^ contmentarg, cfxxd^aiinq t^e jmncipfee. 3- (Uotes ftnb aut^oritiee. Published in regular octavo form, and sold at the uniform price of $3.75 per t)oftime, mdui)inQ ^efiDerg. Bound in American Law Buckram. 1. Norton on Bills and Notes. (3d Edition.) 2. Clark's Criminal Law. (2d Edition. ) 3. Shipman^s Common- La7V Pleading. (2d Edition.) 4. Clark on Contracts. (2d Edition ) 5. Black's Constitutional Law. (2d- Edit ion.) 6. Fetter on Equity. 7. Clark on Criminal Procedure. 8. Tiffany on Sales. 9. Glenn' s Lnternational Laiv. 10. Jaggard on Torts. (2 vols.) 11. Black on Lnterpretation of Laws. 12. Hale on Bailments and Carriers. 13. Smith's Elementary Law. 14. LLale on Damages. 15. Hopkins on Real Property. 16. Hale ofi Torts. 17. Tiffany on Persons and Domestic Relations. 18. Croswell on Executors and Administrators. 19. Clark on Corporations. ( 2d Editiofi.) 20. George on Partnership. 21. Shipman ofi Equity Pleading. 22. McKelvey on Evidence. 23. Barrows on Negligence. 24. Hughes on Admiralty. 25. Eaton on Equity. 26. Tiffajzy on Principal and Agent. 27. Gardner on Wills. 28. Vance on Insurance. 29. Ingersoll o?i Public Corporations. 30. Hughes on Federal Jurisdiction and Procedure. In preparation: Hanalfooks of the law on other subjects to be announced later. ^ufilis^eb an^ for safe fig 243-244. Independent Promises 450-458 245-249. Conditional Promises 458-471 250. By Impossibility of Performance 472-477 251. By Operation of Law 478 252. Merger 478-479 253. Alteration of Written Instrument 479-484 254. Proceedings in Bankruptcy 484 255. Remedies on Breach of Contract 484-485 256-259. Damages 48-5-488 260. Specific Performance 489-491 261. Discharge of Right of Action 491 262. By the Consent of the Parties 491-493 263. By Judgment 493-494 264-265. By Lapse of Time 495-496 CHAPTER Xn. 266. 267. 268-269. 270. 271. 272-273. 274. 275. 276. 277. 278. AGENCY. Creation of the Relation — Capacity of Parties 497 How the Relation may Arise 498-499 Form of Authority 500-502 Agency by Estoppel 500-502 Ratification 502-507 Effect of Relation — Rights and Liabilities of Principal and Agent Inter Se 507-512 Rights and Liabilities as to Third Persons — Named Principal 512-519 Name of Principal Undisclosed 519-521 Existence of Principal Undisclosed 521-523 Fraud of Agent 523-524 Determination of the Relation 524-529 CHAPTER Xm. QUASI CONTRACT. 279. In General 530-533 280. Money Paid for the Use of Another 533-536 281. Money Received for the Use of Another 536-547 282. Recovery for Benefits Conferred 547-553 ft^, ' , yiO HANDBOOK OF THE LAW OF CONTRACTS. SECOND EDITION. CHAPTEH I. DEFINITION. NATURE, AND REQUISITES OF CONTRACT IN GENERAL. 1-2. Contract Defined. 3. Agreement. 4. Obligation. 5. Concurrence of Agreement and Obligation. 6. Promise. 7-9. "Void," "Voidable," and "Unenforceable" Agreements. 10. Essentials of Contract- CONTRACT DEFINED— BROADEST SENSE. 1. A contract, in its broadest sense, is an agreement ^vliereby one or more of the parties acquires a right, in rem or in personam, in relation to some person, thing, act, or forbearance. It may be, in its inception: (a) Executory; that is, where an obligation is assumed by one or both parties to do or forbear from doing some act. The rights acquired are rights in personam. (b) Executed; that is, where everything is done at the time of agree- ment, and no obligation is assumed, as in the case of a convey- ance of land fvithout covenants, or a sale and immediate deliv- ery of goods for cash and xvithout warranty.* Executory con- tracts Ttrhen fully performed are also said to be executed. * The propriety of calling sucli an agreement a contract lias been questioned. Post, p. 7, note 12. CLAKa CoNT. (2d Ed.) — 1 DEFINITION, NATURE, AND REQUISITES OF CONTRACT. (Ch. 1 SAME— PBOPEB SENSE. 3. A oontract in its narrovirer, and more proper, sense is an executory contract. It is tlie result of tlie concurrence of agreement and obligation, and may be defined as an agreement enforceable at laiv, made betxireen tiiro or more persons, by wbicli rights are acquired by one or more to acts or forbearances on the part of the other or others. ^ When we speak of contracts we generally mean executory con- tracts, and it is of this kind of contract principally that this work is to treat. A contract in this sense results from the combination of the two ideas of "agreement" and "obligation." It is that form of agree- ment, or meeting of minds, which directly contemplates and creates an obligation; and the contractual obligation is that form of obliga- tion which springs directly from agreement. It is necessary, there- fore, to understand clearly what is meant by the terms "agreement" and "obligation," and how they may or may not concur so as to create a contract. AGREEMENT. 3. Agreement is the expression by t^wo or more persons, either by \xroTds or by conduct, of a common intention to affect the legal relations of those persons. ^ There must be a meeting of tw^o minds in one and the same intention. From the very nature of agreement the first essential is the consent of the parties. There must be a meeting of two minds in one and the 1 The following are some of the definitions given in the books: "An agi-eement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others." Anson, Cont. (Sth Ed.) 9. "Every agreement and promise enforceable by law is a contract." Pol. Cont 1. "An agreement, upon sufficient consideration, to do or not to do a particular thing." Bl. Comm. 442; 2 Kent, Comm. 449. "An agreement between two or more parties for the doing or the not doing of some particular thing." 1 Pars. Cont. 6. "A contract or agreement not under seal may be defined to be an engage- ment entered into between two or more persons, whereby, in consideration of something done or to be done by the party or parties on one side, the party or parties on the other promise to do or omit to do some act." Chit. Cont. 7. "A contract is a promise from one or more persons to another or otliers, either made in fact or created by law, to do or refrain from some lawful thing ; being also under the seal of the promisor, or being reduced to a judi- cial record, or being accompanied by a valid consideration, or being executed, and not being in a form forbidden or declared inadequate by law." Bish. Cont. § 22. 2 See Anson, Cont. (4th Ed.) 3. "(1) An agreement is an act in the law. § 3) AGREEMENT. 3 same intention. In the absence of this element there can be no agree- ment, and, therefore, no contract. Two Parties Necessary. It is manifest that at least two parties are necessary. There may be more than two, but there cannot be less. It is therefore impossi- ble for a man to make an agreement or contract with himself.* ' Distinct Common Intention. It is also essential that there be a distinct intention, and an intention which is common to both parties. If there is doubt or difference, there is no meeting of minds, and hence no agreement. If a person, when asked whether he will- do a certain thing, says, "Very possibly," there is doubt, and no agreement is reached ; and if he says he will do something else, there is a difference, and therefore no agreement Communication of Intention. Agreement further imports that there shall be a mutual communica- tion between the parties of their intentions to agree, for without this neither could know the state of the other's mind. The law, therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. Mere uncommunicated intention, though common to both parties, can- not constitute agreement. If a person asks another if he will do some- thing, and the latter makes no reply, there is no agreement, even though he may intend to do it. A secret acceptance of a proposal cannot con- stitute agreement; nor, it is said, can agreement result where the in- tention of a party is communicated, not to the other party, but to a third person.* As we shall see, communication maybe by conduct as well as by words. whereby tv\-o or more persons declare theii* consent as to any act or thing to be done or forborne by some or one of those persons for the use of the others or other of them. (2) Such declaration may consist of (a) the conciu^rence of the parties in a spoken or Avi'itten form of words as expressing their common in- tention, or (b) a proposal made by some or one of them, and accepted by the others or other of them." Pol. Cont 1. 3 Another reason Avhy a man cannot enter into a contract with himself is because he cannot be under a legal obligation to himself. Post, p. 5. * Leake, Cont. 8. Intention may be communicated to the agent of a party, but this is equivalent to communication to the party himself. "In the case in hand," it was said, "the plaintiff determined to accept But a mental deter- mination not indicated by speech, or put in course of indication by act to the other party, is not an acceptance which will bind the other. Nor does an act which in itself is no indication of an acceptance become such because accom- panied by an unevinced mental determination." WHITE v. CORLIES, 46 N. Y. 467. 4 DEFINITION, NATURE, AND REQUISITES OF CONTRACT. (Cll. 1 Reference to Legal Relations. An agreement, to be recognized as such by the law, so as to consti- tute a contract, must be "an act in the law ;" ^ that is, it must be, on the face of the matter, capable of having legal effects ; and therefore, the intention of the parties must refer to legal relations, so that the courts, which can only deal with legal relations, may tal Leake, Gout. 3. i^ Post, p. 49. § 6) PROMISE. 9 Again, a quasi contractual obligation may arise by the acts of the parties. A person pays something which another ought to pay, or re- ceives something which another ought to receive, and the law imposes on him the duty to make good to the other party the advantage to which the other is entitled. The term "implied contract" is frequently applied to obligations of this class. Its use is objectionable, because the same term is frequently applied to contracts in which the agreement of the parties is evidenced by conduct, and which are hence called "implied contracts," in distinction to contracts in which the agreement is evidenced by words, and which are said to be express.^ ^ Same — Indirectly from Agreement — Marriage — Trusts. Finally, obligation may spring from agreement, and yet be distin- guishable from contract. As explained in speaking of agreement, this is the case with obligations incidental to such acts as marriage and the creation of a trust Contractual obligations may arise incidentally to an agreement which has for its direct object the transfer of property. In the case of a conveyance of land with covenants annexed, or the sale of a chattel with a warranty, the obligation hangs loosely to the conveyance or sale, and is so easily distinguishable that it may be dealt witli as a contract. But in cases of trust or marriage the agreement is far-reaching in its objects, and the obligations incidental to it are either contingent, or at any rate remote from its main purpose or im-' mediate operation. To create an obligation is the one object which the parties have in view wherinEhe^'Tfiter into that form o£ agreement which is called contract. \. 6. A promise is th.e commnnication by a person of an intention and Tsrillingness to be bound to do or to forbear from doing some- tbing at tbe request or for tbe use of anotber, 'wben, but not before, tbat declaration bas become binding by its acceptance by tbe promisee so as to create an obligation, lo A promissory expression before acceptance is mei'ely an offer of a promise. We are in the habit of considering as the essential feature of con- tract a promise by one or more parties to another or others to do or forbear from doing certain specified acts ; and many of the books use the term "promise," rather than "agreement," to define contract. "In an agreement as the source of a legal contract," it is said, "the matter intended and agreed imports that the one party shall be bound to the other in some act or performance, which the latter shall have a legal right to enforce." The signification of an intention to do some act, or observe some particular course of conduct, made by the one party 18 Tost, p. 531. i» Anson, Cont. (4tli Ed.) 4; Pol. Cout. 1. 10 DEFINITION, NATURE, AND REQUISITES OF CONTRACT. (Gil. 1 to the other, and accepted by J^iiTtriet^4h€~4>urpQse-.Qi_cr£ati ng a righ t tojtsaccomphshment, is called a promise.^" The term "promise" is used to signify a binding promise, as opposed to a mere offer of a promise. A promissory expression amounting to an offer of a promise does not become a promise until it becomes binding by its acceptance by the person to whom it is made. Before it is accepted it is a mere offer of a promise, called in the civil law a "pollicitation." ^^ It must also be noted that it is not every statement of intention that will amount to an offer of a promise which by accept- ance will be turned into a promise. An offer differs from a mere statement of intention in that it imports a willingness to be bound to the party to whom it is made. If a persons says to another, "I intend to sell my horse if I can get $ioo for it," there is no offer that can be turned into an agreement, but merely a declaration of intention. There is no declaration of willingness to be bound. If, however, he says, "I will sell you my horse if you will give me $ioo for it," there is an offer, and, if it is accepted, there is a contract, consisting of mutual binding promises to deliver the horse on the one side, and to accept and pay for it on the other. Looking at contract, then, in the light of a promise, we may say that there are three stages necessary to the making of that sort of agreement which results in a contract : (i) There must be an offer ; (2) there must be an acceptance of the offer, resulting in a promise ; and (3) the law must attach a binding force to the promise, so as to invest it with the character of an obligation. The promise results from the agreement of the parties, and neces- sarily results from every agreement which directly contemplates and creates an obligation. The agreement makes the contract, and the promise is merely a feature of the contract. VOID, VOIDABLE, AND UNENFORCEABLE AGREEMENTS. 7. A void ag:reeiuent is one that is entirely destitute of legal effect. 8. A voidable contract is one tbiat is capable of being affirmed or re- jected at the option of one of the parties, but -which is binding on the other. 9. An unenforceable contract is one that is valid, but incapable of being sued upon or proven. We have seen, and in dealing with the formation of contract we shall see more in detail, that certain requisites are essential, and, if they are absent, the contract is said to be void. By this it is meant that it has no legal effect whatever. Clearly, in such a case, there is 20 Leake, Cont. 13. 21 See post, p. 21. §§ ^-^) VOID, VOIDABLE, AND UNENFORCEABLE AGREEMENTS. 11 no contract at all, and it is a misuse of terms to speak of it as such. A transaction or agreement cannot be void and be called a contract, so it is more accurate to say that the transaction or agreement is void. A voidable contract is not destitute of legal effect, but may be valid and binding. It is a contract that is capable of being affirmed or re- jected at the option of one of the parties. It is binding if he chooses to affirm it, and is of no effect if he chooses to reject it. The other party has no say in the matter. Such is the case, as we shall see, with contracts into which one of the parties has induced the other to enter by means of fraud. The latter may repudiate the contract, or, if he sees fit, he may waive the fraud, and hold the former to his bargain. It will seem, at first thought, that certain agreements said to be void are not so in fact. For instance, as we shall see, an agreement may be void on the ground of mistake, or, in a few cases, because of the infancy of one of the parties ; but, if the mistake or infancy is not pleaded in the action to enforce it, the parties will be held bound. Such an agreement, however, is just as void as an agreement to do something which the law forbids. The cause of nullity is latent, but this does not alter the character of the transaction. It is void if the defendant chooses to prove it so.^^ If the defendant in these cases may, at his option, avoid the con- tract, or let it stand, there would seem to be a certain unreality in the distinction between void and voidable agreements; but this is not so in fact. In case of voidable agreements there is a contract, though it is marked by a flaw ; and the party who has the option may affirm it in spite of the flaw. Where, however, an agreement is void, it falls to the ground as soon as its nullity becomes apparent. It is incapable of affirmance. Another distinction is in the fact that in case of void- able contracts innocent third persons, acting in good faith, may ac- quire rights thereunder, and tliereby cut off the right to avoid it; but no such rights can be acquired where the transaction is void.-^ A contract which is unenforceable cannot be set aside at the option of one of the parties to it. The obstacles to its enforcement do not . / touch the existence of the contract, but only set difficulties in the way of action being "brought or proof given. The contract is valid, but because of these obstacles it cannot be enforced. Such is a contract, as we shall see, which fails to comply with some of the provisions of the statute of frauds, requiring writing, and so cannot be proved; or a contract which has become barred by the statute of limitations. The defect in these contracts is not irremediable. In the first it may be remedied by supplying the writing, and in the second by procuring a proper acknowledgment of the barred debt ; but it will be noticed that the defect can be remedied only with the concurrence of the party to be made liable. 2« Anson, Cont (4tli Ed.) 204. 2S Post, p. 238. 12 DEFINITION, NATURE, AND REQUISITES OF CONTRACT. (Cu. 1 ESSENTIALS OF CONTRACT. Having- ascertained the particular features of contract as a juristic conception, the next step is to ascertain how contracts are made. A part of the definition of contract being that it is an agreement enforce- able at law, it follows that we must analyze the elements of a contract such as the law will hold to be binding between the parties to it. 10. As there must be an agreezuent directly contemplating and result- ing in an obligation, and tbe agreement must be enforceable in tbe laAX^, tberefore— (a) Tbere must be a distinct communication by tbe parties to one anotber of tbcir intention, or an offer and acceptance. (b) Tbe agreement must possess tbe marks \irliicb tbe la^7 requires in order tbat it may affect tbe legal relations of tbe parties, and be an act in tbe lavtr. Therefore— (1) It must be in the form required by law. (2) There must be a consideration, when required by law. (c) The parties must be capable in lau: of making a valid contract. (d) The consent expressed in offer and acceptance must be genuine. (e) The objects \phich the contract proposes to effect must be legal. Where all of these elements coexist, a valid contract is the result. If any one of them is absent, the agreement is in some cases merely unenforceable; in some voidable at the option of one of the parties; and in some absolutely void. We shall now take up in turn each of these elements in separate chapters. r 10^ J^' §§ 11-13) OFFER AND ACCEPTANCE. 13 CHAPTER n. OFFER AND ACCEPTANCE. t^ y^ " / 11-13. In General, 14^15. Communication by Conduct — Implied Contracts. 16. Communication of Offer. 17. Necessity and Effect of Acceptance. 18-20. Communication of Acceptance. 21. Character, Mode, Place, and Time of Acceptance. 22-23, Revocation of Offer, 24. Lapse of Offer. 25. Offers to the Public Generally. 26. Offer as Referring to Legal Relations. IN GENERAL. 11. To constitute a contract, the expression of common intention mnst generally, if not alAvays, arise from an offer made by one party to another, and an acceptance by the latter, vritli the result that one or both are bound by a promise. 12. The ofPer may be— (a) Of a promise, or (b) Of an act. 13. The acceptance may be— (a) Simple assent; but .this applies to contracts under seal only. (b) Giving of a promise. (c) Doing of an act. In practical matters, and for the purpose of creating obligations, every expression of a common intention arrived at by two or more parties is ultimately reducible to question and answer, or to offer and acceptance.^ Thus, if a person agrees to sell an article to another for a certain price, and the latter agrees to buy it, we can trace the pro- cess to the moment when the seller says in words or by conduct, "Will you give me so much for the article ?" and the buyer replies, "I will ;" or when the buyer says, "Will you take so much for the article?" and the seller says, "I will," There is always this question and answer, or 1 Anson, Cont. (4th Ed.) 11 ; Leake, Cont 12 ; Thruston v. Thornton, 1 Cush. (Mass.) 91. Pollock objects that this analysis does not properly applj- to a case in rrhlch the consent of the parties is declared in a set form,— as where they both execute a deed or sign a written agreement. Pol. Cont. 4, But he adds that, "notwithstanding the difficulties that arise in making proposal and acceptance necessary parts of the general conception of contract, there is no doubt that in practice they are the normal and most important ele- ments." Id. 8. 14 OFFER AND ACCEPTANCE. (Ch. 2 offer and acceptance, though in many cases it is not in so many words. A tradesman displaying his goods says in act, though not in words, "Will you buy my goods at my price?" and a customer taking goods with the tradesman's cognizance virtually says, "I will." The pro- prietor of a public conveyance, by running it in such a way and place as to invite people to use it, virtually says, "Will you pay me the fare if I carry you?" and one who gets into the conveyance to be carried, by his conduct says, "I will," as plainly as if he were to vise the words. And so all contracts, or voluntary obligations, may be reduced to ques- tion and answer, either in words, or by conduct, or both. The ques- tion is the offer ; the answer the acceptance of the offer. Forms of Oifer and Acceptance. (i) A contract may originate in the offer of a promise, and its ac- ceptance by simple assent, but this applies only to contracts under seal, for, as will presently be seen, the law requires a consideration to sup- port a promise not under seal, and mere assent is not enough. Thus, where one person promises another by writing under seal that he will do a certain thing, or pay a certain sum, and the promisee assents to the proposal, both are bound, and there is a contract. Until such as- sent, there is only an offer. The offer, unlike off'ers not under seal, is at common law irrevocable, owing to the seal ; but until it has been assented to by the person to whom it is made it does not bind him. A ;person cannot be forced to accept even a benefit. - ^ (2) As already shown, the presence of a public conveyance on the street is a constant oft'er by its proprietor to carry persons, and when a person steps into the conveyance he accepts the offer, and promises to pay the fare.. This is an offer of an act f or_a ^ promj ge. (3) If a person who has lost propert}' offers by advertisement a re- ward to any person who shall return it, he offers a promise for an act, v*- and when a person returns the property he accepts and performs the act, and the promise becomes binding. (4) If a person offers another to pay him a certain sum on a future day if the latter will promise to perform certain services for him be- fore that day, or, vice versa, he offers a promise for a promise, and where the person to whom the offer is made accepts it by promising to perform the services or to pay, as the case may be, both parties are bound, the one to do the work and the other to make the payment. This is tlie offer of_a_promise_foiLa-P.roi^e. Executed and Executory Consideration. It will be noticed that cases (2) and (3) differ from (4) in. an impor- tant respect. In (2) and (3) the contract is fonned by one part>' doing all he can be required to do under the contract. The contract is formed by performance on one side, and it is this performance which makes obligatory the promise on the other. The outstanding obligation is §§ 14r-15) COMMUNICATION Br CONDUCT — IMPLIED CONTRACTS. 15 all on one side. In (4) each party is bound to some act or forbearance in the future. There is an outstanding obligation on both sides. Where the benefit, in contemplation of which the promise is made, is done at the same time that the promise acquires a binding force, — where it is the doing of the act that concludes the contract, — then the act so done is called an executed or present consideration f^ r the prom- ise. Where a promise is given for a promise, each forming the con- sideration for the other, the consideration is said to be ejLficutery-or COMMUNICATION BY CONDUCT— IMPLIED CONTRACTS. 14. An offer or its acceptance may be made by conduct as ivell as by ivords. 15. "Where tlie terms of a contract are sboMcn by tbe acts of the par- ties, the contract is said to be implied. It is, bow^ever, implied as a matter of fact. There is an agreement in fact, evidenced by acts. From what has already been said as to the possible forms of offer and acceptance, it will have been seen that conduct may take the place of written or spoken words in the making of contracts.^ If a person asks another to perform a service for him for compensa- tion, the latter may accept the offer simply by performing the service, unless a particular form of acceptance is prescribed in the offer. His acceptance is inferred or implied from his conduct.^ Again, if a person allows another to work for him under such cir- cumstances that no reasonable man would suppose that the latter means to do the work for nothing, he will be liable to pay for it. The doing of the work is an offer ; the permission to do it, or acquiescence in its being done, is the acceptance. The offer and acceptance are inferred or implied as a matter of fact from the circumstances.* 2 Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372; HoughTVout v. Boisaubin, 18 N. J. Eq. 315; Smith v. Ingram, 90 Ala. 529, 8 South. 144; Wetmore v. Men, 1 Ohio St. 26, 59 Am. Dec. 607; Sturges v. Robbins, 7 Mass. 301; Train V. Gold, 5 Pick. (Mass.) 384; New York & N. H. R. Co. v. Pixley, 19 Barb. (N. Y.) 428. Taking goods; implied promise to pay for them. Stoudenmire v. Harper, 81 Ala. 242, 1 South. 857. Sending goods in response to an order is an acceptance of the offer to buy contained in the order. Crook v. Cowan, 64 N. C. 743; Briggs v. Sizer, 30 N. Y. 652; Harvey v. Johnston, 6 O. B. 295. Retention of the order, if explained, is not an acceptance. Briggs v. Sizer, 30 N. Y. 652. Taking possession of property in accordance with a letter offering to sell it is an acceptance. Dent v. Steamship Co., 49 N. Y. 390. 3 See REIF v. PAIGE, 55 Wis. 503, 13 N. W. 473, 42 Am. Rep. 731 ; Coston V. :MoiTis, 51 Hun, 643. 4 N. Y. Supp. 89. See, also, post, p. 38, and notes. » Paynter v. Williams, 1 Cromp. & M. 810; DAY v. CATON. 119 Mass. 513, 20 Am. Rep. 347; Huck v. Flentye, 80 111. 258; De Wolf v. City of Chicago, 26 16 OFFER AND ACCEPTANCE. (Cb. 2 So, also, if a person sends goods to another, not under such circum- stances as reasonably to lead the latter to suppose them a gift, and the latter uses or consumes them, he will be liable on an implied prom- ise to pay what the goods are reasonably worth. The offer is made by sending the goods ; the acceptance, by their use or consumption, which is in fact a promise to pay their price. ° Where conduct is relied on as constituting acceptance, it must be something more than mere silence; it must be silence under such cir- cumstances as to amount to acquiescence or assent' "Implied Contracts" — The Term Explained. Contracts implied from the conduct of the parties are implied as a matter of fact, and not as a matter of law. There is, in fact, an agreement between the parties, though it is shown by their acts, and not by express words. '^ If a man says to another in words, "I will sell you this article for the market price," and the latter, taking it, says in words, "I accept your offer, and will pay the price," there is an express contract, evidenced by express words. If a man sends another goods under such circumstances as to show that he expects pay- ment, and the latter accepts and consumes the goods, there is an im- plied contract that he will pay the market price, evidenced by the con- Ill. 444; Hartnpee v. City of Pittsburg, 97 Pa. 107; Thomas v. Coal Co.. 43 Mo. App. 653: Lockwood v. Robbius, 125 Ind. 398, 25 N. E. 455. No promise, however, on the part of a person benefited by work, can be implied where the work was done under a special conti-act with another person. Walker v. Brown, 28 111. 378, 81 Am. Dec. 287; Massachusetts Gen. Hospital v. Fair- banks, 129 Mass. 78, 37 Am. Rep. 303. A promise cannot be implied where the whole matter is covered by an express contract. See Phelps v. Sheldon, 13 Pick. (Mass.) 50, 23 Am. Dec. 659; Waite v. Merrill, 4 Greenl. (Me.) 102, 16 Am. Dec. 238; Stockett v. Watkins' Adm'rs, 2 Gill & J. (Md.) 326. 20 Am. Dec. 438; Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674; King V. Woodruff, 23 Conn. 56, 60 Am. Dec. 125. 5 Hart V. Mills, 15 Mees. & W. 87; Manor v. Pyne, 3 Ring. 288; Larkin v. Lumber Co., 42 Mich. 296, 3 N. W. 904; Kinney v. Railroad Co., 82 Ala. 368, 3 South. 113; Indiana Mfg. Co. v. Hayes, 155 Pa. 160, 26 Atl. 6; Empire Steam Pump Co. v, Inman, 59 Hun, 230, 12 N. Y. Supp. 948; Rosenfield v. Swenson, 45 Minn. 190, 47 N. W. 718; Hobbs v. Whip Co., 158 Mass. 194. 33 N. E. 495. The person to whom the goods are sent must in some way deal with them as his own in order that an acceptance may be implied. If he does not choose to take them, he Is not'bouijd to return them. Pol. Cont. 11. Where goods are ordered, and only a part are sent, the person so ordering need not accept tliem. If he does so, however, he impliedly agrees to pay what the goods are reasonably vv'orth. Chapman v. Dease, 34 Mich. 375; DER- MOTT v. JONES, 23 How. 220, 16 L. Ed. 442; Star Glass Co. v. Morey, 108 Mass. 570; Goodwin v. Men-ill. 13 Wis. 737; Richards v. Sha^, 67 111. 222. But see Kein v. Tupper, 52 N. Y. 550. 6 ROYAL INS. CO. v. BEATTY, 119 Pa. 6, 12 Atl. 607, 4 Am. St. Rep. 622; O'Neal V. Knippa (Tex. Sup.) 19 S. W. 1020. T Pol. Cont. 9-11; Leake, Cont 11. §§ 14-15) COMMUNICATION BY CONDUCT — IMPLIED CONTRACTS. 17 duct of the parties in sending the goods on the one side, and in ac- cepting and using them on the other. Sending the goods is an oflFer to sell them, and accepting and using them is an acceptance of the of- fer. There is no difference in the two contracts except in the evi- dence by which the agreement is shown.* The distinction between contracts implied from the conduct of the parties and so-called "im- plied contracts" which are properly "quasi contracts," has been ex- plained.* Same — Relationship of the Parties. Where one person renders services for another, or supports another, the relationship of the parties is of great weight in determining their intention. If the relationship is that of parent and child, even though the child has attained his or her majority, there is a presumption that no compensation was intended; ^° and this applies not only where the relationship of parent and child actually exists, but also where one of the parties stands in loco parentis to the other.^^ Most courts do not stop at this, but apply the rule wherever the parties occupy a near re- lationship, or, though not related at all, or only distantly, are mem- bers of the same family, and the services consist either in household or other family duties by one party, and support and maintenance by the other.^^ In some cases the presumption against the existence of a contract does not exist.^^ As to this, the authorities are in conflict. In some states, a presumption that the services were gratuitous only arises in the case of parent and child, or child and person standing in loco parentis. In most states, however, the presumption arises in all 8 BIXBT V. MOOR, 51 N. H. 402. 9 Ante, p. 8. 10 Young V. Herman, 97 N. C. 280, 1 S. E. 792; Bantz v. Bantz, 52 Md. 693; Cowan V. Musgrave, 73 Iowa, 384, 35 N. W. 496; McGarvy v. Roods, 73 Iowa, 363, 35 N. W. 488; Hudson v. Hudson, 90 Ga. 581, 16 S. E. 349; In re Young's Estate, 148 Pa. 575, 24 Atl. 124; Howe v. North, 69 Mich. 272, 37 N. W. 213; Allen v. Allen, 60 Mich. 635, 27 N. W. 702; Grant v. Grant, 109 N. C. 710, 14 S. E. 90. 11 Dodson V. McAdams, 96 N. C. 149, 2 S. E. 453, 60 Am. Rep. 408; Ormsbv V. Rhoades, 59 Vt. 505, 10 Atl. 722; Starkie v. Perry, 71 Gal. 495, 12 Pac. 508: Wyley t. Bull, 41 Kan. 206, 20 Pac. 855; Appeal of Barhite, 126 Pa. 404, 17 Atl. 617; Harris v. Smith, 79 Mich. 54, 44 N. W. 169, 6 L. R. A. 702. 12 Disbrow v. Durand. 54 N. J. Law, 343, 24 Atl. 545, 33 Am. St. Rep. 678; Cone v. Cross, 72 Md. 102, 19 Atl. 391; Curry v. Curry, 114 Pa. 367, 7 Atl. 61; Feiertag v. Feiertag, 73 Mich. 297, 41 N. W. 414; Patterson v. Collar, 31 111. App. 340; Collar v. Patterson, 137 111. 403, 27 N. E. 604; Reeves' Estate v. Moore, 4 Ind. App. 492, 31 N. E. 44; Gerz v. Weber, 151 Pa. 396, 25 Atl. 82. Where a woman married a man and lived with him till his death, but after- wards learned that he had a wife living, held that she could not recover in an action of contract against his administrator for her services in keeping house. COOPER v. COOPER, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721. IS In re Shubart's Estate, 154 Pa. 230, 26 Atl. 202. Olaek Cont. (2d Ed.) — 2 18 OFFER AND ACCEPTANCE. (Ch. 2 cases where the parties occupy the position of members of the same family; the one furnishing support, and the other rendering services. In all cases it may be shown that there was an agreement for compen- sation.* As said in an Indiana case, a contract will be implied, not- withstanding the relationship, where there is hope of compensation on one side and expectation to award it on the other.^* COMMUNICATION OF OFFER. 10. An offer is made when it is oommnnioated to the offeree* It is plain that without communication of the offer there can be no consensus, and therefore no contract. Thus, in the case of an offer of a promise for an act, if the offeree does the act in ignorance of the offer, he is not entitled to the benefit of the promise. It is for this reason that a person who does an act for which a reward is offered, in ignorance of the offer, cannot claim the reward.^ ^ Again, if a person does work for another under such circumstances that it could not reasonably be supposed that he meant to work for nothing, the doing of the work is an offer, and acquiescence in its do- ing may be an acceptance. But if the offer is not communicated to the person to whom it is intended to be made, there can be no acquies- cence. Thus, where a person who had been engaged to command a ship threw up his command during the voyage, but helped to work the vessel home, and then claimed compensation for such services, it was held that he could not recover.^" Evidence "of a recognition or ac- *As to the sufficiency of the evidence to show that there was a contract, see Pritchard v. Pritchard, 69 Wis. 373, 34 N. W. 506; McMillan v. Page, 71 Wis. 655, 38 N. W. 173; Shane v. Smith, 37 Kan. 55, 14 Pac. 477; Petty v. Young. 43 N. J. Eq. 654, 12 Atl. 392; Appeal of Lindsey (Pa. Sup.) 15 Atl. 434 ; Doremus v. Lott, 49 Hun, 284, 1 N. Y. Supp. 793 ; Hill v. Hill, 121 Ind. 255, 23 N. E. 87; Hogg v. Laster, 56 Ark. 382, 19 S. W. 975; Henzler's Estate V. Bossard, 6 Ind. App. 701, 33 N. E. 217; Zimmerman v. Zimmerman, 129 Pa. 229, 18 Atl. 129, 15 Am. St. Rep. 720; Havens v. Havens, 50 Hun, 605, 3 N. Y. Supp. 219; Spitzmiller v. Fisher, 77 Iowa, 289, 42 N. W. 197; Ellis V. Gary, 74 Wis. 176, 42 N. W. 252, 4 L. R. A. 55, 17. Am. St. Rep. 125; Davis v. Gallagher, 56 Hun, 593, 9 N. Y. Supp. 11; Kirkpatrick v. Gallagher, 34 S. G. 255. 13 S. E. 450; McCormick v. McCormick, 1 Ind. App. 594, 28 N. E. 122; Story v. Story, 1 Ind. App. 284, 27 N. E. 573; Stock v. Stoltz, 137 111. 349, 27 N. E. 604; Wayman v. Wayman (Ky.) 22 S. W. 557; O'Kelly v. Faulkner. 92 Ga. 521, 17 S. E. 847. 1* Huffman v. Wyrick, 5 Ind. App. 183, 31 N. E. 823. i» Post, p. 40. i« Taylor v. Laird, 25 L. J. Exch. 329. And see BARTHOLOMEW v. JACKSON, 20 Johns. (N. Y.) 28, 11 Am. Dec. 237, in which it was held that a § 16) *POMMUNICATION OF OFFER. 19 ceptance of services," it was said, "may be sufficient to show an im- plied contract to pay for them, if at the time the defendant had power to accept or refuse the services;" but in this case the defendant never had such an option, and repudiated the services when he became aware of them. The offer, not having been communicated to the owner of the vessel, did not admit of acceptance, and could give no rights against him. As said in the case mentioned : "Suppose I clean your property without your knowledge, have I then a claim on you for payment ? How can you help it ? One cleans another's shoes ; what can the other do but put them on? Is that evidence of a contract to pay for the cleaning?" Terms of Oifer Partly Uncommunicated. If an offer contains on its face the terms of a complete contract, the acceptor will not be bound by any other terms intended to be in- cluded, unless he knew those terms, or had their existence brought to his knowledge, and was capable of informing himself of their nature.^ ^ Illustrations of this frequently arise in the case of con- tracts of carriage or bailment with a railroad company or warehouse- man, evidenced by a ticket or other document containing terms modi- fying the liability of the company or warehouseman as carrier or bailee, though, of course, they may arise in the case of other con- tracts. The law on this point was thus stated in an English case: "If the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions ; if he knew there was writing, and knew or believed that the writing con- tained conditions, then he is bound by the conditions; if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivery to him of the ticket in such a manner that he could see that there was writing on it, was, in the opinion of the jury, reasonable notice that the writing contained conditions." ^' In all person who removed another's property without the latter's knowledge, to pre- vent its destruction by fire, could not recover for his services, because no offer was ever communicated. See, also, Thornton v. Village of Stui'gis, 38 Mich. 639; Nagle v. McMurray, 84 Cal. 539, 24 Pac. 107; Burrows v. Ward, 15 R. I. 346, 5 Atl. 500; Brennan v. Chapin (Com. PI. N. Y.) 19 N. Y. Supp. 237; Mann v. Farnum, 17 Colo. 427, 30 Pac. 332. 17 In order that a prospectus of a proposed publication may become a part of the contract of a subscriber for the work to be published, so that he may take advantage of statements contained therein, it must appear that the contents of the prospectus were communicated to him, so that he may be supposed to have been influenced thereby. Tichnor v. Hart, 52 Minn, 407, 54 N. W. 369. 18 Parker v. Railway Co., 2 C. P. Div. 423. See, also, Richardson v. Roun- ti-ee [1S94J App. Cas. 217; The Majestic, 166 U. S. 375, 17 Sup. Ct 597, 41 L. 20 OFFER AND ACCEPTANCE. (Ch. 2 cases, however, the question is the same, namely, have the terms of the offer been fully communicated to the acceptor? And the tend- ency of judicial decision is towards a general rule that, if a man accepts a document which purports to contain the terms of an offer, he is bound by all the terms, though he may not choose to inform himself of their tenor, or even of their existence.^* Same — Contract under Seal. There is one exception to the inoperative character of an uncom- municated offer. This is in case of an offer under seal. The po- sition of the party making the offer, however, is not that he is bound by the contract, for this can only be when an offer is accepted, but that he has made an offer which he cannot withdraw. For this rea- son the matter is best dealt with under the head of revocation of offers." Ed. 1039. Where a ticket by steamer from Dublin to Whitehaven contained on its face only the words, "Dublin to Whitehaven," it was held that the pur- chasei- was not bound by conditions on the back of the ticket, which he had not seen, since the ticket was a complete contract on its face. Henderson v. Stevenson, L. R. 2 H. L. 470. On the other hand, where a ticket had written on its face the words, "Sub- ject to the conditions on the other side," and the person to whom it was issued admitted knowledge that there were conditions, but said he had not read them, the conditions contained on the back were held binding notwith- standing they were not read. Harris v. Railway Co., 1 Q. B. Div. 515. In another case the ticket contained on its face the words, "See back," and the person to whom it was given admitted knowledge of wi-iting on the ticket, but denied all knowledge that the writing contained conditions. It was held that he was bound by the conditions if the jury were of opinion that the ticket amounted to a reasonable notice of their existence. Parker V. Southeastern Ry. Co., supra. 19 Burke v. Railway Co., 5 C. P. Div. 1; Watkins v. Rymill, 10 Q. B. Div. 178; McClure v. Railroad Co., 34 Md. 532, 6 Am. Rep. 345; Johnson v. Same, 63 Md. 106 ; BOYLAN v. RAILROAD CO., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290; Durgin v. Express Co., 66 N. H. 277, 20 Atl. 328, 9 L. R. A. 453; Davis V. Railroad Co., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852 ; FONSECA V. STEAMSHIP CO., 153 Mass. 553, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660; Schaller v. Railway Co., 97 Wis. 31, 71 N. W. 1042. But some courts hold that, where a contract limiting the common-law liability of the carrier is contained in a bill of lading, the burden is on the carrier to show that the limitations were assented to. See Michigan Cent. R. v. Manufactur- ing Co., 16 Wall. 318, 21 L. Ed. 297; 9 Cyc. Law & Proc. 263. One who ac- cepts a document reasonably purporting to be a mere check or voucher, and not a contract, without knowledge of stipulations contained in It, does not assent to such stipulations. MALONE v. RAII-ROAD CORP., 12 Gray (Mass.) 388, 74 Am. Dec. 598. See FONSECA v. STEAMSHIP CO., supra. ao Post, p. 32. § 17) NECESSITY AND EFFECT OF ACCEPTANCE. 21 NECESSITY AND EFFECT OF ACCEPTANCE. > 17. An offer before it vcrill become a binding promise mnst be accepted. s It is the universal rule that an offer must be accepted before it will become a binding promise, and result in a contract.'^^ This rule springs from the very nature of contract as involving the element of agreement.^ ^ An unaccepted offer, therefore, cannot create any ^ rights, or bind the party making it to the party to whom it is made. \^ j^A_f ortiori, it cannot bind the party to whom it is made.^' "A con- ' tract," it has been said by Pothier, "includes a concurrence of in- tention in two parties, one of whom promises something to the other, who, on his part, accepts such promise. A pollicitation is a promise not yet accepted by the person to whom it is made. Pollicitatio est solius offerentis promissum. A pollicitation, according to the rules of mere natural law, does not produce what can be properly called an obligation; and the person who has made the promise may re- tract it any time before it is accepted ; for there cannot be any obligation without a right being acquired by the person in whose favor it is contracted against the party bound.-y'Now, as I cannot, by the mere act of my own mind, transfer to another a right in my goods, without an intention on his part to accept them, neither can I by my promise confer a right against my person, until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right." ^* An offer, as we shall presently see, can be revoked at any time before acceptance. Acceptance, whether by words or by conduct, 21 PAYNE V. CAVE, 3 Term R. 148; Tuttle v. Love, 7 Johns. (N. Y.) 470; Tucker v. Woods, 12 Johns. (N. Y.) 190, 7 Am. Dec. 305; First Nat. Bank V. Hall, 101 U. S. 43, 25 L. Ed. 822; McKinley v. AYatklns, 13 111. 140; Bruce V. Bishop, 43 Vt. 161 ; Weiden v. Woodruff, 38 Mich. 130 ; Brown v. Rice, 29 Mo. 322 ; Belfast & M. L. R. Co. v. Inhabitants of Unity, 62 Me. 148 ; Bower V. Blessing, 8 Serg. & R. (Pa.) 243; King v. Warfield, 07 Md. 246, 9 Atl. 539. 