QJnrnpU IGam ^rlynnl Hibtatg 
 

Cornell University 
 Library 
 
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 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018822647 
 
THE 
 
 GENERAL PRINCIPLES 
 
 OF THE 
 
 Law of Contract 
 
 IN 
 
 THE FORM OF RULES 
 
 FOR THE 
 
 USE OF STUDENTS 
 
 BY <j.e^ 
 REUBEN M.^BENJAMIN 
 
 PROFESSOR OF LAW IN THE ILLINOIS WESLEYAN UNIVERSITY 
 
 BLOOMTNGTON ILL. 
 
 Published by R. M. Benjamin 
 
 1889 
 
Copyright, tSSg, 
 By Reuben M. Benjamin 
 
 iSloomington, 311.: 
 Pantageaph Printing and Stationery Co. 
 
 i88q. 
 
PREFACE. 
 
 THIS work is an attempt to state methodically the 
 general principles relating to the Formation, In- 
 terpretation, and Discharge of Contract. The 
 statements are in the form of rules, followed by such 
 comments, reasons, and illustrations as seemed suitable 
 to bring out clearly before the mind of the student the 
 import of each proposition. 
 
 While the work is primarily designed for the use of 
 students, I trust that the practicing lawyer will find it to 
 be a serviceable compilation (in the nature of a Code) 
 of the principal rules of the law of contract. 
 
 In the preparation of these rules I have constantly 
 consulted the proposed New York Civil Code, the Indian 
 Contract Act, and the able treatises of Leake, Pollock, 
 and Anson. My aim has been to embody the funda- 
 mental principles of contract in language, clear, concise, 
 and accurate; and in the endeavor to accomplish this 
 purpose I have freely availed myself of the labors of 
 others. But each proposition is supported by the author- 
 ity of adjudged cases, taken for the most part from the 
 more accessible of the .American Reports, and selected 
 with a view to force of reasoning and pertinency of illus- 
 tration. 
 
 I believe that the principles of contract can, and at 
 some future day will be satisfactorily codified. May I 
 not express the hope that this elementary work will con- 
 tribute in some degree toward hastening that day? 
 Bloomington, III., July, 1889. R- M. B. 
 
TABLE OF CONTENTS. 
 
 INTRODUCTION. 
 
 Law 
 
 Sanctions . 
 Positive law 
 International law . 
 
 Public . 
 
 Private 
 The supreme law of the land 
 Law of a state 
 
 The constitution 
 
 Statutes ... 
 
 The common or customary law 
 Order of subordination .... 
 Mutual contract obligatory upon the parties 
 Law of a state, as to its nature 
 
 Absolute or imperative 
 
 Complementary or regulatory 
 Law of a state, as to its subject-matter 
 
 Political . . . . 
 
 Criminal ... 
 
 Civil 
 
 Right, in its legal acceptation 
 
 Rights, considered with reference to their scope or compass 
 
 Right in rem ..... 
 
 Right in personam .... 
 
 Rights, considered with reference to their origin 
 
 Primary ...... 
 
 Secondary 
 Civil injury ..... 
 
 Place and Importance of the Law of Contract 
 
CONTENTS. 
 I. THE FORMATION OF CONTRACT. 
 
 Agreement defined . . . . ic 
 
 Contiact in the widest sense ..... ic 
 
 Contract in a narrower sense . . . IC 
 
 Elements of contract . . . n 
 
 CHAPTER I. 
 
 OFFER AND ACCEPTANCE. 
 
 Requisite of offer . . .... 12 
 
 Requisite of acceptance . . . . 12 
 
 When offer may be revoked . . . . '4 
 
 How offer may lapse ...... 14 
 
 Communication by mail or telegraph . . . .15 
 
 Certainty of the terms . . . . . 17 
 
 Offer or acceptance by conduct . . . . .18 
 
 Performance of conditions of offer — Acceptance of consideration 18 
 Acceptance of offer by advertisement . . . 19 
 
 CHAPTER II. 
 CONSIDERATION. 
 
 Necessity of consideration for a promise ... 20 
 
 Consideration defined . . . . . .21 
 
 It need not be adequate to the promise ... 23 
 
 Abandonment of a right or forbearance to exercise it — Compro- 
 mise of a disputed claim . . . -23 
 Delivery of property in trust . . . 24 
 Blood or natural affection not sufficient to support a promise — 
 
 Nor mere moral obligation . . . 25 
 
 Nor promise to perform what is impossible ... 25 
 
 Nor promise to do or actually doing what one is already bound 
 
 to do . . . . . . .26 
 
 Nor illegal consideration ..... 27 
 
 Nor past consideration . . . . . .28 
 
 Explanations ...... 29-31 
 
CONTENTS. vii 
 
 CHAPTER III. 
 
 THE STATUTE OF FRAUDS. 
 
 The memorandum required .... 33-38 
 
 Promise by executor or administrator to answer a debt or dam- 
 ages out of his own estate .... 38 
 
 Promise to answer for the debt, default, or miscarriage of another 38 
 Explanations ...... 39-43 
 
 Agreement upon consideration of marriage . . 44 
 
 Agreement not to be performed within one year from the mak- 
 ing thereof . . . . -44 
 
 Explanation ....... 45 
 
 Contract for the sale ol land or an interest therein . . 46 
 
 Explanations ....... 47-49 
 
 CHAPTER IV. 
 
 CAPACITY OF PARTIES. 
 
 MINORS. 
 Who are minors . ..... 51 
 
 Minor cannot delegate authority requiring a power of attorney 51 
 Contract of minor voidable as a general rule . . 52 
 
 Such contract binding on the adult ... 52 
 
 Third person cannot take advantage of the minority . 53 
 
 Who may avoid or confirm the contract of minor in case of his 
 
 death, insanity, or other disability . S3 
 
 At what time such contract may be avoided by the minor 54 
 
 How it may be confirmed by the minor . . -55 
 
 When minor is bound to restore property upon avoidance of 
 
 his contract ...... 57 
 
 What minor may recover upon avoidance of his contract for 
 
 services . . . . • • -57 
 
 Liability of minor for necessaries ... 58 
 
 Explanations ...... 5^-59 
 
 PERSONS OF UNSOUND MIND. 
 Contract of person of unsound mind voidable as a general rule 59 
 Liability of such person for necessaries . . . . .61 
 
 No insane person or idiot capable of contracting marriage 61 
 
 Contract of lunatic in lucid interval . . . .61 
 
viii CONTEJ^TS. 
 
 DRUNKEN PERSONS. 
 Contract of drunken person voidable . . . 6i 
 
 Liability of such person for necessaries . . .62 
 
 PERSONS UNDER CONSERVATORS. 
 
 When conservator may be appointed 62 
 
 Contracts that are void as against such person . . ■ ^i 
 
 Contracts that may be avoided in his favor . . 63 
 
 CORPORATIONS. 
 Capacity of corporation to make contracts . . 64 
 
 When contract of corporation is within scope of its powers 64 
 
 Liability of corporation for benefit actually received under con- 
 tract ultra vires . . . . .64 
 How corporation may contract . . 65 
 
 CHAPTER V. 
 
 REALITY OF CONSENT. 
 Consent must be real . . . . . .66 
 
 Cases in which apparent consent is not real ... 66 
 
 MISTAKE. 
 Mistake, when a ground for avoiding a contract . 671-69 
 
 Mistake as to law ... . 69 
 
 MISREPRESENTATION. 
 Misrepresentation, when a ground for avoiding a contract 70-72 
 
 FRAUD. 
 Fraud, considered as a ground for avoiding a contract . 73-77 
 
 DURESS. 
 Duress, considered as a ground for avoiding a contract 78-81 
 
 UNDUE INFLUENCE. 
 Undue influence, when a ground for avoiding a contract 82-85 
 
 Explanation . . . . 85 
 
 CHAPTER VI. 
 LEGALITY OF OBJECT. 
 
 Agreement whose object is forbidden by law, or opposed to the 
 
 policy of the law, not enforceable . . '87 
 
CONTENTS. ix 
 
 Explanation ....... 88-89 
 
 Leading classes of agreements opposed to the policy of the law. 
 Agreements which tend to injure the public service . 90 
 
 Agreements which tend to obstruct the course of public justice 91 
 Agreements which tend to encourage litigation . . 91 
 
 Agreements which involve sexual immorality . . .92 
 
 Agreements which unduly affect the freedom or security of 
 
 marriage ...... 93 
 
 Agreements in unreasonable restraint of trade . 94 
 
 Agreements to suppress competition at sales by auction . 95 
 
 Where an agreement innocent in itself is designed to further an 
 
 unlawful purpose . . . . .96 
 
 In what cases money paid or property delivered under an unen- 
 forceable agreement may be recovered back . 97-100 
 
 II. THE INTERPRETATION OF CONTRACT. 
 
 CHAPTER VII. 
 
 RULES. 
 
 Where no doubt, no room for construction . . . loi 
 
 Intention of parties, controlling consideration . loi 
 
 Whole of contract to be considered . 102 
 
 In what sense the words are to be understood . 103 
 
 Technical words ...... 104 
 
 Reference to the subject-matter and the circumstances . 104 
 Contract restricted to its evident object . . 105 
 Several instruments relating to the same subject-matter 106 
 Contract, partly written and partly printed . . 107 
 Words inconsistent with the nature of the contract . 107 
 Construction, if possible, in support of the contract . . 108 
 Where the parties, by their acts under the contract, have prac- 
 tically given it a construction .. . . 109 
 
 Where the language of a contract can be attributed to one of 
 
 the parties ..... 109-111 
 
X CONTENTS. 
 
 III. THE DISCHARGE OF CONTRACT. 
 
 Modes in which a contract may be discharged . . ii2 
 
 CHAPTER VIII. 
 
 DISCHARGE OF CONTRACT BY AGREEMENT. 
 
 When contract may be discharged by mere agreement . • i '3 
 
 Change in the terms . . . . . 1 14 
 
 Explanation . . . . . .114 
 
 New and independent contract concerning the same matter 114 
 
 Release . . . . . . . 115 
 
 Change in the parties . . .116 
 
 CHAPTER IX. 
 
 PROVISIONS FOR DISCHARGE. 
 
 Non-fulfilment of a specified term . . . • "7 
 
 Fulfilment of a condition, or occurrence of an ev&nt . 117 
 Option to terminate . . . . .118 
 
 CHAPTER X. 
 
 DISCHARGE OF CONTRACT BY PERFORMANCE. 
 
 Performance in accordance with the terms of the contract . 1 19 
 
 Modification of the performance . . . 119 
 
 Payment ...... 120 
 
 Presumption where a negotiable instrument is taken in lieu of 
 
 payment ...... 120 
 
 Exception ... .121 
 
 Offer of performance not accepted .... 121 
 
 Exception ..... 121 
 
 CHAPTER _XI. 
 
 IMPOSSIBILITY OF PERFORMANCE. 
 
 Where performance depends on existence of a specific thing 124 
 
 Where performance depends on personal capacity of promisor 125 
 
CONTENTS. xi 
 
 Where performance becomes impossible by law . . . 125 
 
 Option to perform in either of two modes, one of which be- 
 comes impossible ... .126 
 
 CHAPTER XII. 
 
 DISCHARGE OF CONTRACT BY OPERATION OF LAW. 
 
 Modes in which it may occm- ..... 127 
 Merger .... 127 
 
 Alteration of a Written Instrutnent. 128-130 
 Bankruptcy . . . 130 
 
 CHAPTER XIII. 
 
 DISCHARGE OF CONTRACT BY BREACH. 
 
 Renunciatiori of contract before performance is due . 131- '33 
 
 Renunciation of contract in the course of performance 134 
 
 Disabling act before performance is due . 134 
 
 Disabling act in the course of performance . 135 
 
 Non-performance of a condition precedent or concurrent . 13G 
 
 Failure of performance in a matter considered essential to 
 
 the continuance of the contract . . 137-141 
 
 CHAPTER XIV. 
 
 DISCHARGE OF RIGHT OF ACTION. 
 
 Modes in which right of action may be discharged . . 142 
 
 Release .... 143 
 
 Accord and Satisfaction . 143-144 
 
 judgment of a Court . 145 
 
 Lapse of Time . . 146-149 
 
 Time prescribed for action on contract not in writing — On 
 
 contract in writing ..... 146 
 
 Set-off or counter claim ... . . 147 
 
 Absence of promisor from the State . . . 147 
 
 Further time for representatives .... 148 
 
 Where promisee is under disability .... 148 
 
 Where cause of action is fraudulently concealed . . 149 
 
INTRODUCTION. 
 
 A law is a governing rule of action. 
 
 In a metaphorical sense the term is used to denote 
 the order or invariable sequence of natural phenom- 
 ena, as the law of gravitation. 
 
 In its proper sense it is a precept for the control 
 of human action, and implies not only the power of 
 volition on the part of the governed, but also a lia- 
 bility to punishment or detriment in the case of diso- 
 bedience. Such punishment or detriment is called the 
 sanction of a law. 
 
 Laws rest for their support upon one or more 
 of three classes of sanctions: 
 
 (i) Sanctions of conscience, i. e., the divine 
 displeasure, or the stings of conscience, 
 
 (2) Sanctions of popular sentiment, i. e., the 
 censure or dislike of the community. 
 
 (3) Sanctions of public authority, i. e., the 
 penalties or inconveniences authorized by the 
 state or nation. 
 
 The greater portion of the laws of morality and 
 jof social demeanor are dependent for their efficiency 
 
2 INTRODUCTION. 
 
 upon the firsjt and second of these classes of sanc- 
 tions. Some laws, such as the law against murder, 
 are sustained by all three of them, while other 
 laws, such as those for the collection of a revenue, 
 may not involve questions of conscience, and often 
 are opposed to the popular sentiment. All laws, 
 whether of divine or of human origin, which are 
 enforceable by public authority, are called positive 
 laws. 
 
 Positive law, in a collective sense, is the to- 
 tality of the rules of action which are enforce- 
 able by public authority. 
 
 Positive law may be (0 international, or (2) 
 national or state. 
 
 The element of compulsion to obedience through 
 the, public force distinguishes the positive law 
 from all others enumerated by^ jurists or moralists. 
 International law, therefore, may be considered as 
 positive law, inasmuch as its ultimate support if 
 an appeal to arms. And although the appeal to 
 arms may not be resorted to in every case, yet the 
 fear of incurring general hostility operates upon 
 nations, keeping them within the rules of national 
 comity. 
 
 International law is either (i) public or (2) 
 private. 
 
 Public international law defines and adjusts 
 the mutual rights and duties of the govern- 
 ments of different nations or states. 
 
LA WS IN GENERAL. 3 
 
 Private international law defines and adjusts 
 the mutual rights and duties of individual citi- 
 zens in different nations or states. 
 
 The people of the United States, in the Con- 
 stitution ordained and established by them, 
 have declared what shall be the supreme law 
 of the Nation, as follows: 
 
 "This Constitution, and the laws of the 
 United States which shall be made in pursu- 
 ance thereof, and all treaties made, or which 
 shall be made, under the authority of the 
 United States, shall be the supreme law of the 
 land; and the judges in every State shall be 
 bound thereby, anything in the constitution or 
 laws of any State to the contrary notwith- 
 standing." Art. 6, § 1 (2). 
 
 Subordinate to this supreme law of the Na- 
 tion, the law of a State in our Union, is the 
 will of the people of the State as to what shall 
 be enforceable by public authority as govern- 
 ing rules of action. 
 
 The will of the people of a State is mani- 
 fested : 
 
 (0 By the constitution, which is the organic 
 act of the people establishing the form and 
 powers of the government. 
 
4 INTRODUCTION. 
 
 (2) By statutes and municipal ordinances, 
 which are the enactments of their legislative 
 bodies declaring what shall be obeyed and 
 applied as governing rules of action. 
 
 (3) By the common or customary law, which 
 is an unwritten law comprising those principles 
 and maxims which, by reason of a common 
 conviction as to the necessity or convenience 
 of their observance, the people have spontan- 
 eously recognized and adopted as governing 
 rules of action, by a constant and uniform 
 application in the relations of life. 
 
 What is frequently called judge-made law, as it 
 displays itself in judicial decisions, is only an evolu- 
 tion of customary law, for the judiciary in making 
 their decisions are guided by those principles and 
 maxims of reason and justice which have been pre- 
 viously established by their customary observance 
 in the infinitely varying circumstances of life. 
 
 The common law is subordinate to the stat- 
 utes, and both are subordinate to the consti- 
 tution. 
 
 Where it is not forbidden by or opposed to 
 the policy of any law of the state or nation; 
 individuals may, by mutual contract, prescribe 
 for themselves a rule of action relative to a 
 certain object, which the public authorities will 
 recognize as obligatory upon the parties. 
 
LA WS IN GENERAL. 5 
 
 In a free country laws may be regarded as con- 
 tracts express or implied. Thus the constitution may 
 be regarded as the express contract of the people, 
 made by them directly; statutes as the express con- 
 tracts of the people made through their representa- 
 tives, the legislature; and the common law as consist- 
 ing of the implied contracts of the people, arising 
 from the customs of the land and from the presump- 
 tion that the people upon entering into the civil com- 
 pact undertake to do what reason and justice dictate. 
 " Implied contracts," says Blackstone, "are such as 
 reason and justice dictate, and which, therefore, 
 the law presumes that every man undertakes to 
 perform." As the laws themselves may be regarded 
 as contracts, so contracts may be regarded as quasi 
 laws binding upon the parties thereto. In other 
 words, a contract is, in a certain sense, the law made 
 by the parties relative to a certain object, and as 
 such enforceable by the public authorities. 
 
 The law of a state, as to its nature, is either 
 (i) absolute or imoerative, or (2) complementary 
 or regulatory. 
 
 By absolute or imperative law are meant the 
 rules, which, founded upon public order, — the 
 pecuniary or administrative interests of the 
 state, — or good morals, — leave no room for the 
 exercise of individual will. They are enforced, 
 whether individuals desire it or not. 
 
 Complementary or regulatory law leaves an 
 ample field for exercise of individual will, and 
 
6 INTRODUCTION. 
 
 operates only when the parties interested have 
 neglected to determine their respective legal 
 rights to their full extent. 
 
 The law of a state, as to its subject matter, 
 may be conveniently divided into (i) political 
 law, (2) criminal law, and (3) civil law. 
 
 Political law relates to the constitution and 
 administration of the state. 
 
 Criminal law relates to offences which are 
 directly prosecuted and punished by the state. 
 
 Civil lav/, as distinguished from political and 
 criminal law, relates to the mutual legal rights 
 and duties of individuals, and to legal rem- 
 edies other than criminal prosecutions for their 
 violation. 
 
 Political law and criminal law are both of a well 
 defined public nature. Although all state laws are 
 public in a general sense, inasmuch as the good of 
 the public is or ought to be their end, yet civil law, 
 in a restricted sense, is of a private nature, because 
 it defines and adjusts the rights and duties of indi- 
 viduals as between themselves. 
 
 A right, in its legal acceptation, is a power, 
 capacity, or liberty given or allowed by the law 
 to a person in relation to some person, thing, 
 act, or forbearance. 
 
RIGHTS. 7 
 
 The object of a right may be a person or a thing. 
 A minor child is the object of the, parent's right to 
 its custody and control. A watch or land is the 
 object of the owner's right to its undisturbed enjoy- 
 ment. 
 
 In many classes of cases there is no object (/. e., 
 person or thing) over which the right can be said to 
 exist. The right may be merely (i) a right to an 
 act, as where one has hired another to do something, 
 or (2) a right to forbearance, as in the case of a 
 patent-right or monopoly. 
 
 Rights considered with reference to their 
 scope or compass are either (0 rights in rem, 
 or (2) rights in personam. 
 
 A right in rem is one which avails against 
 persons generally. 
 
 As the right of the owner over his land; or the 
 right of a man to his good name or reputation. Such 
 a right avails against everybody. 
 
 A right in personam is one which avails 
 against a person or persons certain or deter- 
 minate. 
 
 As the right of the purchaser against the vendor 
 of land where the former has only a contract for its 
 conveyance; or the right of the buyer against the 
 seller of a business where one of the terms of the 
 sale is that the seller shall not compete with the 
 buyer within a reasonable extent of territory. 
 
8 INTRODUCTION. 
 
 Rights considered with reference to their 
 origin are either (0 primary, or (2) secondary. 
 
 Primary rights are those which do not orig- 
 inate in the violation of pre-existing rights. 
 They include (0 all rights that are directly 
 given or allowed by the law, and (2) all rights 
 that arise from contracts. 
 
 The two classes of primary rights may be dis- 
 tinguished as (i) rights ex lege, and (2) rights ex 
 contractu. The right of the parent to tl^e services of 
 his 'minor child is a right ex lege. The right of the 
 employer to the services of his employee is a right 
 ex contractu. 
 
 Secondary rights are remedial or sanction- 
 ing rights. They arise from civil injuries. 
 
 A civil injury is a violation of a pre-existing 
 right for which the law gives a right of private 
 action. 
 
 The term civil injury includes a breach of con- 
 tract as well as a delictum or tort. 
 
 The foregoing statements have been made by way 
 of introduction for the purpose of showing the place 
 and importance of the Law of Contract. Rights 
 arising from contracts stand by the side of rights 
 directly given or allowed by law. The right to the 
 custody and control of a minor may arise from a 
 
RIGHTS. 9 
 
 contract, as in the case of master and apprentice, or 
 it may be directly recognized by the law, as in the 
 case of parent and child. The right of ownership 
 may result from a contract as well as from the direct 
 operation of the Statutes of Descent or of Wills. 
 And the right of one person to an act or forbearance 
 on the part of another is generally derived from their 
 mutual contract — the special law of the parties — 
 although there are some acts and some forbearances 
 commanded by the general law of the land, such as 
 acts and forbearances respectively enforceable by 
 the writs of mandamus and injunction. It would, 
 therefore, seem that a knowledge of the General 
 Principles of the Law of Contract is an essential 
 prerequisite to a proper investigation of the great 
 body of rights pertaining to either persons, things, 
 acts, or forbearances. These general principles will 
 now be considered under the heads of the Formation, 
 the Interpretation, and the Discharge of Contract. 
 
THE FORMATION OF CONTRACT. 
 
 An agreement is the union of two or more 
 persons in a common expression of will as to 
 their legal relations. 
 
 A contract, in the widest sense of the term, 
 is an agreement whereby at least one of the 
 parties acquires a right in relation to some 
 person, thing, act, or forbearance. 
 
 This may be either 
 
 1. A right in rem — against all persons indefinitely 
 — as the proprietary right acquired by a deed of 
 conveyance; or, 
 
 2. A right in personam — against a definite person 
 — as the right acquired by a bond for a conveyance. 
 
 A contract, in a narrower sense, is an agree- 
 ment whereby at least one of the parties ac- 
 quires the right to an act or forbearance on the 
 part of the other. The obligation assumed by 
 the other is called a promise. 
 
 A contract, in this sense, does not include any 
 agreement whose sole purpose is to confer a present 
 
ELEMENTS OF CONTRACT. ii 
 
 right in rem. It always confers some right in personam, 
 and the corresponding duty is an obligation to do or 
 not to do a particular thing. It is always executory 
 in its character, and hence is frequently called an 
 executory contract. 
 
 The elements essential to the validity and 
 enforcement of a contract are: 
 
 I- A communication whereby the parties 
 unite in a common expression of will as to 
 their legal relations; in other words, Offer and 
 Acceptance. 
 
 2. A Consideration. 
 
 3- A Writing, wherever it is required by the 
 Statute of Frauds. 
 
 4- Capacity of the parties to make a contract. 
 
 5- Reality of the consent expressed in offer 
 and acceptance. 
 
 6. Legality of the object of the contract. 
 
CHAPTER I. 
 OFFER AND ACCEPTANCE. 
 
 The following rules govern offer and acceptance 
 considered as elements of a contract: 
 
 The offer must manifest an intention to cre- 
 ate or change legal relations. 
 
 An offer evidently made in jest, though accepted, 
 is not binding, for in such case the parties do not 
 contemplate any legal consequences. 
 
 McClurg V. Terry, 21 N. J. Eq. 225. 
 Keller V. Holderman, 11 Mich. 248. 
 
 An appointment between two friends to take a 
 walk or dine together is not binding, for it is noj; 
 meant to produce any new legal duty or right, or any 
 change in existing ones. 
 
 Acceptance must be absolute, and identical 
 with the terms of the offer. 
 
 To constitute a contract the acceptance of the 
 offer must be unconditional. 
 
 Eggleston v. Wagner, 46 Mich. 610, 620. 
 Hussey v. Horne-Payne, 8 Ch. D. 670. 
 Corcoran V. White, 117 III. 118. 
 
OFFER AND ACCEPTANCE. 13 
 
 Harlow v. Curtis, 121 Mass. 320. 
 Hough V. Brown, 19 N. V. III. 
 
 An acceptance is insufficient where any term of 
 the proposed contract, as, for instance, the time 
 allowed for a deferred payment (a), or for the asser- 
 tion of an option (b), is left for future consideration 
 and adjustment. 
 
 (a) Potts V. Whitehead, 23 N. J. Eq. 512. 
 
 (b) Brown v. R. R. Co., 44 N. Y. 79. 
 
 An acceptance, to be good, must be such as to 
 conclude a contract between the parties; and to do 
 this it must, in every respect, meet and correspond 
 with the offer, neither falling within nor going beyond 
 the terms proposed, but exactly meeting them at all 
 points and closing with them just as they stand. 
 
 Potts V. Whitehead, 23 N. J. Eq. 512. 
 
 An acceptance upon terms varying from those 
 proposed is in effect a counter proposal, and is not 
 binding until it is itself accepted. 
 
 Slaymaker v. Irwin, 4 Whart. 369, 380. 
 Esmay v. Groton, 18 111. 483. 
 Maclay v. Harvey, 90 111. 525. 
 
 Such counter proposal is also a virtual rejection 
 of the original proposal (a), and since a proposal 
 when rejected is at an end, a subsequent acceptance 
 of the original proposal can only operate as a new 
 counter proposal, which the original proposer may 
 either accept or reject (b). 
 
 (a) Nat. Bank v. Hall, loi U. S. 43, 50. 
 Smith V. Wetherell, 4 111. App. 655. 
 
 (b) Fox V. Turner, I 111. App. 153, 159. 
 MinneajMlis &c. Ry. Co. v. Mill Co., 119 U. S. 149. 
 
14 FORMATION OF CONTRACT. 
 
 An offer may be revoked at any time before 
 
 acceptance. 
 
 This may be done even if the offer purports to 
 give a definite time for acceptance. 
 
 Minneapolis, &c. Ry. Co. v. Mill Co., iig U. S. 149, 151. 
 
 Dickinson v. Dodds, 2 Ch. D. 463. 
 
 Boston, &c. R. R. Co. v. Bartlett, 3 Cush. 224. 
 
 Larmon v. Jordan, 56 111. p. 206. 
 
 School Directors v. Trefethren, 10 111. App. 127. 
 
 Schenectady Stove Co. v. Holbrook, loi N. Y. p. 49. 
 
 So long as the offer has been neither accepted nor 
 rejected, the negotiation remains open, and imposes 
 no obligation upon either party. 
 
 An offer may lapse before acceptance: 
 
 (1) By expiration of a prescribed time for 
 acceptance.' 
 
 (2) Where no time is prescribed, by the ex- 
 piration of a reasonable time for acceptance ' 
 
 (3) By failure to comply with a condition in 
 the offer as to the mode of acceptance.' 
 
 (4) By the death'' or insanity^ of either party. 
 
 I. A limitation of time for which an offer is to 
 run is equivalent to the withdrawal of the offer at the 
 end of the time named. 
 
 Longworth v. Mitchell, 26 Ohio St. 334, 342. 
 Potts V. Whitehead, 20 N. J. Eq. 55, 59. 
 
 Where a person makes an offer by mail request- 
 ing, or by the nature of the business having the right 
 to expect an answer by return mail, the offer can 
 
OFFER AND ACCEPTANCE. 15 
 
 only endure for a limited time, and the making of it 
 is accompanied by an implied stipulation that the 
 answer shall be sent by return mail, or at least within 
 twenty-four hours from the time the offer is received. 
 
 Maclay v. Harvey, 90 111. 525, 529. 
 Carr v. Duval, 14 Pet. 82. 
 Palmer v. Ins. Co., 84 N. Y. 63. 
 Ortman v. Weaver, II Fed. Rep. 362. 
 
 2. Loring v. Boston, 7 Met. 409. 
 
 Chicago, &c. R. R. Co. v. Dane, 43 X. Y. 240. 
 
 What is a reasonable time must depend upon the 
 subject matter and circumstances of the negotiation. 
 Larmon v. Jordan, 56 111. 204. 
 Minnesota Oil Co. v. Lead Co., 4 Dillon, 431. 
 
 3. A condition as to the place of acceptance is 
 held to be an essential part of the offer. 
 
 Eliason v. Henshaw, 4 Wheat. 225. 
 
 4. Pratt V. Trustees, 93 111. 475. 
 Helfenstein's Est., 77 Pa. St. 328. 
 Wallace v. Townsend, 43 Ohio St. 537. 
 
 The continuance of an offer is in the nature of its 
 constant repetition, which necessarily requires some 
 one capable of making a repetition. 
 Piatt'v. Trustees, 93 111. 478. 
 
 And since an offer unaccepted can create no rights 
 it can transmit none to the representatives of the 
 person to whom the offer is made. 
 
 Sutherland v. Parkins, 75 III. 338, 341. 
 
 5. Beach v. M. E. Church, 96 111. 177. 
 
 Where the parties communicate by means 
 wholly or partly beyond their control, such as 
 
1 6 FORMATION OF CONTRACT. 
 
 the mail' or telegraph,^ the contract is complete 
 the moment the acceptance is despatched, pro- 
 vided this is done in due time after receipt of 
 the offer and before notice of any withdrawal 
 is received. 
 
 I. Where the negotiation is by letters sent by 
 mail, the party to whom the offer is made has a right 
 to regard it as a continuing offer until it has reached 
 him and he has had a reasonable time in which to 
 accept or reject it, and if within such-time, and with- 
 out notice of a withdrawal of the offer, he accepts it 
 the contract is complete the moment the letter of 
 acceptance is mailed (a), although in the meantime 
 the offerer has mailed another letter withdrawing the 
 offer (b), and even though the letter of acceptance is 
 never received by him (c). 
 
 (a) Adams v. Lindsell, : B. & Aid. 68i. 
 Tayloe v. Ins. Co. , 9 How. 390. 
 Dunlop V. Higgins, I H. L. C. 381. 
 
 (b) Byrne v. Van Tienhoven, 5 C. P. D. 344. 
 Stevenson v. McLean, 5 Q. B. D. 346. 
 Wheat V. Cross, 31 Md. 99. 
 
 (0) Household Ins. Co. v. Grant, 4 Ex. D. 216. 
 Vassar v. Camp, 11 N. Y. 441. 
 Howard v. Daly, 61 N. Y. 362. 
 Washburn v. Fletcher, 42 Wis. 152. 
 Haas V. Myers, 1 1 1 III. p. 426. 
 
 The contract is held to be complete when the 
 acceptor has mailed the letter of acceptance, because 
 this is an act contemplated and impliedly authorized 
 by the offerer as the mode of manifesting the inten- 
 tion of the accepter to close with the offer. The 
 accepter by this act does all that is requisite in the 
 
OFFER AND ACCEPTANCE. 17 
 
 usual course of business — he thereby puts the letter 
 of acceptance beyond his control, and he is not 
 answerable for the casualties of the mail service. 
 
 But the offerer may always, if he chooses, make 
 the formation of the contract dependent upon the 
 actual communication to himself of the acceptance. 
 
 Lewis V. Browning, 130 Mass. 173, 175. 
 Haas V. Myers, in 111. 421, 427. 
 
 2. Minnesota Oil Co. v. Lead Co.. 4 Dillon 431 . 
 Trevor v. Wood, 36 N. Y. 307. 
 Perry v. Iron Co., IJ R. I. 380. 
 
 An agreement is not a contract unless its 
 terms are certain or capable of being made 
 certain. 
 
