn, 710. Woodworth y. Anderson, 844. V. Bennett, 479, 485. Wooliscroft V. Norton, 749. WooUums V. Horsley, 694. Woolner v. Hill, 897, 898, 922. Wooteu V. Miller, 500. T. Walters, 908. Worcester v. Eaton, 256. Word V. Vancej 250. Worden v. Sharp, 608. Work V. Cowhiek, 618. Worklngmen's Banking Co. y. Banten- berg, 343, 344, 484. Workman y. Campbell, 405. Works y. Perry, 454. Worley v. Sipe, 675. Worrall y. Munn, 515, 517, 518. Worsley y. Wood, 906, 912. Wortendyke v. Meehan, 475, 481. Worth V. Case, 692. Worthington, Ex parte, 298. Worthlngton, In re, 402. y. Charter Oak Life Ins. Co., 325. y. Hylyer, 803, 804. V. Worthington, 289. Worthy y. Jones, 571. Wray y. Chandler, 686. Wright y. Bartlett, 670. y. Brown, 143. y. Cartwright, 790. y. Crabbs, 443, 458. y. De Groff, 561. y. Elliott, 385. V. Fisher, 289. y. Graham, 321. y. Holbrook, 753. y. Hughes, 225. y. Irwin, 634. V. Leonard, 310. y. McLemore, 762. y. McPike, 99. y. Market Bank, 290, 291. y. Meek, 423. V. Remington, 192. y. Boss, 729. y. Kyder, 453. y. State Board of Liquidation, 219. y. Stayert, 562. V. Steele, 230. y. Terry, 714. y. Tinsley, 391. y. Post, 762. y. Pucket, 611, 612. y. Vanderplank, 174, 177. y. Waller, 289. y. Weeks, 510, 598. y. Wright, 291, 312, 613, 636. Wroth y. Johnson, 365. Wuester y. Folln, 529. Wulschner y. Ward, 862. Wunderle v. Wunderle, 319, 320. Wunderlin v. Cadogan, B17. Wyant v. Lesher, 483. Wyatt V. Larimer & Weld Irrigation Co., 790, 792, 795, 816. Wycherley y. Wycherley, 199. WyckofE y. Meyers, 914. Wyley v. Bull, 59. Wymau y. Goodrich, 553. V. Smith, 550. Wynn v. Shropshire Union Eys. & Canal Co., 346. Wynn's Adm'r y. Wood, 550. Xenos y. Wickham, 39, 67, 71, 514. Y. Yahne v. Cummings, 780. Yale y. Dederer, 317. V. Edgerton, 555. y. Flanders, 521. Tale Gas Stove Co. v. Wilcox, 476, 484. Yard y. Patton, 67. Yates y. Boen, 293. V. Donaldson, 759. y. Foot, 493, 765, 771. v. Robertson, 341, 347, 405. Yates' Adm'rs v. Hallingsworth, 656. Yauger y. Skinner, 296, 304, 305. Yazoo & M. V. R. Co. y. Millsaps, 848. Ybarra y. Lorenzana, 484. Yeach v. Thompson, 196. Yeamans v. James, 424. Yeates y. Williams, 339. Yeend y. Weeks, 661. Yellow-Stone Kit y. State, 374. Yerkes y. Richards, 938. Yerrington y. Greene, 834. Yingling y. Kohlhass, 742. Yniestra y. Tarleton, 950. Yonoski v. State, 357. York y. Merritt, 393, 486. Yorks y. Peck, 769, 770. Youn y. Lament, 304. Young, Ex parte, 368, 370. V. Arntze, 176. y. Austen, 609. y. Bell, 230. y. Cole, 917. y. Covell, 162. y. Dake, 569. y. French, 553. V. Herman, 59. y. Hill, 380, 381, 647. y. McKee, 275. y. Mitchell, 409. y. Muhling, 249. V. Paul, 309. y. Perkins, 657. y. Eaincock, 799. y. Steyens, 298, 304, 305. y. Wheeler, 567. y. Young, 153. Younge y. Guilbeau, 525. Yundt V. Roberts, 469. Yunker v. Marshall, 329. 1048 TABLE OF CASES. [bbpebencbs abb to pages.] Zabel V. Schroeder, 608. Zabrlskle v. Woodruff, 330. Zacharie v. Godfrey, 320. Zaleekl v. Clark, 89, 879. Zelgler v. Mize, 430. Zeltner y. Irwin, 86. Zlmmer v. New York Cent. & II. R. R. Co., 46. Zimmerman y. Morrow, 126. Zlmmler y. San Luis Water Co., 535. Zinc Carbonate Co. v. First Nat. Bank, 225. Zouch'y. Parsons, 31, 231, 232, 234, 276. Zuccarello y. Randolph, 191. Zuck y. Culp, 949. y. McClure, 896. INDEX. [BEPEEBNCBS AKE TO PAGES.] A. ABANDONMENT (see, also, "Desertion"), of child, as emancipation, 227. effect as to necessaries, 243. liability of parent, 24, 55. of contract, see "Breach of Contract"; "Rescission." of duty, by corporation, legality of contract promotive of, 398. of marital rights, by husband, effect on capacity of wife, 313. ABATEMENT, of action by war, 323. ABBREVIATIONS, parol evidence to explain, statute of frauds, 597. ABILITY (see "Inability"). ABJURATION OF REALM, by husband, effect on capacity of wife, 312. ABROGATION (see "Rescission"). ABSOLUTE PROMISES (see "Independent Promises"). ABSURDITY, of contract, construction against, 791, 814 note 124. of representation, right to rely on representation, fraud, IgB note 237. ABUSE. of authority, as undue influence, 198. of confidence, as undue influence, 198. of process, as duress, 190. of wife, as duress, 191 note 365. lOSO INDEX. [BBFEEENCES AEE TO PAGES.] ACCEPTANCE, of benefits, see "Affirmance"; "Implied Contracts." of deed, see "Specialty." of draft, see "Negotiable Instruments." of goods by buyer, statute of frauds, 582. of offer, see, also, "Offer and Acceptance." offer made by mistake, 107. uncommunicated offer, 42 note 11. revoked offer, 66 note 98, 69. necessity for acceptance, 38. joint offerees, 38 note 4, 66. sealed offer, 39. offer in form of option, 38 note 4. offer of guaranty, 38 note 4, 47 note 22. bids, 85. communication of acceptance, necessity for, 46. < waiver, 46. secret acceptance, 16, 46, 57. general or public offer, 48. time of, 48, 681, 683. reasonableness, 49. 71. province of court, 50. option, 67. sealed offer, 71. place of, 50. as fixing place of contract, 47 note 22. as fixed by offerer, 50, 71. form of, 50, 71. mode of, 50. by conduct, see "Implied Contracts." by letter or telegram, 51 and note 38. by special messenger, 51. moment of, 52, 80. who may accept — Identity of acceptor, 74. character of acceptance, 72, 77. conditions, 77. identity with terms of offer, 77. counter proposal, 72, 78. future acceptance, 83. / effect of acceptance, 79. relation back, 79. options, 67. revocation of acceptance, 80. INDEX. JOSI [EEPBEENCES ABE TO PAGES.] ACCEPTANCE— Cont'd. acceptance by third person of promise for his benefit, presumption of, 716 note 24. as precluding discharge of promise by promisee, 716 note 24. as discharging promisee from debt to acceptor, 714 note 23. ACCIDENT, as inducing error, see "Mistake." as resulting in impossibility of performance, see "Impossibility of Performance." as resulting in failure of consideration, 700. ACCORD AND SATISFACTION (see, also, "Compromise and Set- tlement"; "Discharge"; "Release"; "Rescission"; "Satisfac- tion"; "Waiver"). what constitutes, 763 note 161, 943. consideration, 673, 943, 944. accord executory, 673, 943. as to one joint debtor, effect, 760. ACCOUNT, partial illegality, effect of, 469, 472. sale of, statute of frauds, 581 note 266. stated, against infant, voidability, 230 note 42. ACCOUNTING, by agent to principal, see "Agency." by infant, on rescission, for benefits received, see "Status Quo." by partners, see "Partnership." ACKNOWLEDGMENT, of barred debt, see "Limitation of Actions." of contract made in infancy, see "Afllrmance." of receipt of consideration, estoppel, 535. ACQUIESCENCE (see, also, "Silence"), as acceptance of offer, see "Implied Contracts." in another's self-deception, fraud, 144. in conveyance made in infancy, time for avoidance, 278. ACT (see "Conduct"). ACT OP GOD, as excepted risk in charter party and bill of lading, 848. what constitutes, 848 note 97. 1052 INDEX. [BEFEBENCES ABE TO PAGES.] ACTIONS, by assignee of contract, 725. See "Assignment of Contract." by beneficiary under contract, 706, 711. See "Parties to Con- tract." by and against aliens, see "Aliens." by and against convicts, 326. by and against excommunicants, 327. by and against Joint, several, and joint and several parties, see "Joint and Several Contracts." by and against married women, see "Married Women." by and against outlaws, 326. by and against slaves, 328. personal actions, at common law, 28. for breach of contract, see "Breach of Contract." to enforce contract, as affirmance, fraud, 174. infancy, 261. insanity, 301. threat of, as duress, 192 note 365. ACTOR AND MANAGER, penalty and liquidated damages, 929. injunction against breach of contract, 940 et sect. ADEQUACY, of consideration, 691. See "Consideration." of remedy at law, cancellation, 186. contribution, 772 note 197. injunction, 941. setting aside fraudulent conveyance, 758 note 140. specific performance, 936. enforcement of assignment of contract, 729 note 63. relief as to contract within statute of frauds, 611, 612. ADMINISTRATOR (see "Executors and Administrators"). ADULTERY, compounding crime, legality, 417 note 292. ADULTS, bound by contract with infant, 253. ADVANTAGE, taking undue advantage, undue influence, 201. INDEX. 10S3 [references are to pages.] ADVERSE POSSESSION, effect on disaffirmance of deed by infant, 266. conveyance of lands held adversely, maintenance, 423 note 311. AD VERTI SEMENT, of auction sale as offer, 85. of theater seats as offer, 85. for proposals as offer, 85. circular as offer, 85. revocation of general offer by, 70. contract for, statute of frauds, 581. ADVICE (see, also, "Attorneys at Law"), effect as to undue influence, 201, 207 note 417. ADVOCATES (see "Attorneys at Law"). AFFECTION, as consideration, 659. AFFIANCED PERSONS (see, also, "Marriage Promise"), nondisclosure by, 131. undue influence, 210 note 425. presumption, 205. AFFIRMANCE (see, also, "Ratiflcation"), of contract voidable for fraud, right of, 173. effect of, 174, 178. partial, 174. what constitutes, 174. lapse of time, 176. knowledge, 175. of contract voidable for undue influence, 212. ot contract made in infancy, right of, 252. necessity of, 255. sufficiency of, 257. express ratification, 257. form, 257. communication to adult, 259. implied ratiflcation, 259. parol ratification, 261. knowledge, 262. time of ratification, 260 note 145, 263. after action brought, 279 note 204. 1054 INDEX. [BErERENCES ARE TO PAUES.J AFFIRMANCE — Cont'd. after disaflSrmance, 280. in part, 274. effect, 279. of contract of insane person, 300. in part, 306. of Sunday contract, 357. AFFREIGHTMENT (see "Shipping"). AGE, infancy, see "Infancy"; "Infants." old age, see "Senility." of subject of duress, 194 note 373. of subject of undue influence, 198. of consent, marriage, 233. computation of, 228. AGENCY, brokers, see "Brokers." real-estate agents, see "Brokers." public agents, see "Officers." stakeholders, see "Stakeholders." matrimonial agency, 432. mercantile agency, 164. definition, 63. creation, 63. appointment by infant, voidability, 231. ratification, 64. of payment by volunteer, 869. of false statement, 171. authority of agent, 64. operation, 65, 707. right to produce undisclosed principal, 104 note 31. right to perform contract for benefit of principal, 725. right to enforce contract for benefit of principal, 716. termination, 65. by insanity of principal, 833 note 33. by war, 325. as affecting mutual consent, communication of acceptance, by agent of acceptor, 51, 62. to agent of offerer, 63 note 78. delivery of deed to agent of grantee, 524. escrow, 527 note 79. signature by agent, 518. INDEX. 10S5 I [UEFERENCES ABE 10 PAGES.] AGENCY-HCont'd. as affecting reality of consent, mistake as to agent as precluding contract, 104. misrepresentation by agent, 169. duress by agent, 188. undue influence by agent, 199. undue influence as between principal and agent, 206. nondisclosure as between principal and agent, 131. as affecting legality of contract, agreements promotive of breach of faith, double agency, 396. illegality as excusing accounting to principal, 479. recovery back of money placed with agent for illegal pur- pose, 492. See, also, "Brokers." statute of frauds, agency for buying goods, 578. agency for accepting goods, 583. del credere agents, 553. disclosing principal by parol, 591, 601. signature of memorandum by agent, 601. double agency, 602. as affecting discharge of contract, alteration of contract by custodian, 841. tender by or to agent, 874 notes 187 and 188. as affecting particular parties, agents of state, 217, 397 note 209. See, also, "Officers." agents of corporation, 222. ratification, 222. rights and liabilities as between principal and agent, liability of principal to subagent, and vice versa, 709. nondisclosure as between principal and agent, 131. undue influence as between principal and agent, 206. illegality as excusing accounting to principal, 479. recovery back of money placed with agent for illegal pur- pose, 492. See, also, "Brokers." AGREEMENT, definition, 14. elements, 14. plurality of parties, 14. certainty of parties, 15, 75. community of intention, 15. communication of intention, 16. express and implied agreements, 16. distinguished from contract, 7. distinguished from quasi contract, 8, 17. 1056 INDEX. [EEFERENCES APm TO PAGES.] AGREEMENT— Cont'd. distinguished from promise, 593. distiixguished from bargain, 593. estoppel to deny, 8, 16, 58, 100, 106, 110, 120. when a question for court, 15 note 25. as element of contract, 7, 16. implied contract, 58. specialty, 513. AIDING AND ABETTING, In unlawful object, 459, 461. See, also, "Legality of Object" ALDERMEN, contract with city, legality, 397 note 209. ALIENS, definition, 318. alien friends, contractual capacity, 318. suits by and against, 319. alien enemies, contractual capacity, 320. suits by and against, 322. illegality of dealings with, 409. promise by, in restraint of trade, legality, 449 note 393. ALIMONY, agreements for, legality, 434. ALTERATION OP INSTRUMENTS, in general, 839. duplicates, 839. correlative documents, 839. executed contracts, 839. deeds of conveyance, 840. mode of alteration, 839, 840. alteration by stranger, 840. intent, 841. mistake, 841. fraud. 841, 843. alteration to correct mistake in writing, 841. alteration by consent, 842. See "New Contract." materiality of alteration, as prerequisite of discharge, 842, 843. what constitutes materiality, 842. legal effect, 842. INDBX. 1067 Lbeteeences ake to pages.] ALTERATION OP INSTRUMENTS— Cont'd, contractual rights, 843. number of bank note, 843. interest, 844. date, 844. seal, 844. place and time of payment, 844. separate writings, 844. words on back of note. 844 note 87. parties, 844. words of negotiability, 844. amount of demand, 844. loss of instrument, 845. ALTERNATIVE PROMISES, definition, 886. right of election generally, 887. election by promisor, 887. as to medium of payment, 887. election by promisee, 888. as to place of performance, 888 note 238. notice of election, 888. time of election, 889. effect of election, 890. impossibility of performance of one alternative, 889, 890 note 248. illegality of one alternative, 470 note 461. AMBASSADORS, jurisdiction of state over, 218 note 8. AMBIGUITY, in representation, fraud, 152. in contract, see "Construction of Contract." ANALYSIS OF CONTRACT, 1, 6. ANCIENT DOCUMENTS, construction, 793. ANGER, statements made in, not a promise, 83 note 168. ANNOUNCEMENT, as offer, see "Offer and Acceptance." of intention to break contract, as breach, see "Repudiation of Contract." Contracts — 67 1058 INDEX. [itEFEBENCES ARE TO PAGES.] ANNUITY, construction of contract, 793. ANOTHER'S DEBT, DEFAULT, OR MISCARRIAGE, promise to answer for, statute of frauds, 546, 548. ANSWER (see "Pleading'O. ANTENUPTIAL, CONTRACTS, sufficiency of consideration, 558 note 185. right of beneficiaries to enforce, 720. statute of frauds, 557. promise to execute, 544. execution after marriage, 558. marriage as part performance, 558, 614. memorandum, expression of consideration, 593. ANTICIPATORY BREACH (see "Repudiation of Contract"). ANXIETY. statement made in, not a promise, 84 note 168. APPEAL, bond, statute of frauds, expression of consideration in memo- randum. 595. APPLICATION OF PAYMENTS (see "Payment"). APPOINTMENT, of agent, see "Agency." of attorney at law, see "Attorneys at Law." of attorney in fact, see "Power." to office, see "Offices." APPORTIONMENT OF CONSIDERATION (see "Divisible Con- tracts"). APPRENTICESHIP, contract of, by infant, validity, 239. APPROPRIATION OF PAYMENTS (see "Payment"). APPROVAL, of work by architect, as condition precedent, 914. ARBITRATION, agreement for submission, legality, 418. revocation of, 947 note 422. INDEX. 1059 IrEFEBENOES are to I'AGES.] ARBITRATION— Cont'd. as condition precedent to right o£ action, 420, 914 note 321. award as discharging right of action, 947. contractual capacity of arbitrators, 329. ARCHITECTS, approval of work as condition precedent, 914. waiver of contract of employment, 855. ARMY AND NAVY, enlistment, contract of, by infant, 234, 235 note 58. draft, promise to clear from, legality, 406. money paid for release from, as necessary to infant, 240 note 78. i assignment of pay by officer, legality, 402 note 233. ARREST, duress by, 190. indemnity against, legality,. 464. ARSON. compounding crime, legality, 415 note 283. ART, contract for portrait, satisfactory performance, 879. terms of, explanation by parol, 789. ARTIFICE, as means of concealment, 145, 148, 156. ARTIFICIAL PERSONS, corporation, 215, 221. See, also, "Corporations." partnership, 73. See, also, "Partnership." state, 215. See, also, "States." ASSAULT AND BATTERY, threat of, duress, 191. ASSENT, as element of contract, see "Agreement." as acceptance of sealed offer, 41. ASSIGNMENT, of choses in action, see "Assignment of Contract"; "Mainte- nance." of copyright, necessity for writing, 538. 1060 INDEX. [REFERENCES ARE TO PAGES.] ASSIGNMENT— Cont'd. of emoluments of office, legality, 402. of lease, statute of frauds, 562. of mortgage, statute of frauds, 561. of patent for invention, necessity for writing, 538. ASSIGNMENT FOR BENEFIT OF CREDITORS, bankruptcy, see "Bankruptcy." composition -with creditors, see "Composition with Creditors." insolvency in general, see "Insolvency." preferences, legality, 393 note 197. assignee as bona flde purchaser, 183. right of assignee to urge infancy of assignor, 253 note 129. ASSIGNMENT OF CONTRACT, in general, 722. assignment by act of the parties, assignment of liabilities, 723. See, also, "Novation." right to assign liabilities, 723. obligation of promisee to accept performance by third person, 723. effect of assignment, 725. assignment of rights at law, right of assignee to sue in own name, 725. promise of debtor to pay assignee, 726 note 54. action by assignee in name of assignor, 727. contracts express and implied, oral and written, 728 note 62. novation, 726. assignment by or to the state, 726 note 54. assignment of rights in equity, right of assignee to sue in own name, 728. adequacy of remedy at law, 729 note 63. joinder of assignor, 729 note 63. conditional assignments, 729. rights assignable, 729. future property, 730. partial assignment, 732. form of assignment, 733. order for money, 733. delivery of writing, 733. necessity for writing, 733. necessity for seal, 733 note 78, 734. conditions of assignability, consideration, 734. INDEX. 1061 [befkrbnces abb to pages.] ASSIGNMENT OF CONTRACT— Cont'd. notice, 734. necessity for, as against assignor and his as- signee in bankruptcy, 734. necessity for, as against attaching creditors of assignor, 734 note 84, 737 note 89. necessity for, as against debtor, 734. necessity for, as between conflicting assignees, 736. sufiiciency of, 735 note 85. title and equities, 737. equities of debtor. 737. equities of third persons, 738. agreement excluding equities, 738. assignment of rights under statute, 740. assignment of rights arising from negotiable instruments, 740. See, also, "Negotiable Instruments." assignment by operation of law, 744. assignment by transfer of land, 744. covenants affecting leasehold interests, 745. See, also, "Landlord and Tenant." covenants affecting freehold interests, 748. See, also, "Conveyances." assignment by marriage, 752. See, also, "Husband and Wife." assignment by death, 752. See, also, "Executors and Ad- ministrators." assignment by bankruptcy, 755. See, also, "Bankruptcy." ASSOCIATIONS, incorporated associations, see "Corporations." provision in contract that manager or agent may sue for all, 716. ASSUMPSIT (see, also, "Quantum Meruit"; "Quantum Valebat"), in early contract law, 28. ASSURANCE (see "Insurance"; "Promise"). ATTACHMENT (see, also, "Levy"), of goods, wrongful, duress, 196 note 376. of real estate, presumption of acceptance of deed from debtor, 529. bond to release, consideration, 632. notice of assignment of debt as between assignee and attaching creditor of assignor, 734 note 84, 737 note 89. 1062 INDEX. [BEFKBEJ^rCES ABE TO PAOES.] ATTAINDER, for conviction of crime, 346. ATTORNEYS AT LAW (see, also, "Advice"; "Barristers"; "Cham- perty"; "Maintenance"; "Prosecuting Attorneys"), license to practice, 347 note 39. contractual capacity, 328. warrant of attorney, 512. appointment by infant, 231. services in behalf of Infant, necessaries, 242. services in behalf of lunatic, necessaries, 299 note 267. promise to pay for services, past consideration, 648. failure of consideration, 700. debt for costs, assignment, 730 note 67. lien, assignment, 730 note 67. nondisclosure to client, 131. undue influence of client, 206. notice to, as notice to client, 735 note 85. legality of contract for services, contract to influence legislation, 405. contingency of fee, 405. contract to aid in getting pardon, 407. contingency of fee, 407. contract to procure public contract, 407. contingency of fee, 407. contract to aid in getting divorce, contingency of fee, 433. contract to defend against future crime, 349 note 43. unlawful dealings with client, par delictum, 495 note 534. fee as usury, 383. contingency of fee as resulting in champerty, see "Cham- perty." ATTORNEYS IN FACT (see "Power"). AUCTION, advertisement of sale as offer, 85. agreement to puff price, legality, 391. agreement to stifle competition, legality, 392. . sale of office of tax collector or constable, legality, 400 note 222. as within statute of frauds, 578. time for making memorandum, 590. signature of memorandum by auctioneer, 602. INDEX. 1063 [BEFEBEHCES AHE TO PAOBa] r AUTHOR AND PUBLISHER, as affected by libel, see "Libel." prevention of performance, 899. AUTHORITY, of agent, see "Agency." abuse of, as undue influence, 198. AVOIDANCE OF CONTRACT (see "Rescission"). AWATao (see "Arbitration"). B. BAIL, common-law recognizance, see "Recognizance." by infant, voidability, 230 note 42. to aid in escape, legality of indemnity, 476. indemnity against liability, statute of frauds, 556. prevention of performance as discharge, 900. BAILMENT, contract of hire, consideration, 630. contract of hire by infant, tort arising from, 248. contract of hire as work of necessity or charity, Sunday Laws, 355 note 63. contract of hire or contract of sale, statute of frauds, 581. gratuitous service, consideration, 629. gratuitous deposit, consideration, 630. with option to buy goods, 850 note 102. BANISHMENT, of husband, effect on capacity of wife, 312. BANKRUPTCY, assignments for the benefit of creditors, see "Assignment for Benefit of Creditors." composition with creditors, see "Composition with Creditors." insolvency generally, and state insolvency proceedings, see "In- solvency." agreement to dismiss proceedings, legality, 394 note 198. rights and liabilities of trustee as to contracts of bankrupt, 755. assigned debts, notice of assignment, 734 note 84. discharge, as discharging contracts of bankrupt, 846. agreement not to oppose, legality, 393. 1064 INDEX. [EEFEBENCKS ABE TO PAGES.J BANKRUPTCY— Cont'd. piomise to pay discharged debt, past consideration, 655. promise by third person, 655 note 85. conditional promise, 656. BANKS AND BANKING, bank notes and checks as negotiable instruments, see "Negotia- ble Instruments." issuance of bills, illegality, par delictum, 495. sale of bills, statute of frauds, 581 note 266. special deposit, consideration, 630 note 9. cashier's and clerk's bonds, construction as to condition, 796. BANTER, promise made in, enforceability, 9, 84. BARBERS, work of, as work of necessity, Sunday laws, 357 note 71. BARGAIN AND SALE. of personal property, see "Sales." of real estate, see "Conveyances." distinguished from agreement, 593. BARRISTERS, contractual capacity, 328. lawyers in general, see "Attorneys at Law." BASTARDY, settlement or bond by infant father, validity, 234 note 58. compounding crime, legality, 416 note 285. obligation of parent to support child as consideration, 647 no** 61. BATTERY. threat of, duress, 191. BAWDY LIBEL (see "Libel"). BELIEF, in truth of misrepresentation, effect, 124 note 106, 160 note 254, 161. want of, 158, 160 note 254. in information, as affecting duty to disclose, 133 note 148. in supposed illegality of transaction, effect, 477 note 482. INDEX. 1065 [REFERENCES ARE TO PAGES.] BELLIGERENTS. friendly dealings with, legality, 409. See, also, '"Aliens." BENEFICIARY, of trust, see "Trusts." of promise between others, right to sue, 711. BENEFITS (see, also, "Officious Acceptance"; "Volunteers"), accounting for, by infant, on rescission, see "Status Quo." as consideration, see "Consideration." as giving rise to quasi contract, see "Quasi Contract." forced, liability to compensate, 39, 58. compelling acceptance of deed, 527. as past consideration, 650. gratuitous, as creating promise for compensation, 83, 649 note 63. promise of, consideration, 629. BETROTHED PERSONS (see "Affianced Persons"). BETS (see "Wagers"). BETTERMENTS, recovery for, on rescission for fraud, 185. BICYCLE. as a necessary, infancy, 240 note 77. BIDS (see "Auction"; "PuDlic Contracts"), necessity for acceptance of, 85. BILATERAL CONTRACT, distinguished from unilateral, 41, 42, 634 note 20. BILLS AND NOTES (see "Negotiable Instruments"). BILLS OF LADING (see "Carriers"; "Shipping"). BLANKS, unfilled, in deed, 516. BLINDNESS, as inducing mistake as to nature of transaction, 98. as affecting contractual capacity, 286. BLOCKADE (see "International Law"). BOARD (see "Support"). 1066 INDE5X. [bbfebences are to pages.] BODILY HARM, threat of, as duress, 191. BOHEMIAN OATS TRANSACTION, legality, 394. BONA FIDE PURCHASER. of negotiable instruments, see "Negotiable Instruments." of other personal property, see "Sales." of real property, see "Vendor and Purchaser." of subject-matter of gift, see "Gift." BONDS, on appeal, see "Appeal." to release attachment, see "Attachment." bail, see "Bail." of bank employe, see "Banks and Banking." in bastardy proceedings, see "Bastardy." of employes generally, see "Master and Servant." for indemnity, generally, see "Indemnity." against arrest, see "Arrest." against levy, see "Levy." ofRcial, see "Officers." for ransom, see "Ransom." recognizance, see "Recognizance." for title, see "Vendor and Purchaser." as specialties, 509 note 8. necessity for delivery, 354 note 61. construction, generally, see "Construction of Contract." as to condition, 781. strict construction, 811 note 114'. recital as restricting condition, 809. rejection of repugnant words as surplusage, 804. statutory bond, invalidity, effect as common-law bond, 781. effect of surplusage, 803 note 81. breach of condition as discharge, 847. impossibility of performing alternative condition as discharge, 890 note 247. BONUS, as constituting usury, 382. in aid of railroad, legality, 398. INDEX. 1067 IREFEHENCICS ABE TO PAOKS.,] BOOKS, of account, as evldeBce as to whom credit was given, statute of frauds, 652 note 164. ' as memorandum, statute of frauds, 589. BOUGHT AND SOLD NOTES, as memorandum, statute of frauds, 603 note 378. BOUNDARY, misstatement of, recoupment, 162 note 258. establisliment, statute of frauds, 561. BOYCOTT, legality, 447. BREACH OF CONTRACT (see, also, "Performance of Contract"), as creating right of action, 890. as working discharge of contract, 891. rights and remedies of innocent party, 891. waiver of breach, 891, 896. breach as defense, 892. action for breach, 892, 899. recovery tor part performance, 892, 899. repudiation of contract, 892. See "Repudiation of Con- tract." by promisor, 893. by promisee, 895. prevention of performance, 897. See "Prevention." by promisor, 897. by promisee, 899. inability to perform when contract is made, 898. failure of performance, as working discharge of contract, 901. independent promises, 901, 902. See "Independent Prom- ises." absolute promises, 903. divisible contracts, 907. See "Divisible Contracts." subsidiary promises, 910. conditional promises, 901, 911. See "Conditions." conditions subsequent, 847, 911. concurrent conditions, 912. conditions precedent, suspensory conditions, 888, 913. failure of consideration, 701, 916. conditions proper, 918. waiver of conditions, 897, 898 note 281, 921. 1068 INDEX. [REFERENCES ABE TO PAGES.] BREACH OF CONTRACT— Cont'd, remedies for breach, 891, 923. at law, 924. liquidated damages, 925. See "Damages." unliquidated damages, 930. See "Damages." in equity, 934. specific performance, 936. See "Specific Performance." injunction, 939. See "Injunction." discharge of right of action for breach, 942. by consent, 943. release, 943. See "Release." accord and satisfaction, 943. See "Accord and Satis- faction." by judgment, 945. See "Judgments." by award of arbitrators, 945, 947. See "Arbitration." by limitations, 947. See "Limitation of Actions." by death, 754 note 129, 755 note 132. agreement promotive of, legality, 391 note 190, 403 note 236. liability of third person for procuring, 710. waiver of, as consideration, 667. right of stranger to sue for, 706, 711. See, also, "Parties to Con- tract." BRIBERY (see "Corruption"). BROKERS, agents generally, see "Agency." license to practice, 347 note 39. right to buy customer's property, 75 note 130. double agency, legality, 397 note 209. statute of frauds, agreement to find purchaser for land, 560, 567. signature of memorandum by broker, 602. marriage brokage, legality, 432. dealings in futures, right to commissions and advances, 458, 473, 478. recovery back of money placed with, for illegal purpose, 490. See, also, "Agency." BROTHEL (see "Sexual Immorality"). BROTHER AND SISTER, duress, subject of, 189 note 356. undue influence, presumption of, 204 note 398. BROTHER-IN-LAW, duress, subject of, 189 note 356. INDEX. 1069 iREFEEENCES ABB TO PAGES.] BUILDING CONTRACTS, building restrictions in deed, see "Restrictions." consummation of, 86. time for completion, penalty and liquidated damages, 928. waiver of time limit, 858. past consideration, promise to pay builder who has not complied with law, 659. allowance for extras, arbitration, 420 note 301. suspensory conditions, approval of architect, 914. discharge, by destruction of partially completed building, 828, 830. by latent defect in soil preventing performance, 828. recovering back money paid under contract discharged by operation of law, 836 note 46. by new contract, 857. new terms, waiver of time limit, 858. by prevention of performance by promisee, 900. BUILDING REGULATIONS, restrictions, see "Restrictions." agreement in violation of, 350 note 45. BURDEN OF PROOF, reality of consent, as to duress, 190. as to undue influence, 202, 203, 211 note 426. capacity of parties, as to necessaries furnished to infant, 238, 243. as to aflirmance of contract made in infancy, 258 note 141. as to ability to restore status quo on rescission for infancy, 271 note 178. as to insanity, 291 note 249. legality of object, as to works of charity or necessity, Sunday laws, 355. as to illegality of dealings in futures, 371. as to limitation of common-law liability of carrier, 438 note 359. as to lawfulness of agreement, 465, 487 note 510. as to bona fide purchase of illegal note, 480. BURIAL EXPENSES, of husband of infant, necessaries, 240. BUSINESS, regulations, see "Commercial Regulations"; "Professional Regu- lations." necessaries as to, Infancy, 241. 1070 INDEX. LKKFERENCBS ABE TO PAGES. J c. CALLS, definition, 369 note 110. CANCELLATION, of contract, by consent of parties. See "Rescission"; "Waiver." for mistake, 122. for misrepresentation, 129. for fraud. 