1 Am. St. Rep. 384; Missom-i Pac. Ry. Co. v. Railway Co. (C. G.) 31 Fed. 864: Etheredge v. Barkley, 25 Fla. 814. 6 South. 861; Hodges v. Sublett, 91 Ala. 588, 8 South. 800; Graff v. Buchanan, 46 Minn. 254, 48 N. W. 915; Bron- son V. Herbert, 95 Mich. 478, 55 N. W. 359; McCormick Harvesting Mach. Co. V. Richardson, 89 Iowa, 525, 56 N. W. 682. 2 2 Ante, p. 2. Suppose A. makes an olTer by letter to B. to sell him cer- tain goods at a certain price, and B., not knowing of the offer, makes an offer by letter to A. to buy the goods at that price, and the letters cross each other. This is not sufficient to constitute a contract, for there is no accept- ance by either of the other's offer, though it may be said that the minds of the parties are ad idem. See TINN v. HOFFMAN, 29 L. T. (N. S.) 271. 23 STENSGAARD v. SMITH, 48 Minn. 11, 44 N. W. 669, 19 Am. St. Rep. 205 ; Melchers v. Springs, 33 S. C. 279, 11 S. E. 788. a* Poth. Obi. p. 1, c. 1, § 1, art 2. 22 OFFER AND ACCEPTANCE. (Ch. 2 supplies the element of agreement, which binds the party making it to a fulfillment of its terms. ^' It changes the character of the offer, and makes it a promise. ^° COMMUNICATION OF ACCEPTANCE. 18. Where the offer contemplates the perfcmiaiLce of or forbearance from an act as the consideration of the promise of the offeror, the performance or forbearance is an acceptance, unless the offeror expressly or impliedly prescribes that the acceptance mnst be oommnnicated. 19. Where the offer contemplates a promise as the consideration of the promise of the offeror, communication of the acceptance is essential, unless the offer contemplates that the perform- ance of some overt act manifesting an intention to accept shall be an acceptance, in -which case performance of the act is an acceptance. 20. Where the offer contemplates the dispatch of an acceptance by means beyond the acceptor's control, as by post, telegraph, or the offeror's messenger, an acceptance so dispatched is effective from the time of dispatch, unless the offeror makes the forma- tion of the contract dependent upon actual communication to himself. It is frequently said that it is essential to the formation of a con- tract that the acceptance be communicated, but, as already intimated, such is far from being the fact. It is, indeed, true that acceptance must be more than mere mental assent.^^ Where, for instance, a person by letter offered to buy another's horse for a certain price, 25 HARRIS' CASE, L. R. 7 Ch. App. 587; Thruston v. Thornton, 1 Cush. (Mass.) 91; Bowen v, Tipton, 64 Md. 275, 289, 1 Atl. 861; Equitable Endow- ment Ass'n V. Fisher, 71 Md. 430, IS Atl. 808; Fried v. Insurance Co., 50 N. Y. 243 ; White v. Baxter, 71 N. Y. 254 ; Hamilton v. Insurance Co., 5 Pa. 339 ; Wheeler v. Railroad Co., 115 U. S. 29. 5 Sup. Ct. 1061, 29 L. Ed. 341 ; Hawkin- son V. Harmon, 69 Wis. 551, 35 N. W. 28 ; Wilcox v. Cline, 70 Mich. 517, 38 N. W. 555 ; Merchant v. O'Rourke, 111 Iowa, 351, 82 N. W. 759. A bid at an auction sale is accepted when the hammer is struck down, and the contract is then complete. PAYNE v. CAVE, 3 Term R. 148; Blossom v. Rail- way Co., 3 Wall. 196, 18 L. Ed. 43; Ives v. Tregent, 29 Mich. 390. Where an offer is made containing conditions, an acceptance without qualification is an acceptance of the conditions, and makes a binding contract. Lawrence v. Railway Co., 84 Wis. 427, 54 N. W. 797. 2« See Gartner v. Hand, 86 Ga. 558, 12 S. E. 878. 27 WHITE V. CORLIES, 46 N. Y. 467; FELTHOUSE v. BINDLEY. 11 C. B. (N. S.) 809 ; HERB'S CASE, L. R. 4 Eq. 9 ; Brogden v. Railway Co., L. R. 2 App. Cas. 691 ; Stitt v. Huidekopers, 17 Wall. 385, 21 L. Ed. 644 ; MAC- TIER'S ADM'RS V. FRITH, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262 ; Van Valken- burg V. Rogers, 18 Mich. 180 ; Strasburg R. R. Co. v. Echternacht, 21 Pa. 220, 60 Am. Dec. 49; Ueberroth v. Riegel, 71 Pa. 280; Beckwith v. Cheever, 21 N. H. 41 ; Trounstine v. Sellers, 35 Kan. 447, 11 Pac. 441 ; Oilman v. Kibler, §§ 18-20) COMMUNICATION OF ACCEPTANCE. 23 adding, "If I hear no more about him, I consider the horse is mine at**" that price;' and no answer was returned, it was held that there was no contract, and this, though it appeared that the person to whom the offer was sent had made up his mind to accept, and had stated to a third person that the horse was sold.^* A person making an offer may indicate some overt act tlie performance of which shall be a suffi- cient manifestation of acceptance, but the statement to a third person that the horse was sold was not such an act, and the silent assent of the offeree was not an acceptance. Whether or not communication of the acceptance is essential to the formation of a contract must depend upon the nature and terms of the offer; that is, upon whether the offeror proposes to be bovmd upon the performance of an act by the offeree, or upon his com- munication of his acceptance of the offer. "Where a person in an offer made by himself to another person expressly or impliedly in- timates a particular mode of acceptance as sufficient to make the bar- gain binding, it is only necessary for the other person * * * to follow the indicated mode of acceptance; and if the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the consideration is a sufficient ac- ceptance without notification." ^® ^ If the offer contemplates the do- ing or forbearance from the doing of an act as the consideration of the promise of the offeror, unless the offer prescribes communication, the mere performance of the consideration completes the contract."* Thus, if a person orders goods of a merchant, who ships them pur- suant to the order, the contract of sale is complete upon the ship- ment; ^^ and if a person offers a reward for the return of lost arti- 5 Humph. (Tenn.) 19; Stuart v. Railroad Co., 32 Grat. (Va.) 146; Johnson v. Jacobs, 42 Minn. 168, 44 N. W. 6 ; Cozart v. Herndon, 114 N. C. 252, 19 S. E. 158. In Lancaster v. Elliott, 28 Mo. App. 86, it was held that a proposal by de- fendant to relinquish certain rights against plaintiff was not accepted by writing on the proposal the word "Accepted," and depositing in bank a sum of money to be applied as required by the proposal, where both the proposal and the deposit remained under plaintiff's control. Where an order for goods is given to an agent of the manufacturer, a letter from the latter to the agent, without any notice to the person who gave the order, is not an acceptance, so as to render the order binding. Harvey v Duffey, 99 Cal. 401, 33 Pac. 897. as FELTHOUSE v. BINDLEY, supra. 2 8 CARLILL V. SMOKE-BALL CO. (1893) 1 Q. B. 256. 80 Brogden v. Railway Co., L. R. 2 App. Cas. 691 ; FIRST NAT. BANK v. WATKINS, 154 Mass. 385, 28 N. E. 275 ; Lennox v. Murphy, 171 Mass. 870, 50 N. E. 644. 81 Finch V. Mansfield, 97 Mass. 89; Smith v. Edwards, 156 Mass. 221, 30 N. B. 1017; Kelsea v. Manufacturing Co., 55 N. J. Law, 320, 26 Atl. 907. 22 L. R. A. 415 ; BOIT v. MAYBIN, 52 Ala. 252 ; Sarbecker v. State, 65 Wis. 1 'I, 26 N. W. 541, 56 Am. Rep. 624. See Brogden v. Railway Co., 2 App. Cas. 666. 24 OFFER AND ACCEPTANCE. (Ch. 2 cles, or for information, the contract is complete upon transmission of the articles or the information to the offeror.^ ^ So, as we have seen, if a person asks another to work for him, unless a particular form of acceptance is prescribed, the latter may accept the offer sim- ply by performing the service;*' and if a person sends goods to an- other, who uses them, he is liable to pay for them.^* Yet, even where the offer is of a promise for an act, the offeror may, of course, make communication of acceptance a condition of the formation of a contract. An apparent exception to the rule that performance of the act with- out notification of acceptance completes the contract is found in the cases which hold that an offer to guaranty future advances to be made or credit to be extended to a third person, and the like, does not ripen into a contract upon the making of the advances or extend- ing the credit, but that notice of acceptance by the guarantee is es- sential.*^ These cases have been put upon the untenable ground that the acceptance of the offeree must be signified to the offeror to make a binding contract, and also upon the ground that the requirement of notice is reasonable, as enabling the guarantor to know the nature and extent of his liability, to guard himself against losses which might otherwise be unknown to him, and to avail himself of appro- priate means to compel the other parties to discharge him from future liabilities. In the offer of a guaranty, it seems that either by the custom of merchants, or perhaps by the inherent nature of the trans- action, it is implied in the offer that notice shall be given with due diligence, so that the promisor may know that the contract has been made.**^ The cases, however, are not unanimous, and some courts have held that the contract is complete when the offer has been acted upon, and that notice is not necessary.*^ On the other hand, where the offer contemplates a promise as the s» Post, p. 3a «» Ante, p. 15. ^* Ante, p. 16. 8 6 Edmoudston v. Drake, 5 Pet. (U. S.) 624, 8 L. Ed. 251; Adams v. Jones, 12 Pet. 207, 9 L. Ed. 1058; Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686; DAVIS SEWING MACHINE CO. v. RICHARDS, 115 U. S. 524, 6 Sup. Ct 173, 29 L. Ed. 480 ; Acme Mfg. Co. v. Reed, 197 Pa. 359, 47 Atl. 205, 80 Am. St Rep. 832; De Cremer v. Anderson, 113 Mich. 578, 71 N. W. 1090; German Sav. Bank v. Roofing Co., 112 Iowa, 184, 84 N. W. 960, 51 L. R. A. 758 (full citation of cases). 8 6 BISHOP V. EATON, 161 Mass. 496, 87 N. E. 665, 42 Am. St. Rep. 437. See, also, Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644. 37 Wilcox V, Draper, 12 Neb. 138, 10 N. W. 579, 41 Am. Rep. 763; Lininger & Metcalf Co. v. Wheat, 49 Neb. 567, 68 N. W. 941; Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 504; Crittenden v. Fiske, 46 Mich. 70, 8 N. W. 714, 41 Am. Rep. 146; Powers v. Bumcratz, 12 Ohio St. 273; (cf. Wise v. Miller, 45 Ohio St. 388, 14 N. E. 218): Douglass v. Howland, 24 Wend. (N. Y.) 35 ; Union Bank v. Coster's Ex'rs, 3 N. Y. 203, 53 Am. Dec. 280. See, also, Mani-y v. Waxelbaum Co., 108 Ga. 14, 33 S. E. 701. §§ 18-20) COMMUNICATION OF ACCEPTANCE. 25 oonsideration of the promise of the offeror, it is obvious that words or conduct upon the part of the offeree indicating to the former an agreement to be bound is essential, or at least that the offeree must indicate his intention to be bound by some overt act, not necessarily an act brought to the knowledge of the offeror, but an act which, from the nature and terms of the offer, must have been contemplated by the offeror as an acceptance. Thus, where the defendants wrote to the plaintiff, who had furnished an estimate for fitting up their offices, "Upon an agreement to finish the fitting up * * * in two weeks from date, you can begin at once," but countermanded the offer after the plaintiff had bought lumber and begun work thereon, it was held error to charge the jury that the plaintiff need not in- dicate to the defendants his acceptance of their offer and that the purchase of the stuff and working on it after receiving the note made a binding contract.^ ^ The offer contemplated the plaintiff's promise or agreement to finish in two weeks as an acceptance, and there was nothing in his conduct that indicated to the defendants his agree- ment to perform. The offeror may, however, indicate some act by which the offeree may manifest his intention to be bound, the per- formance of which, without actual communication, shall be sufficient as an acceptance, and when the offeree has thus indicated his inten- tion the contract is complete. It seems that the rule which prevails in regard to contracts by correspondence must rest upon this ground.^ ^ Contract by Correspondence. It is now settled that the acceptance in case of contract by corre- spondence where an answer is invited by post is complete as soon as the letter of acceptance is dispatched.*" Where an offer is made 88 WHITE V. CORLIES, 46 N. Y. 467. 89 "I have always believed the law to be this, that when an offer is made to another party, and in that offer there is .i request, expressed or implied, that he must signify his acceptance by doing some particular thing, then us soon as he does that thing he is bound. If a man sent an offer abroad saying, *I wish to know whether you will supply me with goods at such and such a price, and if you agree to that you must ship the first cargo as soon as you get this letter,' there can be no doubt that as soon as the cargo was shipped the conti-act would be complete, and if the cargo went to the bottom of the sea it would go to the bottom of the sea at the risk of the orderer. So, again, where, as in the case of EX PARTE HARRIS, IN RE IMPERIAL LAND COMPANY OF MARSEILLES, Law Rep. 7 Ch. App. 587, a person writes a letter and says, 'I offer to take an allotment of shares,' and . be expressly or impliedly says, *If you agree with me, send an answer by the post,' there, as soon as he has sent that answer by the post, and put it out of his conti-ol, and done an extraneous act which clinches the matter, and shows beyond all doubt that each side is bound, I agree the contract is perfectly plain and clear." Brogden v. Railway Co., 2 App. Oaa. 666, 691, per Lord Blackburn. 4 ADAMS v. LINDSELL, 1 Barn. & Aid. 681 ; POTTER v. SANDERS, 6 Hare, 1; Levy v. Cohen, 4 Ga. 1; TAYLOE v. INSURANCE CO., 9 How. 390, 26 OFFER AND ACCEPTANCE. (Ch. 2' by post it may be assumed that an answer by post is invited unless the contrary is indicated, but the rule is not necessarily confined to cases where the offer is made in that manner. "Where the circum- stances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as posted." *^ The rule has not been established without vigorous dissent.*^ There was at first some hesitation in applying this rule in cases where the letter of acceptance was lost or delayed in transmission ; but it is now settled by the great weight of authority that, when an acceptance has been posted, the contract is complete, and cannot be affected by the subsequent fate of the letter.*^ "The acceptor," it has been said, "in posting the letter has 'put it out of his control, 13 L. Ed. 187; AVERILL v. HEDGE, 12 Conn. 424; VASSAR v. OAMP, 11 N. Y. 441 ; Darlington Iron Co. v. Foote (C. C.) 16 Fed. 646 ; THOMSON v. JAMES, 18 Dunl., B. & M. 1; MINNESOTA LINSEED OIL CO. v. LEAD CO., 4 Dill. 431, Fed. Cas. No. 9,635; MACTIER'S ADM'RS v. FRITH, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; HARRIS' CASE, L. R. 7 Ch. 587; TRE- VOR V. WOOD, 36 N. Y. 307, 93 Am. Dec. 511; WHEAT v. GROSS, 31 Md. 99, 103, 1 Am. Rep. 28; Ferrier v. Storer, 63 Iowa, 484, 19 N. W. 288, 50 Am. Rep. 752; Stockham v. Stockham, 32 Md. 196; Moore v. Pierson, 6 Iowa, 279, 71 Am. Dec. 409; Perry v. Iron Co., 15 R. I. 380, 5 Atl. 632, 2 Am. St. Rep. 902; Oilhoun v. Atchison, 4 Bush (Ky.) 261, 96 Ava. Dec. 299; Hamilton v. Insurance Co., 5 Pa. 339; Abbott y. Shepard, 48 N. H. 14; Hunt v. Higman, 70 Iowa, 406, 30 N. W. 769; Kempner v. Gohn, 47 Ark. 519, 1 S. W. 869, 58 Am. Rep. 775; Cobb v. Foree, 38 111. App. 255. Contra, McCULLOCH v. IN- SURANCE CO., 1 Pick. (Mass.) 278 (but see BRAUER v. SHAW, 168 Mass. 198, 46 N. E. 617, 60 Am. St Rep. 387) ; Scottish- American Mortg. Co. v. Davis (Tex. Civ. App.) 72 S. W. 217 (notwithstanding telegram recalling letter). *i HBNTHORN v. ERASER [1882] 2 Ch. 27, per Lord Herschell. *2 See dissenting opinion of Bramwell, L. J., in HOUSEHOLD INS. CO. v. GRANT, 4 Exch. Div. 221 ; BRITISH & AM. TEL. CO. v. COLSON, L. R. 6 Exch. 108; McCULLOCH v. INSURANCE CO., 1 Pick. (Mass.) 278; Lang- dell. Sum. Cont. §§ 14, 15; Parsons, Cont. (8th Ed., Williston) *484, note 1. There is much force in the argument that communication is essential to the counter promise which is the cou.sideration, and that hence the acceptance cannot take effect until its receipt. Moreover, granting that the offeror must be taken to have contemplated that the post may be used as a means of communicating the acceptance, it is its communication, and not the mere putting it in course to be communicated, which he practically contemplates. It is a somewhat violent assumption to attribute to him any different inten- tion than that which would be expressed by making the offer conditional upon receipt of the acceptance, which would be enforced. *8 HOUSEHOLD INS. CO. v. GRANT, 4 Exch. Div. 221; MACTIER'S ADM'RS V. FRITH, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; TAYLOE v. IN- SURANCE CO., 9 How. 390, 13 L. Ed. 187; Washburn v. Fletcher, 42 Wis. 152; VASSAR v. OAMP, 11 N. Y. 441; Dunlop v. Higgins, 1 H. L, Cas. 381; Bryant v. B(x)ze, 55 Ga. 438; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Duncan v. Topham. 8 C. B. 225; Chyti-aus v. Smith, 141 111. 231, 30 N. E, 450; § 21) CHARACTER, MODE, PLACE, AND TIME OF ACCEPTANCE. 27 and done an extraneous act which clinches the matter, and shows be- yond all doubt that each side is bound.' How, then, can a casualty in the post, whether resulting in delay — which in commercial trans- actions is often as bad as no delivery — or in nondelivery, unbind the parties or unmake the contract?"** The rule is the same where the telegraph is properly used as the mode of signifying acceptance, and the contract is complete on delivery of the message to the telegraph company.*' This rule, of course, does not apply where the offer expressly or by implication stipulates that the contract is to be com- plete, and the offer binding, when the acceptance is received. In such a case the mailing of the acceptance is not enough.*^ To constitute an acceptance, however, the letter must be actually and properly post- ed. If it is delivered to an agent of the acceptor, and he neglects to mail it, or to a postman not authorized to receive letters, or if it is posted without a stamp, or improperly addressed, it is not an acceptance.*^ CHARACTER, MODE, PliACE, AND TIME OF ACCEPTANCE. 21. Tlie acceptance of an o£Per to result in a contract must b&— (a) Absolute and unconditional. (b) Identical -with tbe terms of the offer. (o) In the mode, at the place, and within the time expressly or im- pliedly required by the offer. The acceptance of an offer must be absolute, and identical with the terms of the offer; or, as it has been expressed, "an acceptance to be good must in every respect meet and correspond with the offer, neither falling within nor going be3''ond the terms proposed, but ex- actly meeting them at all points and closing with them just as they stand." ** Unless this is so, there is no meeting of minds and ex- Oollege Mill Co. v. Fidler (Tenn. Ch.) 58 S. W. 382. See, contra, BRITISH & AM. TEL. CO. V. COLSON, L. R. 6 Exch. 108, disapproved in Harris' Case, supra. *4 HOUSEHOLD INS. CO. v. GRANT, 4 Exch. Div. 221. 4 6 MINNESOTA LINSEED OIL CO. v. LEAD CO., 4 Dill. 431, Fed. Cas. No. 9,G35; TREVOR v. WOOD, 36 N. Y. 307, 93 Am. Dec. 511; BRAUER v. SHAW, 168 Mass. 198, 46 N. E. 617, 60 Am. St. Rep. 387. 48VASSAR V. CAMP, 11 N. Y. 441; LEWIS v. BROWnInG, 130 Mass. 173; HAAS v. MYERS, 111 111. 421, 53 Am. Rep. 634. *i Henderson v. Coke Co., 140 U. S. 25, 11 Sup. Ct. 691, 35 L, Ed. 332; Maclay v. Harvey, 90 111. 525, 32 Am. Rep. 35; Blake v. Insurance Co., 67 Tex. 160, 2 S. W. 368, 60 Am. Rep. 15; IN RE LONDON & N. BANK [1900] 1 Cb. 220. Deposit of a letter in a street letter box is equivalent to deposit in tbe post office. Wood v. Callagban, 61 Mich. 402, 28 N. W. 162, 1 Am. St. Rep. 597. *8Knowlton's Anson. Cont 22, note; ELIASON v. HENSHAW, 4 Wheat. 225, 4 L. Ed. 556; Potts v. Whitehead, 23 N. J. Eq. 512; Thomas v. Green- wood, 69 Mich. 215, 37 N. W. 195; MACTIER'S ADM'RS v. FRITH, 6 Wend. 28 OFFER AND ACCEPTANCE. (Ch. 2 pression of one and the same common intention — the intention ex- pressed by one of the parties is either doubtful in itself, or is differ- ent from that of the other. The intention of the parties must be distinct and common to both.*® If a person offers to do a definite thing, and the person to whom the offer is made accepts conditionally, or introduces a new term into the acceptance, his answer is not an acceptance. It is either a mere expression of willingness to treat, or it is in effect a c ounter o fEer.^*^ A proposal to accept, or an acceptance varying the terms from those offered, is a rejection of t he offer, and the offer is then no longer open to acceptance. °^ If a person proposes to sell another property, and the latter ac- cepts "subject to the terms of a contract being arranged" between their solicitors, there is no agreement, for the acceptance is not final, but subject to a discussion to take place between the agents of the parties.^^ If anything is left for future arrangement, the parties have not agreed."' It is not to be understood from this that there (N. Y.) 103, 21 Am. Dec. 262; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37; Jordan v. Norton, 4 Mees. & W. 155; Corcoran v. White, 117 111. 118, 7 N. B. 525, 57 Am. Rep. 858; Siebold v. Davis, 67 Iowa, 560, 25 N. W. 778; Stagg v. Oompton, 81 Ind. 171; Corser v. Hale, 149 Pa. 274, 24 Atl. 285; Wilkin Mfg. Co. V. Lumber Co., 94 Mich. 158, 53 N. W. 1045; Wristen v. Bowles, 82 Cal. 84, 22 Pac. 1136; Scott v. Davis, 141 Mo. 213, 42 S. W. 714; Coad v. Rogers, 115 Iowa, 478, 88 N. W. 947; SEYMOUR v. ARMSTRONG, 62 Kan. 720, &i Pac. 612; Shady Hill Nursery Co. v. Waterer, 179 Mass. 318, 60 N. E. 789, 88 Am. St. Rep. 384. See, also, the cases cited in following notes. As to acceptance by a person other than the one to whom the offer was made, see post. p. 199. 49 Ante, p. 2. 60 Hough v. Brown, 19 N. Y. Ill; Briggs v. Sizer, 30 N. Y. 647; Borland V. Guffy, 1 Grant (Pa.) 394; Harlow v. Curtis, 121 Mass. 320; MACLAY v. HARVEY, 90 111. 525, 32 Am. Rep. 35; Hammond v. Winchester, 82 Ala. 470, 2 South. 892; Crabtree v. Opera-House Co. (C. O.) 39 Fed. 746; Hubbell v. Palmer, 76 Mich. 441, 43 N. W. 442; Bristol Aerated Bread Co. v. Maggs, 44 Ch. Div. 616; Robertson v. Tapley, 48 Mo. App. 239; CROSSLEY v. MAY- COCK, 18 Eq. 180 ; Mygatt v. Tarbell, 85 Wis. 457, 55 N. W. 1031 ; Jones v. Daniel [1894] 2 Ch. 332 ; Davenport v. Newton, 71 Vt. 11, 42 Atl. 1087 ; Russell V. Manufacturing Co., 106 Wis. 329, 82 N. W. 134 ; Harris v. Scott, 67 N. H. 437, 32 Atl. 770 ; Putuam v. Grace, 161 Mass. 237, 37 N. E. 166. If so accepted by the original proposer, it becomes a binding promise. Es- may v, Gorton, 18 111. 483. 51 MINNEAPOLIS & ST. L, RY. CO. V. MILL CO., 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376; HYDE v. WRENCH, 3 Beav. 334; Virginia Hot Springs Co. v. Harrison, 93 Va. 569, 25 S. E. 888; James v. Darby, 100 Fed. 224, 40 C. C. A. 341. B2 Honeyman v. Marryat, 6 H. L. Cas. 112. It seems that an acceptance of an offer to sell land, "subject to the title being approved by" the acceptor's attorneys, is not conditional. Hussey v. Horne-Payue, 4 App. Cas. 311, 8 Oh. Div. 070. 3 Martin v. Fuel Co. (C. C.) 22 Fed. 596; APPLEBY v. JOHNSON, L. R. 9 O. P. 158; Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Utley v. § 21) CIIARAOTER, MODE, PLACE, AND TIME OF ACCEPTANCE. 29 must be nothing at all to be done after the acceptance. If the parties are fully agreed, there is a binding contract, notwithstanding the fact that a formal contract is to be prepared and signed ; "* but the par- ties must intend the agreement to be binding. If, though fully agreed on the terms of their contract, they do not intend to be bound until a formal contract is prepared and signed, there is no contract, and the circumstance that the parties do intend a formal contract to be drawn up is strong evidence to show that they did not intend the previous negotiations to amount to an agreement. °° An offer to sell a specified quantity of goods cannot be made bind- ing on the proposer by ordering a less quantity, for there is no offer to sell any quantity greater or less than that specified. ^^ And the same is true where the offer is to sell a certain quantity each of several articles, and the person to whom the offer is made orders the specified quantity of one or more of them, but declines the others. ^^ Nor will an order of a certain quantity of goods, accepted by sending a less quantity, impose any liability for the goods sent.^* So, also, if a person proposes to sell land to another for a certain sum, and the latter replies that he will give a less sum, there is nothing bind- ing between the parties.^^ Again, if a person offers to sell land, say- ing nothing as to the place of payment, and the acceptance specifies that payment shall be made at the acceptor's place of residence, there is no contract, since, under the offer, the proposer would be entitled to payment at his place of residence.®" Donaldson, 94 U. S. 29, 24 U Ed. 54; First Nat. Bank v. Hall, 101 U. S. 43, 25 L. Ed. 822; Brown v. N. Y. Central R. Co., 44 N. Y. 79; Canton Co. v. Kailrond Co., 21 Md. 383, 396; First Nat. Bank v. Clark, 61 Md. 40O, 48 Am. Rep. 114; Bruce v. Bishop. 43 Vt. 161; Sibley v. Felton. 156 Mass. 273, 31 N. E. 10 ; Sparks v. Pittsburgh Co., 159 Pa. 295, 28 Atl. 152 ; Stanley v. Dowdes- well, L. R. 10 G. P. 102. And see post, p. 42. 54 Ridgway v. Wharton, 6 H. L. Cas. 238; Bolton v. Lambert, 41 Ch. Div, 295; Bonnewell v. Jenkins, 8 Ch. Div. 70, 73; Cheney v. Transportation Line, 59 Md. 557; Allen v. Chouteau, 102 Mo. 309. 14 S. W. 869; Lawrence v. Rail- road Co., 84 Wis. 427, 54 N. W. 797; SANDERS v. FRUIT CO., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757. 5 5 Ridgway V. Wharton, 6 H. L. Cas. 238; Winn v. Bull, 7 Ch. Div. 29; Wills V. Carpenter, 75 Md. 80, 25 Atl. 415; Commercial Tel. Co. v. Smith, 47 Hun (N. Y.) 494. 56 MINNEAPOLIS & ST. L. RY. CO. v. ROLLING-MILL CO., 119 U. S 149, 7 Sup. Ot. 168, 30 L. Ed. 376; Michigan Bolt & Nut Co. v. Steel, 111 Mich 153, 69 N. W. 241. 6 7 Thomas v. Greenwood, 69 Mich. 215, 37 N. W. 195. 68 Bruce t. Pearson, 3 Johns. (N. Y.) 534. As to implied contract from re- taining and using or consuming the goods so sent, see ante, p. 16, and note 5. 69 HYDE V. WRENCH, 3 Beav. 336. And see post, p. 36, and cases cited. «o BAKER V. HOLT. 56 Wis. 100, 14 N. W^ 8; Sawyer v. Brossart, 67 Iowa. 678, 25 N. W 876, 5"^ Am. Rep. 371; Gilbert v. Baxter, 71 Iowa, 827, 32 N. 30 OFFER AND ACCEPTANCB. (Oh. 2 Manner, Place, and Time of Acceptance. It is also essential that the acceptance shall be made in the manner, at the place, and within the time expressly or impliedly designated in the offer. The proposer has the right to dictate terms in respect to the time, place, and manner of acceptance ; and when he does so, like all other terms, they must be complied with. In a leading case on this point the defendant offered to buy flour from the plaintiffs, stating in his offer that the answer should be sent by return of the wagon which brought the offer. The plaintiffs, instead of sending their acceptance by the wagon, mailed it to the defendant at a place other than the destination of the wagon, where it was duly received by him. It was held, however, that he was not bound by the ac- ceptance, as it was not sent to the place prescribed.®^ If an offer asks that the answer be sent by the messenger who brings the offer, or by mail, or by telegraph, it must be so sent, to be effective.®^ An answer by mail is insufficient if the telegraph is the mode prescribed.®^ An offer by mail, which says nothing as to the mode of sending the answer, impliedly requires an answer by mail, or possibly authorizes one by telegraph,®* though an acceptance sent by any other mode, and reaching the proposer within a reasonable time, might be held sufficient.®^ An offer by telegraph impliedly requires an answer by telegraph, and an answer by mail will not be sufficient. If the offer specifies a time for acceptance, it is a term of the offer, and an acceptance after the specified time will have no effect.®® An offer by correspondence, for instance, calling for an answer "in course W. 3&4; Langellier v. Schaefer, 36 Minn. 361, 31 N. W. 690; Robinson v. Weller, 81 Ga. 704, 8 S. E. 447; Maynard v. Tabor, 53 Me. 511. 61 Eliason v. Henshaw, 4 Wheat. 225, 4 L. Ed. 556. Where a person resid- ing in one state makes a written offer to a person residing in another, and at a distance, to sell lands, without arranging for a personal meeting, an ac- ceptance by mail is authorized. Wilcox v. Cline, 70 Mich. 517, 38 N. W. 555. 8 2 Carr v. Duval, 14 Pet. 83, 10 L. Ed. 361. Putting a letter of acceptance in the private letter box of the proposer has been held sufficient. Howard v. Daly, 61 N. Y. 362. 19 Am. Rep. 285. As to what constitutes mailing a letter, see ante, p. 27, note 47. 6 3 HORNB V. NIVER, 168 Mass. 4, 46 N. E. 393. 64 MACTIER'S EX'RS v. FRITH, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; VASSAR V. CAMP, 11 N. Y. 441; TAYLOE v. INSURANCE CO., 9 How. 390, 13 L. Ed. 187; Wilcox v. Cline, 70 Mich. 517, 38 N. W. 555; TREVOR V. WOOD, 36 N. Y. 307, 93 Am. Dec. 511. 6s lYounstine v. Sellers, 35 Kan. 447, 11 Pac. 441. «6 Long worth v. Mitchell, 26 Ohio St. 334; Potts v. Whitehead, 20 N. J. Eq. 55; Britton v. Phillips, 24 How. Prac. (N. Y.) Ill; Richardson v. Hard- wick, 106 U. S. 252, 1 Sup. Ct. 213, 27 L. Ed. 145; Union Nat Bank v. Miller, 106 N. a 347, 11 S. E. 321, 19 Am. St. Rep. 538; Weaver v. Burr, 31 W. Va. 736. 8 S. E. 743, 3 L. R. A. 94; Cummings v. Realty Co., 86 Wis. 382, 57 N. W. 43. And see Park v. Whitney, 148 Mass. 278, 19 N. E. 161. §§ 22-23) REVOCATION OF OFFER. 31 of post," or "by return mail," must be accepted by return mail.''' It may safely be said that any substantial delay will be fatal, even where an answer by "return mail" is not requested. An acceptance sent three or four days after the receipt of the offer has been held too late, and there seems no reason to doubt that a delay of one day would be equally fatal."® If no time for acceptance is specified, then a reason- able time is implied. *'° What is a reasonable time must necessarily depend on the nature of the offer and the circumstances of each par- ticular case. ^ REVOCATION OF OFFER. 22. Until the moment of acceptance, an ofPer may be revoked, and a subsequent acceptance will be inoperative, except tbat — EXCEPTION — An offer under seal cannot be revoked at coniraon law. 23. Notice of revocation must be communicated, to prevent an ac- ceptance from being effective. *^ Since an offer, unaccepted, creates no rights, it follows that it may be revoked at any time before acceptance.^ '^ An order, for instance, 6 7 DUNLOP V. HIGGINS, 1 H. L. Cas. 387; Carr v. Duval, 14 Pet. 83, 10 L. Ed. 361; MAOLAY v. HARVEY, 90 111. 52.5, 32 Am. Rep. 35; AVERILL V. HEDGE, 12 Conn. 424; TINN v. HOFFMAN, 29 Law T. (N. S.) 271. Cf. Palmer v. Insm-ance Co., 84 N. Y. 63. If the delivery of a letter containing an offer is delayed through the sender's fault, or, it may no doubt be, vpithout the fault of either party, an acceptance as soon as the letter is received is in time. It is by return mail. See Leake, Cont. 18; ADAMS v. LINDSELL, 1 Barn. & Aid. 681. 68 Taylor v. Rennie, 35 Barb. (N. Y.) 272; MINNESOTA LINSEED OIL CO. V. LEAD CO., 4 Dill. 435, Fed. Cas. No. 9,635; MACLAY v. HARVEY, 90 111. 525, 32 Am. Rep. 35; Ortman v. Weaver (C. C.) 11 Fed. 358; DUNLOP V. HIGGINS, 1 H. L. Cas. 387. 69 RAMSGATE HOTEL CO. V. MONTEFIORE, L. R. 1 Bxch. 109; MINNE- SOTA LINSEED OIL CO. v. LEAD CO., 4 Dill. 431, Fed. Cas. No. 9,635; Ferrier v. Storer, 63 Iowa, 484, 19 N. W. 288, 50 Am. Rep. 752; AVERILL v. HEDGE, 12 Conn. 424; Trovmstine v. Sellers, 35 Kan. 447, 11 Pac. 441; Mc- Oracken v. Harned, 66 N. J. Law, 37, 48 Atl. 513; Sanford v. Howard, 29 Ala. 684, 68 Am. Dec. 101; Lehigh Valley Coal Co. v. Curtis, 22 111. App. 394; CHICAGO & G. E. R. CO. v. DANE, 43 N. Y. 240; Kempner v. Cohn, 47 Ark. 519, 1 S. W. 869, 58 Am. Rep. 775; Stone v. Harmon, 31 mnn. 512, 19 N, W. 88; Omaha Loan & Tlnist Co. v. Goodman, 62 Neb. 197, 86 N. W. 1082, This has been held to apply to offers of a reward to the public gen- erally by way of advertisement LORING v. CITY OP BOSTON, 7 Mete. (Mass.) 409. But see post, p. 39. 7 PAYNE V. CAVE, 3 Term R. 148; OFFORD v. DAVIES, 12 C. B. (N. S.) 748; COUNTESS OF DUNMORB v. ALEXANDER, 9 Shaw, D. & B. 190; QUICK V. WHEELER, 78 N. Y. 300; Houghwout v. Boisaubin, 18 N. J. Eq. 315: SCHENECTADY STOVE CO. v. HOLBROOK, 101 N. Y. 45, 4 N. B. 4; WHEAT V. CROSS, 31 Md. 99, 1 Am. Rep. 28; BOSTON & M. R. R. CO. v. BARTLETT, 3 Cush. (Mass.) 224; Weiden v. Woodruff, 38 Mich. 130; Lar- mou v. Jordan, 56 111. 204; Crocker v. Railroad Co., 24 Conn. 249; Martin v. 32 OFFER AND ACCEPTANCE. (Ch. 2 given to the agent of the party to whom it is made, who has no au- thority to accept it, is revocable at any time before his principal ac- cepts it; and it is immaterial that the order recites that it is taken with the understanding- th^t it is positive, and not subject to change or countermand. '^^ Where an offer is made to several persons, it must be accepted by all befQr£.Jt_becQm£ s binding on the proposer, for an acceptance by less than all is not a compliance with the terms of the offer; and it follows that such_an ofifer may he revoked-at any time before it is accepted by allJ " Oifer under Seal. An offer made under seal cannot be revoked at common law. Even though uncommunicated to the other party, it seems that it remains open for his acceptance when he becomes aware of it. This results from the common-law rule that a grant under seal is binding on the grantor and those who claim under him, although it was never com- municated to the grantee, if it has been duly delivered ; and an obliga- tion created by deed, it seems, stands upon the same footing. Where, for instance, a policy of marine insurance was executed by the in- surers, and delivered to their clerk to be kept till the insured called for it, and was never accepted by the insured till he claimed the bene- fit of it on learning of the loss of the ship, it was held that the policy w^as binding on the insurers. "It is clear on the authorities," it was said, "as well as the reason of the thing, that the deed is binding on the obligor before it comes into the custody of the obligee, nay, be- fore he even knows of it; though of course, if he has not previously assented to the making of the deed, the obligee may refuse it." ''* "The position of the parties in such a case is anomalous. There can be no agreement where there, is no mutual assent. The position of the promisor is that of one who has made an offer which he cannot withdraw, or a conditional promise depending for its binding force on the assent of the promisee." ''* In the United States it is generally held that deli^fixy— of a deed is Hudson, 81 Cal. 42, 22 Pac. 292; Miller y. Douville, 45 La. Ann. 214, 12 South. 132; Eski-idge v. Glover, 5 Stew. «& P. (Ala.) 264, 20 Am. Dec. 344; Trucker V. Lawrence, 56 Vt. 467; BENTON v. ASSOCIATION, 170 Mass. 534, 49 N. E. 928, 64 Am. St. Rep. 320. The addition of a new term to an off ex* is a revo- cation of that offer. Travis v. Insurance Co., 104 Fed. 486, 43 C. C. A. 653. Ti National Refining Co. v. Miller, 1 S. D. 548, 47 N. W. 962. And see Challenge Wind & Feed Mill Co. v. Kerr, 93 Mich. 328, 53 N. W. 555; Harvey T. Duffey, 99 Cal.' 401, 33 Pac. 897. 7 2 Burton v. Shotwell, 13 Bush (Ky.) 271. T3 XENOS V. WIOKHAM, L. R. 2 H. L. 296. See, also, BUTLER & BAKER'S CASE, 3 Coke, 26b; ROBERTS v. SECURITY OO. [1897] 1 Q. B. IIL 7* Anson, Cont. (8th Ed.) 32. §§ 22-23) REVOCATION OF OFFER. 33 nj2t__cornplete_vvithout acceptance by the grarjifie/" and the effect of a mere offer under seal, uncomniunicatcd to the offeree, does not ap- pear to have arisen. Where, however, an offer under seal, in the form of an option, is delivered to the offeree, the doctrine that it cannot be revoked applies, and if the option is exercised by acceptance of the offer within the time limited the agreement will be specifically enforced or damages may be recovered for its breach,'^' Agreement to Hold Offer Open — "Refusals" and "Options." An offer, though coupled with a promise to hold it open for ac- ceptance for a specified time, may nevertheless be revoked or with- drawn before the time has expired, provided there is no consideration for the promise to hold the offer open.'^ Cases of this kind arise where a person gives another the "refusal" of land or goods for a certain tim-e, or an option to buy. If the promise to keep an offer open for a specified time is supported by a valid consideration — as where money is paid or promised for the option or refusal — the prom- ise constitutes a contract in itself, and, of course, is binding.''* A failure to keep the offer open would be a breach of contract for which an action for damages would lie, or, upon acceptance, a suit for specific performance.''® Communication of Revocation. Revocation must be communicated, or at least brought to the knowl- edge of the offeree, to have any eft'ect. As we have seen, an ac- ceptance may take effect at the moment it is dispatched. A revoca- 7 5 Post, p. 55. 7 6 Willard v. Tayloe, 8 Wall. (U. S.) 557, 19 L. Ed. 501; O'Brien v. Bolond, 166 Mass. 481, 44 N. E. 602; MANSFIELD v. HODGDON, 147 Mass. 304, 17 N. E. 544; McMILLAN v. AMES, 33 Miun. 257, 22 N. W 612; Hayes v O'Brien, 149 111. 403, 37 N. E. 73, 23 L. R. A. 555; 9 Gyc. Law & Proc. 287. 7 7 COOKE V. OXLEY, 3 Term R. 653 (as to this case, see post, p. 35, note 84); ROUTLEDGE v. GRANT, 4 Bing. 653; HEAD v. DIGGON, 3 Man. & R. 97; STEVENSON v. McLEAN, 5 Q. B. Div. 351; DICKINSON v. DODDS, 2 Ch. Div. 463; CHICAGO & G. E. R. CO. v. DANE, 43 N. Y. 240; STENS- GAARD V. SMITH, 43 Minn. 11, 44 N. W. G69; COLEMAN v. APPLE- GARTH, 68 Md. 21, 11 Atl. 284, 6 Am. St. Rep. 417; Eskridge v. Glover, 5 Stew. & P. (Ala.) 264, 26 Am. Dec. 344; Larmon v. Jordan, 56 111. 206; Weiden v. Woodruff, 38 Mich. 130; Klee v. Grant, 4 Misc. Rep. 88, 23 N. Y. Snpp. 855; Connor v. Renneker, 25 S. C. 514; Sault Ste. M., L. & I. Co. v. Simons (C. C.) 41 Fed. 835; Weaver v. Burr. 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94 ; Brown v. Savings Union, 134 Cal. 448, 66 Pae. 592 ; post, p. 119. 7s Grabenhorst v. Nicodemus, 42 Md. 236; Stitt v. Huidekopers, 17 Wall. 384, 21 L. Ed. 644; Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195; Chadsey v. Coudley, 62 Kan. 853, 62 Pae. 603. 7 9 Zimmerman v. Brown (N. J. Ch.) 36 Atl. 675; Chadsey v. Condley, 62 Kan. 853, 62 Pae. 663. And see cases cited note 76. But see Litz v. Goos- ling, 93 Ky. 185, 19 S. W. 527, 21 L. R. A. 127; Graybill v. Brugh, 89 Va. 895, 17 S. E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894. Clakk Cont. (2d Ed.) — 3 34 OFFER AND ACCEPTANCE, (Ch. 2 tion, on the contrary, is not effective until the moment it is received. A person, therefore, who has accepted an offer not known by him to have been revoked, may safely act on the footing- that the offer and acceptance constitute a contract binding on both parties. A per- son who has received an offer by post or telegraph, and posted or telegraphed his acceptance, has thereby created a binding contract, though notice of revocation of the offer has been mailed or wired to him before his acceptance.®" The law, it is said, regards the pro- poser as making his offer during every instant of time that his letter is traveling, and durm^^he period that may be considered as a rea- sonable time for -acceptances The party to whom the offer is made is therefore entitled to consider that it is still being made, unless he has notice to the contrary, and that his acceptance concludes a bind- ing contract. The revocation cannot be held to be communicated merely because it has been put in the course of transmission. If, after an offer has been posted, or sent by any other means, the pro- poser sends a withdrawal by such means that it reaches the person to whom the offer was sent at the same time as the o ffer,_jthis is a g ood re vogation, and an acceptance~of the oft"er~will be~ineffectual.®^ There has been some difficulty in cases in which the offeror has done some act indicating an intention to retract, as by a sale of prop- erty offered, putting it out of his power to perform, but without com- municating his revocation. It is probably settled that any.xt¥£rt act clearly showing an intention to revoke is enough, provided the per- son to whom the offer was made has notice of such act before he accepts. The revocation need not be communicated, but it is suffi- cient if he has knowledge of acts clearly indicating an intention to revoke.®^ It is not clearly settled what would be sufficient notice. It might probably be said that the notice must be such as reasonably amounts to knowledge of -acts inconsistent with the continuance 80 BYRNE V. TIENHOVEN. 5 C. P. Div. 349; HENTHORN v. KRAZER [1892] 66 L. T. (N. S.) 439, 2 Ch. 27; HARRIS' CASE, L. R. 7 Ch. App. 587; TAYLOE v. INSURANCE CO., 9 How. 390, 13 L. Ed. 187; Patrick V. Bowman, 149 U. S. 411, 13 Sup. Ct. 811, 8G6, 37 L. Ed. 790; Hamilton v. Insurance Co., 5 Pa. 342; Lungstrass v. Insurance Co.. 48 Mo. 201, 8 Am. Rep. 100; Kempner v. Cohn, 47 Ark. 519, 1 S. W. 8U9, 58 Am. Rep. 775; WHEAT v. CROSS, 31 Md. 99, 1 Am. Rep. 28; HALLOCK v. INSURANCE CO., 26 N. J. Law, 268; Faulkner v. Hebard, 26 Vt. 452; McCotter v. City of New lork, 37 N. Y. 325; Weiden v. Woodruff, 38 Mich. 130; Crocker v. Railroad Co., 24 Conn. 249; Cobb v. Foree, 38 111. App. 255; BRAUER v. SHAW, 168 Mass. 198, 46 N. E. 617, 60 Am. St. Rep. 387. 81 DUNMORE V. ALEXANDER, 9 Shaw & D. 190. Suppose, however, the letter containing the offer should be read, and an acceptance dispatched in good faith, before the letter containing the withdrawal is opened. It would seem, on principle, that in such a case the acceptance must be effectual. 82 DICKINSON V. DODDS, 2 Ch. Div. 463; COLEMAN y. APPLEGARTH, 68 Md. 21, 11 Atl. 284, 6 Am. St. Rep. 417. §§ 22-23) REVOCATION OF OFFER. 35 of the offer. In case of an offer to sell specific property, actual knowledge of its sale to another would clearly show an intent to re- voke, but it is doubtful whether information from a stranger that such a sale has been made, or that the proposer has changed his mind, would be sufficient, as it would scarcely be reasonable to require a man to believe and act on such statements. In the absence of suffi- cient notice or knowledge of a revocation, the offer, according to the better doctrine and the weight of authority, continues open and will be turned into a binding promise by its acceptance. ^^ Some courts, however, seem to have held, contrary to reason and principle, that notice of withdrawal is not necessary.** Where the parties are dealing with each other at a distance by correspondence, it is the settled law, in these as in other cases, that the offer continues open until notice of its withdrawal is not only sent, but received by the party to whom it was made, and is turned into a binding promise if accepted before receipt of the notice.*^ Knowledge in these cases also may be equivalent to notice sent and received. The case of an offer made to the public generally by publication 8« BOSTON & M. R. R. CO. V. BARTLETT, 3 Cush. (Mass.) 224, 225; GREAT NORTHERN R. CO. v. WITHAM, L. R. 9 C. P. 16; Eskridge v. Glover, 5 Stew. & P. (Ala.) 264, 26 Am. Dec. 344; Houghwout v. Boisaubin, 18 N. J. Eq. 318; HENTHORN v. FRAZER [1892] 66 L. T. (N. S.) 439, 2 Ch. 27; Cheney v. Cook, 7 Wis. 413; School Directors v. Trefethren, 10 111. App. 127; Paddock v. Davenport, 107 N. C. 710, 12 S. E. 464; Wall v. Railroad Co., 86 Wis. 48, 56 N. W. 367. And see Dambmann v. Lorentz, 70 Md. 380, 17 Atl. 389, 14 Am. St. Rep. 364. See, also, post, p. 119. 84 Tucker v. Woods, 12 Johns. (N. Y.) 190, 7 Am. Dec. 305; Bean v. Bur- bank, 16 Me. 458, 33 Am. Dec. 681; Gillespie v. Edmonston, 11 Humph. (Tenn.) 553. And see COOKE v. OXLEY, 3 Term R. 653. This case has been very much criticised and disapproved in so far as it seems to hold that, where an offer gives a specified time within which it may be accepted, an acceptance within that time, without notice that the offer has been revoked, does not bind; that is to say, that notice of the revocation is not necessary. If the case was intended to go this far, it is not considered as authority In this country. BOSTON & M. R. R. CO, v. BARTLETT, 3 Cush. (Mass.) 224. Nor, it seems, is it followed, even In England, to such an extent as we have suggested. Indeed, a later English case says: "All that COOKE v. OXLEY aifirms is that a party who gives time to another to accept or reject a pro- posal is not bound to wait till ,the time expires. ♦ * * The offer may be revoked before acceptance. If the offer is not retracted, it is in force as a continuing offer till the time of accepting or rejecting it has arrived." STE- VENSON V. McLEAN, 5 Q. B. Div. 351. If the case of COOKE v. OXLEY mei'ely decides that an offer, coupled with a promise to keep it open for a specified time, may be revoked, to the knowledge of the other party, before the time has expired, where there is no consideration for the pi-omise to keep it open, it is in accord with the law in this country, and with the later decisions in England. 