 An offer, though accepted in terms, may be too 
 vague to be legally enforced. 
 
 Thus, where an intestate promised his niece that 
 if she would live with him until her marriage he 
 would give her "one hundred acres of land," without 
 anything to indicate its location or value, it was held 
 that the promise was void for uncertainty. 
 
 Sherman v. Kitsmiller, 17 S. & R. 45, 48. 
 
 So where the defendant prorriised the plaintiffs 
 that if they would buy a certain store-house and 
 stock of goods, he would "assist them by indorsing 
 their paper and advancing them the money to carry 
 on the mercantile business advantageously,'' it was 
 held that the promise was too indefinite and uncer- 
 tain to support an action. 
 
 Erwin V. Erwin, 25 Ala. 236, 242. 
 
i8 FORMATION OF CONTRACT. 
 
 The offer or acceptance may be expressed 
 by conduct as well as by words. 
 
 A person who takes a seat at the dining table of a 
 hotel thereby requests a meal for the usual price, and 
 the proprietor accepts the proposal by furnishing the 
 meal. 
 
 So, if A, with B's knowledge and silent acquies- 
 ence, does work beneficial to B under such circum- 
 stances that no reasonable man would suppose that 
 A meant to do the work for nothing, B will be liable 
 for the value of the work. 
 
 DeWolf V. Chicago, 26 111. 443. 
 Huck V. Flentye, 80 111. 262. 
 Day V. Caton, 119 Mass. 513. 
 
 The doing the work with B's knowledge is the 
 proposal, and B's acquiesence is the acceptance. 
 
 Performance of the conditions of an offer," 
 or the acceptance of the consideration prof- 
 fered therewith, ° is an acceptance of the offer. 
 
 1. Perkins v. Hadsell, 50 111. 216. 
 Kinder v. Brink, 82 111. 376. 
 Gowaid V. Waters, 98 Mass. 598. 
 Miller v. McKenzie, 95 N. Y. 579. 
 
 2. Miller v. McManis, 57 111. 126. 
 Pickrel v. Rose, 87 111. 263. 
 
 If A tells B that he will pay him a certain sum of 
 money for a day's work, B may accept by doing the 
 work or by taking the money. 
 
OFFER AND ACCEPTANCE. ig 
 
 An offer need not be made to an ascer-- 
 tained person, but no contract can arise until 
 it has been accepted by an ascertained person. 
 
 The offer by way of advertisement of a reward 
 for information leading to the restoration of property 
 or the conviction of a criminal, addressed to the 
 public at large, becomes obligatory, if not previously 
 revoked, as soon as an individual, with a view to the 
 reward, renders the specified service, but not before. 
 This is the ordinary case of work done on request. 
 
 Wentworth v. Day, 3 Met. 352, 354. 
 First Nat. Bank v. Hart, 55 111. 62. 
 County V. Robinson, 85 111. 174. 
 Pierson v. Morch, 82 N. Y. 503. 
 
 Until the service is rendered, the offer of the 
 reward is a mere proposal and may be revoked by an 
 advertisement of equal publicity, even as against a 
 person who acts on the proposal not knowing it has 
 been revoked. 
 
 Shuey v. United States, 92 U. S. 73. 
 
 To entitle one to the reward, he must have had 
 notice of the c^er at the time he rendered the ser- 
 vice; for no one can assent to that which he has not 
 heard of. 
 
 Fitcli V. Snedaker, 38 N. Y. 248. 
 
 Rowland v. Lounds, 51 N. Y. 604. 
 
 See, also, Ball v. Newton, 7 Cush. 599. 
 
CHAPTER II. 
 CONSIDERATION. 
 
 In every contract containing a promise there 
 must be a consideration for the promise.' 
 
 Qualification. — If such contract is under seal,° 
 or negotiable, 3 the form imports a considera- 
 tion/ But tlie want of a consideration may- 
 be pleaded and proved, ^ except against the bona 
 fide assignee* of a negotiable contract assigned 
 to him before it became due.' 
 
 1, Burnet v. Bisco, 4 Johns, 235. 
 Fowler v. Shearer, 7 Mass. 14. 
 McLean v. McBean, 74 111., 134. 
 Greenman v. Greenman, 107 111. ^4. 
 Williams V. Forbes, 114 111. 167. 
 
 2. A seal is an impression on wax, or other tena- 
 cious substance, capable of being impressed. 
 
 In Illinois, and several of the states, it is pro- 
 vided by statute that any instrument of writing, to 
 which the maker shall affix a scrawl by way of seal, 
 shall be of the same effect and obligation, to all in- 
 tents, as if the same were sealed. 
 R. S., Ch. 29, !^ 1. 
 
CONSIDERATION. 21 
 
 A contract under seal is frequently called a spe- 
 cialty or deed. A contract not under seal, whether 
 written or oral, is called a simple or parol contract. 
 
 3. A contract is said to be negotiable if it can be 
 so transferred that the assignee has the right to sue 
 upon it at law in his own name, as a bill of exchange 
 or promissory note. 
 
 4. \Ying V, Chase, 35 Me. 260, 265. 
 Buckmaster v. Grundy, i Scam. 310. 
 Evans v. Edwards, 26 111. 279. 
 Mitchell V. Sheldon, 2 BlackT. 185. 
 Stacker v. Hewitt, I Scam. 207. 
 Bilderback v. Burlingame, 27 111. 338. 
 Townsend V. Derby, 3' Met. 363. 
 
 5. R. S., Ch. 98, § 9. 
 
 Gage V. Lewis, 68 111. p. 613. 
 Case V. Boughton, 11 Wend. 106. 
 Schoonmaker V. Roosa, 17 Johns. 301. 
 Kirkpatrick v. Taylor, 43 111. 207. 
 
 6. A bona-fide assignee is an assignee for value, 
 and without notice of the want of a consideration. 
 
 7. R. S. Ch. 98, g 9. 
 
 Murray v. Lardner, 2 Wal. no. 
 
 When, at the desire of the promisor,' the 
 promisee, or any other person on his behalf,'' 
 confers or promises to confer^ any benefit upon 
 the promisor,'* or incurs or promises to incur 
 any detriment,' and such benefit, detriment, or 
 promise is the inducement of the promisor's 
 promise,^ it is a sufficient consideration for the 
 promise. 
 
22 FORMATION OF CONTRACT. 
 
 1. The desire or, in the language of pleading, 
 "request" may be express or implied. 
 
 2. The prevailing rule in this country is that it 
 one person, for a valid consideration, makes a parol 
 promise to another for the benefit of a third person, 
 the third person may maintain an action on the 
 promise. 
 
 Bristow V. Lane, 21 111. 194, 197. 
 Lawrence v. Fox, 20 N. Y. 268. 
 Hendrick v. Lindsay, 93 \}. S. 143. 
 
 3. A promise is a sufficient consideration for a 
 promise. 
 
 Funk V. Hough, 29 111. 145. 
 Cooke V. Murphy, 70 111. 96. 
 Thayer v. Allison, 109 111. 180. 
 Philpot V. Gruninger, 14 Wal. 570. 
 Coleman v. Eyre, 45 N. Y. 38. 
 
 4 Doyle V. Knapp, 3 Scam. 334. 
 Parker v. Crane, 6 Wend. 647. 
 Buchanan v. International Bank, 78 111. 500. 
 
 Marriage is a valuable consideration. 
 
 Rockafellow v. Newcomb, 57 111. 191. 
 Magniac v. Thompson, 7 Pet. 393. 
 Wright V. Wright, 54 N. Y. 440. > 
 Peck V. Vandemark, 99 N. Y. 35. 
 Frank's Appeal, Jg Pa. St. 194. 
 
 5. Forster v. Fuller, 6 Mass.^sS. 
 White V. Walker, 31 111. 422. 
 Burch V. Hubbard, 48 111. 171. 
 Townsley v. Sumrall, 2 Pet. 182. 
 White V. Baxter, 71 N. Y. 261. 
 
 6. The mere fact that somebody has conferred a 
 benefit or incurred a detriment at the promisor's 
 
CONSIDERA TION. 23 
 
 request cannot have any effect on his promise to 
 some one else, unless this fact is in some way con- 
 nected with the promise and shown to have had some- 
 thing to do in producing it. 
 
 The consideration need not be adequate to 
 the promise, but it must be of some value. 
 
 A slight consideration is sufficient to support a 
 promise. 
 
 Heckenkemper v. Dingwehis, 32 111. 538, 540. 
 Hubbard v. Coolidge, i Met. 93. 
 Worth V. Case, 42 N. Y. 369. 
 
 So long as the promisor gets what he has bar- 
 gained for, and there is no«claim of fraud or undue 
 influence-, the court will not inquire into the adequacy 
 of the consideration. 
 
 McArtree v. Engart, 13 111. 242, 248. 
 
 Lawrence v. McCalmont, 2 How. 426, 452. 
 
 Eyre v. Potter, 15 How. 42, 59. 
 
 Earl V. Peck, -64 N. V. 596 
 
 The abandonment of any legal or equitable 
 right against the promisor or a third party,' or 
 the forbearance to exercise it for a definite or 
 reasonable time,'' is a sufficient consideration 
 for a promise. 
 
 So is the compromise of a disputed claim, 
 honestly made, although it ultimately prove to 
 be unfounded.^ 
 
 I. Leverenz v. Haines, 32 111. 357. 
 Smith V. Weed, 20 Wend. 184. 
 St. Clair v. Perrine, 75 111. 366. 
 
24 FORMATION OF CONTRACT. 
 
 2. Oldershaw v. King, 2 11. & N; 517. 
 Creais v. Huntei-, 19 Q. B. D. 341. 
 Calkins v. Cliandler, 36 Mich. 320. 
 Boyd V. Freize, J Gray 553. 
 Underwood v. Hossack, 38 111. 208. 
 Worcester Nat. Bank v. Cheeney, 87 111. 602. 
 
 3. McKinley v. Watkins, 13 111. 140, 144. 
 Honeyman v. Jarvis, 79 111. 318, 322. 
 Parker v. Enslow, 102 111. 272, 278. 
 Barlow v. Ins. Co., 4 Met. 270, 276. 
 Kerr v. Lucas, I Allen, 279, 280. 
 Feeter v. Weber, 78 N. Y. 334, 337. 
 Union Bank v. Geary, 5 Pet. 99, 114. 
 Northern &c. Co. v. Kelly, 113 U. S. 199, 202. 
 Miles V. New Zealand &c. Co., 32 Ch. D. 266. 
 
 The claim must be made in good faith with a color 
 of right. It is not sufficient if made without any rea- 
 sonable ground for believing that it might be sustained . 
 
 Gates V. Shutts, 7. Mich. 127, 133. 
 White V. Hoyt, 73 N. Y. 505, 515. 
 MulhoUand v. Bartlett, 74 111. 58, 62. 
 Ormsbee v. Howe, 54 Vt. 182, 186. 
 Bellows V. Sowles, 55 Vt. 391, 398. 
 Headley v. Hackjey, 50 Mich. 43, 45. 
 Ware v. Morgan, 67 Ala. 461, 469. 
 
 The delivery of property to a person in trust 
 is a sufficient consideration for a promise to 
 execute the trust. 
 
 Hart V. Miles, 4 C. B. {N. S.) 371. 
 Rutgers v. Lucet, z Johns. Cas. 92. 
 Jenkins v. Bacon, iii Mass. 373. 
 
 If the promisor had not made the promise the 
 promisee would have had the property to deliver to 
 somebody else who would have executed the trust. 
 
CONSIDERATION. 25 
 
 Blood or natural affection is not sufficient to 
 support a promise.^ 
 
 Nor is a mere moral obligation.'' 
 
 1. Natural affection constitutes a sufficient consid- 
 eration for a conveyance, but not for an executory 
 contract. 
 
 Fink V. Cox, 18 Johns. 145. 
 Kennedy v. Ware, i Pa. St. 445. 
 Kirkpatrick v. Taylor, 43 111. 207. 
 Williams V. Forbes, 114 111. 167. 
 Phillips V. Frye, 14 Allen, 36. 
 Whitaker v. Whitaker, 52 N. Y. 368. 
 
 2. Dodge V. Adams, 19 Pick. 429. 
 Ehle V. Judsori, 24 Wend. 97. 
 
 As, where a father promised to pay the expenses 
 previously incurred in relieving his adult son, sud- 
 denly taken sick among strangers. 
 Mills V. Wyman, 3 Pick, 207. 
 
 Or, where a son promised to pay for necessaries 
 previously furnished to his indigent father. 
 Cook V. Bradley, 7 Conn. 57. 
 
 The alleged consideration is insufficient 
 where it is a promise whose performance is 
 impossible in itself,' or impossible by law.^ 
 
 I. Perfoimance is deemed to be impossible in 
 itself when it is impossible " according to the state 
 of knowledge of the day." 
 
 See Clifford v. Watts, L. R. 5 C. P. p. 5S8 
 
26 FORMATION OF CONTRACT. 
 
 As in the case of a promise to go from London to 
 Rome in three hours. 
 
 The Harriman, 9 Wal. p. 172. 
 
 2.. A promise by A (without authority from B) to 
 discharge a debt due to B, is a promise whose per- 
 formance is impossible by law, for no one without 
 the requisite authority can release a debt due to 
 another. 
 
 Harvey v. Gibbons, 2 Lev. 161. 
 
 A promise to do, or actually doing what 
 one is legally bound to do, is not sufficient to 
 support a promise. 
 
 Hennessey v. Hill, 52 111. 281. 
 \'oorhees V. Reed, 17 111. App. 21, 24. 
 Stuber v. Scliack, 83 111. 191. 
 Grossman v. Wohlleben, 90 111. 537. 
 
 And, therefore, mere (a) part payment of a liqui- 
 dated (b) claim already due (c) will not support a 
 promise to relinquish the residue of the claim (d), or 
 to forbear to sue for it (e). 
 
 (a) Neal v. Handley, 116 111. 418, 423. 
 Hastings v. Lovejoy, 140 Mass. 261, 266. 
 Keeler v. Salisbury, 33 N. Y. 648, 653. 
 
 (b) Rosenmueller V. Lampe, 89 111. 212, 215. 
 Ins. Co. V. Delwiler, 23 111. App. 656. 
 
 (c) Brooks v. White, 2 Met. 283, 286. 
 
 Harriman v. Harriman, 12 Gray, 341. 
 
 (d) Curtiss v. Martin, 20 111. 557, 577. 
 Hayes v . Ins. Co., 125 111. 626, 638. 
 Lathrop V. Page, 129 Mass. 19. 
 
 (e) Stuber V. Schack, 83 111. 191, 192. 
 Jennings v. Chase, 10 Allen, 526. 
 
CONSIDERA 1 ION. 2 7 
 
 But in a composition by an insolvent debtor with 
 his creditors there is a sufficient consideration for 
 each creditor giving up a part of his claim, viz., the 
 giving up proportional parts of their claims by the 
 other creditors, whereby a fair division of the debtor's 
 estate is secured. 
 
 Slater v. Jones, L. R. 8 Ex. 186, 193. 
 Farrington v. Hodgdon, 119 Mass. 453, 457. 
 White V. Kuntz, 107 N. Y. 518, 524. 
 
 A contract executory on both sides may be 
 rescinded by mutual consent (a), and it seems that if 
 this be virtually done the parties may thereupon 
 make a new contract which will be binding, although 
 the terms on one side may be the same as in the old 
 contract (b). 
 
 (a) King v. Gillett, 7 M. & W. 55. 
 
 (b) Munroe v. Perkins, 9 Pick. 298, 305. 
 Lattimore v. Harsen, 14 Johns. 330. 
 Bishop V. Busse, 69 111. 403. 
 Cooke V. Murphy, 70 111. 96. 
 Stewart v. Keteltas, 36 N. Y. 388. 
 Rollins V. Marsh, 128 Mass. 116. 
 
 If any part of a single consideration for one or 
 more promises is illegal the agreement is void.' 
 
 If any one or any part of any one of several 
 consideratfons for a single promise is illegal 
 the promise cannot be enforced.'' 
 
 But if two distinct promises, one legal and 
 the other illegal, are made for a valid consid- 
 eration, the legal promise can be enforced. ^ 
 
28 FORMATION OF CONTRACT. 
 
 1. Henderson v. Palmer, 71 111. 579, 583. 
 Tobey v. Robinson, 99 111. 222. 
 Rlcketts V. Harvey, 106 Ind. 564. 
 Bishop V. Palmer, 146 Mass. 469. 
 
 For public policy will not permit a party to en- 
 force a promise which he has obtained by an illegal 
 act or an illegal promise, although he may have con- 
 nected with this act or promise another which is 
 legal. 
 
 2. Filson's Trustees v. Hime:;, 5 Pa. St. 452. 
 Widoe V. Webb, 20 Ohio St. 431. 
 Perkins v. Cummings, 2 Gray, 258. 
 Trist V. Child, 21 Wal, 441. 
 
 3. Erie Ry. Co. v. Union &c. Co., 35 N. J. L. 240. 
 Ohio V. Board of Education, 35 Ohio St. 527. 
 United States v. Bradley, 10 Pet. 360. 
 Gelpcke v. Dubuque, I Wal. 222. 
 
 United States v. Hodson, 10 Wal. 408. 
 United States v. Mora, 97 U. S. 422. 
 
 So in the case of an alternative promise, one 
 branch of which is legal and the other illegal, the 
 legal branch can be enforced. 
 
 Hanauer v. Gray, 25 Ark. 350. 
 
 And in the case of several promises based on sev- 
 eral considerations, some of which are illegal, the 
 promises made upon legal considerations can be 
 enforced, if the contract is divisible. 
 
 Robinson v. Green, 3 Met. 159, 161. 
 Carleton v. Woods, 28 N. H. 290. 
 
 A past coiisideratioii will not support a sub- 
 sequent promise. 
 
CONSIDERA TION. 2 9 
 
 Eastwood V. Kenyon, 1 1 A. & E. 438, 446 
 Bartholomew v. Jackson, 20 Johns. 28. 
 Allen V. Bryson, 67 Iowa, 591. 
 Carson v. Clark, i Scam. 113. 
 Chamberlin v. Whitford, 102 Mass. p. 450. 
 
 For a promise made on account of a past matter 
 only is purely gratuitous. 
 
 An alleged exception to the rule is the claim that a 
 past consideration will support a subsequent promise, 
 if the consideration was given at the request of the 
 promisor. This claim is too broad. For services 
 are often rendered on request where the circum- 
 stances negative any intention, or expectation of 
 reward. 
 
 The following is believed to embody the full ex- 
 lent of the principle involved in the supposed excep-^ 
 tion when properly limited: 
 
 Explanation i. — If a consideration is pre- 
 ceded by a request, and the request, under 
 the circumstances, reasonably impHes a promise 
 of recompense, such promise can be enforced. 
 
 Davidson v. Gas Light Co., 99 N. Y. p. 566. 
 Milliken v. Telegraph Co., no N. Y. 403, 411. 
 
 Here are all the elements of a contract without 
 the aid of a subsequent promise, and should there 
 be a subsequent express promise to pay a definite 
 sum it will only be regarded as evidence to be con- 
 sidered in determining what would be due recom- 
 pense. 
 
 See Kennedy v. Broun, 13 C. B. (N. S.) p. 740. 
 
30 FORMATION OF CONTRACT. 
 
 A second alleged exception to the rule is the claim 
 that where one has voluntarily done that which 
 another was legally bound to do, it is a sufficient con- 
 sideration to support a subsequent promise. 
 
 But the cases relied on as authority for this claim 
 appear to rest on the principle that the subsequent 
 ratification of an act done by a voluntary agent of 
 another, without authority from him, is equivalent to 
 a previous authority. 
 
 The true doctrine of these cases may be stated as 
 follows: 
 
 Explanation 2. — If one without authority 
 voluntarily does, on behalf of another, that 
 which the other was legally bound to do, the 
 latter may ratify the act by a subsequent 
 promise of recompense, and the ratification 
 will be equivalent to a previous request im- 
 porting such promise. 
 
 Gleason v. Dyke, 22 Pick. 390, 393. 
 Dcfty V. Wilson, 14 Johns. 378, 382. 
 Hassinger v. Solms, 5 S. & R. 4, 8. 
 I'aynter v. Williams, i Cromp. & Mees. 819. 
 
 -■\ third alleged exception to the rule is to be found 
 in the following well established principle: 
 
 Explanation j. — Where a promise for a valu- 
 able consideration cannot be enforced against 
 the will of the promisor, by reason of some 
 rule or provision of law meant for his advan- 
 tage, he may, subsequently, if of full capacity 
 
CONSIDERATION. 31 
 
 to contract, renounce the benefit of such rule 
 or provision by renewing his original promise. 
 
 Earle v. Oliver, 2 Exch. 90. 
 
 A promise by a person of full age to pay a debt 
 contracted during his minority is an illustration of 
 the principle. 
 
 Reed v. Batchelder, i Met. 559. 
 
 So is a promise to pay a debt barred by the statute 
 of limitation (a), or after a discharge in bank- 
 ruptcy (b). 
 
 (a) Keener v. GruU, 19 111. 189. 
 Carroll v. Forsyth, 69 111. 127. 
 Little V. Blunt, 9 Pick. 488. 
 Weston V. Hodgkins, 136 Mass. 326. 
 
 (b) St. John V. Stephenson, 90 111. 82. 
 Katz V. Moessinger, no 111. 372 
 Allen V. Ferguson, 18 Wal. i. 
 
 In these cases the action is brought on the orig- 
 inal promise, arid the new promise simply operates 
 as a waiver by the promisor of a defense with which 
 the law has furnished him against an action on the 
 old promise. 
 
 Way V. Sperry, 6 Cush. 238, 241. 
 Shippey V. Henderson, 14 Johns. 178, 180. 
 Betton V. Cutts, 11 N. H. 170, 179. 
 Norton v. Colby, 52 111. 198, 204. 
 Marshall v. Tracy, 74 111. 379. 
 Yaw V. Kerr, 47 Pa. St. 333. 
 Shepard v. Rhodes, 7 R. I. 470. 
 
CHAPTER III. 
 THE STATUTE OF FRAUDS. 
 
 The English statute (29 Car. II. c. 3), entitled 
 "An Act for the Prevention of Frauds and Perjuries," 
 requires written evidence of the contracts therein 
 mentioned before they can be enforced. This statute 
 commonly called the Statute of Frauds, has been 
 adopted, with slight modifications, in most of the 
 states. 
 
 The 4th section of this statute is in force in Illi- 
 nois in the following modified form: 
 
 § I. No action shall be brought, whereby to charge 
 any executor or administrator upon any special 
 promise to answer any debt or damages out of his 
 own estate, or whereby to charge the defendant upon 
 any special promise to answer for the debt, default, 
 or miscarriage of another person, or to charge any 
 person upon any agreement made upon consideration 
 of marriage, or upon any agreement that is not to be 
 performed 'within the space of one year from the 
 making thereof, unless the promise or agreement 
 upon which such action shall be brought, or some 
 memorandum or note thereof, shall be in writing, 
 and signed by the party to be charged therewith, or 
 
STATUTE OF FRAUDS. 33 
 
 some other person thereunto by him lawfully author- 
 ized. 
 
 § 2._No action shall be brought to charge any 
 person upon any contract for the sale of lands, tene- 
 ments, or hereditaments, or any interest in or con- 
 cerning them, for a longer term than one year, unless 
 such contract, or some memorandum or note thereof, 
 shall be in writing, and signed by the party to be 
 charged therewith, or some other person thereunto 
 by him lawfully authorized in writing, signed by 
 such party. This section shall not apply to sales 
 upon execution or by any officer or person pursuant 
 to a decree or order of any court of record in this 
 state. 
 
 § 3. The consideration of any such promise or 
 agreement need not be set forth or expressed in the 
 writing, but may be proved or disproved by parol or 
 other legal evidence. 
 R. S. Ch. 59. 
 
 No contract within the provisions of the 
 Statute of Frauds is enforceable at law,' unless 
 such contract or some memorandum thereof,"" 
 showing who are the parties thereto,^ and what 
 was the promise sought to be enforced,'^ is in 
 writing, signed^ by the party to be charged 
 thereby,* or by his agent' thereunto lawfully 
 authorized. 
 
 I. A verbal contract within the statute is void- 
 able, not void. 
 
34 FORMATIOM OF CONTRACT. 
 
 Townsend v. Hargraves, Il8 Mass. 334. 
 Whitney V. Cochran, i Scam. 210. 
 Chicago Dock Co. v. Kinzie, 49 111. 289. 
 
 The statute does not apply to a verbal contract 
 which has been fully performed. 
 
 Stone V. Dennison, 13 Pick, i, 4. 
 Swanzey v. Moore, 22 111. 63. 
 James v. Morey, 44 111. 352. 
 
 A verbal contract within the statute cannot be 
 made the ground of a defense any more than of a 
 demand. 
 
 King V. Welcome, 5 Gray, 41, 42. 
 Wheeler v. Frankenthal, 78 111. 124, 126. 
 Creighton v. Sanders, 89 111. 543. 
 McGinnisv. Fernandes, 126 111. 228. 
 
 2. The contract may be made at one time and 
 the memorandum of it at a subsequent time. 
 
 Lerned v. Wannemacher, 9 Allen, p. 416. 
 Gale V. Nixon, 6 Cow. 445, 448. 
 
 But it has been held that the memorandum must 
 be made before the action is brought. 
 
 Bill V. Bament, 9. M. & W. 36. 
 Bird V. Munroe, 66 Me. 337. 
 Lucas V. Dixon, 22 Q. B. D. 357. 
 
 The memorandum need not pass between the 
 parties; it may be a letter written by the party to be 
 charged to a third person (a), or an entry in the books 
 of such party (b). 
 
 (a) Gibson v. Holland, L. R. i C. P. 1,6. 
 Peabody v. Speyers, 56 N Y. 230, 237. 
 Moss V. Atkinson, 44 Cal. 3. 
 Spangler V. Danforth, 65 111. 152.- 
 
STA TUTE OF FRA UDS. 35 
 
 (b) Argus Co. V. Albany, 55 N. Y. 495. 
 Tufts V. Plymouth Co., 14 Allen, 407. 
 
 The memorandum may be contained in more 
 papers than one, provided that, if any such paper is 
 not signed as required by the statute, it must be 
 so referred to by a paper which is thus signed (a), or 
 so attached thereto at the time of signing (b), as to 
 indicate the signer's intention to make it a part of 
 the memorandum. 
 
 (a) Pierce v. Corf, L. R. 9 Q. B. 210, 217. 
 Kronheim v. Johnson, 7 Ch. D. 60, 67. 
 Morton v. Dean, 13 Met. 385, 388. 
 Whelan v. Sullivan, 102 Mass. 204, 206. 
 Peck V. Vandemark, 99 N. Y. 29, 34. 
 Doughty V. Manhattan Brass Co., loi N. Y. 644. 
 McConnell v. Brillhart, 17 111. 354, 360. 
 
 (b) Tallman v. Franklin, 14 N. Y. 584, 588. 
 Orne v. Cook, 31 111. 238. 
 
 If it appears from the paper signed that another 
 paper is referred to, the latter may be identified by 
 parol evidence. 
 
 Long V. Millar, 4 C. P. D. 450, 456. 
 
 Beckwith v. Talbot, 95 U. S. 292. 
 
 And see Studds v. Watson, 28 Ch. D. 305, 307. 
 
 Work V. Cowhick, 81 111. 317, 318. 
 
 Thayer v. Luce, 22 Ohio St. 62, 74. 
 
 3. The memorandum may show who are the 
 parties to the contract, either by naming them or by 
 giving a description of them by which they can be 
 identified as such. 
 
 Sale V. Lambert, L. R. 18 Eq. i. 
 Catling V. King, J Ch. D. 660. 
 Jarrett v. Hunter 34 Ch. D. 182. 
 
36 formation; OF CONTRACT. 
 
 McConnell v. Erillhart, 17 111. 354. 
 Thornton v. Kelly, II K. I. 49S. 
 
 4. The memorandum must show the substance of 
 such promise with reasonable certainty (a). 
 
 In Illinois it need not set forth or express the 
 consideration thereof (b), unless the consideration is 
 executory and modifies the promise (c). 
 
 (a) Atwood V. Cobb, 16 Pick. 227, 230. 
 Frazer v. Howe, 106 111. 563, 574. 
 Peck V. Vandemark, 99 N. Y. 29, 34. 
 
 (b) R. S. Ch. 59 g 3. 
 
 Patmor v. Haggard, 78 111. 607. 
 
 (c) See Drake v. Seaman, 97 N. Y. 234-236. 
 
 Parol evidence, however, is admissible for the 
 purpose of identifying the subject matter to which 
 the writing refers. 
 
 Barry v. Coombe, i Pet. 640. 
 Tallman v. Franklin, 14 N. Y. 584. 
 Mead V. Parker, 115 Mass. 413. 
 McConnell v. Brillhart, 17 111. 354. 
 Cossitt V. Hobbs, 56 111. 231. 
 
 5. Ordinarily the signature is the party's name 
 written at the end of the memorandum. But it may 
 be his initials (a), or his mark (b); it may be printed 
 (c), or stamped (d); and it may be at the beginning or 
 in the middle of the memorandum (e) ; provided that it 
 appears that the signer thereby intended to recognize 
 and authenticate the memorandum and every material 
 part thereof (f). 
 
 (a) Sanborn v. Flagler, 9 Allen, 478. 
 Palmer v. Stepiiens, I Denio, 478. 
 
STATUTE OF FRAUDS. 37 
 
 (b) Baker v. Dening, 8 Ad. & E. 94. 
 Brown v. Bank, 6 Hill, 443. 
 
 (c) Schneider v. Norris, 2 M. & S. 286. 
 Drury v. Young, 58 Md. 546. 
 Weston V. Myers, 33 111. 424. 
 
 (d) Bennett v. Brumfitt, L. R. 3 C. V. 30. 
 
 (e) Clason v. Bailey, 14 -Johns. 484, 486. 
 Coddington v. Goddard, i5 Gray, 436, 444. 
 McConnell v. Brillhart, 17 111. p. 361. 
 
 (f) Caton V. Caton, L. R. 2 H. L. 127. 
 
 Boardman v. Spooner, 13 Allen, 353, 358. 
 Bray ley v. Kelly, 25 Minn. 160. 
 
 6. The writing need not be signed by the other 
 party to the contract. A written offer verbally ac- 
 cepted is binding upon the signer. 
 
 Old Colony R. R. Co. v. Evans, 6 Gray, 25, 32. 
 
 Justice V. Lang, 42 N. Y. 493, 500. 
 
 Earwell v. Lowthcr, 18 111. 255. 
 
 Perkins v. Hadsell, 50 III. 216. 
 
 Estes V. Furlong, 59 lil. 302. 
 
 W. U. Tel. Co. V. R. R. Co., 86 111. 246. 
 
 7. The agent must be a third person, and not the 
 other contracting party. 
 
 Bent V. Cobb, 9 Gray, 397. 
 
 Farebrother v. Simmons, 5 B. & Aid. 333. 
 
 Sharman v. Brandt, L. R. 6 Q B. 720. 
 
 If the agent signs it in his own name, the other 
 party may show that the contract was really made 
 with the principal. 
 
 Dykers v. Townsend, 24 N. Y. 57, 60. 
 Sanborn v. Flagler, 9 Allen, p. 477. 
 Williams v. Bacon, 2 Gray, 387, 393. 
 Trueraan v. Loder, 11 Ad. & E. 589. 
 
38 FORMATION OF CONTRACT. 
 
 The authority of the agent need not be in writing 
 except in the case of a contract for the sale of real 
 property or some interest therein for a longer period 
 than one year. 
 
 R. S. Ch. 59 §§ I. 2- 
 
 Watson V. Sherman, 84 111. 267. 
 Chappel V. McKnight, 108 111. 570. 
 Albertson v. Ashton, 102 HI. 50. 
 Lasher V. Gardner, 124 111. 441. 
 