186. of infant for necessaries, 247 note 108. suit for, as disaffirmance by infant, 264. inadequacy of consideration, effect, 694. of deed, on disaffirmance by infant purchaser, 270 note 177. on disaffirmance by infant vendor, 280. want of consideration, 533. CANDIDATE (see "Elections"). CAPACITY, of subject of duress, 194. of subject of undue influence, 198. of parties to contract, in general, 2, 30, 215. aliens, see "Aliens." arbitrators, see "Arbitration." barristers, see "Attorneys at Law"; "Barristers." convicts, see "Conviction." corporations, see "Corporations." excommunicants, see "Excommunicants." infants, see "Infants." married women, see "Married Women." outlaws, see "Outlaws." persons non compotes mentis, see "Blindness"; "Deafness"; "Drunkennesis" ; "Dumibness"; "Idiots"; "Insane Per- sons"; "Mental Weakness"; "Senility." physicians, see "Physicians." slaves, see "Slaves." spendthrifts, see "Spendthrifts." states, see "States." CARRIERS, by water, see "Shipping." conditions on ticket, when part of contract with passenger, 44. stipulations in freight receipt, when part of contract with ship- per, 45 note 20. I INDEX. 1071 [REFERENCES ARE TO PAOES.J CARRIERS— Cont'd. time table as general offer, 76. mistake as to freight rate, as precluding contract, 116 note 75. excessive charges, recovery back, 666. excepted risks as conditions subsequent, 848, 920. warranty as to safety of baggage and as to punctual arrival of passenger, 920. damages for delay in transportation, 931, 933. right of consignee to sue on contract between carrier and con- signor, 717 note 28. statute of frauds, acceptance by carrier of goods for buyer, 583. right of buyer to sue for loss, 608. limitation of common-law liability, 436. strict construction, 791, 816. presumption of communication to shipper or passenger, 45 note 20. legality of contract, stipulation for immunity from liability for negligence, 436. insurance against liability for injury to passengers, 398 note 213. preferential rates, rebates, 398. Sunday contracts, 353 note 54. CASHIER, of bank, bond, 796. CATCHING BARGAINS, by acceptance of offer made by mistake, 107. CAVEAT EMPTOR, sales of goods, 112 et seq. CERTAINTY, of liability, as element of obligation, 20. of parties, as element of agreement, 15. as element of obligation, 20. memorandum, statute of frauds, 591. of offer and acceptance, as element of contract, 88. id certum est quod certum reddi potest, 89. of memorandum, statute of frauds, 590. as to parties, 591. as to subject-matter, 595. of consideration, 642. 1072 INDEX. [KBFEBENCES ABE TO PAGES.] CESTUI QUE TRUST (see "Beneficiary"; "Trusts"). CHAMPERTY. maintenance in general, see "Maintenance." definition, 421, 425. legality, 426. interest in subject-matter, 422 note 309. attorneys, 427. as a defense in principal action, 429. as excusing accounting by attorney to client, 479. recovery in quasi contract for services under cbampertous agree- ment, 488. efCect of partial illegality, 468 note 455. conflict of laws, 500 note 548. CHANGE, in contract, by agreement, see "New Contract." in government, effect on contract with state, 220 note 14. in law, as discharging contract, 345, 829. See, also, "Impossi- bility of Performance." of circumstances precluding restoration of status quo, see "Status Quo." of possession, see "Possession." CHARITY (see, also, "Benefits"), as motive for doing work, precludes contract, 82. doing works of, on Sunday, 355. CHARTER, of private corporation, see "Corporations." of municipal corporation, see "Municipal Corporations." CHARTER PARTY (see "Shipping"). CHATTELS (see "Personal Property"). CHECKS (see "Negotiable Instruments"). CHILD (see "Infants"; "Parent and Child"). CHOICE (see "Election"). CHOSES IN ACTION, assignment of, see "Assignment of Contract"; "Maintenance." sales of, statute of frauds, 581. of wife, right of husband to, 310 note 310. CIRCULARS, as offer of contract, 85. INDEX. 1073 [BEFEBEMCES ABE TO PAGES.] CITIZENS, rights injurious to, conflict of laws, 503. CITIZENSHIP (see, also, "Aliens"), what constitutes, 318 note 342. CIVIL DEATH, of husband, as enabling wife to contract, 311. conviction and banishment of husband, 312. outlawry of husband, 312. abjuration of realm by husband, 312. profession of religion by husband, 312. resulting from outlawry, 312, 326. resulting from conviction, 312, 326. CIVIL WAR (see "Rebels"). CLASSIFICATION, of contracts, 24, 508. CLEMENCY, in favor of unsentenced convict, agreement to procure, lega. , 407 note 251. CLERGYMEN (see "Spiritual Advisers"). CLERICAL ERRORS, effect on construction of contract, 800. CLERK, in bank, bond, 796. CLIENTS (see "Attorneys at Law"). CLOTHING, as a necessary, infancy, 238, 244 note 100. COERCION (see "Duress"; "Undue Influence"). COGNOVIT ACTIONEM, definition, 512. COHABITATION (see "Sexual Immorality"). COLLATERAL AGREEMENTS, merger, 8S8. parol evidence of, 785. 1074 1NDE5X. [BEFEBBNCES ABB TO FAOEB.] COLLATERAL FACTS, mistake as to, equitable relief, 107 note 37. as affecting price, 116. COLLATERAL PROMISES. as distinguished from conditions precedent, see "Independent Promises." statute of frauds. promise to answer for debt, default, or miscarriages of an- other, 550. part performance, 615 note 424. COLLATERAL SECURITY (see "Security"). COMBINATION, in restraint of trade, see "Monopolies and Combinations." COMITY (see "Conflict of Laws"). COMMENDATORY EXPRESSIONS, as representation, 147 note 205. COMMERCIAL AGENCY (see "Mercantile Agency"). COMMERCIAL PAPER (see "Negotiable Instruments"). COMMERCIAL REGULATIONS (see, also, "Professional Regular tions"), as to foreign corporation, 348. as to innholders, 348 note 40. as to merchants, 348 note 40. as to employment of minors, 350 note 45. as to peddlers, 348 note 40. as to slaves, 349 note 43. as to stud owners, 348 note 40. as to fertilizers, 349 note 43. as to grain, 350 note 45. as to hoops, 350 note 45. as to intoxicants, 349 note 43. as to construction of buildings, 350 note 45. as to weights, measures, and scales, 349. partial illegality of contract, 469 note 457. COMMISSION MERCHANT. commission as usury, 382 note 158. generally, see "Agency"; "Brokers." INDEX. 1075 [BEFEBENCES ABE TO PAGES. J COMMISSIONS, brokers', see "Brokers." as constituting usury, 382. COMMITTEE. of lunatic, see "Guardian and Ward." COMMON LAW, presumption of existence, 496. COMM UNICATION. of acceptance of offer, see "Acceptance." of affirmance of contract made In infancy, 259. of intention, as element of agreement, 15. to third person, 16. of misrepresentation, fraud, 165 note 268. of offer, see "Offer and Acceptance." of threat, duress, 194. COMMUNITY, of intention, as element of agreement, 15. of mistake. necessity for, to justify relief, 97 and note 9, 101, 109, 112. COMPETENCY, to make contracts, see "Capacity." of evidence, see "Evidence;" "Parol Evidence." COMPETITION, for premium, as wager, 372. stifling, see "Stifling Competition." ■withholding, as consideration, 675 note 171. generally, see "Restraint." COMPLAINT (see "Pleading"). COMPOSITION WITH CREDITORS. assignments for the benefit of creditors, see "Assignment for Benefit of Creditors." bankruptcy, see "Bankruptcy." insolvency generally, see "Insolvency." consideration for, 687. preferences, legality, 393. recovery back, par delictum, 495. as accord and satisfaction, 944. 1076 INDEX. [eefkrencbs are to pages.] COMPOUNDING CRIME, agreements promotive of, legality, 414. preventing institution of prosecution, 417. stifling pending prosecution, 417. obtaining an acquittal, 417. stifling extradition proceedings, 418. effect of partial Illegality, 468 note 455, 469 note 456. par delictum, 494 note 534. COMPROMISE AND SETTLEMENT, reality of consent, mistake of law, 120. nondisclosure as affecting, 136. claim to goods, duress, 195 note 375. by infant, of claim in tort, 234. with mother of bastard, 234 note 58. legality, surrender of right to settle, champerty, 429. illegal claim, 415, 475 note 471, 686. consideration, 673, 684. See, also, "Consideration." COMPULSION (see ''Duress"; "Undue Influence"). COMPUTATION OF TIME (see "Time"). CONCEALMENT, what constitutes, 145, 148, 152, 156. distinguished from nondisclosure, 143. of crime, agreement for, legality, 417 note 292. CONCLUSION, falsity of, fraud, 151 note 220. CONCURRENT CONDITIONS, 912. CONDITIONS, of bonds, see "Bonds." of acceptance of deed, see "Specialty." of delivery of deed, see "Specialty." of payment, see "Payment." of possibility of performing contract, see "Impossibility of Per- formance." of tender, see "Tender." in general, 901, 911. distinguished from representations, 127. concurrent, 912. INDEX. 1077 [BEFEBENOES ABE TO FAOES.] CONDITIONS— Cont'd, precedent, suspensory conditions, 913. act of third person, 914. lapse of time, 914. act of promisee, 914. demand, 914. notice, 888, 914. failure of consideration, 699, 701, 916. partial failure, 917. conditions proper, 918. warranty, 919. construction of contract, 902, 904, 909, 910, 921. waiver, 128, 921. repudiation of contract, 921. prevention of performance, 897, 898 note 281, 922. independent promises, 901, 902. See "Independent Prom- ises." absolute promises, 903. divisible contracts, 907. See "Divisible Contracts." subsidiary promises, 910. breach of, as discharging contract, 127, 901, 911. subsequent, definition of. 847. express and implied, 847. penal bond, 847. charter party, 848. bill of lading, 848. insurance policy, 849. discharge by, 826, 847, 850, 911. revival of contract after discharge, 847 note 94. validity, as to arbitration, 419, 914 note 321. as to performance becoming lawful, 345, 466. as to assignment of contract, 729. statute of frauds, conditional sale, acceptance, 584. conditional acceptance, 584. construction, 811. See, also, "Construction of Contract." of promise to pay debt barred by limitations, 657 note 90, 950. of promise to pay debt of discharged bankrupt, 656. infants, conditional contract, partial ratification or disaffirmance, 275. conditional ratification, 258 note 141. of one of two reciprocal promises, mutuality, 684. 1078 INDEX. [REFERENCES ARE TO PAGES.] CONDITIONS— Cont'd. conditional promise as consideration, 643. waiver of performance of, as consideration, 674. waiver of breach of, as consideration, 667. of ofCer, as to time of acceptance, 48. as to place of acceptance, 50. as to form of acceptance, 50. as to mode of acceptance, 50. as to moment of communication of acceptance, 53. as to revocation, general offer, 70. effect of noncompliance with, 71. in acceptance, preclude contract, 77, 88. CONDUCT. agency implied from, 64. contract implied from, see "Implied Contracts." communication of offer or acceptance by, see "Acceptance"; "Of- fer and Acceptance." communication of revocation of offer by, 69. affirmance of contract by, fraud, 174. infancy. 259. misrepresentation by, 143, 152. personal, forbearance as to, as consideration, 675. estoppel by, see "Estoppel." subsequent to contract, practical construction, 794. CONFEDERATE BONDS, legality of contract based on, 409. CONFESSORS (see "Spiritual Advisers"). CONFIDENTIAL RELATIONSHIP (see "Relationship," and various heads) . CONFIRMATION (see "Affirmance"; "Ratification"). CONFLICT OF LAWS. as to execution of contract, 617. as to interpretation of contract, 617. as to performance of ccatract, 617. as to remedy, 617. statute of frauds, 618. as to illegality of agreement, 496. INDEX. 1Q79 [EEFEEENCES ARK TO PAGES.] CONFLICT OF LAWS— Cont'd. lex loci contractus, 497, 617. lex situs, 499. lex loci solutionis, 499, 617. performance in different states, 497 note 541, 500 note 546. evasion of law, 502. injury to citizens, 503. administrative possibility of enforcing foreign law, 504. violation of justice, morality, or policy of law, 502. violation by citizen of prohibitory law, 501. violation of public interests, 503. CONFLICTING CLAUSES, construction, 804. CONNECTED PAPERS, as one contract, 801. CONSENT, as element of contract, see "Agreement." CONSIDERATION. apportionment, see "Divisible Contracts." in general, 3, 30. history, 508, 625. necessity for. 627. assignment of contract in equity, 734. bailments, 630. agreements for compound interest, 381. executed contracts, 631. negotiable instruments and transfers of same, 630, 742. See "Negotiable Instruments." discharge of contract by new contract, 856. postponement of performance, 856. options, 67. contracts of record, 627 note 3. rescission or waiver of performance, 853. contracts executory and executed, 853. agreements in restraint of trade, 456. 628 note 4. promise of gratuitous service, 629. specialties, see "Specialty." statute of frauds, as dispensing with consideration, 544, 629. memorandum subsequent to agreement, 590 note 309. statutory obligations, 632. 1080 INDEX. [BEFEBENCES ABE TO FAOES.] CONSIDERATION--Cont'd. written contracts, 629. as element of composition of crime, 417. as element of lottery, 374. what constitutes, 632. definition, 507, 633. present or executed consideration, 26, 634. distinguished from past consideration, 635. future or executory consideration, 26, 634. unilateral and bilateral contracts, 634 note 20. motive, 635. number of considerations and promises, 635. benefit to one party or detriment to other, 636. reality of consideration, 636, 640. value of consideration, 636. estoppel to deny consideration, 639, 689, 691. movement of consideration to promisor, 639. connection between consideration and promise, 640, 681. movement of consideration at promisor's instance, 640. possibility of rendering consideration, 640, 825. certainty of consideration, 642, 679 note 187. legality of consideration, 331, 643. See "Legality of Object" partial illegality, see "Partial Illegality." Illegality of past consideration, 482. movement of consideration from promisee — right of stranger to enforce promise made for his benefit, 643, 711. See "Parties to Contract." moral obligation, 644, 646.' past consideration, sufficiency, 482, 545, 644, 645. distinguished from executed consideration, 635, 646. fractions of day, 648. past and present consideration, adequacy, 694. benefit conferred on request, 648. benefit voluntarily conferred, 650. pre-existing legal obligation, 182, 651. waiver of protection of rules of law, 651. promise to pay illegal debt, 653. promise to pay debt contracted in infancy, 252 note 127. 653. promise of woman to pay debt contracted while co- vert, 654.- promlse to pay debt discharged in bankruptcy, 655. See, also, "Bankruptcy." promise to pay debt discharged in insolvency, 656. INDEX. 1081 [BEFEBBNCES ABE TO FAQES.] CONSIDERATION— Cont'd. promise to pay debt voluntarily discharged, 656 note 89, 759 note 147. promise to pay debt barred by limitations, 657. See, also, "Limitation of Actions." promise to pay debt barred by erroneous judgment, 658. promise to pay usurious debt, 658. promise of discharged drawer or indorser to pay bill or note, 658. promise of owner to pay contractor who has not com- plied with mechanic's lien law, 659. good consideration as distinguished from valuable considera- tion, 532, 659. deeds of conveyance, 660. rights of third persons, 661. doing what the law requires, 662. promise not to do unlawful thing, 663 note 112. discharge from illegal imprisonment, 189 note 357. promise to perform moral duty, 663. duty Imposed by law, public duty, 663. city surveyors, 665. firemen, 664. pilots, 663 note 115. police officers. 664. witnesses, 663. private duty, 665. doing domestic duty, 665. surrendering another's goods, 195 note 375, 665. recovering back money or property paid or delivered under compulsion, 666. excessive fees, 666. excessive charges by carrier, 666. obligation imposed by contract, 666. waiver of breach, 667. extra risks or extra work, 667. waiver of right to rescind, 667. waiver of right of election as to performance, 667. new contract, 668. enforcement of contract and new promise, 668. doing or promising what contract demands, 668. as consideration for discharge of debt, 669. as consideration for extension of time of pay- ment, 670. 1082 INDEX. [EErEEENCES ABE TO PAGES.] CONSIDKRATION— Cont'd. as consideration for antenuptial agreement, 558 note 185. part payment, 685. same — as consideration for discharge, 669, 671. same — as consideration for extension of time, 671. discharge by release, 672. discharge by new contract, 672. discharge by accord and satisfaction, 673, 943, 945. discharge by compromise, 673. gift of debt to debtor. 674. performance of or promise to perform contract with third person, 674. waiver of right to make contract for discharge, 674. waiver of condition precedent, 674. forbearance as consideration, 545, 546 note 142, 675. past forbearance, 647 note 61. as to personal conduct, "675. as to right of action, 676. legal existence of right, 677, 686. nullity resulting from discharge by operation of law, 677. nullity resulting from coverture, 677. nullity resulting from statute of limitations, 677 note 176. nullity resulting from illegality, 677 note 176. liability of definite person, 678. agreement to forbear, 678. evidence of, 678. estoppel to deny, 678. time of forbearance, 679. promise by third person, 679. dismissal of divorce suit. 434. release, 545. mutual promises, 680. See, also, "Mutual Promises." necessity for simultaneous exchange, 681. necessity for connection between promises, 681. mutuality of obligation, 682. oral promise and written promise, 682 note 197. asking specific performance as supplying mutuality, 682 note 197, 938. informality or disability defeating mutuality, 682. INDEX. 1083 [bf.pf.rf.nces are to FAaSB.] (X)N SIDERATION— Cont'd. contingent promise defeating mutuality, 683. sales, 683. subsequent consideration supplying mutuality, 683. sales, 683. conditional promise as defeating mutuality, 684. voidable contracts, 684. mutuality of remedy, 682. compromise, 684. See, also, "Compromise and Settlement." legal foundation for claim, 677, 686. unlawful claim, 686. good faith, 686. promise by third person, 685 note 206. composition with creditors, 687. See, also, "Composition with Creditors." subscriptions, 689. adequacy of consideration, 691. distinguished from failure, 696. at law, 692. guaranty, 692. license to use patent, 693. promise in restraint of trade, 456, 692 note 225. exchange of fixed values, 693. partial insufficiency, 468 note 455. 694. in equity, 694. promise in restraint of trade. 692 note 225. fraud or undue influence, evidence of, 200, 208 note 422, 210 and note 425. 694. want or failure of consideration, 695. want and failure distinguished, 696. failure and inadequacy distinguished, 696. failure and mistake distinguished, 96 note 9, 105, 112. what constitutes failure of consideration, inherent deficiency of consideration, 697. assignment of void patent, 697. warranty of worthless article, 697. failure of title to realty or personalty, 698. worthlessness in general, 698. depreciation in value, 699. omissions of promisee, 699. conditions precedent and independent promises, 699. prevention of performance by promisor, 700. accident, 700. effect of want or of failure of consideration. 1084 INDEX. [BEFEBENCES ABE TO PAGES.] CONSIDERATION— Cont'd. want of consideration, total and partial, 701. failure of consideration, total failure, 701. discharge of conditional promise, 106 note 33, 916. recoupment, 162 note 258. partial failure, 701. damages, 701. discharge of conditional promise, 917. rescission, 701. negotiable instruments, 702. failure of title. 702. quasi contractual remedies, recovery back of money or property, 703. partial and total failure, 703. divisibility of contract, 703. statute of frauds, as dispensing with consideration, 544, 629. statement of consideration in memorandum, 592. restoration of, as condition of rescission, see "Status Quo." retention of. as aflBrmance of contract made in infancy, 258 note 141, 259. as affirmance of contract made while insane, 301. as affirmance of Sunday agreement, 359. acceptance of, by adult, as affirmance of contract made in in- fancy, 260. CONSIGNMENT (see "Carriers"). CONSPIRACY (see, also, "Monopolies and Combinations"), agreement promotive of, legality, 389. CONSTABLES, sale of office, 400 note 222. making arrest as consideration, 664 note 119. CONSTITUTIONAL LAW, contractual capacity of individual states, 217 and note 1. impairment of obligation of contract, 220. right to make contracts, 336. state regulation, 336. prohibition of lotteries, 375. legal tender, 874 note 192. INDEX. 1085 [REFERENCES ARE TO PAOKS.] CONSTRUCTION, of acceptance, 79. of contract, see "Construction of Contract." of ofeer, 85. of statute, see "Statutes." CONSTRUCTION OF CONTRACT, in general, 4, 775. definition, 775. distinguished from interpretation, 775 note 1. parol contracts and specialties, 777. mercantile contracts, 777 note 4. law and equity, 777. province of court and of jury, 777. ordinary words, 777. technical words, 777. loss of writing, 778 note 6. oral contracts, -778 note 6. deeds, 151 note 219. intent as governing construction, 779. general and particular intent, 780. grant in futuro as covenant to stand seised, 780. void deed as agreement to convey, 780. void statutory bond as common-law bond, 781. intent not fully or truly expressed, 781. parol evidence to add to, detract from, or vary written con- tract, 782. See "Parol Evidence." unexpressed terms, 785. collateral agreements, 785. application of terms of contract, 786. as to parties, 787. as to subject-matter, 787. as to nature of obligation, 788. custom and usage, 788. technical words, 789. favorable construction, 790. intention, 790. legality of object, 790. reasonableness of provisions, 791. strict construction, 791. limitation of carrier's common-law liability, 791- forfeitures, 791. equitable construction, 792. dependent and independent promises, 792, 902. intention, 792. 1086 INDEX. [BEFEBENCES ABE TO PAGES.] CONSTRUCTION OF CONTRACT— Cont'd. penalty and liquidated damages, 927. contemporaneous construction, 792. parol evidence of surrounding circumstances, and of object of parties, 793. law as part of contract, 794. practical construction, 794. parol evidence of acts of parties, 795 "note 57. subject-matter to be considered, 796, 807. parol evidence as to subject-matter, 797. whole contract to be regarded, 797. intention, 798. grammar, 799. punctuation, 799. clerical errors, 800. correlative documents, 801. parol evidence of connection, 802. ' duplicates, 801 note 75. entire contract to be given effect, 802. surplusage, 803. superfluous words, 803. repugnant words, 803. conflicting clauses, 804. surplusage, 803. of incompatible clauses, the first prevails, 805. intention, 806. i restriction of general words, 807. intention, 807-809. wider clause following enumeration, 808. expressio unius exclusio alterius est, 808. recitals and general words, 809. writing controls printing, 810. intention, 810. words control figures, 810. conditions, exceptions, reservations, and provisos, 811. meaning of particular terms, intention, 813 and note 121. popular and literal meaning, 781, 798, 812. parol evidence of special meaning, 813. technical words, 814. parol evidence, 789. usage, 814. parol evidence, 788, 814. intention, 815. ambiguous words, 815. INDEX. 1087 [BEFEBENCES ABE TO PAGES.] CONSTRUCTION OF CONTRACT— Cont'd. strict construction against party using them, 816. intention, 818. contracts in derogation of law, 791. limitation of carrier's liability, 791, 816. forfeitures, 791, 816 note 133. guaranties and letters of credit, 807, 817. conditions, exceptions, reservations, and provisos, 811. insurance policies, 816. deeds of conveyance, 817, 819. as to whether joint, several, or joint and several, 768. contracts oral and written, express and implied, 768. as to promisors, 769. intention, 769, 770. mistake, 769. presumptions, 769. as to promisees, 770. intention, 770. presumptions, 770, 771. as to whether mutual promises are independent or conditional, 792, 902. as to absoluteness of proB;iise, 904. as to divisibility of contract, 909. as to subsidiary promises, 910. as to warranties, 921. as to penalty and liquidated damages, 926. intention, 926. CONSTRUCTIVE CONTRACT (see "Quasi Contract"). CONSTRUCTIVE FRAUD, definition, 124. CONSTRUCTIVE KNOWLEDGE, of falsity of representation, 157. CONSUETUDO, CUM OMNIUM DOMINA RERUM, TUM MAXIME VERBORUM EST. 815 note 127. CONSUMPTION, of consideration by infant, restoration of status quo, 270. CONTEMPORANBA EXPOSITIO EST OPTIMA ET FORTISSIMA IN LEGE, 793 note 50. CONTEMPORANEOUS CONSTRUCTION, Of contract, 793. See "Construction of Contract" 1088 INDEX. [BEFEBENCES ABE to PAGES.] CONTEMPORANEOUS WRITINGS, as one contract, 801. CONTEXT, considered in construction of contract, 797. CONTINGENCY, of attorney's fee, legality, see "Attorneys at Law"; "Champerty of witness' fee, see "Witnesses." of one of two reciprocal promises, mutuality, 683. CONTINUING CONSIDERATION, pre-existing obligation as, 651. CONTINUING CONTRACT (see "Executory Contract"). CONTINUING OFFER, defined, 69, 681. CONTRA BONOS MORES (see "Sexual Immorality"). CONTRABAND TRADE, legality, 410. CONTRACT, definition, 6. analysis, 1, 6. See Table of Contents. CONTRACT IMPLIED IN FACT (see "Implied Contracts"). CONTRACT IMPLIED IN LAW (see "Quasi Contract"). CONTRACTS OP RECORD, generally, 508, 510. necessity for consideration, 627 note 3. debt, not assumpsit, lies on, 29. judgment, 511. See, also, "Judgments." recognizance, 512. See, also, "Recognizance." statutes merchant and staple, 513. CONTRACTS UNDER SEAL (see "Specialty"). CONTRIBUTION, between joint debtors, as Quasi contract, 55, 772. as arising from implied contract, 772 note 198. remedies for enforcement, 772. sureties, 772. INDEX. 1089 [EEFEBENCBS ABE TO PAGES.] CONVENIENCES, as necessaries, infancy, 239. CONVERSION, of goods, quasi contractual remedy, 26. trover by seller, fraud, 186. by infant, liability, 249. CONVEYANCES, mortgages, see "Mortgages." of personal property, see "Sales." by trustee, see "Trusts." contract for, see "Vendor and Purchaser." as contracts, 11 and note 17, 14. as specialties, 509 note 8. necessity for writing, 538. necessity for deed, 515. delivery, by recordation, 524. escrow, 527 note 79. acceptance, necessity for, as against third person, 528. what constitutes, 528. relation back, 528. mistake as to nature of writing, 99. illegality, recovery of land by grantor, 489 note 15. statute of frauds, irregular conveyance as memorandum, 589. delivery, 589, 603. indirect enforcement of verbal conveyance, 607, 615. assumption of .debt by grantee, 555. consideration, necessity for, 532. estoppel to deny recitals as to, 535. good and valuable, 660. rights of third persons, 199 note 387, 661. connection between consideration and grant, 640 note 37. covenants running with land and personal covenants, 748. restrictive covenants, see "Restrictions." covenants affecting freehold, as passing to heirs, 753. promise of grantee to pay price to third person, right to sue, 715 note 24. parties, 514. certainty, 516 note 36, 517 note 37. 1090 INDEX. [EEFEEENCES ABE TO PAGES.] CONVEYANCES— Cont'd. Xty infant, estoppel to avoid, 251. affirmance, 260. record of instrument of, 279 note 20-*. knowledge as prerequisite, 262. disaffirmance, necessity for, 255. right of subsequent grantee to disaffirm, 254. sufficiency of, 264 note 162, 265. time for, 276. reasonableness, 277. effect of, 280. recovery of property, 280. same — rights of purchaser from grantee, 282. by idiot, 285 note 223. , by lunatic, 294. affirmance, 301 note 273. disaffirmance, necessity for, 301 note 278. right to disaffirm, 302. restoration of status quo, 304. rights of purchaser from grantee, 307. iconstruction (see, also, "Construction of Contract"), of incompatible clauses, the first controls, 805. conditions, exceptions, reservations, and provisos, 811. technical words, 814. against grantor, 817, 819. restriction of general words, as to description, 807. as to quiet enjoyment, 807. surplusage as to description, 803. as to property, 802. as to buildings, 795. conveyance of freehold in futuro as covenant to stand seised, 780. invalid conveyance as agreement to convey, 780. question of fact, 151 note 219. unauthorized alteration of, effect, 840. CONVICTION, of husband, effect on capacity of wife, 312. capacity of convicts to make contracts, 325. suits by and against convicts, 326. INDEX. 1091 [BEFEBEfTCES ABE TO PAGES.] COPYRIGHT, assignment of, necessity for writing, 538. CORNERING MARKET, dealings in futures generally, see "Futures." monopolies and combinations, legality, 443. CORPORATIONS, combinations and trusts, see "Monopolies and Combinations." public corporations, see "Municipal Corporations." unincorporated associations, see "Associations." definition, 221. contractual capacity, 221. agents, 222. seal, 222, 515. sufficiency of, 521. charter limitations, 223. ultr/E vires contracts, 224. distinguished from illegality, 385. promoters' contracts, liability on, 709. offices, agreements involving traffic in, legality, 401. officers, agreements promotive of breach of faith, legality, 397. agreements involving influence on corporate action, legality, 405 note 245. charter, clause in favor of third person, right to sue, 715. amendment of, rendering performance of contract impossi- ble, 829. minutes, as memorandum under statute of frauds, 589. stock, subscriptions, nondisclosure by promoters, 135. fraud on third persons, legality, 389. sales of, nondisclosure by seller, 134. to infant, necessity for disaffirmance, 255 note 138. consideration, certainty of. 642 note 48. possibility of performance of, 642. illegality of object, 477 note 482. speculation, 367. statute of frauds, 560, 581. 1092 INDEX, [EEFEKENCES ARE TO PAGES.] CORPORATIONS— Cont'd. breach of contract, nominal damages, 931. loan by stockholder to third person, usury, 382 note 159. dissolution, lapse of offer, 74. discharge of contract, 831 note 28. receivers, liability on lease to corporation, 746 note 108. quasi public corporations, abandonment of duty, legality of agreements promotive of, 398, 454. foreign corporations, right to do business without compliance with statute, 348. penalty, 342 note 22, 348. CORRECTION, of instruments mistakenly expressed, see "Reformation." of other party's misunderstanding, fraud, 112-115, 144, 145, 152. CORRELATIVE DOCUMENTS, as memorandum, statute of frauds, 603. as constituting one contract, 801. parol evidence of connection, 802. unauthorized alteration of one as discharge, 839, 844. CORRESPONDENCE, by messenger, see "Agency." by letter, see "Letter." • by telegraph, see "Telegram." contracts by, mistake as to identity of party, 104. as memorandum, statute of frauds, 603. CORRUPTION, of public ofiBclals, agreements involving, legislative officers, 404. lobbying contracts, 404. effect of partial illegality, 468 note 455. administrative officers, 406. conflict of laws, 503. nonofficial corruption, of private citizens as to public matters, 411. agreements derogatory to public elections, 412. COST, misstatement cdncerning, as fraud, 148. INDEX. 