85 Hamilton v. Insurance Co., 5 Pa. 339; Larmon v. Jordan, 56 111. 204; AYERILL V. HEDGE, 12 Conn. 434; Moore v. Pierson, 6 Iowa, 279, 71 Am. Dec. 409 ; ante, pp. 25-27. 36 OFFER AND ACCEPTANCE. (Cb. 2 stands on a different footing from an offer made directly to a definite person. Such an offer may be revoked in the manner in which it was made.^' LAPSE OF OFFER, 24. An offer -trill lapse, and so be determined turitliont express revoca- tion, so tliat a subsequent acceptance -nrill have no effect — (a) On the efflux of a time specified for acceptance, or of a reasonable time where no time is specified; (b) On its rejection; (c) On failure of tbe acceptance to comply xritb tbe terms of tbe offer, Trhicli is equivalent to rejection; (d) On the death or insanity of either party before acceptance. An offer *may lapse and be determined by the efflux of a specified time for acceptance. If a person should offer to sell goods "if the offer is accepted by" a certain day, an acceptance after that time would have no effect. After the specified time has passed without accept- ance, the offer lapses, or is determined without any further action on the part of the proposer, and it is no longer open for acceptance.*^ If no time is specified, the offer is determined by the lapse of a rea- sonable time.^* The rejection or refusal of an offer by the person to whom it is made causes the offer to lapse. In order that an acceptance may be effective after a refusal, the offer must have been renewed by the proposer.*® So, also, a failure to comply with a condition of the offer as to the mode of acceptance, or an acceptance conditionally, or on terms vary- ing from those offered, will cause the offer to lapse, for this is, in effect, a rejection of the offer.®" Thus, where a person offered to 86 SHUEY V. UNITED STATES, 92 U. S. 73, 23 L. Ed. 697. 87 Ante, p. 31, and cases cited in notes 68, 69. 8 8 RAMSGATE HOTEL CO. V. MONTEFIORB, 1 Excb. 109; LORING v. CITY OF BOSTON, 7 Mete. (Mass.) 409; ante, p. 31, and cases cited in notes 68, 69. Continuing offer. Sheiiey v. Peelil, 84 Wis. 46, 54 N. W. 267. 89TINN V. HOFFMAN, 29 Law T. (N. S.) 271; HYDE v. WRENCH, 3 Beav. 334; Davis v. Parish, Litt Sel. Cas. (Ky.) 153, 12 Am. Dec. 287; W. & H. M. Goulding v. Hammond, 4 C. C. A. 533, 54 Fed. 639; Slieffleld Canal Co. T. Sheffield & R. Ry. Co., 3 Ry. Cas. 121, 132; Arthur v. Gordon (C. C.) 37 Fed. .558; Richardson v. Lenhard, 48 Kan. 020, 29 Pae. 1076. 9 HYDE V. WRENCH, 3 Beav. 336; First Nat. Bank v. Hall, 101 U. S. 50, 25 L. Ed. 822; MINNE.^lPOLIS & ST. L. RY. CO. V. ROLLING-MILL CO., 119 U. S, 149, 7 Sup. Ct. 168, 30 L. Ed. 376; Carr v. Duval, 14 Pet. 77, 10 L. Ed. 301; Derrick v. Monette, 73 Ala. 75; Jenness v. Iron Co., 53 Me. 20; Weaver v. Burr, 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94; Clay v. Ricketts. 66 Iowa, 362, 23 N. W. 755; Cornwells v. Krengel, 41 111. 394; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37; Iron Works v. Douglas. 49 Ark. 355, 5 S. W. 585; Northwestern Iron Co. v. Meade, 21 Wis. 474, 94 Am. Dec. 557; § 24) LAPSE OF OFFER. 37 sell land at a certain sum, and the person to whom the offer was made replied that he would give a less sum, and afterwards, when this was refused, and when the proposer was no longer willing to adhere to his original proposal, sought to bind him by accepting at the sum first asked, it was held that the proposal to buy at a less sum than asked was a refusal of the offer, and a counter proposal, and that the original offer could not, after that, be turned into a promise by acceptance.®^ The death "^ or insanity ®^ of either party before acceptance of an offer causes the offer to lapse. An acceptance communicated to the per- sonal representatives of the proposer after his death cannot bind them ; nor can the representatives of the person to whom an offer has been made, and who has since died, bind the proposer by accept- ing it on behalf of the estate. An offer, as we have said, is consid- ered as continuing up to the time of acceptance, but, if one of the parties dies, then there is no one by whom or to whom, as the case ma)" be, the offer can be considered as being made.®* The fact that an acceptance is dispatched iii ignorance of the proposer's death can make no difference. Since, however, an acceptance by mail takes effect at the moment of its dispatch, the death of the proposer before thw receipt of the acceptance, but after it has been mailed, does not cause the offer to lapse, since, before his death, it has been turned into a binding promise by the acceptance.®'' So. also, the dissolution of a partnership after an offer has been made by the firm, and before its acceptance, with notice thereof to the person to whom the oft'er was made, revokes the offer; ®^ and it would seem that dissolution of a firm to whom an offer is made, be- First Nat. Bank v. Clark, 61 Md. 400, 48 Am. Rep. 114; Crabtree v. Opera- House Co. (C. C.) 39 Fed. 74G, W. & H. M. Goulding v. Hammond, 4 C. C. A. 533, 54 Fed. 639. 91 HYDE V. WRENCH, 3 Bear. 336. 8 2 Wallace v. Townsend, 43 Ohio St. 537, 3 N. E. 601, 54 Am. Rep. 829; MACTIER'S ADM'RS v. FRITH, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262: PRATT V. TRUSTEES OF B^U^TIST SOC, 93 111. 475, 34 Am. Rep. 187; In re Holfenstein's Estate, 77 Pa. 328, 18 Am. Rep. 449; Frith v. Lawrence, 1 Paige (N. Y.) 434; Blades v. Free, 9 Barn. & C. 167; Campanarl v. Woodburn, 15 O. B. 400; LEE v. GRIFFIN, 1 Best & S. 272; Aitkin v. Lang's Adm'r, 106 Ky. 6.52, 51 S. W. 154, 90 Am. St. Rep. 263; WERNER v. HUMPHREYS, 2 Man. & G. 853; Marr v. Shaw (C. C.) 51 Fed. 860. 8 3 The Palo Alto, 2 Ware, 344, Fed. Cas. No. 10,700; BEACH v FIRST M. E. CHURCH, 96 111. 177. It seems that knowledge of the insanity by the other party is essential. DREW v. NUNN, 4 Q. B. Div. 661; IMPERIAL LOAN CO. V. STONE [1892] 1 Q. B. 599. 04 Frith V. Lawrence, supra; PRATT v. TRUSTEES, supra. 88 MACTIER'S ADM'RS v. FRITH, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262. 86 Goodspeed v. Plow Co., 45 Mich. 322, 7 N. W. 902. 17^186 38 OFFER AND ACCEPTANCE. (Ch. 2 fore acceptance, must necessarily cause the offer to lapse, as the party to whom the offer was made is no longer in existence. OFFERS TO THE PUBLIC GENERALLY. 25. An offer need not be xaade to an ascertained person, bnt no con- tract can arise until it has been accepted by an ascertained person. In order that an offer may result in a contract it need not be made to a definitely ascertained person. It may be made to any one of the public generally, or to any one of a class of persons, who may accept it. These offers are sometimes said to be made "to all the world," but this is not correct."^ Take, for instance, the case of a proposal by way of advertisement of a reward for the rendering of certain services, addressed to the public at large, such as an advertise- ment for the return of lost property, or for the apprehension of per- sons who have committed a crime, or for certain information. This is an offer, to any one who shall accept it, of a promise for an act, and becomes a binding promise to pay the reward as soon as any individual renders the services.®* Offers of this character are generally advertisements for such serv- ices as Ave have mentioned, but they are not limited to them.®® Sellers 97 See SPENCER v. HARDING. L. R. 5 G. P. 561. 9 8 Wentworth v. Day. 3 Mete. (Mass.) 352, 37 Am. Dec. 145; Besse v. Dyer, 9 Allen (Mass.) 151, 85 Am. Dec. 747; LORING v. CITY OF BOSTON, 7 Mete. (Mass.) 409; Wilson v. Guy ton, 8 Gill (Md.) 213; Pierson v. Morch, 82 N. Y. 503; First Nat. Bank v. Hart, 55 111. 62; Montgomery County v. Robin- son, 85 111. 174; Harson v. Pike, 16 Ind. 140; Goldsborough v. Cradie. 28 Md. 477; Ryer v. Stockwell, 14 Cal. 134, 73 Am. Dec. 634; Hayden v. Souger, 56 Ind. 42, 26 Am. Rep. 1; Thruston v. Thornton, 1 Gush. (Mass.) 91; Morse v. Bellows, 7 N. H. 549, 563, 28 Am. Dec. 372; Janvrin v. Town of Exeter, 48 N. H. 83, 2 Am. Rep. 185; Gummings v. Gann, 52 Pa. 484; Morrell v. Quarles, 35 Ala. 544. As to the intention to become bound, see post, p. 41, note 112. 99 SEYMOUR V. ARMSTRONG, 62 Kan. 720, 64 Pac. 612. A published time table is an offer by the railroad company to the public generally that, if they will apply for a ticket for carriage, they will be carried as stated in the time table, and the offer is accepted by each person who applies for a ticket. Denton v. Great Northern R. Co., 5 El. & Bl. 860; SEARS v. RAIL- ROAD CO., 14 Allen (Mass.) 433, 92 Am. Dec. 780. The same docti-ine has been applied in the case of bounties offered by towns, cities, or counties to any person who should enlist into the military service of the United States. Crowell V. Hopkinton, 45 N. H. 9. As to offers of premiums in horse races, see Alvord v. Smith, 63 Ind. 58. Offer by persons pm'chasing railroad on foreclosure and organizing new company to exchange new stock for old. Schorestene v. Iselin, 69 Huu, '2~>(). l;:; .\. Y. Supp. r)57. As to general letter of credit as being a general offer resulting In a promise to persons giving credit on the strength of it, see Ex parte Asiatic Banking Coi-p., 2 Gh. App. 391. § 25) OFFERS TO THE PUBLIC QENERALLT. 39 of a medicinal remedy, who, to increase their sales, advertise that a certain sum will be paid to any person who buys and uses the remedy, and afterwards contracts the disease it is claimed to prevent, will become bound by contract obligation to any person who purchases and uses the remedy, and he may recover the sum promised if he contracts the disease.^"" Such a general offer may be made orally. Thus, where a person, whose wife was in a burning building, exclaimed to the bystanders gen- erally that he would give a certain sum to any person who would bring out her body, and a man did so, it was held that he could re- cover the sum promised. ^"^ Acceptance and Revocation. Offers of this character cannot result in contract obligation until they are accepted by an ascertained person by performing the serv- ices. Before the services are rendered, there is merely an offer, which may be revoked. ^"^ An acceptance by performance of the services after the offer has been withdrawn does not bind the pro- poser,^**^ and it even seems that ignorance of the withdrawal makes no difference, if the withdrawal was as publicly made as the offer.^"* Accordmg to the weight of authority, the offer remains open for ac- ceptance until it is actually withdrawn or revoked. "° Performance of Services in Ignorance of Offer — Motive. Suppose that the person performing the service does not know of the offer, or does not realize all its terms, does he thereby accept the offer and acquire a right to the reward ? In a leading English case a reward had been offered by the defendant for information which was supplied by the plaintiff, but not with a view to the reward. The 100 CARLILL V. CARBOLIC SMOKE-BALL CO. [1892] 2 Q. B. 484, 4 Rep. 176; Id. [1893] 1 Q. B. 256. So, where a person invites architects to submit designs, stating that all who submit plans shall receive a certain sum, and that the one whose plans are the best shall be engaged as architect, he be- comes bound to pay the sum specified to all who submit plans, and, if he adjudges one of the plans the best, to make that architect the architect of the building. Walsh v. Association, 16 Mo. App. 502; Id., 90 Mo. 459, 2 S. W. 842. 101 REIF V. PAIGE, 55 Wis. 496, 13 N. W. 473, 42 Am. Rep. 731. And see Hayden v. Souger, 56 Ind. 42, 26 Am, Rep. 1. 102 Haison v. Pike. 16 Ind. 140; Freeman v. City of Boston, 5 Mete, (Mass.) 56; Cummings v. Gaun, 52 Pa. 484. 103 SHUEY V, U. S., 92 U. S. 73, 23 L, Ed. 697; BIGGERS v. OWEN, 79 Ga. 658, 5 S. E. 193. 10 4 SHUEY v. U, S„ 92 U, S. 73, 23 L. Ed. 697. 105 Ryer V, Stockwell, 14 Cal. 134, 73 Am. Dec. 634; In re Kelly, 39 Conn. 159. In Massachusetts it is held that the offer, like other offers, lapses afier the expiration of a reasonable time. LORIISG v. CITY OF BOSTON^ 7 Mete, (Mass,) 409. 40 OFFER AND ACCEPTANCE. (Cll. 2 report of the case does not show that the plaintiff was unaware of the offer; the only point which seems to have been raised being that the reward was not the motive which induced the plaintiff to supply the information. The court held that the motive was immaterial, and that "there was a contract with the person who performed the condition mentioned in the advertisement." ^°^ In this country the authorities are conflicting. Some courts have held that the reward cannot be recovered where the person perform- ing the services did so in ignorance of the offer. "To the existence of a contract," it was said in a New York case, "there must be mutual assent, or, in another form, offer and consent to the offer. The mo- tive inducing consent may be immaterial, but the consent is vital. Without that, there is no contract, How, then, can there be consent or assent to that of which the party has never heard?" ^"'^ Other courts have held that ignorance of the offer does not prevent the per- son performing the services from recovering.^"^ It has even been held, contrary to the English case above mentioned, that the motive in performing the services is material, and that there must be an intent to claim the reward, as well as knowledge that it is offered.^"* OFFER AS REFERRING TO LEGAL RELATIONS. 26. The offer must be intended to create, and be capable of creating^ legal relations. Intention to Create Legal Relations. In order that an offer or proposal may be turned into a binding contract by acceptance, it must be made in contemplation of legal consequences. A mere statement of intention, for instance, made in the course of conversation, will not result in a binding promise, though acted upon by the party to whom it was made.^^° Thus, 106 WILLIAMS V. CARWARDINE, 4 Barn. & Adol. 621. 107 FITCH V. SNEDAKER, 38 N. Y. 248, 97 Am. Dec. 791; Howland v. Lounds, 51 N. Y. G04, 10 Am. Rep. G54; Marvin v. Treat, 37 Conn. 96, 9 Am. Rep. 307; Stamper v. Temple, 6 Humph. (Tenn.) 113, 44 Am. Dec. 296; WIL.- LIAMS V. RAILWAY CO., 191 111. 610, 61 N. E. 456, 85 Am. St. Rep. 278. 108 DAAVKINS V. SAPPINGTON, 26 Ind. 199; Russell v. Stewart, 44 Vt. 170; Auditor v. Ballard, 9 Bush. (Ky.) 572, 15 Am. Rep. 728; Eagle v. Smith, 4 Houst. (Del.) 293; Crawshaw v. City of Roxbury, 7 Gray (]Mass.) 377; Ever- man v. Hyman, 26 Ind. App. 165, 28 N. E. 1022, 84 Am. St. Rep. 284. 100 HEWITT V. ANDERSON, 56 Cal. 476, 38 Am. Rep. 65. 110 Week v. Tibold, Rolle, Abr. 6; Randall v. Morgan, 12 Ves. 67; Stamper V. Temple, 6 Humph. (Tenn.) 113, 44 Am. Dec. 296; Stagg v. Comptou, 81 Ind. 171; Erwin v. Erwin, 25 Ala. 236; Carson v. Lucas, 13 B. Mou. (Ky.) 213; Henderson Bridge Co. v. McGrath, 134 U. S. 260, 10 Sup. Ct. 730, 33 L. Ed. 934; KIRKSEY v. KIRKSEY, 8 Ala. 131; Lakeside I>and Co. v. Dromgoole, 89 Ala. 505, 7 South. 444; Thruston v. Thornton, 1 Cush. (Mass.) 89; Higgins § 26) OFFER AS REFEKKIXG TO LEGAL RELATIONS. 41 where a father said to a man that he would give a certain sum to him who married his daughter with his consent, and the man married her, and sued for the money, it was held that he could not recover, as it was not reasonable that a man "should be bound by general words spoken to excite suitors." ^^^ Nor will services rendered for another and accepted by him place him under a contractual obligation to pay for them, where payment therefor was not expected nor in- tended."^ On the same footing stand engagements of pleasure, or agreements which, from their nature, do not admit of being regarded as business transactions.^^* Same — Jest. Transactions intended as a joke or jest cannot result in a contract, for the reason that there is no intention to contract; there is no con- templation of legal consequences.^^* Same — Invitations to Deal. Offers which, by acceptance, may be turned into binding promises, must be distinguished from offers which merely amount to invitations to deal. Illustrations of this arise where merchants send out cir- culars offering goods for sale on certain terms, not intending the cir- cular as an offer to become binding on acceptance, but merely as an invitation to persons to enter into negotiations; ^^^ or where a per- V. Lessig, 49 111. App. 459. Statements by a married child tliat she Intends to pay her parents for support, made to third persons, result in no contract on her part. Perkins v. Westcoat, 3 Colo. App. 338, 33 Pac. 139. The rule above stated applies to offers of reward made to the public generally. Stam- per V. Temple, 6 Humph. (Tenn.) 113, 44 Am. Dee. 296; Higgins v. Lessig, 49 111. App. 459. See, also, Ulrich v. Arnold, 120 Pa. 170, 13 Atl. 831. 111 Week V. Tibold, supra. And see Randall v. Morgan, supra, 112 The fact that services are rendered does not create a liability on the part of the person for whom they are rendered, even though done at his re- quest, where the circumstances are such as to repel the inference that com- pensation was intended; and, when performed merely from kindly or charita- ble motives, the law will not imply a promise to pay for them. Cicotte v. Church of St. Anne, 60 Mich. 552, 27 N. W. 682. And see Covel v. Turner, 74 Mich. 408, 41 N. W. 1091; Gross v. Cadwell. 4 Wash. 670, 30 Pac. 1052; Sul- livan V. Latimer, 38 S. C. 158, 17 S. E. 701; Everitt v. Walker, 109 N. C. 129, 13 S. B. 860; Collyer v. Collyer, 113 N. Y. 442, 21 N. E, 114. See, also, ante, p. 17, and cases cited- 113 Anson, Cont. (4th Ed.) 19; ante, p. 4. ii4McCLURG V. TERRY, 21 N. J. Eq. 225; Armstrong v. McGhee, Add. (Pa.) 261; KEI>LER v. HOLDERMAN, 11 Mich. 248, 83 Am. Dec. 737; Bruce V. Bishop, 43 Vt. 161. Marriage ceremony performed in jest, but by a person duly authorized. McCLURG v. TERRY, supra. 11 B SPENCER v. HAJIDING, L. R. 5 C. P. 561; MOULTON V. KERSHAW, 59 Wis. 316, 18 N. W. 172, 48 Am. Rep. 510; LINCOLN v. PRESERVING CO., 132 Mass. 129; Kuight v. Cooley, 34 Iowa, 218; ToplifE v. McKendree, 88 42 OFFER AND ACCEPTANCE. (Ch. 2 son, wishing to have work done, or to buy goods, advertises for proposals; ^^^ or where a person advertises that he will sell goods at auction. ^^'^ The circulars of the merchant, the advertisement for proposals, and the advertisement of the auction sale, are mere decla- rations of intention. Legal consequences are not directly contem- plated, and no contract relation arises with persons who may send an order for goods, or make bids, or attend the auction. The rule applies whenever it is clear that a proposition was intended merely as an invitation to deal, and not as an offer to become binding on acceptance.^ ^^ Same — Incomplete Negotiations. Similar to these cases are those in which the parties are carrying on negotiations, and have not yet come to an agreement. So long as the negotiations are incomplete, there is no contract.^ ^^ "An agreement to be finally settled must comprise all the terms which the parties intend to introduce into the agreement. An agreement to en- ter into an agreement upon terms to be afterwards settled between the parties is a contradiction in terms. It is absurd to say that a man enters into an agreement till the terms of that agreement are settled." 1=^° Mich. 148, 50 N. W. 109; Allen v. Kirwan, 159 Pa. 612, 28 Atl. 495; Smith v. Weaver, 90 111. 392; Zeltner v. Irwin, 25 App. Div. 228, 49 N. Y. Supp. 337. 118 Howard v. Industrial School, 78 Me. 230, 3 Atl. 657; Leskie v. Hasel- stine, 155 Pa. 98, 25 AU. 886; Topping v. Swords, 1 E. D. Smith (N, Y.) 609. 117 Harris v. Nickerson, L. R. 8 Q. B. 286. 118 In MOULTON v. KERSHAW, 59 Wis. 316, 18 N. W. 172, 48 Am. Rep. 516, the defendants wrote plaintiff: "We are authorized to offer Michigan fine salt, in full carload lots of 80 to 95 bbls., delivered at your city, at 8oc. per bbl. * * ♦ Shall be pleased to receive your order,"— and the plaintiff at once replied, ordering 2,000 barrels, but the defendants refused to fill the order. The court held that defendants' letter was a simple notice that they were in a condition to supply salt for the price named, and an invitation to deal with them, and not an offer which plaintiff could change into a binding promise by his order. See, also, Beaupre v. Telegraph Co., 21 Minn. 155; Kinghorne v. Telegraph Co., U. C. 18 Q. B. 00; Lyman v. Robinson, 14 Allen (Mass.) 254; Smith v. Gowdy, 8 Allen CMass.) 506; SCHENECTADY STOVE CO. V. HOLBROOK. 101 N. Y. 45, 4 N. E. 4; HARVEY v. FACEY, 1 Rep. 428; Id. [1893] App. Cas. 552; Patton v. Arney, 95 Iowa, 664, 64 N. W. 635. Cf. Keller v. Ybarru, 3 Cal. 147; College Mill Co. v, Fidler (Tenn. Ch.) 58 S. W. 382. 119 Lyman v. Robinson, 14 Allen (Mass.) 242; SCHENECTADY STOVE CO. V. HOLBROOK, 101 N. Y. 45, 4 N. E. 4; Bean v. Clark (C. C) 30 Fed. 225; Templeton v. Wile (City Ct. N. Y.) 3 N. Y. Supp. 9; Commercial Tel. Co. V. Smith, 47 Hun (N. Y.) 494; Morris v. Brightman, 143 Mass. 149, 9 N. E. 512; Warden v. Williams, 62 Mich. 50, 28 N. W. 796, 4 Am. St. Rep. 814 ; Shaw v. Glass Works, 52 N. J. Law, 7, 18 Atl. 696 ; Whiteford v. Hitch- cock. 74 Mich. 208. 41 N. W. 898; Gates v. Nelles, 62 Mich. 444, 29 N. W. 73. And see ante, p. 28. 120 Ridgway V. Wharton, G H. L. Cas. 268. And see SUEPARD v. CAR- § 26) OFFER AS REFERRING TO LEGAL RELATIONS. 43 So, also, if the parties come to an agreement as to terms, but with the intention that their agreement is to be reduced to writing, and that they are not to be bound until this is done, there is no contract until the writing is drawn up and assented to by both as their agree- ment. If they come to a final agreement as to terms, it may, indeed, bind them, though they intend to reduce the terms into writing for the purpose of becoming bound in a more formal manner, or of pre- serving a memorial of the terms, or for any purpose other than that of making the writing exclusively their agreement.^ ^^ The question is whether they intend legal consequences before the formal written evidence of their agreement is executed. If they do not, there is no contract until this is done ; but, if they do intend to be bound with- out regard to the writing, there is a contract. ^^^ The question is one of fact ; but the circumstance that they do intend a subsequent writing to be drawn up is said to be strong evidence that they do not intend to be bound by the preliminary agreement. ^^^ Offer as Capable of Creating Legal Relations — Definiteness and Cer- tainty. An offer or proposal must be capable of creating legal relations, or no contract can result. An agreement cannot create an obligation, or legal relations, unless it is capable of being enforced by the courts ; and, as we have seen, creation of an obligation is essential. It follows that, to result in a contract, the agreement must be suffi- ciently definite and certain to enable the court to collect from it the full intention of the parties, for the court cannot make an agreement for them.^^* The parties may have come to a real agreement, but PENTER, 54 Minn. 153, 55 N. W. 90G; Sibley v. Felton, 156 Mass. 273, 31 N. E. 10; Strobridge Lithographing Co. v. Randall, 73 Fed. G19, 19 C. C. A. 611. 121 Leake, Cont. 98; Ridgway v. Wharton, 6 H. L. Cas. 2G8; Green v. Cole (Mo. Sup.) 24 S. W. 1058; Lewis v. Brass, L. R. 3 Q. B. Div. 667; CROSS- LEY V. MAYCOCK, L. R. 18 Eq. ISO; Sanders v. Fruit Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757. And see ante, p. 28. 122 Winn V. Bull, 2 Ch. Div. 29; Fowle v. Freeman, 9 Ves. 351; Gibbins v. Asylum District, 11 Beav. 1 ; Heyworth v. Knight, 17 C. B. (N. S.) 298 ; Ros- siter V. Miller, 5 Ch. Div. 648 ; Commercial Tel. Co. v. Smith, 47 Hun (N. Y.) 494 ; Allen v. Chouteau, 102 Mo. 309, 14 S. W. 869 ; Hodges v. Sublett, 91 Ala. 588, 8 South. 800; Lawrence v. Railroad Co., 84 Wis. 427, 54 N. W. 797; Mississippi & D. S. S. Co. v. Swift, 86 Me. 248, 29 Atl. 1063, 41 Am. St. Rep. 545; EDGE MOORE BRIDGE WORKS v. BRISTOL COUNTY, 170 Mass. 528, 49 N. E. 918. See, also, ante, p. 28. 123 Leake, Cont. 98; Ridgway v. Wharton, 6 H. L. Cas. 268. 124 Thomson v. Gortner, 73 Md. 474, 21 Atl. 371; Marble v. Oil Co., 169 Mass. 553, 48 N. E. 785; In re Purves' Estate, 196 Pa. 438, 46 Atl. 369; Faulk- ner V. Drug Co., 117 Iowa, 120, 90 N. W. 5S5. Uncertainty as to price or terms of payment on sale of land. George v. Conhaim, 38 Minn. 338, 37 N. W. 791; Smoyer v. Roth (Pa. Sup.) 13 Atl. 191; Everett v. Dilley, 39 Kan. 73, 17 Pac. 661. 44 OFFER AND ACCEPTANCE. (Cll. 2 they must take the chances of not having made it intelligible.^^" It is generally said that the contract or the agreement or the promise must be certain, but it is the same thing to say that the offer must be certain. An uncertain offer is sometimes apparently remedied by its acceptance, but this is not really so, for an acceptance must be identical with the terms of the offer. If it varies from them, as it must in order to remedy uncertainty in the offer, it is not an ac- ceptance, but a counter offer. The rule, then, is that the offer must not be so indefinite as to make it impossible for the court to say w^hat was promised.^^® Thus, where a person bought a horse, and promised that, if it was lucky to him, he would give a certain additional sum, "or the buying of another horse," it was held that the promise was too loose and vague to be considered in a court of law.^*'' And so, where a person agrees to perform services for such remuneration as shall be deemed right, or for such wages as his employer shall deem right or reasonable, or for "good wages," it is held that there is not a sufficiently definite promise of payment to be capable of enforcement.^^* Same — "Id Certtim est Quod Certmn Reddi Potest." This rule, however, is subject to the maxim, "Id certum est quod certum reddi potest." ^^® For this reason an offer to sell goods need not necessarily specify the amount that may be ordered, but may leave 12 Pol. Cont. 42. 126 Guthing V. Lynn, 2 Barn. & Adol. 232; SHERMAN v K1TSMILI.BR, 17 Serg. & R. (Pa.) 45; Freed v. Mills, 120 Ind. 27, 22 N. E. 86; Thomson v. Gortner, 73 Md. 474, 21 Atl. 371; Erwin v. Erwin, 25 Ala. 236. 127 Gutbing V. Lynn, supra. 128 TAYLOR V. BREWER, 1 Maule & S. 290; Roberts v Smith, 4 Hurl. & N. 315; Fairi^lay School Tp. v. O'Neal, 127 Ind. 95, 26 N. E. 686. But see Caldwell v. School Dist. (C. C.) 55 Fed. 372; Henderson Bridge Co. v. Mc- Grath, 134 U. S. 260, 10 Sup. Ct 730, 33 L. Ed. 934. The following promises have been held void for uncertainty : To give a person a house, and provide for her at promisor's death, if she would live with him. Wall's Appeal, 111 Pa. 460, 5 Atl. 220, 56 Am. Rep. 288. To let a person retain possession of property on his paying the same rent the promisor "might be able to obtain from other parties." Gelston v. Sigmund, 27 Md. 334. That a person should have preference In renting of property so long as it should be rented for store. Delashmutt v. Thomas, 45 Md. 140. To take a house "if put into thor- ough repair," and if the drawing rooms were "handsomely decorated, ac- cording to the present style." Taylor v. Portington, 7 De Ges, M. G. 328. To sell land, reserving "the necessary land for making a railway." Pearce V. Watts, 20 Eq. 492. Agi'cement by which a person is to work in a mine, and receive a certain sum per ton on all ore produced, as long as the mine can be made to pay. Davie v. Mining Co., 93 INIich. 491, 53 N. W. 625, 24 L. R. A. 357. Promise to take note for certain sum, without specifying terms. Van Schaick v. Van Buren, 70 Hun, 575, 24 N. Y. Supp. 306. 129 Parker v. Pettit, 43 N. J. Law, 512; Miller v, Kendig, 55 Iowa, 174, 7 N. W. 5U0; Thompson v. Stevens, 71 Pa. 161. § 26) OFFER AS REFERRING TO LEGAL RELATIONS. 43 it for the person to whom the offer is made to specify the amount in his acceptance. If this is the intention of the parties, the acceptance conckicles the contract, and does not amount to a counter proposal necessary to be accepted. ^^° The intention is important here, in or- der to distinguish these cases from those in which it is held that the acceptance does not conclude a contract because the proposer did not intend to affect his legal relations, but merely to invite negotiations.^'^ For the same reason it is not necessary, in offering to sell goods, to name the price, for, if no price is specified, a reasonable price will be implied. Other illustrations of the application of this rule are given below.^'^ Same — Capacity of Parties — Form — Consideration — Legality of Ob- ject. In order that an offer be capable of creating legal relations, (a) it must be made by and to a party capable of contracting ; (b) it must be 130 Dambmann v. Lorentz, 70 Md. 380, 17 Atl. 389, 14 Am. St Rep. 364. 181 Ante, p. 41. 1S2 The following contracts have been held sufficiently certain: Contract making extent of promisor's liability such as may be imposed by a certain statute. Town of Hamden v. Merwin, 54 Conn. 418, 8 Atl. 670. A promise to buy all the supplies of a certain kind the promisor may need. Lenz v. Brown, 41 Wis. 172; Levey v. Railroad Co., 4 Misc. Rep. 415, 24 N. Y. Supp. 124; Min- nesota Lumber Co. v. Coal Co., 100 111. 85, 43 N. E. 775, 31 L. R. A. 529; Hickey v. O'Brien, 123 Mich. 611, 82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227. See post, p. 120. A promise to sell all the future produce of a certain vineyard the promisee may wish. Keller v. Ybarru, 3 Cal. 147. And see Bates v. Childers, 5 N. M. 62, 20 Pac. 164; Booske v. Ice Co., 24 Fla. 550, 5 South. 247; McCall Co. v. Icks, 107 Wis. 232, 83 N. W. 300. Definiteness as to territory in which party shall have exclusive right to sell goods, — "in D. and the territory tributary thereto." Kaufman v. Manufacturing Co.. 78 Iowa, 679, 43 N. W. 612, 16 Am. St. Rep. 462. Cf. Hauser v. Harding, 12G N. C. 295, 35 S. E. 586. Describing a party as "Mr. Lee" does not render the contract uncertain, as it may be explained by parol. Lee v. Cherry, 85 Tenn. 707, 4 S. W. 835, 4 Am St. Rep. 800. Promise to erect "a good steam saw- mill." Praley v. Bentley, 1 Dak. 25, 46 N. W. 506. Sale of a stock of mer- chandise, "all soiled or damaged goods at vahiation." Sergeant v. Dwyer, 44 Minn. 309, 46 N. W. 444. Promise to employ a person "for 12 months commencing not later than the 15th of July, possibly the 1st of July, the date to be fixed by" the promisee. Troy Fertilizer Co. v. Logan, 96 Ala. 019, 12 South. 712. Agreement to furnish a person with "steady and permanent em- ployment." Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289. See, also, Cornig v. Carr, 167 Mass. 544, 46 N. E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488. Agreement to furnish a certain number of car loads of lumber, a car load varying from 35,000 to 60,000 feet. Indianapolis Cabinet Co. v. Herrmann, 7 Ind. App. 462, 34 N. E. 579. Sale of nine walnut trees standing on the vendor's land, marked when the sale is made. Carpenter v. Medford, 99 N. C. 495, 6 S. E. 785, 6 Am. St. Rep. 535. Contract with pro- vision that it should be renewed for fm-ther term if plaintiff succeeded in do- ing such a business as defendant might "reasonably expect." Worthington v. Beeman, 91 Fed. -32, 33 C. C A. 475. 46 OFFER AND ACCEPTANCE. (Ch. 2 made in the form prescribed by law ; (c) If it is to be accepted by the giving of a promise, it must be a consideration for the promise ; and, if it is an offer of a promise, the act, forbearance, or promise asked in return must be a consideration; and (d) the act or forbearance done or contemplated must be lawful. These matters will be discussed in subsequent chapters, dealing with the capacity of parties, form, con- sideration, and legality of the object of contracts. § 27) CONTRACTS UNDER SEAL. 47 CHAPTER in. CLASSIFICATION OF CONTRACTS— CONTRACTS UNDER SEAL AND CONTRACTS OF RECORD. 27. Classification of Contracts. 28. Contracts of Record. 29. Contracts Under Seal. 80-32. How Contracts Under Seal are ^lade. 33. Characteristics of Contract Under Seal. 34. Necessity for Contract Under Seal. In the last chapter we dealt with the mode in which the common intention of the parties must be communicated, and showed how it must refer to legal relations, in order that it may form the basis of a " contract. It is not enough, however, that the common intention of the parties be communicated in the mode we have described, and that the parties intend legal consequences. Most systems of law require some further evidence of the intention of the parties, without which mere intention will not avail to create an obligation between them. In our law this evidence is supplied by form and consideration. Some- times one, sometimes the other, and sometimes both are required to render a contract enforceable. By "form" is meant some peculiar solemnity attaching to the expression of agreement; by "considera- tion," some gain to the party making the promise, arising from the act or forbearance, given or promised, of the promisee, or some detri- ment suffered by the promisee.^ CLASSIFICATION OF CONTRACTS. 27. Contracts are divided intO'^ (a) Contracts dependent for their validity npon their form alone, or strictly formal contracts. These are: (1) Contracts of record. (2) Contracts under seal. (b) Simple or parol contracts, which may be divided into— (1) Such as are dependent for their validity both on their form and on the presence of consideration. These are contracts not under seal, nor of record, but xirhich are required by la\allory's Adm'r, 92 Ky. 316, 17 S. W. 737. § 42) CONTRACT OR SALE OF LANDS.- 73 agreement between a man and woman that on their marriage the sur- vivor shall take no interest in the property of the other, has been held to be a contract in consideration of marriage.^ ^ On the other hand, an oral contract between a man and woman, by which the man was to provide for the comfort and support of the woman during life, pay her debts, take care of, manage, and improve certain land so as t6 make it productive, and to that end that the parties should marry and live to- gether on the land, which should be conveyed by the woman to the man in fee simple, was held not to be within the statute, on the ground that the consideration for the conveyance of the land was the provision for the support and comfort of the woman, and not the marriage.^® The marriage of the parties is not such part performance as will take an antenuptial contract out of the operation of the statute.*" SAME— CONTRACT OB SALE OF LANDS, OR ANY INTEREST IN OR CONCERNING THEM. 42. The folloTi^ing general rules may be mentioiied : ^' (a) The contract must be for a substantial interest in land, (b) Fructus industriales, or crops and other products of land, raised by labor and cultivation, are not an interest therein. (c> Fructus naturales, or the natural gromrth and products of land, ai-e an interest in land if the oxirnership is to pass before, but not if it is not to pass until after, severance, (d) A mere license to enter on land is not an interest in land, but it is otherT(ris3 Tvith an easement. Thf, treatment of this clause of the statute belongs more properly to a work ou the law of real property, and we need only state the rules governing its application in a general way. The terms "lands," "tene- ments,'' and "hereditaments" have a clearly-defined meaning in the law of real property. They are used to denote the subjects of real prop- erty, as distinguished from personal property, or goods and chattels. It is often difficult, however, to determine what is an interest in land within this section. A contract, to require writing as being for an interest in land, must be for a substantial interest, and not for arrangements preliminary to the acquisition of an interest, nor for a remote and inappreciable in- 3 8 Carpenter v. Comings, 51 Hun, 638, 4 N. Y. Supp. 947. See, also, Ennis v. Ennis, 48 Hun, 11. So, also, in case of an agreement that certain property shall go to the survivor. Hannon v. Hounihan, 85 Va. 429, 12 S. E. 15". And see White v. Bigelow, 154 Mass. 593, 28 N. E, 904; Adams v. Adams. 17 Or. 247, 20 Pac. 633. 3» Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615, 23 Am. St. Rep. 404. 40 Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157. And see Johnstone v. Mappin, 60 Law J. Ch. 241; Flenuer v. Flenner, 29 Ind. 564; Manning v, Riley, 52 N. J. Eq. 39, 27 Atl. 810. 74 STATUTE OB^ FRAUDS. (Ch. 4 terest.** An agreement for a lease of land would be a contract for an interest in land/^ but an agreement to pay for an examination of title with a view to purchasing land, or to furnish another with money with which to buy land would not be within the statute,*^ nor would 41 Wattei-s V. McGuigan, 72 Wis, 155, 39 N, W. 382. An oral agreement be- tween adjoining landowners, settling a dispute as to the boundary line be- tween them, has been held not within the statute. Jenkins v. Trager (C. C.) 40 Fed. 726; Archer v. Helm, 69 Miss. 730, 11 South. 3; Ferguson v. Crick (Ky.) 23 S. W. 068; Lecomte v. Toudouze, 82 Tex. 208, 17 S. W. 1047, 27 Am. St Rep. 870; Grigsby v. Combs (Ky.) 21 S. W. 37; Jacobs v. Moseley, 91 Mo. 457, 4 S. W. 135; Sheets v. Sweeny, 136 111. 336, 26 N. E. 648; Atchi- son V. Pease, 96 Mo. 566, 10 S. W. 159; Hills v. Ludwig, 46 Ohio St. 373, 24 N. B. 596. Tlie contrary has also been held. Camp v. Camp, 59 Vt. 667, 10 Atl. 748. Such an agreement is within the statute, where the true boundary is known or tixed by a deed, and the purpose is to convey additional land by fixing the boundary at another place. Weeks v. Martin, 57 Hun, 589, 10 N. Y. Supp. 656; Jenkins v. Trager (C, C.) 40 Fed. 726; Shaffer v. Hahn, 111 N. C. 1, 15 S. E. 1033; Buckner v. Anderson, 111 N. C. 572, 16 S. E. 424,. Where the agreement is executed by taking possession. Teass v. City of St. Albans, 38 W. Va. 1, 17 S. E. 400, 19 L. R. A. 802. As to ratification of an agreement, see CAVANAUGH v. JACKSON, 91 Cal. 580, 27 Pac. 931; Smith V. Schiele, 93 Cal. 144, 28 Pac. 857. It has been held that where two execu- tion creditors levy on the same land, and then agree that it shall be sold under one of the executions, and the proceeds divided, this is not a sale, but a compromise, and therefore not within the statute. Mygatt v. Tarbell, 78 Wis. 351, 47 N. W. 618. An agreement by an heir with his ancestor to re- lease his expectations is within the statute. Brands v. Ue Witt, 44 N. J. Eq. 545, 14 Atl. 894, 6 Am. St. Rep. 909. So, also, is an agreement by a ven- dee under an executory contract of sale to sm-render to his vendor his in- terest under the contract. DOUGHERTY v. CATLETT, 129 111. 431, 21 N. E. 932. An agreement, on the sale of land, for abatement of price in case of a deficiency, is not within the statute. McGee v. Craven, 106 N. 0. 351, 11 S. E. 375; Haviland v. Sammis, 62 Conn. 44, 25 Atl. 394, 36 Am. St. Rep. 330. Nor is an agreement by which a party promises to pay another a certain sum per acre for all the land the latter shall examine and advise the former to buy. Wilson v. Morton, 85 Cal. 598, 24 Pac. 784. Agreement between adjoining landowners as to building of partition fence. Rudisill v. Cross, 54 Ark. 519, 16 S. W. 575, 26 Am. St. Rep. 57. Oral agreement to arbiti-ate as to land. Fort v. Allen, 110 N. C. 183, 14 S. E. 685. Rent being an inci- dent to the ownership of land, an assignment of rent must be in writing. King V. Kaiser, 3 Misc. Rep. 523, 23 N. Y. Supp. 21. Agreement to devise land. Gould v. Mansfield, 103 Mass. 408, 4 Am. Rep. 573; Hale v. Hale, 90 Va. 728, 19 S. E. 739; In re Kessler's Estate, 87 Wis. 660, 59 N. W. 129. 41 Am. St. Rep. 74; Grant v. Grant, 63 Conn. 530, 29 Atl. 15, 38 Am. St. Rep. 379. 4 2 Potter V. Arnold, 15 R. I. 350, 5 Atl. 379. Assignment of a lease the unexpired term of which is more than a year. Chicago Attachment Co. v. Davis Sewing-Mach. Co. (111. Sup.) 25 N. E, 669, 28 N. E. 959; Id., 142 111. 171, 31 N. E. 438, 15 L. R. A. 754. 43 Horner v. Frazier, 65 Md. 1, 4 Atl. 133. An agreement by an agent to bu.v land in his own name for the benefit of his principal is not within the statute. Baker v. Wainwright, 36 Md. 336, 11 Am. Rep. 495. A parol parti- tion is not within the statute. Meacham v. Meacham, 91 Teun. 532, 19 S. -7// /X 0. § 42) CONTRACT OR SALE OF LANDS. 75 an agreement to transfer shares of stock in a railroad company or other corporation, which, though the company may own land, do not give any appreciable interest therein to the individual shareholders.** An agreement between landlord and tenant for the sale or surrender of fixtures placed upon the land by the tenant is not a sale of an inter- est in land.*'^ According to the weight of authority, agreements for partnership dealings in land — that is, agreements under which the parties are to buy land for the purpose of selling it again, and dividing the profits or losses — are not within the statute.** Crops and Other Products of Land. Probably the chief question of interest with reference to this sub- ject relates to the sale of crops and other products of land. A dis- tinction exists between what are called "fructus industriales," such as crops of wheat, corn, and the like, which are obtained by labor and cultivation, and "fructus naturales," such as growing grass, timber, ores in the ground, uncut ice, and the like, produced by the power of nature alone. W. 757; Wolf v. Wolf, 158 Pa. 621, 28 Atl. 1&4. Contra: Fort v. Allen, 110 N. C. 183, 14 S. E. 685. Nor is an agreement not to use land for a particu- lar purpose. Hall v. Solomon, 61 Conn. 476, 23 Atl. 876, 29 Am. St. Rep. 218. ** Anson, Cont. (4tli Ed.) 61. But see Driver v. Broad, 4 Reports 411 ; Id. [1893] 1 Q. B. 744. •15 South Baltimore Co. v. Mulilbacli, 69 Md. 395, 16 Atl. 117, 1 L. R. A. 507; Frear v. Hardenbergli, 5 Johns. (N. Y.) 272, 4 Am. Dec. 356; Scoggiu V. Slater, 22 Ala. 687;Heysham v. Detti-e, 89 Pa. 506. Nor are they within section 17. Hallen v. Runder, 1 C, M. & R. 266; LEE v. GASKELL, 1 Q. B. D. 700. 46 McElroy v. Swope (C. C.) 47 Fed. 380; Petrie v. Torrent, 88 Mich. 43, 49 N. W. 1076; Howell v. Kelly, 149 Pa. 473, 24 Atl. 224; Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; Van Trotha v. Bamberger, 15 Colo. 1, 24 Pac. 883; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 U R. A. 149; Speyer v. Desjardins, 144 111. 641, 32 N. E. 283, 36 Am. St. Rep. 473; Fountain v. Me- nard, 53 Minn. 442, 55 N. W. 601, 39 Am. St. Rep. 617; BATES v. BAB- COCK, 95 Cal. 479, 30 Pac. 605, 16 L. R. A, 745, 29 Am. St. Rep. 133; Case V. Seger, 4 Wash. 492, 30 Pac. 646; Cotiin v. Mcintosh, 9 Utah, 315, 34 Pac. 247. But see Young v. Wheeler (C. C.) 34 Fed. 98; Raub v. Smith, 01 Mich. 543, 28 N. W. 678, 1 Am. St. Rep. 619; Brosnan v. McKee, 63 Mich. 454, 30 N. W. 107; McKinnon v. McKinnon (C. C.) 46 Fed. 713; Clarke v. Mc- Auliffe, 81 Wis. 104, 51 N. W. S3. An agreement between A. and B. to work a stone quarry together, and divide the protits, if B. can purchase land, to be paid for by A., to whom the deed is to be made, is not for an interest in land. Treat v. Hiles, 68 Wis. 344, 32 N. W. 517, 60 Am. Rep. 858. An agree- ment by a person to purcliase land with his own money, and divide with another, is within the statute. Towle v. Wadsworth, 147 111. 80, 30 N. E. 602; Robbins v. Kimball, 55 Ark. 414, 18 S. W. 457, 29 Am. St. Rep. 45; Morton v. Nelson, 145 111. 586, 32 N. E. 916; Roughton v. Rawlings, 88 Ga. 819, 16 S. E. 89; Schultz v. Waldons, 60 N. J. Eq. 71, 47 Atl. 187. 7G STATUTE OF FRAUDS. (Ch. 4 Fructus industriales are chattels, and not an interest in land.*' Fruc- tus naturales, on the contrary, are such an interest, and a contract for their sale, which contemplates the passing of the property before the severance, is within the statute; *^ but it is otherwise if the title is not to pass until after they are^severed.** Licenses and Easements. A mere license to enter upon land and do a particular act or series of acts — as in the case of a license to enter upon land and remove property sold to the licensee — is not an interest in land, within the statute. It is otherwise, however, where the right conferred is to en- ter upon lands and erect and maintain a dam thereon. This is more than a mere license ; it is an easement. It is the transfer of an inter- est in the land.°** A right of way is an interest in land.