 The following contracts are within the Stat- 
 ute of Frauds: 
 
 1. A special promise by an executor or ad- 
 ministrator to answer any debt or damages out 
 of his own estate. 
 
 An executor or administrator, as such, is liable 
 only to the extent of the assets of the deceased. He 
 may, however, for a suiificient consideration such as 
 forbearance, promise to answer for a debt of the 
 deceased out of his own estate. Such a collateral 
 promise is within the statute, and written evidence 
 thereof is essential to its enforcement. The consid- 
 eration need not appear in writing, but there must 
 be one to support the promise. The putting of a 
 naked promise into writing does not take away the 
 necessity of a consideration in any of the cases 
 within the statute. 
 
 Rann v. Hughes, 7 T. R. 346, n. 
 
 Forth V. Stanton, i Wms. Saund. 211, n (2). 
 
 2. A special promise to answer for the debt, 
 default, or miscarriage of another person. 
 
STATUTE OF FRAUDS. 39 
 
 Such a promise is usually called a guaranty. The 
 plain, object of the statute is to require more certain 
 evidence to charge a party, where he does not receive 
 the substantial benefit of the transaction, and where 
 another is primarily liable; and thereby to afford 
 greater security against the setting up of fraudulent 
 demands. The statute does not change the common 
 law as to the necessity of a consideration for the 
 promise to answer for the liability of another, but 
 adds the requirement that the promise be in writing. 
 Where such promise and the principal obligation 
 are accepted by the promisee at the same time, and 
 together constitute the consideration passing to him, 
 the consideration passing from him will support the 
 promise as well as the principal obligation. In all 
 other cases there must be an independent consider- 
 ation for the promise (a). But the writing need not in 
 any case express such consideration (b). 
 
 (a) Eddy v. Roberts, 17 III. 506-508. 
 Nelson V. Boynton, 3 Met. 399-401. 
 
 Erie Co. Bank v. Coit, 104 N. Y. 532, 537. 
 Underwood v. Hossack, 38 III. 208, 21Z. 
 Frame v. Augtist, 88 III. 424. 
 
 (b) R. S. Ch. 59 § 3. 
 
 Explanation i. — A "special promise" is a 
 promise in fact as distinguished from a promise 
 implied by law. 
 
 Sage V. Wilcox, 6 Conn. 85. 
 Goodwin v. Gilbert, 9 Mass. 510. 
 
 Explanation 2. — The phrase "debt, default, 
 or miscarriage," includes any liability present 
 
40 FORMATION OF CONTRACT. 
 
 or future, and whether arising out of contract 
 or out of tort. 
 
 Matson v. Wharam, 2 T. R. 80. 
 Matthews v. Milton, 4 Yerg. 576. 
 Mead v. Watson, 57 Vt. 426. 
 Kirkham v. Marter, 2 B. & Aid. 613. 
 Mountstephen v. Lakeman, L. R. 7 Q. B. p. 202. 
 
 Explanation 2- — The term "another person" 
 here means some person other than the immedi- 
 ate parties to the promise; i. e., a third person. 
 
 Colt V. Root, 17 Mass. 236. 
 Alger V. Scoville, i Gray, 394. 
 Barker v. Bucklin, 2 Denio, 60. 
 Prather v. Vineyard, 4 Gilm. 48. 
 
 Explanation ^. — In order to bring a promise 
 within the statute 
 
 1- There must be at some time a liabiUty of 
 a third person to be answered for;' 
 
 2- The liabiHty of the third person must be 
 a continuing liability;'' 
 
 3- The transaction ijiust hot show that the 
 liability of the third person is to be answered 
 for out of his own property;^ 
 
 4- The promise must be made to the person 
 to whom the third person is or is to become 
 liable;'* and 
 
 5- The promise must not be merely inci- 
 dental to a transaction where the main object 
 
STA TUTE OF FRA UDS. 41 
 
 of the promisor is to subserve some interest of 
 his own.' 
 
 1. If goods are sold to another upon his credit, 
 and the promise is made to answer for the debt, the 
 promise is within the statute (a); but if goods are sup- 
 plied to another upon the sole credit of the promisor, 
 the promise to pay is not within the statute, because 
 there is no debt of another to be answered for (b). 
 
 (a) Cahill v. Biglow, 18 Pick. 369, 371. 
 Blank V. Dreher, 25 111. 331. 
 
 See, also, Hardman v. Bradley, 85 111. 162. 
 
 (b) Chase v. Day, 17 Johns. 114. 
 Williams v. Corbet, 28 111. 262, 263. 
 Hughes V. Atkins, 41 111 213. 
 Geary v. O'Neil, 73 III. 593. 
 Schoenfeld v. Brown, 78 111. 487. 
 Owen V. Stevens, 78 111. 462, 464. 
 Hartley Bros. v. Varner, 88 111. 561. 
 See, also, Clifford v. Luhring, 69 111. 401. 
 King V. Edmiston, 88 111. 257. 
 
 2. A promise to pay the debt of another in con- 
 sideration of that other's release from the debt, is 
 not within the statute, because there remains no debt 
 of another to answer for. 
 
 Meriden Britannia Co. v. Zingsen, 48 N. Y. 250. 
 Wood V. Corcoran, I Allen, 406. 
 Eddy V. Roberts, 17 III. p. 508. 
 Corbin v. McChesney, 26 111. 232. 
 Runde v. Runde, 59 111. 98. 
 
 3. Where the promisor has funds or goods in his 
 hands belonging to the debtor, from which or from 
 whose proceeds he has' authority (a) and is under a 
 duty (b) to pay the debt, the promise is not within the 
 
42 FORMATION OF CONTRACT. 
 
 statute, because the debt is really to be paid by 
 debtor; the responsibility assumed by the promi 
 being that of a trustee for the creditor (c). 
 
 (a) Gower v. Stuart, 40 Mich. 747. 
 
 Frame v. August, 88 111. 424. 
 
 (b) FuUam v. Adams, 37 Vt. 391, 397. 
 Belknap v. Bender, 75 N. Y. 446, 451. 
 Ackley v. Parmenter, 98 N. Y. 425, 430. 
 
 (c) Wait V. Wait, 28 Vt. 350, 352. 
 Farley v. Cleveland, 4 Cow. 432. 
 Eddy V. Roberts, 17 111. 505, 508. 
 Prather v. Vineyard, 4 Gilm. 40, 48. 
 Walden v. Karr, 88 III. 49, 51. 
 
 4. A promise to the debtor himself to pay 
 debts is not within the statute. 
 
 Eastwood V. Kenyon, II A. & E. 438. 
 Alger V. Scoville, I Gray, 395. 
 Mersereau v. Lewis, 25 Wend. 247. 
 Eddy V. Roberts, 17 111. p. 508. 
 Brown v. Strait, 19 111. 89. 
 Rabbermann v. Wiskamp, 54 111. 179. 
 Wilson V. Eevans, 58 111. 232. 
 Meyer v. Hartman, 72 111. 442. 
 
 Nor is a mere promise of indemnity or pron 
 to a person to save him harmless from the result! 
 a transaction into which he enters at the instanc( 
 the promisor. 
 
 Aldrich v. Ames, 9 Gray, 76. 
 Barry v. Ransom, 12 N. Y. 462. 
 Wildes V. Dudlow, L R. 19 Eq. ig8. 
 Anderson v. Spence, 72 Ind. 315. 
 
 For in these cases the promise is to answer 
 the liability of the promisee, and not for that c 
 third person. 
 
STA TUTE OF FRA UDS. 43 
 
 5. In the following cases the leading purpose of 
 the promisor is to promote some interest of his own; 
 and accordingly the promise is not within the statute, 
 although the debt of a third person be incidentally 
 guaranteed. 
 
 (i) Where the holder of a promissory note trans- 
 fers it for value and guarantees the payment of the 
 note. 
 
 Cardell v. McNiel, 21 N. Y. 336, 340. 
 Milks V. Rich, 80 N. Y. 269, 271. 
 Dows V. Swett, 134 Mass. p. 142. 
 Darst V. Bates, 95 111. p. 512. 
 
 (2) Where an agent (called a del credere agent) 
 undertakes, for an increased commission, to sell the 
 goods of his employer and guarantee the solvency 
 of the purchasers. 
 
 Wolf V. Koppel, 5 Hill, 458; 2 Denio, 368. 
 Couturier v. Hastie, 8 Exch. 40; 5 H. L. 673. 
 Swan V. Nesmith, 7 Pick. 220. 
 Sherwood v. Stone, 14 N. Y. 267. 
 
 (3) Where the creditor of a third person has 
 some lien or advantage for securing the debt which 
 incumbers the property or may injuriously affect the 
 interests of the promisor, and the promise is made 
 in consideration of the relinquishment of such lien 
 or advantage. 
 
 Fitzgerald v. Dressier, 7 C. B. (N. S). 374, 392. 
 Wilfs V. Brown, 118 Mass. 137, 138. 
 Mallory v. Gillett, 21 N. Y. 412, 419. 
 Prime v. Koehler, 77 N. Y. 91, 94. 
 Crawford v. King, 54 Ind. 6, 10. 
 Eddy V. Roberts, 17 111. p. 508. 
 Scott V. White, 71 111. 287. 
 
44 FORMATION OF CONTRACT. 
 
 Borchsenius v. Canutson, lOO III. 82. 
 Power V. Rankin, 114 111. $2. 
 
 3. An agreement made upon consideration 
 
 of marriage. 
 
 This clause does not apply to an agreement con- 
 sisting of mutual promises to marry. In such case 
 the consideration for each promise is not marriage 
 itself, but a mere promise to marry (a). A promise to 
 pay money or a settlement in consideration of, or 
 conditional upon a marriage actually taking place, 
 is within the statute (b). 
 
 (a) Clark v. Pendleton, 20 Conn. 495. 
 Short V. Stotts, 58 Ind. 29. 
 Blackburn v. Mann, 85 111. 222 
 
 (b) Caton V. Caton, L. R. i Oh. App. 137. 
 Flenner v. Flenner, 29 Ind. 564. 
 Henry v. Henry, 27 Ohio St. 121. 
 Lloyd V. B'ulton, 91 U. S. 479. 
 McAnnulty v. McAnnulty, 120 111. 26. 
 
 4. An agreement not to be performed' within 
 the space of one year from the making thereof.'' 
 
 I. This clause applies only to agreements which 
 by their terms are "not to be performed" within the 
 year, and not to agreements which merely may not be 
 performed within that period (a). An agreement which 
 may be fully performed within a year is not within 
 the statute, however improbable it may be that it will 
 be performed within that time (b). Thus, an agree- 
 ment to support a person during his life is not within 
 the statute, because he may die within a year (c). But 
 the possibility of a defeasance by notice or other- 
 
STATUTE OF FRAUDS. 45 
 
 wise does not make it the less a contract not to be 
 performed within the year (d). 
 
 (a) McPherson v. Cox, 96 U. S. 404, 416. 
 Walker v. Johnson, 96 U. S. 424. 
 
 (b) Kent V. Kent, 62 N. Y. 560, 564. 
 Peters v. Westborough, 19 Pick. 364. 
 Fraser v. Gates, 118 111. 99. 
 
 (c) Heath v. Heath, 31 Wis. 223, 229. 
 McGregor v. McGregor, 21 Q. B. D. 424. 
 And see Birks v. Gillett, 13 111. App. 369, 375. 
 
 (d) Packet Co. v. Sickles, 5 Wal. 580, 595. 
 Dobson V. Collis, i H. & N. 81. 
 
 2. An agreement for a lease for a year to com- 
 mence at a future time is within this clause of the 
 statute. 
 
 Olt V. Lohnas, 19 111. 576. 
 Comstock V. Ward, 22 111. 248, 
 Wheeler v. Frankenthal, 78 111. 124. 
 
 So is an agreement for service for a period of 
 more than a year. But if the statute is pleaded by 
 the employer, where he has discharged the employee 
 without cause, after part performance, the latter can 
 recover the value thereof in an action upon an im- 
 plied assumpsit. 
 
 Wm. B. Steel Works v. Atkinson, 68 111. 421. 
 Williams v. Bemis, 108 Mass. 91. 
 Day V. R. R. Co., 51 N. Y. p. 590. 
 
 Explanation. — An agreement is not within 
 this clause of tlie statute if everything that is 
 to be done under it is to be done within the 
 year except the mere payment of money. 
 
40 FORMATION OF CONTRACT. 
 
 Curtis V. Sage, 35 111. 22, 39. 
 ■Worden v. Sharp, 56 111. 104. 
 
 5. A contract for the sale of lands, tene- 
 ments, or hereditaments,' or any interest in or 
 concerning- them,' for a longer. term than one 
 year;' and such contract, if made by an agent 
 of the party sought to be charged, is not en- 
 forceable at law, unless the authority of the 
 agent is in writing, signed by such party.-* 
 
 1. The words "lands, tenements, and heredita- 
 ments " are used in contra-distinction to the words 
 "goods and chattels." They denote the subjects of 
 Real as distinguished from Personal Property. 
 
 2. Growing crops of annual culture being raised 
 by the industry of man (^fructus industriales) are 
 regarded, for most purposes, as chattel interests, and 
 a contract for the sale of any such crop is not within 
 the statute. 
 
 Evans v. Roberts, 5 B. & C. 829. 
 Jones V. Flint, 10 Ad. & E. 753. 
 Whipple V. Foot, 2 Johns. 418. 
 Ross V. Welch, 11 Gray, 235., 
 Bull V. Griswold, 19 111. 631. 
 Graff V. Fitch, 58 111. 373. 
 Northern v. State, i Ind. 113. 
 Marshall v. Ferguson, 23 Cal. 65. 
 
 But such natural growths of the soil as growing 
 trees {Jrucius naturales) constitute a part of the soil, 
 and a contract for the sale of any such growth which 
 contemplates the passing of the property therein 
 
STA TUTE OF FRA (IDS. 47 
 
 before it is severed from the soil, is a contract for the 
 sale of an interest in land. 
 
 Green v. Armstrong, i Denio, 550. 
 Smith V. Surman, 9 B. & C. 561. 
 Killmore v. Ilowlett, 48 N. Y. 569. 
 Slocum V. Seymour, 36 N. J. L. 138. 
 Pattison's Appeal, 61 Pa. St. 294. 
 McClintock's Appeal, 71. Pa. St. 365. 
 See Giles v. Simonds, 15 Gray, 441. 
 White V. Foster, 102 Mass. p, 378. 
 Marshall v. Green, i C. P. D. 35. 
 
 3. A contract for a lease of land for a longer 
 term than one year is within the statute. 
 
 Warner v. Hale, 65 111. 395. 
 Creighton v. Sanders, 89 111. 543. 
 
 4. R. S. Ch. 59 § 2. 
 
 Explanation i. — The statute does not apply 
 to sales upon execution or by any officer or 
 person pursuant to a decree or order of any 
 court of record in this State. 
 
 R. S. Ch. 59 § 2. 
 
 Explanation 2. — A court of equity will de- 
 cree a specific performance of a contract within 
 this provision of the statute where there have 
 been such acts of performance by the party 
 asking relief that he would suffer an injury 
 amounting-.to a fraud if the other party should 
 not perform his part of the contract;' as where 
 possession has been taken in pursuance of a 
 
48 FORMATION OF CONTRACT. 
 
 parol contract'' for the sale of land and the pur- 
 chaser has paid the purchase money, ^ or made 
 valuable and permanent improvements on the 
 land." 
 
 1. Wallace v. Rappleye, 103 111. p. 252. 
 Clark V. Clark, 122 111. p. 393 
 
 Caton V. Caton, L. R., I Ch. App. p. 147. 
 Purcell V. Miner, 4. Wal. p. 518. 
 
 In such cases the court, having general jurisdic- 
 tion to relieve against frauds, applies the remedy by 
 enforcing the contract, not because the contract, as 
 such, is binding on the parties, but because the en- 
 forcement thereof, is the most effectual way to pre- 
 vent the perpetration of a fraud. 
 
 Jacobs V. R. R. Co., 8 Cush. p. 225. 
 Wheeler v. Reynolds, 66 N. Y. p. 237. 
 
 2. It must appear that the possession was under 
 and in part performance of the contract. 
 
 Wood V. Thornly, 58 111. 464, 469. 
 Pickerell v. Morss, 97 111. 220, 224. 
 Kaufman V. Cook, 114 111. 11. 
 Clark V. Clark, 122 111. 388. 
 Mahana v. Blunt, 20 Iowa, 142. 
 Parcel! v. Miner, 4 Wal. 513. 
 Jacobs V. R. R. Co., 8 Cush. 224. 
 Miller v Ball, 64 N. Y. 292. 
 
 3. Jamison v. Dimock, 95 Pa. St. 52, 56. 
 Ramsey v. Liston, 25 111. 114. 
 Fitzsimmons v. Allen, 39 111. 440. 
 
 Mere possession is not, of itself, sufficient part 
 performance to justify a decree for specific perform- 
 ance. 
 
STATUTE OF FRAUDS. 49 
 
 Glass V. Hulbert, 102 Mass. 32. 
 Ann Berta Lodge v. Leverton, 42 Tex. 26. 
 Miller v. Ball, 64 N. Y. p. 292. 
 Galbreath v. Galbreath, 5 Watts, p. 150. 
 Moore v. Small, 19 Pa. St. p. 467. 
 Dougan v. Blocher, 24 Pa. St. p. 34. 
 
 Nor is mere payment of the purchase money. 
 
 Temple v. Johnson, 71 111. 13, 16. 
 Gorham v. Dodge, 122 111. 528. 
 Cronk v. Trumble, 66 HI. 428. 
 Horn V. Ludington, 32 Wis. 73. 
 Purcell V. Miner, 4 Wal. 513. 
 Glass V. Hulbert, 102 Mass. 28. 
 
 4. Blunt V. Tomlin, 27 111. 93, loi. 
 
 Moreland v. Lemasters, 4 Blackf. 383, 385. 
 Potter V. Jacobs, III Mass. 32. 
 Hibbert v. Aylott, 52 Tex. 530. 
 
 The same relief will be afforded in the case of a 
 parol gift of land where the donee on the faith of the 
 gift has taken possession and made valuable and 
 permanent improvements. 
 
 Kurtz V. Hibner, 55 111. 514, 521. 
 Irwin V. Dyke, 114 111. 302, 306. 
 Lobdell V. Lobdell, 36 N. Y. 327. 
 Freeman V. Freeman, 43 N. Y. 34. 
 Sower V. Weaver, 84 Pa. St. 262. 
 Neale v. Neales, 9 Wal. i. 
 
 The 17th section of the English statute (29 Car. 
 II. c. 3) is in the following language: 
 
 " No contract for the sale of any goods, wares, or 
 merchandises, for the price of ten pounds sterling, 
 or upwards, shall be allowed to be good, except the 
 buyer shall accept part of the goods so sold, and 
 actually receive the same, or give something in earnest 
 
so FORMATION OF CONTRACT. 
 
 to bind the bargain, or in part payment, or that some 
 note or memorandum in writing of the said bargain 
 be made, and signed by the parties to be charged by 
 such contract, or their agents thereunto lawfully 
 authorized." 
 
 This section has been adopted, with slight modi- 
 fications, in several of the States, but has never been 
 in force in Illinois. 
 
 Rhea v. Riner, 21 111. 531. 
 Barrow v. Window, 71 111. 218. 
 
CHAPTER IV. 
 CAPACITY OF PARTIES. 
 
 The following persons are incapable wholly or 
 partially of binding themselves by contract: 
 Minors. 
 
 Persons of unsound mind. 
 Drunken persons. 
 Persons under conservators. 
 Corporations. 
 
 MINORS. 
 At common law, all persons under the age of 
 twenty-one years are minors. 
 
 In Illinois, males under the age of twenty- 
 one years, and females under the age of eight- 
 een years are minors. 
 
 R. S. Ch. 64, § I. 
 
 In law language minors are commonly called 
 infants. 
 
 A minor cannot delegate an authority which 
 can only be exercised by virtue of a power of 
 attorney. 
 
52 FORMATION OF CONTRACT. 
 
 The appointment of an attorney by a minor to 
 convey real property (a), or to confess a judgment 
 (b), is absolutely void (c). 
 
 (a) Lawrence v. McArter, lo Ohio, 37. 
 
 (b) Bennett v. Davis, 6 Cow. 393. 
 Knox V. Flack, 22 Pa. St. 337. 
 
 (c) Cole V. Pennoyer, 14 111. p. 159. 
 Dexter v. Hall, 15 Wal. p. 26. 
 
 But it seems that authority from a minor to make 
 or indorse a promissory note is only voidable. 
 
 Whitney v. Dutch, 14 Mass. 463. 
 Hardy v. Waters, 38 Me. 451. 
 Hastings v. DoUarhide, 24 Cal. 208. 
 
 The contract of a minor, unless made for 
 necessaries, or under the authority or direction 
 of a statute' is voidable in his favor.^ 
 
 1. A contract of enlistment into the army (a), 
 or a bastardy bond (b), is binding. 
 
 (a) In Re Higgins, 16 Wis. 351. 
 
 (b) People V. Moores, 4 Denio, 518. 
 McCall V. Parker, 13 Met. 372. 
 
 2. Cole V. Pennoyer, 14 111. 158, 160. 
 Harner V. Dipple, 31 Ohio St. 72, 77. 
 Tucker v. Moreland, 10 Pet. 58, 71. 
 Reed v. Batchelder, I Met. 559. 
 Bool V. Mix, 17 Wend. 131. 
 Beardsley vs. Hotchkiss, 96 N. Y. 211. 
 
 Such contract is binding on the adult until 
 avoided on the part of the minor. 
 
MINORS. S3 
 
 Thompson v. Hamilton, 12 Pick. 425, 429. 
 Field V. Herrick, 101 111. no. 
 
 Thus a minor can maintain an action against an 
 adult for his breach of a promise to marry the minor. 
 Holt V. Ward, 2 Sira. 937. 
 
 But it has been held that a court of equity will 
 not decree specific performance of a contract in favor 
 of a minor, because the remedy is not mutual. 
 Flight V. Bolland, 4 Russ. 298. 
 
 A person not a party to such contract cannot 
 take advantage of the minority. 
 
 Thus the maker of a promissory note cannot 
 avoid payment to an indorsee on the ground that the 
 indorser is a minor. 
 
 Nightingale v. Withington, 15 Mass. 272. 
 
 See also Kendall v. Lawrence, 22 Pick. 540, 543. 
 
 Beardsley v. Hotchkiss, 96 N Y., 201, 211. 
 
 But an auctioneer is not bound to accept the bid 
 of a minor. 
 
 Kinney v. Showdy, i Hill, 544. 
 
 In case of the minor's death, insanity, or 
 other disability rendering him incapable of 
 exercising the right of election, such contract 
 may be avoided or confirmed by his heirs,' 
 personal representative,'' or conservator.^ 
 
 I. Illinois Land Co. v. Bonnei', 75 111. 315. 
 Veal V. Fortson, 57 Tex. 487. 
 
54 FORMATION OF CONTRACT. 
 
 2. Parsons v. Hill, 8 Mo. 135. 
 
 Jefford V. Ringgold, 6 Ala. (N. S.) 547. 
 
 3. Chandler v. Simmons, 97 Mass. 508. 
 
 The guardian of a minor cannot avoid or confirm 
 his ward's contracts, for the reason that the election,, 
 whether to avoid or confirm, is reserved to the minor 
 until he comes of age, and a previous determination 
 of his right by the guardian would be inconsistent 
 with such a privilege in the ward. 
 
 Chandlery. Simmons, 97 Mass. p. 511. 
 Oliver v. Houdlet, 13 Mass. 240. 
 
 Such contract may be avoided by the minor 
 either 
 
 1- During minority,' or 
 
 2- Before ratification after attaining major- 
 ity/ 
 
 I. This is the settled rule as to sales and exchanges 
 of personal property (a) and contracts for ser- 
 vices (b). 
 
 (a) Shipman v. Horton, 17 Conn. 481. 
 Carr v. Clough, 26 N. H. 280. 
 Chapin v. Shafer, 49 N. Y. 407. 
 Towle V. Dresser, 73 Me.' 252. 
 
 (b) Ray v^ Haines, 52 111. 485. 
 Vent V. Osgood, 19 Pick. 572. 
 
 And though it is said that a minor cannot con- 
 clusively disafifirm his conveyance of real property 
 until he comes of age, yet he hiay enter and take the 
 profits in the meantime. 
 
 Bool V. Mix, 17 Wend. p. 132. 
 
 Chandler v. Simmons, 97 Mass. p. 511. 
 
MINORS. 
 
 55 
 
 The doctrine of estoppel in pais is not applicable 
 to a minor. He may avoid his contract even if he 
 falsely represents himself as of full age. To allow a 
 minor to give full efficacy to his contract by a mere 
 representation would be a manifest infringement upon 
 the policy of the law adopted for his protection. 
 
 Merriam v. Cunningham, n Cush. 40. 
 
 Wieland v. Kobick, no 111. 16. 
 
 Sims V. Everhardt, 102 U. S. 300. 
 
 Conrad v. Lane, 26 Minn. 389. 
 
 2. Dixon V. Meiritt, 21 Minn. 196, 200. 
 Mustard v. Wohlford, 15 Gratt. 329. 
 Walker v. Ellis, 12 111. 470. 
 Chapin v. Shafer, 49 N. Y. 407. 
 
 Such contract may be confirmed by the 
 minor after attaining majority. 
 
 1- By express ratification.' 
 
 2- By acts which clearly evince an intention 
 to confirm the contract.'' 
 
 ^ 3- By omission to disaffirm the contract within 
 a reasonable time where such omission is pre- 
 .judicial to the interests of the other party,^ or 
 within the statutory period of limitation.* 
 
 I. Where a new promise is relied upon as a ratifi- 
 cation it must be made to the other party or his 
 agent (a), and a mere acknowledgment is not suffi- 
 cient (b); there must be a direct promise or the lan- 
 guage used must show a willingness and intention to 
 fulfill the contract (c). 
 
 (a) Goodsell v. Myers, 3 Wend. 479 
 Bigelow V. Grannis, 2 Hill, 120. 
 
56 FORMATION OF CONTRACT. 
 
 (b) Ford V. Phillips, i Pick. 202. 
 Hale V. Gerrish, 8 N. H. 374. 
 
 (c) Whitney v. Dutch, 14 Mass. 460. 
 
 See also Keener v. CruU, 19 111. p. 191. 
 Carroll v. Forsyth, 69 111. p. 131. 
 
 If the new promise is conditional it must be 
 shown that the condition has been fulfilled. 
 
 Everson v. Carpenter, 17 Wend. 419. 
 
 Thompson v. Lay, 4 Pick. 48. ' 
 
 Proctor V. Sears, 4 Allen, 95. 
 
 2. A confirmation has been implied, in cases of 
 property bought, from the minor's retaining the pos- 
 session and use of the property beyond a reasonable 
 time (a), or from his selling or otherwise converting 
 it to his use (b), and, in cases of property sold, 
 from his receiving or sueing for the purchase money 
 or other consideration (c). 
 
 (a) Boyden v. Boyden, 9 Met. 519. 
 
 (b) Boody v. McKenney, 23 Me. 517. 
 ' Henry v. Root, 33 N. Y. 551. 
 
 (c) Morrill v. Aden, 19 Vt. 505. 
 
 3. The minor's acquiescence in his deed for years 
 after reaching his majority in view of valuable im- 
 provements made upon the land would amount to a 
 confirmation. 
 
 Irvine v. Irvine, 9 Wal. 617, 628. 
 Wheaton v. East, 5 Yerg. 41, 62. 
 Wallace v. Lewis, 4 Hafring. 75. 
 Davis V. Dudley, 70 Me. 236. 
 Prout V. Wiley, 28 Mich. 164. 
 Sims V. Everhardt, 102 U. S. 312. 
 
MINORS. 57 
 
 4. As to the period within which a minor after 
 arriving at age may disaffirm a conveyance of land 
 in Illinois, see 
 
 Blankenship v. Stout, 25 111. 132. 
 Keil V. Healey, 84 111. 104. 
 Tunison v. Chamblin, 88 HI. 378. 
 Compare R. S. Ch. 83, § 9. 
 
 If a minor avoids a contract on which he has 
 received money or property he is bound to 
 restore it if it is in his power to do so. 
 
 Price V. Furman, 27 Vt. 268. 
 Brandon v. Brown, 106 111. 519, 527. 
 
 Where he has during minority wasted or squan- 
 dered it, he is not required to return an equivalent. 
 If it were so, the privilege would fail to protect him 
 when most needed. It is to guard against the im- 
 providence which is incident to his immaturity that 
 this privilege is allowed. 
 
 Chandler v. Simmons, 97 Mass. 508, 514. 
 
 Green v. Green, 69 N. Y. 553, 556. 
 
 Reynolds V. McCurry, 100 111. 356, 361. 
 
 Where services have been performed by a 
 minor in partial or entire execution of an 
 express contract, and he avoids it, he may 
 recover on an implied promise, the value of 
 the services rendered. 
 
 Gaffney v. Hayden, no Mass. 137. 
 Whitmarsh v. Hall, 3 Denio, 375. 
 Derocher V. Continental Mills, 58 Mc. 217. 
 Vehue v. Pinkham, 60 Me. 142. 
 Ray V. Haines, 52 111. 485. 
 
S8 FORMATION OF CONTRACT. 
 
 A minor may bind himself to pay the reason- 
 able value of necessaries supplied to him. 
 
 Beeler V. Young, I Bibb, 519. 
 Parsons v. Keys, 43 Tex. 557. 
 Earle v. Reed, 10 Met. 387. 
 Johnston y. Maples, 49 111. p. 104. 
 
 And he is Jiable for money paid at his request for 
 necessaries. 
 
 Randall v. Sweet, l Denio, 460. 
 Swift V. Bennett, 10 Cush. 436. 
 Price V. Sanders, 60 Ind. 315. 
 
 Explanation i. — The term ' ' necessaries " 
 includes all such articles, uses, and services' as 
 are reasonably necessary^ to supply the per- 
 sonal^ wants'* of a person in the circumstances 
 and condition of life of the minor.^ 
 
 1. Such as food, clothing, lodging, medical attend- 
 ance, instruction, and the like. 
 
 Tupper V. Cadwell, 12 Met. p. 562. 
 McKanna v. Merry, 61 111. p. 179. 
 
 2. They must be suitable in quality and quantity. 
 
 Burghart v. Angerstein, 6 Car. & P. 690. 
 Johnson v. Lines, 6 W. & S. 80. 
 
 3. Necessaries concern the person and not the 
 estate. The term does not include articles necessary 
 to carry on business. 
 
 House V. Alexander, 105 Ind. log, no. 
 Mason v. Wright, 13 Met. 306. 
 Decell V. Lewenthal, 57 Miss. 331. 
 Pyne v. Wood, 145 Mass. 558. 
 
PERSONS OF UNSOUND MIND. 59 
 
 It includes professional services of an attorney 
 if they are necessary for the personal relief and pro- 
 tection of the minor. 
 
 Munson v. Washband, 31 Conn. 303. 
 Barker v. Hibbard, 54 N. H. 539. 
 
 4. A minor cannot bind himself for what are 
 prima facie necessaries where his wants are already 
 supplied, or he has a parent or guardian able and 
 willing to provide for him. 
 
 Davis V. Caldwell, 12 Cush. 512. 
 Hoyt V. Casey, 114 Mass. 399. 
 Barnes v. Toye, 13 Q. B. D. 410. 
 Johnstone v. Marks, 19 Q. B. D. 509. 
 Wailing v. Toll, 9 Johns. 141. 
 Kline v. L'Amoreux, 2 Paige, 419, 420. 
 McKanna v. Merry, 61 111. 177, 180. 
 
 5. Peters v. Fleming, 6 M. & W. 42. 
 Davis V. Caldwell, 12 Cush. 512. 
 McKanna v. Merry, 6l 111. 177. 
 Ryder v. Wombwell, L. R. 4 Ex. 32. 
 
 Explanation 2. — Necessaries for the wife and 
 children of a minor are treated as necessaries 
 for himself. 
 