1093 [eefeeences aee to pages.] COSTS, agreement for payment of, champerty and maintenance, 422 note 309, 426, 427. indemnity against, right to demand, 728 note 62. effect of tender as to, 877. COUNSEL (sej6 "Attorneys at Law"). COUNTER PROPOSAL, as rejection of offer, 72, 78. COUNTERCLAIM, as remedy for misrepresentation, 162 note 258. as remedy for fraud, 184, 186. as remedy for damages for defective performance in action on , contract, 878. right to set off claims acquired against assignor before notice of assignment, 735. right to set off claims existing against assignor at time of assign- ment, 738. COUNTERFEIT MONEY, payment in, 864. COUNTY SEAT. agreement tending to influence location, legality, 412. COURAGE, of party threatened, duress, 194. COURSE AND DISTANCE (see "Metes and Bounds"). COURTS, agreements for arbitration, see "Arbitration." administration of justice in general, see "Justice." removal of causes, see "Removal of Causes." court of claims, 219. COVENANTS, as specialties, 509 note 8. not to sue, as release, 760 note 149. running with property, 745. See, also, "Conveyances"; "Land- lord and Tenant." as to personal property, 745. restrictive covenants, see "Restrictions." COVERTURE (see "Married Women"). CREDIT (see "Maturity"). ' 1094 INDEX. [BEPEEENCES ABE TO PAGES.] CREDITORS, composition with, see "Composition with Creditors." right to urge infancy of debtor, 253 note 129. of assignor, notice of assignment, 734 note 84. agreements working fraud upon, legality, 392. fraudulent conveyance by joint debtor, adequate remedy at law, 758 note 140. rights of, as against voluntary grantee, 661. CRIME Csee, also, "Conviction"), compounding crime, see "Compounding Crime." prosecuting officers, see "Prosecuting Attorneys." threat of prosecution for, as duress, 193. imprisonment for, as duress, 190. agreements promotive of, legality, 349 note 43, 388. knowledge of other party's unlawful intent, 461. CROPS (see "Products"). CRUELTY, to wife, as duress, 191 note 365. CUSTODY, of minor child, waiver of right to, legality, 434. of instrument by third person, alteration, 841. CUSTOM AND USAGE, as to negotiable instruments, see "Negotiable Instruments." misrepresentation of, 143. judicial notice, 245, 741 note 98. words governed by, construction, 814. parol evidence, 788, 814. province of jury, 777. as introducing new terms into contract, parol evidence, 788. D. DAMAGES, recoverable for failure of performance, 106, 892. liquidated, validity of stipulation, 379, 925. damages and penalty distinguished, 926. construction of contract, 926. uncertain value of performance, 928. certain value of performance, 928. comparative values of different stipulations, 929. INDEX. 1095 [befebences ake to pages..] DAMAGES— Cont'd, unliquidated, 930. duty to avoid injury, 895, 930 note 371. nominal damages, 930. profits, 931. speculative and contingent damages, 932. proximate and remote damages, 932. contemplated loss, 932. punitive damages, 934. DATE, of contract, date of acceptance, 79. misdating, effect as to Sunday law, 344, 353. alteration of instrument as to, materiality, 844. of specialty, necessity for, 516. misdating, 516. DAY, fractions of, 228, 648. DEAFNESS, as affecting contractual capacity, 286. DEALERS' TALK, as misrepresentation, 147 note 205. right to rely on, 155 note 237. DEATH, assignment by, 752. See "Executors and Administrators." of offerer or offeree, lapse of offer, 72. of party to joint, several, or joint and several contract, see "Joint and Several Contracts." as rendering performance of contract impossible, 831, 835. See "Executors and Administrators." DEBENTURES, as lottery, 374 note 122. sale of, statute of frauds, 560 note 191. DEBT, action of, in early contract law, 27, 28. of another, promise to pay, statute of frauds, 546, 548. DECEIT (see "Fraud"; "Misrepresentation"). 1096 INDEX. [BBFERENCES ABE TO PAGES.] DECEPTION, as element of fraud, 166. DECLARATION (see "Pleading"). DEED, contracts under seal in general, see "Specialty." of conveyance of real estate, see "Conveyances"; "Vendor and Purchaser." definition, 509. indenture, 514. poll, 514. DEFAMATION (see "Libel"). DEFAULT (see "Breach of Contract"). DEFECTS, in drawing instrument, see "Clerical Errors." in subject-matter of sale, duty to disclose, 114, 132, 133. in title of seller, duty to disclose, 132, 133. DEFINITENESS (see "Certainty"). DEFINITIONS, of agreement, 7, 14. of contract, 6. of obligation, 10, 17. of quasi contract, 23. for other definitions, see the various heaas. DEGREES OF GUILT, legality of contract, 493. DEL CREDERE AGENTS, statute of frauds, 553. DELAY (see, also, "Laches"; "Limitation of Actions"; "Tim!","), in transmission of acceptance, 52, 53. DELEGATION OF AUTHORITY (see, also, "Agency"), by agent, 65. by officer, legality, 399. DELICT (see "Tort"). INDEX. 1097 [befbeences aee to pages.] DELIVERY, of goods under contract of sale, see "Futures"; "Sales." of memorandum, statute of frauds, 603. of specialty, see "Specialty." of written contract generally, see "Written Contracts." of writing as prerequisite of contract, 354. of writing evidencing acknowledgment of barred debt, 951 note 433. DELUSIONS (see "Insanity"). DEMAND, for money paid, as disaffirmance by infant, 264 note 162. as condition precedent, 914. waiver, 898 note 281. DEMENTIA (see "Insanity"). DEMURRER (see "Pleading"). DENTISTS, services as a necessary, infancy, 239 note 71. DEPENDENT PROMISES (see "Conditions"). DEPOSIT, depositum, see "Bailment." of forfeit, see "Forfeiture." of letter, see "Letter." DEPRECIATION, in value, see "Value." DEPUTIES (see "Offices"). DERANGEMENT (see "Insanity"). DEROGATION OF LAW, contracts in, strict construction, 791. DESCRIPTION, of parties, see "Parties to Contract." of subject-matter, see "Subject-Matter." DESERTION (see, also, "Abandonment"), by infant mariner, as avoidance of contract of service, 264 note 162. of wife, effect on capacity, 313 note 323. 1098 INDEX. [BEFEEEKCES ABB TO PAGES.] DESIGN (see "Intention"). DESTRUCTION, of consideration, as dispensing with return on rescission, 180. of negotiable instrument, as elfecting discharge, 846 note 92. of property, threat of, as duress, 195. of subject-matter, as failure of consideration, 700. as rendering performance impossible, 828, 830, 835, 836 note 46. DETACHED PAPERS, as one contract, 801. DETENTION, of person as duress, 190. of goods as duress, 195. DETERIORATION, in value, see "Value." DETINUE, against infant, 249. DETRIMENT. as consideration for contract, see "Consideration." to sane party as defeating right of incompetent to rescind, 3115. DIFFERENCE, as affecting agreement, 15. agreement to settle in cash, see "Futures." DIFFICULTY OF PERFORMANCE, as discharging contract, 826. DILIGENCE, want of, generally, see "Laches"; "Negligence." DIPLOMATIC AGENTS, of foreign state, jurisdiction of state over, 218 note 8. DISABILITY (see "Capacity"; "Inability"). DISADVANTAGE, as consideration for contract, see "Consideration." DISAFFIRMANCE (see "Rescission"). INDEX. 1099 [BEFERENCES AEE TO PAGES.] DISAGREEMENT, distinguished from mistal^e, 95, 112. as defeating contract, see "Agreement." DISCHARGE, Of contract, see "Discharge of Contract." of right of action for breach of contract, 942. See "Breach of Contract." gratuitous discharge of debt by sealed instrument, see "Release." agreement to discharge prisoner, legality, 395 note 203. of person from wrongful imprisonment, consideration, 189 note 357. of goods from wrongful detention, consideration, 195 note 375. of mortgage, statute of frauds, 561. DISCHARGE OF CONTRACT, in general, 4, 824. by operation of law, 824. impossibility of performance, 824. See "Impossibility of Performance." arising from change in law, 829. arising from destruction of subject-matter, 830. arising from death or disability of party, 831. effect of discharge — quasi contract, 834. difficulty, inconvenience, or imprudence of performance, 826. merger, 836. See "Merger." alteration of instrument, 838. See "Alteration of Instru- ments." by stranger, 840. intent, 841. by consent, 842. materiality, 842. loss of instrument, 839, 845. destruction of instrument, 846 note 92. bankruptcy, 846. See "Bankruptcy." by operation of terms of contract, 846. conditions subsequent, 826, 847, 850, 911. See "Conditions." options to determine contract, 849. right of buyer to return goods, 850. by new contract, 838, 842, 851. See "New Contract." waiver or rescission, 852. See "Rescission"; "Waiver." substitution of contract, 855. See "New Contract." new contract, 856, 857. new terms, 856, 858. new parties — novation, 856, 858. See "Novation." form of new contract, 860. 1100 INDEX. [EEFKKENCES ABE TO PAGES.] DISCHARGE OP CONTRACT— Cont'd. by performance, 855, 863. See "Performance of Contract." payment, 863. See "Payment." by negotiable instrument, 860 note 140, 865. of tbird person, 867. presumption of, 868. by volunteer, 869. appropriation of, 870. tender, 872. See "Tender." by whom and to whom, 873. time, place, mode, amount, and means, 874. conditions, 876. keeping good, 876. effect, 877. substantial performance, 877. satisfactory performance, 879. time of performance, 828, 881. See "Time." as essence of contract, 882. at law, 883. in equity, 883. alternative promises, 886. See "Alternative Promises." election by promisor, 887. election by promisee, 888. time of election, 889. effect of election, 890. by breach, see "Breach of Contract." in general, 890. rights and remedies of innocent party, 891, 923. repudiation of contract, 892, 895. See "Repudiation of Con- tract." by promisor, 893. by promisee, 895. ' prevention of performance, 897. See "Prevention." by promisor, 897. by promisee, 899. inability to perform when contract is made, 898. failure of performance, as working discharge of contract, 901. See "Breach of Contract." independent promises, 901, 902. See "Independent Prom- ises." absolute promises, 903. divisible contracts, 907. See "Divisible Contracts." subsidiary promises, 910. INDEX. 1101 [REPEKENCES ABE TO PAGES.] DISCHARGE OF CONTRACT— Cont'd. conditional promises, 901, 911. See "Conditions." conditions subsequent, 847, 911. concurrent conditions, 912. conditions precedent, vital and suspensory conditions, 888, 913. failure of consideration, 701, 916. conditions proper, 127, 918. waiver of conditions, 897, 898 note 281, 921. remedies for breach of contract, see "Breach of Contract." discharge of right of action for breach, 942. by consent, 943. release, 943. See "Release." accord and satisfaction, 943. See "Accord and Sat- isfaction." by judgment, 945. See "Judgments." by award of arbitrators, 945, 947. See "Arbitration." by limitations, 947. See "Limitation of Actions." as affected by misrepresentation, 125. consideration for, payment before maturity, 669. payment in different manner or place from that agreed on. 669. part payment, 669, 671. waiver of right to agree to discharge, as consideration, 674. discharge of pre-existing debt as past consideration, 647 note 61. right to discharge promise made for benefit of third person, 716 note 24. DISCLOSURE (see "Nondisclosure"). DISCOUNT, of note, usury, 377 note 131, 381. bona fide holder, 377 note 131. DISC0VB31Y, of ground for avoidance, as prerequisite of affirmance, see "Knowledge." of cause of action, as prerequisite to bar by limitations, 949. DISCRETION, in awarding decree for specific performance or injunction against breach of contract, 935. DISEASE, duty to disclose, 133 note 148. 1102 INDEX. [BEFBBENCES ABE TO PA.GBS.] DISPARITY, in intellect, 284. in values of considerations exchanged, see "Consideration" (ad- equacy of consideration). DISPUTE, as element of compromise, 684. DISSATISFACTION, as precluding contract, 78. DISSOLUTION, of corporation, see "Corporations." of partnership, see "Partnership." DISTANCE, course and distance, see "Metes and Bounds." as specified in contract in restraint of trade, how measured, 455 note 411. DISTORTION OF TRUTH, as concealment, 145. DISTRESS, taking advantage of, undue influence, 209. DIVISIBLE CONTRACTS, definition, 907. single and apportionable consideration, 907. construction of contract as to divisibility, 467, 470 note 461, 801 note 75, 909. partial illegality, 466. partial failure of consideration, 703. recovery for part performance, 62, 892, 907. DIVORCE (see, also, "Alimony"; "Separation"), effect on wife's capacity, 313. a mensa et thoro, 313. a vinculo matrimonii, 314 note 326. agreements promotive of, legality, 433. dismissal of suit for, as consideration, 434. DOCTORS (see "Physicians"). DOLLARS, as denomination, omission of, construction, 800 note 73. INDEX. 1103 [REFEBENOES ABE TO PAOES.] DOMEiSTIC RELATIONS. agreements tending to injure, 430. agreements affecting the marriage relation, 431. agreements affecting the parental relation, 434. generally, see "Relationship," and various heads. DOUBT, as affecting agreement, 15. as to claim, see "Compromise and Settlement." DOWER, waiver of, statute of frauds, 561 note 194. DRAFT, commercial, see "Negotiable Instruments." military, see "Army and Navy." DRUNKENNESS, as affecting contractual capacity, 288, 292. in general, see "Insane Persons"; "Insanity." sober interval, see "Lucid Interval." rights of third persons, 289 note 240, 307 note 305. inquisition, 289, 290, 295, 298. fraud in inducing, 289 note 240. undue influence of subject, 289, 292, 293. DUMBNESS, as affecting contractual capacity, 286. DUPLICATE, contracts executed in. variance, construction, 801 note 75. effect of unauthorized alteration of duplicate, 839. order for goods in, signature, statute of frauds, 599. DURESS, in general, 94, 188. definition, 188. by whom exercised, 188. subject of, 189. inducement to contract, 189. of imprisonment, 190. threat of, 193. per minas, 191, 210 note 425. of goods, 195. effect, 196. 1104 INDEX. [EEPEBENCES ABE TO PAGES.] DURESS— Cont'd. inducing illegal agreement, par delictum, 494. seal as precluding defense of, 531 note 94. recovering back money paid or property delivered under, 195 note 375, 666. DUTY (see, also, "Moral Obligation"), distinguished from obligation, 710. to respect contract between others, 710. agreements promotive of dereliction of, legality, 395. indemnity, 476. effect of partial illegality, 468 note 455, 470 note 461, 471 note 463. doing another's duty as past consideration, 650. doing duty as consideration generally, 662. See "Considera- tion." EARLIER AND LATER CLAUSES, construction of contract, 805. EARNEST, definition, 585. statute of frauds, 585. as dispensing with subsequent tender of property by seller, 913 note 319. EARNIN<1S, right of infant to, 227'. EASEMENTS, creation, statute of frauds, 564. as running with land, 750. EDUCATION, teachers, see "Teachers." as a necessary, infancy, 239. EFFECT OF CONTRACT (see "Legal Effect"; "Operation of Con- tract"). ELECTION, public elections to office, see "Elections." to enforce or to reject contract, 30. mistake, 120. INDEX. 1105 [BEEEBENCES ABE TO PAGES.] ELECTION— Cont'd. misrepresentation, 140. fraud, 173. duress, 196. undue influence, 211. infants, 228. 252. insane persons, 292. as to performing or breaking contract, waiver of right of, as consideration, 667. as to termination of lease, construction, 817. to determine contract, conditions subsequent, 849. under promise in the alternative, 886. See "Alternative Prom- ises." ELECTIONS, election as choice generally, see "Election." agreements bj' candidates involving traffic in office or emolu- ments, legality, 399 note 220, 402. agreements derogatory to integrity of, 412. location of county seat, legality of agreement tending to influ- ence, 412. wagers on, legality, 364, 492 note 528. EMANCIPATION, of child by parent, 227. of slaves; contract for, 328 note 379. EMBARGO, as discharging contract by rendering performance impossible, 829 note 19. EMBEZZLEMENT, compounding crime, legality, 415 note 283. EMBLEMENTS (see "Products"). EMPLOYERS' UNIONS, legality, 448. EMPLOYMENT (see "Master and Servant"). ENDOWMENT, marriage benefit insurance, legality, 367 note 103. ENEMIES, In general, see "Aliens." acts of, as exception in charter party and bill of lading, 848. acts of, rendering performance of contract impossible, 827. Contracts — 70. 1106 INDEX. [befebbnces ase to pages.] ENGAGED PERSONS (see "Affianced Persons"). ENGROSSING MARKET (see "Monopolies and Combinations"). ENLISTMENT (see "Army and Navy"). ENTIRE CONTRACTS (see "Divisible Contracts"). ENTIRE WRITING, to be considered in construing contract, 802. ENTRIES IN BOOKS, as memorandum, statute of frauds, 589. EODEM LIGAMINE QUO LIGATUM EST DISSOLVITUR, 860 note 141. EQUITABLE ASSIGNMENT (see "Assignment of Contract"). EQUITABLE CONSTRUCTION, of contract, 792. See "Construction of Contract." EQUITABLE ESTOPPEL (see "Estoppel"). EQUITABLE INTEREST. sale of, statute of frauds, 560, 561 note 194. EQUITIES, rights of assignee of contract as against, 737. negotiable instruments, 743. I ERASURE, alteration of instrument by, 839. ERROR, writ of, see "Writ of Error." induced by mistake, see "Mistake." induced by misrepresentation, see "Misrepresentation." induced by fraud, see "Fraud." in transmitting offer by wire, effect, 44. of judgment, not ground for relief, 112. ESCAPE, indemnity against liability for aiding in, legality, 476. ESCHEAT, for alienage, 319 note 349. ESCROW, definition and requisites, 525. sufficiency of delivery, statute of frauds, 603 note 377. INDEX. HOT [bbferences akb to pages.] ESSENCE OF CONTRACT, mistake must concern, to justify relief, 107. time as, see "Time." ESTOPPEL, by deed, see "Specialty." by judgment, see "Judgments." as to title, 534 note 106, 609 note 397. to deny agency, 64. to deny agreement, 8, 16, 58, 100, 106, 110, 120. for forbearance as to right of action, 678. to deny consideration, 639, 689, 691. to deny knowledge of falsity, 159. to deny materiality of misrepresentation, 167. to deny regularity of execution of deed, 516. to deny truth of misrepresentation, 129. to deny value of consideration, 693. to enforce draft against acceptor, 854 note 115. to urge coverture, 311. to urge illegality of agreement, 474 note 470. to urge infancy, 250. to urge Insanity, 305. to urge negligence, fraud, 156. to urge statute of frauds, 609. EVASION, of answer, as concealment, 146. of process, 418 note 294. partial illegality, 471 note 463. of statute, 341 note 19, 344, 376. of law of forum, conflict of laws, 502. EVIDENCE, parol, see "Parol Evidence." presumptions, see "Presumptions." witnesses, see "Witnesses." judicial notice, of ordinary meaning of ordinary words, 777. of customs and usages, 245, 741 note 98. of Sunday, 352. secondary, of lost instrument, 845. legality, agreement to supply, champerty, 426. suppression of, in criminal prosecution, 418 note 294. waiver of rules of, 414. 1108 INDEX. [EBFBEENCES ABE TO PAGES.] EX ANTECBDENTIBUS BT CONSEQUENTIBUS FIT OPTIMA IN- TERPRETATIO, 798 note 66. EX DOLO MALO NON ORITUR ACTIO, 486. EX POST FACTO, fraud, 129, 146, 152. warranty, 128. EXACTION AND EXTORTION, of fees of oflSce, see "Officers." of interest, see "Interest"; "Usury." as duress of goods, 196. EXCEPTIONS, strict construction, 811. EXCHANGE, of property, by infant, voidability, 231 note 42. of oflSces, legality, 399. dealings on, see "Futures." EXCISE (see "Revenue Laws"). EXCLUSION, of one, by mention of another, construction, 808 notes 100 and 104. EXCLUSIVE RIGHTS, in Invention, as monopoly, 440. grant of, by railroad company to telegraph company, monopoly, 443 note 370. EXCOMMUNICANTS, contractual capacity, 327. suits by and against, 327. EXECUTED CONSIDERATION, generally, see "Consideration." definition, 634. EXECUTED CONTRACTS, definition and nature. 11, 12. of infant, necessity for disaffirmance, 255. for necessaries, validity, 246 note 105. what constitutes affirmance of, 257. INDEX. 1109 [BEPEEENCES ABE TO PAGES.] EXEJCUTBD CONTRACTS— Cont'd. restoration of status quo, 272, 281. time for avoidance, 276. of insane person, avoidance, 304. of sale of goods, 576. efCect of unauthorized alteration of, 839. performance of contract as rendering certain rules inapplicable, see "Performance of Contract." EXECUTION OF CONTRACT, as meaning performance, see "Performance of Contract." as meaning signing, etc., of sealed contracts, see "Specialty." of parol written contracts, see "Written Contracts." EXECUTION OP JUDGMENT, against joint promisors, 757. levy, see "Levy." EXECUTORS AND ADMINISTRATORS, liability for debts of decedent before appointment of adminis- trator, 678. duress of heir by, 192 note 365. right to a£Srm contract of infant decedent, 254. right to urge illegality of decedent's contracts, 484. right to urge infancy of decedent, 253. right to urge insanity of decedent, 302. right to urge statute of frauds, 616. right to personal estate of decedent, 753. contracts of decedent, right to perform and to compel performance, 753, 834. contracts involving personal skill or confidence, 753, 831. contracts involving purely personal loss, 754. personal liability of representatives, 755. joint, several, or joint and several contracts, see "Joint and Several Contracts." personal liability, 755. promise to answer personally, statute of frauds, 546. See, also, "Statute of Frauds." consideration, 545. sufficiency of memorandum, 590. right to urge statute, 616. legality of contracts, agreements involving breach of trust, 396 note 208. agreements involving traffic in ofiice, 400 note 221. assignment of fees, 402 note 233. 1110 INDEX. [befeeences are to pages.] EXECUTORY CONSIDERATION, generally, see "Consideration." definition, 634. EXECUTORY CONTRACT, definition, 11. of infant, necessity for ratification, 255. what constitutes ratification, 257. what constitutes disaffirmance, 264. restoration of status quo, 272. time for avoidance, 276. of insane person, avoidance, 305. illegality, rescission, 491. of sale of goods, 576. EXEMPTION, from liability for negligence, legality of stipulation for, 436, 791. EXILE (see "Banishment"). EXISTENCE OF SUBJECT-MATTER, mistake as to, 108. mutuality, 109. EXPATRIATION (see "Abjuration of Realm"; "Citizenship"). EXPECTANT INTERESTS, generally, see "Future Property." taking advantage of owner of, undue influence, 209. EXPECTATION (see, also, "Expectant Interests"), of ability to pay, lack of, as fraud, 134 note 152. statement of, not a promise, 83 note 168. not a representation, 140, 146. right to rely on, fraud, 155 note 237. EXPRESS COMPANIES (see "Carriers"). EXPRESS CONTRACTS, definition, 16, 25, 41. classification, 24. distinguished from implied contracts, 54, 56. exclude implied contract, 61. BXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, 808 notes 100 and 104. INDEX. nil [REPEEENOES ABE TO PAGES.] EXTENSION, of time for payment, see "Maturity." EXTINCTION (see "Dischiarge" ) . EXTORTION (see "Exaction and Extortion"). EXTRA WORK, implied contract to pay for, 61. as consideration, 667. EXTRADITION, stifling proceedings for, legality, 418. FACT (see "Law and Pact"). FACTORS, commission as usury, 382 note 158. generally, see "Agency"; "Brokers." FAILURE, of consideration, 695, 916. See "Consideration." of performance, as failure of consideration, 695, 916. See "Consideration.' as breach of contract, see "Breach of Contract." FAIRNESS OF CONTRACT, as prerequisite to injunction against breach, 941. as prerequisite to decree for specific performance, 947. necessity for, insane persons, 303, 306. FALSA DEMONSTRATIO NON NOCET, 803. FALSE PERSONATION, inducing mistake as to other contracting party, 103. by physician, fraud on public, legality, 394. FALSE PRETENSES, compounding crime, legality, 415 note 283. FALSITY, of representation, as element of fraud, 151. 1113 INDEX. [HEFERENCES ARE TO PAGES.] FAMILY, relationship in general, see "Relationship." expenses, as necessaries of infant husband, 245. as necessaries of lunatic husband, 299. TATHER (see "Parent and Child"). FAVORABLE CONSTRUCTION, of contract, 790. See "Construction of Contract." PEAR (see "Duress"). PEES, of attorneys at law, see "Attorneys at Law"; "Champerty." of officers, see "Offices"; "Officers." of witnesses, see "Witnesses." FELONY (see "Crime"). FEME COVERT AND FEME SOLE (see "Married Women"). FENCES, covenants as to, as running with land, 749 note 117. as creating incumbrance, 750 note 118. FEOFFMENT (see "Conveyances"). FERTILIZERS, regulation of sale of, 349 note 43. FIANCE AND FIANCEE (see "Affianced Persons"). FIDELITY BOND, legality, 414, 848 note 95. FIDUCIARY RELATIONSHIP (see "Relationship," and various heads ) . FIGURES (see "Numerals"). FIRE, as rendering performance of contract impossible, 826, 828, 830. FIRE INSURANCE (see "Insurance"). FIREMEN, doing duty as consideration, 664. INDEX. 1113 [BEPEEENCES ARE TO PAGES.] FIRMNESS, Of party threatened, duress, 194. FLOOD, as act of God, 848 note 97. FOOD, as a necessary of an infant, 238. FOOLISHNESS (see "Mental Weakness"). FORBEARANCE, as consideration, 675. See, also, "Consideration." FORCE (see "Duress"). FORCED BENEFITS (see "Benefits"; "Volunteers"). FOREIGN CONTRACTS (see "Conflict of Laws"). FOREIGN CORPORATIONS (see "Corporations"). FOREIGN LAW, ignorance of, 117 note 80, 463 note 440. change in, as rendering performance of contract impossible, 829. FOREIGN STATES, contractual capacity, 217 note 1. contractual remedies, 220 note 12. FOREIGNERS, generally, see "Aliens." unfamiliarity witli language, mistake, 99. FORESTALLING THE MARKET, legality, 443. FORFEITURE, construction of contract as to, 791, 816 note 133. for outlawry or conviction, 326. distinguished from earnest, statute of frauds, 586. recovery back of deposit from vendor by purchaser, 622. penalty and liquidated damages, 925. vendor and purchaser, 930. FORGERY, compounding crime, legality, 415 note 283. payment in forged paper, 864. 1114 INDEX. [kefebences are to pages.] PORGETFULNESS, as excuse for misrepresentation, 158. FORM. of offer and acceptance, 39. promise, 40. express and implied offer and acceptance, 40. simple assent, 41. act for promise, 41. promise for act, 41. promise for promise, 42. general offer, 75. of communication of acceptance, 50, 71. of acceptance of deed, 528. of affirmance of contract made in infancy, 258, 261. of appointment of agent, 63. of assignment of contract, 733. of avoidance of contract made in infancy, 264. of contract generally, see "Form of Contract." of delivery of deed, 523. of memorandum required by statute of frauds, 589. of wager, 362 note 89. FORM OF CONTRACT, in general, 3, 30, 507. classification of contracts, 508. informal, 508, 510. formal, 509. contracts of record, 509, 510. See, also, "Contracts of Record." contracts under seal, 509, 513. See, also, "Specialty." parol contracts required to be in writing, 509, 536. See, also, "Written Contracts"; "Statute of Frauds." intent to execute formal contract as precluding contract before execution, 79, 86, 508. FORMATION OF CONTRACT, in general, 1, 30. offer and acceptance, 2, 30. See, also, "Offer and Acceptance." reality of consent, 2, 30. See, also, "Reality of Consent." capacity of parties, 2, 30. See, also, "Capacity." legality of object, 3, 30. See, also, "Legality of Object." form of contract, 3, 30. See, also, "Form of Contract." consideration, 3, 30. See, also, "Consideration." FORMER ADJUDICATION (see "Judgments"). INDEX. 1115 [eefeisences ake to pages.] FORNICATION (see "Sexual Immorality"). FRACTIONS, of day, computation of time, 228, 648. FRAGMENTARY STATEMENTS, as constituting concealment, 145, 152. FRAUD, In general, 94, 142. definition, 142. legal and constructive, 124. distinguished from mistake, 98. distinguished from simple misrepresentation, 123. misrepresentation, as element of fraud, 142. necessity for communication of, 165 note 268. character of representation, 142. conduct, 143. nondisclosure, 114, 115, 125, 143. concealment, 145. statements of opinion, expectation, or prediction, 146. statements of motive or intention and promises, 149. representations of law, 150. falsity of representation, 151. materiality of representation, 153. right to rely on representation, 154. knowledge of falsity, 123, 124. actual and constructive knowledge, 157. reckless misstatement, 123-125, 159. statements as of personal knowledge, 160. belief in representation, 161. intention to deceive, 125, 148, 158 note 245, 163. motive, 124, 163. object of intention, person deceived, 164. necessity for deception, 152, 166. necessity for injury, 153 and note 228, 168. representations of third person, 169. agency, 169. effect, 98, 172. mutuality, 684. what constitutes affirmance, 174, 458 note 421. I lapse of time, 176. what constitutes rescission, 177. attack of contract in suit, 178. 1116 INDEX. [befeeences akb to pages.] FRAUD— Cont'd. limitations upon right to rescind, aflSrmance, 178. lapse of reasonable time, 178. change of circumstances, 178, 458 note 421. acquisition of rights by third persons, 181, 738, 739. remedies, 183. after affirmance, 183. after rescission, 184. in sales of goods, see "Sales." in getting possession of deed, delivery, 523. in inducing drunkenness of other party, 289 note 240. in misrepresenting name of party, 103. in releasing joint promisor, 763 note 161. in concealing right of action, limitations, 949. as element of alteration of instrument, 841, 843. as dispelling presumption of consideration for negotiable Instru- ment, 742. Inadequacy of consideration as evidence of, 694. want of consideration as evidence of, specialty, 533. of infant, liability, 249. of married woman, liability, 310. as affecting legality of object, fraud on third persons, agreements promotive of, 391. fraud on public, partial illegality, 468 note 455. fraud inducing illegal agreement, par delictum, 494. right of action for fraud, assignment, maintenance, 425. seal as precluding defense of fraud, 531 note 94. upon statute, 341 note 19, 344, 376. FRAUDS, STATUTE OF (see "Statute of Frauds"). FRAUDULENT CONVEYANCES (see "Creditors"). FREEDOM OF WILL (see "Agreement"; "Realty of Consent"). FREEHOLD, conveyance in futuro as covenant to stand seised, 780. assignment of covenants affecting, 748. FREIGHT, carriage by land, see "Carriers." carriage by water, see "Shipping." "FROM," meaning, 791. INDEX. 1117 [JUEPEBENCES ABE TO PAGES.] FRUCTUS INDUSTRIALBS (see "Products"). FRUCTUS NATURALBS (see "Products"). FRUIT, as a product, generally, see "Products." as a necessary, infancy, 239 note 72. FUGITIVE FROM JUSTICE, capacity of wife of, 313 note 323. stifling extradition proceedings, legality, 418. FUNERAL EXPENSES, of husband of infant, necessaries, 240. FUTURE ACTS. expression of intention as to, as creating contract, 83. FUTURE AGREEMENT, leaving matters to, precludes a contract, 86. FUTURE PROPERTY, sales of, 369. assignment of, in equity, 730. covenants concerning, landlord and tenant, 746. FUTURES, wagering transactions in general, see "Wagers." cornering market, 443. dealings in, legality, 367. right of innocent party to enforce contract, 458. right of broker to commissions and advances, see "Brokers." money placed with broker for speculation, recovery back, 490. See, also, "Wagers." G. GAMBLING CONTRACT, definition, 361 note 89. wagers generally, see "Wagers." GARNISHMENT (see "Attachment"). GENERAL AGENT (see, also, "Agency"), definition, 64. 