^^ 47 Evans v. Roberts, 5 Barn. & C. 829; Jones v. Flint, 10 Adol. & El. 753; Miller v. Baker, 1 Mete. (Mass.) 27; Wliitmarsh v. Walker, Id. 313; Whipple V. Foot, 2 Johns. (N. Y.) 418, 3 Am. Dec. 442; Koss v. Welch, 11 Gray (Mass.) 2.S5; NORTHERN v. STATE, 1 Ind. 113; Graff v. Fitch, 58 111. 373, 11 Am. Rep. 85; Davis v. McFarlane, 37 Cal. G34, 99 Am. Dec. 340; Marshall v. Fer- guson, 23 Cal. 65; Purner v. Piercy, 40 Md. 223, 17 Am. Rep. 591. But see, contra, Kerr v. Hill, 27 W. Va. 576. 4 8 Rodwell v. Phillips, 9 Mees. & W. 501 ; Crosby v. Wadsworth, 6 East, 602 ; White V. Foster, 102 Mass. 375 ; Howe v. Batchelder, 49 N. H. 204 ; Green v. Armstrong, 1 Denio (N. Y.) 550; Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; Owens v. Lewis, 46 Ind. 489, 15 Am. Rep. 295; Lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467; HIRTH V. GRAHAM, 50 Ohio St. 57, 33 N. E. 90, 19 L. R. A. 721, 40 Am. St. Rep. 641. There is, however, much conflict, and in some states sales of growing trees, to be presently cut and removed by the purchaser, are held not to be within this section. Bostwick v. Leach, 3 Day (Conn.) 476 ; Smith v. Bry- an, 5 Md. 141, 59 Am. Dec. 104; Leonard v. Medford, 85 Md. 6G6, 37 Atl. 305, 37 L. R. A. 449; Cain v. McGuire, 13 B. Mon. 340; cf. Marshall v. Green, 1 C. P. D. 35. See Tiffany, Sales, 46. 4 9 Smith V. Surman, 5 B. G. 561; Washbourn v. Burrows, 11 East, 362; Drake v. Wells, 11 Allen (Mass.) 141; Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001; Banton v. Shorey, 77 Me. 48; Upson v. Holmes, 51 Conn. 500; Killmore v. Hewlett, 48 N. Y. 569. 6 See Mumford v. Whitney, 15 Wend. (N. Y.) 380, 30 Am. Dec. 60. In the case cited the autliorities are collected and discussed at length. See, also, Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Johnson v. Wilkinson, 139 Mass. 3, 29 N. E. 62, 52 Am. Rep. 698; Tayler v. Waters, 7 Taunt. 374; Hayes v. Fine, 91 Cal. 391, 27 Pac. 772; Claaton v. Scruggs, 95 Ala. 279, 10 South. 757. Easement in portion of the water from a ditch. Dorris v, Sullivan, 90 Cal. 279, 27 Pac. 216. Agreement between railroads for joint use of the right of way of one not within the statute. Alabama G. S. R. Co. v. Rail- road Co., 84 Ala. 570, 3 South. 286, 5 Am. St. Rep. 401. Nor is an agree- ment between telegraph companies for the use by one of the other's poles. Famsworth v. Telegraph Co., 53 Hun, 636, 6 N. Y. Supp. 735. A right to drain water over another's land is said to be an interest in land. Deyo V. Ferris, 22 111. App. 154, 24 111. App. 416. 01 Bouelli V. Blakemore, 66 Miss. 136, 5 South. 228, 14 Am. St. Rep. 550. § 43) AGREEMENT NOT TO BE PERFORMED WITHIN YEAR. 77 Statutes Varying from the English Statute. The statute in some states varies from the English statute. In Illi- nois, for instance, it applies to any contract for the sale of lands, etc., or any interest in or concerning them, "for a longer term than one year." " SAME— AGREEMENT NOT TO BE PERFORMED WITHIN ONE YEAR. 43. Tlie following rules may be mentioned: (a) The agreement must be impossible of performance witbin tbe year. (b) In some jurisdictions tbe agreement must contemplate nonper- formajice by botb parties witbin tbe year. (c) In a few jurisdictions this clause of the statute does not apply to agreements relating to land. Possibility of Performance. In order that an agreement may fall within this clause of the stat- ute, the parties must contemplate that it shall not be performed within a year. The mere fact that it may not be, or is not, performed within the year, does not bring it within the statute. It must appear, it has been said, that "it is to be performed after the year." " Further than this, the agreement must be impossible of completion within a year. If, by any possibility, it is capable of being completed within a year, it is not within the statute, though the parties may intend, and though it is probable, that it will extend over a longer period, and though it does in fact so extend. The oral contracts that have been held enforceable under this rule may be classified as follows : (a) Agreements for the performance of an act on the happening of a contingency which may possibly happen within a year, — as in the case of agreements to do something on the marriage or death of a per- son, without further specification as to time ; or upon the return of a ship, which may return within a year, though it does not in fact re- turn until a longer time has elapsed; or upon the happening of any other event which may happen at any time."* 62 Rev. St. 111. c. 59, § 2. 63 PETER V. COMPTON, 1 Smith. Lead. Cas. 335; WARNER v. RAIL- WAY CO., 164 U. S. 418, 17 Sup. Ct. 147, 41 L. Ed. 495; Bullock v. Turn- pike Co., 85 Ky. 184, 3 S. W. 129; Worley v. Sipe, 111 Ind. 238, 12 N. E. 385; Jones V. Pouch, 41 Ohio St. 146; Kaynor v. Drew, 72 Cal. 307, 13 Pac. 866; Sarles v. Sliarlow, 5 Dak. 100, 37 N. W. 748; Warren Chemical & Mfg. Co. v. Holbrook, 118 N. Y. 586. 23 N. E. 90S, 16 Am. St. Rep. 788; Durham v. Hiatt, 127 Ind. 514, 26 N. E. 401; Sweet v. Lumber Co., 56 Ark. 629, 20 S. W. 514; Niagara Fire Ins. Co. v. Greene, 77 Ind. 590; Cole v. Singerly, 60 Md. 348; MacElree v. Wolfersberger, 59 Kan. 105, 52 Pac. 69; Richmond Union Pass. R. V. Railroad Co., 96 Va. 670, 32 S. E. 787. 64 Kent V. Kent, 62 N. Y. 560, 20 Am. Rep. 502; Jilson v. Gilbert, 26 Wis. 78 STATUTE OF FRAUDS. (Ch. 4 (b) Agreements for the continuous performance of acts until the hap- pening of a contingency which may possibly happen within a year, — as in the case of agreements to render services, or to support a person, or to pay money from time to time, during a person's life, or until a person's marriage, or until the happening of any other event which may possibly happen within a year.^^ In this class may be placed con- tracts that may be terminated at any time on notice, and contracts to perform acts so long as the other party may need such performance.^^ (c) Agreements which, from their nature, and without mentioning any contingency, will be completely performed according to their terms and intention if a certain contingency shall happen within the year,^^ — as in the case of agreements to forbear from personally doing cer- tain acts for an indefinite time, or for a number of years, and which 637, 7 Am. Rep. 100; Updike v. Ten Broeck, 32 N. J. Law, 105; Anonymous, 1 Salk. 280; Blake v. Cole, 22 Pick. (Mass.) 97; McPherson v. Cox, 96 U. S. 404, 24 L. Ed. 746; Cole v. Singerly, 60 Md. 348; Thomas v. Armstrong, 8& Va. 323, 10 S. E. 6, 5 L. R. A. 529; Bartlett v. Mystic River Corp., 151 Mass. 433, 24 N. E. 780; Clark v. Pendleton, 20 Conn. 495. A promise by a man to marry wlien he recovers his health, — McConahey v. Griffey, 82 Iowa, 564, 48 N. W. 983,— or when he returns from a voyage from which he may or may not return within a year,— Clark v. Pendleton, 20 Conn. 495, — is not within the statute. 5 5 Kent V. Kent, 62 N. Y. 560, 20 Am. Rep. 502; Heath v. Heath, 31 Wis. 223; Carr v. McCarthy, 70 Mich. 258, 38 N. W. 241; Bell v. Hewitfs Ex'rs, 24 Ind. 280; Harper v. Harper, 57 Ind. 547; McGregor v. McGregor, L. R, 21, Q. B. Div. 424; Dresser v. Dresser, 35 Barb. (N. Y.) 573; Hutchin- son V. Hutchinson, 46 Me. 154; Atchison, T, & S, F. R. Co. v. English, 38 Kan. 110, 16 Pac. 82; East Line & R. R. R. Co. v. Scott, 71 Tex. 703, 10 S. W, 298, 10 Am. St. Rep. 804; Stowers v. Hollis, 83 Ky. 544; Dailey v. Cain (Ky.) 13 S. W. 424. Nor is an agreement to work for a company "for the term of five years, or so long as A. shall continue to be agent for the com- pany." Roberts v. Rockbottom Co., 7 Mete. (Mass.) 46. Nor an agreement to employ a person so long as he may be disabled from an injury which he has received. East Tennessee, V. & G. R. Co. v. Staub, 7 Lea (Tenn.) 397. 5 8 First Baptist Church v. Insurance Co., 19 N. Y. 305; Roberts v. Rock- bottom Co., 7 Mete. (Mass.) 46; Walker v. Railroad Co., 26 S. C. 80, 1 S. E. 366; Blake v. Voight, 11 N. Y. Supp. 716; Id., 134 N. Y. 69, 31 N. E. 256, 30 Am. St. Rep. 622; Johnston v. Bowersock, 62 Kan. 148, 61 Pac. 740. Contra: Dobson V. Collis, 1 H. & N. 81; Biest v. Shoe Co., 97 Mo. 137, 70 S. W. lOSl. 5T An agreement by a railroad company to maintain cattle guards in con- sideration of a right of way is not within the statute, since it may cease to use the I'ight of way before expiration of a year. Arkansas M. R. Co. v. V^Tiitley, 54 Ark. 199, 15 S. W. 405, 11 L. R. A. 621. A parol contract of partnership, without any fixed time for continuance, and the business of which may be completed within a year, is not within the statute. Jordan v. Miller, 75 Va. 442; Treat v. Hiles, 68 Wis. 344, 32 N. W. 517, 60 Am. Rep. 858. It is otherwise if the partnership is to be continued beyond a year. Wahl V. Bamum, 116 N. Y. 87, 22 N. E. 280. 5 L. R. A. 623. And see, on the rule stated in the text, Frazer v. Gates. 118 111. 99, 1 N, E. S17; Dailey v. Cain (Ky.) 13 S. W. 424; Great Western Turnpike Co. v. Shafer, 57 App. Div. 331, 68 N. Y. Supp. 8. § 43) AGREEMENT NOT TO BE PERFORMED WITHIN TEAR. 79 would be fully performed if the promisor should die within the year; ^^ or of agreements to educate or support a child until a certain age, at which he will not arrive for several years, or for an indefinite time, and which would be completely performed if the child should die with- in the year.=*® The agreement, to come within this class, must be such that it will be fully "performed" on the happening of the contingency, and not merely terminated. If it cannot be fully performed within the year, the fact that it may be terminated, or that further perform- ance may be excused or rendered impossible, is not sufficient to take it out of the statute.**** (d) Agreements of which performance may be required within a 68 Under this rule it has been repeatedly held that an agreement not to carry on a certain business at a particular place was not within the statute, "because, being only a personal engagement to forbear doing certain acts, not stipulating for anything beyond the promisor's life, and imposing no du- ties upon his personal representatives, it would be fully performed if he died Avithin the year." DOYLE v. DIXON, 97 Mass. 208, 93 Am. Dec. 80; Lyon V. King, 11 Mete. (Mass.) 411, 45 Am. Dec. 219; Worthy v. Jones, 11 Gray (Mass.) 168, 71 Am. Dec. 690; Hill v. Jamieson, 16 Ind. 125, 79 Am. Dec. 414; Richardson v. Pierce, 7 R. I. 330. And it is immaterial in such cases tiiat the agreement specifies that the promisor is to forbear for a certain number of years. DOYLE v. DIXON, supra. 69 PETERS V. WESTBOROUGH, 19 Pick. (Mass.) 364, 31 Am. Dec. 142 ; Ellicott V. Turner, 4 Md. 476; Wooldridge v. Stern (C. C.) 42 Fed. 311, 9 L. R. A. 129; Taylor v. Deseve, 81 Tex. 246, 16 S. W. 1008. See, also, Pennsylva- nia Co. V. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289; Camig v. Carr, 107 Mass. 544, 46 N. E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488; Yel- low Poplar Lumber Co. v. Rule, 106 Ky. 455, 50 S. W. 685; Sax v. Railway Co., 125 Mich. 252. 84 N. W. 314, 84 Am. St Rep. 572; Martin v. Batchelder, 09 N. H. 300, 41 Atl. 83 [to keep house for year]. 60 DOYLE V. DIXON, supra. For this reason it has been held that an agreement to employ a boy for five years, and to pay his father certain sums at stated periods during that time, was within the statute; for though, by the death of the boy, the services which were the consideration of the promise would cease, and the promise therefore be determined, it would not be completely performed. Hill v. Hooper, 1 Gray (Mass.) 131. And see Washington, A. & G. Steam Packet Co. v. Sickles, 5 Wall. 580, 18 L. Ed. 550 (Cf. WARNER V. RAILWAY CO., 164 U. S. 418, 17 Sup. Ct. 147, 41 L. Ed. 495, criticising this case). And so, according to the weight of authority, an agreement for personal services for a period of more than one year Is within the statute, for, on the death of either party, it would be terminated, and not fully performed. WILLIAMS v. BEMIS, 108 Mass. 91, 11 Am. Rep. 318; Lee's Adm'r v. Hill, 87 Va. 497, 12 S. E. 1052, 24 Am. St. Rep. 666; DAY V. RAILROAD CO., 51 N. Y. 583, 590; Haynes v. Mason, 30 111. App. 85; William Butcher Steel Works v. Atkinson, 68 111. 421, 18 Am. Rep. 500. In such cases, where the employs is discharged or quits the employment, after part performance, he may recover for what he has done, not on the con- tract, but on an implied assumpsit. Cases cited supra; Baker v. Lauterbach, 08 Md. 64, 11 Atl. 703. See, also, post, p. 95. If the term of employment is indefinite, the conti-act is not within the statute. See, also, Dobson v. Collis, 1 Hurl. & N. 81. BO STATUTE OP FRAUDS. (Ch. 4 year if either party so chooses, though neither intends to require per- formance, and neither in fact requires it, until after expiration of the year.^^ Part Performance zvithin a Year. Another rule, which is established in England and in most of our states, is that an agreement does not fall within the statute if that which one of the parties is to do is all to be performed within a year ; in other words, the agreement must contemplate nonperformance by both parties within the year.^^ A part performance by one of the parties, however, will not talce the agreement out of the statute.®^ Some of the states, however, have refused to recognize this rule, and hold that, even though all that is to be done by one of the parties is to be fully done within a year, the agreement is nevertheless within the statute, if the other party's promise is not to be performed within the year;"^ and in these states no recovery can be had on the contract by the party who has performed his part, though he may sue on the promise implied on the part of the other party :rom his acceptance of the benefits of such performance.®'* It is held in Illinois that an agreement which is to be fully performed within the year, except for the mere payment of money, is not within «i Haussman v. Burnham, 59 Conn. 117, 22 Atl. 1065, 21 Am. St. Rep. 74; Seddon v. Rosenbaum, 85 Va. 928, 9 S. E. 326, 3 L. R. A. 337; Walker v. Jolinson, 96 U. S. 424, 24 L. Ed. 834; Connolly v. Giddings, 24 Neb. 131, 37 N. W. 939. A contract intended to be performed within a year Is not within the statute, though before the year expires it is extended six months. Ward V. Matthews, 73 Cal. 13, 14 Pac. 604; Donovan v. Richmond, 61 Mich. 467, 28 N. W. 516. A written lease for more than a year, but with less than a year to run, may be modified by parol. Doherty v. Doe, 18 Colo. 456, 33 Pac. 165. 6 2 Donellan v. Read, 3 Barn. & Adol. 899; Horner v. Frazier, 65 Md. 1, 4 Atl. 133; Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720; Winters v. Cherry, 78 Mo. 344; Smalley v. Greene, 52 Iowa, 241, 3 N. W. 78, 35 Am. Rep. 267; Dm-fee v. O'Brien, 16 R. I. 213, 14 Atl. 857; Dant v. Head, 90 Ky. 255, 13 S. W. 1073, 29 Am. St. Rep. 369; Berry y. Doremus, 30 N. J. Law, 399; Piper V. Fosher, 121 Ind. 407, 23 N. E. 269; Grace v. Lynch, 80 Wis. 166, 49 N. W. 751; Curtis v. Sage, 35 111. 22; Langan v. Iverson, 78 Minn. 299, 80 N. W. 1051. 63 See Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163; Shumate v. Far- low, 125 Ind. 359, 25 N. E. 432; Baker v. Codding, 18 N. Y. Supp. 159; Hart- well V. Young, 67 Hun, 472, 22 N. Y. Supp. 486. In Wisconsin, part payment at or before the time of the contract will take it out of the statute. Washburn V. Dosch, 68 Wis. 436, 32 N. W. 551, 60 Am. Rep. 873. 6 4 Whipple V. Parker, 29 Mich. 369; Marcy v. Marcy, 9 Allen (Mass.) 8; Frary v. Sterling, 9d Mass. 401; Pierce v. Paine's Estate, 28 Vt. 34; Sheehy V. Adarene, 41 Vt. 541, 98 Am. Dec. 623; Lane v. Shackford, 5 N. H. 130; Montague v. Garnett, 3 Bush (Ky.) 297; Broadwell v. Getman, 2 Denio (N. Y.) 87; McElroy v. Ludlum, 32 N. J. Eq. 828; Jackson Iron Co. v. Concen- trating Co., 65 Fed. 298, 12 C. C. A. 636. 6 5 Whipple V. Parker, 29 Mich. 369. See, also, post, p. 95, note 143; ante, p. 15. § 43) AGREEMENT NOT TO BE PERFORMED WITHIN YEAR. 81 the statute ; the party to whom the money is payable having performed on his part."® Particular Contracts. According to the weight of authority, this clause of the statute ap- plies to promises to marry which are, by their terms, to be performed after the expiration of a year."^ It has, however, been held in England, and in some of our states, that it does not apply to contracts relating to land.®^ Mr. Browne, in his work on the Statute of Frauds, takes the contrary view, and says that "it includes all those contracts which are of such duration, whatever be their subject-matter." "^ We have been unable to find any case in which the point seems to have been directly raised and de- cided in accordance with Mr. Browne's statement, but there are many cases which assume that the statute applies to agreements relating to land. For instance, some courts hold that a parol lease for a year, to commence on a future day, is within this clause of the statute. '^^ In some of the states the statute in regard to contracts relating to land excepts from its operation "leases for a term not exceeding one year," and "contracts for the leasing for a period not longer than one year," and in some states it is held that such a statute does not apply to agreements for a lease for a year to commence in the future.''^ A con- tract for services for one year, to commence at a future day, is within the statute,^ ^ even though it is to commence on the day after the con- «« Curtis V. Sage, 35 111. 22; Worden v. Sharp, 56 111. 104. 67 DERBY V. PHELPS, 2 N. H. 515; Clark v. Pendleton, 20 Conn, 495; Lawrence v. Cooke, 56 Me. 187, 96 Am. Dec. 443; Nichols v. Weaver, 7 Kan. 373; Lewis v. Tappan, 90 Md. 294, 45 Atl. 469, 47 L. R. A. 385. 68 HOLLIS V. EDWARDS, 1 Vera. 159; Fall v. Hazelregg, 45 Ind. 576, 15 Am. Rep. 278; Sobey v. Brisbee, 20 Iowa, 105; Young v. Dake, 5 N. Y. 463, 55 Am. Dec. 356; Wilson v. Martin, 1 Denio (N. Y.) 602; Railsback v. Walke, 81 Ind. 409. 6 9 Browne, St. Frauds, § 272. 70 Delano v. Montague, 4 Cush. (Mass.) 42; Wheeler v. Frankenthal, 78 111. 124; Comstock v. Ward, 22 111. 248; Olt v. Lohnas, 19 111. 576; Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247; Wilson v. Martin, 1 Denio (N. Y.) 602; At- wood V. Norton, 31 Ga. 507; Strehl v. D'Evers, 66 111. 77; Jellett v. Rhode, 43 Minn. 166, 45 N. W. 13, 7 L. K. A. 671; White v. Holland, 17 Or. 3, 3 Pac. 573; Beiler v. Devall, 40 Mo. App. 251; White v. Levy, 93 Ala. 484, 9 South. 164; Cook v. Redman, 45 Mo. App. 397. 71 Whiting V. Ohlert, 52 Mich. 402, 18 N. W. 219, 50 Am. Rep. 265; Young V. Dake, 5 N. Y. 463, 55 Am. Dec. 356; McCroy v. Torey, 66 Miss. 233, 5 South. 392, 2 L. R. A. 847; Goldberg v. Lavinski, 3 Misc. Rep. 607, 22i N« Y. Supp. 552. Contra, Greenwood v. Strother, 91 Ky. 482, 16 S. W. 138. 7 2 To-misend v. Minford, 48 Hun, 617, 1 N. Y. Supp. 565; Lee's Adm'r v. Hill, 87 Va. 497, 12 S. E. 1052, 24 Am. St. Rep. 666; Baker v. Codding, 18 N. Y. Supp. 159. Clark Cont. (2d Ed.)— 6 - f- .L 82 STATUTE OF FRAUDS. (Ch. 4 tract is made;" but it is otherwise if it is to commence on the day the contract is entered into.^* SAME— FORM REQUIRED. 44. CONTENTS OF WRITING. The writing must showt (a) The names or descriptions of the parties. (b) The terms and subject-matter of the agreement. (c) The consideration (in most jurisdictions). 45. SEPARATE PAPERS. The writing may be on separate papers, provided they are all signed by the party to be charged or his agent, and that such as are not so signed are attached to or referred to in a signed paper. 46. BY TVHOM SIGNED. In most jurisdictions only the signature of the party to be charged is required, but in some jurisdic- tions contracts consisting of mutual promises must be signed by both parties. 47. HOAV SIGNED. The signature may be by mark or initial, and, unless the statute requires the name to be "subscribed," may be printed, and may be in any part of the Trritiug. 48. AGENT TO SIGN. Where the signature is by agent, the agent must be a third person; but a person 'who acts as agent of one person in making the contract may act as agent of both in making the memorandum. 49. DELIVERY. The writing need not be delivered, except it be in form of a deed of land. Form Merely Evidentiary. As we shall presently show, the form required by this section of the statute does not go to the existence of the contract, but is evidentiary only. It is not, as in the case of a deed, an integral part of the con- tract itself. The contract exists, though it may not be clothed with the necessary form; and the effect of noncompliance with the provi- sions of the statute is simply that no action can be brought until the omission is made good, for the contract cannot be proved. For this reason the memorandum or note may be made at any time between the formation of the contract and the commencement of an action thereon."* The writing need not be intended as a formal con- T3 BILLINGTON v. CAHILL, 51 Hun, 132, 4 N. Y. Supp. 660. 7 4 Cox T. Brewing Co., 53 Hun, 034, 6 N. Y. Supp. S41; Aiken v. Nogle, 47 Kan. 96, 27 Pac. 825. 7 5 LERNED v. WANNEMACHER, 9 Allen (Mass.) 412; Gale v. Nixon, 6 Cow. (N. Y.) 445; Slieeby v. Fulton, 38 Neb. G91, 57 N. W. 395, 41 Am. St. Rep. 767. But not after the action is commenced. Bill v. Bament, 9 Mees. & W. 36; Lucas v. Dixon, 22 Q. B. Div. 357; BIRD v. MUNROE, 66 Me. §§ 44-49) FORM REQUIRED. 83 tract.''" All that is required is written evidence of the agreement, and therefore the memorandum may consist of letters written by the party to be charged to his own agent, or to other third persons,'^ The memorandum may even consist of entries made by the party to be charged on his or his agent's books ;^^ and entries in the records of a corporation may prove a contract by it.'® So, also, resolutions of a city council may be a sufficient memorandum of a contract by it on behalf of the city.*" A telegram may be a sufficient memorandum to satisfy the statute and charge the party by whom it is sent.*^ Even recitals in a will have been held sufficient evidence of a contract by the testator to answer for the debts of his son.*^ A letter repudiating a verbal contract previously made by the writer may be sufficient.^* Some of the courts seem to hold that the admis- sion of a verbal contract in the pleadings in an action is a sufficient memorandum, but the decisions are no doubt based on the fact that the statute, not having been pleaded, is waived.®* However this may be, the contrary is the rule.®^ 337, 22 Am. Rep. 571. But see post, p. 83, note 84. It has been held In Illinois that a verbal agreement in consideration of marriage is not taken out of the stiitute by being reduced to writing after marriage. McAnnultj V. McAnnulty, 120 111. 26, 11 N. E. 397, 60 Am. Rep. 552. 7 6 Atwood V. Cobb, 16 Pick. (Mass.) 230, 26 Am. Dec. 657. 77 GIBSON V. HOLLAND, L. R. 1 C. P. 1; Peabody v. Speyers, 56 N. Y. 230; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Lee v. Cherry, 85 Tenn. 707, 4 S. W. 835, 4 Am. St Rep. 800; Cunningham v. Williams, 43 Mo. Appu 629; Spangler v. Danforth, 65 111. 152; Moss v. Atkinson, 44 Gal. 3; North Platte M. & E. Co. v. Price, 4 Wyo. 293, 33 Pac. 664. 7 8 Johnson v. Dodgson, 2 Mees. & W. 653; CLASON v. BAILEY, 14 Johns. (N. Y.) 484; Coddington v. Goddard, 16 Gray (Mass.) 436. 7 8 Tufts V. Mining Co., 14 Allen (Mass.) 407; McManus v. City of Boston, 171 Mass. 152, 50 N. E. 607 (record of board of street commissioners); Lam- kin V. Manufactui-ing Co., 72 Conn. 57, 47 Atl. 593, 44 L. R. A. 786. 80 Marden v. Champlin, 17 R. I. 423, 22 Atl. 938; Argus Co. v City of Albany, 55 N. Y. 495, 14 Am. Rep. 296; Greenville v. Waterworks Co., 125 Ala. 625, 27 South. 764. But see Wilhelm v. Fagan, 90 Mich. 6, 50 N, W. 1072. 81 TREVOR V. WOOD, 36 N. Y. 307, 93 Am. Dec. 511; Marschall v. Vine- yard Co., 1 Misc. Rep. 511, 21 N. Y. Supp. 468; McElroy v. Buck, 35 Mich. 434; Little v. Dougherty, 11 Colo. 103, 17 Pac. 292; Everman v. Herndon (Miss.) 11 South. 652; Whaley v. Hinchmau, 22 Mo. App. 483. 82 In re Hoyle [1893] 1 Ch. 84. 83 Louisville Asphalt Varnish Co. v. Lorick, 20 S. C. 533, 8 S. E. 8, 2 L. R. A. 212. 8 4 Gregg V. Garrett, 13 Mont. 10, 31 Pac. 721; Lauer v. Mercantile Inst., 8 Utah, 305, 31 Pac. 397. See ante, p. 82, note 75 ; post, p. 90, notes 146, 147. 8B Taylor v. Allen, 40 Minn. 433, 42 N. W. 292; Holler v. Richards, 102 N. C. 545, 9 S. E. 400; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220;. Browning v. Berry, 107 N. C. 231, 12 S. E. 195, 10 L. R. A. 726. 84 STATUTE OF FRAUDS. (Cll. 4 Showing as to Agreement. The memorandum must show agreement on the part of the party sought to be charged ; that is, it must show a conckided contract in so far as he is concerned.^" In most jurisdictions, where a written proposal has been made by the party sought to be charged, an accept- ance by the other party may be established by parol evidence.^^ Shozving as to the Parties. The memorandum of the contract must show who are the parties to it ; not only who is the promisor, but who is the promisee as well. Thus, where a person promised that he would answer for the debt of a third person, and signed a memorandum to that effect, but the memorandum did not show the name of the promisee, it was held insufficient. "No document," it was said, "can be an agreement or memorandum of one, which does not show on its face who the par- ties making the agreement are." ®® A party need not be named, if he is sufficiently described; and the description will let in parol evidence to show his identity. ^^ Where A. in his own name enters into a contract as the agent of B., the other party to the contract may show by parol evidence that he really 8 6 Coe V. Tough, 116 N. Y. 273, 22 N. E. 550. 87 Reuss V. Picksley, L. R. 1 Exch. 342; Farwell v. Lowtlier, 18 111. 252; Gradle v. Warner, 140 111. 123, 29 N. K 1118; Elirmanntraut v. Robinson, 52 Minn, 333, 54 N. W. 188; Himrod Fiu-nace Co. v. Railroad Co., 22 Ohio St. 451. 88 Williams v. Lake, 2 El. & El. 349. And see McConnell v. Brillhart, 17 111. 354, 65 Am. Dec. 661; McElroy v. Seery, 61 Md. 389, 48 Am. Rep. 110; Sherburne v. Shaw, 1 N. H. 157, 8 Am. Dec. 47; Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366; McGovem v. Hern, 153 Mass. 308, 26 N. E. 861, 10 L. R. A. 815, 25 Am. St. Rep. 632; Lewis v. Wood, 153 Mass. 321, 26 N. B. 862, 11 L. R. A. 143; Coombs v. Wilkes [18911 3 Ch. 77; Watt v. Cranbeny Co., 63 Iowa, 730, 18 N. W. 898. A memorandum of a sale of goods, which does not clearly show which party is vendor and which vendee, is not suffi- cient. Frank v. Eltringham, 65 Miss. 281, 3 South. 655; Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509, But see Newell v. Radford, L. R. 3 C. P. 52; SALMON FALLS MFG. CO. v, GODDARD, 14 How, (U. S,) 446, 14 L. Ed. 493; Thornton v. Kelly, 11 R. I. 498. An auctioneer's memorandum of a sale of land must show who the vendor is. O'Sullivan v. Overton, 56 Conn. 102, 14 Atl. 300; Mentz v. New witter, 122 N. Y, 491, 25 N. E 1044, 11 L, R. A. 97, 19 Am. St. Rep, 514, 89 Sale V. Lambert, 18 Eq. 1; Fessenden v, Mussey, 11 Cush. (Mass.) 127; Lerned v, Johns, 9 Allen (Mass.) 419; Catling v. King, 5 Ch. Div. 660; Thorn- ton V. Kelly, 11 R. I. 498; Violett v. Powell's Adm'r, 10 B, Mon, (Ky.) 347, 52 Am. Dec. 548; Dykors v. Townsend, 24 N. Y. 57; Jones v. Dow, 142 Mass, 130, 7 N, E. 839. Where a defendant had directed his factor to sell goods, and to use a fictitious name to i-epresent him as seller, and the fictitious name was inserted in the factor's memorandum, parol evidence was held admissi- ble to show that the name represented defendant. Bibb v. Allen, 149 U. S, 481, 13 Sup. Ct. 950, 37 L. Ed. 819. But see Minard v. Mead, 7 Wend. (N. Y.) 68; Newcomb v. Clark, 1 Denio (N. Y.) 226. §§ 44-49) FORM REQUIRED. . 85 contracted with B., who has been described in the memorandum in the character of A.»° Showing as to Terms. The memorandum must show all the terms of the agreement. Where a contract does not fall within the statute, the parties may, at their option, put their agreement in writing, or may contract orally, or put some of the terms in writing, and arrange others oral- ly. In the latter case, although that which is written cannot be varied by parol evidence, yet the terms arranged orally may be proved by parol, in which case they supplement the writing, and the whole constitutes one entire contract. Where, however, a contract falls within the statute, all its terms must be in writing."^ Parol evidence of terms not appearing in the writing would invalidate the contract by showing that it was different from what appears in the memoran- dum. It is said in a Massachusetts case that :. "The contract or memo- randum must express the substance of the contract with reasonable certainty, either by its own terms or by reference to some other deed, record, or other matter from which it can be ascertained with like reasonable certainty. The statute is intended as a shield. No 90 Trueman v. Loder, 11 Adol. & El. 589; Dykers v. Townsend, 24 N. Y. 57; Sanborn v. Flagler, 9 Allen (Mass.) 477; Hargrove v. Adcock, 111 N. C. IGG, 16 S. E. 16; McConnell v. Brillliart, 17 111. 354, 65 Am. Dec. 661; Violett V. Powell's Adm'r, 10 B. Mon. (Ky.) 347, 52 Am. Dec. 548; Hypes v. Griffin, 89 111. 134, 31 Am. Rep. 71; Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355. The agent, however, so contracting cannot show by parol that he did not intend to bind himself. Higgins v. Senior, 8 Mees. & W. 834; Waring v. Mason, IS Wend. (N. Y.) 425. 91 May V. Ward, 134 Mass. 127; Drake v. Seaman, 97 N. Y. 230; Messmore V. Cimningham, 78 Mich. 623, 44 N. W. 145; Lester v. Heidt, 86 Ga. 226, 12 S. E. 214, 10 L. R. A. 108; Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800; Fry V. Piatt, 32 Kan. 62, 3 Pac. 781; Willy v. Robert, 27 Mo. 3SS; O'DON- NELL v. LEEMAN, 43 Me. 158, 69 Am. Dec. 54; Kriete v. Myer, 61 Md. 558. A memorandum of a conti-act to sell land, which does not mention the purchase price nor the times of payment, is insufScient. Webster v. Brown, 67 Mich. 328, 34 N. W. 676; Gault v. Stormount, 51 Mich. 636, 17 N. W. 214; Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 356. But see Ellis v. Bray, 79 Mo. 227. So, also, with a memorandum of a sale of goods omitting terms of payment. Elliot v. Barrett, 144 Mass. 256, 10 N. E. 820. A memorandum set- ting out the terms of payment under a contract of sale as "one-third cash, and notes to be executed for the balance," is not sufhcient, as there is nothing to show the number of notes to be given, interest thereon, or date of payment. Nelson v. Improvement Co., 96 Ala. 515, 11 South. 695, 38 Am. St. Rep. 116. In a memorandum of a conti-act for the sale of lands or goods the price must be stated. Phelps v. Stillings, 60 N. H. 505; Watt v. Cranberry Co., 63 Iowa, 730, 18 N. W. 898; Phillips v. Adams, 70 Ala. 373; Ide v. Stanton, 15 Vt 686, 40 Am. Dec. 698. But failure to state the price, where an adequate price was in fact paid, was held not to render the memorandum insufficient. Say- ward V. Gardner, 5 Wash. 247, 81 Pac, 761. 86 STATUTE OF FRAUDS. (Ch. 4 particular forms are required, and it looks at the substance of the contract. It requires a note or memorandum of the contract, not a detail of all its particulars." ®* While this is no doubt sound law, it must not be taken to mean that any of the terms of the contract can be shown by parol. Showing as to Subject-M alter. The writing must also show the subject-matter, at least to such an extent that it can be identified.®^ Parol evidence is admitted to identify the subject-matter to which the writing refers ; as, for in- stance, to identify a house described in the writing as a "house on Church street," or property described as "your half, E. B. wharf, and premises this day agreed upon between us." ®* Showing as to Consideration. Not only must a consideration for the promise sought to be en- forced exist, but it must, according to the rulings in England, and probably in most of the states, expressly or impliedly appear in the memorandum. As stated by Lord Ellenborough in the leading case on this point, the reason for the rule is because the word "agree- ment," used in the statute, "is not satisfied unless there be a con- «2 Atwood V. Cobb, 16 Pick. (Mass.) 230, 26 Am. Dec. 657. And see Peck V. Vandemark, 99 N. Y. 29, 1 N. E. 41; Frazer v. Howe, 106 111. 563; Far- well V. Mather, 10 Allen (Mass.) 322, 87 Am. Dec. 641; Gordon v. Avery, 102 N. C. 532, 9 S. B. 486. 93 Whelan v. Sullivan, 102 Mass. 204; Beekman v. Fletcher, 48 Mich. 555, 12 N. W. 849; Tice v. Freeman, 30 Minn. 389, 15 N. W. 674; King v. Wood, 7 Mo. 389. 84 Mead v. Parker, 115 Mass. 413; Tallman v. Franklin, 14 N. Y. 584; Ryan V. United States, 136 U. S. 68, 10 Sup. Ct. 913, 34 L. Ed. 447; Mellon v. Davi- son, 123 Pa. 298, 16 Atl. 431; Henderson v. Perkins, 94 Ky. 207, 21 S. W. 1035; Dougherty v. Chesnutt, 86 Tenn. 1, 5 S. W. 444; Lente v. Clarke, 22 Fla. 515, 1 South. 149; Cossitt v. Hobbs, 56 111. 231; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Quinn v. Champagne, 38 Minn. 322, 37 N. W. 451; Breck- inridge v. Crocker, 78 Cal. 529, 21 Pac. 179; Humbert v. Brisbane, 25 S. C. 506; Oliver v. Hunting, 44 Ch. Div. 205; Francis v. Barry, 69 Mich. 311, 37 N. W. 353. A memorandum is not sufficient where it merely describes it as "an estate on A. street, owned by B.," and the evidence shows that B. own- ed two estates on that street. DOHERTY v. HILL, 144 Mass. 4G5, 11 N. E. 581. And see Jones v. Tye, 93 Ky. 390, 20 S. W. 388; Alabama Mineral Land Co. V. Jackson, 121 Ala. 172, 25 South. 709, 77 Am. St. Rep. 46. "Your land," in a letter to the alleged vendor is not sufficient. Taylor v. Allen, 40 Minn. 433, 42 N. W. 292. And see Lowe v. Harris, 112 N. C. 472, 17 S. E. 539, 22 L. R. A. 379. A memorandum that P. shall have the land "of which he is now in possession" has been held sufficient. Phillips v. Swank, 120 Pa. 76, 13 Atl. 712, 6 Am. St. Rep. 691. And see Falls of Neuse Mfg. Co. v. Hen- dricks, 106 N. C. 485, 11 S. E. 5GS. An agreement for the sale of a designated number of acres "in" a specified larger tract of land is not sufficient. Brock- way v. Frost, 40 Minn. 155, 41 N. W. 411. And see Repetti v. Maisak, 6 Mack- ey, 366. §§ 4Ar-^9) FORM REQUIRED. 87 sideration, which consideration, forming part of the agreement, ought, therefore, to have been shown ; and the promise is not bind- ing by the statute unless the consideration which forms part of the agreement be also stated in writing." °^ Other courts have re- fused to recognize this doctrine, though in some of these cases the statute used the word "promise" instead of "agreement." ^^ Most of the states, however, have put this question at rest by statutory provisions expressly declaring it necessary °^ or unnecessary °^ to ex- press the consideration in the writing. Even where the statute pro- vides that the consideration need not be expressed, it must be ex- pressed if it is executory, and modifies the promise; for in such case it is a term of the contract.®® Separate Papers. The memorandum may consist in any number of letters, tele- grams, or other pieces of paper."" The papers, however, must be connected, consistent, and complete. 9 8 Wain V. Warlters, 5 East, 10. And see Sears v. Brink, 3 Jobns. (N. Y.) 210, 3 Am. Dee. 475; Taylor v. Pratt, 3 Wis. 074; Tliompson v. Blanchard, 3 N. Y. 335; Ordeman v. Lawson, 49 Md. 135; Sloan v. Wilson, 4 Har. & J. (Md.) 322, 7 Am. Dec. 672; Buckley v. Beardslee, 5 N. J. Law, 572, 8 Am. Dec. 620; Gregory v. Logan, 7 Blackf. (Ind.) 112; Ellison v. Water Co., 12 Cal. 542; Hargroves v. Cooke, 15 Ga. 321. It is sufficient if the consideration can be gathered from the entire contract. The words "value received" have been held enough. Watson's Ex'rs v. McLaren, 19 Wend. (N. Y.) 557; D. M. Osborne & Co. v. Baker, 34 Minn. 307, 25 N. W. 606. 57 Am. Rep. 55; Ede- lin V. Gough, 5 Gill (Md.) 103; Emerson v. C. Aultman & Co., 69 Md. 125, 14 Atl. 671; Smith v. Northrup, 80 Hun, 65, 29 N. Y. Supp. 851. The presence of a seal has been held a sufficient recital of the consideration. Johnston v. Wadsworth, 24 Or. 494, 34 Pac. 13; Smith v. Northrup, supra. 06 Packard y. Richardson, 17 Mass. 122, 9 Am. Dec. 123; Brittain v. Alngier, 48 N. H. 422; Gillighan v. Boardman, 29 Me. 79; Patchin v. Swift, 21 Vt. 292 ; Shively v. Black, 45 Pa. 345 ; Sage v. Wilcox, 6 Conn. 81 ; Violett v. Pat- ton, 5 Cranch, 151, 3 L. Ed. 61 (construing the Virginia statute); Reed v. Evans, 17 Ohio, 128 ; Steadman v. Guthrie, 4 Mete. (Ky.) 147 ; Taylor v. Ross, 3 Yerg. (Tenn.) 330; Adkins v. Watson, 12 Tex. 199; Halsa v. Halsa, 8 Mo. 303; How V. Kemball, 2 McLean, 103, Fed. Cas. No. 6,748; Brown v. Fowler, 70 N. H. 211, 47 Atl. 412. 97 It is declared necessary in Alabama, Minnesota, Nevada, and Oregon. A guaranty of a note, written by a third person on the note before delivery, need express no consideration, since the guaranty requires no other consider- ation than that which the note on its face implies to have passed between the original parties. Moses v. Bank, 149 U. S. 298, 13 Sup. Ct. 900, 37 L. Ed. 743 (under Alabama statute). Contra: Commercial Nat. Bank v. Smith, 107 Wis. 574, 83 N. W. 766. It is otherwise if the guaranty is written after the note has been delivered and taken effect as a contract. Moses v. Bank, supra. 9 8 It is declared unnecessary in Illinois, Indiana, Kentucky, Maine, Massa- chusetts, Michigan, Nebraska, New Jersey, and Virginia. See HAYES v. JACKSON, 159 Mass. 451, 34 N. E. 683. 99 See Drake v. Seaman, 97 N. Y. 230. 100 Reuss T. Picksley, L. R. 1 Exch. 342; Ryan v. United States, 136 U. S. 88 STATUTE OF FRAUDS. (Ch. 4 It is generally held that the connection between various papers must be made out from the papers themselves/"^ and that it cannot be shown by parol evidence. ^°^ But, if one paper is referred to in another, it may be identified by parol evidence. ^"^* To say that the papers must be consistent is merely to reiterate what was said in treating of offer and acceptance. Signahire. It is essential that the memorandum be signed by "the party to be charged," or some other person by him lawfully authorized.^°* As to whether it must have been signed by the party seeking to enforce it, there is some conflict. Probably all courts hold that it need not be so signed if the consideration given by the party suing is exe- cuted. The conflict is where there are mutual promises. Some 83, 10 Sup. Ct. 913, 34 L. Ed. 447; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Lee v. Cherry, So Tenn. 707, 4 S. W. 835, 4 Am. St. Rep. 800; Roelil v. Haumesser, 114 Ind. 311, 15 N. E. 345; Gulf, C. & S. F. Ry. Co. v. Settegast, 79 Tex. 256, 15 S. W. 228 ; Bayne v. Wiggins, 139 U. S. 210, 11 Sup. Ct. 521, 35 Lt. Ed. 144; Olson v. Sbarpless, 53 Minn. 91, 55 N. W. 125. 101 If ail the separate papers are signed, reference in the one to the other need not be made, if by inspection and comparison it appears that they form part of Hie same transaction. Thayer v. Luce, 22 Ohio St. 62. See, also, Brewer v. Horst & Lachmund Co., 127 Cal. 643, 60 Pac. 418, 50 L. R. A, 240. But see Potter v. Peters, 72 L. J. Rep. 624. 102 Where a person issued a prospectus of illustrations of Shakspeare, to be published on terms of subscription therein set out, and A. entered his name in a book entitled "Shakspeare Subscribers, their Signatures," in the publisher's shop, and afterwards refused to subscribe, it was held that there was no sufficient reference to connect the subscription book with the pro- spectus, so as to make a memorandum. Boydell v. Drummond, 11 Eiast, 142. And see Peirce v. Corf, L. R. 9 Q. B. 210; Taylor v. Smith, 61 Law J. Q. B. 331; Morton v. Dean, 13 Mete. (Mass.) 385; O'DONNELL v. LEEMAN, 43 Me. 158, 69 Am. Dec. 54; Doughty v. Manhattan Brass Co., 101 N. Y. 644, 4 X. E. 747; North v. Mendel, 73 Ga. 400, 54 Am. Rep. 879; Oliver y. Insurance Co., 82 Ala. 417, 2 South. 445; Orne v. Cook, 31 111. 238; Duff v. Hopkins (D. C.) 33 Fed. 599; Coombs v. "Wilkes [1891] 3 Ch. 77; Andrew t. Babcock, 63 Conn. 109, 26 Atl. 715. A contract for the sale of land, containing no de- scription of it, was held insufficient, though there was a description of land on the back of the paper, there being no words to connect the indorsement with the conti-act. Wilstach v. Heyd, 122 Ind. 574, 23 N. E. 963. Reciprocal wills not refen-ing to each other. Hale v. Hale, 90 Va. 728, 19 S. E. 739. 103 Long v. Miller, 4 C. P. Div. 450; Oliver v. Insurance Co., 82 Ala. 417, 2 South. 445; BECKWITH v. TALBOT, 95 U. S. 289, 24 L. Ed. 496; Peck v. Vandemark, 99 N. Y. 29, 1 N. E. 41; Work v. Cowhick, 81 111. 317; Lee v. Butler, 167 Mass. 426, 46 N. E. 52, 57 Am. St. Rep. 466. 104 Sanborn v. Sanborn, 7 Gray (Mass.) 142; Cloud v. Greasley, 125 III. 313, 17 N. E. 826; Rafferty v. Lougee, 63 N. H. 54; Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509; Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164, 30 Pac. 459; McElroy v. Seery, 61 Md. 389, 48 Am. Rep. 110; Moore v. Pow- ell, 6 Tex. Civ. App. 43, 25 S. W. 472, Cf. Gardels v. Kloke, 36 Neb. 493, 54 N. W. 834. §§44^9) FOBM BEQUTEED. 89 couns 'r.;!i :r. these cases that the contract, not being enforceable against the part; rs not signed it, is void for want of nantual- ity.ios JMost cc.r-s -at the statute is satisfied if the memo- randum is signei :; .... __:;y against whom it is sought to be en- forced. ^«« The signature may be by mark *•' or initials,**" or it may be print- ed, stamped, or engraved.*** Nor need the signature be placed at the end of the document as a formal signature. If the name of the party to be charged appear in the memorandum, so as to be appHca- ble to the whole substance of the writing, and was written by him- self, or by his authorized agent, it is immaterial where the name ap- pears, whether a: -.'.'.-: -:p or at the bottom, or whether it is merely mentioned in :: vr : : iy of the memorandum.*** Where, however, the statute r r 5 the rrtemorandum to be "subscribed," it has been held : := ;r.u;. be a formal signature at the bottom of the me ~ : r ; . . 1 u : . . . - ^ A p^r. :j a contract may sign a rough draft of its terms, and 105 Wilkmson v. Heavenriclu 5S Mielu 574. 26 X. W. 139, 55 Am. Uep. 708; Corbitt T. Gas!:g':;t C: o Or. 4Sto, 25 Am. Eep. 541; Krolm v. Bantz, 68 Ind. 277; Thomas Ex x v. Tristees, 3 A. K. Marsli. Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Rep. 624. 189 Hanson v. Armitage, 5 Barn. & Aid. 557 ; Hunt v. Hecbt, 8 Ex. 814; Allard V. Greasert, 61 N. Y. 1, 5 ; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465, 12 Am. St. Rep. 722. 190 Elmore v. Stone, 1 Taunt. 458; Beaumont v. Brengeri, 5 G. B. 301; Green v. Merriam, 28 Vt. 801; Rodgers v. Jones, 129 Mass. 420; Webster v. Anderson, 42 Mich. 554, 4 N. W. 288, 36 Am. Rep. 452. 191 Edan v. Dudfield, 1 Q. B. 306 ; Lillywhite v. Devereux, 15 Mees. & W. 285 ; Snider v. Thrall, 56 Wis. 674, 14 N. W. 814. 192 Bentall v. Burn, B. & O. 423; Farina v. Home, 16 Mees. & W. 119; Town- send V. Hargraves, 118 Mass. 325, 332; Bassett v. Gamp, 54 Vt. 232. i93Tans]ey v. Turner, 2 Bing. N. G. 151; Cooper v. Bill, 3 H. & G. 722; Leonard v. Davis, 1 Black, 476, ;17 L. Ed. 222; Boynton v. Veazie, 24 Me. 286; Kingsley v. White, 57 Vt. 565; Brewster v. Leith, 1 Minn. 56 (Gil. 40). 104 STATUTE OF FRAUDS, (Ch. 4 SAME— EARNEST AND PART PAYMENT. 57. EARNEST. Earnest is soiuet]iiii.g of valne, not forming part of the price, g^ivext and received to mark the final assent of th.e parties to the bargaiji. 58. PART PAYMENT. Part payment may be made at or (miless the statute otherwise requires) subsequently to the time of the contract, either in money or anything of value. Earnest and part payment are distinct.^ °* Earnest may be money or some gift or token given to mark the assent to the bargain.^®"* The custom of giving earnest was formerly prevalent in England, but has fallen into disuse, and the provision in regard to it is of little practical importance. Part payment may be subsequent to the contract,^®" unless, as in some states, the statute provides that it must be given at the time of the contract. ^®^ It must be accepted.^®* It need not be money, but may be anything of value, which by mutual agreement is given and accepted on account or in part satisfaction of the price.^^* SAME— FORM REQUIRED. 59. The rules as to the form required by section 17 are the same as in case of section 4, except that the consideration of the prom- ise of the party to be charged need not appear. The note or memorandum is sufficient if it comply with the rules already stated with reference to the form required by section 4. It is not necessary, however, that the consideration of the promise of the party to be charged be stated; in other words, if the memorandum contains his promise, it need make no reference to the promise of the i6*Ben3. Sales (6th Am. Ed.) § 189; Howe v. Smith, 27 Ch. D. 89, 101. But see Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306, where It is said that earnest is regarded as part payment. i»o Brae. 1, 2, c. 27. 