 Cantine v. Phillips, 5 Ilarring. 428. 
 Chappie v. Cooper, 13 M. & W. p. 259. 
 Tupper v. Caldwell, 12 Met. p. 562. 
 People V. Moores, 4 Denio, p. 520. 
 Price v. Sanders, 60 Ind. 315. 
 
 PERSONS OF UNSOUND MIND. 
 
 A contract, other than for necessaries, made 
 by a person who is of such unsound mind as 
 
6o FORMATION OF CONTRACT. 
 
 to be incapable of understanding its nature 
 and effect' is voidable in his favor,'' 
 
 Qualification, — When such person is not 
 under a conservator and is apparently of sound 
 mind, and the other contracting party has no 
 reasonable cause to believe otherwise,^ the con- 
 tract cannot be avoided, if it is fair and has 
 been so far performed that the other party 
 cannot be restored to his former position."* 
 
 1. Dennett v. Dennett, 44 N. H. 531, 537. 
 Lilly V. Waggoner, 27 III. 396. 
 Baldwin v. Dunton, 40 111. 188. 
 Titcomb v. Vantyle, 84 111. 371. 
 English V. Porter, 109 111. 285. 
 
 2. Allis V. Billings, 6 Met. 415, 417. 
 
 Arnold v. Richmond Iron Works, I Gray, 434. 
 Ingraham v. Baldwin, 9 N. Y. 45. 
 Allen V. Berryhill, 27 Iowa, 534. 
 Eaton V. Eaton, 37 N. J. L. 108. 
 Burnham v. Kidwell, 1 13 111. 425. 
 
 The contract is voidable in favor of the person of 
 unsound mind although he has brought on that con- 
 dition by habitual drunkenness. 
 
 Menkins v. Lightner, 18 111. 282. 
 Bliss V. R. R. Co., 24 Vt. 424. 
 
 3. Lincoln v. Buckmaster, 32 Vt. 652. 
 Mathiessen &c. Co. v. McMahon, 38 N. J. L. 536. 
 
 4. Young V. Stevens, 48 N. H. 133. 
 Lancaster Co. Bank v. Moore, 78 Pa. St. 407. 
 Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541. 
 Fay V. Burditt, 81 Ind. 433. 
 
 Gribben vs. Maxwell, .34 Kan. 8. 
 
DRUNKEN PERSONS. 6i 
 
 Scanlan v. Cobb, 85 111. 296. 
 McConnick v. Littler, 85 111. 62. 
 
 A person of unsound mind may bind him- 
 self for necessaries the same as a minor. 
 
 Baxter v. Portsmouth, 5 B. & C. 170. 
 La Rue v. Gilkyson, 4 Pa. St. 375. 
 Read v. Legard, 6 Exch. 636. 
 Shaw V. Thompson, i5 Pick. p. 200. 
 Ingraham v. Baldwin, 9 N. Y. p. 48. 
 
 Even though he is under a conservator. 
 
 Sawyer v. Lufkin, 56 Me. 308. 
 McCrillis v. Bartlett, 8 N. H. 569. 
 Fruitt V. Anderson, 12 111. App. 421. 
 
 No insane person or idiot is capable of con- 
 tracting marriage. 
 
 R. S., Ch. 89, § 2. 
 
 A contract made with a lunatic in a lucid 
 interval is binding. 
 
 Hall V. Warren, 9 Ves. 605. 
 Lilly V. Waggoner, 27 111. 395. 
 McCormick v. Littler, 85 111. 62. 
 
 DRUNKEN PERSONS. 
 
 A contract, other than for necessaries, made 
 by a person who is so drunk as to be incapable 
 of understanding its nature and effect is void- 
 able in his favor. 
 
 Gore V. Gibson, 13 M. & W. 623. 
 
62 FORMATION OF CONTRACT. 
 
 Matthews v. Baxter, L. R. 8 Ex. 132. 
 Johns V. Fritchey, 39 Md. 258. 
 Shackelton v. Sebree, 86 111. 616. 
 Bates V. Ball, 72 111. 108. 
 
 A less degree of drunkenness which only darkens 
 the reason, does not render the contract voidable, 
 unless the circumstances justify the inference that it 
 was obtained by fraud or circunjvention. 
 
 Van Horn v. Keenan, 28 111. 445, 448. 
 
 Murray v. Carlin, 67 111. 286. 
 
 Willcox V. Jackson, 51 Iowa, 208. 
 
 A drunken person may bind himself for 
 necessaries the same as a minor. 
 
 Gore V. Gibson, 13 M. & W. pp. 626, 627. 
 
 PERSONS UNDER CONSERVATORS. 
 The Statute of Illinois provides as follows; 
 
 Whenever any idiot, lunatic or distracted 
 person has any estate, real or personal; or 
 when any person, by excessive drinking, gam- 
 ing, idleness or debauchery of any kind, so 
 spends, wastes or lessens his estate as to ex- 
 pose himself or his family to want or sufifering, 
 or any county, town or incorporated city, town 
 or village to any charge or expense for the 
 support of himself or his family, the county 
 court of the county in which such person lives 
 shall, on the application of any relative or 
 creditor, or if there be neither relative or cred- 
 
FERSONS UNDER <:ONSERVATORS. 63 
 
 itor, then any person living in such county, 
 order a jury to be summoned to ascertain 
 whether such person be idiot, kinatic or dis- 
 tracted, a drunkard or such spendthrift; and 
 if the jury return in their verdict that such 
 person is idiot, lunatic or distracted, or drunk- 
 ard, or so spends, wastes or lessens his estate, 
 it shall be the duty of the court to appoint some 
 fit person to be the conservator of such person. 
 
 Every note, bill, bond or other contract by an 
 idiot, lunatic, distracted person or spendthrift, 
 made after the finding of the jury, shall be 
 void as against the idiot, lunatic, distracted 
 person, drunkard or spendthrift, and his estate; 
 but the person making any contract with such 
 idiot, lunatic, distracted person or spendthrift 
 shall be bound thereby. 
 
 Every contract made with an idiot, lunatic 
 or distracted person before such finding, or 
 with a drunkard or spendthrift after the appli- 
 cation for the appointment of a conservator, 
 may be avoided, except in favor of the person 
 fraudulently making the same. 
 R. s. Ch. 86, §§ I, 14, 15. 
 
 This statute does not apply to implied contracts 
 or liabilities for necessaries. 
 
 McCrillis v. Bartlett, 8 N. H. 569. 
 Sawyer v. Lufkin, 56 Me. 308. 
 
64 FORMATION OF CONTRACT. 
 
 CORPORATIONS. 
 
 A corporation is an artificial person created 
 by the law, and has the capacity to make con- 
 tracts within the scope of the powers conferred 
 upon it by the act of incorporation. 
 
 Louisville. R. R. Co. v. Letson, 2 How. 558. 
 Thomas V. R. R. Co., loi U. S. 82. 
 Davis V. R. R. Co., 131 Mass. 259. 
 Metropolitan Bank v. Godfrey, 23 111. 602. 
 Fietsam v. Hay, 122 III. 295. 
 
 A contract is within the scope of the powers 
 of a corporation when it is necessary or rea- 
 sonably incidental to the accomplishment of the 
 objects for which the corporation was created, 
 and is not expressly prohibited. 
 
 Brown v. Winnisimmet Co., 11 Allen, 334. 
 Curtis v. Leavitt, 15 N. Y 64. 
 West v. Madison Co. Ag'l Board, 82 111. 207. 
 Chicago &c. Co. v. Gaslight Co., 121 111. 546. 
 
 Although a contract entered into by a cor- 
 poration may not be within the scope of the 
 powers conferred upon it,' yet if the contract 
 has been performed by the other contracting 
 party, and the corporation has actually received 
 benefit therefrom in money, property, or ser- 
 vices^ it will not be allowed to evade payment 
 therefor on the ground that it was not empow- 
 ered to make the contract.^ 
 
CORPORATIONS. 65 
 
 1. In such case the contract is said to be ultra 
 vires. 
 
 2. MorviUe v. Tract Society, 123 Mass. 129, 138. 
 Whitney Arms Co. v. Barlow, 63 N. Y. 70. 
 Madison Av. Ch. v. Oliver St. Ch., 73 N. Y. 90. 
 Rider Life Raft Co. v. Roach, 97 N. Y. 381. 
 Parkersburg v. Brown, 106 U. S. 503. 
 Chapman v. County of Douglas, 107 U. S. 357. 
 Slater Woollen Co. v. Lamb, 143 Mass. 422. 
 
 3. Bradley v. Ballard, SS 111- 4i3- 
 Darst V. Gale, 83 111. 136. 
 
 E. St. Louis V. E. St. Louis &c. Co., 98 111. 415. 
 P. & S. R. R. Co. V. Thompson, 103 111. 187. 
 Brown v. Mortgage Co., no 111. 235. 
 
 Unless restricted as to the mode of contract- 
 ing, a corporation can make any contract within 
 the scope of its powers in the same manner as 
 a natural person would under the like circum- 
 stances. 
 
 Bank of Columbia v, Patterson, 7 Cranch, 306. 
 Moss. V. Averell, to N. Y. 454. 
 Peterson v. Mayor &c. of New York, 17 N. Y. 453. 
 Proprietors of Bridge v. Gordon, i Pick. 304. 
 Board of Education v. Greenebaum, 39 111. 6l2. 
 Racine &c. Co. v. Farmers &c. Co., 49 111. 331. 
 New Athens v. Thomas, 82 111. 259. 
 
 It may be liable even on a contract implied by 
 law. 
 
 Seagraves V. Alton, 13 111. 366, 371. 
 Trustees v. Ogden, $ Ohio, 23, 26. 
 
CHAPTER V. 
 REALITY OF CONSENT. 
 
 It is essential to an absolutely binding con- 
 tract that the consent expressed by offer and 
 acceptance should be real. 
 
 Apparent consent is not real when it is 
 caused by such 
 
 Mistake, 
 
 Misrepresentation, 
 
 Fraud, 
 
 Duress, or 
 
 Undue Influence, 
 as is hereafter described. 
 
 Consent is so caused when it would not have 
 been given but for the existence of the mis- 
 take, misrepresentation, fraud, duress, or undue 
 influence; and in such case the contract m.ay 
 be avoided by the innocent party. 
 
 In many of the cases under this rule the innocent 
 party may avoid the contract either at law or in 
 equity, but in some of them his sole remedy is in equity. 
 
MISTAKE. 67 
 
 He must rescind the contract or seek the relief 
 within a reasonable time after knowledge of the mis- 
 take (a), misrepresentation, or fraud (b) has been or 
 ought to have been obtained, or after the discontinu- 
 ance of the duress (c) or undue influence (d). 
 
 (a) Grymes v. Sanders, 93 U. S. 55, 61. 
 Diman v. R. R. Co., 5 R. I. 130. 
 Thomas v. Bartow, 48 N. Y. 193. 
 Dodge V. Ins. Co., 12 Gray, 71- 
 
 (b) Rogers v. Higgins, 57 111. 244. 
 Hall V. Fullerton, 69 111. 448. 
 Clapp V. Peterson, 104 111. 26, 34. 
 Jones V. Lloyd, 1 17 111. 597. 
 Bassett v. Brown, 105 Mass. 551, 556. 
 Nealon v. Henry, 131 Mass. 153, 155. 
 Schiffer v. Dietz, 83 N. Y. 300. 
 Baird v. Mayor, 96 N. Y. 567. 
 Baker v. Lever, 67 N. Y. 304, 308. 
 Pence v. Langdon, 99 U. S. 578, 581. 
 
 (c) Haldane v. Sweet, 55 Mich. 196. 
 Sims V. Everhardt, 102 U. S. p. 311. 
 
 (d) Turner v. Collins, L. R. 7 Ch. 329, 340. 
 Moxon V. Payne, L. R. 8 Ch. 881, 885. 
 Kempson v. Ashbee, L. R. 10 Ch. 15. 
 Jenkins v. Pye, 12 Pet. 241, 261. 
 Wills V. Wood, 28 Kan. 400. 
 McCormick v. Malin, 5 Blackf. 509, 532. 
 Marston v. Simpson, 54 Cal. 189. 
 
 MISTAKE. 
 
 Mistake is a ground for avoiding a contract 
 when it is 
 
 I- Mistake as to the nature of the. trans- 
 action' in the absence of negligence operating 
 as an estoppel.^ 
 
68 FORMATION OF CONTRACT. 
 
 2. Mistake as to the person with whom the 
 contract is made.^ 
 
 3- Mistake as to the existence of the subject- 
 matter of the contract, ■* or 
 
 4- Mistake as to the identity of the subject- 
 matter of the contract.' 
 
 1. Where a person unable to read is misinformed 
 as to the contents of an instrument and thereby is in- 
 duced to sign it under the belief that it is an instru- 
 ment of an entirely different nature, he may avoid 
 the instrument. 
 
 R. R. Co. V. Shunick, 65 111. 223. 
 Schaper v. Schaper, 84 III. 603. 
 Vanbrunt v. Slngley, 85 111. 281. 
 Trambly v. Ricard, 130 Mass. 259. 
 
 2. Where a person able to read executes a deed, 
 supposing it to be a lease, without reading the same, 
 and thereby enables his grantee to sell the property 
 to an innocent purchaser for value, he is bound by 
 the deed. 
 
 Gavagan v. Bryant, 83 111. 376. 
 See also Leach v. Nichols, 55 111. 273. 
 Chapman v. Rose, 56 N. Y. 137. 
 Upton V. Tribilcock, 91 U. S. 50. 
 
 3. Where A sends an order for goods to B, or 
 makes any other proposal to B, C cannot make him- 
 self a party to the contract, without the knowledge 
 of A, by supplying the goods or otherwise accepting 
 the proposal in the place of B. A may have a set-off 
 against B, and in any case he has a right to the 
 benefit he may contemplate from the character, 
 credit, and substance of B. 
 
MISTAKE. 69 
 
 Boulton V. Jones, 2 H. & N. 564. 
 Boston Ice Co. v. Potter, 123 Mass. 28. 
 Randolph Iron Co. v. Elliott, 34 N. J. L. 184. 
 
 4. Where A agrees to sell to B a certain horse 
 which, unknown to the parties, is dead at the time of 
 their making the agreement, there is no binding con- 
 tract. 
 
 Bradford v. Chicago, 25 111. p. 423. 
 Allen V. Hammond, 11 Pet. p. 71. 
 Thompson v. Gould, 20 Pick. p. 139. 
 See also Gibson v. Pelkie, 37 Mich. 380. 
 Anderson v. Armstead, 69 111. 452. 
 
 5. Where A agreed to purchase from B a lot on 
 Prospect street and there were two streets of that 
 name in the town, and A meant a lot on one of these 
 streets and B a lot on the other, it was held that there 
 was no mutual agreement. 
 
 Kyle V. Kavanagh, 103 Mass. 356. 
 See also Harvey v. Harris, 112 Mass. 32. 
 Cutts V. Guild, 57 N. Y. 229. 
 Rupley V. Daggett, 74 111. 351. 
 
 A contract cannot be avoided on the ground 
 of a mistake as to any law in force in this State. 
 
 This includes a mistake as to the legal effect of 
 the terms of a contract (a), but not a mistake in 
 drawing up a contract (b). 
 
 (a) Hunt V. Rousmaniere, i Pet. t. 
 
 Bank v. Daniel, 12 Pet. 32. 
 
 Gordere v. Downing, 18 111. 492. 
 
 Wood V. Price, 46 111. 439. 
 
 Seymour v. Mackay, 126 111. 351. 
 
 Rice V. Dwight M'f g Co., 2 Cush. 80. 
 
 Dodge V. Ins. Co., 12 Gray, 72. 
 
70 FORMATION OF CONTRACT. 
 
 (b) Canedy v. Marcy, 13 Gray, 373. 
 Pitcher v. Hennessey, 48 N. Y. 415. 
 Snell V. Ins. Co., 98 U. S. 85. 
 Broadwell v. Broadwell, I Gilm. p. 605. 
 Shafer v. Davis, 13 111. p. 397. 
 Sibert v. McAvoy, 15 111. p. 109. 
 Mills V. Lockwood, 42 111. ill, 117. 
 
 As a matter of necessity, all persons are conclu- 
 sively presumed to know and act in view of the law 
 of the land. The maxim is that ignorance of the 
 law excuses no one. 
 
 Goltra V. Sanasack, 53 111. p. 458. 
 Upton V. Tribilcock, 91 U. S. p. 51. 
 
 But this maxim has no application to any foreign 
 law. Such law is to be proved and treated as a mat- 
 ter of fact. 
 
 Haven v. Foster, 9 Pick. 112. 
 
 Bank of Chillicothe v. Dodge, 8 Barb. 233. 
 
 Stedman v. Davis, 93 N. Y. 32. 
 
 Chumasero v. Gilbert, 24 111. 293. 
 
 M. & St. P. Ry. Co. V. Smith, 74 111. 197. 
 
 MISREPRESENTATION. 
 
 Misrepresentation, as distinguished from 
 fraud, is a ground for avoiding a contract when 
 it consists in a statement or non-disclosure of 
 the following character by one of the parties 
 reasonably relied upon by the other and induc- 
 ing him to enter into the contract.' 
 
 I- An untrue statement of a material fact 
 though believed to be true by the one mak- 
 ing it.'' 
 
MISREPRESENTA TION. 7 1 
 
 2- The non-disclosure of a material fact by 
 one under a special obligation to make the dis- 
 closure by reason of the fiduciary nature of the 
 contract,^ or the confidential relation of the 
 parties/ 
 
 1. A party cannot avoid a contract on th§ ground 
 of misrepresentation if he knew that the representa- 
 tion was untrue, or without relying thereon made 
 independent inquiries and acted on information 
 derived from his own investigation. 
 
 Tuck V. Downing, 76 111. 71. 
 Fauntleroy v. Wilcox, 80 111. 477. 
 Slaughter v. Gerson, 13 Wal. 379. 
 
 2. If an untrue statement by a vendor is the cause 
 of a purchase, it is immaterial to the purchaser 
 whether the statement was made innocently or dis- 
 honestly. Its effect as an inducement is the same 
 whatever may have been the motive of the vendor. 
 The purchaser is misled by the statement, and his 
 consent is not real. 
 
 Mitchell V. McDougall, 62 111. 498. 
 Allen V. Hart, 72 111. 104. 
 Smith V. Richards, 13 Pet. 26. 
 Baug-hman v. Gould, 45 Mich. 481. 
 Wickham v. Grant, 28 Kan. 517. 
 Mulvey v. King, 39 Ohio St. 491. 
 
 Even assuming that moral fraud must be shown 
 in order to set aside a contract, you have it where a 
 man, having obtained a beneficial contract by a 
 statement which he now knows to be false, insists 
 upon keeping that contract. To do so is a moral 
 
72 FORMATION OF CONTRACT. 
 
 delinquency; no man ought to seek to take advan- 
 tage of his own false statements. 
 
 Redgrave v. Hurd, 20 Ch. D. I, 13. 
 Newbigging v. Adam, 34 Ch. D. 582, 593. 
 
 3. Contracts of a fiduciary nature are said to be 
 uberrimae fidei. Their characteristic is that the sub- 
 ject matter of the contract, or a material part of it, 
 is within the peculiar knowledge of one of the par- 
 ties, and the other must rely to a considerable extent 
 upon the statements made by him. 
 
 The contract of insurance is of this nature. The 
 insurer trusts to the representations of the insured, 
 and proceeds upon the understanding that he has 
 been given all the data necessary to enable him 
 properly to estimate the risk. 
 
 Lycoming Ins. Co. v. Rubin, 79 111. 402, 403. 
 Chicago &c. R. R. Co. v. Thompson, 19 111. 578, 589. 
 McLanahan V. Ins. Co., i Pet. 170, 185. 
 lonides V. Pender, L. R. 9 Q. B. 531, 537. 
 
 It is not, however, the duty of the insured to give 
 information to the insurer, on any fact which the 
 latter may be presumed to know, unless inquired of; 
 but any unusual practice or matter material to the 
 risk must be communicated. 
 
 Clark V. Ins. Co., 8 How. 235. 
 
 4. Full disclosure of material facts is required in 
 contracts between agent and principal, attorney and 
 client, trustee and beneficiary, and the like, where 
 special confidence is reposed. 
 
 Casey V. Casey, 14 111. 112, 114. 
 Norris v. Taylor, 49 111. 17. 
 Zeigler v. Hughes, 55 111. 288. 
 
FKA LTD. 73 
 
 Ward V. Armstrong, 84 111. 151. 
 Reed v. Peterson, 91 111. 288. 
 Brooks V. Martin, 2 Wal. 84. 
 Baker v. Humphrey, loi U. S. 502. 
 
 FRAUD. 
 
 Fraud, considered as a ground for avoiding 
 a contract, consists in any of the following 
 acts, committed by one of the parties or with 
 his connivance,' with intent to induce the other 
 to enter into the contract,^ reasonably relied 
 upon by the latter,^ and actually inducing him 
 to enter into the contract.* 
 
 I- A false representation of a material^ fact^ 
 by one with knowledge of the falsehood or in 
 reckless disregard of what may be the truth.' 
 
 2. The active concealment of a material fact 
 by one with knowledge or belief of the fact.^ 
 
 3- Any other act fitted to deceive.' 
 
 1. Kenner v. Harding, 85 111. 264. 
 Witherwax v. Riddle, 121 111. 140. 
 Adams v. Soule, 33 Vt. 538. 
 
 2. The characteristic of fraud as distinguished 
 from misrepresentation is a dishonest intention to 
 induce a person to enter into a contract by misrepre- 
 sentation, or by such concealment as amounts to 
 distortion of truth, and is equivalent to misrepresen- 
 tation. Such intention will be inferred from a knowl- 
 edge of the falsity of the representation, or where it 
 is recklessly made as of one's own knowledge when 
 the party knows nothing on the subject either way. 
 
74 FORMATION OF CONTRACT. 
 
 Fraud is a tort as well as a ground for avoiding a 
 contract, and will sustain an action ex delicto. 
 
 Misrepresentation without a dishonest intention, 
 as above explained, may be a ground for avoiding a 
 contract (a), but will not sustain the action ex delicto, 
 the action of deceit (b). 
 
 (a) Allen v. Hart, 72 111. 104. 
 
 School Directors v. Boomhour, 83 111. 17. 
 Hicks V. Stevens, 121 III. p. 197. 
 Kennedy v. McKay, 43 N. J. L. 288. 
 Redgrave v. Hurd, 20 Ch. D. I. 
 Newbigging v. Adam, 34 Ch. D. 582. 
 Adam v. Newbigging, 13 App. Cas. 308. 
 
 (b) Merwin v. Arbuckle, 81 111. 501. 
 Johnson v. Beeney, 9 111. App. 64. 
 Holdom V. Ayer, no III. 448. 
 Lord V. Goddard, 13 How. 198. 
 Humphrey v. Merriam, 32 Minn. 197, 
 Cowley V. Smyth, 46 N. J. L. 380. 
 
 3. A party guilty of fraudulent misrepresentation 
 will not be allowed to allege the negligence of another 
 in relying upon it under circumstances justifying 
 belief. 
 
 Linington v. Strong, 107 111. p. 302. 
 Ladd v. Pigott, 114 111. 647. 
 Endsley v. Johns, 120 111. 469. 
 Hicks V. Stevens, 121 111. 186. 
 Mead v. Bunn, 32 N. Y. 275. 
 David v. Park, 103 Mass. 501. 
 
 But the circumstance that the latter had the 
 means of discovering the truth and used them is 
 relevant to show that he relied upon his own judg- 
 ment and not upon the misrepresentation. 
 Fauntleroy v. Wilcox, 80 111. 477. 
 
FRAUD. 73 
 
 Halls V. Thompson, i Sm. & M. 481. 
 Hagee v. Grossman, 31 Ind. 223. 
 Slaughter v. Gerson, 13 Wal. 379. 
 
 4. Hefner v. Vandolah, 57 111. 520. 
 Taylor v. Guest, 58 N. Y. 262. 
 Ming V. Woolfolk, 116 U. S. S99. 
 
 The fraudulent act need not be the sole induce- 
 ment. 
 
 Ruffv. Jarrett, 94 111. 475. 
 Hicks V. Stevens, 121 111. 186. 
 SafFord v. Grout, 120 Mass. 20. 
 Morgan v. Skiddy, 62 N. Y. 319. 
 Peek V. Derry, 37 Ch. D. 541. 
 
 5. A misrepresentation as to an immaterial matter 
 does not constitute fraud in contemplation of law. 
 
 Geddes v. Pennington, 5 Dow, 159. 
 
 6. A misrepresentation as to a matter of law is 
 not sufficient. 
 
 Fish V. Cleland, 33 111. 238. 
 Drake v. Latham, 50 111. 270. 
 Dillman v. Nadlehoffer, 119 111. 567. 
 Ins. Co. V. Reed, 33 Ohio St. 293. 
 Upton V. Tribilcock, 91 U. S. 5°- 
 
 Nor is a misrepresentation as to a matter of 
 opinion, belief, or expectation. 
 
 Warren v. Doolittle, 61 111. 171. 
 
 Tuck V. Downing, 76 111. 71. 
 
 Gordon v. Parmelee, 2 Allen, 212. 
 
 Mooney v. Miller, 102 Mass. 217. 
 
 Ellis V. Andrews, 56 N. Y. 83. 
 
 Chrysler v. Canadiy, 90 N. Y. 272. 
 
 Sawyer v. Prickett, 19 Wal. 146. 
 
 Gordon v. Butler, 105 U. S. 553. 
 
 Southern Development Co. v. Silva, 125 U. S. 247. 
 
76 FORMATION OF CONTRACT. 
 
 7. A false representation, recklessly made without 
 any knowledge or ground of belief, will be deemed 
 fraudulent. 
 
 Case V. Ayers, 65 111. 142. 
 Ruff V. Jarrett, 94 111. 475. 
 Stone V. Denny, 4 Met. 151. 
 Litchfield V. Hutchinson, 117 Mass. 195. 
 Bennett v. Judson, 21 N. Y. 238. 
 Cooper V. Schlesinger, III U. S. 148. 
 Cabot V. Christie, 42 Vt. 121. 
 Peek V. Deny, 37 Ch. D. 541. 
 
 Such representation always suggests mala fides, 
 since it cannot be claimed that there is any belief 
 where there is no ground of belief Moreover, to 
 make a statement recklessly — without caring whether 
 it is true or not — for the purpose of influencing 
 another is dishonest. 
 
 8. The use of any artifice or contrivance in the 
 sale of goods to mislead and prevent discovery of 
 their defects is fraudulent. 
 
 Kenner v. Harding, 85 111. 264, 268. 
 Kohl V. Lindley, 39 111. p. 201. 
 Cogel V. Kniseley, 89 111. p. 601. 
 Croyle v. Moses, 90 Pa. St. 250. 
 
 So is a partial statement of fact where the with- 
 holding of that which is not stated makes that which 
 is stated so misleading as it stands as to be in effect 
 untrue. Here the old adage applies, that, half the 
 truth is a lie. 
 
 Mallory v. Leach; 35 Vt. 156, 168. 
 
 Hadley v. Clinton Imp. Co., 13 Ohio St. 502, 513. 
 
 Kidney v. Stoddard, 7 Met. 252. 
 
FRAUD. 77 
 
 9. A false promise to pay for goods by a party 
 whose object is to obtain them from the owner with 
 his consent through the form of purchase, when the 
 party knows that he is insolvent and intends never to 
 pay for them, is fraudulent. 
 
 Donaldson v. Farwell, 93 U. S. 631. 
 
 Stewart v. Emerson, 52 N. H. 301. 
 
 Dow V. Sanborn, 3 Allen, 181. 
 
 Hennequin v. Naylor, 24 N. Y. 139. 
 
 Wright V. Brown, 67 N. Y. i. 
 
 Allen V. Hartfield, 76 111. 358. 
 
 The promise to pay implies a representation by 
 the party that he has confidence in his ability to pay 
 and really intends to pay, and the concealment of 
 his insolvency with an intention not to pay renders 
 the promise a fraudulent misrepresentation. 
 
 But the omission of a purchaser to disclose his 
 insolvency, unaccompanied with an intention not to 
 pay, does not make the promise to pay fraudulent, 
 for it is often the case that the purchaser relies, for 
 his ability to pay, upon his credit alone, and is not 
 disappointed. 
 
 Morrill v. Blackman, 42 Conn. 324, 329. 
 Nichols V. Pinner, 18 N. Y. 295. 
 Morris v. Talcott, 96 N. Y. 100. 
 Talcott V. Henderson, 31 Ohio St. 162. 
 
 And while a man is really struggling against 
 adversity, with an honest intent to retrieve his for- 
 tunes he may make a valid purchase on credit, 
 although he does not disclose the extent of his em- 
 barrassments, for in such a case there is wanting the 
 fraudulent design never to pay. 
 
 Henshaw v. Bryant, 4 Scam. 97, 108. 
 Patton V. Campbell, 70 III. 72, 75. 
 
78 FORMATION OF CONTRACT. 
 
 DURESS. 
 
 Duress considered as a ground for avoiding 
 a contract consists in any of the following acts 
 committed or threatened' by one of the parties, 
 or with his connivance," and causing the other 
 to enter into the contract.' 
 
 I- Unlawful imprisonment^ of the other party 
 or the husband or wife, parent or child of such 
 party. ^ 
 
 2. Imprisonment of such person procured 
 through the abuse of lawful process' or made 
 unjustly oppressive.* 
 
 3- Unlawful and great bodily harm to such 
 person.^ 
 
 4- Unlawful seizure, detention'" or destruc- 
 tion" of the property of such person. 
 
 1. Bane v. Detrick, 52 111. 19. 
 Foshay v. Ferguson, 5 Hill, 154. 
 Taylor V. Jaques, 106 Mass. 291. 
 Bush V. Brown, 49 Ind. 573. 
 
 2. See Compton v. Bank, 96 111. 301, 306. 
 Green v. Scranage, 19 Iowa, 461. 
 Fairbanks v. Snow, 145 Mass. 153. 
 
 3. Whitefield v. Longfellow, 13 Me. 146. 
 Alexander v. Pierce, 10 N. H. 494. 
 Feller v. Green, 26 Mich. 70. 
 
 Hamilton v. Smith, 57 Iowa, 15. 
 
 There must be that degree of constraint or dan- 
 ger, either actually inflicted or threatened, and 
 impending which is sufficient in severity or in appre- 
 
Dt/RESS. 79 
 
 hension to overcome the will of a person of ordinary 
 firmness. 
 
 French v. Shoemaker, 14 Wal. 332. 
 Harmon v. Haimon, 61 Me. 227. 
 Miller v. Miller, 68 Pa. St. 486. 
 Bane v. Detrick, 52 111. 27. 
 
 4. Imprisonment, when lawful, is by no legal 
 intendment an abridgment of the free and voluntary 
 volition of the mind in the management of business 
 transactions. It is, therefore, not sufficient to estab- 
 lish duress to show an imprisonment. It is neces- 
 sary to show an unlawful imprisonment, or abuse of, 
 or oppression under lawful process or legal deten- 
 tion. 
 
 Taylor v. Cottrell, 16 HI. 93. 
 Heaps V. Dunham, 95 111. 583. 
 Kelsey v. Hobby, 16 Pet. 269. 
 
 5. Imprisonment is the restraint of personal lib- 
 erty whether in prison or elsewhere. 
 
 6. Plummer v. People, 16 111. p. 360. 
 Shenk v. Phelps, 6 111. App. 612. 
 Harris V. Carmody, 131 Mass. 51. 
 
 In such cases the relation between the parties is 
 so intimate that the constraint upon one is supposed 
 to operate with equal force upon the other. 
 
 7. It is an abuse of criminal process to resort (a) or 
 threaten to resort (b) to it for the purpose of coercing 
 the payment of a private debt or demand. 
 
 (a) Bane v. Detrick, 52 111. 19. 
 
 Shenk v. Phelps, 6 111. App. 612. 
 Richardson v. Duncan, 3 N. H. 508. 
 Shaw V. Spooner, 9 N. H. 197. 
 