1118 INDEX. [BEFEEENCES ABE TO PAGES.] GENERAL OFFERS, certainty as to parties, 15 note 24, 74, 102. necessity for communication of, 43, 76. acceptance of, necessity for, 75. communication of, necessity, 48, 55 note 51. time for, 49 note 31. revocation of, 66 note 98, 76. communication of, 70, 76. who may accept, 74, 102, 103 note 28. intention to contract. 76. invitations to negotiate, 76. GENERAL WORDS (see "Construction of Contract"). GENUINENESS, of consent, see "Reality of Consent." of consideration, 636, 640. of means of payment, 864. GIFT, as contract, 11. promise to make, statute of frauds, 566. consideration, 631 note 12, 632. effect of performance, 632. rights of suhsequent purchasers, 632 note 16. of debt to debtor, consideration, 674. of negotiable instrument to maker, 854. specific performance, mutuality, 937 note 393. GIFT ENTERPRISE, as lottery, 374 note 122. GOD, act of (see "Act of God"). GOOD CONSIDERATION. distinguished from valuable, 659. See "Consideration.' GOOD MORALS (see "Sexual Immorality"). GOOD WILL. as consideration, 636 note 28. GOODS (see "Personal Property"). GOVERNMENT (see "Public Contracts"; "States"). INDEX. 1119 [references are to pages.] GRAIN, regulations as to threshing and sales, 350 note 45. speculation in, 367. GRAMMAR, observance in construing contract, 799. GRANDPARENT AND GRANDCHILD, duress, subject of, 189 note 356. undue influence, presumption of, 204 note 401. GRANTS, generally, see "Conveyances." by state, construction, 819. GRASS (see "Products"). GRATITUDE, as consideration, see "Moral Obligation." GRATUITY (see "Benefits"; "Gift"; "Volunteers"). GUARANTY (see "Suretyship and Guaranty"). GUARD, of insane person, services as necessaries, 299 note 267. GUARDIAN AND WARD, nondisclosure as between, 131. undue influence, presumption, 204. right of guardian to urge infancy of ward, 254 note 130. right of guardian to urge insanity of ward, 302. affirmance of conveyance by guardian of infant, 260. guardianship of lunatic or drunkard, contractual capacity, 289, 290, 295. guardianship of spendthrift, contractual capacity, 308. GUILT, degrees of, par delictum, 493. H. HABITUAL DRUNKENNESS. drunkenness in general, see "Drunkenness." as affecting contractual capacity, 289. 1120 INDEX. [BEFEBENOES ABE TO PAGES.] HEIRS (see, also, "Next of Kin"), expectant, see "Expectant Interests." and administrator, duress as between, 192 note 365. rights as privies in blood, see "Privies." right to urge insanity of ancestor, 302. right to urge illegality of ancestor's contract, 484. HIGHWAYS, agreement not to oppose establishment, legality, 411. HINDRANCE (see "Prevention"). HIRE (see "Bailment"). HOMICIDE, promise to commit, legality, 389. part performance, recovery back of consideration, 491. HORSE, as a necessary, infancy, 239 note 72, 240 note 77. stud owner, license, 348 note 40. HOTEL-KEEPERS (see "Innkeepers"). HOURS, computation of time, fractions of day, 228, 648. HUSBAND AND WIPE (see, also, "Widow"), marriage generally, see "Marriage." contractual capacity of wife, see "Married Women." abandonment of marital rights, see "Abandonment." desertion, see "Desertion." voluntary separation, see "Separation." divorce, see "Divorce." duress, subject of, 189. as between husband and wife, 191 note 365, 193 note 370. undue influence, presumption, 205. infants, liability for wife's antenuptial debts, 236. liability for family supplies, 245. lunatics, liability for family supplies, 299. agreements involving inquiry into family life, legality, 432. doing domestic duty as consideration, 665. conveyance by wife, personal covenants of husband, 749 note 117. rights of husband in wife's property, 752. INDEX. 1121 [KEPBKENOES ABE TO PAGES.] I. ICE, as personalty, statute of frauds, 564. ID CERTUM EST QUOD CERTUM REDDI POTEST, 89. IDENTITY, of acceptor of ofEer, 74, 102. of contracting party, mistake, 101. as to buyer, 32, 104 note 31. as to seller, 102. as to agency, 104. mutuality, 105. of subject-matter, mistake, 109. IDIOCY, definition, 283-285. distinguished from weakness of mind, 285 note 223. idiots, contractual capacity, 285. presumption of acceptance of deed, 529 note 89. IDLE WAGERS, legality, 364. IGNORANCE (see "Foreigners"; "Illiteracy"; "Knowledge"), distinguished from incapacity, 284. of law, 117, 262, 301, 384, 463, 659 note 97. taking advantage of, undue influence, 201, 210 note 425. of right of action, limitation of actions, 949. IGNORANTIA JURIS HAUD EXCUSAT, 118. ILLEGAL AGREEMENTS, generally, see "Legality of Object." distinguished from void agreements, 334, 468 note 455, 473. implication of contract from unlawful acts, 62 note 77. as past consideration, 653. consent to rescission of, as consideration, 677 note 176. application of payment to, 871 note 180. ILLEGITIMACY (see "Bastardy"). ILLICIT COHABITATION (see "Sexual Immorality"). 1122 INDEX. [befekexcbs ake to pages.] ILLITERACY, as inducing mistake as to nature of transaction, 99, 101. of foreigners, 99. ILLNESS (see "Sickness"). ILLUSORY PROMISE. as precluding contract, 88. as defeating mutuality, 683. IMBECILITY (see "Idiocy"). IMMORAL AGREEMENTS (see "Legality of Object"; "Sexual Im- morality"). IMPLIED CONTRACTS, contracts implied in law, see "Quasi Contract." definition, 16, 25, 41. classification, 24, 510. as oral contracts, 510 note 11. distlnguislied from Quasi contracts, 17, 23, 54. distinguished from express contracts, 54, 56. communication of offer or acceptance, 56. moment of, 57. sufBciency of, 57. limits of doctrine of implied contract, 58. necessity for actual agreement, 58. payment by volunteer, 869. relationship of parties, 59. implication of contract from tort, 60. express contract as excluding implication, 61. implication of invalid contract, 62. implication from unlawful acts, 62 note 77, 483 note 502. in reference to Sunday transaction, 358. of corporation, validity, 222. arising from past consideration, 648. to forbear as to right of action, 679. for contribution, 772 note 198. for goods, 56. for marriage, 681 note 192. for services, 55. IMPOSITION (see "Duress"; "Fraud"; "Undue Influence"). IMPOSSIBILITY OP PERFORMANCE (see, also, "Possibility"), as discharging contract, 641, 824, 849. in general, 825. alternative promises, 889, 890 note 248. INDB3X. U23 [REFEBENOES ABE TO SAGES.] IMPOSSIBILITY OF PERFORMANCE— Confd. created by promisor, 897. caused by promisee, 700. change in law, 345, 829, 835, 896. embargo, 829 note 19! foreign law, 829. destruction of subject-matter, 828, 830, 835. death or disability of party, death, 831, 835. dissolution of corporation or partnership, 754 note 129, 831 note 28. mental or physical disability, 832, 835. effect of discharge — auasi contract, 834. recovery for beneiits conferred by part performance, 835. recovering back money, 836. IMPRISONMENT, duress of, see "Duress." threat of, duress, 193. undue influence, 210 note 425. discharge from, as consideration, 189 note 357. IMPROVEMENTS, on property of infant, necessaries, 241. affirmance of contract, 260 note 144. reimbursement for, on rescission, 272 note 178. on realty, by purchaser under oral agreement, recovery for, 620. by donee, as supplying consideration, 937 note 393. IMPROVIDENCE, of spendthrift, see "Spendthrifts." distinguished from incapacity, 284. taking advantage of, undue influence, 201, 209. IMPRUDENCE OF PERFORMANCE, as discharging contract, 826. IN PARI DELICTO, POTIOR EST CONDITIO DEFENDENTIS BT POSSIDENTIS, 489. INABILITY, to perform promise when made, as breach, 898. to perform, caused by party to contract, as breach, 897. See "Prevention." 1124 INDEX. [Ma'EKENCBS ABE TO PAGES | INACCURACIES, clerical errors, 800. INADEQUACY (see "Adeauacy"). INCAPACITY (see "Capacity"). INCOMPATIBLE CLAUSES, construction of contract, 804. INCOMPLETE NEGOTIATIONS, as contract, 86. INCONVENIENCE OP PERFORMANCE, as discharging contract, 826. INCUMBRANCES, mortgages, see "Mortgages." duty to disclose, 132, 133. covenant against, as running with land, 748. INDEPINITENESS (see "Certainty"). INDEMNITY, against arrest, see "Arrest." against costs, maintenance, 422. right to demand. 728 note 62. against levy, see "Levy." against liability to accrue from illegal act, legality, 476. aiding in escape, 476. neglect or violation of duty, 476. publishing libel, 476. against seizure of property, 464 note 442. bond, recital as restricting condition, 809. contract of, as within statute of frauds, 556. consideration, 638 note 31, 651. as affecting right to contribution, 773 note 199. as justifying recovery on lost bill or note, 845. INDENTURE, definition, 514. INDEPENDENT CONTRACTORS, liability of master to employe of, 709. INDEX. 1125 [beiebkenoes are to pages.] INDEPENDENT PROMISES, as distinguished from, conditional promises, 699, 902. absolute promises, 903. order of performance, 905. divisible contracts, 907. See "Divisible Contracts." subsidiary promises, 910. construction of contract as to, 792, 902, 904, 909. stipulation for arbitration, 420, 914 note 321. INDICTMENT, agreement to prevent, legality, 417 note 292. INDIRECT MEANS (see "Evasion"). INDIVISIBLE PROMISES (see "Divisible Contracts"). INDUCEMENT TO CONTRACT, misrepresentation as, 166. duress as, 189. INDULGENCE, as to time of payment, see "'Maturity." INEQUALITY (see "Equitable Construction"). INEVITABLE ACCIDENT (see "Accident"). INFANCY, definition, 226. generally, see "Infants." INFANTS, definition, 226. males, 228. females, 228. computation of age, 228. contractual capacity, 228. contracts void and voidable, 229. valid contracts, 232. presumption of acceptance, of deed, 39 note 5, 42 note 11, 47 note 22, 529 note 89 of promise for his benefit, 716 note 24. quasi contracts. 235. liability for necessaries, 236. necessaries defined, 238. money advanced, 240. business necessaries, 241. property necessaries, 241. counsel fees, 242. 1136 INDEX. [BEFERENCES ABE TO PAGES.] INFANTS— Cont'd. necessities of infant, 242. province of court and of jury, 245. necessities of infant's family, 245. express contracts for necessaries, 246. liability for torts arising out of contract, 247. misrepresentation of age, 227, 250. ratification and avoidance of contracts, 228, 252. right of election, 252. infancy as a defense, pleading and proof, 233 note 54. mutuality, 684. specific performance, 938. necessity for ratification or disaffirmance, 255. suiHciency of ratification, ■what constitutes ratification, 257. express ratification, 257. necessity for writing, 538. past consideration, 653. implied ratification, 259. parol ratification. 261. knowledge, 262. time of ratification, 263. sufBciency of avoidance, 263. what constitutes disaffirmance, 264. limits of right to disaffirm, 267. restoration of status quo, return of consideration, 268. ratification or disaffirmance in part, 274. time of avoidance, 275. effect of ratification or disaffirmance, 279. rights of third persons, 282. removal of disability, by emancipation, 227. by stipulation, 227. by misrepresentation of, age, 227. by statute, 227, 233. by court, 228, 234. employment of, statutory regulations, 350 note 45. INFIDELITY (see "Adultery"; "Fidelity Bonds"). INFIRMITY (see "Mental Unsoundness"; "Sickness"). INFLATION OF PRICES (see "Auction"; "Monopolies and Com- binations"; "Public Contracts"; "Stifling Competition"). INDEX. 1137 [REl'BBBNCES ARE TO PAGES.] INFLUENCE, illegal exertion, see "Legality of Object." undue exertion, see "Undue Influence." INFORMAL CONTRACTS (see, also, "Form of Contract"), definition, 508, 510. INFORMATION, duty to disclose, 133 note 148. INITIALS, signature by, statute of frauds, 600. INJUNCTION, against payment of bet, 492 note 529. against termination of relation of master and servant, 710 note 16. against urging want of seal, 519. against breach of contract, 939. afBrmative and negative promises, 939. express and implied negative promises, 940. adequacy of remedy at law, 941. fairness and mutuality of contract, 941. susceptibility of present performance of decree, 942. discretion of court, 935. promise in restraint of trade, 940, 942. consideration, adequacy, 692 note 225. INJURY, as element of fraud, 140, 168. INK, necessity for, statute of frauds, 589. INNKEEPERS, stipulations on register, when part of contract with guest, 44. necessity for license, 348 note 40. INNOCENCY (see "Bona Fide Purchaser"; "Fraud"; "Legality of Object"). INQUEST (see "Inquisition"). INQUIRY, duty to pursue, fraud, 155, 158. insanity, 303. 1128 INDEX. [EEPERBNCES ABE TO PAGES.] INQUISITION, of drunkenness, as affecting contractual capacity, 289, 290, 295, 298. of lunacy^ as affecting contractual capacity, 290, 295, 298. INSANE PERSONS (see, also, "Insanity"), contractual capacity, 291. "voidable contracts, 293. void contracts, 292, 294. adjudication of unsoundness, 289, 290, 295, 298. presumption of acceptance of deed, 39 note 5, 42 note 11, 47 note 22, 529 note 89. quasi contracts, 297. contracts for necessaries, 297. ratification and avoidance of contracts, 299. who may avoid contract, 302. restoration of status quo, 303. restitution of consideration, 305. rights of third persons, 289 note 240, 307. undue influence of, 292, 293, INSANITY (see, also, "Insane Persons"), what constitutes, 283. weakness of mind, 284. idiocy, 285. deafness — dumbness — blindness, 286. senility, 286. partial derangement, 287. temporary derangement — drunkenness, 288. lucid intervals, 290, 296 note 262, 297, 302. as causing offer to lapse, 73. as discharging pre-existing contract, 833. as affecting civil death of husband, capacity of wife, 312 note 317. INSOLVENCY, composition with creditors, see "Composition with Creditors." . bankruptcy, see "Bankruptcy." assignment for benefit of creditors, see "Assignment for Benefit of Creditors." duty to disclose, 134. new promise to pay discharged debt, past consideration, 656. fraudulent conveyances, 661 note 106. INDEX. 1129 [BEFEBENOES ABE TO FAQES.] INSPECTION, statutes concerning, see "Statutory Illegality." of goods by buyer, 113. acceptance, statute of frauds, 584. INSTALLMENTS, sales, repudiation of contract as breach, 894, 909 note 308. divisibility of contract, 908. INSTRUCTIONS, questions for court and for jury, see "Province of Court and of Jury." INSURANCE. marine risks, as affected by nondisclosure, 136. fire riskSj as affected by nondisclosure, 137. life risks, as affected by nondisclosure, 138. as affected by misrepresentation, 169. effect of war on contract, 325 note 368. marriage benefit insurance, 367 note 103. infants, > validity of contract of insurance, 230 note 42. insurance of property as a necessary, 241. necessity for written policy, 538. legality, combination of companies as to rates and commissions, 445 note 376. insurance of property used in unlawful trade, 410 note 263, 475. insurance of property of enemy, 321. insurance of carrier against liability for injury to passen- gers, 398 note 213. wagering contracts, 366. insurable interest, 366. premiums as usury, 380 note 144. arbitration as condition precedent to suit, 419 note 301. construction of policy, 782. strict construction, 816. clause as to convoy, 796. parol evidence as to terms, 788. 1130 INDEX. [EBPEBENOES ABE TO PAGES.] INSURANCE— Cont'd, conditions subsequent, as to increase of risk, 849. vacancy of premises, 847 note 94, 849 note 99. revival of policy after breach, 847 note 94. condition precedent, as to arbitration, 419 note 301. INSURGENTS (see "Rebels"). INTELLECTUAL DISPARITY, effect oa contract, 284. INTENTION. as governing construction of contract, see "Construction of Con- tract." community of, as element of agreement, 15. communication of, as element of agreement, 15. to create legal relations, element of contract, 9, 80. general offer, 76. motive, 79. gratuitous benefits, 83, 649 note 63. expression of intent as to future acts, 83. social engagements, 84. jests, 84. invitations to negotiate, 84. incomplete negotiations, 86. province of jury, 83 note 168. to deceive, as element of fraud, 125, 148, 158 note 245, 163, 661. motive, 163. object of intention — person deceived, 164. not to perform promise, as fraud, 142, 150 note 214. by buyer, 134, 142. statement of, fraud, as representation, 140, 149. right to rely on, 155 note 237. as element of illegality, 458. futures, 367, 371. lobbying contracts, 404. usury, 383. right of innocent party to enforce agreement, 458. knovirledge of other party's unlawful intent, 459. joint unlawful intent, 461. mistake of law and of fact, 463. mode of performance, 463 note 440, 464, 465. INDEX. 1131 [kbferences are to pages.] INTENTION— Cont'd. mistake of, as distinguished from mistake of expression, 95. to attacli seal, as element of specialty, 519, 521. to bind separate estate, married women, 315. to deliver deed, as element of delivery, 523. to pay barred debt, as element of revival, 951. as element of alteration of instrument, 841. as element of novation, 859. as to conditions of acceptance, 79. as to merger of contracts, 536, 837. as to performance within year, statute of frauds, 572. as to release of joint debtors, 760 note 149. as to time as essence of contract, 882, 883. INTEREST, in property, see "Expectant Interests"; "Right, Title, and In- terest"; "Vested Interests." as compensation for use or forbearance of money, definition, 379. compound interest, 380. exorbitancy, undue influence, 210. higher rate after maturity, penalty and liquidated, damages, 928. as damages, 933 note 378. illegality, see "Usury." alteration of instrument as to, materiality, 844. promise of, as consideration for extension of time, 670. necessity for writing, 375, 538. payment of, as affirmance of mortgage made in infancy, 260 note 146. effect of tender of principal, 873, 877. INTERFERENCE, with performance of contract between others, liability, 710. INTERNATIONAL LAW, private international law, see "Conflict of Laws." public international law, contractual capacity of foreign state, 217 note 1. contractual remedies of foreign state, 220 note 12. effect of change of government on contract with state, 220 note 14. aliens, see "Aliens." neutrals, 320 note 351, 410. 1132 INDEX. [BETEBENCES ABE TO PAGES.] INTERNATIONAL LAW— Cont'd, war, see "War." contraband trade, legality, 410. blockade running, legality, 410. hostile dealings with friendly state, legality, 409. friendly dealings with rebels, legality, 409. See, also, "Rebels." friendly dealings with hostile state, legality, 409. See, also, "Aliens." dealings in violation of laws of friendly state, legality, 409. embargo, effect on contracts, 829 note 19. INTERPRETATION (see "Construction of Contract"). INTERSTATE COMMERCE, regulation of combinations and monopolies, 441. trades unions, 447 note 386. INTIMIDATION (see "Duress"). INTOXICATING LIQUORS, regulation of sale, 341 note 19, 349 note 43. monopoly in, by state, legality, 441 note 367. partial illegality of contract, 468 note 455, 469 notes 457 and 458, 471 note 463, 472 note 466. illegality of collateral transactions, 475 note 471. illegal sales, right of principal to recover payments of price to agent, 479. abstinence from use of, as consideration, 676. INTOXICATION (see "Drunkenness"). INVALID AGREEMENTS, / generally, see "Legality of Object." will not be implied, 62. INVENTIONS (see "Patents for Inventions"). INVITATION, to negotiate, as offer, 76, 84. J- JEST, engagements made in, enforceability, 9, 84. JOINT ACCEPTANCB3, necessity for, 38 note 4, 66. INDEX. 1133 [BF.FRKF,N0ES ABE TO PAOES.] JOINT AND SEVERAL CONTRACTS, In general, 756. joint contracts, 757. definition, 756. promisors, delivery of contract, 354 note 61. liability of, 757. satisfaction of judgment, 757. action against, 758. judgment for or against one, effect, 758, 759. release of. 677, 758. necessity for seal, 759. covenant not to sue, 760 note 149. intention, 760 note 149. consideration for, 860 note 139. new promise, consideration, 759 note 147. release by operation of law, 759 note 147. death of. 761. promise of one debtor to pay, statute of frauds, 549. consideration, 677. promisees, rights of, 761. action by, 761. disclaimer or loss of interest by one, 762. provision that one may sue for all, 716. new promises to promisees severally, 762. release by one, 763. tender to one, 874 note 188. death of, 763. several contracts, defined, 756. promisors, liability of, 764. action against, 764. death of, 765. promisees, rights of, 765. action by, 765. death of. 765. contracts both joint and several, 765. joint and several contract defined, 756. promisors, liability of, 766. joint as to some, joint as to all, 767. 1134 INDEX. [HEFERESCES ABE TO PAGES.] JOINT AND SEVERAL. CONTRACTS— Cont'd, action against. 766. judgment against one, 767. release of, 767. death of. 767. promisees, 768. security, 768 note 179. construction of contract, 768. See "Construction of Contract." contribution between joint debtors, 772. See "Contribution." JOINT OFFER, revocation, 66. JOKE, engagements made in, enforceability, 9, 84. JUDGMENTS, definition, 511. in banc, as contract, 10. by confession, as contract, 511. as quasi contract, 23, 511. as contract of record, 24, 509, 511, 945. as specialty, 509 note 8. agreement for collection, cbamperty, 425, 428 note 331. oral promise to pay, validity, 651 note 71. new promise to pay after discharge, past consideration, 655 note 85. necessity for revival, 655 note 85. promise to pay money in correction of error in, past considera- tion, 658. against joint promisors, satisfaction, 757. for or against one joint debtor, merger, estoppel, 758, 759. against joint and several debtor, merger, 767. discharge of contract by, merger, 758, 759, 767, 838, 945. estoppel, 758, 759, 945. want of jurisdiction, 946 note 417. vacation of judgment, 946 note 417. identity of causes of action, 946 note 418. identity of parties, 946 note 418. decision upon the merits, 946. JUDICIAL. NOTICE (see "Evidence"). JUDICIAL SALES, stifling competition, legality, 392 note 194, 403 note 236. postponement of, as consideration, 641 note 40. INDEX. [BEFEBENOES ABE TO PAGES.] JURY (see "Province ol Court and of Jury"). JUSTICE, fugitive from, see "Fugitive from Justice." agreements derogatory to, legality, 413. compounding crime, 414. See "Compounding Crime.' arbitration, '418. See "Arbitration." champerty, 425. See "Champerty." maintenance, 421. See "Maintenance." conflict of laws, rights contrary to justice, 502. difference in system and in legal conceptions, 504. K. KIND, mistake as to, subject-matter, 110. KNOWLEDGE (see, also, "Ignorance"; "Inquiry"; "Notice"), of offer, as essential to contract, 42, 80. of deed, as essential to acceptance, 524, 528. of acceptance, effect as communication, 47 note 22. as essential to contract, 52, 57. of revocation of offer, effect as communication, 70. of law, 151, 262. See, also, "Ignorance." presumption, 117. peculiar, of facts, duty to disclose, 132-134. misrepresentation, 148, 156. of law, misrepresentation, 151. of falsity, of claim, effect on compromise, 686. as element of estoppel, 130. as element of fraud, 124, 125. actual and constructive knowledge, 157. reckless misstatement, 159. statements as of personal knowledge, 156, 160, 162. effect of belief In misrepresentation, 161. agency, 169. by person addressed, precludes deception, 166. of fraud, as essential to affirmance, 175, 180. 1135 1136 INDEX. [BEFEEENOES ABE TO PAGES.] KNOWLEDGE— Cont'd. as prerequisite to affirmance of contract made in infancy, 262. of facts, 262. Of law, 262. as prerequisite to affirmance of contract made while insane, 301. as prerequisite of promise to pay discharged. debt, 659. of insanity, as affecting right to disaffirm, 303, 306. of inquest of lunacy or drunkenness, materiality, 296 note 262, of unlawful intent of other party, effect, 459. of execution of contract on Sunday, 354 note 61. communication of, as consideration, 636 note 28. denial of, as concealment, 146. L. L. S., as seal, 520. LABOR UNIONS (see "Trades Unions"). LACHES (see, also, "Limitation of Actions"), in seeking relief for mistake, 122. as barring relief in equity, admiralty, and ecclesiastical courts, 948 note 423. LAND (see "Real Estate"). LANDLORD AND TENANT, nondisclosure, 132. undue influence, 207 note 416. infants, lease by or to, voidability, 231 note 42. affirmance, 260 note 145. legality of object, lease of premises for purposes of prostitution, 462. time for rescission of illegal lease, 489 note 515. statute of frauds, contract creating tenancy at will, 562. performance of lease within year, 569. sufficiency of part performance, 614. assignment of lease, 562. assignment of leasehold, right to assign, 746 note 108. effect as to lessee's liability, 746 note 108. liability for use and occupation, 746 note 108. liability of assignee to lessee, 746 note 108. INDEX. 1137 [BEFEBENCES ABE TO PAGES.] L.ANDL,ORD AND TENANT— Cont'd. liability of receiver of lessee for rent, 746 note 108. covenants running with land and personal covenants, 745. covenants in restraint of trade, 747. equities, 739 note 94. assignment of reversion, parol lease, 748 note 115. implied lease, 748 note 115. right of assignee to sue, 748 note 115. covenants running veith land and personal covenants, 747. covenants affecting leasehold, as passing to personal representa- tive, 753. construction of conveyance, see "Construction of Contract"; "Conveyances." as to termination of lease, 817. as to exceptions and provisos, 811. discharge of covenants by impossibility of performance, 827, 830, 831. election as to time of payment of rent, 888. injunction against breach of covenant, 942. partial repudiation of lease as breach, 896. waste, 827. LANGUAGE, unfamiliarity with, as inducing mistake, 99. meaning, see "Construction of Contract." LAPSE OF OFFER, in general, 70. efflux of reasonable time, 71. offer under seal, 71. noncompliance with condition of offer, 71. rejection of offer, 72. death of party, 72. insanity of party, 73. dissolution of partnership, 73. dissolution of corporation, 74. LAPSE OF TIME, as barring suit, see "Laches"; "Limitation of Actions." as constituting affirmance of voidable contract, see "Affirm- ance." as raising presumption of payment, 868. LARCENY, compounding crime, legality, 415 note 283. Contracts — 72. 1138 INDEX. [BEFERBNOES ABE TO PAGES.] LATENT AMBIGUITY, parol evidence to explain, 786. LATER AND EARLIER CLAUSES, construction of contract, 804. LAW (see, also, "Law and Pact"), ignorance of, see "Ignorance." mistake of, 117, 262, 301. private rights, 118. statement of, not a representation, 140, 150. right to rely on, 155 note 237. change in, as rendering performance impossible, 345, 829. See "Impossibility of Performance." as part of contract, 794. LAW AND FACT, when for determination of court and when for jury, see "Prov- ince of Court and of Jury/' distinction between, 117 note 80, 118, 151, 277 note 198, 463 note 440, 785 note 25. LAW MERCHANT (see "Negotiable Instruments"). LAW OF FORUM (see "Conflict of Laws"). LAW OP NATIONS (see "International Law"). LAW OF PLACE OF CONTRACT, as governing legality of contract, 497. LAW OP PLACE! OP PERFORMANCE, as governing legality of contract, 498, 499. LAW OP SITUS, as governing legality of contract, 499. LAWFULNESS (see "Legality of Object"). LAWYERS (see "Attorneys at Law"; "Barristers"). LEASE (see "Landlord and Tenant"). LEGAL EFFECT (see. also, "Law"), of contract, mistake as to. 98, 117. • misrepresentation as to, 150. INDEX. 1139 [kefebences are to pages. ] LEGAL FRAUD, definition, 124, 138 note 167. LEGAL OBLIGATION (see "Obligation"). LEGAL RELATIONS, intention to create, as element in contract, 9, 80. motive, 80. gratuitous benefits, 83. expression of intent as to future acts, 83. social engagements, 84. jests, 84. invitations to negotiate, 84. incomplete negotiations, 86. LEGAL TENDER, generally, 874. constitutional provisions, 874 note 192. mutilated ^currency, 874 note 192. counterfeit, 864. LEGALITY OF OBJECT (see, also, "Illegal Agreements"; "Invalid Agreements"), in general, 3, 30. definition, 334. mistaken belief in illegality, effect, 477 note 482. not governed by event — failure to accomplish illegal object im- material, 445, 462, 490 note 520, 492 note 528. common-law and statutory illegality, 335. illegality at law and in equity, 335. illegality in sealed and unsealed contracts, 335. classification of illegal contracts, 335. agreements illegal by statute, 336. See, also, "Statutory Illegality." state regulation of right to contract, 336. construction of statute, 338. operation of statute, 343. professional and commercial regulations, 346. See, also, "Commercial Regulations"; "Professional Regula- tions." Sunday laws, 350. See, also, "Sunday." wagers, 360. See, also, "Wagers." lotteries, 373. See, also, "Lotteries." usury, 375. See, also, "Usury." ultra vires agreements, 385. See, also, "Corporations." 1140 INDEX. [kei'erenoes are to pages.] LEGALITY OF OBJECT— Cont'd. agreements illegal at common law, 386. agreements promotive of crime, 349 note 43, 388. agreements promotive of sexual immorality, 389. agreements promotive of torts, 390. agreements promotive of dereliction of public or private duty, 395. agreements involving traffic in offices, 399. agreements involving traffic in emoluments of office, pensions, or public contracts, 401. agreements involving corruption of public officials, 404. agreements promotive of injury to state, 408. agreements Involving corruption of private citizens with reference to public matters, 411. agreements derogatory to integrity of public elections, 412. agreements derogatory to public justice, 413. compounding crime, 414. arbitration, 418. maintenance, 421. champerty, 425. agreements injuriously affecting domestic relations, 430. marriage relation, 431. parental relation, 434. agreements limiting legal rights, 435. agreements restricting commercial freedom, 439. monopolies and combinations, 439. trades unions. 446. employers' unions, 448. agreements in restraint of trade, 449. trade secrets, 457. intention, 367, 371, 383, 404, 457. See, also, "Intention." knowledge of unlawful intention, 459. joint unlawful intention, 461. mistake of law and of fact, 384, 463. mode of performance, 370, 371, *65. effect of illegality, partial illegality, 466. collateral transactions, 472, 686. champerty or maintenance, effect on principal action, 429. untainted transactions, 477. agents and brokers, 478. negotiable instruments, 480, 742. INDEX. 114j^ [bkfebencbs are to pages.] LEGALITY OF OBJECT— Cont'd. Illegality of past consideration, 482. rights of action, 483. action on agreement and defense of illegality, 485. pleading, 487. recovery of money paid or property or its proceeds-deliv- ered under agreement, 488, 489 note 515. promise to repay, 478 note 482. locus poenitentiae, 491. par delictum, 493. conflict of laws, 495. See "Conflict of Laws." lex loci contractus, 497. lex situs, 499. lex solutionis, 499. exceptions to general rules, 501. construction of contract as to, 790. mutuality of obligation, 684. LEGATEE, expectant, see "Expectant Interests." LEGISLATION, agreements tending to influence, legality, 404. LESSOR AND LESSEE (see "Landlord and Tenant"). LETTER, of attorney, see "Power." of credit, see "Suretyship and Guaranty." contract by, time for acceptance, 48. mode of acceptance, 51 note 38, 52. effect of' delay or loss in transmission, 52, 53. sufficiency of posting, 53. revocation of offer, 68. as memorandum, statute of frauds, 589. signature, 600. printing on letter head as part of contract, 801 note 75. LEVY, agreement to relinquish, legality, 395 note 203. agreement to forbear levying, legality, 395 note 203. as consideration, 680. indemnity against, legality, 464. attempt to make, duress, 195 note 375. 