188 WALKER V. NUSSEY, 16 Mees. & W. 302; Thompson v. Alger, 12 Mete. (I*Iass.) 428, 435; Marsh v. Hyde, 3 Gray (Mass.) 331. 197 Hunter v. Wetsell, 57 N. Y. 375, 15 Am. Rep. 508; Id., 84 N. Y. 649, 38 Am. Rep. 544; Jackson v. Tupper, 101 N. Y. 515, 5 N. E. 65; Kerkhof v. Paper Co., 68 Wis. 674, 32 N. W. 7G0. 18 8 Edgerton v. Hodge, 41 Vt 676. 109 White V. Drew, 56 How. Prac. (N. Y.) 53; Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24. Surrender of seller's note, Sharp v. Carroll, 66 Wis. 62, 27 N. W. 832 ; transfer of bill or note, Griffiths v. Owen, 13 Mees. & W. 58 ; under statute requiring payment at time, delivery of check, Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544. § 60) EFFECT OF NONCOMPLIANCE. 105 other party.^^" Thus a memorandum in the form of a mere offer, though the acceptance be oral, is good.''"^ But the price is a material part of the bargain, and must be stated,*"^ though if it be not agreed upon, but is implied, a memorandum which states no price is suffi- cient."' SAME— EFFECT OF NONCOMPLIANCE. 60. As in case of section 4, it is generally held that failure to comply \»rith the provisions of section 17 does not render the contract voidf but merely prevents its enforcement. This section declares that, if there be no acceptance and receipt, no earnest or part payment, and no note or memorandum, the contract shall not "be allowed to be good," thus differing from section 4, which merely declares that no action shall be brought. In England it seems not to have been directly decided whether these words mean that the contract shall be utterly void, or merely incapable of being sued upon, as in case of contracts under section 4; and the dicta of the judges are conflicting. The latter position is sustained by the weight of opinion.""* In Massachusetts, where the statute provided that no such contract should be "good or valid," it has been held that the difference in the wording of the two sections was immaterial, and that failure of a contract to comply with the requirements of section 17 does not go to its existence, but merely renders it unenforceable by suit, as under the fourth section.^'*^ In Missouri, however, it has been held that section 17 goes to the very existence of the contract.^*" In some states the statute declares that the contract shall be "void." 200 Edgerton v. Matliews, 6 Blast. 307; Sari v. Bourdillon, 1 C. B. N. S. 188; Smith V. Ide, 3 Vt. 290; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352. 201 Reuss V. Picksley, L. R. 1 Ex. 342; Sanborn v. Flagler, 9 Allen (Mass.) 474; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576; Gradle v. "Warner, 140 111. 123, 29 N. B. 1118; Kessler v. Smith, 42 Minn. 494, 44 N. W. 794. 202 Elmore v. Kingscote, 5 B. & C. 583; Ashcroft v. Butterworth, 136 Mass. 511; Stone v. Browning, 68 N. Y. 598; Hanson v. Marsh, 40 Minn. 1, 40 N. W. 841. 203 Hoadley v. McLaine, 10 Bing. 482 ; Ashcroft v. Morrison, 4 M. «& G. 450. «04 Anson, Cont. (4th Ed.) 67; Pol. Cont. 605. 20 6 Townsend v. Hargi-aves, 118 Mass. 325; Wainer v. Insurance Co., 153 Mass. 335, 26 N. B. 877, 11 L. R. A. 598. See, also, BIRD v. MUNROE, 66 Me. 837, 22 Am. Rep. 571. Ante, p. 9L 20 6 Houghtaling v. Ball, 20 Mo. 563. See, also, Green v. Lewis, 26 U. G. Q. B. 618. 306 I CONSIDERATION. (Oh. 5 I CHAPTER V. CONSIDERATION. 61, 62. Consideration Defined. 63, 64. Necessity for Consideration, and Presumption, 65, 66. Adequacy of Consideration. 67. Sufficiency or Reality of Consideration. 68-70. Mutual Promises— Mutuality. 71-73. Forbearance to Exercise a Right. 74-76. Doing What One is Bound to Do. 77, 78. Impossible and Vague Promises. 79. Legality of Consideration. SO. Consideration in Respect of Time — Past Consideration. CONSIDERATION DEFINED. 61. Consideration is that Tp-hicli moves from the promisee to the promisor, at the express or implied request of the latter, in return for his promise. 62. As the term is used in the law of contract, it means a "valuable" consideration; that is, something having value in the eye of the law. It may consist either in "some right, interest, profit, or benefit accruing to one party, or some forbearance, detri- ment, loss, or responsibility given, suffered, or undertaken by the other." The law requires every simple contract to be based on what it deems a valuable consideration. We shall take up in turn the different forms which consideration may assume, and explain at length what is deemed a consideration.^ At the outset, however, it will be well to explain in a general way what we mean when we speak of the consideration for a promise. Consideration means that which moves from the promisee to the promisor, at the latter's request, in return for his promise. Consideration "is something done, forborne, or suffered, or promised to be done, forborne, or suffered by the promisee in respect of the promise." ^ If, for instance, one man, by paying another a sum of money, procures a promise from the latter in return to do something for his benefit, the money paid is the consideration for the promise. Consideration, however, need not be the payment of money. It may consist "in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, 1 For the history of consideration, the student should read Anson, Cont (8th Ed.) 43; Poll. Cont. 179; Holmes, Com. Law, 253-271, 284-287. a Anson, Cont. (8th Ed.) 74. ^§ 61-62) CONSIDERATION DEFINED. 107 ■or undertaken by the other;"' provided, however, the benefit con- ferred or detriment suffered is deemed of value in the eye of the law.* If a person does work for another on the latter's express or implied promise to pay for it, or gives another permission to use his property in return for a promise, or gives up his right to sue another, on the latter's promise to pay money or do some other act, there is in each case either a benefit accruing to the promisor, or a detriment suffered by the promisee, or both ; and this is the consideration for the promise. So, also, if a person promises another to do something on the latter's promising him to do something, as where one man promises another to sell him goods, and the promisee promises to buy them, and pay for them, a right is conferred by each to the benefit of the other's promise, and a responsibility is. un4ertaken by each. The promise of each is the consideration for' the promise of the other."* The fact that the benefit conferred or detriment suffered is slight does not render it any the less a valuable consideration.® The naming of a child after a person will support his promise to pay a large sum of money. ^ Consideration Distinguished from Mptive. "Motive is not the same thing ^vith consideration. Consideration means something which is of value in the eye of the law, moving from" the promisee.* Confusion between motive and consideration has, how- ever, sometimes arisen, and has taken two forms: (i) The distinc- tion which once existed between "good" and "valuable" consideration ; and (2) the view which once maintained that a moral obligation was sufficient to support a promise. 3 Currie v. Misa, L. R. 10 Exch. 162. See, also, BAINBRIDGE v. FIRM- STONE, 8 Adol. & E. 743; Handrahan v. O'Regan, 45 Iowa, 298; DEVECMON V. SHAW, 69 Md. 199, 14 Atl. 474, 9 Am. St. Rep. 422; HAMER v. SIDWAY, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693; Byrne v. Cum- mings, 41 Miss. 192; Day v. Gardner, 42 N. J. Eq. 199, 7 Atl. 365; Wolford V. Powers, 85 Ind. 294. 44 Am. Rep. 16; Sanders v. Carter, 91 Ga. 450, 17 S. E. 845; Dorwin v. Smith, 35 Vt. 69; Train v. Gold, 5 Pick. CNIass.) 380; Emerson V. Slater, 22 How. 43, 16 L. Ed. 360; Taylor v. Williams, 120 Ind. 414, 22 N. E. 118; Marslialltown Stone Co. v. Manufacturing Co., 114 Iowa, 574, 87 N. W. 496; Guntlier v. Gunther, 181 Mass. 217, 63 N. E. 402. And see the old cases of TRAVER v. (1667) 1 Sid. 57; PAYNTER v. CHAMBERLYN (1639) 1 Rolle, Abr. 22; HAWES v. SMITH (1675) 2 Lev. 122. 4 Post, p. 116. BFunk V. Hough, 29 111. 145; Earle- v. Angell, 157 Mass. 294, 32 N. E. 164. And see post, p. 116. 6 State V. Baker, 8 Md. 44. 7 Wolford V. Powers, 85 Ind. 294; Diflfenderfer v. Scott, 5 Ind. App. 243, 32 N. E. 87; Daily v. Minninck, 117 Iowa, 563, 91 N. W. 913, 60 L. R. A. 840. 8 THOMAS V. THOMAS, 2 Q. B. 851. See, also, PHILPOT v. GRUNIN- •GER, 14 Wall. 570, 20 L. Ed. 743. 108 CONSIDERATION. (Ch. 5 Same — Good Consideration. Natural affection for a near relative, or, as it is generally said, the consideration of blood, or natural love and affection, is said to be a "good," but not a "valuable," consideration.® In the law of contract the consideration must be "valuable." In some early English cases it was attempted to ingraft the doctrine of good consideration, which had been applied in case of covenants to stand seised, upon the law of contract, but it was not allowed. The mere existence of natural affec- tion as a motive for a promise has probably never been held to amount to a valuable consideration, so as to support an executory contract.^** It was formerly held that if a person for whose benefit a binding promise was made was nearly related to the promisee, the relationship and the fact that the contract was prompted by natural affection would give a right of action to the beneficiary. This exception to the rule that a contract cannot confer rights upon a person who is not a party to it is no longer generally recognized. ^^ The question of the right of a third person who did not furnish the consideration to sue upon a promise made for his benefit will be considered in discussing the opera- tion of contract.^'' Same — Moral Obligation. There are some cases to the effect that a mere moral obligation is sufficient consideration to support a promise,^* but it is now well settled 9 Chit. Cont. 27. "A good consideration Is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation ; being founded on motives of generosity, prudence, and natural duty. A valuable consideration Is such as money, marriage, or the like, which the law esteems an equivalent given for the gi'ant, and is therefore founded in mo- tives of justice. Deeds made upon good consideration only are considered as merely volimtary, and are frequently set aside in favor of creditors and bona fide purchasers." 2 Bl. Comm. 297. 10 BRET V. J. S. AND WIFE, Cro. Eliz. 755; FINK v. COX, 18 Johns. (N. Y.) 145, 9 Am. Dec. 191; Priester v. Priester, Rich. Eq. Cas. 26, 18 Am. Dec. 191; Kii-kpatrick v. Taylor, 43 111. 207; Smith v. Kittridge, 21 Vt 238; Phil- lips V. Frye, 14 Allen (Mass.) 36; Pennington v. Glttings, 2 Gill & J. (Md.) 208; Dugan V. Glttings, 3 Gill (Md.) 138, 43 Am. Dec. 306; Whitaker v. Whitaker, 52 N. Y. 368, 11 Am. Rep. 711; Cotton v. Graham, 84 Ky. 672, 2 S. W. 647; Hadley v. Reed, 58 Hun, 608, 12 N. Y. Supp. 163; Williams v. Forbes, 114 111. 167, 28 N. E. 463; Wilbur v. Warren, 104 N. Y. 196, 10 N. E. 263. 11 Post, p. 352. 12 Post, p. 351. 13 HAWKES V. SAUNDERS, Cowp. 289; LEE v. MUGGERIDGE, 5 Taunt 36; Clark v. Herring, 5 Binn. (Pa.) 35; Glass v. Beach, 5 Vt. 173; State v. Reigart, 1 Gill (Md.) 1, 39 Am. Dec. 628; Drury v. Briscoe, 42 Md. 162; Mua- ser V. Ferguson Tp., 55 Pa. 475; In re Sutch's Estate, 201 Pa. 305, 50 Atl. 943. And see Brown v. Latham, 92 Ga. 280, 18 S. E. 421; Lawrence v. Oglesby, 17S 111. 122. 52 N. E. 945. See post, p. 142. §§ 61-62) CONSIDERATION DEFINED. 109 to the contrary.^* A man may believe himself to be under a moral obligation, either because he has received actual benefits in the past, or from motives of piety, delicacy, or friendship. Now, a past con- sideration, as virill be seen,^^ is in truth no consideration at all, for the promisor does not receive a benefit, nor the promisee sufifer a detri- ment, in return for the promise. There are certain exceptions to this statement, which will be noticed in treating of past consideration, but it will be seen that the validity of the promise in those cases does not properly rest on the basis of moral obligation, though some courts put it upon that ground. The insufficiency of past benefits to support a promise on the ground of moral obligation was settled in England in a case in which it was said: "The doctrine would annihilate the necessity for any consideration at all, inasmuch as the mere fact of giving a promise creates a moral obligation to perform it." ^' If the actual receipt of a benefit in the past does not constitute consideration for a subsequent promise, still less will such duties of honor, conscience, or friendship as a man may conceive to be incumbent on him. A man may be bound in honor to pay money lost in a wager, but, inasmuch as the law has declared wagers to be void, a promise to pay such a debt would be unenforceable for want of a considera- tion.*'^ In like manner, a pious wish on the part of executors to carry out the intentions of the testator is no consideration for promises made by them.^^ 14 EASTWOOD V. KENYON, 11 Adol. & E. 438; MILLS v. WYMAN, 3 Pick. CNIass.) 207; BEAUMONT v. REEVE, 8 Q. B. 483; Ehle v. Judson, 24 Wend. (N. Y.) 97; COOK v. BRADLEY, 7 Conn. 57, 18 Am. Dec. 79; VALEN- TINE V. FOSTER, 1 Mete. (Mass.) 520, 35 Am. Dec. 377; Updyke v. Titus, 13 N. J. Eq. 151; Farnham v. O'Brien, 22 Me. 475; SHEPARD v. RHODES, 7 R. I. 470, 84 Am. Dec. 573; Gay v. Botts, 13 Busli (Ky.) 299; Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; Osier v. Hobbs, 33 Ark. 215; McElven v. Sloan, 56 Ga. 208. A promise by a husband to his wife on her deathbed that their son should have certain property is not a valuable consideration for a conveyance from the father to the son. Peek v. Peek, 77 Cal. 106, 19 Pac. 227, 1 L. R. A. 185, 11 Am. St Rep. 244. See post, p. 141, note 166. 16 Post, p. 136. le EASTWOOD v. KENYON, 11 Adol. & E. 438. 17 Morris v. Norton, 75 Fed. 912, 21 C. C. A. 553. 18 Anson, Cont. (4th Ed.) 79; THOMAS v. THOMAS, 2 Q. B. 851. V ^^ 110 CONSIDERATION. (Ch. 5 NECESSITY FOR CONSIDERATION, AND PRESUMPTION. 63. NECESSITY— A valuable consideration is essential to the validity of every simple contract. EXCEPTION — Want of consideration does not avoid a negotiable in- strument in the bands of a bona fide purchaser for value. 64. PRESUMPTION— Negotiable instruments are by the law mer- chant deemed prima facie to have been issued for a valuable consideration; and by statute in some jurisdictions the same is true of all other simple contracts in ^vritlng, and of contracts under seal in those jurisdictions \7here the common-lav;^ effect of a seal has been abolished. Consideration is the universal requisite of all contracts not under seal, except the so-called "contracts of record," which, like contracts under seal, derive their validity from their form alone.^® The rule applies to all simple contracts,^" including those contracts which are required to be in writing, either by the statute of frauds, or by other statutes, or by the common law. It was at one time doubted whether a promise not under seal needed a consideration if it was put in writ- ing,^^ but the necessity for a consideration was affirmed and settled in England in 1778 in a suit against an administratrix who, without con- sideration, had promised in writing to answer damages out of her own estate. It was contended that the writing required by the statute of frauds rendered consideration unnecessary, but the contrary was held. "It is undoubtedly true," it was said, "that every man is by the law of nature bound to fulfill his engagements. It is equally true that the law of this country supplies no means nor affords any remedy to compel the performance of an agreement made without sufficient consideration. Such agreement is 'nudum pactum ex quo non oritur actio; ' and, whatever may be the sense of this maxim in the civil law, it is in the last sense only that it is to be understood in our law. 10 RANN V. HUGHES, 7 Term R. 346; COOKE v. OXLEY, 3 Term R. 653; Burnet v. Bisco, 4 Johns. (N. Y.) 235; Doebler v. Waters, 30 Ga. 344; Lowe V. Bryant, 32 Ga. 235; Oullaban v. Baldwin, 100 Cal. 648, 35 Pac. 310; Bran- son V. Kitchenman, 148 Pa. 541, 24 Atl. 61; McLean v. McBean, 74 111. 134; Baer v. Christian, 83 Ga. 322, 9 S. E. 790; Bailey v. Walker, 29 Mo. 407; Hendy v. Kier, 59 Cal. 138; Culver v. Banning, 19 Minn. 303 (Gil. 260); IN RE JAMES, 78 Hun, 121, 28 N. Y. Supp. 992. 20 The guaranty of another's debt must be supported by a consideration. In these contracts there are two considerations— a consideration for the orig- inal contract, and a consideration for the guaranty. See Briggs v. Latham, 36 Kan. 205, 13 Pac. 129. If, however, as we have seen, a note, for instance, is guarantied by a third person before its delivery to the payee, the consid- eration from the payee to the maker is sufficient to support the guaranty as well as the note. Winans v. Manufacturing Co., 48 Kan. 777, 30 Pac. 163; Heyman v. Dooley, 77 Md. 162, 26 Atl. 117, 20 L. R. A. 257. 21 PILLANS v. VAN MIEROP (A. D. 1765) 3 Burrows, 1663. ^ §§ 63-64) NECESSITY FOR CONSIDERATION, AND PRESUMPTION. Ill * * * All contracts are, by the law of England, distinguished into agreements by specialty, and agreements by parol ; nor is there any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved." ^^ Negotiable Instruments. Bills of exchange, promissory notes, and other negotiable instru- ments are to some extent an exception to this rule. As between the immediate parties to the instrument consideration is necessary. Consideration, however, is said to be presumed — that is, the instrument itself is prima facie evidence of consideration ; but the defendant may introduce evidence in rebuttal of the presumption, and if he can show that no consideration was given for his making or indorsement of the instrument his promise fails.^^ The rule is the same when the party suing is a subsequent holder, unless he is a pur- chaser for value before maturity without notice, in which case want of consideration is not a defense.^* Gratuitous Employment. "The promise of a gratuitous service, although not enforceable as a promise, involves a liability to use ordinary care and skill in per- formance" ; ^"^ or, as it is usually put, the promisee is not liable for nonfeasance, but is liable for misfeasance, and this is sometimes said to be another exception to the rule that consideration is necessary to the validity of every simple contract. The ground of this liability is somewhat obscure. Where a person delivers over property to a bailee or agent, it is perhaps possible to find a consideration in the detri- ment which the bailor or principal suffers in parting with control.^® But in the mere case of gratuitous service or agency, this element of consideration, if such it be, does not exist. It is sometimes said that the trust and confidence reposed is a sufficient consideration,^'^ but if this were so it would be a sufficient consideration for the promise 22 RANN V. HUGHES, 7 Term K. 350. See, also, COOK v. BRADLEY, 7 Conn. 57; In re Hess' Estate, 150 Pa. 346, 24 Atl. 676; Brown v. Adams, 1 Stew. (Ala.) 51, IS Am. Dec. 48; BmTiet v. Bisco, 4 Johns. (N. Y.) 235; Per- rine V. Cheeseman, 11 N. J. Law, 174, 19 Am. Dec. 388; Train, v. Gold, 5 Pick. (Mass.) 380; Eddy v. Roberts, 17 111. 505. 23 Norton, Bills & N. (3d Ed.) 270. 2 4 Id. 276. 2 5 Anson, Contr. (Sth Ed.) 76, 83. See, also, Wilkinson v. Coverdale, 1 Esp. 75; THOR^E v. DEAS, 4 Johns. (N. Y.) 84; Walker v. Smith, 1 Wash. C. C. 152, Fed. Cas. No. 17,086; Williams v. Higgins, 30 Md. 404; Passano v. Acosta. 4 La. 26. 23 Am. Dec. 470; Spencer v. Towles, 18 Mich. 9; Isham v. Post, 141 N. Y. 100. 35 N. E. 1081, 23 L. R. A. 90, 38 Am. St. Rep. 766. 2 6 Coggs Y. Bernard. 2 Ld. R. 909; Whitehead v. Greetham, 2 Bing. 464. 2T Hammond v. Hussey, 51 N. H. 40, 12 Am. Rep. 41. 112 CONSIDERATION. (Cb. 5 to perform, and render the promisee liable for nonfeasance. It must be admitted that the liability in these cases arises independently of any consideration to support the undertaking. Whether this liability is to be regarded as an anomaly in the law of contract ^* or as arising independently of contract ^^ need not be considered. Statutory Presumption of Consideration. In some states, statutes have been enacted declaring that all written instruments shall be presumptive evidence of a consideration, rebut- table, however, by showing that there was in fact no consideration, thereby putting all simple contracts in writing, to this extent, on a level with negotiable instruments.'" The statutory changes in the law in respect to instruments under seal have already been referred to.'^ ADEQUACY OF CONSIDERATION. 65. T3ie validity of tlie contract is not dependent upon tlie adequacy of the consideration, provided it is something of value in the eye of the law.sz 66. In eqnity, inadequacy of consideration, if such as to be evidence of fraud, is ground for refusing specific performance; and in- adequacy of consideration is regarded as corroborative evi- dence in suits for relief from contracts on the ground of fraud and undue influence. In General. At law the benefit conferred or detriment suffered by the promisee in exchange for the promise need not be equal to the responsibility assumed by the promisor; or, in other words, the consideration need not be adequate. Any real consideration, however small, will support a promise. So long as a man gets what he has bargained for, and it is of some value in the eye of the law, the courts will not ask what its value may be to him, or whether its value is in any way proportionate to his act or promise given in return, for this would be "the law making the bargain instead of leaving the parties to make it." *' In 28 Anson, Contr. (8th Ed.) 85. 2 9 "Gratuitous Undertakings," by Joseph H. Beale, Jr., 5 Harv. L. R. 222. 80 There are such statutes In California, Indiana, Iowa, Kansas, Kentucky, Missouri, and possibly in other states. 81 Ante, p. 60. 82 Anson, Cont. (8th Ed.) 76. 83 Pilkington V. Scott, 15 Mees. & W. 600; Worth v. Case, 42 N. Y. 362; Hubbard v. Coolidge, 1 Mete. (Mass.) 84; BROOKS v. BALL, 18 Johns. (N. Y.) 337; Nash v. Lull, 102 Mass. 60, 3 Am. Rep. 435; Earl v. Peck, 64 N. Y. 5'JG; Dorwin v. Smith, 35 Vt. 69; Boggs v. Wann (C, C.) 58 Fed. 681; Eyre V. Potter, 15 How. 42, 14 L. Ed. 592; Grandin v. Grandin, 49 N. J. Law, 508, 9 Atl. 756, 60 Am. Rep. 042; Crum v. Sawyer, 132 111. 443, 24 N. E. 956; Minne- apolis Land Co. v. McMillan, 79 Minn. 287, 82 N. W. 591; Blgelow v. Bigelow, 95 Me. 17, 49 Atl. 49; Casserleigh v. Wood, 119 Fed. 308, 56 C. C. A. 212. §§ 65-66) ADEQUACY OF CONSIDERATION. 113 a case in the supreme court of the United States, Mr. Justice Story said, in speal-cing of a guaranty of another's debt, made in consider- ation of one dollar: "A valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any parol contract. * * * A stipulation in consideration of one dollar Js just as effectual and valuable a consideration as a larger sum stipulated for or paid." ^* Forbearance by a creditor, for instance, to levy an execution on the debtor's property, will support a promise by the debtor or by a third person to pay a larger sum than could have been recovered under the execution. "If," said Lord Tenterden in such a case, "the inconvenience of an execution against these goods at the time in question was so great that the defendant thought proper to buy it off at such an "expense, I do not see that the consideration is insufficient for the promise." ^° There may even be a consideration without the accrual of any benefit at all t o the promisor. If the promisee has suffered any detriment, however slight, or, though he has suffered no real detriment, if he has done what he was not otherwise bound to do, in return for the promise, he has given a consideration ; and the court will not ask whether the promisor was benefited.^' Where, for instance, the owner of boilers gave another permission to weigh them on the latter's promise to return them in good condition, the permission and advantage taken of it was held a sufficient consideration for the promise. "The defendant," said the court, "had some reason for wishing to weigh the boilers, and he could do so only by obtaining permission from the plaintiff, which he did obtain by promising to return them in good condition. We need not inquire what benefit he expected to derive. The plaintiff might have given or refused leave," *^ So where the defendant had made the promise sued upon in con- sideration of the plaintiffs' surrender of a guaranty which had been given by the defendant, but which turned out to have been unenforce- able because it was within the statute of frauds, the surrender was held a sufficient consideration for the promise. "Whether or no the guaranty could have been available," said the court, "the plaintiffs were induced by the defendant's promise to part with something which 84 Lawrence v. McCalmont, 2 How. 426, 11 L. Ed. 326. And see Appeal of Ferguson, 117 Pa. 426, 11 Atl. 885. 3 5 SMITH V. ALGAR, 1 Barn. & Adol. 603. 36 TRAVER V. , 1 Sid. 57; Chick v. Trevett, 20 Me. 462, 37 Am. Dec. 68; Fisher v. Bartlett, 8 Greenl. (Me.) 122, 22 Am. Dec. 225; Hind v. Hold- ship, 2 Watts (Pa.) 104, 26 Am. Dec. 107; Glasgow v. Hobbs, 32 Ind. 440; Gates V. Bales, 78 Ind. 285; DOYLE v. DIXON, 97 Mass. 208, 93 Am. Dec. 80; Cobb V. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; Hall Mfg. Co. y. Supply Co., 48 Mich. 331, 12 N. W. 20.i. 87 BAINBRIDGE v. FIRMSTONE, 8 Adol. & El. 743. Clabk Cont. (2d Ed.)— S 114 CONSIDERATION. (Ch. 5 they might have kept, and the defendant obtained what he desired by means of that promise." ^* On this principle, the refraining by a person from the use of liquor and tobacco for a certain time at the request of another has been held a sufficient consideration for a promise by the latter to pay him a sum of money.^* So, also, where a person traveled for his own pleasure and benefit at the request of another, this was held sufficient to support a promise by the latter to reimburse him for his expenses ; ** and, where an executor forbore to act as such on his coexecutor's prom- ise to divide commissions with him, the forbearance was held a con- sideration for the promise.*^ It has even been held that the liability incurred in purchasing property upon the faith of a promise made by another to contribute a certain sum in part payment of the price is a sufficient consideration to make the promise binding;*^ and where a person agreed to contribute a sum of money for the purpose of dis- charging a mortgage on church property, on condition that the church would raise the balance by voluntary subscription, and the church performed the condition, it was held that the promise became binding.*^ Marriage is a valuable consideration for a promise,** and mutual promises to marry are a consideration each for the other.*' We have seen, in discussing contracts under seal, that want of con- sideration may be shown notwithstanding the seal, where the contract is in partial restraint of trade. The fact, however, that a contract is 3 8 HAIGH V. BROOKS, 10 Adol. & El. 309. And see Judy v. Louderman, 48 Ohio St. 562, 29 N. E. 181; Churchill v. Bradley, 58 Vt. 403, 5 Atl. 189, 56 Am. Rep. 563; Sykes y. Chadwick, IS Wall. 141, 21 L. Ed. 824; Merchant v. O'Rourke, 111 Iowa, 351, 82 N. W. 759. Contra: McCoIlum v. Edmonds, 109 Ala. 322, 19 South. 501. 3 9HAMER V. SID WAY, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693 ; TALBOTT v. STEMMONS' EX'R, 89 Ky. 222, 12 S. W. 297, 5 L. R. A. 856, 25 Am. St. Rep. 531; Lindell v. Rokes. 60 Mo. 249, 21 Am. Rep. 395. 40 DEVECMON V. SHAW, 69 Md. 199, 14 Atl. 464, 9 Am. St. Rep. 422. See, also, Hoshor v. Kautz, 19 Wash. 258, 53 Pac. 51. 41 Ohlendorff v. Kanne, 66 Md. 405, 8 Atl. 351. See, also, John v. John, 122 Pa. 107, 15 Atl. 675. 42 Steele v. Steele, 75 Md. 477, 23 Atl. 959; Skidmore v. Bradford, L. R. 8 Eq. 134. 4 3 Roberts v. Cobb, 103 N. Y. 600, 9 N. E. 500. 4 4 Shadwell v. Shadwell, 9 C. B. (N. S.) 159; Wright v. Wright, 54 N. T. 137; Peck v. Vandemark, 99 N. Y. 29, 1 N. B, 41; Dugan v, Gittings, 3 Gill (Md.) 138, 43 Am. Dec. 306; Rockafellow v. Newcomb, 57 111. 191; Frank's Appeal, 59 Pa. 194; Nowack v. Berger. 133 Mo. 24, 34 S. W. 489, 31 L. R. A. 810, 54 Am. St. Rep. 663; Wright v. Wright, 114 Iowa, 748, 87 N. W. 709, 55 L. R. A. 261. Release from promise to marry is sufficient. Snell t. Bray, 56 Wis. 156, 14 N. W. 14. 4 Post, p. 117. §§ 65-66) ADEQUACY OF CONSIDERATION. 115 in partial restraint of trade forms no exception to the doctrine that adequacy of consideration cannot be inquired into.** Exception in Exchange of Fixed Values. The doctrine that courts of law will not inquire into the adequacy of consideration is based on their inability to determine what value the parties may have attached to a thing given or promised, and it does not apply to an exchange of things the value of which is exactly and conclusively fixed by law.*'' In an Indiana case on this point the defendant had promised to pay the plaintiff and others $600 in con- sideration of a promise by them to pay him one cent, and the consider- ation was held inadequate. "It is true," said the court, "that, as a general proposition, inadequacy of consideration will not vitiate an agreement. But this doctrine does not apply to a mere exchange of sums of money — of coin — whose value is exactly fixed, but to the ex- change of something of, in itself, indeterminate value, for money, or perhaps for some other thing of indeterminate value. In this case, had the one cent mentioned been some particular one cent, a family piece, or ancient, remarkable coin, possessing an indeterminate value, extrinsic from its simple money value, a different view might be taken. As it is, the mere promise to pay $600 for one cent, even had the portion of the cent due from the plaintiff been tendered, is an tmconscionable contract, void at first blush upon its face, if it be regarded as an earnest one." ** In Equity. Inadequacy of consideration will be taken into account to some ex- tent by courts of equity in the exercise of their peculiar power to compel specific performance of contracts. It has been held that inadequacy of consideration, without more, is ground upon which specific per- formance may be resisted; but the better doctrine requires that there shall be such gross inadequacy as to shock the conscience, and amount in itself to evidence of fraud.* ^ And if a contract is sought to be 46 Guerand v. Bandelet, 32 Md. 561, 3 Am. Rep. 164; Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102; McClung's Appeal, 58 Pa. 51; Hubbard v. Miller. 27 Mich. 15, 15 Am. Rep. 153; Dufty v. Sbockey, 11 lud. 70, 71 Am. Dec. 348; LJnn V. Sigsbee, 67 111. 75; Grasselli v. Lowden, 11 Ohio St, 349; La-m-ence V. Kidder, 10 Barb. (N. Y.) &41. 47 Langd. Cont. 70; SCHNELL v. NELL, 17 Ind. 29, 79 Am. Dec. 453; SHEPARD v. RHODES, 7 R. L 470; BROOKS v. BALL, 18 Johns. (N. Y.) 337. 48 SCHNELL V. NELL, 17 Ind. 29, 79 Am. Dec. 453. 4 9 Coles V. Trecothick, 9 Ves. 234; Conrad v. Schwamb, 53 Wis. 378, 10 N. W. 395; Conaway v. Sweeny, 24 W. Va. 643; Randolph's Ex'r v. Ouidnick Co., 135 U. S. 457, 10 Sup. Ct. 655, 34 L. Ed. 200 ; Watson v. Doyle, 130 111. 415, 22 N. E. 613; Eaton, Eq. 539. In some states an adequate consideration is required by statute. Morrill v. Everson, 77 Cal. 114, 19 Pac. 190. 116 CONSIDERATION. (Ch. 5 avoided on the ground of fraud or undue influence, the consideration may be inquired into, and inadequacy of consideration will be regarded as corroborative evidence in support of the suit ; °° but mere inadequacy of consideration alone is not enough to warrant the court's interfer- ence.'^ SUFFICIENCY OR REALITY OF CONSIDERATION. 67. Thougli the consideration need not "be adequate to the promise, it must not he illusory or unreal; some henefit must be con- ferred on the promisor, or some detriment sufiered by the promisee. Reality of Consideration, Although courts of law will not inquire into the adequacy of con- sideration, they will insist that it shall not be illusory or unreal. Strictly speaking, what we call an "unreal consideration" is no consid- eration at all, but this use of the term cannot well mislead. To under- stand what the law regards as a real and what as an unreal consider- ation, it will be well to inquire into the various forms which consider- ation may assume, and to note the grounds upon which certain alleged considerations have been held to be of no real value in the eye of the law. Forms of Consideration. The consideration for a promise may be an act or a forbearance, or a promise to do or forbear. When a promise is given for a promise, the contract is said to be made upon an executory;_consideration. The obligations created by it rest equally upon both parties, each being bound to a future act. An example is in case of mutual promises to marry, in which the consideration for the promise of each is the promise of the other. When the consideration for a promise is an act or for- bearance, the contract is said to be made upon a consideration executed. This arises when either the offer or acceptance is signified by one of the parties doing all that he is bound to do under the contract so created. A contract consisting of mutual promises, so that both parties are bound to some future act or forbearance, is said to be bilateral. A contract in which the offer or acceptance is signified by one of the BO Gifford v. Thorn, 9 N. J. Eq. 702; Grindrotl v. Wolf, 38 Kan. 292, 16 Pac. G91; Bowman v. Patrick (C. C.) 36 Fed. 138; Gofer v. Moore, 87 Ala. 705, 6 South. 300; Burke v. Taylor, 94 Ala. 530, 10 South. 129. 01 Phillips V. Pullen, 45 N. J. Eq. 5, 16 Atl. 9; Jones v. Degge, 84 Va. 685, 5 S. E. 799; Dent v. Ferguson, 132 U. S. 50, 10 Sup. Ct. 13, 33 L. Ed. 242; Ber- ry V. Hall, 105 N. C. 154, 10 S. B. 9C3; Brockway v. Harrington, 82 Iowa, 23, 47 N. W. 1013; Miles v. Iron Co., 125 N. Y. 294, 26 N. E. 261; Bierne v. Ray, 37 W. Va. 571, 16 S. E. 804; Eaton, Eq. 307. And see the cases cited in the preceding note. (^ ' A^ ^J^' ""^^ §§ 08-70) MUTUAL PROMISES — MUTUALITY 117 parties doing- all he is required to do under the agreement, leaving out- standing obligations on the other party only, is said to be unilateral. SAME— MUTUAL PROMISES— MUTUAIilTY, 68. A promise is a sufficient consideration for a promise* 69. Tlie promises must be concurrent. 70. The promise may be contingent or conditional, except tbat— MUTUALITY— Mutuality of engagement is necessary, and, if the con- dition or contingency produces \pant of mutuality, the consid- eration is insufficient. Both parties must be bound or neither is bound. It is well settled that a promise is a sufficient consideration for a promise.^^ In the case of mutual promises to marry, the promise of each party is a sufficient consideration for the promise of the other; ''^ and so it is in any other case of mutual promises, provided, of course, the promises are to do something of value in the eye of the law. In other words, as a rule, a promise to do a thing is just as valuable a consideration as the actual doing of it would be. After a person had sold and conveyed land, the parties, differing as to the quantity of land embraced in the tract, made an agreement by which the land was to be surveyed, and the grantor should pay for any deficiency, M'hile the grantee should pay for any excess over the acreage mentioned in the deed. It turned out that there was an excess," but the grantee, when sued on his promise to pay therefor, claimed that, as all the land was conveyed by the deed, his promise was without consideration. It was held, however, that the promise of the grantor to pay for any deficiency was a sufficient consideration.^* The promises, to constitute a consideration for each other, must be concurrent, or become obligatory at the same time; otherwise each will be without consideration at the time it is made, and both will therefore 82 Higgins V. Hill, 56 Law T. R. (N. S.) 426; STRANGBOROUGH AND WARNER'S CASE, 4 Leon. 3; GOWER v. CAPPER, Cro. Eliz. 543; NICH- OLS V. RAYNBRED, Hob. 88; Mlssisquoi Bank v. Sabin, 48 Vt. 239; Buck- ingham V. Ludlum, 40 N. J. Eq. 422, 2 Atl. 265; Pliillips v. Preston, 5 How. 278, 13 L. Ed. 702; Funk v. Hough, 29 111. 145; Coleman v. Eyre, 45 N. Y. 38; Briggs V. Tillotson, 8 Johns. (N. Y.) 304; Baker v. Railroad Co., 91 Mo. 152, 3 S. W. 486; Porter v. Rose, 12 Johns. (N. Y.) 209, 7 Am. Dec. 306; Cramer v. Redman (Wyo.) 68 Pac. 1003. Promise to attend a person's fmieral in return for promise by the latter to pay money. Eai'le v. Angell, 157 Mass. 294, 32 J{. E. 164. \ 63 HARRISON V. CAGE, 5 Mod. 411; HOLT v. WARD CLARENCIEUX, 2^ Strange, 937. 64 SEWARD V. MITCHELL, 1 Cold. (Tenn.) 87; Howe v. O'Mally. 5 N. C. 287, 3 Am. Dec. 693. It would be otherwise if there were no promise by the grantor. Smith v. Ware, 13 Johns. (N, Y.) 259. 118 CONSIDERATION. (Ch. 5 be nuda pacta." As explained in treating of offer and acceptance, some time must necessarily elapse between an offer and its acceptance, and in some cases a considerable time may elapse. The offer, however, is considered as continuing during the time allowed for acceptance ; and when it is accepted by the giving of a promise both promises be- come obligatory at the same time, or are concurrent. A promise which is merely voidable, as in case of an infant, may be a sufficient consideration.^* And, as we have seen, an oral promise which is unenforceable within the statute of frauds is generally held to be a good consideration for the promise of the other if he has signed the writing.^'^ Voluntary Subscriptions. Voluntary subscriptions by a number of persons to promote some object in which they have a common interest — as, for instance, where a number of persons voluntarily promise to pay a certain sum each to found a college — have been said to furnish an illustration of mutual promises. Some courts have sustained them on the ground that the promise of each subscriber is the consideration for the promises of the others. ^^ This ground, however, appears to be untenable, for the reason that as a matter of fact the subscribers, in most cases at least, do not give their promises in consideration of each other.^® An addi- tional objection to a recovery by the beneficiary in such cases is that the beneficiary, not being a party to the contract, cannot maintain an action upon it,®° except in states which have established the broad rule that a person for whose benefit a promise is made can sue upon it.°^ The liability of the subscriber upon his subscription in such cases is generally enforced, but different courts advance different views in 55 NICHOLS V. RAYNBRED, Hob. 88; Keep v. Goodrich, 12 Johns. (N. Y.) 397; Tucker v. Woods, 13 Johns. (N. Y.) 190, 7 Am. Dec. 305; Buckingham v. LudJum, 40 N. J. Eq. 422, 2 Atl. 205. 56 HOLT V. WARD CLEMENCIEUX, 2 Strange, 937. Post, p. 1G3. 5 7 Ante. pp. 88, 105. 58 Higert V. Asbury University, 53 Ind. 326 (collecting cases); Lathrop v. Knapp, 27 Wis. 214; Trustees of Troy Conference Academy v. Nelson, 24 Vt. 189; Christian College v. Hendley, 49 Cal. 347; Allen v. Duffle, 43 Mich. 1, 4 N. W. 427, 38 Am. Rep. 159; First Universalist Church v. Pungs, 126 Mich. 670, 86 N. W. 235; Irwin v. University, 56 Ohio St. 9, 46 N. B. 63, 36 L. R. A. 239, 60 Am. St, Rep. 727; Waters v. Union Trust Co., 129 Mich. 640, 89 N. W. 687. 59 Cottage Street Chm-ch v. Kendall, 121 IMass. 528, 23 Am. Rep. 286; Cul- ver V. Banning, 19 Minn. 303 (Gil. 260); PRESBYTERIAN CHURCH OF AL- BANY V. COOPER, 112 N. Y. 517, 20 N. E. 352, 3 L. R. A. 468, 8 Am. St. Rep. 767. 60 PRESBYTERIAN CHURCH OF ALBANY v, COOPER, supra; cf. Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325. Post, p. 851. «i Irwin V. Lombard University, supra. , /; Uo M W /^-*^ ^" §§ 68-70) MUTUAL PROMISES — MUTUALITY. 119 support of their holding's.®^ By some courts it is held that the sub- scription is an offer which becomes binding by acceptance when the beneficiary in reUance upon it incurs expense or HabiUty.*"^ By other courts it is held that when the subscription is accepted there is an im- phed counter promise on the part of the beneficiary, which is the consideration."* Still other courts sustain the liability of the subscriber on the ground of equitable estoppel arising from the expenditure of money or incurring of liability by the beneficiary in reliance upon the subscription, "° Contingent and Conditional Promises — Options. In bilateral contracts — that is, where the consideration for a promise is a promise — the whole contract may be intended by the parties to be contingent, so that obligation is to arise under it only upon the occurrence of some event or contingency. If A. offers to supply at a certain price such goods as B. may order, and B. promises to pay at Jj that price for such goods as he may order, there is, of course, no con- " tract, for B. has not promised to order any goods, and it is optional with him whether his promise to pay shall ever come into effect.*® Both j.arties must be bound or neither is bound; in other words, there m ust be mutuality of engagement® '^ In such a case, indeed, if before 62 See 15 Harv. L. R. 312. 63 SHERWIX Y. FLETCHER, 1G8 Mass. 413, 47 N. E. 197; Grand Lodge I. O. G. T. V. Farnham, 70 Cal. 15S, 11 Pac. 592. See, also. Twenty-Third St. . Baptist Church v. Cornell, lITTs. T. 601, 23 N. E. 117, 6 L. R. A. 807 ; Town of Grand Isle v. Kinney, 70 Vt. 381, 41 At). 130; Richelieu Hotel Co. v. Encamp- ment Co., 140 111. 248, 29 N. E. 1044, 33 Am. St Rep. 234;- Hodges v. Nalty, 104 Wis. 4&4, SO N. W. 726. 64 Trustees of Maine Cent. Inst. v. Haskell, 73 Me. 140; Barnett v. College, 10 Ind. App. 103, 37 N. E. 427. And see Keuka College v. Ray, 167 N. Y. 96, CO N. E. 325. 6 5 Beatty's Estate v. College, 177 111. 280, 52 N. E. 432, 42 L. R. A. 797, 69 Am. St Rep. 242. See, also, Irwin v. Lombard University, 56 Ohio St. 9, 46 N. E. 63, 36 L. R. A. 239, 60 Am. St. Rep. 727; Simpson Centenary College V. Tuttle. 71 Iowa, 596, 33 N. W. 74. C6 American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Rafolovitz V. Tobacco Co., 73 Hun, 87, 25 N. Y. Supp. 1036; CHICAGO & G. E. RY. CO. V. DANE, 43 N. Y. 240; Davie v. Mining Co., 93 Mich. 491, 53 N. W. 625, 24 L. R. A, 357; Teipel v. Meyer, 106 Wis. 41, 81 N. W. 982; Dennis v. Sly- field, 117 Fed. 474, 54 C. C. A. 520. 6 7 Keep V. Goodrich, 12 Johns. (N. Y.) 397; Ewins v, Gordon, 49 N. H. 444; Burnet v. Bisco, 4 Johns. (X. Y.) 235; McKinley v. Watkins, 13 111. 140; L'Amoreus v. Gould, 7 N. Y. 349, 57 Am. Dec. 524; Thayer v. Burchard, 99 Mass. 508; Smith v. Weaver. 90 111. 392; Bean v. Burbank, 16 Me. 458, 33 Am. Dec. 681; Mers v. Insurance Co., 68 Mo. 127; Stembj-idge v. Stem- bridge's Adm'r. 87 Ky. 91, 7 S. W. 611; Shenandoah Val. R. Co. v. Dunlop, 86 Va. 346, 10 S. E. 239; Barker v. Critzer. 35 Kan. 459, 11 Pac. 382; Warren V. Costello, 109 Mo. 338, 19 S. W. 29, .32 Am. St. Rep. 069; Graybill v. Brugh, 89 Ya. 895, 17 S. E. 558, 21 L. R. A. 133, 37 Am. St Rep. 894; Wagner v. J, & 120 CONSIDERATION. (Cll. 5 the offer is withdrawn, B. orders goods, A. is bound tf)se[] at the pnce named. ** On the other hand, if A. offers to supply at a certain price all the goods of a certain kind which B. may need in his business for a certain time, and B. promises to buy such goods, the promises are mutually binding; ^^ for although B. may not need the goods, and hence is not absolutely bound to pay, in the event of the contingency of his needing the goods he is bound to buy them of A. So, if the agreement is for the purchase by B. of all or a certain part of all the goods of a certain kind that A. may produce in a certain period.^** Somewhat similar in character are the considerations which consist in conditional promises; as, for instance, where a person promises to do something for a reward, but the other party only binds himself to pay the reward upon the happening of an event which may not be under the control of either party. Such would be the case in a building 'g. Meakin, 92 Fed. 76, 33 C. C. A. 677; Morrow v. Express Co., 101 Ga. 810, 28 S. E. 998. See, also, cases cited, p. 33, note 77. 68 G. N. RAILWAY CO. v. WITHAM, L. R. 9 C. P. 16; Johnston v. Trippe (C. C.) 33 Fed. 530; Moses v. McClain, 82 Ala. 370, 2 South. 741; Wisconsin, I. & N. Ry. Co. V. Braham, 71 Iowa, 484, 32 N. W. 392; Davis v. Robert, 89 Ala. 402, 8 South. 114, 18 Am. St. Rep. 126; Ross v. Parks, 93 Ala. 153, 8 South. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Thayer v. Bm-chard. 