8o FORMATION OF CONTRACT. 
 
 Hackett v. King, 6 Allen, 58. 
 Seiber V. Price, 26 Mich. 518. 
 Osborn v. Robbins, 36 N. Y. 365. 
 Phelps V. Zuschlag, 34 Tex. 371. 
 Holbrook v. Cooper, 44 Mich. 373. 
 
 (b) Eadie v. Slimmon, 26 N. Y. 9. 
 Taylor v. Jaques, 106 Mass. 291. 
 Harris v. Carmody, 131 Mass. 51. 
 Town of Sharon v. Gager, 46 Conn. 189. 
 Foley V. Greene, 14 R. I. 618. 
 First Nat. Bank v. Bryan, 62 Iowa, 42. 
 HuUhorst V. Scharner, 15 Neb. 57. 
 Schoener v. Lissauer, 107 N. Y. m. 
 
 8. Schommer v. Farwell, 56 III. 542, 544. 
 Watkins v. Baird, 6 Mass. 506, 511. 
 Severance" V. Kimball, 8 N. H. 386, 388. 
 
 As where the imprisonment is accompanied by 
 such circumstances of unnecessary pain, privation, 
 or danger that by them the party is induced to enter 
 into the contract. 
 
 9. Brown v. Pierce, 7 Wal. 205, 214. 
 Baker v. Morton, 12 Wal. 150, 157. 
 Bane v. Detrick, 52 111. p. 26. 
 
 Free consent is the essence of every contract, 
 and if there be compulsion there is no consent, and 
 moral compulsion, such as that produced by threats 
 to take life, or to inflict great bodily harm, as well as 
 that produced by imprisonment, has always been 
 regarded as sufficient in law to destroy free agency. 
 
 10. The principle applies where money is paid or 
 a note given to prevent the seizure of goods under a 
 warrant for the collection of an illegal assessment or 
 tax (a), or an execution fraudulently obtained (b). 
 
DURESS. 8 1 
 
 (a) Bradford v. Chicago, 25 111. 411, 418-23. 
 Boston &c. Co. V. Boston, 4 Met. 181. 
 Bruecher v. Port Chester, loi N. Y. 240. 
 
 (b) Thurman v. Burt, 53 111. 129. 
 
 So where money is paid or a note given to release 
 goods from an attachment fraudulently obtained. 
 
 Chandlery. Sanger, 114 Mass. 364. 
 Collins V. Westbury, 2 Bay, 211. 
 Spaids V. Barrett, 57 111. 289. 
 
 And where money or a note is illegally exacted 
 by a carrier (a), or collector of duties (b), or other 
 person as a condition to the delivery of goods or 
 valuable papers (c). 
 
 (a) Harmony v. Bingham, 12 N. Y. 99. 
 Beckwith v. Frisbie, 32 Vt. 559. 
 
 (b) Elliott V. Swartwout, 10 Pet. 137. 
 Maxwell v. Griswold, 10 How. 242. 
 
 (c) White V. Heylman, 34 Pa. St. 142. 
 Scholey v. Mumford, 60 N. Y. 498. 
 McPherson v- Cox, 86 N. Y. 472. 
 Pemberton v. Williams, 8^ 111. 15. 
 
 II. Spaids V. Barrett, 57 111. 289, 292. 
 
 Motz V. Mitchell, 91 Pa. St. 114. 
 
 Foshay V. Ferguson, 5 Hill, p. 158. 
 ' United States v. Huckabee, 16 Wal. p. 432. 
 
 Liberty and life are ]ustly dear to all men, and so 
 is the exclusive right to possess, dispose of, and pro- 
 tect from destruction one's property. The desire for 
 property is a strong and predominant characteristic 
 of man, in organized society. An act done, prompted 
 by this desire to preserve, and impelled by fear of 
 the destruction of goods, is not voluntary. 
 
82 FORMATION OF CONTRACT. 
 
 UNDUE INFLUENCE. 
 
 A contract' may be avoided on the ground 
 of undue influence when one of the parties has 
 induced the other to enter into the contract by 
 the unconscientious use of power afforded by 
 
 1- The parental/ fiduciary or confidential' 
 relations subsisting between them.^ 
 
 2- The mental weakness of the other/ or 
 
 3- The necessities or extravagance of an 
 expectant heir' or one sustaining that char- 
 acter.* 
 
 1. Taylor v. Taylor, 8 How. 183. 
 Miskey's Appeal, 107 Pa. St. 5ll. 
 
 The term " parental " here extends to any person 
 in loco parentis. 
 
 Archer v. Hudson, 7 Beav, 551. 
 Brown v. Burbank, 64 Cal. 99. 
 Berkmeyer v. Kellerman, 32 Ohio St. 239. 
 Highberger v. Stiffler, 21 Md. 338. 
 Bowe V. Bowe, 42 Mich. 195. 
 
 2. The relations between guardian and ward (a), 
 attorney and client (b), trustee and beneficiary (c), 
 and the like (d), are examples of fiduciary and confi- 
 dential relations. 
 
 (a) Ashton v. Thompson, 32 Minn. 25. 
 Wickizer v. Cook, 85 111. 68. 
 
 (b) Jennings v. McConnel, 17 111. 148. 
 Zeigler v. Hughes, 55 111. 288. 
 
 (c) Ward v. Armstrong, 84 111. 151. 
 Jones V. Lloyd, 117 111. 597. 
 
UNDUE INFLUENCE. 83 
 
 (d) Dent v. Bennett, 4 Myl. & Cr. 269. 
 Cadwallader v. West, 48 Mo. 483. 
 Woodbury v. Woodbury, 141 Mass. 329. 
 Ford V. Hennessy, 70 Mo. 580. 
 Caspar! v. First German Church, 82 Mo. 649. 
 Marx V. McGlynn, 88 N. Y. 357. 
 Drake's Appeal, 45 Conn. 9. 
 Allcard v. Skinner, 36 Ch. D. 145. 
 Darlington's Appeal, 86 Pa. St. 512. 
 Boyd V. De La Montagnie, 73 N. Y. 498. 
 Pierce v. Pierce, 71 N. Y. 154. 
 Rockafellow v. Newcomb, 57 111. 186. 
 
 The principle applies to every case where confi- 
 dence on the one side and influence on the other 
 exist. 
 
 McCormick v. Malin, J Blackf. 509, 523. 
 Casey V. Casey, 14 111. 112, 115. 
 Norris v. Tayloe, 49 111. 17, 22. 
 'Reed v. Peterson, 91 111. 288, 295. 
 Long V. Mulford, 17 Ohio St. 484, 504. 
 Sands v. Sands, 112 111. 225, 232. 
 Sears v. Shafer, 6 N. Y. 268, 272. 
 Fisher v. Bishop, 108 N. Y. 25. 
 Todd V. Grove, 33 Md. 188, 194. 
 McClure v. Lewis, 72 Mo. 314, 322. 
 Haydock v. Haydock, 34 N. J. Eq. 570, 574. 
 Cherbonnier v. Evitts, 56 Md. 276, 294. 
 
 Confidence and influence in a transaction may be 
 presumed from the special relation of the parties, or 
 they may be proved by extrinsic evidence. But when 
 they are shown to exist in either way the burden 
 of proving the fairness of the transaction is thrown 
 upon the party holding the posicion of influence. 
 
 Casey V. Casey, 14 111. 112, 114. 
 Jennings V. McConnel, 17 111. 148. 
 Zeiglerv. Hughes, SS 111- 288, 
 
«4 FORMATION OF CONTRACT. 
 
 Ward V. Armstrong, 84 111. 151. 
 Sands v. Sands, 112 111. 225. 
 Jones V. Lloyd, 117 111. 597. 
 Cowee V. Cornell, 75 N. Y. p. gg. 
 Fisher v. Bishop, 108 N. Y. 25. 
 Greenfield's Estate, 14 Pa. St. 489, 505. 
 
 3. Where a relation of confidence is once estab- 
 lished it will not be considered as determined whilst 
 the influence derived from it can be reasonably sup- 
 posed to remain. 
 
 Thus, the influence of a parent or guardian or one 
 in. loco parentis is presumed to continue for some time 
 after the termination of the minority or dependence 
 until there is what may be called a complete emanci- 
 pation, so that a judgment may be formed indepen- 
 dent of any sort of control. 
 
 Archer v. Hudson, 7 Beav. 551, 560. 
 
 Garvin v. Williams, 44 Mo. 465; S. C. 50 Mo. 206. 
 
 Miller v. Simonds, 72 Mo. 66g. 
 
 Ashton V. Thompson, 32 Minn, 25. 
 
 And the principle applies to every other relation 
 of confidence. 
 
 Mason v. Ring, 3 Abb. App. Dec. 210, 213. 
 Rhodes v. Bate, L. R. i Ch. 252, 260. 
 Mitchell V. Homfray, 8 Q. B. D. 587, 5gi. 
 And see Henry v. Raiman, 25 Pa. St. 354, 358. 
 
 4. The mind may be enfeebled by old age, sick- 
 ness, great distress, or other cause whereby it is 
 rendered incapable of resisting undue pressure. 
 
 Allore V. Jewell, g4 U. S. 506, 511. 
 Griffith V. Godey, 113 U. S. 89, 95. 
 Taylor v. Atwood, 47 Conn. 498. 
 Moore v. Moore, 56 Cal. 8g. 
 
UNDU^ INFLUENCE. 85 
 
 Rau V. Von Zedlitz, 132 Mass. 164. 
 Rider v. Miller, 86 N. Y. 507. 
 Oard V. Oard, 59 111. 46. 
 
 But mere mental weakness will not authorize a 
 court of equity to set aside a contract, if such weak- 
 ness does not amount to inability to comprehend the 
 meaning and effect of the contract, and is unaccom- 
 panied by evidence of imposition or undue influence. 
 
 Willemin v. Dunn, 93 111. 511. 
 Kimball v. Cuddy, 117 111. 213, 218. 
 
 5. An expectant heir, in real or imaginary need 
 of money and exposed to the temptation of raising it 
 on his expectancy, is at such a disadvantage as to be 
 peculiarly liable to imposition, and to require an 
 extraordinary degree of protection. 
 
 Aylesford v. Morris, L. R. 8 Ch. 484. 
 Boynton v. Hubbard, 7 Mass. 112. 
 Jenkins v. Pye, 12 Pet. p. 257. 
 See Mastin v. Mario w, 65 N. C. 695. 
 Bacon v. Bonham, 33 N. J. Eq. 614. 
 Parsons v. Ely, 45 111. 232. 
 
 6. The principle applies to an expectant devisee 
 or legatee. 
 
 But as to contracts with the owner of a reversion 
 or vested remainder, 
 
 See Cribbins v. Markwood, 13 Gratt. 495, 499. 
 Davidson v. Little, 22 Pa. St. 245. 
 Parmelee v. Cameron, 41 N. Y. 392. 
 
 Explanation. — If it is once established that 
 a person who stands in a position of command- 
 ing influence towards another has obtained a 
 
86 FORMATION OF CONTRACT. 
 
 considerable advantage from him while in that 
 position, it will be presumed, in the absence of 
 rebutting proof, that the advantage was ob- 
 tained by means of that influence. 
 
 Dent V. Bennett, 4 Myl. & Cr. 269, 277. 
 Woodbury v. Woodbury, 141 Mass. 329, 332. 
 
CHArTER VI. 
 LEGALITY OF OBJECT. 
 
 The courts will not enforce an agreement 
 the object of which is forbidden by law,' or is 
 opposed to the policy of the law." 
 
 I. It is immaterial whether the object of the 
 agreement is forbidden by the common law or by a 
 statute. 
 
 Wheeler v. Russell, 17 Mass. 258, 281. 
 
 Munsell v. Temple, 3 Gilm. 93, 96. 
 
 Nash V. Monheimer, 20 111. 215, 217. 
 
 Wells V. People, 71 111. 532. 
 
 Byrd v. Hughes, 84 111. 174. 
 
 An agreement to commit a crime cannot be en- 
 forced, whether the offense is indictable at common 
 law or under a statute. 
 
 Collii;s V. Blantern, 2 Wils. 347, 350. 
 Henderson v. Palmer, 71 111. 579, 583. 
 
 Nor can an agreement to do a civil wrong; as an 
 agreement to commit a trespass, or print a libel (a) 
 or practice a fraud upon a third person (b). 
 
 (a) Hatch v. Mann, 15 Wend. p. 45-6. 
 Clay V. Yates, i H. & N. 73. 
 
88 FORMATION OF CONTRACT. 
 
 (b) As where a private stipulation is made by one 
 creditor for some advantage to himself over other 
 creditors who unite with him in a composition of 
 their debts. 
 
 Hefter v. Cahn, 73 111. 296. 
 
 Sternburg v. Bowman, 103 Mass. 325. 
 
 Huckins v. Hunt, 138 Mass. 366. 
 
 Bliss V. Matteson, 45 N. Y. 22. 
 
 See also Materne v. Horwitz, loi N. Y. 469. 
 ■ White V. Kuntz, 107 N. Y. 518. 
 
 Randall v. Howard, 2 Black, 585. 
 
 Bartle v. Coleman, 4 Pet. 184. 
 
 It is immaterial whether the thing forbidden by- 
 law is malum in se or merely malum prohibitum. 
 Penn v. Bornman, 102 111. 523, 530. 
 Bank v. Owens, 2 Pet. 527, 539. 
 White V. Buss, 3 Cush. 448, 450. 
 
 2. Oscanyan v. Arms Co., 103 U. S. 261, 267-8. 
 Forsyth v. Woods, 1 1 Wal. 484, 487. 
 Bliss V. Lawrence, 58 N. Y. 442. 
 Rice V. Wood, 113 Mass. 133. 
 Holcomb V. Weaver, 136 Mass. 265. 
 Tyler v. W. U. Tel. Co. 60 111. 421. 
 Linder v. Carpenter, 62 111. 309. 
 Paddock v. Robinson, 63 111. 99. 
 Jerome v. Bigelow, 66 111. 452. 
 Gillett V. Logan County, 67 111. 257. 
 Paton V. Stewart, 78 111. 481. 
 Craft V. McConoughy, 79 111. 346. 
 Hamilton v. Hamilton, 89 111. 349. 
 Ray V. Mackin, 100 111. 246. 
 Chicago &c. Co. v. Gas Light Co. 121 111. 530. 
 Cothran v. Ellis, 125 III. 496. 
 
 Explanation. — A statute may forbid the per- 
 formance or omission of an act by express 
 prohibition or by implication.' 
 
LEGALITY OF OBJECT. 89 
 
 A penalty imposed by statute implies a pro- 
 hibition unless the penalty be in the nature of 
 a tax or merely to secure the revenue.'" 
 
 1. Hunt V. Knickerbacker, 5 Johns. 327, 333. 
 Eaton V. Kegan, 114 Mass. 433, 435. 
 
 2. Thus where a statute imposed a penalty for the 
 failure of a dealer in milk to have the measures used 
 in the sale of milk sealed by the proper officer, it was 
 held that this prohibited sales of milk in measures not 
 sealed and the price of milk so sold could not be 
 recovered. 
 
 Miller v. Post, I Allen, 434, 435. 
 
 See also Pray v. Burbank, 10 N. H. 377. 
 
 But where a statute imposed a penalty for the 
 failure of a wholesale dealer to pay the internal 
 revenue tax, it was held that this did not invalidate 
 sales made during the period of such default, or 
 prevent recovery of the price of the goods sold. 
 
 Lamed v. Andrews, 106 Mass. 435, 439. 
 
 See ailso Ruckman v. Bergholz, 37 N. J. L. 437. 
 
 In the former case the object of the statute was 
 the protection of purchasers of milk, in the latter it 
 was the protection of the revenue. 
 
 Where the statute imposes a penalty for retailing 
 intoxicating liquors without a license, such sales are 
 thereby prohibited because the object of the statute 
 is mainly to diminish the evils of intemperance and 
 not merely to secure a revenue. 
 
 Lewis V. Welch, 14 N. H. 294, 296-7. 
 Griffith V. Wells, 3 Denio, 226. 
 
go FORMATION OF CONTRACT. 
 
 The following are the' leading classes of 
 agreements opposed to the policy of the law : 
 
 I- Agreements which tend to injure the 
 public service. 
 
 Of this character is an agreement to use one's 
 influence to secure the election (a) or appointment 
 (b) of a person to a public office. 
 
 (a) Gaston v. Drake, 14 Nev. 175. 
 Nichols V. Mudgett, 32 Vt. 546. 
 
 (b) Gray v. Hook, 4 N. Y. 449. 
 Filson V. Himes, 5 Pa. St. 452. 
 
 So is an agreement which contemplates the use of 
 private influence to procure some desired legislation 
 (a), the pardon of a convict (b), judicial clemency 
 (c), or the favorable action of any public servant (d). 
 
 (a) Marshal! V. R. R. Co., 16 How. 314, 334. 
 Trist V. Child, 21 Wal. 441. 
 
 Frost V. Belmont, 6 Allen, 152. 
 Mills V. Mills, 40 N. Y. 543. 
 
 (b) Hatzfield v. Gulden, 7 Watts, 152. 
 Kribben v. Haycralt, 26 Mo. 396 
 
 (c) Buck V Bank, 27 Mich. 293. 
 
 (d) Meguire v. Corwine, loi U. S. 108. 
 
 Cookv. Shipman, 24 111. 614; S. C. 51 111. 316. 
 Devlin v. Brady, 36 N. Y. 531. 
 
 The law looks to the general tendency of such 
 agreements, and it closes the door to temptation by 
 refusing them recognition in any of the courts of the 
 country. 
 
 Tool Co. V. Norris, 2 Wal. 45, 56. 
 Oscanyan v. Arms Co., 103 U. S. 261, 273. 
 
LEGALITY OF OBJECT. 91 
 
 On the ground that a railroad corporation is a 
 quasi public agency an agreement between the cor- 
 poration and an individual to establish a station at a 
 particular place (a), or not to establish it within a 
 certain distance of a given point (b) is held to be 
 contrary to public policy and cannot be enforced. 
 
 (a) Fuller v. Dame, 18 Pick. 472, 481-3. 
 Bestor v. Wathen, 60 111. 138. 
 Marsh v. R. R. Co., 64 111. 414. 
 Pacific R. R. Co. v. Seely, 45 Mo. 212. 
 
 (b) St. Louis &c. R. R. Co. v. Mathers, 71 111. 592; S. C. 104 
 
 111. 257. 
 St. Joseph &c. R. R. Co. v. Ryan, 1 1 Kan. 602. 
 Williamson v. R. R. Co. 53 Iowa, 126. 
 
 2- Agreements which tend to obstruct the 
 course, of public justice. 
 
 As an agreement to compound or stifle a criminal 
 prosecution. 
 
 Henderson v. Palmer, 71 111. 579, 583. 
 Wolf V. rietemeyer, 83 111. 418. 
 Roll V. Raguet, 4 Ohio, 400, 418. 
 Gorham v. Keyes, 137 Mass. 583. 
 McMahon v. Smith, 47 Conn. 221. 
 
 A person may receive compensation for the pri- 
 vate injury occasioned by the commission of a crim- 
 inal offenSe. 
 
 R. S. Ch. 38 § 43- 
 Bothwell V. Brown, 51 111. 234, 236. 
 Schommer v. Farwell, 56 111. 542, 544. 
 Shenk v. Phelps, 6 111. App. 612, 620. 
 
 3- Agreements which tend to encourage liti- 
 gation. 
 
92 FORMATION OF. CONTRACT. 
 
 Such as agreements amounting to or being in the 
 nature of maintenance or champerty. 
 
 Maintenance is where a person officiously inter- 
 meddles in a suit that in nowise belongs to or con- 
 cerns him by assisting either party with money or 
 otherwise, to prosecute or defend the suit with a view 
 to promote litigation. 
 
 But it is not considered maintenance for a man 
 to maintaincthe suit of his kinsman or servant or any 
 poor person out of charity. 
 R. S. Ch. 38 § 27. 
 Harris v. Biisco, 17 Q. B. D. 504. 
 
 Champerty is maintenance aggravated by an 
 agreement to have a part of the thing in dispute. 
 
 Thompson v. Reynolds, 73 111. II, 13. 
 
 Gilbert v. Holmes, 64 111. 548. 
 
 Coleman v. Billings, 89 111. 183. 
 
 Park Commissioners v. Coleman, 108 111. S91. 
 
 Torrence v. Shedd, 112 111. 466. 
 
 Phillips V. South Park Comrs., 119 111. 626. 
 
 Of a similar nature is the sale of a mere right 
 to sue. 
 
 Norton v. Tuttle, 60 111. 130, 134. 
 
 M. & M. R. R. Co. V. R. R. Co. 20 Wis. 174. 
 
 Brush V. Sweet, 38 Mich. 574. 
 
 Dayton v. Fargo, 45 Mich. 153. 
 
 For all cases of maintenance and champerty are 
 founded on the principle that no encouragement 
 should be given to litigation by the introduction of 
 parties to enforce those rights which others are not 
 disposed to enforce. 
 
 4- Agreements which involve sexual immor- 
 ality. 
 
LEGALITY OF OBJECT. 93 
 
 Wallace v. Rappleye, 103 111. 229, 249. 
 Hanks v. Naglee, 54 Cal. 51. 
 
 5- Agreements which unduly/affect the free- 
 dom' or security^ of marriage. 
 
 1. An agreement in unreasonable restraint of 
 marriage is invalid. 
 
 Hartley v. Rice, 10 East, 22. 
 Sterling v. Sinnickson, 2 South. (N. J.) 756. 
 Chalfant v. Payton, 91 Ind. 202. 
 Shackelford v. Hall, 19 111. p. 215. 
 
 So is an agreement to procure or bring about a 
 marriage for reward, which is commonly called a mar- 
 riage brocage contract. 
 
 Crawford v. Russell, 62 Barb. 92. 
 Johnson v. Hunt, 81 Ky. 321. 
 
 2. An agreement between husband and wife pro- 
 viding for a possible separation in the future is invalid 
 because it tends to facilitate a separation. 
 
 Westmeath v. Westmeath, : Dow. & CI. 519, 541. 
 Hindley v. Westmeath, 6 B. & C. 200, 212. 
 People V. Mercein, 8. Paige, 47, 68. 
 
 But where a separation has taken place, or an 
 immediate separation has been decided upon, it is 
 not unlawful for the husband and wife to provide for 
 their rights and liabilities during the separation. 
 
 Walker v. Walker, 9. Wal. 743. 
 
 Fox V. Davis, 113 Mass. 255. 
 
 Carson v. Murray, 3 Paige, 483. 
 
 Pettit V. Pettit, 107 N. Y. 677. 
 
 Wells V. Stout, 9 Cal. 479. 
 
 Randall v. Randall, 37 Mich. 563. 
 
 McGregor v. McGregor, 20 Q. B. D. p. 533; S. C. 21 Q. 
 B. D. 424. 
 
94 FORMATION OF CONTRACT. 
 
 6- Agreements in unreasonable restraint of 
 trade. 
 
 Agreements -in general restraint of trade are in- 
 valid because they deprive the public of the services 
 of men in the spheres in which they are likely to be 
 most useful, and expose the community to the evils 
 of monopoly. 
 
 Alger V. Thatcher, 19 Pick. 51, 54. 
 Bishop V. Palmer, 146 Mass. 469, 474. 
 Keeler v. Taylor, 53 Pa. St. 467, 469. 
 Morris &c. Co. v. Coal Co., 68 Pa. St. 173, 184. 
 Arnot V. Coal Co., 68 N. Y. 558, 565. 
 Craft V. McConoughy, 79 111. 346, 349. 
 Talcott V. Brackett, 5 111. App. p. 67. 
 Davies v. Davies, 36 Ch. D. 359. 
 
 But an agreement in partial restraint of trade 
 will be upheld where the restriction does not go as to 
 its extent in space or otherwise beyond what is rea- 
 sonably necessary to protect the favored party, regard 
 being had to the nature of the business and the 
 interests of the public. 
 
 Oregon Nav. Co. v. Winsor, 20 Wal. 64, 67. 
 Oilman v. Dwight, 13 Gray, 356, 359. 
 Chappel V. Brockway, 21 Wend. 157, 161. 
 Wiley V. Baumgardner, 97 Ind. 66. 
 Craft V. McConoughy, 79 111, p. 350. 
 Diamond Match Co. v. Roeber, 106 N. Y. 473. 
 
 Thus a professional man or any other person en- 
 gaged in legitimate business, on selling his good 
 will may bind himself not to resume practice or busi- 
 ness within what is under the circumstances reason- 
 able bounds. 
 
 Linn v. Sigsbee, 67 111. 75, 80. 
 
LEGALITY OF OBJECT. 95 
 
 McClurg's Appeal, 58 Pa. St. 51, 53. 
 Hubbard v. Miller, 27 Mich. 15 19. 
 Dwight V. Hamilton, 113 Mass. 175. 
 Boutelle v. Smith, 116 Mass. iii- 
 
 The general doctrine does not apply to the sale of 
 secret processes, or patent rights, because the public 
 has no rights in the former and the latter are monop- 
 olies authorized by the government itself for the 
 encouragement of inventions. 
 
 Vickery v. Welch, 19 Pick. 523, 527. 
 
 Jarvis V. Peck, 10 Paige, 118, 123. 
 
 Peabody v. Norfolk, 98 Mass. 452, 457. 
 
 Morse &c. Co. v. Morse. 103 Mass. 73, 74. 
 
 Mackinnon Pen Co. v. Ink Co., 48 N. Y. Super. Ct. 442, 
 447- 
 
 7- Agreements to suppress competition at 
 sales by auction. 
 
 An agreement not to bid at a public sale, if made 
 for the purpose of stifling competition, is unlawful. 
 Gardiner v. Morse, 25 Me. 140, 143. 
 Slingluff V. Eckel, 24 Pa. St. 472, 473. 
 Loyd V. Malone, 23 111. 43, 48. 
 Wooten V. Hinkle, 20 Mo. 290, 292. 
 And see Gibbs v Smith, 115 Mass. 592. 
 Atcheson v. Mallon, 43 N. Y. 147. 
 Ray V. Mackin, 100 111. 246. 
 Hunter v. Pfeiffer, 108 Ind. 197. 
 
 But an agreement between two or more persons 
 that one shall bid for the benefit of all will be upheld 
 where the object of the arrangement is to raisej by a 
 union of their means, the requisite purchase money, 
 or to make a division of the property for their accom- 
 modation, or to protect existing interests, or any 
 similar fair object. 
 
96 FORMATION OF CONTRACT. 
 
 SmuU V. Jones, i W. & S. 128, 136; 
 
 S. C. 6 W. & S. 122, 127. 
 Phippen v. Stickney, 3 Met. 384, 388. 
 Switzer v. Skiles, 3 Gilm. 529. 535. 
 Kearney v. Taylor, 15 How. 494, 519. 
 Garrett v. Moss, 20 111. 549, 552. 
 Wicker v. Hoppock, 6 Wal. 94, 97. 
 Marie v. Garrison, 83 N. Y. 14, 27. 
 
 Where an agreement innocent in itself is 
 designed by one of the parties to further a 
 purpose forbidden by law or opposed to the 
 policy of the law, the courts will hot enforce it 
 in favor of such party, or of the other party if 
 he is implicated in such design. 
 
 The rent of property leased with knowledge that 
 the lessee intends to use it for an illegal or immoral 
 purpose cannot be recovered. 
 
 Sherman v. Wilder, io5 Mass. 537, 539. 
 Riley V. Jordan, 122 Mass. 231. 
 Edelmuth v. McGarren, 4 Daly (N. Y.) 467. 
 Ralston v. Boady, 20 Ga. 449. 
 
 In such case knowledge by the lessor of the 
 intended use of his property implies consent to that 
 use and thus implicates him in the design. 
 
 And there are cases of sale where the bare knowl- 
 edge of the use to which the article sold is to be put 
 will prevent recovery of the price. If a person sells 
 arsenic with knowledge that the purchaser intends to 
 poison another with it, the enormity of the oiTense 
 intended is such as to render it morally certain that 
 the conscience of the seller would have prevented 
 
LEGALITY OF OBJECT. 97 
 
 him from making the sale had he not participated in 
 the design. 
 
 Hanauer v. Doane, 12 Wal. 342, 346. 
 Tracy v. Talmage, 14 N. Y. p, 215. 
 Tatum V. Kelley, 25 Ark. 209, 211. 
 
 But knowledge by the. seller that the property he 
 sells is designed by the purchaser to be used for an 
 unlawful purpose, not malum in se, will not prevent 
 recovery of the price (a) unless it appears from some 
 stipulation or act of the seller (b), or from the cir- 
 cumstances of the case (c), that he made the sale 
 with the view of aiding in the accomplishment of such 
 purpose. 
 
 (a) Tracy v. Talmage, 14 N. Y. 162, 176, 215. 
 Green v. Collins, 3 Clif. C. C. 494, 500. 
 Bickel V. Sheets, 24 Ind. i, 4. 
 
 (b) Amot V. Kttston &c. Coal Co. 68 N. Y. 558, 567. 
 Gaylord v. Soragen, 32 Vt. 1 10, 1 13. 
 
 Aiken v. Blaisdell, 41 Vt. 655, 668. 
 Banchor v. Mansel, 47 Me. 58, 61. 
 Skiff V. Johnson, 57 N. H. 475, 478. 
 Foster V. Thurston, 11 Cush. 322, 323. 
 Webster v. Hunger, 8 Gray, 584, 588. 
 
 (c) White V. Buss, 3 Cush. 448. 
 Tracy v. Talmage, 14 N. Y. p. 214. 
 
 Where the intended use does not involve moral 
 turpitude it is generally a matter of such indifference 
 to the seller that the mere knowledge thereof is not 
 regarded as affording sufficient evidence to impHcate 
 him in the design. 
 
 Where an agreement is unenforceable by a 
 party thereto under either of the last two rules, 
 
98 FORMATION OF CONTRACT. 
 
 money paid or property delivered by him under 
 it cannot be recovered back nor can the agree- 
 ment be set aside at his suit' except in the fol- 
 lowing cases: 
 
 1- Where such party was induced to enter 
 into the agreement under circumstances of 
 oppression or imposition.^ 
 
 2- Where the object or design which ren- 
 ders the agreement unenforceable — not being 
 malum in se — remains unexecuted.^ 
 
 3. Where a statute or its efficient enforce- 
 ment authorizes or requires such relief.* 
 
 1. It is the general policy of the law not to afford 
 a party to an unlawful agreement assistance, except 
 so far as the simple refusal to enforce the agreement 
 is unavoidably beneficial to him when acting on the 
 defensive (a). And, therefore, where he has paid 
 money (b), or delivered goods (c), or conveyed real 
 estate (d) under such agreement the court will in 
 general leave him in the position in which he has 
 placed himself. The general rule is expressed by the 
 maxim in pari delicto potior est conditio defendentis. 
 
 (a) Miller v. Marckle, 21 111. 152, 154. 
 Skeels v. Phillips, 54 111. 309. 
 
 (b) Neustadt v. Hall, 58 111. 172. 
 
 (c) Myers v. Meinrath, loi Mass. 366. 
 
 (d) St. Louis &c. R. R. Co. v. Mathers, 71 111. 592; S. C 104 
 
 111. 257. 
 
 2. Baehr V. Wolf, 59 111. 470, 474. 
 
 Ford V. Harrington, 16 N. Y. 2S5, 290. 
 
LEGALITY OF OBJECT. 99 
 
 Barnes v. Brown, 32 Mich. 146. 
 Davidson v. Carter, 55 Iowa, 117. 
 Belding v. Smythe, 138 Mass. 530. 
 
 In cases where both parties are in delicto concern- 
 ing an illegal act, it does not always follow that they 
 stand in pari delicto, for there may be, and often are, 
 different degrees in their guilt. One party may act 
 under circumstances of oppression, imposition, hard- 
 ship, undue influence, or great inequality of condition 
 or age, so that his guilt may be far less in degree than 
 that of his associate in the offence. The latter can 
 not make use of his peculiar power over another 
 under such circumstances to procure an illegal agree- 
 ment, and then invoke the aid of the law to enable 
 him to retain that which he has thus wrongfully 
 obtained. 
 