1142 INDEX. [references ABE TO PAGES.] LEVY— Cont'd. as affecting restoration of status quo, infancy, 271 note 178. as question of fact, 151 note 219. creditor as bona fide purchaser, 182. LEX FORI (see "Conflict of Laws"). LEX LOCI CONTRACTUS, !cs governing legality of contract, 497. LEX LOCI SOLUTIONIS, as governing legality of contract, 498, 499. LEX SITUS. as governing legality of contract, 499. LIABILITY UPON CONTRACT, of strangers to contract, 706, 708. See "Parties to Contract." for breach generally, see "Breach of Contract." assignment of, by promisor, 723. See "Assignment of Contract." LIBEL, bawdy, agreement promotive of, legality, 390. upon third person, agreement promotive of, legality, 391. indemnity against liability for publication, legality, il6. LIBERAL CONSTRUCTION, of contract, 790, 792. LICENSE, to alien enemy to trade, 322, 323. as prerequisite to doing business, 347. See, also, "Commercial Regulations"; "Professional Regulations." concerning real estate, statute of frauds, 560, 561, 563 note 206, 564. LIENOR, right to urge infancy of mortgagor, 253 note 129. LIFE, fear of loss of, duress, 191. LIFE INSURANCE (see "Insurance"). LIKE SORT, construction of sweeping clause, 808. INDEX. 1143 [BBFEBENCES ABB TO PAGES.] UMITATION OF ACTIONS (see, also, "Laches"), period of, for deeds and simple contracts, 536. discharge of right of action by, 948. enforcement of statute in equity, 948 note 423. operation of statute, 949. disabilities, 949. ignorance of right of action, 949. fraud, 949. effect of statute, void, voidable, and unenforceable agreements, 33, 950. as to right to contribution, 773 note 199. as to presumption of payment from lapse of time, 869 note 170. as fixing time for disaffirmance of infant's contract, 278. revival of right of action, new promise, 950. past consideration. 657. present or future ponsideration, 676, 677 note 176. promise to stranger, 657 note 90. conditional promise, 657 note 90, 950. pleading, 657. acknowledgment, 34, 950. necessity for writing, 539. part payment, 950, 951. by one joint and several debtor, 766 note 171. recovery back of payment of barred debt, 657 note 90. LIMITATION OF LIABILITY, by caiTier, see "Carriers." by master, 436, 437 note 358. LIQUIDATED DAMAGES (see "Damages"). LIQUOR (see "Intoxicating Liquorg"). LITERAL INTERPRETATION, of contract, see "Construction of Contract." of representation, fraud, 151. LITIGATION, agreements promotive of, see "Champerty"; "Maintenance." LOANS (see "Money Lent"). LOBBYING CONTRACTS, legality, 404. effect of partial illegality, 468 note 455. 1144 INDEX. [BBFERBNCBS ABE TO PAGES.] LOCAL MEANING, parol evidence to explain, 788, 814. LOCUS POBNITBNTIAE, time for rescission of ille.gal agreement, 491. LODGING (see "Landlord and Tenant"; "Support"). LOSS, of acceptance in transmission, 52, 53. of writing evidencing contract, province of court as to construction, 778 note 6. secondary evidence, 845. negotiable instruments, 845. destruction of instrument, 846 note 92. LOTTERY, definition, 373. illustrations, 374 note 122. validity, 375. partial illegality, 471 note 463. LOVE AND AFFECTION, as consideration for contract or conveyance, 659. tUCID INTERVAL, as affecting contractual capacity, 290, 297. payment to lunatic or drunkard in, 296 note 262. disaffirmance of contract in, 302. LUCRI CAUSA, necessity for, in compounding crime, 417. LUNACY (see "Insanity"). LUNATICS (see "Insane Persons"). LUXURIES, as necessaries, infancy, 239. LYING IN TRADE, as misrepresentation, 147 note 205. right to rely on trutn, 155 note 237. INDEX. 1145 [EEFKBENCES AKE TO PAGES.] M. MACHINERY, contract for erection, discharge by impossibility, 830. MAIL, letters, see "Letter." liability for money stolen from, 678. MAINTENANCE, of person, see "Support." of litigation, definition, 421. legality, 421. attorneys, 422. purchase from client pendente lite, 424 note 316, 425 note 317. interest in subject-matter, 422. relationship, 423. poverty, 423. traffic in things in action, 423. as defense in principal action, 429. champerty, see "Champerty." MAJORITY (see "Adults"; "Infants"). MALA IN SB. 343, 488. MALA PROHIBITA, 343, 488, 491 note 527. MANDATUM (see "Bailment"). MANNER (see "Mode"). MANUFACTURE, as employment or sale, statute of frauds, 579. MANUMISSION, contract for, 328 note 379. MARGIN, in speculative contracts, 370. MARINE INSURANCE (see "Insurance"). MARK, signature by, statute of frauds, 600. 1146 INDEX. [bbfbrbnces are to pages.] MARKET, sales in, duty to disclose, 133 note 148. MARRIAGE, , affianced persons, see "Affianced Persons." antenuptial contracts, see "Antenuptial Contracts." promise of, see "Marriage Promise." rights and liabilities of husband and wife, see "Husband and Wife"; "Married Women." assignment by, 752. See "Husband and Wife." as contract and as status, 13, 22, 538. threat to prevent, undue influence, 210 note 425. of infants, validity, 233. goods bought for marriage as necessaries, 240 note 77. of lunatics, validity, 294. legality, restraints upon marriage, 431. marriage brokage, 432. conflict of laws, 497 note 541, 502. as consideration, 636 note 28, 640. MARRIAGE BROKAGE, legality, 432. MARRIAGE PROMISE (see, also, "Affianced Persons"), implied promises, 681 note 192. by infant, validity, 233. legality, promise by married person, 434 note 349. promise made to obtain intercourse, 389. statute of frauds, 557. performance within year, 568. consideration, mutuality, 634. 681. promise as consideration, 640. breach, repudiation of promise, 894. prevention of performance, 898. punitive damages, 934. rights and liabilities of personal representative of deceased promisor or promisee, 754. MARRIAGE SETTLEMENT (see "Antenuptial Contracts"). INDEX. 1147 [betebejnces ake to pages.] MARRIED WOMEN (see, also, "Husband and Wife"; "Marriage"; "Widow"), contractual capacity, at law, 309. exceptions to rule of Incapacity, 311. queen consort, 311 note 316. feme covert trader. 311 note 316. civil death of husband, 311. conviction and banishment, 312. outlawry,, 312. abjuration of the realm, 312. profession of religion, 312. abandonment of marital rights by husband, 313. divorce a mensa et thoro, 313. in equity, 314. by antenuptial agreement, 316, 317. by statute, 317. suit by and against, 311 et seq. new promise after removal of disability, past consideration, 654. future consideration, 677. disaflBrmance of deed, return of consideration, 269 note 176. MASTER AND SERVANT, combination of employers, see "Employers' Unions. ' combination of employes, see "Strike"; "Trades Unions." offer and acceptance, 37, 40-42, 53. variance, 78. acceptance of services without knowledge of rendition, 43, 80. intention to contract, 82. gratuitous benefits, 83. implied contracts, 55. forced benefits, 58. extra work, 61. compensation, reasonableness, 61. certainty, 88 note 182. undue influence, 207 note 416. infants, contracts of apprenticeship, 239. legality, stipulation for immunity from liability for negligence, 436, 437 note 358. stipulation for assumption of extra risks, 436. relief fund, 436 note 357. 1148 INDEX. [BEFEBENCES ABE TO PAQES.] MASTER AND SERVANT— Cont'd. fidelity bond, 414. maintenance, 423. Sunday contracts, 352, 358 note 78. agreements in restraint of trade, 455. promise not to disclose trade secret, 457. promise to serve indefinitely or for life, 456 note 414. statute of frauds, contract of sale or contract for services, 579. performance within year, 571. recovery for services under agreement within statute, 619. consideration, necessity for, 629. release as, 637 note 28. servant's promise to discharge master's rights as, 642. past consideration, services rendered on request, 649. failure of consideration, 699. independent contractors, liability of master to employe of, 709. enticing away servant, liability, 710. injury to servant by third person, action by master, 710 note 16. obligation to accept performance by third person, 724. personal representative of deceased party, 753, 831, 834. trustee of bankrupt party, 755. right of third person to demand performance, personal representative of deceased party, 753, 831, 834. trustee of bankrupt party, 755. assignment, of contract, 730. of unearned wages, 731. discharge of contract of employment, by destruction of factory of employer, 827. by sickness or insanity, 832. by dissolution of corporation, 831 note 28. by dissolution of partnership, 754 note 129, 832 note 28. by notice, 851. by performance, satisfaction of promisee, 879. by breach of condition, performance as condition precedent to compensation, 908. subsidiary promises, 910. by breach, repudiation of contract, 894. prevention of performance, 898. INDEX. 1149 [kefeeences ake to pages.] MASTER AND SERVANT— Cont'd, remedies, recovery on quantum meruit on rescission, for mistake, 121. for fraud, 184. for infancy, 272, 273, 281. for insanity, 305. for noncompliance with statute of frauds, 619. recovery for part performance on prevention of full perform- ance, 899. penalty and liquidated damages, 929. / specific performance, 938. injunction against breach, 939. injunction against termination of relation, 710 note 16. fidelity bonds, 414, 848 note 95. MATERIALITY, of, misrepresentation, 140, 153, 167. of alteration of instrument, 842. MATRIMONIAL AGENCY, legality, 432. MATURITY, irregular payment before, as consideration for discharge, 669. payment of interest before, as consideration for extension of time, 670. extension of time, consideration, 670, 671. as consideration, 676. forbearance as consideration, 675. of counterclaim, 735 note 86, -738 note 93. alteration of instrument, as to, materiality, 844. acceleration of, installments, penalty and liquidated damages, 929. mistake as to, 117. stipulation for credit as suspensory condition, 914. MAXIMS, consuetude, cum omnium domina rerum, tum maxima verborum est, 815 note 127. contemporanea expositio est optima et fortissima in lege, 793 note 50. eodem ligamine quo ligatum est dissolvitur, 860 note 141. 1150 INDEX. [EEPEBENCES ABE TO PAGES.] MAXIMS— Cont'd. ex antecedentibus et consequentibus fit optima interpretatio, 798 note 66. ex dolo male non oritur actio, 486. expressio unius est exclusio altering, 808 noYes 100 and 104. falsa demonstratio non nocet, 803. id certnm est quod certum reddi potest, 89. ignorantia juris baud excusat, 118. in pari delicto, potior est conditio defendentis et possidentis, 489. verba aliquid operari debent, et cum effectu sunt accipienda; de- bent intelligi ut aliquid operentur, 790 note 39. verba fortius accipiuntur contra proferentem, 816 note 132. verba generalia restringuntur ad habilitatem rei, vel aptitudi- nem personae, 796 note 60. verba intentioni, non e contra, debent inservire, 780 note 10. MAYHEM, fear of, duress, 191. MEANING, of contract, see "Construction of Contract." MEASURES, statutory regulation, 349. MECHANICS' LIEN LAW. noncompliance with, promise to pay contractor, past considera- tion, 659. MEDICAL ATTENDANCE, physicians generally, see "Physicians." as a necessary, infancy, 239. MEDIUM, and spiritualist, undue influence, 206 note 415. of payment, see "Payment." MEMORANDUM, statute of frauds, 587. MENTAL DISPARITY, between contracting parties, 284. MENTAL RESERVATION, as precluding agreement, 8, 16, 58, 100, 106, 110, 120. INDEX. 1151 [BBFEBENCES ABE TO PAGES.] MENTAL UNSOUNDNESS (see "Blindness"; "Deafness"; "Drunk- enness"; "Dumbness"; "Idiocy"; "Insane Persons"; "Insanity"; "Mental Weakness"; "Senility"). MENTAL WEAKNESS, distinguished from incapacity, 208, 209 note 422, 284. distinguished from idiocy, 285 note 223. taking advantage of, undue influence, 201, 208, 292, 293. MERCANTILE AGENCY, false statements made to, right of action, 164. MERCANTILE PAPER (see "Negotiable Instruments"). MERCHANDISE (see "Personal Property"). MERCHANT (see, also, "Statute Merchant"), right of successor to fill orders given predecessor, 103 note 28. license to trade, 348 note 40. MERCHANTABILITY, implied condition of, in sale, 113, 917. MERGER, of criminal offenses, 415, 837. of torts, 837. of estates, 837. of contracts, oral contract and written contract, 836. simple contract and specialty, 535, 837. intention, 536, 837. contract and judgment, 838, 945. See "Judgments." MESSENGER (see "Agency"). METES AND BOUNDS, construction of deed, 807. MINES AND MINERALS, statute of frauds, minerals as personalty, 564. right to mine, sale of, 564. sale of mine, 564. duty to disclose presence of minerals, 132. MINISTERS, of the Gospel, see "Spiritual Advisers." of foreign states, jurisdiction of state over, 218 note 8. 1152 INDEX. [BEFEBENCES ABE TO PAGES.] MINORS (see "Infants"). MISAPPREHENSION (see "Mistake"). MISCONCEPTION (see "Mistake"). MISDEMEANOR (see "Crime"). MISDESCRIPTION (see "Subject-Matter"). MISREADING, of writing, as inducing mistake, 99. MISREPRESENTATION, in general, 94. by conduct, 143. distinguished from fraud, 123. See "Fraud." distinguished from mistake, 98. See "Mistake." as affecting formation and discharge of contract, 125. misstatement of contents of writing, 98 et seq. distinguished from warranty and condition, 127. rule at law, 126. rule in equity, 128, 162 note 258. specific performance, 128. setting aside contract, 129. estoppel in pais, 129. contracts affected by misrepresentation, 130. contracts by persons in relation of confidence, 131. conveyances of real estate, 132. sales of personal property, 133. negotiable paper, 134. shares of stock, 134. subscriptions to stock, 135. suretyship and guaranty, 135. compromises, 136. contracts of insurance, marine risks, 136. fire risks. 137. life risks, 138. what constitutes, 140. effect, 140. MISSINGt-WORD CONTEST, as lottery, 374 note 122. MISSTATEMENT (see "Misrepresentation"). INDEX. 1153 [KBa-EBENCES ARE TO PAGES. J MISTAKE, in general, 94, 95. questions of, distinguished from construction, 112. distinguistied from disagreement, 95. of intention distinguished from mistake of expression, 95, 112. distinguished from failure of consideration, 96 note 9. necessity for mutuality of, to justify relief, 97 note 9, 101, 109, 112, 464. as to nature of transaction, 98. See "Nature." as to identity of other contracting party, 32, 101. See "Identity." as to subject-matter of transaction, 105. See "Subject-Matter." existence, 108, 825. identity, 109. nature, 110. quality, 112. ' quantity, 116. ' price, 116. of law, in general, 117. private rights, 118. effect, 96, 120. rights of third persons, 96. remedies, 121. legal remedies, 121. equitable remedies, 122. as to illegality, as to law, 463. as to fact, 464. in paying interest, usury, 384. as to omission of seal from instrument, 519. as to possibility of performance, 641. as to joint contract, parol evidence, 769. in transmitting offer by wire, effect, 44. alteration of instrument by, 841. alteration of instrument in correction of, 841. seal as precluding defense of mistake, 531 note 94. MISTRESS, presumption of undue influence, 205. Implied contract for household services, 483 note 502. MISUNDERSTANDING (see "Mistake"). MOCK CONTRACTS, validity, 9, 84. Contracts — 73. 1154 INDEX. [bepbbbncbs ark to pages.] MODE, of communicating offer, 43, 56. of communicating acceptance, 50, 56, 71. of performance, see "Performance of Contract." MODIFICATION OF CONTRACT, generally, see "New Contract." modification of written contract by word, effect, 510 note 11. performance within year as modified, statute of frauds, 572. MOMENT, of communication of acceptance, 52, 57. of communication of revocation of offer, 68. of consummation of contract, 79, 80. MONEY, loans, see "Money Lent." right of payor to recover payments, see "Recovery Back." genuineness, 864. legality, Confederate bonds, 409. omission from contract of denomination, 800 note 73. paid for another by several, joinder of plaintiffs, 771. paid for infant, necessaries, 241. rescission, 273 note 183. received to use of third person, right to recover. 721. statute of frauds, 622. return of, as condition of rescission, 270 note 177. See "Status Quo." MONEY LENT, undue infiuence as between borrower and lender, 209 note 425, 211 note 427. contract to lend, assignment, 730. loan for illegal purpose, knowledge of lender, 459. loan to infant, necessaries, 240 and note 78, 241. restoration of status quo on rescission, 271 note 178. loan to lunatic, necessaries, 299 note 267. loan to married woman, liability of separate estate, 315. paid out for another by several, joinder of plaintiffs. 771. MONOMANIAC, contractual capacity, 287. INDEX. 1155 [befebences aee to pages.] MONOPOLIES AND COMBINATIONS, definition, 439. patents, 440. restriction of free commerce, 440. combinations, 440. trusts, 442. controlling market, 442. cornering market, 443. lawful combinations, 444. subject of, 445. foodstuffs, 443 note 370. building material, 443 note 370. fuel, 443 note 370. household sundries, 443 note 370. test of illegality, 445. trades unions, 446. employers' unions, 448. retrospective operation of statute against, 344 note 30. by state, 441 note 367. partial illegality, 470 note 461, 471 note 463. effect of illegality on collateral transactions. 477. MORAL OBLIGATION, distinguished from legal obligation, 10, 19. as rebutting evidence of duress, 191 note 365. as consideration, 644. arising from past consideration, 645 et seq. MORAL WEAKNESS, taking advantage of, undue influence, 209. MORALITY, between the sexes, see "Sexual Immorality." rights contrary to, conflict of laws, 502. MORTGAGES, pledge of personalty, see "Pledge." security in general, see "Security." undue influence, 210. waiver of right to redeem, 210. by infant, validity, 240 note 80. affirmance, 260 notes 144 and 146. effect, 279. disaffirmance in part, 274. 1156 INDEX. [BEFEBENCES ABE 10 PAGES.] MORTGAGES— Cont'd. power of sale by infant mortgagor, validity, 231 note 43. infancy as a defense to foreclosure, 276 note 195. payment of mortgage as a necessary, 242. illegality of debt secured, 474. partial illegality, 469. statute of frauds, promise to execute, 544. deposit of title deeds as mortgage, 565. assignment and extension, 542. assignment or discharge, 561. sale, 581 note 266. as indemnity, consideration, 638 note 31, 651. covenant against incumbrances, rights of purchaser at foreclos- ure sale, 749 note 118. promise to pay, by grantee of premises, right to sue, 715 note 24. assignment, ^equities, 738 note 91, 739 note 94. statute of frauds, 542, 561, 581 note 266. MOTHER (see "Parent and Child"). MOTIVE, for entering into contract, 81. dishonest, as element of fraud, 124, 163. statement of, as representation, 140, 149. distinguished from consideration, 635. MUNICIPAL CORPORATIONS, contracts, see "Public Contracts." construction of charter, 795 note 57. agreements tending to influence legislation, legality, 404. agreements promotive of abandonment of duty, legality, 398, 454. MURDER (see "Homicide"). MUTES, contractual capacity, 286. MUTUAL ASSENT (see "Agreement"). MUTUAL PROMISES (see, also, "Mutuality"), as form of offer and acceptance, 42. consideration, 26 note 60, 634, 680, 689, 690. wager, 361 note 89. partial illegality, effect, 472. INDEX. 1157 [eefeeences are to pages.] MUTUALITY (see, also, "Mutual Promises"), of mistake, necessity for, to justify relief, 97 not« 9, 101, 109, 112, 464. of risk in wagers, necessity, 362. of obligation, 682. See, also, "Consideration." as to contract within statute of frauds, signature, 599. as condition of specific performance, 253 note 128, 937. as condition of injunction against breach, 941. N. NAMK, of contracting party, mistake as to identity, 103. NARROWER AND WIDER TERMS, construction of contract, 807. NATURAL OBLIGATION (see "Moral Obligation"). NATURE, of contract, 1, 6 et seq. of transaction, mistake as to, 98. distinguished from misrepresentation and fraud, 98. distinguished from mistake as to legal effect, 98. negligence of mistaken party, 98, 100. mutuality of, 101. effect of, 98. of subject-matter, mistake as to, 110. distinguished from failure of performance, 111. NAVY (see "Army and Navy"). NECESSARIES, liability of infant for necessaries, 236. nature of obligation, 237. necessaries defined, 238. money advanced, 240. business necessaries, 241. property necessaries, 241. counsel fees, 242. necessities of infant, 242. necessities of infant's family, 245. province of court and of jury, 245. express contracts for necessaries, 246. 1158 INDEX. [BEFEEENCES ABE TO PAGES.] NECESSAEIES— Cont'd. furnished to child, liability of father, 24. liability of insane person for, 297, 307 note 303. liability of spendthrift under guardianship for, 308. as subject of monopoly, 445. NECESSITIES, taking advantage of, undue influence, 201, 209. of infant, 242. See "Necessaries." works of necessity, see "Sunday." • NEGLIGENCE, as creating an estoppel, see "Estoppel." inducing mistake as to nature of transaction, 98, 100. failure to read contract, 100. inducing mistake as to collateral fact, 107 note 37. in making misrepresentation, 124. See, also, "Reckless Misstate- ment." in relying on misrepresentation, 155. of infant, liability, 249. stipulation for immunity from liability for, legality, 436. NEGOTIABLE INSTRUMENTS. delivery, 354 note 61. reality of consent, mistake, right to rescind as against bona fide holder, 100. nondisclosure by seller of instrument, 134. fraud, right to rescind as against bona fide holder, 182. infants, validity of note, 230 note 42, 234. recovery where given for necessaries, 238 note 67, 247. validity of single bill, 230 note 42. validity of indorsement, 230 note 42. validity of acceptance of draft, 230 note 42. right of maker to urge infancy of payee, 253 note 129. necessity for ratifying note, 255. disaffirmance as against bona fide holder, 282. insane persons, right of maker to urge insanity of indorser, 303. disaffirmance as against bona fide holder, 307. legality, discount, usury, 377 note 131, 381. accommodation paper, 377 note 131. bona fide holders, 377 note 131. INDEX. 1159 [BEI'EBENCES ABE TO PAGES.] NEGOTIABLE INSTRUMENTS— Ck)nt'd. given for money due on illegal transaction, validity, 475 note 471, 480, 485 note 504. V usury, 475, 481 and note 493. wager, 480 note 493, 481. bona fide holders, 480. subpurchaser with notice, 481 note 493. Sunday contracts, 351 note 48, 352 note 53. ratihcation, 359. as affected by war, 321, 322. right of maker or acceptor to urge illegality of indorsement, 481. partial illegality of consideration, 469 and note 458. retrospective operation of statute as to, 344. necessity for writing at common law, 537. statute of frauds, sale of paper, 581. guaranty of paper, sufficiency of memorandum, 589. expression ,of consideration, 594. validity of note for price of land sold orally, 608. consideration, necessity for, 630. bona fide holders, 631. failure of, 697-700. in part, 702. instrument as consideration of itself, 669, 860, 944. surrender of instrument as consideration, 638 note 31. assignment, 740. necessity for indorsement, 743 note 105. by delivery, 733 note 80. consideration, 630, 742. presumption, 742. illegality; 480, 742. fraud, 742. notice, 7'43. title and equities, 743. bona fide holders, 100, 182, 282, 307, 377 note 131, 480, 631, 743. alteration, generally, see "Alteration of Instruments." mistake, place of payment, 841. materiality, number of bank note, 843. 1160 INDEX. [references ABE TO PAGES.] NEGOTIABLE INSTRUMENTS— Cont'd, words of negotiability, 844. words on baclt of note, 844 note 87. modification by parol, 862 note 147. loss of, effect on right to recover, 845. destruction of, as discharge, 846 note 92, waiver of rights, 854. necessity for surrendering instrument, 854. estoppel to enforce instrument, 854 note 115. prevention of performance as breach, 922 note 348. joint and several contracts, joint makers, survivorship, 761 note 151. irregular indorsers, liability, 770 note 187. promise of payment by discharged drawer or indorser, past consideration, 658. evidence of promise, 659. knowledge of facts, 659. payment by, 865, 867. absolute discharge, 866. conditional discharge, 866. presumption, 866. province of jury, 867. negotiable instrument of third person, 867. pre-existing and contemporaneous debts, 867. tender of, in payment, 875. as accord and satisfaction of past-due or disputed debt, 944. payment of, election as to medium, 887, 889. collection of, as ratification of contract, 359. NEGOTIATIONS, as contract. 86. NEPHEW (see "Uncle and Aunt"). NEUTRALS, • r rights, 320 note 351, 410. NEW CONTRACT, new promise as reviving unenforceable contract, see "New Prom- ise." presumption of, 668. discharge of old contract by, 838, 842, 851. waiver or rescission, 852. See "Rescission"; "Waiver." substitution of contract, 855. express and implied substitution, 856. consideration for new contract, 669 note 145, 672, 856. INDEX. 1161 [BEFEBENCES ABE TO PAGES.] NEW CONTRACT— Cont'd. postponement of performance, 856. by specialty, 857. substitution of entirely new contract, 856, 857. modification of terms of old contract, 856, 858. substitution of parties — novation, 856, 858. See "Nova- tion." requisites of novation. 858. form of new contract, equal dignity with old contract, 860. specialties, 860. simple contracts, 861. negotiable instruments, 862 note 147. statute of frauds, 542, 543, 861. stipulation against modification, 862. NEW PROMISE. new contract, see "New Contract." to pay barred debt, see "Limitation of Actions." to perform contract made in infancy, see "Afiirmance." to pay unenforceable debt, past consideration, 651. to perform contract, consideration, 666. See, also, "Considera- tion." to perform Sunday agreement, 358. by joint debtor, after release of others, consideration, 759 note 147. to joint creditors severally, effect, 762. NEWSPAPERS, advertisements in, see "Advertisement." advocation of public project for hire, legality, 397 note 208. Sunday editions as works of necessity, 357 note 71. NEXT OF KIN (see, also, "Heirs"), right to urge statute of frauds, 616. NIECE (see "Uncle and Aunt"). NOMINAL DAMAGES, generally, 930. NON COMPOS MENTIS (see "Mental Unsoundness"). 1162 INDEX. [BBFEBENOES ABE TO PAGES.] NONDISCLOSURE, distinguished from £raud and deceit, 125, 143. distinguished from concealment, 143. as affecting certain contracts, 113, 130. duty to disclose, 131, 694 note 237. trustee and beneficiary, 131. principal and agent, 131. attorney and client, 131. physician and patient, 131. priest and parishioner, 131. partners, 131. quasi partners, 131. persons affianced, 131. parent and child, 131. guardian and ward, 131. by infant, estoppel to avoid contract, 261. NONEXISTENCE (see "Existence"). NONJOINDER, of parties to joint, joint and several, or several contract, see "Joint and Several Contracts." NONNEGOTIABLE INSTRUMENTS, verbal acceptance of order, validity, 537. NONPERFORMANCE OF CONTRACT, as failure of consideration, 695, 916. See "Consideration." as breach of contract, see "Breach of Contract." NOTES (see "Negotiable Instruments"). NOTICE (see "Inquiry"; "Knowledge"), as avoidance of contract made in infancy, 264. as condition precedent, 914. not to perform, as repudiation of contract, 895. of assignment of contract, necessity for, as against assignor and his assignee in bank- ruptcy, 734. necessity for, as against debtor, 734. necessity for, as against attaching creditors of assignor, 734 note 84, 737 note 89. necessity for, as between conflicting assignees, 736. negotiable instruments, 743. sufficiency of, 735 note 85. of dissolution of partnership, lapse of offer, 74. INDEX. 1163 [references are to pages.] NOTICE— Cont'd. of election under alternative promise, 888. of offer or acceptance, see "Acceptance" ; "Offer and Acceptance." of special loss, damages, 933 note 378. of undue influence, 200. termination of contract by, 851. to grantee, of restrictive covenant of grantor, 751. to perform contract, effect as to time, 882. NOVATION, substitution of creditors, see "Assignment of Contract." as assignment of liability, 724 note 48. as assignment of rights, 726. consideration, 726, 859. requisites, 727, 858. intention, 858. consent of three parties, 859. necessity for writing, statute of frauds, 555 note 174. presumption of, 859. discharge of debt, 726, 856, 858. acceptance of benefit of promise to third person, 714 note 23. of partnership debt, 859. NUDUM PACTUM, consideration, 628. NUISANCE, duty to disclose presence of, 132. compounding crime, legality, 415 note 283. NUMERALS, parol evidence to explain, statute of frauds, 597. words as controlling, 810. NURSING, as a necessary, infancy, 239 note 72. lunacy, 299 note 267. o. OBJECT, of contract, legality, see "Legality of Object.' of intent to deceive, person deceived, 164. 1164 INDEX. [BEFEBENCES are to PA.OES.] OBLIGATION, definition, 10, 17, 19. legal, natural, and moral, 10, 19. distinguished from duty, 710. as element of contract, 10. contracts executory and executed, 11. incidental obligations, 13, 22. elements, 17. plurality of parties, 19. certaint5' of parties, 20, 75. control, 20. definiteness of liability, 20. value of subject-matter, 21. sources, 21. obligations ex contractu, 22. obligations quasi ex contractu, 22. See "Quasi Contract." obligations ex delicto, 21. obligations quasi ex delicto, 22. promise by infant to perform, validity, 234. performing or promising to perform as consideration, 651, 666. See, also, "Consideration." of contract, impairment of, constitutional law, 220. OBLIGOR AND OBLIGEE (see "Bonds"). OBSCURITY, in contract, see "Construction of Contract." OBSTRUCTION, of justice, see "Justice." of performance of contract, see "Prevention." OCCUPATION (see "Commercial Regulations"). OFFENSE (see "Crime"). OFFER AND ACCEPTANCE, in general, 2. 30. necessity for, 37. See "Acceptance." form of, 39. promise, 40. express and implied offer and acceptance, 40. simple assent, 41. act for promise, 41, 634, 635. promise for act, 41, 634, 635. promise for promise, 42. communication of offer, necessity for, 42. INDEX. 1165 [REFEBEflCES ABE TO PAGES.] OFFER AND ACCEPTANCE— Cont'd. sealed offer, 46. mode of, 43. as bearing on mode of acceptance, 51. as bearing on time for acceptance, 49. telegram, effect of error in transmission, 44. by conduct, see "Implied Contracts." communication of particular terms, 44. stipulations on hotel register, 44. conditions on passenger tickets, 44. stipulations in freight receipt, 45 note 20. presumption of communication, 45 note 20. comniunication of acceptance, 46. See "Acceptance." communication by conduct, implied contract, 53, 56. See "Im- plied Contracts." communication by agent, 62. See "Agency." revocation of ofEer, 66, 690. sealed offer, 67. standing offer, option, refusal, 67. communication of revocation, 68. moment of, 68. mode of, 69. general or public offer, 70. lapse of offer, 70. efflux of reasonable time, 71. sealed offer, 71. noncompliance with condition of offer, 71. rejection of offer, 72. death of party, 72. insanity of party, 73. dissolution, of partnership, 73. of corporation, 74. who may accept — identity of acceptor— general or public offer. 