99 Mass. 5(08; COOPER v. WHEEL CO., 94 Mich. 272, 54 N. W. 39, 34 Am. St. Rep. 341. See, also, Michigan Bolt & Nut Works v. Steel, 111 Mich. 153, 69 N. W. 241. Filing of bill by vendee for specific performance has been held to supply mutuality. Dynan v. McColloch, 46 N. J. Eq. 11, 18 Atl. 822. But most of the cases are to the contrary. See cases cited ante, note 67. 69 See Sheffield Furnace Co. v. Coke Co., 101 Ala. 446, 14 South. 672; WELLS v. ALEXANDRE, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218; Smith v. Morse, 20 La. Ann. 220; Minnesota Lumber Co. v. Coal Co., 160 111. 85, 43 N. E. 774, 31 L. R. A. 529; Hickey v. O'Brien, 123 Mich. 611, 82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227; E. G. Dailey Co. v. Can Co., 128 Mich. 591, 87 N. W. 761. Manhattan Oil Co. v. Lubricating Co., 113 Fed. 923, 51 C. C. A. 553; Excelsior Wrapper Co. v. Messinger, 116 Wis. 549, 93 N. W. 459; Louden- back Fertilizer Co. v. Phosphate Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402. Contra, Bailey v. Austrian, 19 Minn. 535 (Gil. 465). An agreement by a wholesale dealer to supply a retailer, which leaves it practically optional to increase or diminish his orders with the rise or fall of prices, held void for want of mutuality. Crane v. C. Crane & Co., 105 Fed. 869, 45 C. C. A. 96. See, also, Cold Blast Transp. Co. v. Bolt & Nut Co., 114 Fed. 77, 52 C. G. A. 25, 57 L. R. A. 696. 7 McCall Co. V. Icks, 107 Wis. 232, 83 N. W. 300. See, also. Burgess Sul- phite Fibre Co. v. Broomfield, 180 Mass. 283, 62 N. E. 367; Brawley v. U. S., 96 U. S. 168, 24 L. Ed. 622; Lobeustein v. U. S., 91 U. S. 324, 23 L. Ed. 410; Grant v. U. S., 7 Wall. 331, 19 L. Ed. 194. Where land was agreed to be sold, and the title was defective, by reason of a suit to set aside a will under which the vendor claimed, an agreement to postpone execution of the contract until determination of the suit was sustained on the ground that the vendee would be bound to accept the title if the will should be sustained. Hale V. Cravener, 128 111. 408, 21 N. E. 534. See ante, p. 45, note 132. §§ 71-73) FORBEARANCE TO EXERCISE A RIGHT. 121 contract where the promise to pay for the work to be done is made con- ditional upon the approval of the architect. Again, the promise may be conditional on something happening, as in case of promises in a charter party which are not to take effect if certain specified risks occur. In the one case the promise depends for its fulfillment upon a condition precedent; in the other it is liable to be defeated by a condition subsequent. In neither case does its conditional character prevent it from forming a sufficient consideration for promises given in return. These cases are for consideration in a subsequent chapter. SAMS— FORBEARANCE TO EXERCISE A RIGHT. 71. Forbearance or a promise to forbear from doing \irliat one is oth- ernrise entitled to do is a siifficient consideration. 72. Forbearance or a promise to forbear from doing -wrliat one cannot legally do is no consideration; but if a riglit is doubtful, so that there are reasonable grounds for trying to enforce it, for- bearance is a sufficient consideration. 73. COMPROMISE. "Where the forbearance is in the compromise of a disputed claim made or action brought in good faith (and on reasonable grounds),"^ forbearance to insist or sue on the claim, or further to prosecute the action, is a sufficient consideration without regard to the validity of the claim. Consideration may consist in a forbearance or promise to forbear from doing what one is otherwise entitled to do; as, for instance, where a person abstains from the use of liquor and tobacco, on another's promise to pay him money." The abandonment of any right, or a promise to forbear from exercising it, is a sufficient consideration for a promise.''^ The right may be legal or equitable, certain or doubtful; and it may exist against the promisor or against a third party.'' ^ A •As to the qualification introduced by the words in pai-entheses, post, p. 124. 71 Ante, pp. 113, 114. 72 Blake v. Peck, 11 Vt 483; Leverenz v. Haines, 32 111. 357; Woodburn v. AVoodburn, 123 111. 608, 14 N. E. 58, 16 N. E. 209; Calkins v. Chandler, 36 Mich. 320, 24 Am. Rep. 593; Marshalltown Stone Co. v. Manufacturing Co., 114 Iowa, 574, 87 N. W. 496; Waters v. White, 75 Conn. 88, 52 Atl. 401. Agree- ment between attachment creditors of a debtor. Mygatt v. Tarbell, 78 Wis. 351, 47 N. W. 618; Doan v. Dow, 8 Ind. App. 324, 35 N. E. 709; Brownell v. Harsh, 29 Ohio St. 631. Forbearance to contest will. Rector, etc., of St Mark's Church, v. Teed, 120 N. Y. 583, 24 N. E. 1014. The release by a per- son of a claim, in good faith, of a future contingent interest in certain land under the will of a deceased ancestor, is a sufficient consideration for a note given tlierefor, whether he in fact had any interest in the land or not. Brooks V. Wage, 85 Wis. 12, 54 N. W. 997. Release of mortgage. Norris v. Vos- burgh, 98 Mich. 426, 57 N. W. 264. 7 3 Release by wife of inchoate right of dower will support a promise by her husband's grantee to pay her money. Worley v. Sipe, 111 Ind. 238, 12 N. E. 122 CONSIDERATION. (Ch. 5 creditor, if he extends the time for payment of the debt, gives up a right, and so furnishes a consideration for an additional promise by the debtor,'^* or for the promise of a third party to guaranty or pay the debt.^° So, also, the discharge of a debtor from the debt,^° or from lawful imprisonment for the debt,^^ is a consideration for the promise of a third person to pay the debt ; and the surrender or can- cellation of a note or mortgage is a consideration for a new note or mortgage.'''^ It has been held that agreement to forbear is necessary, and that mere forbearance to sue, for instance, without any agreement to that effect, is not a sufficient consideration for the promise of another to pay the debt of the person liable, though the act of forbearance may have been induced by the promise; '^^ but upon principle it seems that actual forbearance upon request and in reUance upon the promise is sufficient.**" A common form in which a forbearance appears as the consideration for a promise is in the settlement or compromise of a disputed claim. Forbearance by a person to insist upon a demand, or to prosecute an action which he has commenced, is, subject to exceptions to be presently explained, a sufficient consideration.^^ 385. Release of inchoate right of homestead in public lands will support a promise. McCabe v. Caner, 68 Mich. 182, 35 N. W. 901. And see Paston Cattle Co. V. Bank, 21 Neb. 621, 33 N. W. 271, 59 Am. Rep. 852. 7 4 Lipsmeier v. Vehslage (C. C.) 29 Fed. 175; Martin v. Nixon, 92 Mo. 26, 4 S. W. 503; Van Gorder v. Bank (Pa.) 7 Atl. 144; Brown v. Bank, 115 Ind. 572, 18 N. E. 56; Lundberg v. Elevator Co., 42 Minn. 37, 43 N. W. 685; Sanders V. Smith (Miss.) 5 South. 514 ; Eraser v. Backus, 62 Mich. 540, 29 N. W. 92 ; Lodge V. Hulings, 63 N. J. Eq. 159, 51 Atl. 1015. 7 5 Calkins v. Chandler, 36 Mich. 320, 24 Am. Rep. 593; Bank of New Han- over V. Bridgers, 98 N. C. 67, 3 S. E. 826, 2 Am. St. Rep. 317; Meyers v. Hockenbury, 34 N. J. Law, 346. 7 6 Whitney v. Clary, 145 Mass. 156, 13 N. E. 393; Fulton v. Loughlin, 118 Ind. 286, 20 N. E. 796. 7 7 SMITH V. MONTEITH, 13 Mees. & W. 427. 7 8 Constant v. Universits^ 111 N. Y. 604, 19 N. E. 631, 2 L. R. A. 734, 7 Am. St. Rop. 769; Erie Co. Sav. Bank v. Coit, 104 N. Y. 532, 11 N. E. 54. 7 MANTER V. CHURCHILL, 127 Mass. 31. And see Mecoruey v, Stan- ley, 8 Cush. (Mass.) 85; Shadburne v. Daly, 76 Cal. 355, 18 Pac. 403. 80 CREARS v. HUNTER, 19 Q. B. Div. 341. And see STRONG v. SHEF- FIELD, 144 N. Y. 392, 39 N. E. 330; Waters v. White, 75 Conn. 88, 52 Atl. 401. 81 McKinloy v. Watkins, 13 111. 140; COOK v, WRIGHT, 1 Best & S. 559; CALLISIIER V. BISCHOFFSHEIM, L. R. 5 Q. B. 449; McClellan v. Ken- nedy, 8 Md. 247; LONGRIDGE v. DORVILLE, 5 Barn. & A. 117; Jones v. Rittenhouse, 87 Ind. 348; Fisher v. May's Heirs, 2 Bibb (Ky.) 448, 5 Am. Dec. 626; Hennessy v. Bacon, 137 U. S. 85, 11 Sup. Ct. 17, 34 L. Ed. 605; Sisson v. City of Baltimore, 51 IMd. 83; CROWTHER v. FARRER, 15 Q. B. 677; NASH V, ARMSTRONG, 10 C. B. (N. S.) 259; Ileffel finger v. Hummel, 90 Iowa, 311, 57 N. W. 872 ; McClure v. McClure, 100 Cal. 339, 34 Pac. 822. The suit need ^§ 71-73) FORBEARANCE TO EXERCISE A RIGHT. 123 Illustrations are furnished by cases in which one party makes a claim or demand on another, and the latter disputes it, whereupon they settle the dispute by a compromise, or by agreeing upon the amount due in an account stated. The promise to pay the amount settled upon is supported by a sufficient consideration, and may be enforced, though the promisor might be able to prove that nothing was in fact due from him.®^ A compromise will support a promise by a third party.^' Time of Forbearance. Questions have been raised as to the length of time over which a for- bearance to sue must extend in order to constitute a consideration. It has even been held that a promise of forbearance for an unspecified time was insufficient,** but it is now settled that a promise of forbear- ance need not be a promise of absolute forbearance, nor even of for- bearance for a definite time. V/here no time is mentioned, a reason- able time will be implied, or, at any rate, where there is a promise to forbear, and actual forbearance for a reasonable time, it is enough.®' Forbearance to do What One Cannot Legally do. It is no consideration for a promise for a man to forbear or to promise to forbear from doing what he is not legally entitled to do.*° This not be actually discontinued before suit on tlie promise. The agreement ends it. Pliillips V. Pullen, 50 N. J. Law, 439, 14 Atl. 222; Vau Campen v. Ford, 53 Hun, 636, 6 N. Y. Supp. 139; Rappanier v. Bannon (Md.) 8 Atl. 555. 82 Graudin v. Grandin, 49 N. J. Law, 508, 9 Atl. 756, 60 Am. Rep. 642; DUN- HAM V. GRISWOLD, 100 N. Y. 224, 3 N. E. 76; Korne v. Korne, 30 W. Va. 1, 3 S. E. 17; Neibles v. Railway Co., 37 Minn. 151, 33 N. W. 332; Honeymau v. Jarvis, 79 111. 318; Potts v. Polk Co., 80 Iowa, 401, 45 N. W. 775; Prout v. Fire Dist, 154 Mass. 450, 28 N. E. 679 ; Do vale v. Ackermann, 2 App. Div. 404, 37 N. Y. Supp. 959. And see post, p. 124. 8 3 Bane's Case (1611) 9 Coke, 93b. Withdrawal of a suit against a person, for instance, will support his father's note. Mascolo v. Montesanto, 61 Conn. 50, 23 Atl. 714, 29 Am. St Rep. 170. 84 Semple v. Pink, 1 Exch. 74. See Payne v. Wilson, 7 Barn. & C. 423. 86 OLDERSHAAV v. KING, 2 Hurl. & N. 399, 517; ALLIANCE BANK V. BROOil, 2 Drew. & S. 289; Howe v. Taggart 133 Mass. 284; Eltiug v. Van- derlyn, 4 Johns. (N. Y.) 237; Bowen v. Tipton, 04 Md. 275, 1 Atl. 861; Calkins V. Chandler, 36 Mich. 320, 24 Am. Rep. 593; Moore v. McKenney, 83 Me. 80, 21 Atl. 749, 23 Am. St. Rep. 753; Foard v. Grinter's Ex'rs (Ky.) 18 S. W. 1034; TRADERS' NAT. BANK v. PARKER, 130 N. Y. 415. 29 N. E. 1094; Citizens' Sar. Bank & Trust Co. v. Babbitts' Estate, 71 Vt. 182, 44 Atl. 71; McMicken V. Safford, 197 111. 540, 64 N. E. 540. But see Garuett v. Kirkman, 33 Miss. 389; Clark v. Russell, 3 Watts (Pa.) 213, 27 Am. Dec. 348. 8 6 In BARNARD V. SIMONS (1616) 1 Rolle, Abr. 26, Langd. Cas. Cent 194, it was said that "if A. makes a void assumpsit to B., and afterwards a stran- ger comes to B., and, in consideration that B. will relinquish the assumpsit made to him by A., he promises to pay him £10, this is not a good considera- tion to charge him, because the first assumpsit was void." See Palfrey v. Railroad Co., 4 Allen (Mass.) 55; Shuder v. Newby, 85 Tenn. 348, 3 S. W. 438; Clark V. Jones, 85 Ala. 127, 4 South. 771; Sharpe v. Rogers, 12 Minn, 174 124 CONSIDERATION. (Ch. 5 proposition would seem to be obvious, but questions have arisen in its application, and have given rise to some conflict in the decisions. Some applications of the principle are clear. A forbearance or promise to forbear, for instance, from claims under an illegal contract, such as a gambling contract, or a contract involving the commission of crime, can form no consideration for the promise of the other party, since the contract is void, and could not be enforced.^^ So, also, the release of a debtor from imprisonment was held to be no consideration for a promise where, by the previous release of a codebtor, the debt had been discharged, since the imprisonment was therefore unlawful.®* So a promise to pay rent, made solely to prevent an unlawful eviction, is without consideration.*^ As a general rule, it is safe to say that, in order that forbearance to exercise a right may constitute a consideration, the right must be at least doubtful. Forbearance to insist upon a claim that is clearly unenforceable, at least if it be known to the claimant to be such, cannot be a consideration. Compromises. In respect to compromises of disputed claims and actions, the author- ities are all agreed that the promisee must believe in his claim, or in his action ; and that forbearance to sue on a demand known to be unenforceable, or to proceed in an action knowingly brought without cause, is no consideration."" When we reach this point, the difficulty begins. In a leading English case it was said : "If he bona fide be- lieves he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to do so will constitute a good consideration. When such a person forbears to sue, he gives up what he believes to be a right of action, and the other party gets an advantage, and, instead of being annoyed with an action, he escapes from the vexations incident to it. * * * It would be another matter if a person made a (Gil. 103): Harris v. Cassady, 107 Ind. 15S, 8 N. E. 29; Ecker v. McAllister, 54 Md. .SG9; Schroeder v. Fink, 60 Md. 438; Long v. Towl, 42 Mo. 545, 97 Am. Dec. 355; Martin v. Black, 20 Ala. 309; Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521; Davisson v. Ford, 23 W. Va. 617; Eblin v. Miller's Ex'rs, 78 Ky. 371. Many of these cases, however, in conflict with what is perhaps the prevailing rule, maintain that forbearance to sue on an invalid claim, though honestly be- lieved in, is no consideration. Post, p. 125. 8 7 Everiugham v. Meighau, 55 Wis. 354, 13 N. W. 269. 88 HERRING V. DORELL, 8 Dowl. Pr. Cas. 604. 89 Smith V. Coker, 110 Ga. 654, 36 S. E. 107; TOLHURST v. POWERS, 133 N. Y. 460, 31 N. E. 320 [surrender of what promisee has no right to retain]. 90 WADE V. SIMEON, 2 C. B. 548; McKinley v. Watkins, 13 111. 140; Rood V. Joaies, 1 Doug. (Mich.) 188; McGlynn v. Scott, 4 N. D. 18, 58 N. W. 460; Phillips v. Pullen, 50 N. J. Law, 439, 14 Atl. 222; Von Brandenstein v. Ebens- bergor, 71 Tex. 267, 9 S. W. 153; Domars v. Manufacturing Co., 37 Minn. 418, 35 N. W. 1; Taylor v. Weeks, 129 Mich. 233, 88 N. W. 466. §^ 71-73) FOKBEAKANCE TO EXERCISE A RIGHT. 125 claim which he knew to be unfounded, and by a compromise derived an advantage under it; in that case his conduct would be fraudulent."®^ And in a later case it was said: "If there is in fact a serious claim honestly made, the abandonment of the claim is a good consideration. * * * Now, by 'honest claim,' I think is meant this : that a claim is honest if the claimant does not know that his claim is unsubstantial, or if he does not know facts, to his knowledge unknown to the other party, which show that his claim is a bad one." °^ These cases thus allow the whole question to depend on the good faith of the party for- bearing, without any regard whatever to the validity of his claim. Admitting that forbearance from what one is not legally entitled to do is no consideration, it may be said that one has a right to assert or litigate a claim in which he believes, and that forbearance from this right is a consideration. The English rule is supported by many of the American decisions,"^ although many of them insist that there must be reasonable ground for belief in the validity of the claim.* Some cases, however, appear to hold that forbearance to prosecute an invalid claim, though honestly believed in, is no consideration.** 81 CALLISHBR v. BISCHOFFSHEIM, L. R. 5 Q. B. 449. See, also, COOK V. WRIGHT, 1 B. & S. 5.59. 02 MILES V. NEW ZEALAND, ETC., CO., 32 Ch, D. 266, per Cotton, L. J. 93 Crans v. Hunter, 28 N. Y. 389; Zoebisch v. Von Minden, 120 N. Y. 406, 24 N. E. 795; Grandin v. Grandin, 49 N. J. Law, 9 Atl. 756, 60 Am. Rep. 642; Rue V Meirs, 48 N J. Eq. 377, 12 Atl. 369; BELLOWS v. SOWLES, 55 Vt. 391, 45 Am. Rep. 291; Hewett v. Currier, 63 Wis. 386, 23 N. W. 884; Appeal of Gormley, 130 Pa. 467, 18 Atl. 727; Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254; Dl lorio v. Ui Brasio, 21 R. I. 208, 42 Atl. 1114; Hanchett V. Ives, 171 111. 122, 49 N. B. 206; Rowe v. Barnes, 101 Iowa, 302, 70 N. W. 197; GALUSH^. v. SHERMAN, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417. *MumoHand v. Bartlett, 74 111. 58; Bates v. Sandy, 27 111. App. 552; United States Mortgage Co. v. Henderson, 111 Ind. 24, 12 N. E. 88; Russell v. Wright, 98 Ala. 652, 13 South. 594; FINK v. SMITH, 170 Pa. 124, 32 Atl. 566, 50 Am. St. Rep. 750. • ♦♦Palfrey v. Railroad Co., 4 Allen, 55; Schroeder v. Fink, 60 Md. 43G; Emmittsburg R. v. Donoghue, 67 Md. 383, 10 Atl. 233, 1 Am. St. Rep. 396; Davisson v. Ford, 23 W. Va. 613; CLINE v. TEMPLETON, 78 Ky. 550; GUN- NINGS V. ROYAL, 59 Miss. 45, 42 Am. Rep. 350; Price v. Bank, 62 Kan. 743, 64 Pac. 639. i26 ^ CONSIDERATION. (Ck & ^^ SAME— DOING WHAT OT^J IS BOUND TO DO. 74. IN GENERAL. Doing or promising what one is already legally bound to do is, as a rule, no consideration. Such, previous obli- gation may arise (a) By virtue of a prior contract, or (b) By latv, independently of contract. 75. ADDITIONAL COMPENSATION. In some jurisdictions, a prom- ise to perform, or performance of, an existing contract, is held to be consideration for a promise by the other party to pay ad- ditional compensation; and in some jurisdictions such promise to perform or performance is held to be consideration for a promise by a third person to pay additional compensation. 76. Under the general rule, payment of part of a debt is no considera- tion for a discharge of the debt. Another form of unreality of consideration is where the alleged con- sideration is a promise to do, or actually doing, what a person is already bound to do. The promisor gets no more in return for his promise than the promisee was already bound to give, and therefore receives no consideration.^* Such prior obligation may arise (i) from a pre- vious contract, or (2) from law, independently of contract. 94 Conover v. Stillwell, 34 N. J. Law, 54; Jennings v. Chase. J.0 Allen (Mass.; 526; WAKREN V. HODGE, 121 Mass. 106; SCHULER v. MYTON, 48 Kan. '282. 29 Pac. 163; Holmes v. Boyd, 90 Ind. 332; Keffer v, Grayson, 76 Va. 517, 44 Am. Rep. 171; Harris v. Cassaday, 107 Ind. 158, 8 N. E. 29; Stuber v. Schack, S3 111. 191; Pboeuis Ins. Co. v. Rink, 110 111. 538; Harriman v. Harri- man, 12 Gray (Mass.) 341; Tucker v. Bartle, 85 Mo. 114; Eblin v. Miller's Ex'rs, 78 Ky. 371; Sberwin v. Brigliam, 39 Ohio St. 137; Watts v. Frenche, 19 N. J. Eq. 407; Bush v. Rawlins, 89 Ga. 117, 14 S. E. 886; Jenness v. Lane, 26 Me. 475; Wendover v. Baker, 121 Mo. 273, 25 S. W. 918; ABEND v. SMITH, 151 N. Y. 502, 45 N. E. 872; Allen v. Plasmeyere (Neb.) 90 N. W. 1125; Bar- ringer V. Ryder, 119 Iowa. 121, 93 N. W. 56; Westcott v. Mitchell, 95 Me. 377, 50 Atl. 21. On this principle, a promise by a creditor after maturity of the debt, to extend the time of payment, is not binding unless some collateral consideration is rciceived. Hoffman v. Coombs, 9 Gill (Md.) 284; TuiTibull v. Brock, 31 Ohio St. 649; Pfeiffer v. Campbell, 111 N. Y. 631, 19 N. E. 498; Holmes v. Boyd, 90 Ind. 332; Ives v. Bosley, 35 Md. 262, 6 Am. Rep. 411; Helms V. Crane, 4 Tex. Civ. App. 89, 23 S. W. 392; Skinner v. Mining Co. (C. C.) 96 Fed. 735. A promise to extend in consideration of a promise to pay the debt with interest at the same rate is without consideration. Kellogg v. Olmstead, 25 N. Y. 189; Olmstead v. Latimer, 158 N. Y. 313, 53 N. E. 5, 43 L. R. A. 685; Wilson v. Powers, 130 Mass. 127; Holmes v. Boyd, 90 Ind. 332; Price V. Mitchell, 23 Wash. 742, 63 Pac. 514. It has been held, however, that a promise to extend is supported by a promise to pay interest at the same, or even a less rate, for a certain time,, since the debtor foregoes his right to pay before that time. Fawcett v.: Freshwater, 31 Ohio St 637; Fowler v. Brooks, 13 N. H. 240; Simpson v. ' Evans, 44 Minn. 419, 46 N. W. 908. See, also, Moore y. Redding, 69 :,ILs3. 841, 13 South. 819. §§ 74-76) DOING WHAT ONE IS BOUND TO DO. 127 Where, for instance, a seaman deserted a vessel, and the captain promised the rest of the crew extra pay if they would work the vessel home, the promise was held to be without consideration, because the seamen had, before sailing, agreed to do all they could under all the emergencies of the voyage, and the desertion by some of the seamen was an emergency. Here the seamen promised no more than their contract bound them to do.^^ Where a public officer is required by law to make an arrest, a promise by an individual to pay him for doing so is without consideration ; ^^ and so it is with a promise to pay a public officer or a witness extra compensation for performing services for which his fees are fixed by law.®^ In these cases the officer or wit- ness does no more than he is required by law to do, and therefore gives no consideration. Of course, it is otherwise with agreements to pay officers for doing something beyond the scope of their official duties.^* The doctrine also applies to a promise to do or doing what one may be compelled to do in equity.^ ^ It will be seen from the cases mentioned that the actual performance of that which a man is legally bound to do stands on the same footing as his promise to do what he is legally com- pellable to do. The rule above stated would seem to be an obvious result of the doctrine of consideration, but some of its applications have met with severe criticism, and there is much direct conflict in the decisions on the subject. Mutual Discharge and Substituted Agreement — Additional Compen- sation. In the case of a contract which is wholly executory, — that is, a con- tract in which there is something to be done on both sides, — it can, as we shall see in treating of discharge of contract, be discharged by 8B STILI<: V. MEYraCK, 2 Camp. 317. See, also. Harris v. Carter, 3 El. & Bl. 559; BARTLETT v. WYMAN, 14 Johns. (N. Y.) 260; VANDERBILT v. 'SCHREYER, 91 N. Y. 392. It would have been different if risks had arisen which were not contemplated by the contract. For instance, such a contract as in the case cited contains an implied warranty that the ship shall be sea- worthy. So, where a seaman had signed articles of agreement to navigate a vessel, and the vessel proved unseaworthy, a promise of exti'a pay to induce him to abide by his contract was held binding. Turner v. Owen, 3 Fost. & F. 177. 8 8 SMITH V. WHILDIN, 10 Pa. 39, 49 Am. Dec. 572; Hogan v. Stophlet, 179 111. 150, 53 N. E. 604, 44 L. R. A. 809. See post, p. 283. 8 7 See Lucas v. Allen, 80 Ky. GSl; Hatch v. Mann, 15 Wend. (N. T.) 45. Since a witness, however, cannot be compelled to attend in another state, a party's promise of extra compensation to induce him to attend is binding. Armstrong v. Prentice. 86 Wis. 210, 56 N. W. 742. 88 ENGLAND V. DAVIDSON, 11 Adol. & E. 856; McCandless v. Steel Co., 152 Pa. 139, 25 Atl. 579; Studley v. Ballard, 169 Mass. 295, 47 N. E. 1000, 61 Am. St. Rep. 286. «8 Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224. 128 " CONSIDERATION. (Cb. 5 mutual consent. The acquittance of each from the other's claims in such a case is the consideration of each to waive his own.^°° If parties can so discharge the contract, it follows that they may substitute a new contract in its place. Suppose, however, that one of the parties to a contract refuses to perform, because he finds that he must suffer a loss by performance; and suppose the other party wishes perform- ance, and requires it to prevent serious loss. Would a promise, made by him in order to induce the other to perform, of more than he was liable to pay or do under the original contract, be binding, or would it be void, on the ground that the only consideration for it is the promise by the other to perform the original contract, — a thing which he was already bound to do? The courts differ in their answers to this question. Some of them hold that the promise is without consid- eration and void.^°^ This, on principle, would seem to be the proper doctrine, but many courts hold outright that, even where there is nothing more than refusal on the part of one party to perform, a new agreement, in which the other, to induce him not to break, but to go on with, his contract, promises to pay him a larger sum than originally promised, at least if it is in substitution of the original contract, is binding.^" ^ Some of the courts base their decision on the ground that a person who has entered into a contract is entitled to choose between going on with it at a loss and the risk of an action by the other party for the breach. This might be a sound doctrine if a contract were, according to Mr. Justice O. W. Holmes, Jr.'s, conception of it, the mere taking of a risk ; that is, if a party must be held to contemplate, when he gives a promise, not its performance, but the payment of damages for its breach, or 100 Post, p. 420. 101 VANDEEBILT T. SCHREYER, 91 N. Y. 392; Reynolds V. Nugent, 25 Ind. 328; Erb v. Brown, 69 Pa. 216; AYRES v. RAILWAY CO., 52 Iowa, 478, 3 N. W. 522; McCarthy v. Association, 61 Iowa, 287, 16 N. W. 114; Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; KEITH v. MILES, 39 Miss. 442, 77 Am. Dec. 685; Gaar, Scott & Co. v. Green, 6 N. D. 48, 68 N. W. 318; Jones v. Ris- ley, 91 Tex. 1, 32 S. W. 1027; Main St. & A. P. R. Co. v. Traction Co., 129 Cal.' 301, 61 Pac. 937; Westcott v. Mitchell, 95 Me. 377, 50 Atl. 21; Alaska Pack- ers' Ass'n V. Domeuico, 117 Fed. 99, 54 C. C. A. 485. See, also, King v. Rail- way Co., 61 Minn. 482, 63 N. "W. 1105, which holds that the promise in such case is without consideration, unless the refusal was induced by substantial and unforeseen difficulties, which would cast upon the party additional bur- dens not anticipated when the contract was made. 102 MUNROE V. PERKINS, 9 Pick. (Mass.) 298, 20 Am. Dec. 475; ROLLINS V. MARSH, 128 Mass. 116; Osborne v. O'Reilly, 42 N. J. Eq. 467, 9 Atl. 209; Moore v. Detroit Loc. Works, 14 Mich. 206; GOEBEL v. LINN, 47 Mich. 489, 11 N. W. 284, 41 Am. Rep. 723; COYNER v. LYNDB, 10 Ind. 282; Cooke v. Murphy, 70 111. 96; Connelly v. Devoe, 37 Conn. 570; Lawrence v. Davey, 28 Vt. 264; LATTIMORE v. HARSEN, 14 Johns. (N. Y.) 330; Foley v. Storrie, 4 Tex. Civ. App. 377, 23 S. W. 442. §§ 74r-76) DOING WHAT ONE IS BOUND TO DO. 129 performance, at his option, according as the one or the other may see the more to his interest in the Hght of future developments. Such, however, does not seem the proper conception of contract. Certainly, as a rule, when a man makes a contract, he does so with the intention of performing it, and with the expectation of performance by the other party. It cannot be that a contract is nothing more than a mere gambling transaction, — a mere bet on its performance. To allow a man who has promised, on a sufficient consideration, to repudiate his promise when he finds that he is to suffer loss, and force the other party to pay an additional sum in order to obtain what he is already entitled to, encourages breacli of contract and breach of faith. As we shall presently see, a different rule than that stated at the beginning of this paragraph applies where the contract is wholly exe- cuted on one side. Promise to Third Person to Perform Existing Contract. In England and Massachusetts it has been held that if a man is bound by a contract to do a particular thing, and, while it is doubtful whether he will do it, a third person promises to pay him if he will do it, his performance will constitute a sufficient consideration for the third party's promise. ^''^ It is difficult, if not impossible, to reconcile such a case with the general rule which we have stated, or to find any reason for such an exception. In this country the contrary has been generally held.io* Part Payment in Satisfaction of Debt. Under the rule we have been discussing, the simple payment of a smaller sum in satisfaction of a larger is not a good discharge of a debt, for it is doing no more than the debtor is already bound to do, and is therefore no consideration for the creditor's promise to forego the residue.^"" If, for instance, a person owes another $i,ooo, the 103 Shadwell v. Shadwell, 9 C. B. (N. S.) 159; Scotson v. Pegg, 6 Hurl. & N. 295; ABBOTT v. DOANE, 1G3 Mass. 433, 40 N. E. 197, 34 L. R. A. 33, 47 Am. St. Rep. 465; Cf. Grant v. Railway Co., 61 Minn. 395, 63 N. W. 1026. See 12 Harv. L. R. 520, 104 JOHNSON'S ADM'R V. SELLERS' ADM'R, 33 Ala. 265; Putnam v. Woodbury, 68 Me. 58; L'Amoreux v. Gould, 7 N. Y. 349, 57 Am. Dec. 524; Peelman v. Peelman, 4 Ind. 612; MERRICK v. GIDDINGS, 1 Mackey (D. C.) 394; Davenport v. Society, 33 Wis. 387; Gordon v. Gordon, 56 N. H. 170; Hanks v. Barron, 95 Tenn. 275, 32 S. W. 195; Havana Press Drill Co. v. Ashurst, 148 111. 115, 35 N. E. 873. See, also, Brownlee v. Lowe, 117 Ind. 420, 20 N. E. 301. 105 Pinnel's Case, 5 Coke, 117a; Cumber v. Wane, 1 Strange, 42G, 1 Smith, Lead. Cas. 439; JAFFRAY v. DAVIS. 124 N. Y. l&l, 26 N. E. 351, 11 L. R. A. 710 (collecting cases); Harriman v. Harriman, 12 Gray (Mass.) 341; Bailey v. Day, 26 Me. 88; Goodwin v. Follett. 25 Vt. 386; Barron v. Vandvert, 13 Ala. 2.32; Hayes v. Insurance Co., 125 111. 626, 18 N. E. 322, 1 L. R. A. 303; Harri- son V. Close, 2 Johns. (N. Y.) 448, 3 Am. Dec. 444 ; BENDER v. BEEN, 78 Iowa, Clark Cont. (2d Ed.) — 9 130 CONSIDERATION. (Ch. 5 payment of which may be demanded at once, a promise by the creditor to take $500 in full, and its payment, will not prevent his afterwards recovering the other $500. This rule has been much criticised,^"' but is well established,^"^ although in some states it is subject to exceptions, real or apparent. ^°^ Thus it has been held that since a person may, if he choose, make a gift to another which when accepted will be irrevocable, a creditor may, on receiving part of the debt, forgive the debtor the residue, and that a receipt in full may be evidence of such forgiveness.^"® In some states the rule has been changed by statute so that acceptance of a less sum in satisfaction of a debt is a discharge.^^" Since a contract under seal requires no consideration, a creditor, on receiving part payment of his debt, may release the residue by an instru- ment under seal.^^^ 283, 43 N. W. 216, 5 L. R. A. 649; Leeson v. Anderson, 99 Mich. 247, 58 N. W. 72, 41 Am. St. Rep. 597; Bryan v. Foy, 69 N. C. 45; Carlton v. Railroad Co., 81 Ga. 531, 7 S. E. 623; Liening v. Gould, 13 Cal. 598; Watts v. Frenche, 19 N. J. Eq. 407; Beaver v. Fulp, 136 Ind. 595, 36 N. E. 418; Lankton v. Stewart, 27 Minn. 346, 7 N. W. 360; Willis v. Gammill, 67 Mo. 730; St. Louis, F., S. & W. R. Co. V. Davis, 35 Kan. 464, 11 Pac. 421; Reynolds v. Reynolds, 55 Ark. 369, 18 S. W. 377; Emmittsburg R. Co. v. Donoghue, 67 Md. 383, 10 Atl. 233, 1 Am. St. Rep. 396; Tyler v. Association, 145 Mass. 134, 13 N. E. 360; Mcintosh v. Johnson, 51 Neb. 33, 70 N. W. 522. And see cases cited in note 94, supra. For the same reason, a promise to take less than the sum due is also with- out consideration. McKenzie v. Culbreth, 66 N. C. 534; FOAKES v. BEER, L. R, 9 App. Cas. 605; Rose v. Daniels, 8 R. I. 381; Smith v. Phillips, 77 Va. 548; Bryan v. Brazil, 52 Iowa, 350, 3 N. W. 117; Hart v. Stiong, 183 111. 349, 55 N. E. 629. Nor is part payment any consideration for an agreement to extend the time for payment of the residue. Holliday v. Poole, 77 Ga. 159; Liening v. Gould, 13 Cal. 598; Barron v. Vandvert, 13 Ala. 232; Turnbull v. Brock, 31 Ohio St. 649. And see post, p. 491. 106 See Two Theories of Consideration by Prof. James Barr Ames, 12 Harv. L. R. 515, 525; Chicago, M. & St. P. Ry. v. Clark, 178 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099. 107 The contrary has been held in Mississippi. CLAYTON v. CLARK, 74 Miss. 499, 21 South. 565, 37 L. R. A. 771, 00 Am. St. Rep. 521. 108 One or two cases make an exception where the debtor Is insolvent. Sholton V. Jackson, 20 Tex. Civ. App. 443, 49 S. W. 415; Rice v. Mortgage Co., 70 Minn. 77, 72 N. W. 826 (believed to be insolvent). 100 McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. 458, 8 L. R. A. 257, 17 Am. St Rep. 638; Green v. Langdon, 28 Mich. 121; Tyler Cotton Press Ca V. Chevalier, 56 Ga. 494. See, also, Lamprey v. Lamprey, 29 Minn. 151, 12 N. W. 514. A receipt "in full of all demands," given because the other party refused to pay more without it, held binding. FLYNN v. HURLOCK, 194 Pa. 462, 45 Atl. 312. 110 Tlddy v. Harris, 101 N. C. 589, 8 S. E. 227; Jones v. Wilson, 104 N. C. 9, 10 S. E. 79. 111 Bender v. Sampson, 11 Mass. 42; Willing v. Peters, 12 Serg. & R. (Pa.) 177; Ingersoll v. Martin, 58 Md. 07, 42 Am. Rep. 322; Spitze v. Railroad Co., 75 Md. 102, 23 Atl. 307, 32 Am. St. Rep. 378. 74-76) DOING WHAT ONE IS BOUND TO DO, CC-/ ; ; 131 Same — Consideration for Release of Residue. The rule that part payment of a debt does not discharge the debtor does not apply where the creditor, in addition to the part payment, receives something else which the law regards of value, or, in other words, where, in the thing done or given, he receives something differ- ent in kind from that which he is entitled to demand; "'^ and if the difference is real, so that something of value is superadded to the part payment, the fact that the difference or the value superadded is slight will make no difference, for, as we have seen, the courts will not deter- mine the adequacy of the consideration. If a man sells and becomes bound to deliver to another two particular horses, delivering one of them will not sustain a promise by the buyer not to require delivery of the other; but it would be otherwise if the buyer agreed to receive some other particular horse or cow in discharge of the contract, though it might be of comparatively little value. A money debt may be dis- charged by the giving of a negotiable instrument for a less sum than due, or, as said in an old English case, "the gift of a horse, hawk, or robe, etc., in satisfaction, is good ; for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than money, in respect of some circumstance, or otherwise the plaintiff would not have accepted of it in satisfaction." ^^^ If the debtor gives, and the creditor receives, in full satisfaction of the debt, the note of a third person for a smaller sum than the amount of the debt, there is a sufficient consideration for his promise to forego the residue ; ^^* and so it is where the smaller sum agreed to be taken is guarantied, or a note therefor is indorsed, by a third person; ^^"^ or where the smaller sum is paid before the debt is due, or at a different place than required by the contract; ^^® or where a note secured by a mortgage is given for the smaller sum.^^' 112 JAFFRAY V. DAVIS, 124 N. Y. 16i, 26 N. E. 351, 11 U R. A. 710; Day V. Gardner, 42 N. J. Eq. 199, 7 Atl. 365; Stacy v. Cook, G2 Kan. 50, 61 Pac. 399. lis Pinnel's Case, 5 Coke, 117a. And see Hasted v. Dodge (Iowa) 35 N. W. 462. 114 Brooks V. White, 2 Mete. (Mass.) 283, 37 Am. Dec. 95; Kellogg v. Rich- ards, 14 Wend. (N. Y.) 116; Sanders v. Bank, 13 Ala. 353; Hardesty v. Gra- ham (Ky.) 3 S. W. 909. Check of third person. Guild v. Butler, 127 Mass. 386. 115 Steinman v. Magnus, 11 Eiast, 390; Singleton v. Thomas, 73 Ala. 205; .Tenness v. Lane, 26 Me. 475; Maddux v. Bevan, 39 Md., at page 499; Boyd V. Hitchcock, 20 .Johns. (N. Y.) 7G, 11 Am. Dec. 247: Varney v. Conery, 77 Me. 527, 1 Atl. 683; Mason v. Campbell, 27 Minn. 54, 6 N. W. 405. 118 Pinnel's Case, 5 Coke, 117a; Brooks v. White, 2 Mete. (Mass.) 283, 37 Am. Dec. 95; Harper v. Graham, 20 Ohio, 105; SCHWEIDER v. LANG, 29 Minn. 254. 13 N. W. 33, 43 Am. Rep. 202; McKenzie v. Culbreth, 66 N. C. 534; Jones V. Perldns, 29 Miss. 139, 64 Am. Dec. 136; Reid v. Hibbard, 6 Wis. 175; Chicora Fertilizer Co. v. Dunan, 91 Md. 144, 46 Atl. 347, 50 L. R. A. 401. Cf, Saunders v. Whitcomb, 177 Mass. 457, 59 N. E. 192. 117 JAFFRAY V. DAVIS, 124 N. Y. 164, 26 N. E. 351, 11 L. R. A. 710; Post V. Bank, 137 111. 559, 28 N. E. 978. 132 CONSIDERATION. (Oil. 5 Same— Unliquidated Claim. The rule that payment of less than the amount claimed is no con- sideration for a discharge applies only when the sum due is definite and certain. The payment of less than the amount claimed, if the sum due is unliquidated, is a good consideration for the releaee.^^^ This proceeds upon the ground that the parties have agreed to settle an unliquidated claim, or, in other words, have agreed on an accord and satisfaction of such claim.^^" Same — Compromise. We have already seen, in treating of forbearance as a consideration, that where a demand is made and disputed, or a suit is brought, the parties may enter into a compromise, and that the party upon whom the demand is made or against whom the suit is brought will be bound thereby. The consideration for his promise is the forbearance of the other party to insist on his original demand, or to further prosecute his action.^^" In such a case the creditor or plaintiff is also bound by the compromise. The settlement of the dispute and definite promise by the debtor is a consideration for his promise to forego any further claim. He cannot disregard the compromise on the ground that the debtor promised only what he was already bound to do,^^^ ^Ju^'^^'r (TJ Same — Accord and oatisiaction. Whether The sum due is certain or uncertain, the consideration for the promise to forego the residue of the debt must be executed. It is not enough that the parties are agreed. Their agreement must be carried out if it is to be an answer to the original cause of action. Where it has been carried out, it is an accord and satisfaction. Where it has not been carried out it is an accord executory. As said in an 118 WILKINSON V. BYERS, 1 Adol. & E. lOG ; Baird v. U. S.. 9G U. S. 430, 24 L. Ed. 703; Goss v. Ellison, 13G Mass. 503; Potter v. Douglass, 44 Conn. 541; Riley v. Kershaw, 52 Mo. 224; Ogborn v. Hoffman, 52 lud. 439; Fuller V. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Sanford v. Abrams, 24 Fla. 181, 2 South. 373; Berdell v. Bissell, 6 Colo. 162; Stearns v. Johnson, 17 Minn. 142 (Gil. IIG); TANNER V. MERRILL, 108 Mich. 58. 65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687; NASSOIY v. TOMLINSON, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Ostrander v. Scott, 161 111. 339, 43 N. E. 1089; Chicago, xM. & St. P. Ry. v. Clark, 178 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099. But see Huff v. Logan (Ky.) 60 S. W. 483. 110 Tompkins v. Hill, 145 Mass. 379, 14 N. E. 177. Post, p. 491. 120 Ante, p. 121. 121 Truax v. Miller, 48 Minn. 62, 50 N. W. 935; Sisson v. City of Balti- more, 51 :Md. 83; Ogborn v. Hoffman, 52 Ind. 439; McCall v. Nave, 52 Miss. 494; Union Pac. R. Co. v. Anderson, 11 Colo. 293, 18 Pac. 24; Perkins v. Hoadley, 49 Mo. App. 556; Gates v. Steele, 58 Conn. 316, 20 Atl. 474, 18 Am. St. Rep. 268; Battle v. McArthur, 49 Fed. 715; Northern Liberty Market Co. V. Kelly, 113 U. S. 199, 5 Sup. Ct. 422, 28 L. Ed. 948; Slade v. Elevator Co., 39 Neb. COO, 58 N. W. 191; Town of Brandon v. Jackson, 74 Vt. 78, 52 Atl. 114; Dunbar v. Dunbar, 180 Mass. 170, 62 N. E. 248, 94 Am. St. Rep. 623. §§ 74-76) DOING WHAT ONE IS BOUND TO DO. 133 old case: "Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another, which might go on to any extent." ^^^ This is a subject, however, which relates to the discharge of contract.^ ^^ Same — Composition with Creditors. A composition with creditors, whereby each creditor agrees to receive a certain proportion of the sum due him, seems, at first thought, to be an infraction of the rule that part payment of a debt is no discharge unless there is some consideration in addition to the part payment for the promise to forego the residue. The promise of the debtor to pay, or payment by him, of a portion of the debt, is not the consideration for the promises of the creditors to forego the •balance.^''* The con- sideration must be and is something more than this. In a leading English case Parke, J., said : "Here each creditor entered into a new agreement with the defendant [the debtor], the consider- ation of which, to the creditor, was the forbearance by all the other creditors who were parties, to insist upon their claims." ^^^ The view that the promise of each creditor is sustained by the consideration moving from the others has been frequently approved.^^® It has, how- ever, met with criticism on the ground that the debtor, being a stranger to the consideration, cannot enforce such a contract. ^^^ Sir William Anson finds consideration moving from the debtor in his procurement of the promise by the other creditors to forbear.^''* On one ground or another such agreements are universally sustained.^^* . O T — ' 122 LYNN V. BRUCE, 2 H. Bl. 319. 123 Post, p. 491. 124 Fitch v. Sutton, 5 East, 230. 125 GOOD V. CHEESMAN, 2 Barn. & Adol. 335. 126 WILLIAMS V. CARRINGTON, 1 Hilt. (N. Y.) 515; PERKINS v. LOCK- WOOD, 100 Mass. 249, 1 Am. Rep. 103; Brown v. Farnham, 48 Minn. 317, 51 N. W. 377. See, also. White v. Kuntz, 107 N. Y. 518, 14 N. E. 423, 1 Am. St. Rep. 886. 127 See Huffcutt, ADSon, Cont. 108, note 1; Harriman, Cont. § 126. 128 Anson, Cont. (8th Ed.) 90. 129 Fellows V. Stevens, 24 Wend. 294; Murray v. Snow, 37 Iowa, 410; Cheveront v. Textor, 53 Md. 295, 307; Falconbury v. Kendall, 76 Ind. 200; Robert v. Barnmn, 80 Ky. 28; Pierce v. Jones, 8 Rich. (S. C.) 273, 28 Am. Rep. 288; Paddleford v. Thacher, 48 Vt. 574; Boyd v. Hind, 1 Hurl. & N. 938; SLATER v. JONES, L. R. 8 Exch. 193; Stewart v. Langston, 103 Ga. 290. 30 S. E. 35. V / . t \ ^^/iTv^ 134 CONSIDERATION. (Ch. 5 SAME— IMPOSSIBHilTY AND VAGUENESS. 77. IMPOSSIBLE PROMISE. A promise to do somethiiLg wHioIi is eitlier impossible in law, or physically impossible, is no con- sideration. The thing must be impossible ou its face; not mere- ly improbable, or impossible to the promisor. 78. VAGUE PROMISE. A promise which is so vague and indefinite as to be incapable of enforcement is no consideration. Impossible Promise. The courts will also hold a consideration unreal, and therefore no consideration at all, where it is impossible upon its face. As will presently be seen, practical impossibility, unknown to the parties when they entered into their contract, may avoid it on the ground of mis- take; ^^° or impossibility of performance, arising subsequent to the making of the contract, may, under some circumstances, operate as a discharge; ^^^ but we are here concerned with promises to do a thing so obviously impossible that the promise can form no real consideration. The consideration may be either (i) impossible in law, or (2) phys- ically impossible. Where, for instance, a debtor made a promise to the servant of his creditor in consideration of a promise by the servant to release him from the debt, it was held that there was no consider- ation for the debtor's promise, as the servant had no power to release the debt.^^^ So, also, an undertaking that another's land shall sell for a given sum on a' certain day has been held insufficient to support a promise, on the ground that a person cannot compel the sale of an- other's property. ^^^ In these cases the consideration is impossible in law. A promise to go from New York to London in a day would be physically impossible, and could form no consideration for a promise given in r^turn.^^* Impossibility, as used in this connection, does not mean anything more than a prima facie legal impossibility or physical impossibility "according to the state of knowledge of the day." ^^^ In the first case of legal impossibility mentioned above, the promisor might procure 180 Post, p. 201. 181 Post, p. 472. 132 Harvey v. Gibbons, 2 Lev. 161, And see Ward v, Hollins, 14 Md, 158; Pierce v. Pierce, 17 Ind. App. 107, 46 N. E. 480. 188 STEVENS V. COON, 1 Pin. (Wis.) 356. 134 See James v, Morgan, 1 Lev. Ill; ThornDorow v. Wbiteacre, 2 Ld. Raym. 1164; Bennett v. Morse, 6 Colo. App. 122, 39 Pac. 582. A covenant by an ap- plicant for life insurance that he will not die by his own hand while in- sane docs not create a contract which will defeat recovery on the policy where the insm-cd takes his life while insane, since the covenant was one im- possible to observe, and known to be so by both parties. Kelley v. Insurance Co. (C. C.) 109 Fed. 50. 18 8 Per Brett, J„ CLIFFORD v. WATTS, L, R, 5 C. P. 577, 588. §§ 77-78) IMPOSSIBILITY AND VAGUENESS. 