 3. While the illegal purpose is executory there is 
 a locus poenitentiae. 
 
 Spring Co. v. Knowlton, 103 U. S. 49, 58. 
 Skinner v. Henderson, 10 Mo. 205, 207. 
 Adams Ex. Co. v. Reno, 48 Mo. 264, 268. 
 
 4. In Illinois the loser by gaming or betting is 
 allowed to recover back from the winner his loss 
 where at any time or sitting it amounts in the whole 
 to the sum of $\o. 
 
 R. S. Ch. 38, § 132. 
 
 Tatman v. Strader, 23 111. 493. 
 Richardson v. Kelly, 85 111. 491. 
 
 And where the object of a statute is to protect 
 one class of persons against another class its efficient 
 enforcement often requires such relief. 
 
loo FORMATION OF CONTRACT. 
 
 Thus, a party, who had deposited money in a bank 
 repayable at a future day, in violation of a statute, 
 was allowed to recover back the deposit. To have 
 decided otherwise would have given effect to an 
 illegal contract in favor of the principal offender, 
 and would have operated as a reward for an offense 
 which the statute was intended to prevent. 
 
 White V. Franklin Bank, 22 Pick. 181, i8«. 
 Atlas Bank v. Nahant Bank, 3 Met. 581, 585. 
 Tracy v. Talmage, 14 N. Y. 162, 185. 
 Parkersburg v. Brown, 106 U. S. 487, 503. 
 
THE INTERPRETATION OF CON- 
 TRACT. 
 
 CHAPTER VII. 
 RULES. 
 
 The following are the leading rules of construction 
 which govern the interpretation of contracts in cases 
 of doubt: 
 
 Where there is no doubt there is no room 
 for construction. 
 
 Walker v. Tucker, 70 111. 527, 532. 
 Canterberry v. Miller, 76 111. 355. 
 Williamson vs. McClure, 37 Pa. St. 409. 
 Dwight V. Ins. Co., 103 N. Y. 347. 
 
 In construing a contract the controlling con- 
 sideration is to discover and give effect to the 
 mutual intention of the parties. 
 
 Walker v. Douglas, 70 111. 445, 448. 
 
 Field V. Leiter, 118 111. 17. 
 
 C. B. & Q. R. R. Co. V. Aurora, 99 111. 205^ 
 
 Hunter v. Miller, 6 B. Hon. 619. 
 
 riagg V. Eames, 40 Vt. 21. 
 
I02 INTERPRETATION OF CONTRACT. 
 
 The object of all rules of construction is to arrive 
 at the meaning of the parties, and not to impose one 
 upon them. 
 
 Gray v. Clark, ii Vt. 583, 585. 
 
 Smith V. Brown, 5. Gilm. 309, 314. 
 
 Greater regard is to be had to the clear intent of 
 the parties than to any particular words which they 
 may have used in the expression of their intent. 
 
 Fordv. Beech, 11 Q. B. 852, 866. 
 
 Walker v. Douglas, 70 111. 445, 448. 
 
 Canal Co. v. Hill, 15 Wal. 94, 103. 
 
 Punctuation may sometimes shed light upon the 
 meaning of the parties, but is never allowed to over- 
 turn what seems the plain meaning of the whole con- 
 tract. 
 
 Osborn v. Farwell, 87 111. 89. 
 
 White V. Smith, 33 Pa. St. 188. 
 
 Ewing V. Burnet, 1 1 Pet. 54. 
 
 The whole of the contract is to be consid- 
 ered, and each part so construed with the 
 others that all of them may, if possible, have 
 some effect. 
 
 McCarty v. Howell, 24 HI. 341. 
 
 Davis V. Rider, 53 111. 417. 
 
 Bowmen v. Long, 89 111. 19. 
 
 C. B. & Q. R. R. Co. V. Aurora, 99 111. 205. 
 
 Goosey v. Goosey, 48 Miss. 217. 
 
 Ward V. Whitney, 8 N. Y. 446. 
 
 Hey wood v. Perrin, 10 Pick. 230. 
 
 We must presume that each part was inserted for 
 a purpose and has its office to perform. Ex ante- 
 cedentibus et consequentibus fit opitma interpretatio. 
 Alton V. Transportation Co. 12 111. 56. 
 
RULES. 103 
 
 We should make the parties their own interpreters, 
 and allow one part of the contract to explain another 
 part, as far as possible. 
 
 Stout V. Whitney, 12 111. 228. 
 
 Every part is to be construed with reference to 
 the whole. Thus, covenants, releases, and other 
 operative parts of instruments framed in general 
 terms are construed as restricted to the objects speci- 
 fied in recitals, unless the language used admits of no 
 doubt as to the extent of their operation. 
 
 Bell V. Biuen, i How. 169, 184. 
 Jackson v. Stackhouse, i Cow. 122. 
 Rich V. Lord, 18 Pick. 322. 
 Walsh V. Trevanion, 15 Q. B. 751. 
 Walker v. Tucker, 70 111. 537. 
 
 The words of a contract are to be under- 
 stood in their ordinary and popular sense,' 
 unless by the usage of trade or otherwise, they 
 have, in respect to the subject-matter, acquired 
 a peculiar sense.' 
 
 1. Hawes v. Smith, 12 Me. 429. 
 Stearns v. Sweet, 78 111. 446. 
 Stettauerv. Hamlin, 97 111. 312. 
 Royal Templars v. Curd, 1 1 1 111. 284. 
 
 2. Coit V. Ins. Co., 7 Johns. 385. 
 Lonergan v. Stewart, 55 111. 44. 
 Myers v. Walker, 24 III. 133. 
 Callahan v. Stanley, 57 Cal. 476. 
 
 The terms of mercantile contracts are to be 
 understood in the sense which they have acquired 
 from mercantile usage. And such a usage will be 
 
I04 INTERPRETATION OF CONTRACT. 
 
 considered as established when it has existed a suffi- 
 cient length of time to have become generally known, 
 and to warrant a presumption that contracts are 
 made with reference to it. 
 
 Smith V. Wright, i Caines, 45. 
 Bissell V. Ryan, 23 111. 566, 571. 
 Packard v. VanSchoick, 58 111. 79. 
 
 Technical words are to be interpreted as 
 usually understood by persons in the pro- 
 fession or business to which they relate/ unless 
 clearly used in a different sense." 
 
 1. Reed v. Hobbs, 2 Scam. 297. 
 Dana v. Fiedler, 12 N. Y. 40. 
 EUmaker v. EUmaker, 4 Watts, 89. 
 Gauch V. Ins. Co. 88 111. 251, 256. 
 
 2. Jackson v. Myers, 3 Johns. 388, 
 Bowman v. Long, 89 111. 19, 21. 
 Home Ins. Co. v. Favorite, 46 111. 270. 
 
 If the expressions and phrases used by unpro- 
 fessional men in their various negotiations were 
 always to be taken in their technical sense, the inter- 
 pretation would often violate their true intent and 
 meaning. 
 
 Wynkoop v. Cowing, 21 111. 581. 
 
 The words of a contract are to be construed 
 with reference to its subject-matter' and the 
 circumstances under which it was made.'' 
 
 I. Field V. Woodmancy, 10 Cush. 427, 431. 
 Edelman v. Yeakel, 27 Pa. St. 26. 
 Penfold V. Ins. Co., 85 N. Y. 317. 
 
RULES. 105 
 
 Thus, the word "owner" in a policy of insurance 
 means one having an insurable interest, which may 
 be less than the absolute ownership, while the same 
 word in a covenant to convey land implies that the 
 covenantor has the absolute title. 
 
 Rockford Ins. Co. v. Nelson, 65 111. 415. 
 
 So, the word "until," "from," or the like, may 
 have an exclusive or an inclusive meaning, accord- 
 ing to the subject to which it is applied and the con- 
 nection in which it is used. 
 
 Webster v. French, 12 111. 302, 304. 
 Higgins V. Halligan, 46 111. 173, 178. 
 
 2. Hadden v. Shoutz, 15 111. 581, 582. 
 Thomas v. Wiggers, 41 1)1. 470. 
 Kuecken v. Voltz, no 111. 264. 
 Wilson V. Roots, 1 19 111. 379. 
 Wood V. Clark, 121 111. 359. 
 Reed v. Ins. Co., 95 U. S. 23, 30. 
 Mobile &c. Ry. Co. v. Jurey, 1 1 1 U. S. 584. 
 Lacy V. Green, 84 Pa. St. 514. 
 
 Courts in construing contracts, look to the lan- 
 guage, the subject-matter, and the circumstances, and 
 avail themselves of the light the parties had when the 
 contract was made, in order that they may view the 
 circumstances as the parties viewed them, and so judge 
 of the meaning of the words and their application to 
 the things described. 
 
 ' Nash V. Towne, 5 Wal. 689. 
 
 However broad may be the words of a con- 
 tract, it does not extend to those things con- 
 cerning which it appears that the parties did 
 not intend to contract. 
 
io6 INTERPRETATION OF CONTRACT. 
 
 Frisby v. Ballance, 4 Scam. 287, 300. 
 Robinson v. Stow, 39 111. 568, 572. 
 Hoffman v. Ins. Co. 32 N. Y. 405, 412. 
 Gage V. Tirrell, 9 Allen, 299, 306. 
 
 Where general words follow others of more par- 
 ticular meaning, they are to be construed as appli- 
 cable to matters or things eiusdem generis with those 
 before mentioned. 
 
 EUery v. Ins. Co., 8 Pick. 14. 
 
 Phillips V. Barber, 5 B. & Aid. 161. 
 
 Vaughan v. Porter, 16 Vt. 266. 
 
 Thus, a policy of insurance against specified perils 
 of the sea and " all other perils and losses that should 
 come to the said goods, ship, etc.," was construed to 
 cover other cases of marine damage of a like kind 
 with those specially enumerated. 
 CuUen V. Butler, 5 M. & S. 461. 
 
 See also Thames &c. Ins. Co. v. Hamilton, 12 App. Cas. 
 484- 
 
 Several instruments relating to the same sub- 
 ject matter, between the same parties, and made 
 as parts of substantially one transaction, are to 
 be taken and construed together as forming 
 one contract. 
 
 Duncan v. Charles, 4 Scam. 561, 566. 
 Stacey v. Randall, 17 111. 467, 468. 
 Greenebaum v. Gage, 61 111. 46. 
 Gardt v. Brown, 113 111. 475. 
 Freer v. Lake, 115 111. 662. 
 Wilson V. Roots, iig 111. 379. 
 Jackson v. McKenny, 3 Wend. 233, 234. 
 Knowles v. Toone, 96 N. Y. 534, 536. 
 Holbrook v. Finney, 4 Mass. 566, 569. 
 
RULES. 107 
 
 Hunt V. Livermore, J Pick. 395. 
 Bailey v. R. R. Co., a; Wal. 108. 
 
 For example, a mortgage deed and a separate 
 defeasance. 
 
 Stacey v. Randall, supra. 
 
 Where a contract is partly written and partly 
 printed, and these parts are inconsistent, the 
 written part controls the printed. 
 
 American Ex. Co. v. Tinckney, 29 111. 392, 410. 
 
 Clark V. Woodruff, 83 N. Y. 518, 523. 
 People V. Dulaney, 96 111. 503. 
 Chadsey v. Guion, 97 N. Y. 333. 
 
 The language of printed blanks prepared for gen- 
 eral use is readily assumed to be appropriate in the 
 particular instance without careful examination, and 
 hence it is not so likely to express the real intention 
 of the parties as the written words specially selected 
 by themselves for the particular transaction. 
 
 Words in a contract which are wholly incon- 
 sistent with its nature, or with the main inten- 
 tion of the parties, are to be rejected. 
 
 Hibbard v. McKindley, 28 111. 240, 254. 
 Stockton V. Turner, 7 J. J. Marsh. 192. 
 Iredell v. Barbee, g Ire. 250, 254. 
 Buck V. Burk, 18 N. Y. 337, 339. 
 Dallman v. King, 4 Bing. (N. C.) 105. 
 
 As where the condition of a bond for the payment 
 of money is, that the bond shall be void if the money 
 be not paid. 
 
 Wells V. Tregusan, 2 Salk. 463. 
 
io8 INTERPRETATION OF CONTRACT. 
 
 A contract is to be so construed, if possible, 
 as to make it lawful,' reasonable," and opera- 
 tive.3 
 
 1. Crittenden v. French, 21 111. 598. 
 Archibald v. Thomas, 3 Cow. 284. 
 Lorillard v. Clyde, 86 N. Y. 384. 
 Hobbs V. McLean, 117 U. S. 567. 
 United States v. R. R. Co., 118 U. S. 235. 
 
 If a contract is susceptible of two constructions, 
 one of which would make it legal and the other 
 illegal, preference will be given to the former, for it 
 will not be presumed that the parties intended to 
 violate the law. 
 
 2. Gale V. Dean, 20 111. 320, 323. 
 Crabtree v. Hagenbaugh, 25 111. 233. 
 Wilson V. Marlow, 66 111. 385. 
 Atwood V. Emery, I C. B. (N. S.) no. 
 Bickford v. Cooper, 41 Pa. St. 142. 
 Royalton v. Turnpike Co., 14 Vt. 311. 
 Russell V. AUerton, 108 N. Y. 288. 
 
 A contract will never be so construed as to give 
 one of the parties an unfair or an unreasonable 
 advantage over the other, unless such was their man- 
 ifest intention at the time it was made. 
 
 3. Bland v. People, 3 Scam. 364, 366. 
 Doyle V. Teas, 4 Scam, 202. 
 Peckham v. Haddock, 36 111. 38. 
 Field V. Leiter, 118 111. 17. 
 Atwood V. Cobb, 16 Pick. 229. 
 Saunders v. Clark, 29 Cal. 299. 
 
 Between different meanings that is to prevail 
 which tends to support the contract rather than one 
 
RULES. 109 
 
 which would render it inoperative, for the parties 
 must be supposed to have intended something by 
 their agreement. 
 
 Where there is doubt as to the proper mean- 
 ing of a contract, the construction which the 
 parties, by their acts under it, have practically 
 given it, is entitled to great weight. 
 
 Chicago V. Sheldon, 9 Wal. 50, 54. 
 
 Topliff V. Topliff, 122 U. S. 121. 
 
 Leavers v. Cleaiy, 75 111. 349. 
 
 Garrison v. Nute, 87 111. 215. 
 
 Vermont St. Church v. Brose, 104 111. 206. 
 
 Alexander v. ToUeston Club, no 111. 65. 
 
 People V. Murphy, 119 111. 159. 
 
 Camden &c. Co. v. lippincott, 45 N. J. L. 418. 
 
 Acts done by the parties in the performance of 
 their agreement show how they understood it, and 
 afford valuable aid in ascertaining its meaning. 
 
 But where the meaning of a contract is clear, an 
 erroneous construction of it by the parties will not 
 control its effect. 
 
 R. R. Co. V. Trimble, 10 W?l. 367. 
 
 The language of a contract in a case of 
 doubt not otherwise removed', is to be taken 
 most strongly against the party using it,^ ex- 
 cept where this would cause a penalty or for- 
 feiture.3 
 
 I. This rule is to be resorted to only when all 
 others fail and where the language is capable of two 
 equally probable constructions. 
 
no INTERPRETATION OF CONTRACT. 
 
 Adams v. Warner, 23 Vt. 411. 
 Falley v. Giles, 29 Ind. 1 14. 
 
 2. Noonan v. Bradley, 9 Wal. 394. 
 Barney v. Newcomb, 9 Cush. 46. 
 Ueblois V. Earle, 7 R. I. 26. 
 Richardson v. People, 85 111. 495. 
 
 An exception or reservation in a deed is to be 
 construed strictly against the grantor. 
 
 Cocheco Man. Co. v. Whittier, 10 N. H. 305, 311. 
 
 Jackson v. Gardner, 8 Johns, 394. 
 
 Duryea v. Mayor, 62 N. Y. 592. 
 
 U. S. Mortgage Co. v. Gross, 93 111. 483. 
 
 The rule is applicable according to its purport 
 only to such words as can be attributed to the one 
 party and not to words that are the common language 
 of both parties. 
 
 Beckwith v. Howard, 6 R. I. 1. 
 
 Ambiguous words and clauses in -a deed of con- 
 veyance, promissory note, policy of insurance, or the 
 like, are construed most strongly against the grantor 
 (a), maker (b), or insurer (c), because such party is 
 presumed to have chosen the words. 
 
 (a) Alton V. Transportation Co., 12 111. 38, 58. 
 Sharp V. Thompson, 100 III. 447. 
 Waterman v. Andrews, 14 R. I. 589. 
 
 (b) Walker v. Kimball, 22 111. 537, 539. 
 Massie v. Belford, 68 111. 290. 
 
 (c) Commercial Ins. Co. v. Robinson, 64 111. 265, 268. 
 Reynolds v. Ins. Co., 47 N. Y. 597. 
 Ins. Co. V. Slaughter, 12 Wal. 404. 
 
 The true principle of sound ethics is to give the 
 language of the promisor the sense in which he 
 
RULES. Ill 
 
 had reason to suppose it was understood by the prom- 
 isee. 
 
 Hoffman v. Ins. Co., 32 N. Y. 405. 
 
 McCaity V. Howell, 24 111. 343. 
 
 Wells V. Carpenter, 65 III. 450. 
 
 County V. Ramsey, 20 111. App. 577. 
 
 Smith V. Hughes, L. R. 6 Q. B. 610. 
 
 But a legislative grant is construed njost strongly 
 against the grantee because in such case it is pre- 
 sumed that the grant was procured at his instance 
 and that the language emanated from him. 
 
 Priestley v. Foulds, 2 Man. & G. 194. 
 
 Canal Co. v. Wheeley, 2 B. & Ad. 792. 
 
 R. R. Co. V. Reid, 64 N. C. 158. 
 
 Allegheny v. R. R. Co. 26 Pa. St. 360. 
 
 Dugan V. Bridge Co. 27 Pa. St. 309. 
 
 Hartford Bridge Co. v. Ferry Co. 29 Conn. 222. 
 
 Charles River BriJge v. Warren Bridge, II Pet. 544. 
 
 Rice V. R. R. Co. I Black, 380. 
 
 Mills V. County, 2 Gilm. 197, 227. 
 
 N. W. Fertilizing Co. v. Hyde Park, 70 111. 634. 
 
 Mayor, etc. v. R. R. Co. 97 N. Y. 281. 
 
 This, however, does not fully apply to the case 
 where a grant is made upon adequate valuable con- 
 sideration and the subject consists of mere rights of 
 property not related to a public use, or affecting 
 limitations upon the prerogative of the government. 
 
 See Langdon v. Mayor, etc., 93 N. Y. 145. 
 Dermott v. State, 99 N, Y. 107. 
 Garrison v. United States, 7 Wal. 688. 
 
 3. The condition of a bond is construed favorably 
 for the obligor. 
 
 Butler V. Wigge, i Wms. Saund. 65. 
 
 C. B. & Q. R. R. Co. V. Aurora, 99 111. 214. 
 
 Bennehan v. Webb, 6 Ire. 57. 
 
THE DISCHARGE OF CONTRACT. 
 
 The various modes of terminating a contractual 
 obligation will be considered under the general head, 
 Discharge of Contract. 
 
 A contract may be discharged: 
 
 By valid agreement to that effect; 
 
 In accordance with provisions for its dis- 
 charge ; 
 
 By performance of the contract; 
 
 By impossibility of performance in certain 
 cases; 
 
 By the operation of rules of law upon certain 
 sets of circumstances; 
 
 Against the injured party at his option, by 
 breach of the contract in certain ways; 
 
 By discharge of the right of action arising 
 from breach of the contract. 
 
CHAPTER VIII. 
 
 DISCHARGE OF CONTRACT BY AGREE- 
 MENT. 
 
 A contract not performed on either side' may 
 be discharged by an agreement of the parties 
 that it shall no longer bind either of them.° 
 
 1. A mere agreement to rescind a contract which 
 has been performed on one side would be without 
 consideration. 
 
 Kidder v. Kidder, 33 Pa. St. 268, 269. 
 Crawford v. Millspaugh, 13 Johns. 87. 
 
 But the liability upon a negotiable instrument 
 maybe discharged by the destruction or surrender of 
 the instrument with intent to discharge the liability. 
 
 Paxton V. Wood, 77 N. C. JI, 13. 
 Vanderbeck v. Vanderbeck, 30 N. J. Eq. 265. 
 Larkin v. Hardenbrook, go N. Y. 333. 
 Bragg V. Danielson, 141 Mass. p. 196. 
 
 This would be in the nature of a gift. 
 
 2. The consideration for the promise of each 
 party is the relinquishment by the other of his rights 
 under the contract. 
 
 Kelly V. Bliss, 54 Wis. 187, 191. 
 
114 DISCHARGE OF CONTRACT. 
 
 Two persons engaged to marry each other may, 
 by a mutual agreement, rescind the engagement. 
 King V. Gillett, 7 M. & W. 55, 58. 
 
 The agreement may be either express or implied. 
 Fine v. Rogers, 15 Mo. 315. 
 Parmly v. Buckley, 103 111. 115. 
 Wehrli v. Rehwoldt, 107 111. 60. 
 
 A contract may be discharged by a change 
 in its terms whereby a new contract is, in effect, 
 substituted for the old one. 
 
 Bishop V. Busse, 69 111. 403, 406. 
 Farrar v. Toliver, 88 111. 408. 
 Rollins V. Marsh, 128 Mass. Ii6, 120. 
 Rogers v. Rogers, 139 Mass. 440, 444. 
 Teal V. Bilby, 123 U. S. 572, 578'. 
 
 Where the parties to a contract change certain 
 parts thereof they really make a new contract consist- 
 ing of the new parts and what remains unchanged of 
 the original contract. The consideration for the new 
 right or liability is the extinguishment of the old one. 
 
 Explanation. — The intention to discharge a 
 contract will not be presumed from a mere 
 agreement to accept performance at a time or 
 place other than that stipulated. 
 
 Bacon v. Cobb, 45 111. 47, 56. 
 McCombs V. McKennan, 2 W. & S. 2l6, 218. 
 Lawson v. Hogan, 93 N. Y. 39, 44. 
 Hickman v. Hayiies, L. R. 10 C. P. 598, 603. 
 
 If the parties to a contract make a new and 
 independent contract concerning the same 
 
BY A GREEMENT. 1 1 5 
 
 matter, and the terms of the latter are incon- 
 sistent with those of the former so that they 
 cannot subsist together, the latter may be con- 
 strued to discharge the former. 
 
 Paul V. Meservey, 58 Me. 419, 421. 
 
 Renard v. Sampson, 12 N. Y. 561, 566. 
 
 Stow V. Russell, 36 111. 18, 29. 
 
 Harrison v. Polar Star Lodge, n6 111. 279, 287. 
 
 A contract may be discharged by a release 
 under seal or upon a sufficient consideration.' 
 
 Qualification. — A contract under seal" or 
 required to be in writing by the Statute of 
 Frauds^ can be discharged by a parol or oral 
 agreement fully performed,* but a contract under 
 seal cannot be varied by a parol agreement,^ 
 nor can a contract required by the statute to 
 be in writing be varied by an oral agreement.^ 
 
 1. Benjamin v. McConnell, 4 Gilm. 536, 545. 
 111. Cent. R. R. Co. v. Read, 37 111. p. 511. 
 Bragg V. Danielson, 141 Mass. p. 196. 
 
 2. White V. Walker, 31 111. 422, 434. 
 Dearborn v. Cross, 7 Cow. 48. 
 Munroe v. Perkins, g Pick. 298. 
 Phelps V. Seely, 22 Gratt. 573. 
 Dickerson v. Board, 6 Ind. 128. 
 Canal Co. v. Ray, loi U. S. 527. 
 
 3. Long V. Hartwell, 34 N. J. L. 116, 124. 
 Norton v. Simonds, 124 Mass. 19. 
 
 4. The actual performance and acceptance of the 
 substituted performance operate as an accord and 
 satisfaction. 
 
ii6 DISCHARGE OF CONTRACT. 
 
 5. Allen V. Jaquish, 21 Wend. 628, 63-2. 
 Chapman V. McGrew, 20 111. 10 1, 104. 
 Hume Bros. v. Taylor, 63 111. 43, 45. 
 Barnett v. Barnes, 73 111. 216, 217. 
 Loach V. Farnum, 90 111. 368, 369. 
 
 6. Goss V. Lord Nugent, 5 B. & Ad. 58. 
 Swain v. Seamens, 9 Wal. p. 271. 
 Hill V. Blake, 97 N. Y. 216. 
 
 A contract may be discharged by a change 
 in the parties thereto, whereby a new party is 
 substituted for a previous one by agreement of 
 all three, while the terms remain the same. 
 
 This is commonly called novation. If A owes B 
 ;?ioo, and B owes C ^100, and it is agreed by the 
 three that A shall pay C the ^100, B's debt is ex- 
 tinguished, and C may recover that sum against A. 
 
 Heaton v. Angler, 7 N. H. 397. 
 McKinney v. Alvis, 14 111. p. 34. 
 Mulcrone v. Lumber Co., 55 Mich. 622. 
 
 The consideration for A's promise to pay C is the 
 relinquishment by B of his claim against A. The 
 rights and liabilities of B are extinguished. The con- 
 sideration for B's release of A is C's release of B, and 
 for C's release of B is A's promise to pay C. 
 
 All three must agree to the substitution. 
 
 McKinney v. Alvis, 14 111. 33. 
 Reid V. Degener, 82 111. 508. 
 Lynch v. Austin, 51 Wis. 287. 
 
 It requires the consent of the parties to the old 
 contract to rescind the old one, and of the parties to 
 the new contract to create the new one. 
 
CHAPTER IX. 
 PROVISIONS FOR DISCHARGE. 
 
 A contract may contain a provision for its 
 determination under certain circumstances. 
 Such provision may be 
 
 I- That the non-fulfilment of a specified 
 term of the contract shall give to one of the 
 parties the option of treating the contract as 
 discharged. 
 
 As where the buyer of a horse stipulates that 
 he may return it within a certain time if the horse 
 does not answer to its description. 
 
 Head v. Tattersall, L. R. 7 Ex. 7. 
 
 See also Ray v. Thompson, 12 Cush. 281. 
 
 2. That the fulfilment of a condition' or the 
 occurrence of an event^ shall discharge the 
 parties from further liabilities under the con- 
 tract. 
 
 I. As in the case of a bond defeasible upon a con- 
 dition expressed therein commonly called a condition 
 subsequent. 
 
ii8 DISCHARGE OF CONTRACT. 
 
 2. The occurrence of one of the "excepted risks" 
 of a charter party whereby the voyage becomes im- 
 possible, discharges the ship-owner. 
 Geipel v. Smith, L. R. 7 Q. B. 404. 
 
 3- That the contract may be terminated at 
 the option of one of the parties upon certain 
 terms. 
 
 As where a contract of employment for a defi- 
 nite time provides that either party may terminate it 
 within the time by giving a specified notice. 
 
CHAPTER X. 
 
 DISCHARGE OF CONTRACT BY PERFORM- 
 ANCE. 
 
 A contract may be discharged by perform- 
 ance in accordance with the terms thereof. 
 
 Where a promise is given upon an executed con- 
 sideration, the contract is unilateral, and the per- 
 formance of the promise discharges the contract. 
 Where one promise is given in consideration of 
 another, though performance by one party discharges 
 him from further liabilities under the contract it does 
 not release the other. In order that performance 
 may operate as a discharge of both, each must have 
 performed his part of the contract. 
 
 A modification of the performance of a con- 
 tract may be offered and accepted in satisfac- 
 tion of the performance stipulated for, and be 
 equally effectual in satisfaction and discharge 
 of the contract. 
 
 As where under a contract for the sale and delivery 
 of goods, a different mode of delivery is substituted 
 by the seller with the assent of the buyer. 
 
120 DISCHARGE OF CONTRACT. 
 
 Leather Cloth Co. v. Hieronimus, L. R. lo Q. B. 140. 
 See also Long v. Hartwell, 34 N. J. L. 116. 
 
 Performance of a contract for the delivery 
 of money only is called payment. 
 
 Where a negotiable instrument is taken in 
 lieu of payment, the presumption is that the 
 parties intended it to be a conditional dis- 
 charge. 
 
 The Kimball, 3 Wal. 37, 45. 
 
 Jaffrey v. Cornish, lo N. H. 505^. 
 
 Heartt v. Rhodes, 66 111. 351. 
 
 Walsh V. Lennon, 98 111. 27. 
 
 Jagger Iron Co. v. Walker, 76 N. Y. 521, 524. 
 
 Upon dishonor of the note or bill, the creditor, if 
 not guilty of laches in respect thereto (a), may resort 
 to the original cause of action and recover thereon 
 upon surrendering or satisfactorily accounting for the 
 note or bill at the trial (b). 
 
 (a) Dayton v. Trull, 23 Wend. 345. 
 Phoenix Ins. Co. v. Allen, 11 Mich. 501. 
 Stevens v. Park, 73 111. 387. 
 
 (b) Hays v. McClurg, 4 Watts, 452. 
 Miller v. Lumsden, 16 111. 161. 
 Morrison v. Smith, 81 111. 221. 
 
 The rule is based on the obvious ground that a 
 mere promise to pay ought not to be treated as an 
 absolute payment unless there is an agreement to 
 accept it as such. 
 
 The rule applies whether the debtor gives his own 
 note or bill or that of a third person, and whether it 
 is given for a precedent (a) or a contemporaneous (b) 
 debt, with the following exception. 
 
B Y PERFORMANCE. 1 2 1 
 
 (a) Tobey v. Barber, 5 Johns. 68, 72. 
 McConnell v. Stettinius, 2 Gilm. 707. 
 Peter v. Beverly, 10 Pet. 532. 
 Downey v. Hicks, 14 How. 249. 
 Wilhelm v. Schmidt, 84 111. 183. 
 
 Stone and Gravel Co. v. Iron Works, 124 111. 623. 
 Jansen v. Grimshaw, 125 111. 468. 
 
 (b) Whitney v. Goin, 20 N. H. 354. 
 Monroe v. Hoff, 5 Denio, 360. 
 
 Exception. — ^The rule does not apply where 
 the negotiable instrument of a third person is 
 given without guaranty or indorsement or is 
 indorsed without recourse for a debt contracted 
 at the time. 
 
 Whitbeck v. VanNess, 1 1 Johns, p. 414. 
 Breed v. Cook, 15 Johns. 241. 
 Noel V. Murray, 13 N. Y. 167. 
 
 As where a note of a third person is transferred 
 by mere delivery or is indorsed without recourse for 
 the price of goods sold at the time. Such a trans- 
 action is considered a barter or exchange of the note 
 for the goods. 
 
 Where a promisor has made a proper offer 
 of performance to the promisee and the offer 
 has not been accepted, the promisor is thereby 
 discharged from liability on his promise,' 
 
 Exception. — Where the performance due 
 consists in the payment of money a tender by 
 the debtor does not of itself constitute a dis- 
 charge of the debt." 
 
2 DISCHARGE OF CONTRACT. 
 
 1. Startup V. Macdonald, 6 M. & G. 593- 
 Lamb v. Lathrop, 13 Wend. 95. 
 
 2. In order that the debtor may avail himself of a 
 tender as a defense he must, from the time of making 
 it, continue ready and willing to pay the debt, and if 
 sued upon it must pay the money into court. The 
 tender thus kept good puts a stop to accruing dam- 
 ages or interest for delay in payment, and if the 
 debtor is sued, entitles him to judgment for his costs. 
 
 Aulger V. Clay, 109 111. 487, 492. 
 Bissell V. Heyward, 96 U. S. 580. 
 
 The object of payment into court is to place the 
 money tendered where the plaintiff will be sure to get 
 it. It then becomes the plaintiff's money and the 
 defendant cannot dispute his right to it. 
 