74. character of acceptance, 72, 77. See "Acceptance." effect of acceptance, 79. See "Acceptance." revocation of acceptance, 80. intention to create legal relations, 80. motive, 80. gratuitous benefits, 83, 649 note 63. expression of intention as to future acts. 83. social engagements, 84. jests, 84. 1166 INDEX. ■> [befebences aeb to pages.] OFFER AND ACCEPTANCE— Cont'd, invitations to negotiate, 84. incomplete negotiations, 86. deiiniteness of offer and acceptance, 88. offer made through mistake, snap acceptance, 107. OFFICERS (see, also, "Offices"), of corporation, see "Corporations." contract with self as individual, 19. of state, suit against, 218. agreements promotive of dereliction of duty, legality, 395. indemnity, 476. as to compensation, 895. as to relinquishing levy, 395 note 203. as to forbearing to levy, 395 note 203. as to releasing prisoner, 395 note 203. double agency, 397 note 209. agreements involving corruption of, 404. legislative officers, 404. lobbying contracts, 404. administrative officers, 406. conflict of laws. 503. doing duty as consideration, 664. recovering back excessive fees, 666. promise to pay excessive fees, adequacy of consideration, 693. bonds, 848 note 95. recitals as limiting condition, 809. OFFICES (see, also, "Officers"), agreements involving traffic in, 399. promise to appoint, 399. promise to procure appointment, 399, 401. promise to resign, 400 notes 221 and 222. sale or exchange of offices, 399. delegation of duties, deputies, 400 and note 220. effect of partial illegality, 468 note 455, 469 note 456. private offices, 401. emoluments of, agreements involving traffic in, legality, 401. creation of Hen on, legality, 402 note 233. assignment of, legality, 402. OFFICIOUS ACCEPTANCE (see, also, "Benefits"; "Volunteers"), by third person, of offer, effect, 102. OLD CONTRACT (see "New Contract"). INDEX. 1167 [references ABE TO PAGES.] OMISSION, of words from contract, construction of contract, 800. OPERATION, of agency, 65. of contract, see "Operation of Contract." of law, termination of agency by, 65. assignment of contract by, 744. See, also, "Assignment of Contract." release by, see "Joint and Several Contracts." discharge of contract by, 824. See "Discharge of Contract." of statutes, see "Statutory Illegality." OPERATION OP CONTRACT, In general, 4, 706. limits of contractual relation, 706. See "Parties to Contract." imposing liability on third person, 708. See "Parties to Con- tract." conferring right on third person — promise made for thiid person's benefit, 711. See "Parties to Contract." assignment of rights or of liabilities under contract, 722. See "Assignment of Contract." joint, several, and joint and several contracts, 756. See "Joint and Several Contracts." OPIATES, intoxication by, contractual capacity, 289 note 241. OPINION, expression of, not a promise, 83 note 168. not a representation, 140, 146. right to rely on, fraud, 155 note 237. as of personal knowledge, effect as fraud, 161. OPPRESSION (see "Duress"; "Undue Influence"). OPTION, to enforce or to reject contract, see "Election." to determine contract, 849. offer in form of, necessity for acceptance. 38 note 4. , revocation, 67. effect of acceptance, 67. in promisor to perform precludes contract, 88. as speculative contract, 369. 1168 INDEX. [BEFEEBNCES ABE TO PAGES.] ORAL CONTRACTS. generally, see "Parol Contracts." definition, 510 note 11. construction, generally, see "Construction of Contract." province of court and of jury, 778 note 6. ORDER, for goods, as acceptance, 85. officious acceptance, eSect, 102. generally, see "Sales." to pay money, as assignment, 733. as acknowledgment of barred debt, 951 note 433. by infant, rescission, 273 note 183. verbal acceptance, validity, 537. ORDINARY CALLING, Sunday laws, 351. ORDINARY CARE (see "Negligence"). ORDINARY COURAGE, of subject of duress, 194. ORB (see "Mines and Mining"). ORIGINAL OBLIGATION, of executor or administrator,' statute of frauds, 547. of promisor, in promise to answer for another's debt, etc., statute of frauds, 550. OUTLAWS, contractual capacity, 325. suits by and against, 326. capacity of wife of, 312. OVERPAYMENT, to infant, reimbursement, 281 note 213. OVERT ACT, communication of acceptance by, implied contracts, 56. OWNERSHIP (see "Right, Title, and Interest"). INDEX. ]^159 [befebences are to pages.] p. PAR DELICTUM, right of innocent or less guilty party to recover back money paid or property delivered under illegal agreement, 493. PAJRDON, of convict, effect on capacity to Contract, 326. agreement to aid in procuring, legality, 406. promise to pay for procuring, past consideration, 648. PAJRBNT AND CHILD, implied contract for services or support, 59. persons standing in loco parentis, 59. nondisclosure as between, 131. duress, subject of, 189 note 356, 193 note 370. as between, 192 note 365. undue influence, presumption, 204. persons standing in loco parentis, 204. emancipation of child, 227. right to wages of child employed in violation of law, 350 note 46. liability of parent for supplies to child, 24, 55. infant parent, 245. lunatic parent, 299. care of adult child as past consideration for promise of father, 645. waiver by parent of rights as to custody, maintenance, control, or education of child, legality, 434. waiver by parent of right to name child, as consideration, 675 note 171. , PAROL AFFIRMANCE, of contract made in infancy, 261. PAROL CONTRACTS, definition, 509. classification, 24, 510. legality of object, 335. See, also, "Legality of Object." necessity for writing, see "Written Contracts." merger in specialty, 535, 837. construction of, 777. written contracts, see "Construction of Contract." oral contracts, province of court and of jury, 778 note 6. Contracts — 74. 1170 INDEX. [bBFERENCBS ABE TO FAOEB.] PAROL EVIDENCE, to vary, add to, or detract from written contract, 89, 372, 783, 818. specialties and simple contracts, 783 note 22. law and equity, 784 note 22. contract implied from written contract, 784 note 22. validity of contract, 487, 535, 769, 783. modification, suspension, or discharge of contract, 784. unexpressed terms, 785. collateral agreements, 785. application of terms of contract, 786. latent and patent obscurity or ambiguity, 786. as to parties, 516, 591, 787. as to subject-matter, 596, 787, 793, 797. as to nature of obligation, 597, 788. custom and usage, 788, 814. technical terms, 789. statute of frauds, identification of parties, 591. identification of property, 596. showing consideration, 592. showing terms of contract, 597. connecting memoranda, 604, 802. miscellaneous, filling blanks in deed, 516. showing condition of delivery of deed, 526 note 76, 527 note 79. showing mistake as to joint contract, 769. showing want of consideration for deed, 535. showing illegality of consideration, 487. connecting separate writings, 604, 802. showing surrounding circumstances and object of par- ties, 793. showing subsequent acts of parties under contract, 795 note 57. showing special meaning of ordinary words, 813. as to time being of essence of contract, 883 note 221. PART PAYMENT {see "Payment"). PART PERFORMANCE, of divisible contract, see "Divisible Contracts." of illegal agreement, recovery on rescission by innocent party, 458 note 421. recovery of property delivered or money paid under agree- ment, 491. INDEX. 1171 [bkfkbences ake to pages.] PART PERFORMANCE— Cont'd. of contract within statute of frauds, 558, 542, 573, 609. See, also, "Statute of Frauds." recovery for, on abandonment of contract, 834, 851. on discharge of contract by impossibility of performance, 834. on breach of contract by other party, 892, 899. PARTIAL AFFIRMANCE OR AVOIDANCE (see "Affirmance": "Rescission"). PARTIAL ASSIGNMENT (see "Assignment of Contract"). PARTIAL ILLEGALITY, effect on contract, 466. separable agreements, 466. one promise and one consideration, 467. one promise and several considerations, 467. several promises and one consideration, 470. several promises and several considerations, 472. PARTIAL INSUFFICIENCY, of consideration, 694. PARTIAL INVALIDITY, through noncompliance with statute of frauds, effect, 567. PARTIAL RESCISSION (see "Rescission"). PARTICBPS CRIMINIS, illegal agreements, 459, 461. PARTICULAR WORDS, construction of contract, 812. PARTIES TO CONTRACT, capacity, see "Capacity." identity, see "Identity." plurality, as element of agreement, 7 note 2, 14 as element of obligation, 19. necessity for, in wager, 362, 373. certainty, 15, 20, 516 note 36, 517 note 37. designation in memorandum, statute of frauds, 591. parol evidence to identify, 787. confusion of names, construction of contract, 800 note 78. 1172 INDEX. [ebfkeences aee to pages.] PARTIES TO CONTRACT— Cont'd. alteration of instrument as to, materiality, 844. specialties, 514. certainty, 516 note 36, 517 note 37. limits of contractual relation as to, in general, 706. agency, 707. trusts, 707, 719. imposing liability on third person, 708. master and servant, 709. principal and agent, 709. duty to respect contracts with, others, 710. conferring right on third person — ^promise for third person's benefit, right of action by promisee, 716 note 24. right of action by third person, 689, 690, 712. special damage to third person, 717. consideration furnished by third person, 719. blood relationship between third person and promi- see, 719. third person as real party in interest, 722. acceptance by third person of promise, as discharging promisee from liability to him, 714 note 23. as precluding discharge of promise by promisee, 716 note 24. presumption of, 716 note 24. delivery of instrument evidencing promise to third per- son as prerequisite to suit, 716 note 24. right of promisee to discharge promise, 716 note 24. promise by transferee to transferror to pay creditor of transferror, 715 note 24. promise by one partner to another to pay firm debts, 715 note 24. clause in corporate charter in favor of third persons, 715. clause in favor of one of several joint contractors, 716. right of citizen to sue on municipal contract, 717. right of addressee to sue telegraph company on contract -with sender, 717 note 28. right of consignee to sue carrier on contract with con- signor, 717 note 28. right to sue on specialty for benefit of third person, 718. right of beneficiary to enforce trust, 719. right of beneficiary to enforce marriage settlement, 720. INDEX. 1173 [befebences are to pages.] PARTIES TO CONTRACT— Cont'd. right to recover money or property received to use of third person, 721. assignment of rights or of liabilities under contract, 722. See "Assignment of Contract." joint, several, and joint and several contracts, 756. See "Joint and Several Contracts." substitution, of debtors, see "Novation." of creditors, see "Assignment of Contract." PARTITION, after executed illegal transfer, 463 note 439. form, statute of frauds, 562. PARTNERSHIP, nondisclosure, 131. fraud inducing contract of, 143. contract of, by infant, voidability, 230 note 42. necessity for disaffirmance, 256 note 138. knovirledge as prerequisite to affirmance, 262. ratification or disaffirmance in part, 275. restoration of status quo, 271 note 178. illegality, right of partner to accounting, 485 note 504. effect of noncompliance with law by one partner, 347 note 49. note given on settlement, validity, 485 note 504. promise by partner in restraint of trade, 455. statute of frauds, creation of firm for dealings in realty, 566. contract of partnership, performance within year, 572 note 237. promise between partners to pay firm debts, right of creditors to sue, 715 note 24. rights of action, joinder of partners, 762 note 154. rights of surviving partner as to firm credits, 764 note 163. novation of partners, 859. dissolution, by insanity of partner, 833 note 33. by war, 324. as causing offer to lapse, 73. as discharging contract of employment, 754 note 129, 832 note 28. 1174 INDEX. [references are to pages.] PARTY WALLS, covenants as to, as running with land, 749. PASSENGERS (see "Carriers"). PAST CONSIDERATION, 645 (see "Consideration"). PASTOR (see "Spiritual Advisers"). PATENT AMBIGUITY, parol evidence to explain, 786. PATENTS FOR INVENTIONS, as affecting monopoly, legality, 440. combination of owners, legality, 440. assignment of, necessity for writing, 538. medicine, reward for failure to cure, consideration, 638. right of patentee to practice without a license, 347 note 39. promise of royalties, adequacy of consideration, 693. failure of consideration, 697. contract for manufacture and supply, discharge by death of party, 832. PATIENT (see "Physicians"). PAUPERS (see "Poverty"). PAYMENT, right to recover back payments, see "Recovery Back." time of, see "Maturity." part, as tolling statute of limitations, see "Limitation of Ac- tions." intention not to pay, fraud, 134. threat to refuse, duress, 192 note S65. overpayment to infant, reimbursement, 281 note 213. to lunatic or drunkard, validity, 296 note 262. payment to agent of alien, effect of war, 325 note 368. as ratification of contract, 359. on Sunday, legality, 463 note 439. to assignor before notice of assignment, discharge, 734. alteration of instrument as to place and time of, materiality, 844. of interest before maturity, as consideration for extension of time, 670. in part, of price, statute of frauds, 586. as consideration for discharge, 669, 671. INDEX. JJ75 [rm-erences are to pages.] PAYMENT— Cont'd. as consideration for extension of time, 671. as discharge of contract, 863. definition, 864. medium of payment, election as to, 887, 889. genuineness, 864. property, 865. negotiable instruments, 669, 865, 867.' absolute discharge, 866. consideration, 669. conditional discharge, 866. presumption, 866. province of jury, 867. negotiable instrument of third person, 867. consideration, 669. pre-existing and contemporaneous debts, 867. presumption of payment from lapse of time, 868. payment by volunteer, 869. implied promise to reimburse, 869. ratification by debtor, 870. appropriation of payments, involuntary payments, 871 note 176, 872 note 180. direction by debtor, 870. implied direction, 871. application by creditor, 871. to unenforceable debt, 607. application by court, 469 note 457, 872. tender, 872. See "Tender." consideration, irregular payment before maturity, 669. irregular payment in different manner or place from that agreed on, 669. part payment, 669, 671. Pi:JDDLBRS, license to trade, 348 note 40. PENALTY, in statute, as implying prohibition, 340. absence or failure of, as defeating prohibition, 389 note 14. recurring penalties, 342. for usury, 491. distinguished from liquidated damages, 379, 925. See "Dam- ages." 117h INDEX. [references ABE TO PAGES.] PENCIL, memorandum by, statute of frauds, 589. PENSION, assignment of, legality, 402. PER MINAS, duress, 191, 210 note 425. PERFORMANCE, of contract, see "Performance of Contract." of duty, as consideration, 663. See, also, "Consideration." PERFORMANCE OF CONTRACT, conflict of laws as to, see "Conflict of Laws." executed contracts, see "Executed Contracts." failure or nonperformance, as failure of consideration, 695, 916. as breach of contract, see "Breach of Contract." money demands, see "Payment"; "Tender." part performance, see "Part Performance." prevention of, see "Prevention." possibility of, see "Impossibility of Performance"; "Possibility." repudiation of contract, see "Repudiation of Contract." waiver of, see "Walvei." mode of, as affecting legality, 463 note 440, 464, 465. threat to refuse, as duress, 192 note 365. as consideration for new promise, 666. See "Consideration." as authorizing remedy as for implied contract, 62. as curing uncertainty, 88 note 182. as dispensing with necessity for writing, statute of frauds, 541. as dispensing with necessity for consideration, 632. as precluding avoiaance of infant's contract, 246 note 105. as precluding avoidance of illegal contract, 462, 468 note 455, 486 note 506, 488, 493, 494. interference with, by third person, liability, 710. by third person, obligation of promisee to accept, 723. right of personal representative of deceased party to perform or to compel performance, 753, 831. right of assignee of bankrupt party to perform or to demand performance, 755. tender of, as extinguishing right to performance, 873. discharge by, 855, 863. difficulty, inconvenience, or imprudence of, 826. substantial performance, 877. INDEX. 1J77 [EEFEEENCES ABE TO PAGES.] PERFORMANCE OF CONTRACT— Cont'd, satisfactory performance, 879. time of, 828, 881. See "Time." as essence of contract, 882. at law, 883. in equity, 883. postponement of, consideration, 856. by specialty, 857. statute of frauds, 543 note 132, 572, 862 note 149. alternative promises, 886. See "Alternative Promises." election by promisor, 887. election by promisee, 888. time of election, 889. effect of election, 890. PERILS OF THE SEA, as exception in charter party, 848. PERMISSION, . to invade rights as consideration, 637 note 28. PERSONAL CONSIDERATIONS, as entering into contract, 101, 105 note 31, 753, 755, 831. PERSONAL KNOWLEDGE, statements as within, fraud, 156, 160, 162. PERSONAL PROPERTY, sales ot see "Sales." duress of, 195. contract of infant relating to, time for avoidance, 276. right of aliens to hold, 319. covenants attaching to and running with, 745. specific performance of contract relating to, 611. PERSONAL REPRESENTATIVES (see "Executors and .■Adminis- trators"). PERSONS, natural and artificial, 215. normal and abnormal, 215. PHYSICIANS, and patients, undue influence, 206. nondisclosure, 131. 1178 INDEX. [rEFEEBNCES ABE TO PAGES.] PHYSICIANS— Cont'd. medical attendance as a necessary, infancy, 239. contractual capacity, 328. license to practice, 347 note 39. impersonation, fraud on public, legality, 394. PICTURES, contract for, satisfactory performance, 879. PILOTS, promise to assist vessel in distress as consideration, 663 note 115. PLACE, law of, see "Conflict of Laws." of communication of acceptance, as fixing place of contract, 47 note 22. as fixed by offerer, .50, 71. of signing memorandum, statute of frauds, 601. of performance, election, 888 note 238. of tender, 874. PLEADING, defense of illegality, 487. complaint on contract within statute of frauds, allegation of writing, 609. part performance, variance, 615. defense of statute of frauds, 617. demurrer, 617 note 432. new promise to pay debt barred by limitations, 657. right of stranger to sue on promise for his benefit, 711. See "Parties to Contract." third person as real party in interest, 722. assignee of lessor as real party in Interest, 748 note 115. PLEASURES, as necessaries, infancy, 239. lunacy, 299 note 267. PLEDGE (see, also, "Mortgages"; "Security"), to secure illegal debt, recovering back property, 490. PLURALITY OP PARTIES, as element of agreement, 7 note 2, 14. as element of obligation, 19. INDEX. 1179 [references are to pages.] POLICE OFFICERS (see, also, "Officers"), doing duty as consideration, 664. POLICE POWER, state regulation of right to make contracts, 336. POLICY, of insurance, see "Insurance." as lottery, 374 note 122. public, see "Public Policy." POLITICAL STATUS, as affecting contractual capacity, see "Aliens"; "Conviction"; "Outlaws"; "Slaves"; "States." POLLICITATION, definition, 40. POPULAR SENSE, of words, construction of contract, 812. PORTRAITS, contract for, satisfactory performance, 879. POSSESSION, of seller, effect as between true owner and buyer, 182 note 329. deprivation of, as duress, 195. right of, as prerequisite to disaffirmance of deed of infant, 278. change of, sales, statute of frauds, 585, 614. surrender of wrongful, as consideration, 665. POSSIBILITY, impossibility of performance as discharging contract, see "Im- possibility of Performance." of lawful performance, as saving otherwise illegal agreement, 465. of facilitating illegal act, effect on collateral transaction, 477 note 482. of performance within year, statute of frauds, 569. of benefit, as consideration, 637. of rendering promised consideration, 640, 825. failure of consideratiouj 700. of truth of representation, right to rely on statement, fraud, 155 note 237. POST, letters, see "Letter." liability for money stolen from, 678. 1180 INDEX. [liEFEBENCES ABE TO PAOES.] POST OBIT CONTRACTS, undue influence, 202, 209. POSTPONEMENT OF PERFORMANCE (see "Time"). POXJNDS, as money denomination, omission of, construction, 800 note 73. POVERTY, taking advantage of person in, undue influence, 209. as affecting maintenance of another's suit, 423. POWER, of attorney, to fill in blanks in deed, necessity for seal, 517. to execute deed, necessity for seal, 517. to sign memorandum, statute of frauds, 602. to bind as surety, necessity for writing, 538. mistake as to nature of, 99. by infant, voidability, 231. by lunatic, voidability, 294. of sale, by infant mortgagor, validity, 231 note 43. to infant grantee, 227. stifling competition in sale, legality, 392 note 194. PRACTICAL CONSTRaCTION, of contract, 794. See "Construction of Contract." PREDICTION, statement of, not a representation, 140, 146. PRE-EXISTING DEBT, as consideration for sale, bona fide purchasers, 182. as consideration for contract of suretyship or guaranty, 546. as consideration for security, 651. as consideration for indemnity, 651. as continuing consideration, 651. PRELIMINARY NEGOTIATIONS, as contract, 84, 86. PREMIUMS, as wagers, 372. as lottery, 374 note 122. PRESERVATION OP BSTATB^ expenses for, as necessaries, InfantB^ 241. INDEX. 1181 [rkfeeences are to paces.] PRESS ASSOCIATIONS, legality, 444 note 373. PRESUMPTION, of acceptance of offer, infants, 39 note 5. lunatics, 39 note 5. of acceptance of deed, 524, 525, 39 note 5, 42 note 11. of acceptance of promise for third person's benefit, 716 note 24. acceptance by infant, 716 note 24. as to capacity of deaf mute, 286 note 225. as to capacity of deaf, dumb, and blind person, 286. as to existence of common law, 496. of communication of terms of offer, stipulations limiting common-law liability of carrier, 45 note 20. of consideration for specialty, 530, 533. of consideration for negotiable instrument, 631, 742. of consideration for written contract, 629. of benefit of irregular payment, consideration, 669. as to future cohabitation being consideration for promise, 462 note 434. as to marriage being consideration for conveyance, 640 note 39. of continuance of insanity, 290. of delivery of deed from recordation by grantor, 524. as to date of execution and delivery of deed, 516 note 35, 523. as to duress, 191 note 365. of fraud in alteration of instrument, 841. against implied contract between relatives, 59. against implied contract between relatives, 59. as to necessities of infant, 243. as to intent to affix seal, 521. as to intention to defraud third person, 394. of intention of contractors to bind personal representatives, 832 note 29. as to joint and several contracts, 769-771. of knowledge, of law, 117, 262. of truth, 158. of materiality of misrepresentation, 153. of new contract, 668. of payment, arising from lapse of time, 868. arising from execution of negotiable instrument for deoL, 866, 867. 1182 INDEX. [BEFEEENCES ABE TO PAGES.] PRESUMPTION— Cont'd. of promise to pay reasonable price, 594. of recordation of deed by grantor, 525 note 72. of reliance on misrepresentation, 167. of reliance on personal investigation, fraud, 167. as to rescission of contract, 668. as to adoption of one seal by several signers, 521. as to liability of wife's separate estate, 316. as to existence of statutory law, 497. as to time being essence of contract, 886. of undue influence, 200. arising from inadequacy of consideration, 200, 208 note 422, 210 and note 425. arising from relationship of parties, 202. family relation, 203. confidential relation, 205. termination of relation, 207. arising from mental weakness, 208 note 422. senility, 287 note 230. PREVENTION, of discovery of truth, 145. See, also, "Concealment." of performance of contract, of agency, termination, 65. as authorizing remedy as for implied contract, 6?;. as constituting breach, 897. waiver of performance of conditions precedent, 897, S98 note 281, 922. by promisor, 897. waiver of demand, 898 note 281. by promisee, 899. PRICE, of subject-matter. See, also, "Sales"; "Vendor and Purchaser." mistake as to, 116. duty to disclose facts affecting, 145 note 195. statement of, as misrepresentation, 148 note 206, 149 note 211. inadequacy and exorbitancy, as evidence of undue influence, 200. agreement to puff, auction, legality, 391. wagers on, see "Futures." PRIESTS (see "Spiritual Advisers"). PRINCIPAL AND AGENT (see "Agency'). INDEX. 1183 [BEPEaiENCES ABB t6 PAGES.] PRINTING, signature by, statute of frauds, 600. on letter head, as part of contract, 801 note 75. as controlled by writing, 810. PRIORITY, as between successive assignees of debt, 736. as between assignee of debt and third persons, 734 et seq. PRISONER OF WAR, contractual capacity, 321 note 352. PRIVATE INTERNATIONAL LAW (see "Conflict of Laws"). PRIVATE LAWS, agreements in violation of, legality, 342. PRIVIES (see, also, "Privity"), of infant, right to urge infancy, 253. of insane person, right to urge insanity, 302. estoppel by deed, 535. right to urge statute of frauds, 616. PRIVITY (see, also, "Privies"), of contract, right of stranger to enforce promise made for his benefit, 712. See, also, "Parties to Contract." PRIZE, premium in competition, 372. in lottery, 373. PROCESS, evasion of, 418 note 294. partial illegality, 471 note 463. PRODIGALITY (see "Improvidence"; "Spendthrifts"). PRODUCTS OF SOIL, statute of frauds, sales, 562. severance, 563. contract for production, 581 note 261. future property, sales of, 731. 1184 INDEX. [ebfbeenoes are to pages.] PROFESSIONAL REGULATIONS (see, also, "Commercial Regula- tions"), brokers, 347 note 39. lawyers, 347 note 39. physicians, 347 note 39. teachers, 347 note 39. partial illegality, 472 note 466. PROFESSIONAL STATUS, as affecting contractual capacity, see "Barristers"; "Physicians." PROFITS, prediction of, as misrepresentation, 147. rents and profits of real estate, see "Rents and Profits." as damages, 931. PROFLIGACY, as affecting contractual capacity, 308. as affecting subject of undue influence, 209. PROHIBITORY LAWS (see "Statutory Illegality"). PROMISE (see, also, "Mutual Promises"; "New Promise"), of marriage, see "Marriage Promise." definition, 40. as element of contract, 40. distinguished from agreement, 593. necessity for acceptance of, 40. as representation, 140, 149. right to rely on, fraud, 155 note 237. PROMISSORY NOTES (see "Negotiable Instruments"). PROMOTERS, of corporation, duty to disclose, 135. liability of corporation on contracts of, 709. PROPOSAL, as offer of contract, see "Offer and Acceptance." for bids, 85. PROSECUTING ATTORNEYS, agreement tending to influence, legality, 406. promise of immunity by, legality, 415 note 283. PROSPECTUS, of corporation, duty to disclose, 135. INDEX. 1185 [REFEEENCES ABE TO PAGES.] PROSTITUTION (see "Sexual Immorality"). PROVINCE OF COURT AND OP JURY, as to fact of agreement, 15 note 25. as to reasonableness of time for acceptance, 50. as to works of charity or necessity, Sunday laws, 355, 357 note 71. as to whom credit was given, statute of frauds, 552 note 164. as to communication of conditions on passenger ticket, 45. as to reasonableness of time for disaffirming contract of infant, 277 note 198. as to divisibility of contract, 907 note 306. as to fraudulent intent, 158 note 245. as to intention of parties to dealings in futures, 372. as to materiality of misrepresentation, 154 note 233. as to what constitutes necessaries, infancy, 245. as to payment by negotiable instrument, 867. as to reasonableness of promise in restraint of trade, 455. as to reliance on misrepresentation, 168 note 277. PROVISOS, strict construction, 811. PROXIMATE CAUSE, of injury, fraud, 165. of damages, 932. PROXY (see "Agency"). PUBLIC, agreement promotive of fraud on, legality, 394. PUBLIC CONTRACTS, stifling competition for bids, legality, 403. agreement among bidders to share in profits, 403. agreement to procure, legality, 407. right of citizen to sue on, 717. assignment by contractor, 724. partial assignments, 732 note 76. PUBLIC CORPORATIONS (see "Municipal Corporations"). PUBLIC DUTY, performing or promising to perform, as consideration, 663. PUBLIC LAND, sales of, stifling competition, legality, 392 note 194. agreement concerning entry, statute of frauds, b60. Contracts — 75. 1186 INDEX. [bKFERKNCES ABE TO PAGES.] PUBLIC OFFER (see "General Offer"). PUBLIC POLICY, wagers, 364. compound interest, 380. as test of legality, 386. See "Legality of Object" (agreemente illegal at common law), rights contrary to, conflict of laws, 502. PUBLIC SERVICE, agreements promotive of injury to, legality, 394. PUBLISHER (see "Author and Publisher"). PUFFING PRICES (see, also, "Stifling Competition"), at auction, legality, 391. PUNCTUALITY (see "Time"). PUNCTUATION, effect on construction of contract, 799. PUTS, definition, 369 note 110. Q- QUALIFIED REPRESENTATIONS, right to rely on, fraud, 155 note 237. QUALITY, of subject-matter, mistake as to, 110, 112. facts affecting, duty to disclose, 132, 133. of contracting mind, duress, 194. of supplies to infant, necessaries, 245 note 103. QUANTITY, of subject-matter, mistake as to, 115. deficiency in, duty to disclose, 132. of supplies furnished infant, necessaries, 244, 245. QUANTUM MERUIT (see "Implied Contracts"; "Master and Serv ant"; "Quasi Contract") INDEX. ^Ig7 [bkthbences ase to pages.] QUANTUM VALEBAT (see "Implied Contracts"; "Quasi Contract"; "Sales"). QUASI CONTRACT, distinguished from tort, 27. distinguished from contract, 8, 17, 23, 54. origin of confusion of contract and quasi contract, 26. sources and classes, 22, 24, 29. definition, 23. contracts of record, 509. judgment, 23, 511. recognizance, 512. statutes merchant and staple, 513. statutory obligations, 24. in reference to persons non sul juris, liability of infants quasi ex contractu, 235. liability for necessaries, 236. parental liability, 24, 55. liability of insane persons quasi ex contractu, 297. liability for necessaries, 297. parental liability, 299. liability for services and expenses on rescission, 305. liability of spendthrift for necessaries, 308. liability of husband for -wife's debts, 236. in reference to statute of frauds, application of statute to quasi contracts, 541. liability for part performance of contract within statute, 618. liability for services rendered under Illegal agreement, 488. liability arising out of ultra vires contract, 225. liability of tort feasor, 60. conversion of goods, 26. contribution between joint debtors, 55, 235, 772. liability for goods officiously supplied, 103 note 28. liability for money received to use of third person, 721. liability on rescission of contract, 62. mistake, 122. fraud, 185. in reference to breach of contract, recovery for part performance on breach by other party, 892, 899. liability of party who has prevented performance, 62. recovering back money payments, see "Recovery Back." QUEEN CONSORT, contractual capacity, 311 note 316. 