135 the release of the debt; and, in the second case, he might procure the owner of the land to sell it by the time specified. There is, however, a prima facie impossibility, and this is enough. So it may be that, in the future, means may be discovered by which one may be able to travel from New York to London in a day ; but, according to the present state of knowledge, it is physically impossible. It was said in a New York case that if the promise be "within the range of possibility, how- ever absurd or improbable the idea of the execution of it may be, it will be upheld ; as where one covenants it shall rain to-morrow, or that the pope shall be at Westminster on a certain day. To bring the case within the rule of dispensation, it must appear that the thing to be done cannot by any means be accomplished ; for if it is only improbable, or out of the power of the obligor, it is not in law deemed impossible." ^^® Vague Promise. Again, a consideration may be unreal because it is so vague in its terms as to be practically incapable of enforcement. In such case it may be classed with impossible considerations. Where, for instance, in an action on a note given by a son to his father the son pleaded a promise made by his father to discharge him from liability on the note in consideration of his ceasing to make certain complaints, which he had been in the habit of making, to the effect that he had not enjoyed as many advantages as the other children, it was said that the son's promise was no more than a promise "not to bore his father," and it was held too vague to constitute a consideration for the father's prom- ise. "A man," said the court, "might complain that another person used the highway more than he ought to do, and that other might say, 'Do not complain, and I will give you £^.' It is ridiculous to suppose that such promises could be binding."^^''^ We have already sufficiently discussed the question of vagueness and uncertainty in agreements.^'^ i3«BEEBE V. JOHNSON, 19 Wend. 500, 32 Am. Dec. 518, citing 3 Com. Dig. 93; 1 Rolle, Abr. 419. And see Watson v. Blossom (Sup.) 4 N. Y. Supp. 489; CLIFFORD v. WATTS, L. R. 5 C. P. 588; The Harriman v. Emericii, 9 Wall. 161, 19 L. Ed. 629. 187 WHITE V. BLUETT, 23 Law J. Exch. 36, 2 Com. Law Rep. 301. And see Ballou v. March, 133 Pa. 64, 19 Atl. 304. 18 8 Ante, p. 43. 136 CONSIDERATION. (Ch. 5 LEGAXITY OF CONSIDERATION. 79. Tlie consideration, to support a promise, must be legal; and there- fore a proxuise to do or doing \7h.at is illegal is no cousidera- tion.ie* It is well to state this rule here, as indicating- a necessary element in consideration. It will be treated when we come to consider, as an element in the formation of contract, the legality of the objects for which the parties to a contract enter into it. CONSIDERATION IN RESPECT OF TIME— PAST CONSIDERATION. 80. A consideration may be executory or executed, but it cannot be past, except^ EXCEPTIONS i4 0_(a) 'Wliere the past consideration was given at the request of the promisor, (b) Where the promise is to pay for something voluntarily done by the promisee, \7hich the promisor was legally bound to do. (o) "Where a person, by a neur promise, revives an agreement by which he has benefited, but ^rhich is not void, but voidable or unenforceable against him, by reason of a rule of law, meant for his advantage, ivhich he xuay waive. Executory Consideration. The consideration for a promise is executory when it is a promise given in return to do something in the future. In regard to this, there is nothing to be added to what has already been said with regard to the nature of consideration in general. We have seen that a promise on one side is a good consideration for a promise on the other. Executed Consideration. A contract arises upon an executed consideration when one of the parties has either in the act which amounts to a proposal or to an ac- ceptance, as the case may be, done all that he is bound to do under the contract, leaving an outstanding liability on the other side only. The two forms of consideration thus suggested have been described as (i) acceptance of an executed consideration, and (2) consideration executed upon request.^ *^ They arise when the proposal is an offer of an act i«» BISHOP V. PALMER, 146 Mass. 469, 16 N. E. 299, 4 Am. St Rep. 339; Hatch V. Mann, 15 Wend. (N. Y.) 45; Hartley v. Rice, 10 East, 22. See post, p. 254 et seq. 140 The first two exceptions are doubtful, post pp. 138, 139. 1*1 Leake, Cont. 23. § 80) CONSIDERATION IN RESPECT OF TIME. 137 for a promise, and the act is accepted ; or where it is an offer of a prom- ise for an act, and the act is done. In the first case a man offers his labor or goods under such circum- stances that he obviously expects to be paid for them, and the contract arises when the labor or goods are accepted, the acceptor becoming bound to pay a reasonable price for them.^*^ The consideration ex- ecuted upon request, or the contract which arises on the acceptance by act of the offer of a promise, is best illustrated by the case of an ad- vertisement of a reward for services, which makes a binding promise to give the reward when the service is rendered. Under these circum- stances, it is not the offeror, but the acceptor, who has done his part in becoming a party to the contract.^*^ This form of consideration will support an implied as well as an express promise where a man is asked to perform certain services which will entail certain liabilities and expenses. Thus, where a person is employed to deal with prop- ert}' for a certain purpose, and, in the course of the employment, he is compelled to pay duties to the government, he may recover the amount from his employer on an implied promise to repay.^** Past Consideration. Strictly, it is a misnomer to speak of a past "consideration," for it is in fact no consideration at all. A past consideration, so called, is some act or forbearance in time past by which a man has benefited without thereby incurring any legal liability. If, afterwards, whether from good feeling or interested motives it matters not, he makes a promise to the person by whom he has been so benefited, and thai promise is made upon no other consideration than the past benefit, the promise is gratuitous, and cannot be enforced.^*" Thus, where a per- son who had previously sold a vicious horse without any warranty, either express or implied, afterwards promised that it was sound and ii'2 Ante, p. 15 ; Hoadley v. McLalne, 10 Bing. 4S2; Hart v. Mills, 15 Mees. & W. 87. 148 Ante, pp. 15, 38; ENGLAND v. DAVIDSON, 11 Adol. & El. 856. 144 "Whether the request be direct, as where the party is expressly desired by the defendant to pay, or indirect, where he is placed by him under a lia- bility to pay, and does pay, makes no differenca" BRITTAIN v. LLOYD, 14 Mees. & W. 762. 145 Anson, Cont (8th Ed.) 95; HUNT v. BATE (1568) Dyer, 272; Bulkley v. Landon, 2 Conn. 404; BARTHOLOMEW v. JACKSON, 20 Johns. (N. Y.) 28, 11 Am. Dec. 237; Chaffee v. Thomas, 7 Cow. (N. Y.) 358; Greene v. First Parish in Maiden, 10 Pick. (Mass.) 500; Williams v. Hathaway, 19 Pick. (Mass.) 387; Wilson v. Edmonds, 24 N. H. 517; Marsh v. Chown, 104 Iowa, 556, 73 N. W. 1046; Stoneburner v. Motley, 95 Va. 784, 30 S. E. 364. Some of the earlier cases sustained, and many late cases seem to sustain, prom- ises on a past consideration on the ground of moral obligation. BARNES v. HEDLEY, 2 Taunt 184; LEE v. MUGGERIDGE, 5 Taunt 36. See ante, p. 108 ; post p. 142. \Li^^ 138 I CONSIDERATION. (Ch. 5 free from vice, it was held that the promise was not binding for want of consideration.^*® So, also, it has repeatedly been held that services rendered in the past, but not at the express or implied request of the person benefited by them, will not support a promise by him to pay for them.^*^ In a Michigan case in which liquor had been sold in vio- lation of a statute, which was afterwards repealed, the court held that, as the contract was void, a promise by the buyer to pay, made after the statute was repealed, in consideration of the sale and of an exten- sion of the time for payment originally agreed upon, was without con- sideration.^*^ So, where the balance of a debt has been voluntarily and effectually released on payment of a part of it, a subsequent prom- ise by the debtor to pay the part released cannot be enforced.^*® Exceptions to the Rule as to Past Consideration. (i) It is generally declared a past consideration will support a subse- quent promise if the consideration was given at the request of the promisor. In Lampleigh v. Brathwait the plaintiff sued for money which the defendant had promised to pay him for services rendered previous to the promise, at the defendant's request, but without any promise at the time of the request and of the rendition of the services. The court agreed "that. a mere voluntary courtesy will not have con- sideration to uphold an assumpsit. But, if that courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind ; for the promise, though it follows, yet it is not naked, but couples it- self with the suit before, and the merits of the party procured by that suit." ^°° On principle, it would seem that, unless the services were 146 ROSCORLA V. THOMAS, 3 Q. B. 234. 147 MILLS V. WYMAN, 3 Pick. (Mass.) 207: BARTHOLOMEW v. JACK- SON, 20 Johns. (N. Y.) 28; DEARBORN v. BOWMAN, 3 Mete. (Mass.) 155; Allen V. Bryson, 67 Iowa, 591, 25 N. W. 820, 56 Am. Rep. 358; Osier v. Hobbs, 33 Ark. 215; Ellicott v. Turner, 4 Md. 476. 148 Ludlow V. Hardy, 38 Mich. 690. 149 Hale V. Rice, 124 Mass. 299; Mason v. Campbell. 27 Minn. 54, 6 N. W. 405; Montgomery v. Lampton, 3 Mete. (Ky.) 519; SHEPARD v. RHODES, 7 R. I. 470, 84 Am. Dec. 573; Stafford v. Bacon, 1 Hill (N. Y.) 532, 37 Am. Dec. 366. But see Willing v. Peters, 12 Serg. & R. (Pa.) 177. 150 LAMPLEIGH v. BRAITHWAIT (A. D. 1615) Hob. 105, 1 Smith, Lead. Gas. 67. And see SIJDENHAM v. WORLINGTON (1585) 2 Leon. 224; MARSH V. RAINSFORD (1588) 2 Leon. Ill; RIGGS v. BULLINGHAM (1590) Cro. Eliz. 715; BOSDEN v. SIR JOHN THENNE (1603) Yelr. 40; FIELD v. DALE, 1 Rolle, Abr. 11; Boothe v. Fitzpatrick, 36 Vt 681; Chaffee v. Thomas, 7 Cow. (N. Y.) 358; DEARBORN v. BOWMAN, 3 Mete. (Mass.) 155; Comstock V. Smith, 7 Johns. (N. Y.) 87; Allen v. Woodward, 22 N. H. 544; Goldsby v. Robertson, 1 Blackf. (Ind.) 247; Carson v. Clark, 2 111. 113, 25 Am. Dec. 79; Lonsdale v. Brown, 4 Wash. C. C. 148, Fed. Gas. No. 8,494; Wilson v. Ed- monds, 24 N. H. 517. The previous request may be inferred from the bene- ficial character of the services, or other consideration, and the other circum- stances. HICKS V. BURHANS, 10 Johns. (N. Y.) 243; Oatfield v. Waring, 14 Johns. (N. Y.) 188; Wilson v. Edmonds, 24 N. H. 517. The rule laid down in § 80) CONSIDERATION IN RESPECT OF TIME. 139 rendered under such circumstances that the law would imply a promise to pay what they were worth, a subsequent promise would be without effect, and that in that case the only effect of the subsequent promise would be as evidence of the value of the services.^ °^ In many of the cases, indeed, in which the exception was recognized the subsequent promise was coextensive with that which would have been implied by law. And in view of the repudiation of the doctrine of past considera- tion, the exception is discredited by modern text-writers.^'*^ Lamp- leigh v. Brathwait has, however, been followed in several recent cases in this country.^ ^^ Some cases even go so far as to say that even though the past con- sideration was rendered without request, yet, if it moved directly from the promisee to the promisor, and inured directly to the promisor's benefit, the subsequent promise is binding; ^^* but these cases are doubt- ful, unless they can be sustained on the ground that the ratification of an unauthorized act is equivalent to a request.^ '^^ It has been held that if the past consideration, though rendered at the request of the other party, was intended by both parties to be gratuitous, the subse- quent promise to pay therefor is not supported by a consideration.^^' (2) There is another exception, or possible exception, to the rule in cases where one person has voluntarily done what another person was legally bound to do, and the latter afterwards promises to pay him therefor. The English cases usually cited in support of this rule all turned upon the liability of parish authorities for medical attendance upon paupers who were settl'ed in one parish, but resident in another. It was held in all the cases that a suit could be maintained for services rendered against the parish legally bound to render them, which had, after their rendition, promised to pay for them. Some of the cases seem to base the decision on the ground that the moral obligation rest- LAMPLEIGH v. BRAITHWAIT was literally adhered to in Ireland in a com- paratively late case. BRADFORD v. ROUI^STON, 8 Ir. C. L. 468. "The mod- ern authorities which speak of services rendered upon request as supporting a promise must be confined, to cases where the request implies an under- taking to pay." Per Holmes, C. J., in Moore v. Elmer, ISO Mass. 15, 61 N. E. 259. i8i See Kennedy v. Brown, 18 C. B. N. S. 677, per Earle, C. J. 162 Anson, Cont. (8th Ed.) 98-100; Pollock, Cont (3d Ed.) 187; Hamman, Cont. § 139. 153 Pool V. Horner, 64 Md. 131, 20 Atl. 1036; Stuht v. Sweesy, 48 Neb. 767, €7 N. W. 748; Sllverthorn v. Wylie, 96 Wis. 69, 71 N. W. 107; Montgomei-y v. Downey, 116 Iowa, 632, 88 N. W. 810. See, also, Daily v. Minninck, 117 Iowa, 563, 91 N. W. 913, 00 D. R. A. S40. 164 Boo the v. Fitzpatrick, 36 Vt 681; Seymour v. Town of Marlboro, 40 Vt 171; Doty v. Wilson, 14 Johns. (N. Y.) 378. 156 Post, p. 140, note 101. 156 Allen V. Bryson, 67 Iowa, 591, 25 N. W. 820, 56 Am. Rep. 358; Osier v. Hobbs, 33 Ark. 215. 140 CONSIDERATION. (Oil. 5 ing on the parish was sufficient to support its promise ; ^''^ but, as we have seen, moral obligations cannot form a consideration. ^^^ Other cases seem to go on the ground that there was a legal obligation rest- ing on the parish of residence to do that which the parish of settlement might legally have been compelled to do, and that a quasi contractual relation thus arose between the parties ; or that there was knowledge on the part of the defendant parish of acts from which a contract might be implied, independent of the subsequent promise.^"® There is, to say the least, much doubt in regard to this exception.^*" In a Massa- chusetts case, however, in which the plaintifT had, without a prior re- quest, paid money which the defendant was legally bound to pay, the court held that a subsequent promise by the defendant to reimburse him was "equivalent to a previous request," on "the well-established principle that the subsequent ratification of an act done by a voluntary agent of another, without authority from him, is equivalent to a pre- vious authority." *'* (3) The third exception, or apparent exception, to the rule that a past consideration will not support a promise is a substantial and im- portant one, and one about which there is no doubt. It is found in those cases in which a person has been held capable of reviving an agreement by which he has benefited, but which, by reason of some rule of law meant for his advantage, which he may waive, is not en- forceable against him. The principle upon which these cases rest is "that, where the consideration was originally beneficial to the party promising, yet, if he be protected from liabiUty by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law, and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it." ^^^ Thus a new promise made by a bankrupt or insolvent who has been discharged from debts by a certificate of bankruptcy, or by insolvency proceedings, to pay a debt, has been upheld without fur- ther consideration.^*^ So a promise by a person, after becoming of iBT WATSON V. TURNER, Bull. N. P. 147; ATKINS v. BANWELL, 2 East, 505; Wing v. Mill, 1 Barn. & Aid. 105. 108 Ante, p. 108; MILLS v. WYMAN, 3 Pick. (Mass.) 207. 150 Paynter v. Williams, 1 Cromp. & M. 810. 160 Anson, Cont. (Stb Ed.) 100-102. lei GLEASON v. DYKE, 22 Pick. 390. And see Doty v. Wilson, 14 Jolins. (N. Y.) 382. 162 Parke, B., in Earle v. Oliver, 2 Exch. 71; SHEPARD v. RHODES, 7 R. I. 470, 84 Am. Dec. 569; Turlington v. Slaughter, 54 Ala. 195; Lonsdale v. Brown, 4 Wash. C. C. 86, Fed. Cas. No. 8,493. Promise hy the owner of a building to pay for materials furnished by a contractor -who has failed to comply with the mechanic's lien law. Morse v. Crate, 43 111. App. 513. 163 TRUEMAN V. FENTON, Cowp. 544; DUSEXBERRY v. HOYT, 53 N. Y. 521, 13 Am. Rep. 543; WAY v. SPERRY, G Cush. (Mass.) 238, 52 Am. Dec. § 80) CONSIDERATION IN RESPECT OF TIME. 141 age, to pay debts contracted during infancy, and which could not be enforced, is binding on hini.^®'' Some courts have held that a promise by a woman during widowhood or after divorce, to fulfill promises made during coverture, is binding; ^°° but most courts hold that as a married woman's contract, unlike an infant's, is void, and not merely voidable, her new promise after the death of her husband, or after a divorce has been obtained, is without consideration.^'' So, also, a debt barred by the statute of limitations may be revived by a new promise to pay it, and the new promise may be implied from a mere acknowledg- ment of the debt.^'^ And an indorser on a note, who has been dis- charged from liability from want of notice of nonpayment, may waive his discharge. ^'^ It has even been held, where bills, void for usury, 779; SHIPPEY v. HENDERSON, 14 Johns. (N. Y.) 178, 7 Am. Dec. 458; Yates' Adm'rs V. Hollingsworth, 5 Har. & J. (Md.) 216; Katz v. Moessinger, 110 111. 372; Shaw v. Burney, 86 N. C. 331, 41 Am. Rep. 461; Wisllzenus v. O'Fallon, 91 Mo. 184, 3 S. W. 837; WolCfe v. Eberlein, 74 Ala. 99, 49 Am. Rep. 809; Carey v. Hess, 112 Ind. 398, 14 N. B. 235; Knapp v. Hoyt, 57 Iowa, 591, 10 N. W. 925, 42 Am. Rep. 59; Grlel v. Solomon, 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Hobough v. Mm-phy, 114 Pa. 358, 7 Atl. 139; Mm-phy v. Crawford, 114 Pa. 496, 7 Atl. 142, Craig v. Seitz, 63 Mich. 727, 30 N. W. 347; Succession of Audrieu., 44 La. Ann. 103, 10 South. 388; Christie v. Bridgman, 51 N. J. Eq. 331, 25 Atl. 939; Higgins v. Dale, 28 Minn. 126, 9 N. W. 583. But not if debt is voluntarily released. Stafford v. Bacon, 1 Hill (N. Y.) 532, 37 Am. Dec. 366. See ante, p. 137. Promise by third person to pay discharged debt. Webster v. Le Compte, 74 Md. 249, 22 Atl. 232. 184 Williams v. Moor, 11 Mees. & W. 263; Tibbetts v. Gerrish, 25 N. H. 41, 57 Am. Dec. 307; Bliss v. Perryman, 1 Scam. (111.) 484; Reed v. Batchelder, 1 Metv:. CMass.) 559, Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Heady v. Bo- den, 4 Ind. Apf). 475. 30 N. E. 1119; EDMOND'S CASE (1586) 3 Leon. 164. 1G5 LEE V. MUGGERIDGE, 5 Taunt. 36 (this was on the ground of moral obligation); Browu v. Bennett, 75 Pa. 420; Sharpless' Appeal, 140 Pa. 63, 21 Atl. 239: GOULDING v. DAVIDSON, 26 N. Y. 604. 161 HAYWARD V. BARKER, 52 Vt. 429, 36 Am. Rep. 762; Porterfleld v. Butler, 47 Miss. 165, 12 Am. Rep. 329; MEYER v. HOWARTH, 8 Adol. & El. 467; Waters v. Bean. 15 Ga. 358; Putnam v. Tennyson, 50 Ind. 456; Musick V. Dodson, 7e Mo. 624, 43 Am. Rep. 780; KENT v. RAND, 64 N. H. 45, 5 Atl. 760; Valentine v. Bell, 66 Vt. 280, 29 Atl.' 251; Wilcox v. Arnold, 116 N. C. 70S, 21 S. E. 434; Thompson v. Hudgins, 116 Ala. 93, 22 South. 632; Hollo- way's Assignee v. Rudy (Ky.) 60 S. W. 650. A promise by a married woman, having a separate estate, to pay for necessaries furnished her on the credit of such estate, is a sufficient consideration for a new promise after the death of her husband. Sherwin v. Sanders, 59 Vt. 499, 9 Atl. 239, 59 Am. Rep. 750. 167 ILSLEY V. JEWETT, 3 Mete. (Mass.) 439; Keener v. Cnill, 19 111. 189; Walker v. Henry, 36 W. Va. 100, 14 S. E. 440; Little v. Blunt, 9 Pick. (Mass.) 488; Pittman v. Elder, 76 Ga. 371; Pierce v. Wimberly, 78 Tex. 187, 14 S. W. 454; Hall v. Bryan, 50 Md. 194; Perkins v. Cheney, 114 Mich. 567, 72 N. W. 595, 68 Am. St. Rep. 495. But a deceased person's debt which is barred will not support his widow's promise to pay it. SULLIVAN v. SULLIVAN, 99 Cal. 187, 33 Pac. 862. 168 Ross v. Hurd, 71 N. Y. 14, 27 Am. Rep. 1; Glidden v. Cliamberlin, 167 Mass. 486, 46 N. E. 103, 57 Am. St. Rep. 479. 142 CONSIDERATION. (Ch. 5- were renewed after the usury laws had been repealed, the consideration for the renewal being the past loan, that the new bills were valid. ^°® There is undoubtedly in all of these cases a moral obligation to ful- fill the unenforceable promise, and many of the decisions, both old and modern, base the validity of the new promise on the ground of the moral obligation, thereby making this class of cases an exception to the rule that a moral obligation cannot support a promise.^^° If the ef- fect of these cases is to make such an exception, it is unfortunate, to say the least, for there is much dicta to the effect that a moral obliga- tion can never support a promise.^'^^ It would seem much better to base the validity of such promises, not on the moral obligation, but on the prior agreement, supported by a valuable consideration, and the right of the promisor to waive the technical rules of law, meant for his benefit, and which render it unenforceable. 169 PLIGHT V. REED, 1 Hurl. & C. 703; Hammond v. Hopping, 13 Wend. (N. Y.) 505. See BARNES v. HEDLEY, 2 Taunt. 1S4. But see Ludlow v. Hardy, 38 Mich. 690; ante, p. 109; and dissenting opinion of Martin, B., in FLIGHT V. REED, supra. i70EDMOND'S CASE (1586). 8 Leon. 164; Wislizenus v. O'Fallon, 91 Mo. 184, 3 S. W. 837; Turlington t. Slaughter, 54 Ala. 195; Musick v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; Carey v. Hess, 112 Ind. 398. 14 N. E. 235; Ho- bough V. Murphy, 114 Pa, 358, 7 Atl. 139; Murphy v. Crawford, 114 Pa. 496, 7 Atl. 142; Craig v. Seitz, 63 Mich. 727, 30 N. W. 347; Succession of Audrieu, 44 La. Ann. 108, 10 South. 388. See post, p. 300. 171 MHjLS v. WYMAN, 3 Pick. (Mass.) 207. And see ante, p. 108 et seq., and cases cited. uA^ §^ 81-83) CAPACITY OF PARTIES. 143 CHAPTER VI. CAPACITY OF PARTIES. 81. In General. 82-S3. Political Status— States and United States. 84. ForeigTi States and Sovereigns. 85-88. Aliens. 89. Convicts. 90. Professional Status. 91-94. Infants — In General. 95-97. Liability for Necessaries. 98. Ratification and Avoidance. 99-101. ' Who may Avoid Contract 102-104. Time of Avoidance. 105-107. What Amounts to Ratification. 108. What Amounts to Disaffirmance. 109. Extent of Ratification or Disaffirmance. 110-111. Return of Consideration. 112-114. Effect of Ratification and Disaffirmance. 115-116. Torts in Connection with Contracts. 117. Insane Persons — In General. 118-121. Ratification and Avoidance. 122-123. Drunken Persons. 124. Married Women. 125-128. Corporations. Thus far we have been dealing with the contract itself, and those elements in its fonnation which are essential to give it even a prima facie validity. Communication by offer and acceptance, and form or consideration, or, in some cases, both form and consideration, are neces- sary to every agreement that is to be considered by courts of law ; but this is not all. When we have constructed an apparently binding con- tract, it is necessary, before we can pronounce finally upon its validity, to look to the parties to it, and ask who made it, under what circum- stances, and with what object. In other words, we have to inquire whether the parties were capable of contracting, whether their apparent consent was genuine, and whether their object was legal. ^ In this chapter we shall consider the question of the capacity of the parties. IN GENERAL. 81. Incapacity to contract may arise from the folloTiring: causes t (a) Political status. In this connection xve xirill consider contracts by (1) The United States or state governments; (2) Foreign sovereig^is or states, and their representatives; (3) Aliens; (4) Convicts. 1 See Anson, Cont. (4th Ed.) 102. 144 CAPACITY OF PARTIES. (Ch. 6 (b) Professional status, as in tlie case of professional contracts by (1) Attorneys; (2) Physicians; and (3) In some jurisdictions, other professional persons. (c) Youth, as in the case of infants. (d) Permanent or temporary mental aberration, as in the case of (1) Idiocy; (2) Insanity; (3) Drunkenness. (e) Merger of capacity, as in case of married Tromen. (f) Artificiality of construction, as in the case of corporations. POLITICAIi STATUS— STATES AND UNITED STATES. 82. The United States and the states may enter into contracts through their authorized agents, but only in furtherance of the objects of government, and subject to the limitations of the constitu- tion. 33. They may sue on their contracts, but cannot be sued unless they submit thereto. This, however, they have very generally done by statutory or constitutional provisions. The power of the United States government and the government of a state to enter into contracts in furtherance of objects for which the government was established, and not prohibited by constitutional limitations, is an incident to the general right of sovereignty. The question arose in the supreme court of the United States in a case in which it was held that a voluntary bond, taken by authority of the proper officers of the treasury department intrusted with the disburse- ment of public moneys to secure the fidelity in official duties of a re- ceiver or disbursing agent, was a binding contract between him and his sureties and the United States, though the bond was not pre- scribed by any positive law. "Upon full consideration of this sub- ject," said the court, "we are of opinion that the United States have such capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty; and, the United States being a body politic, may, within the sphere of the political powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the proper exercise of those powers. * * * fo adopt a different principle would be to deny the ordinary rights of sovereignty, not merely to the general government, but even to the state governments within the proper sphere of their own powers, un- less brought into operation by express legislation. A doctrine to such an extent is not known to this court as ever having been sanctioned §§ 81-83) STATES AND UNITED STATES. 145 by any judicial tribunal." " The same doctrine applies to contracts by the state government.^ A contract, however, to bind the government, must be made by its authorized agent, and parties dealing with its agent must see at their peril that the agent has actual authority.* Where the government enters into a contract, whether a negotiable instrument or otherwise, which it has authority to make, it is bound in any court to whose jurisdiction it submits by the same principles that govern individuals in their relation to such contracts.* At common law the sovereign cannot be sued without his consent, and this doctrine prevents suits against a state or against the United States, in the absence of permission by virtue of some statutory or constitutional provision.'' There are,, however, in most of the states, provisions allowing suit in some form by individuals against the state ; ^ and the United States may be proceeded against in the court of claims,® and in some cases in the other federal courts.* A state or the United States has the same right as an individual to maintain an action on a contract made with it,^" and it is the proper party to maintain such an actios?. 2 U. S. V. Tingey, 5 Pet. 115, 8 L. Ed. 66 And see U. S. v. Lane, 3 McLean, 365, Fed. Cas. No. 15,559. 3 Danolds v. State, 89 N. Y. 37, 42 Am. Rep. 277. * The Floyd Acceptances, 7 Wall. 666, 3 L. Ed. 64; "Whiteside v. United States, 93 U. S. 247, 23 L. Ed. 8S2. See Tiffany, Ag. 201. 5 The Floyd Acceptances, supra; Danolds v. State, supra; Patten v. Gil- mer, 42 Ala. 548, 94 Am Dec. 665; U. S. v. Ingate (C. C.) 48 Fed. 251. 6 U. S. V. Clarke, 8 Pel. 436, 8 L. Ed. 1001; Troy & G. R. Co. v. Com., 127 Mass. 43; Ottawa Co. v. Aplin, 69 Mich. 1, 36 N. W. 702; President, etc., of Michigan State Bank v. Hammond, 1 Doug. (Mich.) 527; Same v. Hastings, 1 Doug. (Mich.) 225, 41 Am. Dec. 549; Pattison v. Shaw, 6 Ind. 377; liOwry v. Thompson, 25 S. C. 410, 1 S. E. 141; People v. Talmage, 6 Cal. 257; Taylor V. Hall, 71 Tex. 206, 9 S. W. 148; Galbes v. Girard (C. C.) 46 Fed. 500; Fer- ris V. Land Co., 94 Ala. 557. 10 South. 607, 33 Am. St. Rep. 146. An action against a state or United States officer, which is in effect against the state or the United States, is within the rule. Ottawa Co. v. Aplin, 69 Mich. 1, 36 N. W. 702; Taylor v. Hall, 71 Tex. 206, 9 S. W. 148; Aplin v. Board, 73 Mich. 182, 41 N. W. 223; Mills Pub. Co. v. Larrabee, 78 Iowa, 97, 42 N. W. 593; State V. Temple, 134 U. S. 22, 10 Sup. Ct. 509, 33 L. Ed. 849; Brown University V. Rhode Island College (C. C.) 56 Fed. 55. 7 Wesson v. Com., 144 Mass. 60, 10 N. E. 762; Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610; Hoagland v. State (Cal.) 22 Pac. 142; Board of Edu- cation of Granville Co. v. State Board, 106 N. C. 81, 10 S. E. 1002. 8 Nicholl V. U. S., 7 Wall. 122, 19 L. Ed. 125; Finn v. U. S., 123 U. S. 227, 8 Sup. Ct. 82, 31 L. Ed. 128; United States v. Gumming, 130 U. S. 152, 9 Sup. Ct. 583, 32 L. Ed. 1029. 9 Torrey v. U. S. (C. C.) 42 Fed. 207; Bowe v. U. S., Id. 761. 10 State V. Grant, 10 Minn. 39 (Gil. 22); State v. Burkeholder, 30 W. Va. 593, 5 S. E. 439; People v. City of St. Louis, 5 Gilman (111.) 351, 48 Am. Dec. Clark Cont. (2d Ed.)— 10 146 CAPACITY OF TARTiES. (Ch. 6 SAME— FOREIGN STATES AND SOVEREIGNS. 84. Foreign sovereigns and states and their representatives may make contracts and sne thereon in onr courts, but th.ey cannot be sued unless they submit. Foreign states and sovereigns and their representatives, and the offi- cials and household of their representatives, are not subject to the jurisdiction of our courts unless they submit to it^^ A contract, there- fore, entered into with such persons, cannot be enforced against them unless they so clioose, but it may be enforced by them.^* SAME— ALIENS. 85. An alien, not an alien enemy, has in most jurisdictions the same power to contract that a subject has, and may in like manner sue and be sued on his contracts. In some jurisdictions he cannot acquire or hold land. 86. ALIEN ENEMIES— An alien enemy cannot, as a rule, without leave of the government, make any contract Yirith a subject, or enforce any existing contract, during the continuance of hostilities. 87. He may be sued on existing contracts, and in such a case he may defend. 88. Pre-existing contracts are not dissolved by the war unless they are of a continuing nature. An alien is said to be a person born out of the jurisdiction of the United States, subject to some foreign government, who has not been naturalized under their constitution and laws,^^ but under our statutes this is not strictly true. It is not within the scope of this work to go fully into this question. The statutes and decisions must be consult- ed.^* The right of aHens to take, hold, and dispose of property, real 339; Spencer v. Brockway, 1 Ohio, 259, 13 Am. Dec. 615; United States v. Holmes (C. C.) 105 Fed. 41. 11 Taylor v. Best, 14 O. B. 487. 18 See King of Prussia v. Kuepper's Adm'r, 22 Mo. 550, 66 Am. Dec. 639; Bish. Cont § 998. 13 2 Kent, Comra. 50; Dawson v. Godfrey, 4 Cranch, 321, 2 L. Ed. G34; Alns- lie V. Martin, 9 Mass. 456; 1 Am. & Eng. Enc. Law. 457, note 1. 14 As to who are aliens, see State v. Boyd, 31 Neh. 682. 48 N. W. 739, 51 N. W. 602; Boyd v. Nebraska, 143 U. S. 135, 12 Sup. Ct. 375, 36 L. Ed. 103; State V. Andriano, 92 Mo. 70, 4 S. W. 263; Charles Green's Son v. Salas (C. C.) 31 Fed. 106; Ware v. Wisner (C. C.) 50 Fed. 310; City of Minneapolis T. Reum, 6 C. C. A. 31. 56 Fed. 576; Comitis v. Parkerson, 56 Fed. 556, 22 L. R. A. 148; minor cliildren of naturalized foreigners, State y. Andriano, 92 §.§ 86-88) ALIENS. 147 or personal, is generally regulated by the states. In some states the constitution expressly prohibits the legislature from depriving resident foreigners of any of the rights enjoyed by native-born citizens with respect to the acquisition, possession, enjoyment, and transmission of property.^ ° In some states, where there is no such constitutional pro- vision, aliens are prohibited from acquiring and holding real property, while in others nonresidents are not given such right, while residents are ; but in many states aliens, whether resident or not, have the same rights in this respect as native-born subjects.^® In most, if not in all, the states they have the power to make and enforce contracts in re- spect to personal property, and such contracts may be enforced against them.^'' The rule does not apply to alien enemies. Alien Enemies. ^^ An alien enemy is one who is the subject or citizen of some hostile state or power. War suspends all commercial intercourse between the belligerent countries, except so far as may be allowed by the sovereign authority, and all contracts which tend to increase the resources of the enemy or involve commercial dealing between the two countries are prohibited.^® Nor can an alien enemy enforce any existing contract ^° during the continuance of hostilities. These rules were applied to con- Mo. 70, 4 S. W. 263; Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704; State V. Boyd, 31 Neb. 682, 48 N. W. 739, 51 N. W. 602. Alien Avoman marrying a citizen becomes a citizen. Ware t. Wisner (C. C.) 50 Fed. 310. Minor children of foreign parents, whose mother, after the death of the father, marries a citizen, become citizens. Kreitz v. Behrensmeyer, 125 111. 141, 17 N. E. 232. Children born abroad of American citizens ai'e citizens. Ware v. Wisner (C.^ C.) 50 Fed. 310. 16 See State v. Smith, 70 Cal. 153, 12 Pac. 121; Nicrosi y. Phillipi. 91 Ala.. 299, 8 South. 561. 16 See Milliken v. Barrow (C. C.) 55 Fed. 148; Manuel v. WulfC, 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532; McCreery v. Allender, 4 Har. & McH. (Md.) 409; Zundel v. Gess, 73 Tex. 144, 9 S. W. 879; Wunderle v. Wuuderle, 144- 111. 40, 32 N. E. 195, 19 L. R. A. 84; Furenes v. Mickleson, 86 Iowa, 508, 53. N. W. 416; Bennett v. Hibbert, 88 Iowa, 154, 55 N. W. 93. 17 Taylor v. Carpenter, 3 Story, 458, Fed. Cas. No. 13,784; Franco-Texan Land Co. v. Chaptive (Tex. Sup.) 3 S. W. 31. 18 Post, p. 290. 18 Kershaw v. Kelsey, 100 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142; UNITED STATES v. GROSSMAYER, 9 Wall. 72, 19 L. Ed. 627; New York Life Ins. Co. v. Davis, 95 U. S. 425, 24 L. Ed. 453; Williams v. Paine, 169 U. S. 55, 18 Sup. Ct, 279, 42 L. Ed. 658; O'Mealey v. Wilson, 1 Camp. 482; Phillips V. Hatch, 1 Dill. 571, Fed. Cas. No. 11,094; Hill v. Baker, 32 Iowa, 302, 7 Am. Rep. 193; Masterson v, Howard, 18 Wall. 99, 19 L. Ed. 953; Muttial Ben. Life Ins. Co. V. Hillyard, 37 N. J. Law, 444, 18 Am. Rep. 741; Wright v, Graham, 4 W. Va 430; Habricht v. Alexander, 1 Woods, 413, Fed. Cas. No. 5,880; De Jarnette v. De Giverville, 56 Mo. 440. 2 Brooke v. Filer, 35 Ind. 402; Blackwell v. Willard, 65 N. C. 55.^ 6 Am. Rep. 749; Semmes v. Insurance Co., 36 Conn. 543, Fed. Cas. No. 12,651. 148 CAPACITY OF PARTIES. (Ch. G tracts between the respective citizens of the Northern and Southern states during the Civil War.'^* Though an alien enemy cannot sue on contracts during the continuance of hostilities, he may be sued, and in such case he may defend. ^^ Same — Pre-existing Contracts, Whether a pre-existing contract is dissolved or not by the war de- pends upon whether it is essentially antagonistic to the laws governing a state of war. If it is of a continuing nature, as in the case of a part- nership, or of an executory character merely, and in the performance of its essential features would violate such laws, it would be dissolved ; but, if not, and rights have become vested under it, the contract will either be qualified, or its performance suspended, according to its na- ture, so as to strip it of its objectionable features, and save such rights. The tendency of adjudication is to preserve, and not to destroy, con- tracts existing before the war.*' SAME— CONVICTS. ^ ^ 89. In this country a convict can in most jurisdictions, nnless pro- hibited by statute, make contracts, and sue and be sued thereon. At common law a person who has been convicted of treason or felony could not, during the continuance of his conviction, make a valid con- tract; nor could he enforce contracts made previous to conviction. With us this rule is not recognized to any extent, and a convict under- going a sentence of imprisonment, or even awaiting execution of a sentence of death, may, in the absence of statutory restrictions, enter into contracts, and sue or be sued thereon.** In some states, how- ever, there are statutes declaring that a sentence of imprisonment in the penitentiary shall suspend all civil rights, and in these states a con- tract by a convict while under sentence is void.*" This, however, does not render him civilly dead, unless the statute so provides, as it does 21 See cases in preceding notes. 2 2 Dorsey v. Tliompson, 37 Md. 25; McYoish v. U. S., 11 Wall. 259, 20 L. Ed. SO; Mixer v. Sibley, 53 111. 61; McNair v. Toler, 21 Minn. 175. See Clarke V. Morey, 10 Johns. (N. Y.) 69. 2 3 Mntual Ben. Life Ins. Co. v. Hillyard, 37 N. J. Law, 444, 18 Am. Rep. 741; GriSTVold v. Waddington, 15 .Johns. (N. Y.) 57; Semmes v. City Fire Ins. Co., 36 Conn. 543, Fed. Cas. No. 12,651; Bank of New Orleans v. Matthews, 49 N. Y. 12; Cohen v. Insurance Co.. 50 N. Y. 610, 10 Am. Rep. 522; Washington University v. Finch, 18 Wall. 106, 21 L. Ed. 818; Whelan v. Cook, 29 Md. 1; Dorsey v. Kyle, 30 Md. 512, 96 Am. Dec. 617; Same v. Thompson, 37 Md. 25. 24 Platner v. Sher^'ood, 6 Johns. Ch. (N. Y.) 118; Willingham v. King, 23 Fla. 478, 2 South. 851; In re Estate of Nerac, 35 Cal. 392, 95 Am. Dec 111. And see Dade Coal Co. v. ITaslott, 83 Ga. 549, 10 S. E. 435. 26 Williams v. Shackelford, 97 Mo. 322, 11 S. W. 222. c - §§ 90-94) INFANTS. 149 generally where the sentence is for life; nor prevent his creditor froin suing him, for, though his civil rights are suspended, the rights ot creditors are not suspended.^' PROFESSIONAIi STATUS. 90. In England a barrister cannot sue upon a contract for compensa- tion for his services, but this disability does not exist in the United States. In England, a barrister cannot sue for fees due him for services ren- dered in the ordinary course of his professional duties, either upon an implied or an express contract. Formerly a physician was so far in the same position as a barrister that, until the law was changed by stat- ute, the rendition of services on request raised no implied promise to pay for them, though the patient might bind himself by express con- tract. But these disabilities are not to any extent recognized in this coun<-ry.2^ There are, indeed, in most, if not all, the states, statutes prescribing certain requisites to entitle a physician, attorney, and cer- tain other professional men to practice, such as the taking out of a license ; and, until he has complied with the statute, he has no right to practice, and contracts made with him for professional services are void. This, however, is properly for treatment later.^* INFANTS— IN GENERAL. 91. Sotxie contracts of an infant are valid, and a few, in some jurisdic- tions, are absolutely void, but most of his contracts are simply voidable at his option. 92. VALID CONTRACTS— Tbe valid contracts of an Infant are: (a) Contracts created by law, or quasi contracts. (b) Contracts entered into under authority or direction of law^. (c) Contracts made in order to do ^^rhat he ^vas legally bound to do, and could have been compelled to do. 93. VOID CONTRACTS— In some jurisdictions a contract of an infant which is manifestly and without doubt to his prejudice is void. 94. VOIDABLE CONTRACTS— The tendency is to hold all contracts other than valid ones simply voidable at the infant's option. 26 In re Estate of Nerac, 35 Cal. 392, 95 Am. Dec. 111. 27 Vilas V. Downer, 21 Vt. 419; Garrey v. Stadler, 67 Wis. 248, 30 N. W. 787, 58 Am. Rep. 877 ; Price v. Hay, 132 111. 543, 24 N. E. 620 ; Boyd v. Lee, 36 S. C. 19, 15 S. E. 332. In New Jersey, comisel fees, as such, cannot be recov- ered in the absence of an express agreement. Van Atta v. McKinney's Ex'rs, IG N. J. Law, 235; Blake v. City of Elizabeth, 2 N. J. Law J. 328; Hopper V. Lndlum, 41 N. J. Law, 182. It is otherwise where there is an express agree- ment to pay for them. Zabriskie v. Woodruff, 48 N. J. Law, 610, 7 Atl. 336. 2 8 See post, p. 263. IgO CAPACITY OF PARTIES. (Ch. 6 in General. An infant, at common law, is a person under twenty-one years of age, whether male or female; but in some jurisdictions, by statute, females attain their majority at eighteen, either for all purposes or for particular purposes specified in the statute. Since the common law, as a rule, does not regard fractions of a day, an infant becomes of age on the beginning of the day before his or her twenty-first or eighteenth birthday, as the case may be.^' As we shall see, the contracts of an infant, as a rule, are not void, but simply voidable at his option. The rule is intended for the infant's benefit; and it may therefore be said that infancy in effect confers a privilege, rather than imposes a disability. Emancipation of an infant by his parent gives him the right to his earnings, and releases him from his parent's control, but it does not remove his disability, and clothe him with the power to contract.^" The Old Doctrine as to the Bifect of an Infant's Contract. There is much confusion and conflict in the authorities as to the effect of the contracts of infants. In an early English case the doc- trine was stated to be that (i) where the court could pronounce the contract for the benefit of the infant, as for necessaries, it was good ; (2) that where the court could pronounce it to be to his prejudice it was void; and (3) that in those cases where the benefit or prejudice were uncertain the contract was voidable only.^^ And the same doc- trine has been laid down by some of the American courts and text writ- ers.^^ This cannot, however, be accepted as a correct statement of the law to-day. In the first place, many contracts are binding on an infant without regard to whether they are for his benefit or not. In the sec- ond place, the great weight of authority is against making any distinc- tion between contracts of an infant as being void or voidable, and in favor of holding all contracts other than valid ones, with a very few exceptions, simply voidable by the infant at his option.^ ^ The object of the law is merely to protect the infant, and this object is amply 2 9 Mete. Cont. (Heard's Ed.) 43; Herbert v. Turball, 1 Keble, 5S9, Ewell's Cas. 1 ; Bardwell v. Purrington, 107 Mass. 419 ; State v. Clarke, 3 Har. (Del.) 557; Hamlin v. Stevenson, 4 Dana CKy.) 597; Wells v. Wells, 6 Ind. 447; Lenbart v. State, 33 Tex. Cr. R. 504, 27 S. W. 260. 3 Mason v. Wright, 13 Mete. (Mass.) 306; Tyler v. Fleming, 68 Mich. 185, 35 N. W. 902, 13 Am. St. Rep. 336; Genereux v. Sibley, 18 R. I. 43, 25 Atl. 345. 31 Keane v. Boycott, 2 H. Bl. 511. 32 Vent v. Osgood, 19 Pick. (Mass.) 572; Tucker v. Moreland, 10 Pet. 65, 9 L. Ed. 345; Owon v. Long, 112 Mass. 403; Dunton v. Brown, 31 Mich. 182; Green v. Wilding, 59 Iowa, 679, 13 N. W. 761, 44 Am. Rep. 696 ; Robinson v. Weeks, 56 "Me. 102. 33 Henry v. Root, 33 N. Y. 526; Fonda v. Van Home, 15 Wend. (N. Y.) 001, ."0 Am. Dec. 77; Holmes v. Rice, 45 Mich. 142, 7 N. W. 772; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; Lemmon v. Beeman, 45 Ohio St. 505, 15 §§ 91-94) INFANTS. 151 secured by not allowing the contract to be enforced against him during his infancy, and allowing him to repudiate it on attaining his majority. Moreover, such a distinction must necessarily be arbitrary and doubt- ful, for it must always be difficult, if not impossible, to say whether a particular contract may not possibly be beneficial. It is better to al- low the infant to decide this question for himself when he becomes of age.^* Valid Contracts — Quasi Contracts. Quasi contracts, or so called contracts created by law because of a legal duty on the part of the person bound, are as binding on an infant as on an adult. ^^ The common law creates, as an incident to mar- riage, a duty on the part of the husband to pay the antenuptial debts of the wife, and this liability is imposed on infant as well as adult hus- bands.^* The liability of an infant for necessaries furnished him is quasi contractual.