 Becker v. Boon, 61 N. Y. 322. 
 
CHAPTER XI. 
 IMPOSSIBILITY OF PERFORMANCE. 
 
 As a general rule where there is a positive con- 
 tract to do a thing possible in its nature and by law, 
 the promisor must do it or pay damages for not doing 
 it, although in consequence of some unforeseen cause 
 over which he had no control the performance of his 
 contract has become impossible. 
 
 The Harriman, 9 Wal. i6i, 172. 
 Jones V. United States, 96 U. S. 24, 29. 
 Bacon v. Cobb, 45 111. 47, 52. 
 Booth V. Mill Co., 60 N. Y. 487, 491. 
 Harrison v. Ry. Co., 74 Mo. 364, 371. 
 
 Thus, where a party had agreed to transport 
 goods from New York to Independence, Mo., within 
 twenty-six days, and failed to accomplish it in that 
 time, it was held that the fact that a public canal on 
 which the goods were intended to be transported a 
 part of the distance was rendered impassable by an 
 unusual freshet, and that this occasioned the deten- 
 tion, was not a legal excuse therefor. 
 Harmony v. Bingham, 12 N. Y. 99. 
 
 But where the cause of the subsequent impossi- 
 bility of performance is of such a character that it 
 
124 DISCHARGE OF CONTRACT. 
 
 cannot reasonably be supposed to have been in the 
 contemplation of the promisor when the contract 
 was made, he will not be held bound by general 
 words which, though large enough to include, were 
 not used with reference to the possibility of the par- 
 ticular contingency which afterwards happens. 
 Baily v. De Ciespigny, L. R. 4 Q. B. 185. 
 
 In such case it will be presumed that according 
 to the true intention of the parties the contract was 
 conditional on its performance continuing possible in 
 fact and in law. 
 
 In the following cases an undertaking in 
 general terms to do a thing will not be con- 
 strued to be absolute and unconditional where- 
 by the promisor would be held bound to make 
 compensation in damages for its non-perform- 
 ance: 
 
 I- Where a specific thing whose continued 
 existence is essential to the performance is 
 destroyed without default of the promisor. 
 
 Dexter v. Norton, 47 N, Y. 62, 64. 
 Wells V. Calnan, 107 ilass. 514, 515. 
 Walker v. Tucker, 70 111. 527, 542. 
 The Tornado, 108 U. S. 342, 351. 
 Ward V. Vance, 93 Pa. St. 499. 
 
 Thus, where a music hall was let for a concert 
 on a future day, and before the day arrived it was 
 accidentally destroyed by fire, the lessor was dis- 
 charged from liability because from the nature of 
 
IMPOSSIBILITY OF PERFORMANCE. 125 
 
 the contract it was apparent that the parties con- 
 templated the continuing existence of the hall as the 
 foundation of the undertaking. 
 
 Taylor v. Caldwell, 3 B. & S. 826. 
 
 2- Where the undertaking is for the personal 
 services of the promisor, and the performance 
 becomes impossible by reason of his death, 
 insanity, or incapacitating sickness. 
 
 Boast V. Firth, L. R. 4 C. P. i, 7. 
 Spalding v. Rosa, 71 N. Y. 40, 44. 
 Silerv. Gray, 86 N. C. 566. 
 Martin v. Hunt, i Allen, p. 419, 
 
 Thus, the contract of an eminent pianist to per- 
 form at a concert on an appointed day was construed 
 to be conditional upon her health permitting her to 
 do so. The principle applies wherever there is a 
 contract to perform a service which no deputy or 
 legal representative could perform. 
 
 Robinson v. Davison, L. R. 6 Ex. 269. 
 
 3- Where the performance becomes impossi- 
 ble by law. As by reason of a change in the 
 law or some action by or under the authority 
 of the government. 
 
 Jones' V. Judd, 4 N. Y. 411. 
 
 People V. Ins. Co., 91 N. Y. 174. 
 
 Buffalo &c. R. R. Co. v. R. R. Co., iii N. Y. 132. 
 
 Semmes v. Ins. Co., 13 Wal. 158. 
 
 Thus, where a party leased a tract of land with a 
 covenant that only ornamental buildings should be 
 
126 DISCHARGE OF CONTRACT. 
 
 erected on an adjacent tract retained by him, and 
 the tract retained was subsequently taken and used 
 for a station by a railroad company under powers 
 given to it by the legislature, it was held that the 
 lessor was discharged from his covenant. 
 
 Baily v. De Crespigny, L. R. 4 Q. B. 180. 
 
 So it was held that a covenant in the lease of a 
 wooden building to rebuild the same in case of fire, 
 was released by the subsequent passage of a munic- 
 ipal ordinance prohibiting the erection of wooden 
 buildings in that locality. 
 
 Cordes v. Miller, 39 Mich. 581. 
 
 If a party has an option to perform his con- 
 tract in either of two modes, and one of the 
 modes becomes impossible, he is bound to 
 perform it in the other mode. 
 
 State V. Worthington, 7 Ohio, 171. 
 Jacquinet v. Boutron, 19 La. Ann. 30. 
 
 Thus, a creditor who in his receipt for a safe 
 taken by him as collateral security, promised on 
 payment of the debt to deliver the safe to the debtor 
 or its equivalent in money, was held liable for the 
 value thereof where, without fault on his part, it was 
 destroyed by fire while in his possession. 
 Drake v. White, 117 Mass. 10. 
 
CHAPTER XII. 
 
 DISCHARGE OF CONTRACT BY OPERATION 
 OF LAW. 
 
 Discharge of a contract by operation of law 
 and without reference to the intention of the 
 parties may occur 
 
 By Merger; 
 
 By Alteration of a Written Instrument; 
 
 By Bankruptcy. 
 
 MERGER. 
 
 Where a new security of a higher nature in 
 legal operation than an old one is taken by 
 the same person against the same person for 
 the same debt or demand, the old security is 
 merged in and extinguished by the new one. 
 
 Price V. Moulton, lo C. B. 561, 573. 
 Jones V. Johnson, 3 W. & S. 276, 277. 
 
 As where the parties to a simple contract enter 
 into one on the same matter under seal, the latter 
 being of higher efficacy than the former. 
 
128 DISCHARGE OF CONTRACT. 
 
 Banorgee v. Hovey, 5 Mass. p. 40. 
 Wann v. McNulty, 2 Gilm. p. 358. 
 
 ALTERATION OF A WRITTEN INSTRUMENT. 
 
 The intentional alteration' of a written con- 
 tract in a material part^ by or with the assent 
 of one of the parties thereto' without the con- 
 sent of the other/ discharges all the executory 
 obligations^ in favor of the former^ against the 
 latter.' 
 
 Angle V. Ins. Co., 92 U. S. 330. 
 Smith V. United States, 2 Wal. 219, 232. 
 Gardiner v. Harback, 21 III. p. 130. 
 Meyer v. Huneke, 55 N. Y. 412. 
 
 As where the alteration of a promissory note 
 would give or increase interest. 
 Neffv. Horner, 63 Pa. St. 327. 
 Fay V. Smith, 1 Allen, 477. 
 McGrath v. Clark, 56 N. Y. 34. 
 Thompson v. Massie, 41 Ohio St. 307. 
 Benedict v. Miner, 58 111. 19. 
 
 The ground of the rule is public policy for the 
 protection of legal instruments from fraud and sub- 
 stitution. The purpose is to keep interested parties 
 from tampering with them by the risk of forfeiting 
 them in case of detection. 
 
 1. An accidental alteration does not prejudice the 
 promisee. 
 
 Neflf V. Horner, 63 Pa. St. p. 330. 
 Bledsoe v. Graves, 4 Scam. p. 384. 
 
 2. The promisor is discharged from his liability 
 by any alteration that would give the contract a 
 
B Y OPERA TION OF LAW. 129 
 
 different operation, whether the alteration be or be 
 not to his prejudice. 
 
 Gardner v. Walsh, 5 E. & B. 83, 89. 
 
 Coburn v. Webb; 56 Ind. 96, 100. 
 
 Wyman v. Yeomans, 84 111. 403, 405. 
 
 Martin v. Thomas, 24 How. 315, 317. 
 
 As where the time for payment of a promissory 
 note is thereby either hastened or delayed. 
 Wood V. Steele, 6 Wal. 80, 82. 
 Davis V. Jenney, I Met. 221. 
 Vance v. Lowther, i Ex. D. 1 76. 
 Crawford v. West Side Bank, 100 N. Y. 50. 
 
 An alteration which only expresses what the law 
 would otherwise imply is not a material alteration. 
 
 Hunt V. Adams, 6 Mass. 519, 522. 
 Brown v. Pinkham, 18 Pick. 172, 174. 
 Kelly V. Trumble, 74 111. 428, 429. 
 Rudesill v. Jefferson County, 85 111. 446, 448. 
 
 As where the words "on demand" are inserted 
 in a promissory note expressing no time for payment. 
 Aldous V. Cornwell, L. R. 3 Q. B. 573. 
 
 3. An alteration by a stranger does not affect the 
 
 contract. 
 
 Rees V. Overbaugh, 6 Cow. 746, 748. 
 Condict V. Flower, io5 111. 105, 114. 
 Bigelow V. Stilphen, 35 Vt. 521. 
 Hunt V. Gray, 35 N. J. L. 227. 
 Drum V. Drum, 133 Mass. p. 568. 
 
 4. An alteration with the consent of the other 
 party would amount to a new contract. 
 
 Stiles V. Probst, 69 111. 382, 387. 
 Speake v. United States, 9 Craiich, 28, 37. 
 Smith V. Weld, 2 Pa. St. p. 55. 
 Tompkins v. Corwin, 9 Cow. 255. 
 
130 DISCHARGE OF CONTRACT. 
 
 5. An alteration in a deed of conveyance does 
 not divest the estate vested by the deed, although it 
 may avoid the covenants therein. 
 
 Chessman v. Whittemore, 23 Pick. 231, 233. 
 Kendall v. Kendall, 12 Allen, 92, 93. 
 Herrick v. Malin, 22 Wend, 388, 393. 
 Arrison v. Harmstead, 2 Pa. St, 191, 194. 
 
 6. The obligations in favor of a party not con- 
 senting to the alteration remain unaffected, provided 
 the nature and extent of the alteration can be clearly 
 ascertained, and it can be seen what the contract 
 was at the time it was executed. 
 
 Bledsoe v. Graves, 4 Scam. 382, 384. 
 Martin v. Ins. Co. loi N. Y. 498, 503. 
 Drum V. Drum, 133 Mass. 566, 568, 
 
 7. Where there are several promisors those con- 
 senting to the alteration are bound thereby, while 
 the rest are discharged. 
 
 Gardiner v. Harback, 21 111. 129. 
 Prettyman v. Goodrich, 23 111. 330. 
 Canon V. Grigsby, 116 111. 151. 
 Warring v. Williams, 8 Pick. 322. 
 State V. Van Pelt, i Ind. 304. 
 Myers v. Nell, 84 Pa. St. 369. 
 Davis V. Bauer, 41 Ohio St. 257. 
 
 BANKRUPTCY. 
 
 Where there is, a bankrupt law a discharge 
 in bankruptcy duly granted, will, subject to 
 the limitations, if any, imposed by the law, 
 release the bankrupt from all debts and liabil- 
 ities provable against his estate in bankruptcy. 
 
CHAPTER XIII. 
 DISCHARGE OF CONTRACT BY BREACH. 
 
 Upon every breach of a contract the injured 
 party acquires a right of action for compensation, 
 but it is not every breach by one of the parties that 
 will discharge the other from performance of his 
 part of the contract For the promise of one party 
 may be absolute and independent of that of the 
 other, or the breach may be in a matter not consid- 
 ered by the parties as essential to the continuance of 
 the contract. 
 
 If one of the parties to a contract breaks it 
 in one of the following ways, the other party 
 may avail himself of the breach as a discharge 
 from the further performance on his part, and 
 thereupon bring an action for compensation in 
 damages. 
 
 1. Breach by renunciation of the contract. 
 
 (i) The renunciation may be made before per- 
 formance of the contract is due. 
 
 When one of the parties, before the time of per- 
 formance arrives, repudiates the contract and 
 
132 DISCHARGE OF CONTRACT. 
 
 declares he will no longer be bound by it, it is quite 
 right to hold that the other party, if so minded, may 
 act on the declaration and treat the contract as 
 broken and bring an action immediately, without 
 waiting for the time of performance. 
 
 Hochster v. De la Tour, 2 E. & B. 678. 
 
 Frost V. Knight, L. R. 7 Ex. iii, 114. 
 
 Fox V. Kitton, 19 111. 519, 533. 
 
 Chamber of Commerce, v. SoUitt, 43 111. 519, 523. 
 
 FoUansbee v. Adams, 86 111. 13, 14. 
 
 Grau V. McVicker, 8 Biss. 13, 17. 
 
 Howard v. Daly, 61 N. Y. 362, 374. 
 
 Ferris v. Spooner, 102 N. Y. 10. 
 
 It was so held where a person contracted to em- 
 ploy another as courier from a future day for three 
 months and before the day gave him notice that he 
 had changed his mind and should not give the em- 
 ployment. 
 
 Hochster v. De la Tour, supra. 
 
 So, also, where a man was engaged to marry a 
 woman upon the death of his father, and whilst the 
 father was living broke off the engagement. 
 
 Frost V. Knight, supra. 
 
 Burtis V. Thompson, 42 N. Y. 246. 
 
 HoUoway v. Griffith, 32 Iowa, 409. 
 
 The rule has no application to unilateral contracts 
 such as promissory notes. 
 
 See Burtis v. Thompson, 42 N. Y. p. 250. 
 
 It is not applicable to cases where the repudi- 
 ation is only partial, as in the case of a lease con- 
 taining several covenants where there is a refusal to 
 comply with a particular covenant not going to the 
 whole consideration. 
 
BY BREACH. 133 
 
 See Johnstone v. Milling, 16 Q. B. 460, 468. 
 Willson V. Phillips, 2 Bing. 13. 
 Obermyer v. Nichols, 6 Binn. 159. 
 
 Expressions which do not amount to an absolute 
 and unequivocal refusal to perform the contract 
 cannot be treated as a renunciation. 
 
 Dingley v. Oler, 117 U. S. 490, 502. 
 Johnstone v. Milling, i6 Q. B. D. 460. 
 
 The promisee is not bound to take a renunciation 
 by the promisor as a breach of the contract (a). He 
 may treat it as inoperative, but in- that case he keeps 
 the contract open for the benefit of the promisor as 
 well as his own, and thereby enables the promisor 
 not only to complete the contract, if so disposed, but 
 also to take advantage of any supervening circum- 
 stance that would justify him in declining to com- 
 plete it (b). 
 
 (a) Kadish v. Young, 108 111. 170, 177. 
 Zuck V. McClui-e, 98 Pa. St. 541, 545. 
 
 (b) Frost V. Knight, L. R. 7 Ex. p. 112. 
 Kadish v. Young, 108 111. p. 181. 
 Howard v. Daly, 61 N. Y. p. 375. 
 
 Thus, where the charterer of a ship gave notice 
 to the shipowner that he should be unable to provide 
 a cargo, and requested him to leave the port, but the 
 shipowner declined to do so and insisted upon hav- 
 ing a cargo in fulfilment of the charter party; and 
 whilst the days allowed for loading were still unex- 
 pired, a declaration of war put an end to the charter 
 party, it was held that the charterer was discharged. 
 
 Avery v. Bowden, 5 E. & B. 714. 
 
134 DISCHARGE OF CONTRACT. 
 
 (2) The renunciation may be made in the course 
 of performance of the contract. 
 
 The promisee may treat the renunciation as a dis- 
 charge from further performance on his part, and 
 thereupon bring an action, although such perform- 
 ance would otherwise be a condition precedent to the 
 liability of the promisor. 
 
 Cort V. Ry. Co., 17 Q. B. 127, 148. 
 Hosmer v. Wilson, 7 Mich. 294, 304. 
 McCormick v. Basal, 46 Iowa, 235, Z36. 
 James v. Adams, 16 W. Va. 245, 266. 
 Dugan V. Anderson, 36 Md. 567, 584. 
 Parker v. Russell, 133 Mass. 74, 76. 
 
 Thus, where a contract was made for the manu- 
 facture and supply of .goods of a specified kind, to 
 be delivered in certain quantities monthly, and the 
 buyer after accepting a portion of the goods gave 
 notice to the seller that he had no occasion for more 
 and would not accept or pay for them, it was held 
 that the seller might claim for breach of contract 
 without manufacturing or tendering the rest of the 
 goods. 
 
 Cort V. Ry. Co. , supra. 
 
 2. Breach by an act that renders the contract 
 impossible of performance. 
 
 (i) The disabling act may be done before the 
 performance of the contract is due. 
 
 When one of the parties, before the time for per- 
 formance arrives, makes it impossible that he should 
 perform his promise, the other party may treat the 
 contract as broken and bring an action immediately. 
 
BY BREACH. 135 
 
 Ford V. Tiley, 6 B. & C. 325. 
 
 Short V. Stone, 8 Q. B. 358. 
 
 Lee V. Pennington, 7 111. App. 247, 251. 
 
 Wolf V. Marsh, 54 Cal. 228, 232. 
 
 Hawley v. Keeler, 53 N. Y. 1 14. 
 
 Newcomb v. Brackett, 16 Mass. 161. 
 
 Heard v. Bowers, 23 Pick. p. 460. 
 
 It was so held where A contracted with B to exe- 
 cute a lease to him on a future day for a certain 
 term and before the day executed a lease to C for the 
 same term. 
 
 Ford V. Tiley, supra. 
 
 Lovelock v.^Franklyn, 8 Q. B. 371. 
 
 So, also, where a man promised to marry a woman 
 on a future day and before the day married another 
 woman. 
 
 Short V. Stone, supra. 
 Sheahan v. Barry, 27 Mich. 217. 
 King V. Kersey, 2 Ind. 402. 
 
 (2) The disabling act may be done in the course 
 of performance of the contract. 
 
 The other party may treat such act as a discharge 
 from further performance, and claim compensation 
 for the part he has performed or the damages he has 
 sustained. 
 
 Planche v. Colburn, 8 Bing. 14, 16. 
 Chicago V. Tilley, 103 U. S. 146, 154. 
 Lovell V. Ins. Co., iii U. S. 264, 274. 
 ShaflFner v. Killian, 7 111. App. 620, 622. 
 Moulton V. Trask, 9 Met. 577, 580. 
 Derby v. Johnson, 21 Vt. 17. 
 
 Thus, where a publisher engaged an author to 
 write a treatise for a periodical, and before comple- 
 
136 DISCHARGE OF CONTRACT. 
 
 tion of the treatise abandoned the publication of the 
 periodical, it was held that the author was not bound 
 to complete the treatise, and was entitled to claim 
 remuneration for the part already written. 
 Planche v. Colburn, supra. 
 
 3. Breach by a failure of performance where 
 the performance is a condition concurrent with' 
 or precedent to° the performance of the other 
 party.3 
 
 1. In ordinary contracts for the sale of goods the 
 obligation of the seller to deliver and that of the 
 buyer to pay are concurrent conditions in the nature 
 of mutual conditions precedent, and neither can en- 
 force the contract against the other without showing 
 performance or readiness and willingness to perform 
 his own promise. 
 
 Morton v. Lamb, 7 T. R. 121, 125. 
 Bank v. Hagner, i Pet. 455, 465. 
 Hough V. Rawson, 17 111. 588. 
 Metz V. Albrecht, 52 111. 491. 
 Smith V. Lewis, 26 Conn. no. 
 Clark V. Weis, 87 111. 438. 
 
 2. In ordinary contracts for service the perform- 
 ance of the service is a condition precedent, and the 
 employee is not entitled to payment without render- 
 ing or offering to render the agreed service. 
 
 McMillan v. Vanderlip, 12 Johns. 165. 
 Stark V. Parker, 2 Pick. 267. 
 Olmstead v. Beale, 19 Pick. 528. 
 Eldridge v. Rowe, 2 Gilm. 91. 
 Badgeley v. Heald, 4 Gilm. 64. 
 Hansen v. Erickson, 28 111. 257. 
 
BY BREACH. 137 
 
 3. Where the stipulations are entirely independ- 
 ent, or where the contract is severable, there may 
 in some cases be a suit without performance or full 
 performance by the plaintiff. And the parties may 
 include in one instrument matters so distinct, or 
 make their intention so plain that the court must 
 adopt that construction. But where the thing to be 
 done on one side is the consideration for the thing to 
 be done on the other, the court will lean toward con- 
 sidering them as dependent or conditional, i. e,, one 
 cannot sue the other without showing performance, 
 or an offer of performance on his part. And this 
 especially in the case where money is to be paid for 
 something done or delivered, when it could not be 
 supposed that the intention of the parties was that 
 the money was to be paid without performance on 
 the other side. 
 
 King Philip Mills v. Slater, 12 R. I. 88. 
 
 The question whether covenants are to be held 
 dependent or independent of each other, is to be 
 determined by the intention and meaning of the par- 
 ties as it appears on the instrument, and by the appli- 
 cation of common sense to each particular case; to 
 which intention, when once discovered, all technical 
 forms of expression must give way. 
 
 Stavers v. Curling, 3 Bing. (N. C.) 355. 
 Philadelphia &c. R. R. Co. v. Howard, 13 How. 339. 
 Lowber v. Bangs, 2 Wal. 736, 745. 
 
 4. Breach by a failure of performance in a 
 matter considered by the parties essential to 
 the continuance of the contract. 
 
138 DISCHARGE OF CONTRACT. 
 
 If the failure is in a matter which the parties to 
 the contract have expressly stated shall be vital to its 
 existence (a), or which upon a reasonable construc- 
 tion of the contract they may be deemed to have 
 considered as vital, it will release the promisee from 
 a performance on his part (b). 
 
 (a) As where the time of performing a contract 
 is expressly stated to be of the essence of the con- 
 tract. 
 
 Chrisman v. Miller, 21 111. 227, 235. 
 Wynkoop v. Cowing, 21 111. 570, 585. 
 Taylor v. Longworth, 14 Pet. 172, 174. 
 Grigg V. Landis, 21 N. J. Eq. 494, 503. 
 Hicks V. Aylsworth, 13 R. I. 562, 566. 
 
 (b) If the subject-matter of a contract for sale be 
 of greater or less value according to the efflux of 
 time, time is of the essence of the contract. 
 
 Wilson V. Roots, 1 19 111. 379, 392. 
 Goldsmith v. Guild, 10 Allen, 239, 241. 
 Carter v. Phillips, 144 Mass. 100, 103. 
 
 It was so held where the manifest purpose and 
 object of the contract was to procure at a specified 
 time and place necessary supplies of clothing for an 
 army in the field. 
 
 Jones V. United States, 96 U. S. 24, 27. 
 
 In a mercantile contract, a statement descriptive 
 of the subject-matter, or of some material incident, 
 such as the time or place of shipment, is ordinarily 
 to be regarded as a condition precedent, upon the 
 failure or non-performance of which the party 
 aggrieved may repudiate the whole contract. 
 
BY BREACH. 139 
 
 Norrington v. Wright, 115 U. S. 188. 
 
 Cleveland Rolling Mill Co. v. Rhodes, 121 U. S. 255. 
 
 Pope V. Porter, 102 N. Y. 366. 
 
 Rommel v. Wingate, 103 Mass. 327. 
 
 But where one of the parties to a contract is 
 bound to do certain work within a certain time, and 
 fails to complete it within the stipulated time, and 
 the other party urges him to go on, this is a waiver 
 of strict performance as to time, and a recovery may 
 be had on the basis of the amount and value of the 
 work done, reckoned at the contract price, deducting 
 damages for the delay. 
 
 Phillips &c. Co. V. Seymour, 91 U. S. 646, 650. 
 
 A matter is always treated as vital, when it goes 
 to the root of the contract, so that a failure therein 
 would frustrate the main object of the contract. 
 
 Thus, where a singer was engaged for a season to 
 take the principal part in a new opera, it was held 
 that her failure to perform on the opening and the 
 three next succeeding nights, went to the root of the 
 contract and discharged the other party. 
 
 Poussard v. Spiers, i Q. B. D. 410. 
 See also Spalding v. Rosa, 71 N. Y. 40. 
 
 And, in general, where the failure to perform a 
 contract is in respect to matters which would render 
 the performance of the residue a thing different in 
 substance from what was contracted for, the party 
 not in default may abandon the contract. 
 Leopold V. Salkey, 89 111. 412, 422. 
 
 But where, in a contract for the exclusive services 
 of a singer for a season, one of the stipulations was 
 
I40 DISCHARGE OF CONTRACT. 
 
 that he should " be in London without fail at least 
 six days before the commencement of his engagement 
 for the purpose of rehearsals," and he arrived there 
 only two days before the appointed time, the court, 
 upon looking at the whole contract, was of opinion 
 that this stipulation did not go to the root of the con- 
 tract so that a failure to perform it would render the 
 performance of the rest of the contract a thing dif- 
 ferent in substance from what was contracted for. 
 It was accordingly held that the breach of the stipu- 
 lation did not authorize the other party to abandon 
 the contract, but merely partially affected it, and 
 might be compensated for in damages. 
 
 Bettini v. Gye, i Q. B. D. 183. 
 
 See also Weintz v. Hafner, 78 111. 27. 
 
 And where the substantial part of the consider- 
 ation, embracing several stipulations or acts, has been 
 received by the defendant and the non-performance 
 of one of them does not materially impair the benefit 
 from the performance of the others, and the loss 
 occasioned by the breach may be compensated in 
 damages, the defendant has his remedy by recoup- 
 ment or by a cross action, but will not be allowed 
 to set up the breach as a ground to defeat the plain- 
 tiff's entire claim. 
 
 For in such cases the importance of the part per- 
 formed and the relation it bears to the contract as a 
 whole are such that it cannot reasonably be supposed 
 that the parties intended that in case of a failure in 
 such a relatively unimportant particular the defend- 
 ant should enjoy the benefit of what is done and the 
 plaintiff have no compensation. 
 
BY BREACH. 141 
 
 Boone v. Eyre, I H. Bl. 273, note a. 
 
 Nelson v. Oren, 41 111. 18, 23. 
 
 White V. Gillman, 43 111. 502. 
 
 Lunn V. Gage, 37 111. 19. 
 
 Stavers v. Curling, 3 Bing. (N. C.) 355. 
 
 Danville Bridge Co. v. Pomroy, 15 Pa. St. 151, 159. 
 
 Leonard v. Dyer, 26 Conn. 172. 
 
 Nolan V. Whitney, 88 N. Y. 648. 
 
 Kane v. Stone Co., 39 Ohio St. i. 
 
 Emigrant Co. v. County, 100 U. S. 70. 
 
 Ellen V. Topp, 6 Ex. p. 441. 
 
 Graves v. Legg, 9 Ex. p. 716. 
 
 Jones V. Marsh, 22 Vt. p. 148. 
 
 See also Richards v. Shaw, 67 111. 222. 
 
 Wilson V. Wagar, 26 Mich. 452. 
 
CHAPTER XIV. 
 DISCHARGE OF RIGHT OF ACTION. 
 
 It has already been stated that upon every breach 
 of a contract the injured party acquires a right of 
 action for compensation. 
 
 The compensation at common law is always 
 pecuniary damages. 
 
 In certain classes of contracts where the remedy 
 at law would furnish, an inadequate compensation, a 
 court of equity will take jurisdiction and decree a 
 specific performance of the contract. 
 
 But inasmuch as pecuniary damages and specific 
 performance depend upon, and to a large extent vary 
 with the nature of the contract which has been 
 broken, they hardly belong to the subject of contracts 
 in general, and can be more profitably considered 
 in immediate connection with the particular kinds of 
 contracts. 
 
 We shall, therefore, leave the subject of contracts 
 in general after stating the rules that relate to the 
 discharge of the right of action arising from breach 
 of contract, 
 
 The right of action arising from a breach of 
 contract may be discharged by 
 
ACCORD AND SATISFACTION. 143 
 
 A release; 
 
 An accord and satisfaction; 
 
 The judgment of a court of competent juris- 
 diction; 
 
 Lapse of time. 
 
 RELEASE. 
 
 The release of a right of action must be 
 under seal or for a valuable consideration 
 operating by way of accord and satisfaction. 
 
 111. Cent. R. R. Co. v. Read,-37 111. 484, 511. 
 Kidder v. Kidder, 33 Pa. St. 268. 
 Jackson v. Stackhouse, i Cow. 122. 
 Hunt V. Brown, 146 Mass. 253, 254. 
 
 ACCORD AND SATISFACTION. 
 
 An accord and satisfaction takes place. 
 
 1. Where there is an agreement in the nature 
 of an offer to accept the performance (not the 
 promise) of something new in satisfaction of 
 a claim, and that which is so agreed upon is 
 actually performed before the withdrawal of 
 the offer. 
 
 Simmons v. Clark, 56 111. 96, loi. 
 Kromer v. Heim, .75 N. Y. 574. 
 Pettis V. Ray, 12 R. I. 344. 
 Costello V. Cady, 102 Mass. 140. 
 Petty V. Allen, 134 Mass. 265. 
 Memphis v. Brown, 20 Wal. 308. 
 
144 DISCHARGE OF CONTRACT. 
 
 The accord without satisfaction is no bar to an 
 action for the claim, for the accord alone is merely 
 the agreement of the parties as to what may be given 
 or done and accepted in satisfaction. Accordingly 
 a mere agreement between debtor and creditor to 
 give and take payment of the debt in goods to be 
 delivered, constitutes no answer to an action for the 
 debt, unless the goods have been actually delivered 
 and accepted in satisfaction. 
 
 2. Where there is an agreement whereby it 
 clearly appears that the promise (not the per- 
 formance) of something new is taken for and 
 in satisfaction of a claim, 
 
 Whitney v. Cook, 53 Miss. 551, 559. 
 Bennett v. Hill, 14 R. I. 322, 324. 
 Morehouse v. Bank, 98 N. Y. 503, 508. 
 
 Thus, by a clear agreement to that effect, a nego- 
 tiable instrument maybe given and accepted in abso- 
 lute satisfaction of a debt, and not merely as a 
 conditional payment defeasible by dishonor of the 
 instrument. 
 
 Witherby v. Mann, 11 Johns. 518. 
 
 Strong V. King, 35 111. 9. 
 
 Gage V. Lewis, 68 111. p. 618. 
 
 Yates V. Valentine, 71 111. 643. 
 
 So an agreement for a composition between a 
 debtor and his creditors may be made and accepted 
 in satisfaction of the debts. 
 
 Good V. Cheesman, 2 B. & Ad. 328. 
 
 Boyd V. Hind, i H. & N. p. 947. 
 
 Kromer v. Heim, 75 N. Y. p. 577. 
 
 Baxter v. Bell, 86 N. Y. 195, 199. 
 
JUDGMENT OF A COURT. 145 
 
 JUDGMENT OF A. COURT. 
 
 Where a cause of action is pursued to final' 
 judgment in a court of competent jurisdiction,'' 
 a judgment in favor of the plaintiff discharges 
 the cause of action by way of merger,' and a 
 judgment against him on the merits'* discharges 
 it by way of estoppel.^ 
 
 1. Webb V. Bucklew, 82 N. Y. 555. 
 Linington V. Strong, III 111. 152. 
 
 2. Hickey v. Stewart, 3 How. 750, 762. 
 Richardson v. Aiken, 84 111. 221. 
 Mount V. Scholes, 120 111. 394. 
 
 3. Wayman v. Cochrane, 35 111. 152. 
 Runnamaker v. Cordray, 54 111. 303. 
 Boynton v. Ball, 105 111. 627. 
 Mason v. Eldred, 6 Wal. 231. 
 
 4. A judgment against a plaintiff because the ac- 
 tion was prematurely brought is not a bar to a suit 
 subsequently brought after the cause of action has 
 accrued. 
 
 Brackett v. People, 115 111. 29. 
 McFarlane v. Cushman, 21 Wis. 401. 
 Bull V. Hopkins, 7 Johns. 22. 
 Kane v. Fisher, 2 Watts, 246. 
 