1] 88 INDEX. [BBTEEENOES AEB TO PAGES.] QUESTIONS FOR COURT AND FOR JURY (see "Province of Court and of Jury"). QUESTIONS OP LAW AND OF FACT (see "Law and Fact"). QUID PRO QUO (see "Consideration"). R. RACES, wagers on, 364 note 98. premiums, 372. RAFFLE, as lottery, 374 and note 122. RAILROADS, as carriers, see "Carriers." repairing, as work of necessity, Sunday laws, 357. wager as to time of completion, 364 note 98. establishment of route and stations, legality of agreement for, 397, 399. construction contracts, arbitration, 420 note 301. stipulation for immunity from liability for negligence, legality, 436, 437 note 358. exclusive privilege to telegraph company, monopoly, 443 note 370. purchase of consent to establishment, legality, 411. RANSOM, bond for, capacity to make, 321 note 352. RASHNESS, as affecting contractual capacity, 284. RATIFICATION, of voidable contract, see "Affirmance." of unauthorized act of another, see "Agency." by corporation, 222. of officious acceptance, 103 note 28. of false statement of another, 171. of payment by volunteer, 870. of Sunday agreements, 357. READING OF CONTRACT, duty to read contract before signing, 100. misreading, 99. INDEX. ]^j89 [BBFEEENCES ABE TO PAGES.] REAL ESTATE (see "Conveyances"; "Vendor and Purchaser"), brokers, see "Brokers." duress as to, 195 note 375. contract of infant relating to, time for avoidance, 276. right of alien to hold, 319. legality of contracts relating to, conflict of laws, 499. products, statute of frauds, 562. REALITY OF CONSENT, in general, 2, 30, 93. as affected by mistake, see "Mistake." misrepresentation, see "Misrepresentation." fraud, see "Fraud." duress, see "Duress." undue influence, see "Undue Influence." REALITY OP CONSIDERATION, necessity for, 636, 640. REASONABLENESS, of time, see "Time." of contract, favorable construction, 791. of premise in restraint of trade, 453. of mode of accepting offer, 51. of grounds of belief in falsity of misrepresentation, 160 note 254. of grounds of belief in misrepresentation, 124, 125, 158 note 245, 160 note 254, 161. of grounds of claim, compromise, 686. of grounds of dissatisfaction with performance, 879. of grounds of fear, duress, 192 note 365, 194. of grounds for architect's refusing approval of work, 944 note 322. REBELS, as enemies, 320 note 351. friendly dealings with, legality, 409. foreign rebels, friendly dealings with, legality, 409. RECALL (see "Revocation"). RECEIPT, construction, surplusage, 803, sweeping clause, 808. of goods by buyer, statute of frauds, 582. 1190 INDEX. [befbebnces ake to pages.] RECEIVERS, liability for rent und?r lease of debtor, 746 note 108. RECIPROCAL PROMISES (see "Mutual Promises"). RECITALS, in contract, as limiting general words, 809. in deed, estoppel to deny, 534. RECKLESS MISSTATEMENT, as constituting fraud, 123-125, 159. as element of estoppel, 130. RECOGNITION OP CONTRACT, as affirmance, see '"Affirmance." RECOGNIZANCE, in form of bail bond, see "Bail." definition, 512. as contract of record, 512. as quasi contract, 512. by infant, validity, 234 note 58. RECONVEYANCE, as disaffirmance of deed made in infancy, 265. RECORD, contract of, see "Contracts of Record." of deed, effect on misrepresentation as to title, 156 note 239. as delivery, 524. of instrument affirming deed of infant, 279 note 204. as memorandum, statute of frauds, 589. RECOUPMENT (see "Counterclaim"). REJCOVERY BACK, of money or property, on rescission for mistake, 121. on rescission for fraud, 184, 186. on rescission for infancy, 272, 281. rights of purchaser from vendee, 282. on rescission for insanity, 305. rights of purchaser from vendee, 307. of money paid or property delivered under compulsion, 666. excessive fees, 666. excessive charges by carrier, 666. INDEX. 1191 [EEFERBNCBS ABE TO PAGES.] RECOVERY BACK— Cont'd. to secure goods wrongfully witliheld, 195 note 375. of money paid or property delivered under illegal agreement, 488. promise to refund, 478 note 482. locus poenitentiae, 491. par delictum, 493. usurious interest, 491. money loaned to make bets, 490. money placed with agent to make bets, 492 note 528. money placed with stakeholder, 492. money paid over to winner of bet, 492. proceeds of property, 489 note 515. of money paid or property delivered under agreement within statute of frauds, 619-621. proceeds of property, 619 note 440. of money paid or property delivered, upon failure of considera- tion, 703. of money paid or property delivered, upon prevention of per- formance, 899. of money paid under contract afterwards discharged by impossi- bility of performance, 836. of money paid before breach by other party, 899, 917. of money paid on debt barred by limitations, 657 note 90. of money deposited with vendor in land contract, 622 note 453. RECTIFICATION, by court of contract mistakenly expressed, see "Reformation." of mistake in contract, unauthorized alteration, 841. REDELIVERY, of deed, as affirmance of conveyance made in infancy, 260 note 146. as element of affirmance, 301 note 273. REDEMPTION, waiver of right of, undue influence, 210. RE-ENTRY, as disaffirmance of deed made in infancy, 264 note 162, 265. REFORMATION, of instrument mistakenly expressed, 96, 122 note 102. of gratuitous sealed contract, 533. REFUSAL, as option, see "Option." of offer, see "Rejection." 1192 INDEX. [EEFEEENCES ABE TO PAGES.] REGISTER OF DEEDS, delivery by recordation, 524. REGRATING, legality, 443. REGULATION, of trades and professions, see "Commercial Regulations"; "Pro- fessional Regulations." of right to contract, police power, 336. REJECTION, of offer, time, 48 note 26. effect, 72. by counter proposal, 72, 78. RELATION BACK, of acceptance of deed, 528. of acceptance of offer, 79. of ratification of officious acceptance, 103 note 28. of ratification of contract made in infancy, 279. of disaffirmance of contract made In Infancy, 280. of finding of Insanity, 296 note 262. RELATIONSHIP, as raising presumption of undue Infiuence, 202. termination of relation, 207. family, as good consideration, 659. as affecting maintenance of another's suit, 423. as affecting right to sue on another's contract, 719. as affecting subject of duress, 189. as raising presumption of undue influence, 203. Implied contracts for services or support, 59. agreements tending to Injure, legality, 430. confidential and fiduciary, nondisclosure, 131, 694 note 237. as raising presumption of undue Influence, 205. as affecting right to perform contract by agent, 725. as affecting right of personal representative of party to per- form or to demand performance, 754. as affecting right of trustee of bankrupt party to perform or to demand performance, 755. effect on misrepresentation of law, 151. INDEX. 1193 [eefebences are to pages.] RELATIONSHIP— Cont'd. as giving right to rely on misrepresentations, 156. abuse of, as undue influence, 198, 205. agreement promotive of breach of faith, legality, 396. agreement involving traffic in positions of confidence, legality, 401. recovery for services under illegal agreement, 488. RELEASE (see, also, "Accord and Satisfaction"; "Compromise and Set- tlement"; "Discharge"; "Novation"; "Rescission"; "Satisfac- tion"; "Waiver"), of joint, joint and several, or several debtors, see "Joint and Several Contracts." of purchase money in deed, estoppel, 535. of rights in realty, statute of frauds, 566. of rights, as consideration, 637 note 28. in open court, to qualify witness, consideration, 672 note 159. promise to pay debt voluntarily released, past consideration, 656 note 89. covenant not to sue, effect as release, 760 note 149, 943 note 409. of right of action for breach of contract, definition, 943. necessity for seal or consideration, 672, 760 note 150, 854, 943. RELEVANCY (see "Materiality"). RELIANCE, on misrepresentation, right of reliance, 140, 154. as element of fraud, 166. RELIGION, transaction of business on Sunday, see "Sunday." profession of, by husband, effect on capacity of wife, 312. excommunication, effect on contractual capacity, 327. interference with, Sunday laws, constitutionality, 337. works of, as works of charity, Sunday laws, 355. RELINQUISHMENT (see "Release"). REMEDIES, at law, adequacy of, see "Adequacy." for breach of contract, see "Breach of Contract." against state, 218. REMOTE CAUSE (see "Proximate Cause"). REMOVAL OF CAUSES, waiver of right, legality, 414. 1194 INDEX. [befeeences are to pages.] RENEWAL (see "New Contract"; "New Promise"). RENTS AND PROFITS, account by infant purchaser on avoidance, 269 note 176. right of infant grantor to, after rescission, 276 note 195. liability of purchaser on rescission by quondam infant grantor, 280. RENUNCIATION (see "Repudiation of Contract"). REPAIRS, as to property of infant, necessaries, 241. REPEAL (see "Statutes"). REPLEVIN, remedy on rescission of sale for fraud, 186. against infant, 249. REPRESENTATIONS (see "Fraud"; "Misrepresentations"). REPUDIATION OF CONTRACT, rightful, see "Rescission." wrongful, agency, termination, 65. as constituting breach, 892. by promisor, 893. by promisee, 895. effect on right of promisor to perform, 895. damages, 895. withdrawal of repudiation, 893. positiveness of repudiation, 895. repudiation in part, 896. acceptance of repudiation by other party, 896. conditional contracts, 894. waiver of conditions, 921. divisible contracts, 909 note 308. REPUGNANCY, in contract, see "Construction of Contract." REPUTATION, sale of, fraud on public, 394. REQUEST, as giving rise to implied contract, see "Implied Contracts." benefit conferred on, as past consideration, 648. RES JUDICATA (see "Judgments"). INDEX. ^^95 [EEFEEENCES ABE TO PAGES.] RESCISSION, for mistake, 121. for fraud, 153 note 228, 165, 168. right of, 173, 250. efEe6t of, 174. partial, 174. what constitutes, 177. limits of right, affirmance, 178, 458 note 421. lapse of reasonable time, 178. change of circumstances, 178, 458 note 421. restoration of status quo, 178. acquisition of rights by third persons, 181. for duress, 197. for undue influence, 211. for infancy, right, personal privilege, 252, 271 note 178. estoppel, 250. necessity, 255, 265 notes 164 and 165. sufficiency, 263. limits of right, 267. restoration of status quo — return of consideration, 268. performance of contract, 246 note 105. partial avoidance, 274. time of avoidance, 260 note 145, 275. after affirmance, 279. effect, ^79. rights of third persons, 282. for.insanity, 300. necessity for, 301. who may avoid, 302. < restoration of status quo, 303. return of consideration, 305. innocency of sane party, 303. avoidance in part, 306. rights of third persons, 289 note 240, 307. for illegality, by innocent party, 458. recovery for part performance, 458 note 421. time for rescission, 486 note 506, 489 note 515, 491, 493. by mutual consent, 478 note 482. consideration, 669 note 145, 672. promise to refund payments, legality, 478 note 482. statute of frauds, oral provision for rescission, 578. 1196 INDEX. [BEFERENCBS ABE TO PAGES.] RESCISSION— Cont'd. right to rescind for noncompliance with statute, 607 note 385. consideration, waiver of right to rescind, as consideration, 667. waiver of right to make new contract for rescission, as consl*- eration, 674. rescission for partial failure of consideration, 701. consent to, as consideration, 637 note 28. illegal agreement, 677 note 176. by consent, requisites, 852. consideration, 853. contracts executory and executed, 669 note 145, 853. specialties, 854. release, 854. negotiable instruments, 854. implied rescission, 714 note 23, 855. contracts fully performed, 855. presumption, 668. promise for benefit of third person, right of promisee to rescind, 716 note 24. effect of acceptance by third person, 716 note 24. as authorizing remedy as for implied contract, 62. Sunday rescission, legality, 352 note 53. RESERVATIONS, strict construction, 811. RESIGNATION, promise to resign office, legality, 400 notes 221 and 222, 401. RESTITUTION, of consideration as condition of rescission, see "Status Quo." RESTORATION OF STATUS QUO (see "Status Quo"). RESTRAINT, of person, see "Duress." of marriage, see "Marriage." of commercial freedom, monopolies and combinations, 439. See "Monopolies and Com- binations." agreements in restraint of trade, history, 450. legality, 449. assignment, 730 note .67. performance within year, statute of frauds, 571 note 235. INDEX. 1197 [refeeences are to pages..] RESTRAINT— Cont'd. limited or partial restraints, 451. time and place, 451, 452. person and mode, 451. reasonableness, 453. distances, how determined, 455 note 411. public welfare, 454. restraint of seller of business, 455. restraint of partner or retiring partner, 455. restraint of employe, 455. trade secrets, 457. consideration, 456, 628 note 4, 637 note 28, 692 note 225. effect of seal, 532. effect of partial illegality, 468 notes 455 and 456, 470 and note 461. divisibility of, 467 note 451. certainty of restraint, consideration, 642. covenants in restraint of trade, as running with land, 747. specific performance, 692 note 225, 940, 942. RESTRICTIONS, restrictive covenants as running with land, 750. as to building, construction, 793 note 50. RETENTION, of money or goods, as affirmance of voidable contract, see "Af- firmance." RETROSPECTIVE LAWS (see "Statutory Illegality"). RETURN OF CONSIDERATION (see "Status Quo"). REVENUE LAWS, domestic, agreements in violation of, legality, 341, 347 note 39. foreign, agreements in violation of, legality, 410. conflict of laws, 498 note 543, 502 note 551. REVERSION (see "Expectant Interests"). REVIVAL, of contract rescinded for fraud, 174. of contract suspended by war, 324. of contract discharged for breach of condition subsequent, 847 note 94. 1198 INDEX. [references are to pages.] REVIVAL— Cont'd. of contract barred by limitations, 950. of unenforceable contracts, past consideration, 661. of judgment, 655 npte 85. REVOCATION, of offer, in general, 66. joint offer, 66. sealed offer, 67. standing offer, option, refusal, 67. communication of revocation, 68. moment of, 68. mode of, 69. general offer, 70. of acceptance, 80. of intention before communication, 16. of deed after acceptance, 530. of submission to arbitration, 947 note 422. of repudiation of contract, 893. REWARD, offer and acceptance, 41, 76. acceptance, 55 note 51. Imowledge of offer, 43, 80. intention to claim reward, 81. consideration, 634, 638. premium in competition, 372. of oflScer for services, legality, 396. doing duty as consideration, police officers, 664. firemen, 664. RIGHT, TITLE, AND INTEREST (see, also, "Expectant Interests"; "Vested Interests"), mistake as to existence, nature, or extent, 107, 108, 118, 119. of assignor of contract, rights of assignee, 737. negotiable instruments, 743. rights, threat to enforce, duress, 192 note 365. under contract, strangers to contract, 706, 711. See "Parties to Contract." in rem and in personam, 10, 11 note 17, 12, 13, 18, 20, 2i, 27, 576, 710. INDEX. 1199 [befebencbs are to pages.] RIGHT, TITL.E, AND INTEREST— Cont'd, title, bond for, see "Vendor and Purchaser." defects in, duty to disclose, 132, 133. misrepresentation, 156 note 239. estoppel to assert or to deny, 534 note 106, 609 note 397. failure of, as failure of consideration, 698, 702. promise to pay for investigation, statute of frauds, 560. RUNNING WITH LAND (see "CoTenants"). SABBATH (see "Sunday"). SALARY, assignment of, by officer, legality, 402. SALES, at auction, see "Auction." of corporate stock, see "Corporations." judicial, see "Judicial Sales." under power, see "Power." price generally, see "Price." recovering back property, see "Recovery Bai;k.'' warranty, see "Warranty." when contracts, 12-14. executed and executory contracts, 576. express and implied contracts, 26, 56. necessity for delivery of goods, 353. bona fide purchaser from one other than true owner, 182 note 329, 737 note 90. promise to pay price to third person, right to sue, 715 note 24. offer and acceptance, 37, 40, 54, 683. advertisement of theater tickets as offer, 85 note 174. necessity for communicating acceptance, 48. order for goods, as acceptance, 85. oflScious acceptance, 102. quantum valebant, 103 note 28. conditional acceptance, 77. uncertainty as to price, 88. parol evidence to identify property, 787. mistake, as to identity of seller, 59, 102. 1200 INDEX. [KEFEEENCES ABE TO PAGES.] SALES — Cont'd. as to identity of buyer, 32, 104 note 31. as to subject-matter, extent, 107. existence, 108. identity, 109. nature. 111. quality, 112. samples, 114 note 69. warranty, 113. price, 116. recovery on implied contract on rescission, 121. rights of bona fide buyer, 32. fraud, generally, 32, 114, 115, 145, 185, 186. concealment, 145. nondisclosure, 113, 133, 145 note 195. agency, ratification, 171 note 292. intention not to pay for goods, 134, 142. statement as to price, as misrepresentation, 148 note 206, 149 note 211. statement as to cost, as misrepresentation, 148. statement as to value, as misrepresentation, 147, 149 note 211. prediction of profits as misrepresentation, 148. who may sue for damages, 164. affirmance of contract, 175. bona fide purchasers, 32, 182. right to rescind as against, 181. rescission, 153 note 228, 174 note 297, 181. recovery on implied contract, 185. replevin, 186. undue influence, inadequacy of consideration as evidence, 200. by and to infants, voidability, 231 note 42. effect of disaffirmance, 280. tort arising from, 249. necessity for disaffirmance, 256. what constitutes disaffirmance, 267 note 173. reconveyance, 266. ratification or disaffirmance in part, 274. recovery of money or property on rescission for infancy, 272. rights of purchaser from vendee, 282. by insane persons, rights of purchaser from vendee, 307. legality, sales for unlawful purpose, knowledge of seller, 460. INDEX. 1301 [kefbeences abb to pages.] SALES—Cpat'd. promise by seller in restraint of trade, 455. stifling competition, 392 note 194. sales of office, 399. sales as cover for usury, 376 note 131. Sunday contracts, 351 note 48, 352 note 51, 353. ratification, 359. wagering contracts, 363 and note 94, 376. See "Wagers." of lottery tickets, 375. time for rescission, 489 note 515. conflict of laws, 498 note 542. duty of agent of seller to account, 479. of enrolled vessel, necessity for writing, 538. statute of frauds, requirements, 574. See "Statute of Frauds." promise to discharge seller's debt as price, 549. disclosing seller by parol, 592. right of buyer to sue carrier for loss, 608. oral provision for rescission, 578. memorandum, expression of consideration, 593. expression of terms, 597, 598. signature by agent or broker, 602. consideration, promise to supply goods when ordered, mutuality, 683. executed consideration, 634. illegal sales as past consideration, 653. certainty, 642 note 48. impossibility of performance, 642. failure of consideration, 697, 917. failure of title, 698, 699. option in buyer to return goods, 850. conditions, implied condition as to description, marketability, and fitness of goods, 113, 917. contract "on sale and return," condition subsequent, 850. concurrent conditions, payment of price and delivery of prop- erty, 912. effect of payment of earnest, 913 note 319. divisibility of contract, 907 note 306, 908. repudiation of contract as breach, 894, 909 note 308. performance, sufficiency, 782. satisfactory, 879. tender, effect, 873. CJontracts — 76. 1202 INDEX. [befebekces are to pages.] SALES— Cont'd. time of, as essence of contract, 883 note 221. alternative promises, 886. prevention of, as breach, 898. specific performance, adequacy of remedy at law, 936. by third person, obligation of buyer to accept, 724. SAMPLE, sale by, 114 note 69. acceptance by buyer, statute of frauds, 584. SANITY (see "Insanity"). SATISFACTION (see "Accord and Satisfaction"; "Compromise and Settlement"; "Discharge"; "Release"), of judgment, see "Judgments." for private injury resulting from crime, legality, 415. SATISFACTORY PERFORMANCE, 879. SCALES, statutory regulation, 349. SCANDAL, agreement to suppress, legality, 390. SCHOOLS (see "Education"; "Teachers"). SCIENTER (see "Knowledge"). SCRIVENER, errors of, construction of contract, 800. SCROLL, as seal, 520. SEAL, of corporation, see "Corporations." offer under seal, see "Sealed Offer." sealed contracts in general, see "Specially SEALED OFFER, necessity for acceptance, 39. simple assent as acceptance, 41. necessity for communication, 46. time for acceptance, 49 note 31, 71. revocation, 67. INDEX. 1203 [references are to pages. I SEAWORTHINESS, parol evidence to explain term, 788. SECRET ACCEPTANCE, . of offer, 16, 46, 57. SECRET INTENTION, materiality in contract, 8, 16, 58. SECRETS, of trade, promise not to reveal, legality, 457. monopoly with regard to, legality, 45'/. SECULAR WORK (see "Sunday"). SECURITY (see "Mortgages"; "Pledge"), assignment by way of, 729. pre-existing debt as consideration, 651. additional, consideration, 676. collateral, merger, 536. covering separate debts, right to enforce, 768 note 179. presumption of payment of debt by subsequent negotiable instru- ment, 866 note 158. application of payments to unsecured debt, 871. SEDITION (see "Rebels"). SEDUCTION, promise of marriage after, 390 note 186. as consideration of promise to pay money, 483, 648 note 61. SEISIN, power to receive, infancy, 231 note 44. SELF, contract with, 7 note 2, 14, 19. SELF-INFLICTED DISABILITY (see "Prevention"). SELF-INFLICTED LOSSES, as damages, 895, 930 note 371. SENILITY, taking advantage of, undue influence, 201, 204, 208, 287. as affecting contractual capacity, 286. SENTENCE, ^ contract to procure clemency, legality, 407 note 251. 1204 INDEX. [KEFEEENCES ABE TO PAGES.] SEPARABLE CONTRACTS (see "Divisible Contracts"). SEPARATE ESTATE (see "Married "Women"). SEPARATE WRITINGS (see "Correlative Documents"). SEPARATION (see, also, "Abandonment"; "Desertion"; "Divorce"), of husband and wife, effect on wife's capacity, 314 note 326, 316. presumption of liability arising from, 316. legality of agreement for, 432. SERVICE (see "Master and Servant"). SET-OFF (see "Counterclaim"). SETTING ASIDE CONTRACT (see "Cancellation"). SETTLEMENT, of disputed claims, see "Compromise and Settlement." in view of marriage, see "Antenuptial Contracts." SEVERAL CONTRACTS (see "Joint and Several Contracts'). SEX, as affecting subject of duress, 194 note 373. SEXUAL IMMORALITY, agreements promotive of, legality, 389, 462, 648 note 61. past cohabitation as consideration, 482, 647 note 61. promise not to commit, as consideration, 643. SHARES (see "Corporations"). SHERIFFS (see, also, "Police Officers"), protecting property by extra deputies as consideration, 664 note 119. SHIPPING, carriage by rail, see "Carriers." pilots, see "Pilots." registry laws, agreements in violation of, 341 note 19. evasion of, conflict of laws, 502 note 551. sale of vessel, necessity for writing, 538. charter party, right of shipper to urge infancy of charterer, 253 note 129. exceptions as conditions subsequent, 848. warranties and conditions precedent, 920. waiver of conditions, 923. discharge by impossibility of performance, 827. INDEX. 1205 [EEFEEBNCBS ABE TO PAGES.] SHORT TIME, agreement to forbear for, certainty, 679 note 187. paper, usury, 381. SICKNESS, taking advantage of, undue influence, 201, 204, 208. as affecting contractual capacity of aged person, 286 note 228. as rendering performance of contract impossible, 832, 835. SIGNATURE, duty to read contract before, 100. of recognizance, 512. of specialty, see "Specialty." of memorandum, statute of frauds, 599. SILENCE (see, also, "Acquiescence"), as acceptance, 57. as creating estoppel, 130. as to crime, agreement for, legality, 417 note 292. SIMPLE CONTRACTS (see "Parol Contracts"). SIMULATION (see "Fraud"). SIMULTANEOUSNESS, of offer and acceptance, 69. mutual promises, 681. SISTER (see "Brother and Sister"). SISTER STATE, law of, as foreign law, 117 note 80. as matter of fact, 463 note 440. suit in courts of, 220 note 12. contracts with, 217 note 1, 220 note 14. dealings in violation of law of, legality, 410. dealings promotive of hostile action against, legality, 409. SKILL, in doing service undertaken gratuitously, 629. SLAVES, contractual capacity, 327. suits by and against, 328. regulation of sale of, 349 note 43. note for price of, failure of consideration, 699. 1206 INDEX. [KEFEBENCES ABE TO PAGE^.J SLIP CONTRACTS, as memorandum, statute of frauds, 603 note 378. SMUGGLING (see "Revenue Laws"). SNAP ACCEPTANCE, of offer made through mistake, 107. SOBER INTERVAL (see "Lucid Interval"). SOCIAL DUTY, funeral expenses of husband of infant as necessary, 240. SOCIAL ENGAGEMENTS, enforceability, 9, 84. SOLICITOR (see "Attorneys at Law"). SOLVENCY (see "Insolvency"). SON-IN-LAW, duty to disclose, 131 note 136. SOVEREIGN (see "States"). SPECIAL AGENT (see, also, "Agency"), definition, 64. SPECIALTY (see, also, "Sealed Offer"), in general, 509, 513. illustrations, 509 note 8. deed poll, 514. indenture, 514. necessity for deed, 514, 517, 733 note 78, 734, 759, 854, 857, 943. execution of deed, 515. power to execute, 63, 517. substance of instrument, 516. date, 516. unfilled blanks, 516. signing and sealing, 518. necessity for signature, 518, 585 note 215. signature by proxy, 518. seal as requisite of specialty, 519. omission by mistake, 519. intent to attach seal, 519. what constitutes seal, 519. single seal of several signers, 521. corporate seal, 521. delivery, necessity for, 354 note 61, 522. INDEX. 1207 [keferbncbs are to pages.] SPECIALTY— Cont'd. sufficiency, 522. presumptions, 523. intent as a requisite, 523, 525 note 76. retention of instrument by maker, 523. delivery to third person, 524, 527 note 79. recordation as delivery, 524. escrow, 525. acceptance, necessity for, 527. sufficiency of, 528. presumptions, 39 note 5, 42 note 11, 524, 525, 52^. effect, 530. effect of seal, as to necessity for consideration, at law, 513, 515, 530. postponement of performance, 857. contracts in restraint of trade, 456, 532. release, 672, 760 note 150, 854. conveyances of real estate, 532. statute of frauds, sufficiency of memorandum, 595. in equity, specific performance, 533, 937. reformation of instruments, 533. cancellation of instruments, 533. fraud and undue influence, 533. by statute, 533. as to legality of consideration, 482, 531 note 94. as precluding defenses of mistake, fraud, duress, undue in- fluence, and illegality, 531 note 94. as to estoppel, 534. recitals as to consideration, 535. parol evidence, 783 note 22. as to merger, 535, 837. as to time for enforcement, 536, 948. discharge of, by parol, 860. by alteration as to seal, 844. of infant, parol affirmance, 261. legality of object, 335, 390, 450. See "Legality of Object." construction of, 777. See "Construction of Contract." actions on, debt and assumpsit, 29. right of stranger to sue on covenant for his benefit, 718. application of payments to simple and specialty debts, 871. 1208 INDEX. [bbfeeencbs aee to pages.] SPECIFIC ARTICLES, payment in, 865, 887, 889. SPECIFIC ENUMERATION, as limiting sweeping clause, 808. SPECIFIC EXPRESSIONS, as restricting general words, 807. SPECIFIC PERFORMANCE, as equitable remedy on contract, 936. by way of injunction against breach, 939. adequacy of remedy at law, 936. discretion of court, 935. fairness of contract, 937. mutuality, 937. validity of mutual promises, 253 note 128, 937. filing bill as supplying mutuality, 682 note 197, 938. inadequacy or want of consideration, 533, 694. susceptibility of present performance of decree, 938. breach of contract as a defense, 892. of contract made through mistake, 122. of contract induced by misrepresentation, 128. of contract induced by fraud, 187. of contract with infant, 253 note 128. of agreement for arbitration, 419. of gratuitous sealed promise, 533. of promise to execute contract within statute of frauds, 544. of oral contract not to be performed within a year, 611 note 403. of contract relating to personal property, 611, 936. SPECULATION, in commodities, see "Futures." in litigation, see "Champerty"; "Maintenance." SPENDTHRIFTS, contractual capacity, 308. quasi contractual liability — necessaries, 308. , undue influence, 308. SPIRITUAL ADVISERS, duty to disclose, 131. presumption of undue influence, 206. SPIRITUALIST AND MEDIUM, presumption of undue influence, 206 note 415 INDEX. 1209 [KEFEBKNCES ABE TO PAGES.] STAKEHOLDER, recovering back deposit, 492. withdrawal of authority to pay bet, 493 note 530. injunction against payment of bet, 492 note 529. STALE DEMANDS (see "Laches"). STALLION OWNER, necessity for license, 348 note 40. STAMP, as signature, statute of frauds, 600. STANDING OFFER (see "Option"). STATES (see, also, "Sister State"), contractual capacity, 216. individual states of Union, 217 and note 1. foreign states, 217 note 1. contracts made through agents, 217. apparent authority, notice, estoppel, 217. contracts between state and subject, 512. remedies of subject, 218. remedies of state, 219. agreements influencing location of state institutions, legality, 406 note 248. agreements promotive of injury to, legality, 408. friendly dealings with rebellious subjects, 409. See, also, "Rebels." friendly dealings with hostile state . or its subjects, 409. See, also, "Aliens." dealings promotive of hostile action against friendly state, or violations of its laws, 409, 460. effect on collateral transactions, 477 note 482. partial illegality, 468 note 455. sales of public property, stifling competition, legality, 392 note 194. assignment of contract by or to, 726 note 54. grants, construction against grantee, 819. STATUS QUO, restoration of, as condition of rescission, of contract voidable for fraud, 178. of contract made in infancy, 268, 281. of contract made while insane, 303. of Sunday contract, 359 note 86. inability to restore, as justifying enforcement of contract within statute of frauds, 612. 1310 INDEX. [BEFERENCES AEE 10 PAGES.J STATUTE MERCHANT, definition, 513. as contract of record, 513. as quasi contract, 513. STATUTE OP FRAUDS, in general, 540. original sections, 540. application to quasi contracts, 541. application to executed contracts, 541, 573, 578, 608. contracts executed as modified, 542, 862. application to new or modified agreements, 543, 572, 862. application to promise to sign contract, 544. necessity for consideration in contracts within statute, 544. promise of executor or administrator, 546. See, also, "Executors and Administrators." promise to answer for another's debt, default, or miscarriages (see, also, "Suretyship and Guaranty"), in general, 548. debt, etc., arising ex contractu and ex delicto, 548. actual and prospective debt, etc., 548. debt, etc., must be third person's, neither promisor's nor prom- isee's, 587 note 116, 549. promise must be a collateral, not an original, undertaking, 550. promise must contemplate a benefit to the principal debtor, 552. third person's liability must continue after promise is given, 554. contracts of indemnity, 556. agreement in consideration of marriage, 557. See, also, "Antenup- tial Contracts." contract or sale of real estate (see, also, "Conveyances"; "Mort- gages"; "Vendor and Purchaser"), , in general, 558. nature of interest meant by statute, 560. products of the soil, 562. easements and licenses, 560, 561, 563 note 205, 564. nature of conveyance meant by statute, 518, 565. partial invalidity, 567. agreement not to be performed within a year (see, also, "Year"), in general, 567. exceptions, 568. \ possibility of performance, 569. modification of contract, 572. intention, 572. performance by one party, 573. INDEX. 1211 [BEFBKENCES ABE TO PAGES.] STATUTE OP FRAUDS— Cont'd. contract for sale of goods, wares, and merchandise (see, also, "Sales"), in general, 574. executed and executory contracts, 576. auctions, 578. price or value, 578. nature of property meant by statute, contract of sale or contract for services, bid. choses in action, 581. realty or personalty, 562, 582. acceptance and receipt of part of goods, 58i!. necessity for acceptance, 582. suflSciency of acceptance, 582. acceptance by agent, 583. time of acceptance, 583. conditional acceptance, 584. necessity for receipt, 585. suflciency of receipt, 585. earnest or part payment, 585. earnest defined, 585. time for paying earnest, 587. sufficiency of part payment, 586. time for part payment, 587. requisites and sufficiency of writing, in general, 587. nature and form of memorandum, 588. time for making memorandum, 558, 590. contents of memorandum, 590. as stowing concluded contract, 590, 604. certainty, 590. designation of parties, 591. statement of consideration, 592. antenuptial agreement, 593. sale of land, b93. sale of goods, 593. suretyship and guaranty, 594. specialty, 595. statutory obligation, 595. description of subject-matter, 595. statement of terms, 597. signature of memorandum, necessity for, 599. seal, 518. ' auction, 602 note 372. 1212 INDEX. [BEFEBENCES ASE to PA.6BB.] STATUTE OF FRAUDS-^Cont'd. time for, 558, 600. sufficiency of, 600. seal, 515 note 31. print, stamp, mark, or initials, 600. letter or telegram, 600. place of signature, 601. by agent, 601. double agency, 602. auctioneers and brokers, 602. power of attorney, 602. delivery of memorandum, 603. necessity for, 603. escrow, 603 note 377. separate writings, 603. slip contracts, 603 note 378. correspondence, 603. effect of noncompliance with statute, 604. unenforceable contracts, 33, 588, 606. indirect enforcement of contract, 607, 615. rights of third persons, 608. recovery of consideration by promisor, 608. complaint, necessity of allegation of writing, 609. effect of part performance, estoppel, 609. at law, 542, 573, 608, 609. In equity, 610. sufficiency of, 612. contract relating to land, 613. antenuptial contract, 614. pleading and proof, 615. contract as a defense, 615. right to urge statute, 608, 616. waiver of statute, 616. pleading defense, 617. demurrer, 617 note 432. , conflict of laws, 617. See, also, "Conflict of Laws." recovery quasi ex contractu after part performance, 618. measure of recovery, 619. defendant in default — recovery for benefits allowed, 619. land contracts, 619 note 440, 620. agreements not to be performed within year, 621. defendant not in default — recovery for benefits not allows^, ^ 621. land contracts, 62. agreements not to be performed within year, 622. INDEX. 1213 [KKli'EKENCES AKE TO PAGES.] STATUTE OF LIMITATIONS (see "Limitation of Actions"). STATUTE OF USES (see "Conveyances"). STATUTE STAPLE, definition, 513. as contract of record, 513. as quasi contract, 513. STATUTES, agreements in violation of, see "Statutory Illegality." construction of, as to illegality, 338. as to infancy, 234 note 57. presumption as to statutory law of sister state, 497. repeal of law rendering agreement unenforceable, effect, past con- sideration, 651, 658. agreements tending to influence legislation, legality, 404. STATUTORY BOND (see "Bonds"). STATUTORY DUTY (see "Statutory Obligations"). STATUTORY ILLEGALITY (see, also, "Legality of Object"), in general, 335. construction of statute, 338. directory and prohibitory provisions, 339. penalty as prohibition, 339 note 14, 340. object of statute, 339, 341. private acts, 343. objects mala per se and mala prohibita, 343. operation of statute, 343. evasion of statute, 341 note 19, 344, 376. retrospective operation, 844. as discharging contract, 346. See, also, "Impossibility of Per- formance." repeal of statute, effect, 651, 658. professional and commercial regulations, 346. lawyers, 347 note 39. physicians, 347 note 39. brokers, 347 note 39. teachers, 347 note 39. peddlers, 348 note 40. stud owners, 348 note 40. innholders, 348 note 40. merchants, 348 note 40. foreign corporations, 348. 1214 INDEX. [RBPEREXCES ABE TO PAGES.] STATUTORY ILLEGALITY— Cont'd. intoxicants, 349 note 43. fertilizers, 349 note 43. slaves, 349 note 43. weights, measures, and scales, 349. building regulations, 350 note 45. sales of hoops, 350 note 45. sales of grain, 350 note 45. threshing of grain, 350 note 45. employment of minors, 350 note 45. Sunday laws, 350. See, also," "Sunday." wagers, 360. See, also, "Wagers." lotteries, 373. See, also, "Lotteries." usury, 375. See, also, "Usury." ultra vires agreements, 385. See, also, "Corporations." partial illegality, 469 note 457. par delictum, 495. conflict of laws, 501. STATUTORY OBLIGATIONS, as quasi contract, 24. statute of frauds, expression of consideration in memorandum, 595. necessity for consideration, 632. STATUTORY REGULATIONS (see "Statutory Illegality"). STEPFATHER AND STEPCHILD, undue influence, presumption of, 204 note 401. STIFLING COMPETITION, legality, in auction sales, 391. in private sales, 392 note 194. in sales by state, 392 note 194. in judicial sales, 392 note 194, 403 note 236. in sales under power, 392 note 194. in sales of public land, 392 note 194. in bids for public contracts, 403. in sale of commodities, see "Monopolies and Combinations"; "Restraint." STIFLING PROSECUTION (see "Compounding Crime"). STIPULATED DAMAGES (see "Damages"). STOCK (see "Corporations"; "Futures"), INDEX. 1215 [KBPEEENCES AEE TO PAGES. 1 STORM, as rendering performance impossible, 827. STRANGERS TO CONTRACT, bona fide purchasers, see "Gift"; "Sales"; "Vendor and Purchaser." rights of, void agreements, 32, 121. voidable contracts, 32, 121. relation back of acceptance of offer, as against, 79. as to reality of consent, misrepresentation by, 169. acquisition of rights by, effect on right to rescind for fraud, 181. duress by, 188. duress against, 189. undue influence by, 199. as to capacity of parties, right to urge infancy of party, 252. rights on rescission for infancy, 282. right to urge insanity of party, 302. rights on rescission for incompetency, 289 note 240, 307. agreement promotive of fraud on, legality, 390. as to deeds, delivery of deed to, 524. acceptance of deed as against, 527, 529. estoppel by deed as against, 535. right to urge noncompliance with statute of frauds, 608, 616. benefit to, as consideration, 639. imposing liabilities or conferring rights on, 706. See "Parties to Contract." alteration of contract by, effect, 840. STREET RAILROADS, purchase of consent to establishment, legality, 411. STREETS, agreement not to oppose establishment, legality, 411. ' STRICT CONSTRUCTION (see, also, "Construction of Contract"), of contract in derogation of law, 791. limitation of carrier's common-law liability, 791, 816. forfeitures, 791, 816 note 133. guaranties and letters of credit, 807, 817. insurance policies, 816. conditions, exceptions, reservations, and provisos, 811. deeds of conveyance, 817, 819. 1216 INDEX. [refbkences aee to PAGES.J STRIKE, legality, 448. as rendering performance of contract impossible, 827. as excusing delay in performance, 828. STUD OWNER, necessity for license, 348 note 40. STUPIDITY (see "Mental Weakness"). SUBAGENTS, liability of principal to, and vice versa, 709. SUBJECT-MATTER, destruction of, see "Destruction." mistake as to, snap acceptance, 107. distinguished from failure of consideration, 105, 112. existence, 108, 825. mutuality, 109. identity, 109. nature, 110. mutuality, 112. quality, 112. quantity, 115. price, 116. misrepresentation as to, 132-140. description of, statute of frauds, memorandum, 595. construction of contract, 803, 807, 808, 811. parol evidence to identify, 787. to be considered in construing contract, 796. SUBSCRIPTIONS, to corporate stock, see "Corporations." offer and acceptance, 690. for religious purposes as work of charity, Sunday laws, 356. in aid of railroad, legality, 398. consideration for, 689. SUBSIDIARY PROMISES, distinguished from conditions, 910. SUBSTANTIAL PERFORMANCE, 878. INDEX. 1217 [befeeences ake to pages.] SUBSTITUTION, of parties to contract, see "New Contract." of debtors, see Novation." of creditors, see "Assignment of Contract." of new terms in contract, see "New Contract." of entirely new contract for old, see "New Contract." SUCCESSOR, in business, right to fill orders given predecessor, 103 note 28. SUGGESTIO FALSI (see "Fraud"). SUICIDE, threat of, as duress, 192 note 365. contract promotive of, legality, 389. as preventing performance, failure of consideration, 700. SUIT (see "Actions"). SUNDAY, prohibition of business on, in general, 350. at common law, 350. police power, constitutionality, 337. materiality of time of commencement and completion of per- formance of contract, 352 note 54. evasion of statute, 344. knowledge of promisee, 354 note 61. rescission of contract, 352 note 53. judicial notice of day, 352. effect of misdating contract, 344, 353. execution of writing, 353. delivery of writing, 354. works of charity and necessity, 355. ratification, 357. new agreement, 358. partial illegality, 468 note 455, 472 note 466. effect of illegality on collateral transactions, 478. negotiable instruments, 481 note 493. recovery of money paid or property delivered under Sunday contract, 490. legality of contract, conflict of laws, 498 note 542. SUPPORT, of infant, see "Infants." of wife, see "Husband and Wife." of child, see "Parent and Child." of near relation, implied contract, see "Implied Contracts." of prisoner of war, contract for, validity, 321 note 352. Contracts — 77. 1218 INDEX. [BIIB^BENCES ABE TO PAGES.] SUPPRESSIO VERI (see "Concealment"). SUPPRESSION, of truth, see "Concealment." of scandal, legality, 390, 417 note 292. of criminal prosecution, legality, 417. of state's evidence, legality, 418 note 294. SURETYSHIP AND GUAHANTY, necessity for acceptance of offer of guaranty, 38 note 4. communication of acceptance, 47 note 22. right of guarantor to produce undisclosed principal, 105 note 31. mistake as to terms of contract, 100 note 20. nondisclosure as affecting contract, 135. as to capacity of parties, contract by infant, voidability, 230 note 42. right of surety to urge infancy of debtor or of cosurety, 25S note 129. liability of infant principal to surety, 235. right of surety to urge insanity of debtor, 302. as to legality, wagering contracts, 363. Sunday contracts, 354 note 61. effect of illegality of principal transaction, 475 note 471. statute of frauds, 548. See, also, "Statute of Frauds." as to payment of price of goods sold, 551. as to payment for services, 551. as to del credere agent, 553. as to indemnity, 556. as to note, 553. suflSciency of memorandum, 589. expression of consideration, 594. promise to execute contract of guaranty, 544. power to bind as surety, necessity for writing, 538. as to consideration, necessity, 544. sufficiency, 545, 639 note 36. adequacy, 692. indemnity, consideration, 638 note 31, 651. guaranty of part of debt, as consideration for discharge, 669. as consideration for extension of time, 671. construction of contract, 807, 817. contribution, 772. judgment against one guarantor as discharging the other, 759 note 145. INDEX. 12X^ [KEFBKENCES ABE TO PAGES.] SURGEONS (see "Physicians"). SURPLUSAGE, in contract, construction, 803. SURRENDER (see "Release"). SURROUNDINGS, parol evidence of, 793, 797. SURVIVORSHIP, as to joint, several, or joint and several contracts, see "Joint and Several Contracts." as to contracts in general, see "Executors and Administrators." SUSPENSORY CONDITIONS, as conditions precedent, 913. > SWEEPING CLAUSE, as limited by enumeration, 808. T. TARIFF (see "Revenue Laws"). TAX COLLECTOR, sale of office. 400 note 222. TEACHERS, license to> practice, 347 note 39. TECHNICAL WORDS, province of jury, 777. parol evidence, 789. construction, 814. TEETH, dental services as necessary, infancy, 239 note 71. TELEGRAM, offer by, error in transmission, effect, 44. mode of acceptance, 52. mode of revocation of offer, 68. acceptance by, 51 note 38. effect of loss or delay in transmission, 52, 53. as work of necessity, Sunday laws, 357. as memorandum, statute of frauds, signature, 600. 1220 INDEX. [eefesences aek to pages.] TELEOBAPH COMPANIES, limitation of common-law liability, legality, 436. imrepeated messages, 437. exclusive privilege to build line, monopolies, 443 note 370. right of addressee of message to sue on contract between company and sender, 717 note 28. right of addressee of message to sue for negligence in transmission or delivery, 717 note 28. TEMPEST, as discharging contract by rendering performance impossible, 827. TEMPORARY UNSOUNDNESS OF MIND. Tis affecting contractual capacity, 288. TENANCY AT WILL, creation, statute of frauds, 562. • TENDENCY, unlawfulness, 387. See "Legality of Object." TENDER, of performance generally, as discharging promise, 873. of pajment of money, as discharging debt, 873. by whom and to whom, 873. time, place, mode, amount, and means, 874. conditions, 876. keeping good, 876. effect, 873, 877. waiver of objections, 874, 875 and note 196, 876. repudiation of contract as excusing, 894 note 265. TERMINATION, of agency, 65. of contract, see "Discharge of Contract." of relationship, undue influence, 207. TERMS, meaning, 812. See "Construction of Contract." TESTIMONY (see "Evidence"; "Witnesses"). THEATER (see, also, "Actor and Manager"), advertisement of seats as offer, 85 note 174. THIRD PERSONS (see "Bona Fide Purchasers"; "Strangers to Con- tract"). INDEX. 1221 [befbebnces abb to pagbs.] THREATS, as duress, 191. TICKETS, conditions, when part of contract with passenger, 44. TIMBER (see "Products"). TIME (see, also, "Delay"; "Moment"), for payment, see "Maturity." for enforcing rights, 948. at law, see "Limitation of Actions." in equity, see "Laches." computation of, infancy, 228. past consideration, 648. for acceptance of offer, 48. See "Acceptance." mutual promises, 681. for rescission of contract procured by fraud, 176, 178. for rescission of contract procured by undue influence, 212. for aflflrmance of contract made in infancy, 263. for avoidance of contract made in infancy, 275. reasonableness, 277. for affirmance of contract of insane person, 300 note 272. for avoidance of contract of insane person, 301. reasonableness, 301. for rescission for illegality, 486 note 506, 489 note 515, 491, 493. statute of frauds, time of acceptance of goods by buyer, 583. time for part payment of price or payment of earnest, 587. time for making memorandum, 590. time for signing memorandum, 600. of performance, 828, 881. reasonable time, 882. notice to perform, 882. time as essence of contract, 325, 882. at law, 883. waiver, 883. parol evidence, 883 note 221. in equity, 883. intention, 884. waiver, 885. land contracts, 885 note 226, 886. mercantile contracts, 886. by notice, 882 and note 220. 1222 INDEX. [BEFEBENCES ABE TO PAGES.] TIME — Cont'd. postponement of performance, consideration, 856. by specialty, 857. statute of frauds, 543 note 132, 572, 862 note 149. of passing of consideration, 638. of waiving defense of bankruptcy, past consideration, 655. of forbearance of right of action, consideration, 679. of election as to performance of alternative promise, 889. of giving i;iotice of assignment of contract, 735 note 85. of making tender, 874. of making threat, duress, 190 note 358. "TO," meaning, 791. TOBACCO, sales of, as work of necessity, Sunday laws, 357 note 71. abstinence from use of, as consideration, 676. TORT, obligations ex delicto, 21. distinguished from contract and quasi contract, 27. implication of contract from, 60. quasi contract, 60. note of infant tort feasor, validity, 234. arising out of contract, liability of infant, 247. liability of married woman for, 309. agreements promotive of, legality, 390. promise to pay claim arising out of another's tort, statute of frauds 548. TRADE, agreements in restraint of, see "Restraint." secrets of, see "Secrets." regulation of, see "Statutory Illegality." TRADER, feme covert, contractual capacity, 311 note 316. TRADES UNIONS, legality, 446. strike, 448. TRADESMEN (see "Merchant"). INDEX. 1223 [BBFEBENCES ABE TO PAGES.] TRADING-STAMP SCHEME, as lottery, 374 note 122. TREES (see "Products"). TRESPASS, growing out of contract within statute of frauds, 607, 616. TROVER AND CONVERSION (see "Conversion"). TRUSTS, industrial, see "Monopolies and Combinations." distinguished from contracts, 14, 22, 707, 719. declaration of, suflSciency, 719. trustees, duty to disclose, 131. undue influence, 206. conveyance by infant trustee in discharge of trust, validity, 235. right to urge infancy of beneficiary, 253 note 129. sales by, postponement as consideration, 641 note 40. agreements promotive of breach of trust, legality, 396. agreements involving traffic in positions of trust, legality, 401. legality, conflict of laws, 499 note 544. form, statute of frauds, 561 note 194. TUITION, as necessary, infancy, 239. u. UBERRIMAB FIDEI, necessity for, in contract, 126, 131. ULTRA VIRES (see "Corporations"). UNCERTAINTY (see "Certainty"). UNCLE AND AUNT, duress, subject of, 189 note 356. undue influence, presumption, 204 notes 398 and 401, 205 note 404. UNCONDITIONAL CONTRACTS (see "Conditions"; "Independent Promises"). UNCONSCIONABLE CONTRACTS (see "Injunction"; "Insane Per- sons"; "Specific Performance"; "Undue Influence"). UNDERTAKING (see "Bonds"). 1224 INDEX. [BKFBEENCBS AEE TO PAGES.] UNDUE INFLUENCE, in general, 95, 198. by whom exercised, 189 note 356, 193 note 370, 199. presumption, 200. inadequacy of consideration, 200, 208 note 422, 210 and note 425, 694. relationship of parties, 202. family relation, 203. confidential relation, 205. termination of, 207. mental weakness, 201, 208, 292, 293. drunkenness, 289, 292, 293. senility, 201, 204, 208, 287. necessities, distress, ignorance, improvidence, moral weakness, 209. efEect, 211. rescission, 211. agreements promotive of, legality, 391 note 190. Inducing illegal agreement, par delictum, 494. absence of consideration for specialty, evidence, 533. seal as precluding defense of undue influence, 531 note 94. UNENFORCEABLE CONTRACTS, definition, 30. distinguished from void and voidable agreements, 33, 345 note 33, 606, 950. illustrations, 342, 588. application of payment to, 871 note 180. UNEQUAL CONTRACTS (see "Injunction"; "Insane Persons"; "Spe- cific Performance"; "Undue Infiuence"). UNILATERAL CONTRACTS, distinguished from bilateral, 41, 42, 634 note 20. UNITED STATES (see "Constitutional Law"; "States"). UNIVERSAL AGENT (see, also, "Agency"), definition, 64. UNJUST CONTRACTS (see "Injunction"; "Insane Persons"; "Spe- cific Performance"; "Undue Influence"). UNJUST ENRICHMENT, as founding obligation quasi ex contractu, see "Quasi Contract." UNLAWFUL AGREEMENTS (see "Illegal Agreements"^ "Legality of Object"). INDEX. 1225" [BEFEKENCES AKK TO PAGES.] UNLICENSED BUSINESS (see "Statutory Illegality"). UNREASONABLENESS (see "Reasonableness"). UNSOUNDNESS OF MIND (see "Mental Unsoundness"). "UNTIL," meaning, 791. USAGE (see "Custom and Usage"). USE, of personal property, compensation for, on rescission for infancy, 273 note 180. USE AND OCCUPATION, as between vendor and purchaser, statute of frauds, 620 note 446, 621, 622. liability of lessee after assignment of term, 746 note 108. USURY, definition, 375. elements, 376. loan, 376. illegal interest, 378. definition, 379. compound interest, 380. advance payments, 381. bonuses and commissions, 382. expenses and attorney's fees, 383. unlawful intent, 383. recovery back of illegal interest, 491. penalties, 491. evasion of statute, 376. conflict of laws, 499 note 544, 500 notes 546 and 547, 50J. note 548. loan to pay usurious debt, knowledge of lender, legality, 460 note 427. promise to pay usurious debt, legality, 475. past consideration, 658. negotiable instruments, 481 and note 493. V. VAGUENESS (see "Certainty"). VALUABLE CONSIDERATION, distinguished from good consideration, 659. 1226 INDEX. [bbfeeences aee to PAGBS.J VALUE, of subject-matter, as element of obligation, 21. mistake as to, 112. facts affecting, duty to disclose, 132-134. statement of, as misrepresentation, 147, 149 note 211. right to rely on, fraud, 155 note 237. how determined, statute of frauds, 578. of consideration, see "Consideration." want of value of, as dispensing with return on rescission, 180, 269 note 176, 306. depreciation in value of, effect on right to rescind, 180, 270 note 177. as failure of consideration, 699. VARIANCE, between offer and acceptance, 77. between pleading and proof, statute of frauds, 615. VENDOR AND PURCHASER (see, also, "Conveyancea" ; "Price"; "Rents and Profits"), of personal property, see "Sales." offer and acceptance, variance, 78. mistake as to identity of subject-matter, 109. nondisclosure, 132. misrepresentation as to title, 156 note 239. fraud of agent, ratification, 171 note 292. sales by or to infant, voidability. 231 note 42. restoration of status quo, 270 note 177, 272 note 178. ratification or disaffirmance In part, 274. disaffirmance, rights of subpurchaser, 282. bond for title by infant, voidability, 231 note 42. disaffirmance, 266 note 171. sales by insane person, rights of subpurchaser on disaffirmance, 307. contract of sale, necessity for seal, 515 note 31. necessity for writing, 565 note 215. statute of frauds, joint purchase, 566. performance within year, 569. part performance, 542, 613. memorandum, expression of consideration, 593. INDEX. 1227 [befeeences aee to pages.] YBNDOR AND PURCHASER— Cont'd. description of property, 595, 596. statement of terms, 598. power to execute, 602. delivery, 603. oral contract as consideration for note, 608. recovery for benefits conferred on a defendant in de- fault, 619 note 440, 620. recovery for benefits conferred on a defendant not in default, 622. consideration, promise that land shall sell for certain sum, possibility, 642. failure of, 698, 699. partial failure, 162 note 258, 702. failure of title, 698, 702. destruction of subject-matter as discharging contract, 831. recovering back money paid under contract, 836 note 46. "satisfactory" title, 880. time as essence of contract, 885 note 226, 886. prevention of performance as breach, 898. concurrent conditions, payment of price and delivery of deed, 912. suspensory conditions, approval of title by lawyer, 914 note 321. forfeiture of deposit, penalty and liquidated damages, 930. specific performance, adequacy of remedy at law, 936. recovering back deposit before final agreement, 622 note 453. promise to pay price to third person, right to sue, 715 note 24. invalid conveyance as agreement to convey, 780. voluntary conveyance, rights of subsequent purchasers, 661. VERBA ALIQUID OPERARI DEBENT, ET CUM BFPBCTU SUNT ACCIPIENDA; DEBENT INTELLIGI UT ALIQUID OPBRENTUR, 790 note 39. VERBA FORTIUS ACCIPIUNTUR CONTRA PROFERENTEM, 816 note 132. VERBA GENERALiIA RBSTRINGUNTUR AD HABILITATBM RBI, VEL APTITUDINEM PBRSONAB, 796 note 60. VERBA INTENTIONI, NON B CONTRA, DEBENT INSBRVIRB, 780 note 10. VERBAL CONTRACTS (see "Oral Contracts"). VERDICT, as contract, 10. 1228 INDEX. [references ABE TO PA.GE.S.J VESTED INTERESTS, sale of, undue influence, 211 note 426. VIGILANCE (see "Negligence"). VIOLENCE (see "Duress"). VIS MAJOR (see "Accident"; "Act of God"). VOID AND VOIDABLE AGREEMENTS, definition, 30. distinguished, 31, 12U, 149, 173, 196, 211, 228, 292, 340 note lb. from unenforceable contracts, 33, 345 note 33, 606. from illegal agreements, 334, 468 note 455, 473. rights of third persons, 32, 121. mutuality in voidable contracts, 684. unlawful agreements, see "Illegal Agreements"; "Legality of Ob- ject." VOLUNTARY CONVEYANCES, avoidance for undue influence, 199 note 387. of infant, disaffirmance, 279, 280. good consideration, 661. VOLUNTEERS, forcing benefits generally, see "Benefits"; "Officious Acceptance." payment by volimteer, implied promise to reimburse, 869. tender by, validity, 874. VOTERS (see "Elections"). W. WAGERS. nature, 361. legality, 364. voidability and illegality distinguished, 474 note 469. insurance, 366. See, also, "Insurance." futures, 367. See, also, "Futures." premiums, 372. See, also, "Premiums." lotteries, 373. See, also, "Lotteries." partial illegality, divisibility, 468 note 456. effect of illegality on collateral transaction, 476, 478. negotiable instruments, 480 note 493, 481. loan to make or to pay bets, knowledge of lender, 459. recovery back, 490. INDEX. 1229 [UEFEBBNOES ABE TO PAGES.] WAGERS— Cont'd. recovery back of money placed with agent to make bet, 492 note 528. See, also, "Futures." recovery back of deposit with stakeholder, 492. recovery back of money from winner, 492. withdrawal of stakeholder's authority to pay bet, 493 note 530. injunction against payment of bet, 492 note 529. conflict of laws, 499 note 544, 502. WAGES (see "Master and Servant"; "Salary"). WAIVER, of communication of acceptance of offer, 46. of provisions of private statute, 342. of right of redemption, undue influence, 210. of right to have interest converted into capital, 380 note 146. by parent, of right to name child, as consideration, 675 note 171. of lights as to custody, maintenance, control, or education of child, legality, 434. of protection of rules of law, legality of, 414, 435. necessity for writing, 653. past consideration, waiver of defenses, 651. illegality, 653. infancy, 653. coverture, 654. discharge in bankruptcy, 655. limitations, 657. merger or estoppel by judgment, 658. usury, 658. discharge of drawer or indorser by failure to give notice of dishonor, 658. noncompliance with mechanic's lien law, 659. of defense of alien enemy, 324 note 362. of defense of infancy, 261. See, also, "Affirmance." of defense of illegality, 487, 653. of defense of fraud, 174 note 295, 184 note 338. of defense of alteration of instrument, 839. of defense of statute of frauds, 616. of defense of statute of limitations, present or future, consid- eration for, 676, 677 note 176. by state, of exemption from suit, 219. of performance, 852. by promisee in promise for benefit of third person, 716 note 24. 1230 INDEX. [bbfbrekces abb to pages.] WAIVER— Cont'd. requisites, 852. consideration, 669 note 145, 672, 853. contracts executory and executed, 669 note 145, 85S. specialties, 854. release, 854. negotiable Instruments, 854. implied waiver, 855. contracts fully performed, 855. of conditions precedent, 897, 898 note 281, 921. as consideration, 674. of strict performance, statute of frauds, 543 note 132. by prevention of performance, see "Prevention." of time as essence of contract, 883, 885. of objections to tender, 874, 875 and note 196, 876. of right to rescind contract, as consideration, 667. of right to make new contract for discharge of old, as considera- tion, 674. of breach of contract, 891, 896. as consideration, 667. WANT, of consideration, 695. See, also, "Consideration." WAR (see, also, "International Law"), draft, see "Army and Navy." dealings with rebels, see "Rebels." dealings with alien enemies, see "Aliens." efEect on contractual capacity of foreign state, 217 note 1. effect on contractual capacity of alien, 320. prisoner of war, 321 note 352. ransom bond, 321 note 352. effect on existing contract with alien, 323. effect on suits by and against aliens, 323. WARES (see "Personal Property"). WARRANT OF ATTORNEY, definition, 512. WARRANTY, as to real estate, see "Conveyances." various meanings of term, 919. distinguished from representation, 127. distinguished from condition precedent, DIO construction of contract as to, 921. INDEX. 1231 [BEFEBENCES ABE TO FAQES.] WARRANTY— Cont'd. by infant seller, liability for falsity, 250. ratification or disaffirmance of sale in part, 275. Sunday contracts, 352 note 53. past consideration, 647 note 61. implied, as to kind and quality of goods, 113, 917. WASTE, of consideration, by infant, restoration of status quo, 270. by insane person, restoration of status quo, 307. by tenant, 827. WATER COMPANIES, contract with municipality, right of citizen to sue on, 717. WATER RIGHTS, transfer, statute of frauds, 564. covenants as to, as running with land, 749 note 117. contract for supply of water, discharge by death of customer, 834. WEAKNESS OP MIND (see "Mental Weakness"; "Moral Weakness"). WEIGHTS AND MEASURES, statutory regulation, 349. WIDER EXPRESSIONS, as controlled by narrower, 807. WIDOW (see, also, "Husband and Wife"; "Married Women"), taking advantage of distress, 210 note 425. liability for funeral expenses, 240. WIFE (see "Husband and Wife"; "Marriage"; "Married Women"). WILL, contract to make, legality, 391 note 190. necessity for writing, 538. statute of frauds, 565. contract not to contest, legality, 413 note 279. 1232 INDEX. [EEFERENCBS ABE TO PAGES.] WITHDRAWAL, (see "Revocation"). WITNESSES, promise of contingent fee, legality, 413. evasion of process, agreement for, legality, 418 note 294. partial illegality, 471 note 463. promise to appear, as consideration, 663. release in open court to qualify, consideration, 672 note 159. WOOD, specialty on, 516 note 34. WORDS, as controlling numerals, 810. meaning of particular terms, 812. WORK AND LABOR (see "Master and Servant"). WORRY (see "Anxiety"). WRATH, statement made in, not a promise, 83 note 168. WRIT OF ERROR, against state, right of subject to, 218 note 7. WRITTEN CONTRACTS, under seal, see "Specialty." necessity for, 508, 510, 733. common-law requirements, negotiable instruments, 537. authority to fill in blank in deed, 517 note 39. statutory requirements, acceptances, 537. policies of insurance, 538. promise to pay debt incurred in infancy, 538. power to bind as surety, 538. promise to pay interest, 375, 538. promise to dispose of property by will, 538. conveyances of real estate, 538. sale of vessel, 538. assignment of copyright, 538. assignment of patent for invention, 538. marriage contract, 538. - acknowledgment of debt barred by limitations, 539. INDEX. 1233 [eeferences are to packs.] WRITTEN CONTRACTS— Cont'd. contracts included in statute of frauds, 539. See, "Statute of Frauds." waiver of teclinical bar, 653. construction of, see "Construction of Contract." intent to execute, as precluding contract before execution, 79, 86, 508. contract partly in writing as oral contract, 510 note 11. escrow, 527 note 79. necessity for consideration, 629. promise for benefit of third person, delivery to him as prerequisite to suit, 716 note 24. assignment by delivery, 733. parol evidence to vary, 783 note 22. See "Parol Evidence." discharge of, by oral agreement, 861. statute of frauds, 861. WRONG, public wrongs, see "Crimes." private wrongs, see "Tort." word, in contract, construction, 800. wrongdoer under illegal contract, see "Legality of Object." Y. YEAR, agreements not to be performed within, statute of frauds, 567. See, also, "Statute of Frauds." specific performance, 611 note 403. part performance, recovery for, 621, 622. time of accrual of cause of action, 623 note 456. Contract — 78. 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