 So if the plaintiff fails on demurrer in his first 
 action from the omission of an essential allegation 
 in his declaration which is supplied in the second 
 suit, the judgment in the first suit is not a bar to the 
 second. 
 
 Gould V. R. R. Co., 91 U. S. 526. 
 Stowell V. Chamberlain, 60 N. Y. 272. 
 
146 DISCHARGE OF CONTRACT. 
 
 S. Marsh v. Pier, 4 Rawle, 273, 288. 
 Norton v. Doherty, 3 Gray, 372. 
 Cromwell v. Sac, 94 U. S. 351. 
 Russell V. Place, 94 U. S. 606. 
 Campbell v. Rankin, 99 U. S. 261. 
 Patrick v. Shaffer, 94 N. Y. 423. 
 Nispel V. Laparle, 74 111. 306. 
 
 If the judgment be set aside (a) or reversed (b) 
 the parties will be remitted to their former positions 
 so far as it can be done without prejudice to the 
 rights of third persons (c). A final judgment in the 
 plaintiff's favor may be discharged by payment of the 
 judgment (d) or by satisfaction obtained by process 
 of execution (e). 
 
 (a) Clark v. Bowen, 22 How. 270. 
 
 (b) Chickering v. Failes, 29 111. 294, 303. 
 
 (c) Wadhams v. Gay, 73 111. 415, 422. 
 
 (d) Thompkins v. Bank, 53 III. 57. 
 Booth V. Bank, 74 N. Y. 228. 
 
 (e) Chandler v. Higgins, 109 111. 602. 
 Smith V. Hughes, 24 111. 270. 
 Harris v. Evans, 81 111. 419. 
 
 LAPSE OF TIME. 
 
 , In the several States there are statutes called 
 Statutes of Limitation, which prescribe a limit of 
 time for the commencement of an action, and when 
 invoked afford an absolute bar to an action brought 
 beyond the prescribed time. 
 
 IN ILLINOIS. 
 
 The time prescribed for an action on a con- 
 tract after the breach thereof is five years, if 
 
LAPSE OF TIME. 147 
 
 the contract is not in writing, and ten years if 
 it is in writing.' 
 
 The time may be extended by part payment 
 or new promise to pay, in the case of an un- 
 written contract, by parol, for five years,'' and 
 in the case of a written contract, by writing, 
 for ten years after the time of such payment 
 or promise to pay.^ 
 
 1. R. S. Ch. 83, §§ 15, 16. 
 
 2. Carroll v. Forsyth, 69 111. 127. 
 
 3. R. S. Ch. 83, § 16. 
 
 A defendant may plead a set-off or counter 
 claim barred by the Statute of Limitation, 
 while held and owned by him, to any action, 
 the cause of which was owned by the plaintiff" 
 or person under whom he claims, before such 
 set-off" or counter claim was so barred, and not 
 otherwise. This, however, does not affect the 
 right of a bona fide assignee of a negotiable 
 instrument assigned before due, 
 
 R. S. Ch. 83, § 17. 
 
 See Steere v. Brownell, 124 111. 27. 
 
 If the promisor is out of the State when the 
 right of action accrues, or thereafter departs 
 from and resides out of the State, the time of 
 his absence is no part of the prescribed time. 
 
148 DISCHARGE OF CONTRACT. 
 
 This, however, has no application where the 
 promisor and promisee were both non-resi- 
 dents at the time the right of action accrued.' 
 
 But an action cannot be maintained in this 
 State on a contract when the right of action 
 thereon has existed in another State or coun- 
 try long enough to be barred by the laws 
 thereof/ 
 
 1. R. S. Ch. 83, § 18. 
 
 2. R. S. Ch. 83, § 20. 
 Osgood V. Artt, 11 Biss. 160. 
 Humphrey v. Cole, 14 HI. App. 56. 
 
 If either the promisee or the promisor die 
 within the year previous to the expiration of 
 the prescribed time, and the cause of action 
 survives, an action may be commenced, in the 
 one case, by the representative of the prom- 
 isee within one year from his death, and in the 
 other case, against the representative of the 
 promisor within one year after his appoint- 
 ment. 
 
 R. S. Ch. 83, § 19. 
 
 If the promisee is a minor, or insane, or im- 
 prisoned on a criminal charge, at the time the 
 cause of action accrues, he may bring the action 
 within two years after the disability is removed. 
 
 R. S. Ch. 83, § 21. 
 
LAPSE OF TIME. 149 
 
 If a person liable to an action fraudulently 
 conceals the cause of action from the person 
 entitled thereto, the latter may bring an action 
 within five years after he discovers that he has 
 such cause of action. 
 
 R. S. Ch. 83, § 22. 
 
 This provision is more frequently invoked in cases 
 of quasi contract, or "contract implied in law," where 
 money has been obtained by wrong or paid under 
 mistake of fact. 
 
INDEX. 
 
 Abandonment, of a right, sufficient consideration, 23. 
 
 Acceptance, 
 
 of offer, 12-19. 
 
 must be absolute and identical with terms of offer, 12. 
 by mail or telegraph, 16. 
 by conduct, 18. 
 
 by performance of conditions or acceptance of proflFered con- 
 sideration, 18. 
 of offer by advertisement, 19. 
 
 Accord and Satisfaction, 
 when it takes place, 143. 
 accord without satisfaction, 144. 
 
 Adequacy, of consideration, 23. 
 
 Advertisement, 
 
 offer of reward by, 19. 
 revocation of offer, 19. 
 
 Agent, 
 
 under Statute of Frauds 
 must be a third person, 37. 
 where he signs in his own name, 37. 
 authority of, need not be in writing, except, etc., 38, 46. 
 
 Agreement, 
 
 defined, 10. 
 
 no contract unless the terms aie certain, 17. 
 unenforceable, where the object is forbidden by law or op- 
 posed to its policy, 87.' 
 statute may forbid the object by implication, 88. 
 
152 INDEX. 
 
 Agreement (Continued.) 
 
 when a penalty implies a prohibition, 89. 
 
 opposed to the policy of the law, the leading classes of, 90-97 
 
 See Unlawful Agreements. 
 discharge of contract by, 113-116. 
 
 See Dischargt of Contract. 
 
 Alteration of Written Instrument, 
 
 circumstances under which it effects discharge, 128-130. 
 
 accidental, 128. 
 
 when material, 128. 
 
 when not material, 129. 
 
 by a stranger, 129. 
 
 with consent, 129. 
 
 in a deed of conveyance, 130. 
 
 where obligee does not consent, 130. 
 
 where some of several promisors consent, 13Q 
 
 Auction. See Public Sale. 
 
 Bankruptcy, effect of, upon debts and liabilities, 130. 
 
 Blood or Natural Affection, 
 
 not sufficient to support a promise, 25. 
 sufficient for a conveyance, 25. 
 
 Breach, 
 
 discharge of contract by, 131-141. 
 
 not every breach by one of the parlies will discharge the 
 
 other, 131. 
 renunciation of contract before performance is due, 131-133. 
 renunciation of contract in the course of performance, 134. 
 disabling act before performance is due, 134. 
 disabling act in the course of performance, 135. 
 non-performance of a condition precedent or concurr^t, 136. 
 failure of performance in a matter considered essential to con- 
 tinuance of the contract, 137. 
 when time is of the essence of the contract, 138. 
 where a matter goes to the r<jot of the contract, 139. 
 where a failure is in a relatively unimportant particular, 140. 
 
 Champerty, what is, 92. 
 
INDEX. 153 
 
 Civil Injury, what is, 8. 
 
 Common or Customary Law, 
 what it is, 4. 
 subordinate to statutes and the corstitution, 4. 
 
 Communication, by mail or telegraph, 16. 
 
 Composition with Creditors, 
 consideration for, 27. 
 fraudulent preference, 88. 
 
 agreement for a composition may be accepted in satisfaction, 
 144. 
 
 Compounding a Criminal Offense, unlawful agreement, 91. 
 
 Compromise, of a disputed claim, sufficient consideration, 23. 
 
 Concealment, 
 
 when ground for avoiding contract, 73. 
 See Non-disclosure. 
 
 Consent, 
 
 must be real, 66. 
 
 cases in which it is not real, 66. 
 
 Conservator. See Person Under Conservator. 
 
 Considera7'ion, 
 
 necessity of, to support a promise, 20, 38. 
 
 form of contract under seal or negotiable imports, 20. 
 
 want of, may be pleaded and proved, except, etc., 20. 
 
 what is sufficient, to support a promise, 21. 
 
 need not be adequate, 23. 
 
 abandonment of a right or forbearance to exercise it, 23. 
 
 compromise of a disputed claim, 23. 
 
 delivery of property in trust, 24. 
 
 blood or natural affection not sufficient to support a promise, 25. 
 
 nor a mere moral obligation, 25. 
 
 nor a promise to perform what is obviously impossible, 25. 
 
 nor a promise to do, or actually doing what one is already 
 
 bound to do, 26. 
 nor an illegal consideration, 27. 
 nor a past consideration, 28. 
 
154 
 
 INDEX. 
 
 Consideration (Continued.) 
 
 Explanations of alleged exceptions; 
 
 (1) Where there was a previous request, 29. 
 
 (2) Where one does that which another was legally 
 bound to do, 30. 
 
 (3) Where original promise cannot be enforced against 
 will of promisor, 30. 
 
 of a contract within the Statute of Frauds, need not be set 
 forth in the writing, 33, 36. 
 
 CofJSTITUTION, 
 
 of the United States, 3. 
 
 of a State, 3. 
 
 common law and statutes subordinate to, 4. 
 
 Construction. 
 
 rules of, loi-iii. 
 
 where no doubt, no room for construction, loi. 
 
 intention of parties, controlling consideration, loi. 
 
 whole of contract to be considered, 102. 
 
 every part to be construed with reference to the whole, 103. 
 
 in what sense the words are to be understood, 103. 
 
 terms of mercantile contracts, 103. 
 
 technical words, 104. 
 
 reference to the subject-matter and the circumstances, 104. 
 
 contract restricted to its evident object, 105. 
 
 where general words follow others of more particular mean- 
 ing, 106. 
 
 several instruments relating to same subject-matter, 106. 
 
 contract partly written and partly printed, 107. 
 
 words inconsistent with nature of contract, 107. 
 
 if possible, iri support of contract, 108. 
 
 where the parties, by their acts, have practically given the 
 contract a construction, 109. 
 
 where the language used can be attributed to one of the 
 parties, 109. 
 
 Contract, 
 
 in the widest sense, 10. 
 
 in a narrower sense, 10. 
 
 the elements essential to its validity and enforcement, 11. 
 
 rules which govern the interpretation. of, loi-iii. 
 
 modes in which it may be discharged, 1 12. 
 
INDEX. 155 
 
 Corporation, 
 
 its capacity to make contracts, 64. 
 
 when a contract is within the scope of its powers, 64. 
 
 where it has actually received benefit under contract ultra 
 vires, 64. 
 
 how it may contract, 65. 
 
 Correspondence, contract by, 16. 
 
 Counter Proposal, effect of, 13. 
 
 Death, lapse of offer by, 14. 
 
 Delivery, of property in trust, sufficient consideration, 24. 
 
 Discharge by Agreement, 
 
 when contract may be discharged by mere agreement, 113. 
 
 change in the terms of the contract, 1 14. 
 
 not presumed from mere agreement to accept performance at 
 
 another time or place, 114. 
 new and independent contract concerning the same matter, 1 14. 
 release, 115. 
 change in the parties, 116. 
 
 Discharge of Contract, 
 modes of, 112. 
 
 See Discharge by Agreement, Provisions for Discharge, 
 Performance, Impossibility of Performance, Opera- 
 tion of Law, Breach, Discharge of Right of Action. 
 
 Discharge of Right of Action, 
 modes of, 142. 
 release, 143. 
 
 accord and satisfaction, 143. 
 judgment of a court, 145. 
 lapse of time, 146-149. 
 
 Drunken Person, 
 
 contract of, voidable, 61. 
 
 his liability for necessaries, 62. 
 
 Duress, 
 
 when a ground for avoiding contract, 78. 
 unlawful imprisonment of a party, or the husband or wife. 
 parent or child, 78, 79- 
 
iS6 INDEX. 
 
 Duress (Continued.) 
 
 imprisonment procured through abuse of lawful process or 
 
 made unjustly oppressive, 78, 79, 80. - 
 unlawful and great bodily harm, 78, 80. 
 unlawful seizure, detention, or destruction of property, 78, 
 
 80, 81. 
 degree of constraint or danger, 78. 
 abuse of criminal process, 79. 
 
 Estoppel, effect of judgment against plaintiff, 145. 
 
 Expectant Heir, protection of, 82, 85. 
 
 FoRBEAKANCE, to exercise a right, sufficient consideration, 23. 
 
 Fraud, 
 
 when a ground for avoiding contract, 73. 
 
 false representation of material fact with knowledge of the 
 
 falsehood, or in reckless disregard of what may be the 
 
 truth, 73, 75, 76. 
 active concealment of material fact, with knowledge or belief 
 
 of the fact, 73, 76. 
 any act fitted to deceive, 73, 77. 
 distinguished from misrepresentation, 73. 
 will sustain an action ex delicto, 74. 
 fraudulent act must be relied upon, 73, 74. 
 but need not be the sole inducement, 75. 
 artifice or contrivance to mislead, 76. 
 partial statement of fact, 76. 
 false promise to pay for goods, 77. 
 
 See Representation, Misrepresentation. 
 
 Fructus Industriales, not an interest in land under Statute of 
 Frauds, 46. 
 
 Fructus Naturales, an interest m land, 46. 
 
 Guaranty, 
 
 must be in writing, 39. 
 
 but the writing need not express the consideration, 39. 
 
 what is a ."special promise", 39. 
 
 what the phrase "debt, default, or miscarriage," includes, 39. 
 
 what the term "another person" here means, 40. 
 
INDEX. 157 
 
 Guaranty (Continued.) 
 
 requisites of a guaranty, 40. 
 
 promise is not a guaranty where goods are supplied to anotlier 
 upon the sole credit of the promisor, 41. 
 
 nor where it is a promise to pay the debt of another in con- 
 sideration of that other's release from the debt, 41. 
 
 nor where the promisor has funds or goods in his hands belong- 
 ing to the debtor from which or from whose proceeds he has 
 authority to pay the debt, 41. 
 
 nor where it is a promise to the debtor himself to pay his 
 debt, 42. 
 
 nor where it is a meie promise of indemnity or promise to a 
 person to save him, harmless, from the results of a transaction 
 into which he enters at the instance of the promisor, 42. 
 
 nor in cases where the leading purpose of the promisor is to 
 promote some interest of his own, 43. 
 
 Idiot. See Person of Unsound Mind. 
 
 Ignorance of Law, excuses no one, 70. 
 
 Illegality, 
 
 of consideration, 27. 
 
 of object of agreement, 87. 
 
 See Unlawful Agreements. 
 
 Immorality, of object of agreement, 92. 
 
 Impossibility of Performance, 
 
 general rule where there is a positive contract to do a thing 
 possible when contract is made, 123, 
 
 when contract is conditional on its performance continuing 
 possible, 124. 
 
 where impossibility of performance is obvious when the prom- 
 ise is made, 25. 
 
 where performance depends on existence of a specific thing, 
 124. 
 
 where performance depends on personal capacity of prom- 
 isor, 125, 
 
 where performance becomes impossible by law, 125. 
 
 option to perform in either of two modes, one of which becomes 
 impossible, 126. 
 
 created by act of one party, a form of breach, 134. 
 
 disabling act before performance is due, 134. 
 
 disabling act in course of peiformance, 135. 
 
iS8 INDEX. 
 
 Imprisonmknt, a form of duress, 78. 
 
 Infant. See Minor. 
 
 Insanity, 
 
 lapse of offer by, 14. 
 
 See Person of Unsound Mina. 
 
 Insurance, a contract uberrimae fidei, 72. 
 
 International Law, 
 public, 2. 
 private, 3. 
 
 Interpretation of Contract. See Construction. 
 
 Jest, offer made in, 12. 
 
 Judgment, 
 
 when a discharge of right of action, 
 by way of merger, 145. 
 by way of estoppel, 145. 
 when not a bar to a subsequent suit, 145. 
 where judgment is set aside or reversed, 146. 
 how final judgment may be discharged, 146. 
 
 Knowledge, 
 
 means of, as affecting right -to avoid contract for misrepresen- 
 tation, 71, 74. 
 of unlawful purpose of promisor, 96. 
 
 Land, 
 
 Statute of Frauds as to sale of interest in, 46. 
 what growths constitute an interest in, 46. 
 
 Lapse of Offer, 
 
 by expiration of prescribed time, 14. 
 by expiration of reasonable time, 14. 
 by failure to comply with conditions as to mode of accept- 
 
 ani,K, 14. 
 by death or insanity, 14. 
 
 Lapse of Time. See Limitation of Actions. 
 
INDEX. 159 
 
 Law, 
 
 a governing rule of action, i. 
 
 sanctions of, i. 
 
 positive, 2. 
 
 international, 2. 
 
 of the United States, 3. 
 
 of a State, 3. 
 
 contractual, 4. 
 
 absolute or imperative, 5. 
 
 complementary or regulatory, 5. 
 
 political, 6. 
 
 criminal, 6. 
 
 civil, 6. 
 
 Lease of Property, virith knowledge that the lessee intends to use 
 it for an illegal or immoral purpose, 96. 
 
 Limitation of Actions, 
 in Illinois, 146-149. 
 on contract not in vfriting, 146. 
 on contract in writing, 147. 
 how the time may be extended, 147. 
 set off or counter claim, 147. 
 absence of promisor from the state, 147. 
 further time for representatives, 148. 
 where promisee is under disability, 148. 
 where cause of action is fraudulently concealed, 149. 
 
 Lunatic. See Person of Unsound Mind. 
 
 Maintenance, what is, 92. 
 
 Marriage, 
 
 a valuable consideration, 22. 
 agreement upon consideration of, 44. 
 mutual promises to marry, 44. 
 agreement in unreasonable restraint of, 93. 
 agreement to procure, 93. 
 
 agreement tending to facilitate a separation of husband and 
 wife, 93. 
 
 Memorandum, 
 
 required by Statute of Frauds, 33. 
 
i6o INDEX. 
 
 Memorandum (Continued). 
 
 when it may be made, 34. 
 
 need not pass between the parties, 34. 
 
 where contained in more papers than the one signed, 35. 
 
 how another paper referred to may be identified, 35. 
 
 how it may show who are the parties, 35. 
 
 must show the substance of the promise, 36. 
 
 need not set forth the consideration, unless, etc., 36. 
 
 how the subject-matter referred to may be identified, 36. 
 
 form of signature, 36. 
 
 written offer verbally accepted, 37. 
 
 agent must be a third person, 37. 
 
 signature by agent in his own name, 37. 
 
 authority of agent need not be in writing, except, etc., 38, 46. 
 
 Merger, 
 
 a discharge of contract, 127. 
 effect of judgment for plaintiff, 145. 
 
 Minor, 
 
 who is a, 51. 
 
 cannot delegate authority requiring a power of attorney, 51. 
 
 his contract voidable as a general rule, 52. 
 
 such contract binding on the adult, 52. 
 
 third person cannot take advantage of the minority, 53. 
 
 who may avoid or confirm the contract of a minor in case of 
 his death, insanity, or other disability, 53. 
 
 at what time such contract may be avoided by the minor, 54. 
 
 how it may be confirmed by him, 55. 
 
 when he is bound to restore property upon avoidance of his 
 contract, 57. 
 
 what he may recover upon avoidance of his contract for ser- 
 vices, 57. 
 
 his liability for necessaries, 58. 
 
 what the term "necessaries" includes, 58. 
 
 necessaries for his wife and children, 59. 
 
 Misrepresentation, 
 
 when a gi ound for avoiding contract, 70. 
 
 untrue statement of material fact though believed to be true 
 by the one making it, 70. 
 
INDEX. i6i 
 
 MiSREPRSENTATlON (Continued.) 
 
 nondisclosure of material fact by one under special obligation 
 
 to make the disclosure, 71. 
 distinguished from fraud, 73. 
 
 See Representation, Fraud. 
 
 Mistake, 
 
 when a ground for avoiding contract, 67. 
 
 as to the nature of the transaction, 67, 58. 
 
 as to the person with whom the contract is made, 68. 
 
 as to the existence of the subject-matter, 68, 69. 
 
 as to the identity of the subject-matter, 68, 69. 
 
 as to a law in force in the State, 69. 
 
 as to the legal effect of the terms of a contract, 69. 
 
 in drawing up a contract, 69. 
 
 as to a foreign law, 70. 
 
 Moral Obligation, not sufficient to support a promise, 25. 
 
 Mutual Promises, are consideration for one another, 22, 44. 
 
 Natural Affection. See Blood. 
 
 Necessaries, 
 
 liability of a minor for, 58. 
 what the term includes, 58. 
 must be suitable in quality and quantity, 58. 
 concern the person and not the estate, 58. 
 where the wants ()f the minor are already supplied, or he has 
 a parent or guardian able and willing to provide for him, 59. 
 for wife and children of minor, 59. 
 liability of a person of unsound mind for, 61. 
 liability of a drunken person for, 62. 
 liability of a person under conservator for, 63. 
 
 Negligence, as relating to right to avoid contract, 67, 68, 74. 
 
 Negotiable Instrument, 
 
 form of, imports consideration, 20. 
 
 destruction or surrender of, with intent to discharge liability, 
 
 113- 
 conditional payment, 120. 
 
 may be given and accepted in absolute payment, 121, 144. 
 alteration of, 128. 
 
i62 INDEX. 
 
 Non-disclosure, 
 
 when ground for avoiding contract, 71. 
 where the contract is of a fiduciary nature, 72. 
 where a confidential relation exists, 72. 
 See Concealment. 
 
 Novation, 
 
 illustration of, 116. 
 consideration for, 1 16. 
 
 Object of Agreement, 
 
 unlawfulness of, effect, 87. 
 
 See Unlawful Agreements. 
 
 Offer, 
 
 must refer to legal relations, 12. 
 
 when it may be revoked, 14. 
 
 how it may lapse, 14. 
 
 by conduct, 18. 
 
 by advertisement, 19. 
 
 of performance, not accepted, 121. 
 
 Operation of Law, 
 
 discharge of contract by, 127. 
 
 merger, 127. 
 
 alteration of written instrument, 128-130. 
 
 bankruptcy, 130. 
 
 Par Delictum, 
 
 general rule, 98. 
 exception, 99. 
 
 Pakties to Contract, 
 capacity of, 51. 
 
 See Minor, Person of Unsound Mind, Drunken Person, 
 Person Under Conservator, Corporation. 
 
 Part Payment, of'liquitlated debt already due will not support a 
 promise, 26. 
 
 Part Performance, of contract for sale of land, 47. 
 
INDEX. 163 
 
 Past Consideration, 
 
 will not support subsequent promise, 28. 
 alleged exceptions, 29-31. 
 
 Payment, 
 
 a form of discharge by performance, 120. 
 
 presumption where negotiable instrument is taken in lieu 
 of, 120. 
 
 exception, 121. 
 
 Penalty, imposed by statute implies prohibition, unless it be in 
 the nature of a tax or merely to secure the revenue, 8g. 
 
 Performance, 
 
 discharge of contract by, 119-122. 
 
 in accordance with terms of contract, 1 19. 
 
 modification of, 119. 
 
 payment, 120. 
 
 presumption where negotiable instrument is taken in lieu of 
 
 payment, 120. 
 exception, 121. 
 offer of, not accepted, 121. 
 tender of money, 122. 
 
 See Impossibility of Performance. 
 
 Persons of Unsound Mind, 
 
 his contract voidable as a general rule, 59. 
 where he has brpught on that condition by habitual drunken- 
 ness, 60. 
 his liability for necessaries, 61. 
 
 no insane person or idiot capable of contracting marriage, 61. 
 contract with lunatic in lucid interval, 61. . 
 
 Person Under Conservator, 
 
 when conservator may be appointed, 62. 
 contracts that are void as against such person, 63. 
 contracts that may be avoided in his favor, 63. 
 implied contracts or liabilities for necessaries, 63. 
 
 Promise, 
 
 too vague to be enforced, 17. 
 must be consideration for, 20. 
 for benefit of third person, 22. 
 
1 64 INDEX. 
 
 Promise (Continued). 
 for a promise, 22. 
 for an illegal consideration, 27. 
 two distinct promises, one of which is illegal, 27. 
 alternative, one branch of which is illegal, 28. 
 several promises based on several considerations, some of 
 
 which are illegal, 28. 
 where there was a previous request, 29. 
 
 where one does that which another was legally bound to do, 30. 
 where original promise cannot be enforced against will of 
 
 promisor, 30. 
 to pay debt contracted during minority, 31. 
 to pay debt barred by statute of limitation, 31. 
 to pay debt after discharge in bankruptcy, 31. 
 
 Provisions for Discharge, 
 
 non-fulfilment of specified term, 117. 
 
 fulfilment of condition or occurrence of event, 117. 
 
 option to terminate, n8. 
 
 Public Office, agreement to use one's influence to secure the 
 election or appointment of a person to, unlawful, 90. 
 
 Public Policy. See Unlawful Agreements. 
 
 Public Sale, agreement not to bid at, when unlawful, and when 
 lawful, 95. 
 
 Public Servant, agreement to use private influence to procure 
 favorable action of, unlawful, 90. 
 
 Punctuation, its effect, 102. 
 
 Railroad Station, agreement between the corporation and an in- 
 dividual to establish or not establish, unlawful, 91. 
 
 Reality of Consent. See Consent, Mistake, Misrepresentation, 
 Fraud, Duress, and Undue Influence. 
 
 Release, 
 
 of contract, 115. 
 
 of right of action, 143. 
 
 Remedies, for breach of contract, 142. 
 
INDEX. 165 
 
 Renunciation of Contract, 
 
 before performance is due, 131. 
 
 where contract is unilateral, 132. 
 where repudiation is partial, 132. 
 where refusal is equivocal, 133. 
 
 where promisee treats the renunciation as inoperative, 133. 
 in the course of performance, 134. 
 See Breach. 
 
 Representation, False, 
 
 made by minor as to his age, 55. 
 
 when not relied upon, 71, 74- 
 
 when made innocently, 71. 
 
 need not be the sole inducement, 75. 
 
 as to immaterial matter, 75. 
 
 as to matter of law, 75- 
 
 as to matter of opinion, belief, or expectation, 75. 
 
 recklessly made, 76. 
 
 Recission of Contract, 
 
 by mutual consent, 27, 1 14. 
 
 See Discharge by Agreement. 
 
 Restraint of Trade, 
 
 agreements in general restraint, 94. 
 agreements in partial restraint, 94. 
 sale of secret processes or patent rights, 95. 
 
 Revocation, 
 
 of offer, 14. 
 
 of offer of reward, 19. 
 
 See Lapse of Offer. 
 
 Reward, 
 
 offer of, 19. 
 
 revocation of offer of, ig. 
 
 service rendered without notice of, ig. 
 
 Right, 
 
 m its legal acceptation, 6. 
 
 in rem, 7. 
 
 in personam, 7. 
 
i66 INDEX. 
 
 Rights, 
 
 primary, 8. 
 secondary, 8. 
 
 Right of Action, 
 
 arises upon every breach of contract, 131, 142. 
 See Discharge of Right of Action. 
 
 Sale of Property, with knowledge that it is designed by the pur- 
 chaser to be used for an unlawful purpose, 96, 97. 
 
 Sanctions, classes of, i. 
 
 Satisfaction. See Accord and Satisfaction. 
 
 Seal, 
 
 imports consideration, 20. 
 release under, 115, 143. 
 
 Separation, agreement for, between husband and wife, 93. 
 
 Sexual Immorality, agreements which involve, unlawful, 92. 
 
 Signature, 
 
 under statute of frauds, 36, 37. 
 by agent, 37, 38, 46. 
 
 Specific Performance, 
 
 of partly performed contract for sale of land, 47-49. 
 of parol gift of land, 49. 
 
 Statute of Frauds, 
 
 as in force in Illinois, 32, 33. 
 
 the memorandum required, 32-38. 
 
 See Memorandum. 
 contract within, voidable, not void, 33. 
 does not apply to contract fully performed, 34. 
 contract within, cannot be made ground of defense, 34. 
 Agreements within: 
 
 1. Promise by executor or administrator to answer a debt or 
 damages out of his own estate, 38. 
 
 2. Promise to answer for the debt, default, or miscarriage o( 
 another, 38-43. 
 
 See Guaranty. 
 
INDEX. 167 
 
 Statute of Frauds (Continued). 
 
 3. Agreement upon consideration of marriage, 44. 
 
 not mutual promises to marry, 44. 
 
 4. Agreement not to be performed within.one year fiom the 
 making thereof, 44, 45, 
 
 where the agreement may be fully performed within a 
 year, 44. 
 
 agreement for a lease for a year, to commence at a future 
 time, 45. 
 
 where employee under agreement for more than a year is 
 
 discharged without cause, 45. 
 where everything that is to be done under the agreement 
 
 is to be done within the year except the mere payment 
 
 of money, 45. 
 
 5. Contract for the sale of land or an interest therein, 46-49. 
 
 growing crops of annual culture, 46. 
 
 such natural growths of the soil as growing trees, 46. . 
 
 lease for a longer term than one year, 47. 
 
 sale upon execution or pursuant to decree of court, 47. 
 
 when court of equity will decree specific performance of 
 
 partly performed contract, 47. 
 it must appear that the possession was under and in part 
 
 performance of the contract, 48. 1 
 
 mere possession is not sufficient, 48. 
 nor is mere payment of the purchase money, 49. 
 when court of equity will afford relief in case of parol 
 
 gift of land, 49. 
 17th section of English statute relating to contracts for the 
 sale of goods not in force in Illinois, 49. 
 
 Statutes, 
 
 and municipal ordinances, 4. 
 subordinate to the Constitution, 4. 
 
 Statutes of Limitation. %g& Limitation of Actions. 
 
 Tender of Money, 
 
 not a discharge of debt, 121. 
 
 should be kept good, 122. 
 
 object of payment into court, 122. 
 
 Time, when of the essence of the contract, 138-140. 
 
 Uncertainty, of terms of agreement, 17. 
 
1 68 INDEX. 
 
 Undue Influence, 
 
 when a ground for avoiding contract, 82. 
 
 abuse of parental, fiduciary, or confidential relations, 82-84. 
 
 "parental" here extends to person in loco parentis, 82. 
 
 examples of fiduciary and confidential relations, 82. 
 
 burden of proving fairness of transaction vifhere confidence 
 
 and influence are shown to exist, 83. 
 how long the influence will be presumed to continue, 84. 
 abuse of the mental weakness of another, 82, 84. 
 p.buse of the necessities or extravagance of expectant heir, 
 
 82, 85. 
 
 when it will be presumed that advantage was obtained there- 
 by, 85. 
 
 Unlawful Agreements, 
 
 agreement to commit crime, 87. 
 
 to do civil wrong, 87. 
 
 in fraud of creditors, 88. 
 
 tending to injure the public service, go. 
 
 tending to obstruct the course of public justice, 91. 
 
 tending to encourage litigation, 91. 
 
 involving sexual immorality, 92. 
 
 unduly affecting the freedom or security of marriage, 93. 
 
 in unreasonable restraint of trade, 94. 
 
 to suppress competition at sales by auction, 95. 
 where an agreement innocent in itself is designed to further 
 an unlawfiil purpose, 96. 
 
 when lessor is implicated in lessee's design, 96. 
 
 when seller is implicated in purchaser's design, 96, 97. 
 in what cases property delivered under an unenforceable 
 agreement may be recovered back, 97. 
 
 where parties are not in pari delicto, 99. 
 
 where there is a locus panitentice, 99. 
 
 where property is lost by gaming, 99. 
 
 where the efficient enforcement of a statute requires re- 
 lief, 99. 
 
 Unsound Mind. See Person of Unsound Mind.