*'^ Same — Contracts Authorised by Law. The rule that contracts of infants are voidable does not apply to contracts entered into by them under authority or direction of a statute or of the common law. For instance, a voluntary assignment of his property by an infant debtor imprisoned for debt, made under a stat- ute allowing "every person" to make such an assignment, has been held valid and binding on him, notwithstanding his infancy.** So, also, where an infant executed a bond for the support of his bastard child, in pursuance of a statute, it was held that the statute applied to infants, and that the bond was valid ; *^ and a contract of enlistment in the army by an infant has been held valid.*° N. E. 476; Kendrick v. Niesz, 17 Colo. 506, 30 Pac. 245; Owen v. Long, 112 Mass. 403; Fetrow v. Wiseman, 40 Ind. 148; Mustard v. Woblford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Hunt v. Peate, 5 Cow. (N. Y.) 475, 15 Am. Dec. 475; Illinois Land & Loan Co. v. Bonner, 75 111. 315; Cole v. Pennoyer, 14 111. 158; Patchin v. Cromach, 13 Vt. 330; Bozeman v. Browning, 31 Ark. 864; Weaver V, Jones, 24 Ala. 420; Ridgeley v. Crandall, 4 Md. 435; McDonald T. Sargent, 171 Mass. 492, 51 N. E. 17 ; Union Cent. Life Ins. Co. v. Hilliard, 63 Ohio St. 478, 59 N. E. 230, 53 L. R. A. 462, 81 Am. St. Rep. 644. 3 4 Pol. Cont. 52; 1 Pars. Cont. 244. 3 5 Bish. Cont. § 906. 3 6 Roach V. Quick, 9 Wend. (N. Y.) 238; Cole v. Seeley, 25 Vt. 220, 60 Am. Dec. 258; Butler v. Breck, 7 Mete, (^klass.) 164, 39 Am. Dec. 768; Mitchinson V. Hewson, 7 Term R. 348; Nicholson v. Wilborn, 13 Ga. 467; Anderson v. Smith, 33 Md. 465. 3 7 Post, p. 547. 8 8 People V. Mullin, 25 Wend. (N. Y.) 698. 8 9 People v. Moores, 4 Denio (N. Y.) 518, 47 Am. Dec. 272; and see McCall v. Parker, 13 Mete. (Mass.) 372, 46 Am. Dec. 735; Bordentown Tp. v. Wallace, 50 N. J. Law, 13, 11 Atl. 267; Gavin v. Burton, 8 Ind. 69; Stowers v. HoUis, S3 Ky. 544. An Infant's recognizance for appearance at court is binding. State* V. WeatLorwax, 12 Kan. 463; Dial v. Wood, 9 Baxt. (Tenn.) 296. «> U. S. V. Baiubridge, 1 Mason, 71, Fed. Cas. No. 14,497; Com. v. Murray. 152 CAPACITY OF PAKTIES. (Ch. 6 It should be mentioned that in some jurisdictions the court is au- thorized by statute to remove the disabilities of infants in particular cases.*^ Same — Contract in Performance of Legal Obligation. Nor does the rule apply where, by his contract, an infant has only done that which he was bound by law to do, and could have been com- pelled to do. In such a case the contract is valid, and he cannot avoid it.*^ Under this rule, a conveyance of land by an infant, which he could have been compelled in equity to make, is binding on him. Where, for instance, a father purchased land, and took the title in the name of his son, and the son afterwards during his minority conveyed it to a purchaser from his father, the conveyance was held to be bind- ing on the ground that he merely parted with the naked title, and only did that which a court of equity would have compelled him to do.*' In the leading case on this point an infant mortgagee had, on payment of the mortgage debt to the persons entitled to receive it, made a recon- veyance of the land, and the court held that, as this was an act which by law he could have been compelled to perform, his voluntary per- formance of it was binding, notwithstanding his infancy.** It is said in a New York case : "When an infant is under a legal obligation to do an act, he may bind himself by a fair and reasonable contract made for the purpose of discharging the obligation. If this be not a general rule, it is at least one of pretty wide application." *•* Same — Executed Contract. In some jurisdictions it is held that, if the contract is so far executed that the infant has received the consideration, he cannot repudiate the 4 Bin. (Pa.) 487, 5 Am. Dec. 412; U. S. v. Blakeney, 3 Grat. (Va.) 405; In re Higgins, IG Wis. 351; In re Heam (D. C.) 82 Fed. 141. At common law an enlistment was not voidable by the infant or his parent. Morrissey v. Perry, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644. 41 See Doles v. Hilton, 48 Ark. 305, 3 S. W. 193; Brown v. Wheelock, 75 Tex. 385, 12 S. W. Ill; McKamy v. Cooper, 81 Ga. 679, 8 S. E. 312; Emanci- pation of Pochelu, 41 La. Ann. 331, 6 South. 541; Succession of Gaines, 42 La. Ann. 699, 7 South. 788. 4 2 Co. Litt. 172a; 2 Kent, Comm. 242; Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345; Prouty v. Edgar, 6 Iowa, 353; Jones v. Brewer, 1 Pick. (Mass.) 314; Baker v. Lovett, 6 Mass. 78, 4 Am. Dec. 88; Trader v. Jarvis, 23 W. Va. 100; Nordholt v. Nordholt, 87 Cal. 552, 26 Pac. 599, 22 Am. St. Rep. 268; Starr v. Wright, 20 Ohio St. 97. A voluntary equal partition by an infant, since he could be compelled to make it, is valid. Baviugton v. Clarke, 2 Pen. & W. (Pa.) 115, 21 Am. Dec. 432; Cocks v. Simmons, 57 Miss. 183. So, also, a con- tract by a minor with the mother of his bastard child to support it is binding. Stowers v. Hollis, 83 Ky. 544; Gavin v. Burton, 8 Ind. 69. And see note — , supra. So a note given by an infant in settlement of his liability for a tort Hay V. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. 43 Elliott V. Horn, 10 Ala. 348, 44 Am. Dec. 488. 44 Zouch V. Parsons, 3 Burrows, 1801. 40 People V. Moores, 4 Denio (N. Y.) 518, 47 Am. Dec. 272. §§ 91-94) INFANTS. 153 contract, and recover what he has paid, or for what he has done, unless he can and does place the other party in statu quo. This doctrine, as we shall see, is not generally accepted in cases where the consideration cannot be returned.** Void Contracts. As already stated, some courts still hold that contracts manifestly and without doubt prejudicial to the infant are void.*^ Among the contracts which have been held void upon this ground may be mentioned conveyances of land without consideration,** contracts of suretyship,*^ and obligations with a penalty.^** This, however, is no longer the pre- vailing doctrine. Voidable Contracts. Under the prevailing doctrine that the contracts of an infant are voidable, and not void, contrary to the decisions mentioned in the pre- ceding paragraph, some courts have held contracts of suretyship,"^ and bonds with a penalty,^^ merely voidable. Probably all courts regard as merely voidable purchases or sales and conveyances of real or per- sonal property, including mortgages, for a consideration,^^ partnership agreements,** agreements to render services,"" promissory notes,"" indorsement of a promissory note,"'' and the like."^ 4 6 Post, p. 171. *7 Ante, p. 150. For a collection of cases on the question when a contract by an infant is to be held void and when merely voidable, see Eh\'ell, Lead. Cas. 30-34, 44-46, 52-55. 4 8 Robinson v. Coulter, 90 Tenn. 705, 18 S. W. 250, 25 Am. St. Rep. 708. 48 Maples V. Wightman, 4 Conn. 376, 10 Am. Dec. 149. 60 Fisher v. Mowbray, 8 East, 330; Baylis v. Dinely, 3 Maule & S. 477. 01 Owen V. Long, 112 Mass. 403; Fetrow v. Wiseman, 40 lud. 14S; Wil- liams V. Harrison, 11 S. C. 412; Harner v. Dipple, 31 Ohio St 72, 27 Am. Rep. 496. 52 Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Weav- er V. Jones, 24 Ala. 420; Reed v. Lane, 61 Vt. 481, 17 Atl. 796. 63 Cole V. Pennoyer, 14 111. 158; Irvine v. Irvine, 9 Wall. 617, 19 L. Ed. 800; Zouch V. Parsons, 3 Burrows, 1794; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 5Si>, Dixon v. Merritt, 21 Minn. 196; Hastings v. Dollarhide, 24 Cal. 195; Logaa V. Gardner, 136 Pa. 588, 20 Atl. 625, 20 Am. St. Rep. 939; French v. Mc- Andrew, 61 Miss. 187; Henry v. Root, 33 N. Y. 526; Callis v. Day, 38 Wis. 643; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732. 64 Duntou V. Brown, 31 Mich. 182. 66 Vent V. Osgood, 19 Pick. (Mass.) 572; Clark v. Goddard, 39 Ala. 164, 84 Am. Dec. 777; Harney v. Owen, 4 Blackf. (Ind.) 337, 30 Am. Dec. 662. And see post, p. 175. o« Goodsell V. Myers. 3 Wend. (N. Y.) 479; Fetrow v. Wiseman, 40 Ind. 148; Wamsley v. Lindenbei-ger, 2 Rand. (Va.) 478 ; Earle v. Reed, 10 Mete. (Mass.) 889; Miuock v. Shorti-idge, 21 Mich. 314. 57 Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101; Willis v. Twam- bly, 13 Mass. 204; Frazier v. Massey, 14 Ind. 382; Briggs v. McCabe, 27 Ind. S-i7, 89 Am. Dec. 503. 68 Lease by or to infant. Zouch v. Parsons, 3 Burrows, 1794; Griffith v. 154 CAFACITY OF PARTIES. (Ch 6 Appointment of Agent. It is very generally laid down, even by courts vi^hlch do not recognize the old doctrine as to void and voidable contracts, that an infant can- not appoint an agent or attorney, and that such appointment, and con- sequently all acts and contracts of the agent thereunder, are void,"^* subject to an exception where the appointment is to do an act to the infant's advantage, as to receive seisin. ''° It is noticeable, however, that nearly all the cases which lay down this rule are cases involving warrants of attorney to confess judgment and powers of attorney to execute a deed ; and while as to these the rule appears to be firmly es- tablished, the tendency of the later decisions is to confine the rule to such cases, and in other cases to hold an infant's appointment af an agent and the acts and contracts made under it as voidable, and not void." Schwenderman, 27 Mo. 412. Submission to arbitration. Jones v. Bank, 8 N. Y. 228; Barnaby v. Barnaby, 1 Pick. (Mass.) 221. Settlement of disputed boundary. Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 660. Com- promise of action or claim. Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489; Baker v. Lovett, 6 Mass. 78. An infant's promise to marry is voidable at bis or her option. HOLT v. WARD CLARENCIBUX, 2 Strange, 937, Ewell, Lead. Cas. 50; Hunt v. Peake, 5 Cow. (N. Y.) 475, 15 Am. Dec. 475; Rush v. Wick, 31 Ohio St. 521, 27 Am. Rep. 523 ; Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec, 709; Warwick v. Cooper, 5 Sneed (Tenn.) 659. And it has been held that a statute providing that persons vmder the age of 21 years "may con- tract and be joined in marriage" does not remove an infant's disability in this respect, so as to render him liable for breach of promise to marry. McConkey V, Barnes, 42 111. App. 511. ee Saunderson v. Marr, 1 H. Bl. 75; Doe v, Roberts, 16 M. & W. 778; Fonda V. Van Home, 15 Wend. (N. Y.) 631. 30 Am. Dec. 77; Bool v. Mix, 17 Wend. (N. Y.) 120, 31 Am. Dec. 285; Bennett v. Davis, 6 Cow. (N. Y.) 393; Knox v. Flack, 22 Pa. 337; Waples v. Hastings, 3 Har. (Del.) 403; Wainwright v. Wil- kinson, 62 Md. 146; Philpot v, Bingham, 55 Ala. 439; Pyle v. Cravens, 4 Litt. (Ky.) 17; Lawrence's Lessee v. McArter, 10 Ohio, 37; Armitage v. Widoe, 36 Mich. 124; TRUEBLOOD v. TRUEBLOOD, 8 Ind. 195, 65 Am. Dec. 756; Holden v. Curry, 85 Wis. 504, 55 N. W. 965; Wambole v. Foote, 2 Dak. 1, 2 N. W. 239. See, also, Bartholomew v. Dighton, Cro. Eliz. 424; Whittingham's Case, 8 Co. 42b; Dexter v. Hall, 15 Wall. 9, 25, 21 L. Ed. 73; Tucker v. More- land, 10 Pet. 58, 68, 9 L. :^d. 345; Flexner v. Dickerson, 72 Ala. 318; Cole v. Pennoyer, 14 111. 158; Fetrow v. Wiseman, 40 Ind. 148, 155; Burns v. Smith, 29 Ind. App. 181, 64 N. E. 94, 94 Am. St. Rep. 208. 00 Zouch V, Parsons, 3 Burr. 1794, 1805, 1808. See Duvall v. Graves, 7 Bush. (Ky.) 46L fli Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229; Welch v. Welch, 103 Mass. 562; Moley v. Brine, 120 Mass. 324; Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596, 1 Am. St Rep. 446, per Holmes, J. ; Hardy v. Waters, 38 Me. 450 ; Towle V. Dresser, 73 Me. 252; Patterson v. Lippincott, 47 N. J. Law, 457, 1 Atl. 506, 54 Am. Rep. 178; Hastings v. Dollarhide, 24 Cal. 195; Coursolle v. Weyerhauser, 69 Minn. 328, 72 N, W. 697. See Tiffany, Ag. 94. §§ 95-97) LIABILITY FOR NECESSARIES. 155 SAME— LIABILITY FOR NECESSARIES. 95. An infant is liable for the reasonable value of necessaries for- nisbed bim. 96« What are necessaries -will depend npon the particular circum- stances. The term includes whatever is reasonably needed foP his subsistence, health, coiufort, or education, taking into con- sideration his age, state, and condition in life. The foUoiving rules may be stated: (a) The things furnished must concern his person, and not his estate. (b) He is not liable for money borro\ired, and expended for necessa- ries, unless the lender sees that it is so expended. (o) An infant is liable for necessaries furnished his %vife, and, in some jurisdictions, children, (d) Persons supplying an infant act at their peril, and cannot re- cover if the actual circumstances ^vere such that the things furnished xrere not necessai'ies. 97* The liability of an infant for necessaries is not contractual, but quasi contractual, and his exi^ress contract for necessaries ia voidable; but in some jurisdictions a recovery to the extent of their reasonable value is alloxtred in an action upon the ex- press contract. Among the contracts which are manifestly for the benefit of an in- fant, and hence binding, it is frequently said are his contracts for neces- saries. The obligation of an infant to pay for necessaries furnishea to him is, however, quasi contractual, rather than contractual. This is shown by the fact that it is generally held that he is liable to pay, not the price, but the reasonable value, of the necessaries. °^ What are Necessaries. Lord Coke has said that an infant's necessaries are "his necessary meat, drinke, apparel, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards." '* Under this rule necessaries will include whatever is reasonably needed for the infant's subsistence, such as food and lodging ; ®* for his health, such as medicine, and services of a phy- sician or nurse in case of sickness ;°° for his comfort,*^ and for his 82 Post, p. 547. 8 3 Co. Litt. 172a. For a good discussion of the law In regard to necessaries, see Ryder r. Wombwell, L. R. 3 Exch. 95. 6* Barnes v. Barnes, 50 Conn. 572; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274. Dinnei's supplied to a student at private rooms at a university, prima facie not necessaries. Broolier v. Scott, 11 Mees. & W. 67; Wharton v. McKenzic, 5 Q. B. 606. Hotel bill. Watson v. Cross, 2 Duv. (Ky.) 147. Dwelling house not a necessary. Allen v. Lardner, 78 Hun, 603, 29 N, Y. Supp. 213. 68 Glover & Co. v. Ott's Adm'r, 1 McCord (S. C.) 572; Werner's Appeal, 91 Pa. 222. And see Hoyt v. Casey, 114 :Mass. 397, 19 Am. Rep. 371; Wailing v. 86 See note 6U on loUowiug page. . . , , ^ 156 CAPACITY OP PARTIES. (Ch. G- education,"'' The term is not limited to what is necessary to the actual support of life, but extends "to articles fit to maintain the particular person in the state, station, and degree in life in which he is," so that things may be necessary for one person which would not be necessary for another in a different station in life.®* The question must therefore depend on the circumstances of each particular case, though there are some things, of course, which are ob- viously incapable of being deemed necessaries. A wild animal, or a steam roller, or a railroad engine, cannot, under any circumstances, be deemed such. Nor can things intended for ornament, and not for use,®* or merely for pleasure,^ ° be regarded as necessary. Again, Toll, 9 .Johns. (N. Y.) 141. A horse may be necessary for health, Hart v. Pra- ter, 1 Jur. 623; Harrison v. Fane, 1 Man. & G. 550; but not if for pleasure, note 70, infra. 66 Dentist's services. Strong v. Foote, 42 Conn. 203. An infant is liable for reasonable attorney's fees for defending him in a criminal prosecution. Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176; Barker v. Hib- bard, 54 N. H. 539, 20 Am. Rep. IGO. And see Muuson v. Washband, 31 Conn. 303, 83 Am. Dec. 151; Crafts v. Carr (R. I.) 53 Atl. 275, 60 L. R. A. 128. Wed- ding outfit. Jordan v. Coftield, 70 N. C. 110; Sams v. Stockton, 14 B. Mon. (Ky.) 232. Clothing. Mackerell v. Batchelor, Cro. Eliz. 583; Glover & Co. v. Ott's Adm'r, 1 McCord (S. C.) 572. But not for an unnecessary supply of clothing. Johnson v. Lines, 6 Watts & S. 80, 40 Am. Dec. 542; Burghart v. Angerstein, 6 Car. & P. 690. 8 7 Common-school education, but not generally a college education, though the latter may, \mder some circumstances, be a necessary. Middlebury Col- lege v. Chandler, 16 Vt. 686, 42 Am. Dec. 537; Pickering v. Gunning, W. Jones, 182. Board bill contracted by an infant to enable him to attend school is a necessary expense. Kilgore v. Rich, 83 Me. 305, 22 Atl. 176, 12 L. R. A. 859, 23 Am. St. Rep. 780. Professional education not necessary. Tm-ner v. Galther, 83 N. C. 357, 35 Am. Rep. 574; Bouchell v. Clary, 3 Brev. (S. O.) 194. '38 Peters v, Fleming, 6 Mees. & W. 46; Ewell, Lead. Cas. 56; Ryder v. Wombwell, L. R. 4 EXch. 32; McKanna v. Merry, 61 111. 177; Breed v. Judd, 1 Gray (Mass.) 455; Squier v. Hydliff, 9 Mich. 274; Wilhelm v. Hardman, 13 Md. 144; Jordan v. Coffield, 70 N. C. 110; Nicholson v. Spencer, 11 Ga. 610. Board of four horses for six months, the principal use of whicb was in the business of an infant as a hackman, though the horses were occasionally used to carry his family out to drive, was held not necessary. Merriara v. Cunningham, 11 Cush. (Mass.) 40. Livery for the servant of an infant offlcei in the army was held a necessary. Hand v. Slaney, 8 Term R. 578. And see Coates V. Wilson, 5 Esp. 152. But not cockades ordered for his soldiers. Hand v. Slaney, supra. "Articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed." Chappie v. Cooper, 13 Mees. & W. 252. 68 Peters v. Fleming, 6 Mees. & W. 42; McKanna v. Merry, 61 111. 179. 7 McKanna v. Merry, 61 111. 179; Saundere v. Ott's Adm'r, 1 McCord (S. C.) 572; Beeler v. Young, 1 Bibb (Ky.) 519. Horse, carriage, or bicycle not or- dinarily a necessity. House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Miller v. Smith, 26 Minn. 2-18, 2 N. W. 942, 37 Am. Rep. 407; Pyne v. Wood, 145 Mass. 558, 14 M. E. 775; Beeler v. Young, 1 Bibb (Ky.) 519; How- 95-97) LIABILITY FOR NECESSARIES. 157 things may be of a useful or necessary character, but the quality or quantity supplied may take them out of the character of necessaries.'^^ Elementary text-books might be necessary to a law student; but not a rare edition, nor a great number of copies of a single book. Things necessary to a person in one station of life might not be necessary to a person in a different station. Again, things not usually necessary may become so from the circumstances of the infant. Medical attendance and expensive articles of food may ordinarily be dispensed with, but may become necessary in case of ill health. Things with which an infant is already sufficiently supplied are not necessary.''^ An infant residing under the care of his father or guard- ian, and supported by him, is not liable even for necessaries ; and it even seems that this is so notwithstanding the poverty of his father.''^ It has been held that the fact that an infant is abundantly supplied with money, so that he can purchase necessaries for cash if he chooses, is not equivalent to being supplied, and he will nevertheless be liable for necessaries bought on credit; but there is authority to the contrary.''* Mtist Concern His Person. The things furnished, to come within the term "necessaries," must concern the person of the infant, and not his estate. An infant, there- fore, is not bound by contracts for things necessary to carry on a busi- ard V. Simpkins, 70 Ga. 322. A horse, however, may be necessary for health. Note 65, supra. Money furnished to enable an infant to take a necessary trip may be necessary, but not to take a trip for pleasure. Breed v. Judd, 1 Gray (Mass.) 455; McKanna v. Merry, 61 111. 177. Tobacco Is prima facie not necessary Bryant v. Richardson, 12 Jur. (N. S.) 300. 71 Burghart v. Angerstein, 6 Car. & P. 690; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Nicholson v. Spencer, 11 Ga. 610. T2 Barnes v. Toye, 13 Q. B. Div. 410; Davis v. Caldwell, 12 Cusb. (Mass.) 512; Kline v. L'Amoreux, 2 Paige (N. Y.) 419, 22 Am. Dec. 652; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274; McKanna v. Merry, 61 111. ISO; NicholGou v. Wilborn, 13 Ga. 467; Balnbridge v. Pickering, 2 W. Bl. 1325; Burghart v. Angerstein, 6 Car. & P. 690: Perrin v. Wilson, 10 Mo. 451; Guthrie v. Murphy, 4 Watts (Pa.) 80, 28 Am. Dec. 681; note 71, supra. 78 Hoyt V. Casey, 114 Mass. 397, 19 Am. Rep. 371; Bainbridge v. Pickering, 2 W. Bl. 1325; Ewell, Lead. Cas. 55; Wailing v. Toll, 9 Johns. (N. Y.) 141; Guthrie v. Murphy, 4 Watts (Pa.) SO, 28 Am. Dec. 681; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Kline v. L'Amoreux, 2 Paige (N. Y.) 419, 22 Am. Dec. 652; Perrin v. Wilson, 10 Mo. 451; TRAINER v. TRUMBULL, 141 Mass. 530, 6 N. E. 761; Jones v. Colvin, 1 McMul. (S. C.) 14; Elrod v. Myers, 2 Head (Tenn.) 33, 75 Am. Dec. 749; Kraker v. Byram, 13 Rich. Law (S. C.) 163; Freeman v. Bridger, 49 N. C. 4, 67 Am. Dec. 258; Hull's Assignees v. Connolly, 3 McCord (S. C.) 6, 15 Am. Dec. 612. A complaint, however, is not demurrable for failure to allege refusal of the parent or guardian to supply the infant, or that there was no person who could and would support him. Goodman v. Alexander, 165 N. Y. 289, 59 N. E. 145, 55 L. R. A. 781. 74 Burghart v. Hall, 4 Mees. «fe W. 727. But see Rivers v. Greggs, 5 Rich. Eq. (S. C.) 274; Barnes v. Toye, 13 Q. B. Div. 410. 158 CAPACITY OF PARTIES. (Ch. 6 ness into which he enters.^" He is not liable for materials purchased and used for the erection of a house on his land/® and it has even been held that he is not liable for the expense of repairing his dwelling house on a contract made by him therefor, although the repairs may have been necessary to prevent immediate and serious injury to the house.'' ^ Money. Money, as such, is not regarded as necessary. "An infant," it was said in a New York case, "is not answerable for money borrowed, though expended by him for necessaries; nor for money borrowed to buy necessaries, unless it was actually so applied. And perhaps the infant is not answerable in that case, unless the lender either lays out the money himself, or sees it laid out, for necessaries. But where this is done the infant is answerable for the money the same as he would have been for the necessaries had they been directly furnished by the lender." '^ Necessaries to Wife and Children. A man is bound by law to support and care for his wife, and an in- fant is therefore liable for necessaries furnished her.'^^ And he has 7 5 House V. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Mason V. Wright, 13 Mete. (Mass.) 306; Stern v. Meikleham, 56 Hun, 475, 10 N. Y. Supp. 216; Paul v. Smith, 41 Mo. App. 275; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Hep. 449; Merriam v. Cunningham, 11 Cush. (Mass.) 40; State v. Howard, 88 N. C. 680; Wood v. Losey, 50 Mich. 475, 15 N. W. 557; Dilk v. Keighley, 2 Esp. 480. 7 8 Womock V. Loar (Ky.) 11 S. W. 438; Freeman v. Bridger, 49 N. C. 1, 67 Am. Dec. 258; Price v. Jennings, G2 Ind. 111. Nor is his property subject to a mrchanic's lien therefor. Bloomer v. Noian, 36 Neb. 51, 53 N. W. 1039, 38 Am. St. Rep. 690. 7 7 Phillips V. Lloyd, 18 R. I. 99, 25 Atl. 909; Tupper v. Cadwell, 12 Mete. (Mass.) 559, 46 Am. Dec. 704; Wallis v. Bardwell, 126 Mass. 366; West t. Gregg, 1 Grant (Pa.) Cas. 53. Nor on a contract for insurance of his property. New Hampshire Ins. Co. v. Noyes, 32 N. H. 345. Nor for attorney's fees in a suit to protect his property, Phelps v. Worcester, 11 N. H. 51. Contra, Ep- person V. Nugent, 57 Miss. 45, 34 Am. Rep. 434. Nor for a loan of money to paj' off incumbrances. Bicknell v. Bicknell, 111 Mass. 265; Magee v. Welsh, 18 Cal. 155. 7 8 Randall v. Sweet, 1 Denio (N. Y.) 460. And see Kilgore v. Rich, 83 Me. 305, 22 Atl. 176, 12 L. R. A. 859, 23 Am. St. Rep. 780; Swift v. Bennett, 10 Cush. (Mass.) 436; Genereux v. Sibley, 18 R. I. 43, 25 Atl. 345; Price v. San- ders, 60 Ind. 310; Haine's Adm'r v. Tarrant, 2 Hill (S. C.) 400; Conn v. Co- burn, 7 N. H. 368, 26 Am. Dec. 746; Beeler v. Young. 1 Bibb (Ky.) 519; Earle V. Peale, 1 Salk. 387. He may, however, be held liable in equity for money borrowed and expended by him for necessaries. Price v. Sanders, 60 Ind. 310; Watson v. Cross, 2 Duv. (Ky.) 147; Hickman v. Hall's Adm'rs, 5 Litt. (Ky.) 338; Beeler v. Young, 1 Bibb (Ky.) 521. 70 Confine v. Phillips' Adm'r, 5 Har. (Del.) 428; Price v. Sanders, 60 Ind, 315; Chapman v. Hughes, 61 Miss. 339; Chappie v. Cooper. 13 Moes. & W. 252, 259; Turner v. Frisby 1 Strange, 168; People v. Moores, 4 Denio (N. '^.) 5^0, 47 Am. Dec. 272. §§ 95-97) LIABILITY FOR NECESSARIES. 159 also been held liable for necessaries furnished to his child.'" There is, however, authority for the contrary view as to children.®^ Persons Supplying Infant Act at Their Peril. Whether things supplied to an infant were necessaries is to be de- termined by the infant's actual circumstances. If a tradesman supplies expensive goods to an infant because he thinks that the infant's circum- stances are better than they really are, or if he supplies goods of a useful class, not knowing that the infant is already sufficiently sup- pHed, he does so at his peril." Question of Lazu or Fact. Difficulty has arisen in determining the respective provinces of the court and jury in ascertaining whether things supplied to an infant were necessaries. It is frequently stated in the American cases that the question whether articles come within the class of necessaries is for the court, and that the question whether they were necessaries in fact is for the jury.^' In England it has been settled that the question whether the articles were necessaries is one of fact, and therefore for the jury; but that, like other questions of fact, it should not be left to the jury unless there is evidence on which they can reasonably find in the affirmative.®* Practically, there is little difference in the two rules, for the cases involving articles intrinsically incapable of being neces- saries are rare, and the question in most cases depends on the particular circumstances. Express Contract for Necessaries. ' , ' The obligation of an infant to pay for necessaries being quasi con- tractual, he is liable without an express contract." The law creates so Van Valklnburgh v. Watson, 13 Johns. (N. Y.) 480, 7 Am, Dec. 395; Ex parte Ryder, 11 Paige (N. Y.) 185. 42 Am. Dee. 109; post, pp. 499, 547. 81 Kelley v. Davis, 49 N. H. 187, 6 Am. Eep. 499. See Tiffany, Pers. & Dom. Rel. 230, 269. 8 2 Brayshaw v. Eaton, 7 Scott, at page 187; Barnes v. Toye, 13 Q. B. Div. 410; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Kline v. L'Amoreux, 2 Paige (N. Y.) 419, 22 Am. Dec. 652; Davis v. Caldwell, 12 Cush. (Mass.) 513; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274; Monumental Bldg. Ass'n V. Herman, 33 Md. 131; Perrin v. Wilson, 10 Mo. 451; Nicholson v. Spencer, 11 Ga. 607. 83 Tupper V. Cadwell, 12 Mete. fMass.) 559, 563, 46 Am. Dec. 704; Merriam V. Cunningham, 11 Cush. (Mass.) 40, 44 ; Bent v. Manning, 10 Vt. 225 ; Stanton V. Willson, 3 Day (Conn.) 37, 56, 3 Am. Dec. 255; Glover v. Ott's Adm'r, 1 McCord (S. C.) 572; Beeler v. Young, 1 Bibb (Ky.) 519; Grace v. Hale, 2 Humph. (Tenn.) 27, 36 Am. Dec. 296; McKanna v. Merry, 61 111. 177. 8 4 Ryder V. Wombwell, L. R. 3 Exch. 93. See, also, Peters v. Fleming, 6 M. & W. 42; Wharton v. Mackenzie, 5 Q. B. 606; Davis v. Caldwell, 12 Cush. (Mass.) 512, per Shaw, C- J.; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Mohney v. Evans, 51 Pa. 80. 8B Gay v. Ballou, 4 Wend. (N. Y.) 403, 21 Am. Dec. 158; TRAINER Y. 160 CAPACITY OF PARTIES. (Cll. G an obligation on his part to pay what the necessaries are reasonably worth, but his contract is voidable.^' If he has given his note or other negotiable instrument in payment, the seller can recover no more than the reasonable value, and on principle, in such a case, there can be no recovery on the note.^'^ In many jurisdictions, however, anomal- ously, an action may be maintained upon the contract, but the real value will be inquired into, and the recovery limited to that amount.' 88 U SAME— RATIFICATION AND AVOIDANCE. qC^ -^^ 98. Wliere tlie contract of an infant is voidable, lie may ratify it, and thereby render it binding; or be may disaffirm it, and thereby render it void. Where the contract of an infant is voidable only, he may ratify it on attaining his majority, and thereby assume the rights and liabilities arising from it ; or he may, before ratification, but not afterwards, dis- affirm or repudiate it, and thereby escape any liability under it. The reader will remember that such a ratification is an illustration of the class of cases in which a_pastj:onsideration will support a subsequent £rpmise.^° Some contracts are valid unless they are rescinded. Other contracts are invalid unless they are ratified. When Disaffirmance Necessary. The rule seems to be that, where an infant acquires an interest in permanent property, to which obligations attach, or enters into a con- tract which involves continuous rights and duties, benefits and liabili- ties, and takes benefits under the contract, he may become bound, un- less he expressly disaffirms the contract.**** TRUMBULL, 141 Mass. 530, 6 N. B. 761; Gregory v. Lee, 64 Conn. 407, 30 Atl. 53, 25 L. R. A. 618. See Keener. Quasi Contracts, 20. 86 Earle v. Reed, 10 Mete. (Mass.) 387; Davis v. Gay, 141 Mass. 531, 6 N. E. 549; Beeler v. Young, 1 Bibb (Ky.) 519; Parsons v. Keys, 43 Tex. 557; Hyer v. Hyatt, 8 Crancti, C. C. 276, Fed. Gas. No. 0,977; Dubose v. Wlieddon, 4 McCord (S. C.) 221; Locke v. Smith, 41 N. H. 346. 8 7 Swasey v. Vandertiey den's Adm'r, 10 Johns. (N, T.) 33; Fenton v. White, 4 N. J. Law, 111; McMinn v. Richmonds, 6 Yerg. (Tenn.) 9; Bouchell v. Clary, 3 Brev. (S. C.) 194; McCrillis v. How, 3 N. H. 348; Henderson v. Fox, 5 Ind. 489; Morton v. Steward, 5 Til. App. 533. 8 8 Earle v. Reed, 10 Mete. (Mass.) 387; Bradley v. Pratt, 23 Vt 378; Du- bose V. Wbeddon, 4 McCord (S. C.) 221; Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746; Aaron v. Harley, 6 Rich. Law (S. C.) 20; Asliey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176; Guthrie v. Mon'is, 22 Ark. 411; TRAINER V. TRUMBULL, 141 Mass. 530, 6 N. E. 761. 80 Ante, p. 14a 90 Anson, Contr. (8th Ed.) 109. Some cases declare that, while an infant's executory contracts are inoperative until satisfied, his executed contracts are good imtil rescinded. Minock v. Shortridge, 21 Mich. 304; Edgerly v. Stiaw, 25 § 98) RATIFICATION AND AVOIDANCE. 161 As illustrating this rule, an infant lessee, who occupies the premises after reaching his majority, is liable for arrears of rent which accrued during his minority.^^ Persons who have become possessed of shares in a corporation during infancy, if they hold them after they reach their majority, are liable for calls which accrued while they were in- fants "^ An infant may become a partner, and at common law may be entitled to benefits, though not liable for debts, arising from the partnership during his infancy ; though equity would not allow him to claim the benefits without being charged with the losses. Unless, on attainment of majority, there is an express rescission and disclaimer of the partnership, the infant will be liable for losses accruing after he became of age. By holding himself out as a partner he contracts a continual obligation, and that obligation remains until he puts an end to it by a disclaimer.®' And so, where shares in a corporation were assigned to an infant who attained his majority some months before an order was made for winding up the company, it was held that, in the absence of any disclaimer of the shares, he was liable as a con- tributory.** When Ratification is Necessary. The cases of which we have just been speaking, and which require an express disclaimer to avoid the effect of the contract, are all cases in which an interest was acquired in permanent property to which lia- bilities attached, or in which the contract entered into by the infant involved contmuous rights, duties, and liabilities. If, on the other N. H. 514, 57 Am. Dec. 349; Beardsley v. Hotchldss, 96 N. Y. 201. But the cases are ia conflict, as is siiown by the different views entertained as to whether a convey:nce is ratified by silence and acquiescence after majority. Post, p. 169. On the other hand, if an infant purchases property and re- tains it for an unreasonable time after majority without disaflii-mance, he is generally held to have ratified. Boyden v. Boyden, 9 Mete. (Mass.) 519; Ellis V. Alford 64 ^Nliss. 8, 1 South. 155; post, p. 168. 91 Rolle, Abr. 731. 9 2 Noi-thwestwn R. Co. v. McMichael, 5 Eixch. 114. It was said in this case: "They have been treated, therefore, as persons in a different situation from mere contractors, for then they would have been exempt; but in truth they are purchasers who have acquired an interest, not in a mere chattel, but in a subject of a permanent nature, either by contract with the compuny, or purchase or devolution from those who have contracted, and with certain obli- gations attached to it which they were bound to discharge, and have thereby been placed in a situation analogous to an infant purchaser of real estate, who has taken possession, and thereby becomes liable to all the obligations at- tached to the estate: for instance, to pay rent in the case of a lease rendering rent, * • ♦ unless they have elected to waive or disagree the purchase altogether, either during infancy or at full age, at either of which times it is competent for an infant to do so." 93 Goode V. Harrison, 5 Barn. & Aid. 159; Miller v. Sims, 2 Hill (S. C.) 479. 9* Lumsden's Case, 4 Ch. App. 31. Claek Cont. (2d Ed.) — 11 162 CAPACITY OF PARTIES. (Ch. 6 hand, the promise of the infant is to perform some isolated act, or if the contract is wholly executory, it will not be binding on him unless he expressly ratifies it on coming of age.®^ As we have seen, if a per- son who has entered into a partnership during his minority fails to dis- affirm the agreement after reaching his majority, and so holds himself out as a partner, he will be liable for debts of the firm contracted after he became of age ; but he will not be Hable for debts of the firm con- tracted during his minority, unless he ratifies them.^' Some courts hold that his ratification of the partnership agreement is a ratification of debts of the firm contracted during his minority,"'' and this would seem the proper doctrine ; but the contrary has been held." SAME— WHO MAY AVOID CONTRACT. 99. Tlie privilege of infancy is personal to the infant, and he alone can take advantage of it during his life and sanity. 100. On his death, or if he becomes insane, his contracts may be avoid- ed by his heirs, personal representatives, or conservator or guardian. 101. The other party to the contract, not being himself under dis- ability, is bound if the infant chooses to hold him. The privilege of infancy is intended to protect the infant, and dur- ing his life and sanity he alone can take advantage of it."^ It is even BB Whitney v. Dutch, 14 Mass. 460, 7 Am. Dee. 229; Carrell v. Potter, 23 Mich. 379; Savage v. Lichlyter, 59 Ark. 1, 26 S. W. 12. See, also, post. p. 166. 9 6 Tobey v. Wood, 123 Mass. 88, 25 Am. Rep. 27; Todd v. Clapp, 118 Mass. 495; Bush v. Linthicum, 59 Md. 344. »T Salinas v. Bennett, 33 S. C. 285, 11 S. E. 968; Miller v. Sims, 2 HUl (S. O.) 479. 9 8 Mehlhop V. Eae, 90 Iowa, 30, 57 N. W. 650; Crabtree v. Ma.v, 1 B. Mon. (Ky.) 289; Minock v. Shortridge, 21 Mich. 304. And see cases cited in note 06, supra. 09 Keane v. Boycott, 2 H. Bl. 511, E}well's Cas. 17; HOLT y. WARD CLARENCIEUX, 2 Strange, 937; Nightingale v. Withiugton, 15 Mass. 272, 8 Am. Dec. 101; Mansfield v. Gordon, 144 Mass. 168, 10 N, E. 773; Harris V. Ross, 112 Ind. 314, 13 N. E. 873; Hartuess v. Thompson, 5 Johns. (N. Y.) 160; Beardsley v. Hotchkiss, 96 N. Y. 201; Baldwin v. Rosier (C. C.) 48 Fed. 810; Hooper v. Payne, 94 Ala. 223, 10 South. 431; Chambers v. Ker, 6 Tex. Civ. App. 373, 24 S. W. 1118; Dentler v. O'Brien, 56 Ark. 49, 19 S. W. Ill; Holmes v. Rice, 45 Mich. 142, 7 N. W. 772; Garner v. Cook, 30 Ind. 331; Oliver v. Houdlet, 13 Mass. 237, 7 Am. Dec. 134; Van Bramer v. Cooper, 2 Johns. (N. Y.) 279; Alsworth v. Cordtz, 31 Miss. 32. In an action, for instance, for enticing away a servant from plaintilFs service, the defendant cannot escape liability by showing that the servant was an infant, and was there- fore not bound by his contract with the plaintiff. Keane v. Boycott, supra. The surety on a bond given by an infant, and afterwards disatfirmed by him, has been held liable. Kyger v. Sipe, 89 Va. 507, 16 S. E. 627. §§ 99-101) WHO MAY AVOID CONTRACT. 163 held that his guardian cannot avoid his contracts for him, though there is some dictum to the contrary.^'*" On his death, however, or if he be- comes insane, his contracts may be avoided by his heirs, ^°^ his personal representatives/"^ or his guardian or conservator.^"* The reason of the rule, it has been said, extends only to them because the privilege is conferred for his sole benefit. While living, he should be the ex- clusive judge of that benefit, and when dead those alone should inter- fere who legally represent him. Could his contracts be avoided by third persons, the principle would operate, not for his, but for their, benefit ; not when he chose to avail himself of his privileges, but when strangers elected to do it.^°* The other party to the contract, not being himself under a disa- bility to contract, cannot avoid it. He is bound if the infant chooses to hold him by ratifying the contract on becoming of age.^"® A court of equity, however, will not grant an infant specific performance of a contract by the adult.^°^ Of course, those contracts which are held void, and not merely voidable, at the infant's option, are of no effect at all, and can bind neither party. 100 See Oliver v. Houdlet, 13 Mass. 240, 7 Am. Dec. 134; Irvine's Heirs v. Crockett, 4 Bibb (Ky.) 437; Cliandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Cf. Stafford v. Roof, 9 Cow. (N. Y.) 626. Post, p. 165. 101 Illinois Land & Loan Co. v. Bonner, 75 111. 315; Harvey v. Briggs, 68 Miss. 60, 8 South. 274; Searcy v. Hunter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837; Veal v. Fortson, 57 Tex. 487; Ferguson v. Bell's Adm'r, 17 Mo. 351; Levering v. Heighe, 2 Md. Ch. 81, 88; Breckem-idge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 248, 19 Am. Dec. 71. 102 Parsons v. Hill, 8 Mo. 135; Hastings v. Dollarhide, 24 Cal. 207; Person V. Chase, 37 Vt. 650, 88 Am. Dec. 630; Jefford v. Ringgold, 6 Ala. 547; Hussey V. Jewett, 9 Mass. 100; Smith v. Mayo, 9 Mass. 62, 6 Am. Dec. 28; Brecken- ridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 248, 19 Am. Dec. 71. 103 Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117. 104 Though ordinarily a plea of infancy is personal, a beneficiary in a pol- icy on the infant's life may plead it in answer to the company's defense of false warranties in the application; for otherwise an infant's contract of in- surance would be in effect binding on him dm-ing his minority. O'Rourke v. Insurance Co., 23 R. I. 457, 50 Atl. 834, 57 L. R. A. 496, 91 Am. St. Rep. 643. 10 5 HOLT V. WARD CLARENCIEUX, 2 Strange, 937; Thompson v. Hamil- ton. 12 Pick. (Mass.) 425, 23 Am. Dec. 619; Hunt v. Peake, 5 Cow. (N. Y.) 475,. 15 Am. Dec. 475; Field v. HeiTick, 101 111. 110. 100 Flight V. Bolland, 4 Russ. 298. L64 CAPACITY OF rAr.TlES. (Ck G SAME— TIME OF AVOIDANCE. f ' ^ 102. Executory contracts, or executed contracts relating to personalty, may be avoided by an infant either before or after attaining bis majority; but conveyances of land cannot be disaffirmed during minority, tbougb be may enter and take the profits. 103. As a rule, mere lapse of time after attaining his majority 'will not bar an infant's disafHriuance of his executory contract, fout in a few states he is required to disaffirm \pithin a reasonable time. 104. As a rule, executed contracts must be disaffirmed VTithin a reason- able time after attaining majority; but in some states it is held that the right to avoid a conveyance of land is not barred by acquiescence for any period short of that prescribed by the stat- ute of limitations. An infant's executory contract may be avoided by him at any time, either before or after attaining his majority, by refusing to perform it, and pleading his infancy when sued for breach of the contract.^"'^ In the case of executed contracts a distinction is made between con- tracts relating to his lajid and those relating to his personalty. A deed o f lan d executed by an infant c annot be dis_affir med , duringF-44i6- mi- Tigrity. He may enter on the land and take the profits until the time arrives when he has the legal capacity to affirm or disaffirm the deed ; but the deed is not rendered void by the entry. It may still be affirmed after he reaches his majority.^"® The rule, however, does not apply to a sale and manual delivery of chattels by an infant. Such a contract may be avoided by him while he is still an infant.^"^ In a New York case it was said:. "The gen- 107 Reeves, Dom. Rel. 254; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53; Adams v. Beall, 67 Md. 53, 8 Atl. G64, 1 Am. St. Rep. 379. Au infant may avoid liis contracts for personal services during his minority. Vent v. Osgood, 19 Pick. (Mass.) 572; Ray v. Haines, 52 111. 485; Adams v. Beall, G7 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 37; Gaffney v. Haydeu, 110 Mass. 137, 14 Am. Rep. 580; Vehue v, Pinkham, 60 Me. 142; Whitmarsh v. Hall, 3 Denio (N. Y.) 375. 108 Welch V. Bunce, 83 Ind. 382; Zouch v. Parsons, 3 Burrows, 1794; Irvine V. Irvine, 5 Minn. 61 (Gil. 44); Hastings v. Dollarhide, 24 Cal. 195; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; McCormick v. Leggett, 53 X. C. 425; Stafford v. Roof, 9 Cow. (N. Y.) 626; Baker v. Kennett, 54 Mo. 88. An infant, however, may, liefore attaining his majority, yplead infancy in a suit to foreclose a mortgage on land. Schneider v. Staihr, 20 Mo. 269. 100 Stafford v. Roof, 9 Cow. (N. Y.) 626; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; Zouch v. Parsons, 3 Burrows, 1794; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Shipinan v. Ilortou, 17 Conn. 481; Riley v. Mallory, .33 Conn. 207; Willis v. Twambly, 13 Mtw^s. 204; Carr v. Clough, 26 N. H. 280, 59 Am. Dec. 345; Chapin v. Shafer, 49 N. Y. 407; Towle v, Dresser, 73 Me. 252; Iloyt v. M'llkiHson, 57 Vt. 404; Carpenter v. Carpenter, §§ 102-1U4) TIME OF AVOIDANCE. 165 eral rule is that an infant cannot avoid his contract, executed by him- self, and which is therefore voidable only, while he is within age. He lacks legal discretion to do the act of avoidance. But this rule must be taken with the distinction that the delay shall not work unavoidable prejudice to the infant, or the object of his privilege, which is intended for his protection, would not be answered. When applied to a sale of his property, it njust be his land ; a case in which he may enter and receive the profits until the power of finally avoiding shall arrive. * * * Should the law extend the same doctrine to sales of his per- sonal estate, it would evidently expose him to great loss in many cases, and we shall act up to the principle of protection much more effectually by allowing'him to rescind" while under age, though he may sometimes misjudge, and avoid a contract which is for his own benefit. The true rule, then, appears to me to be that, where the infant can enter and hold the subject of the sale till his legal age, he shall be incapable of avoiding till that time ; jDut where the possession is changed, and there is no l;;ga] means to regain and hold it in the meantime, the infant, or his guardian for him, has the right to exercise the power of rescission immediatelv." "<* The rule is very general, almost universal, that an infant may avoid any contract in relation to his personal property before he is of age.^^^ Seme courts have held that he cannot disaffirm a partnership agree- ment during his minority, so as to recover what he has put into the firm, but must wait until he attains his majority. ^^^ Other courts hold the contrary, on the ground that it is a contract in relation to his per- sonalty, and that al! contracts of an infant in relation to personal prop- erty may be disaffirmed during his minority. ^^^ As to whether a contract must be disaffirmed by an infant within a reasonable time afte" he attains his majority, the authorities are con- flicting. In the case of executor}- contracts requiring ratification to render them binding, the right to avoid them cannot bt barred by mere 45 Ind. U2; Cogley v. Cushman 16 Jlinn. 397 (Gil. 354); Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194. 110 Staff orcT v. Roof, supra 111 See Shirk v. Shultz, 113 In^. 571, 15 N. E. 12 (collecting cases); Rice v. Boyer, 108 Lnd 472, 9 N. E. 420, 58 Am. Rep. 53; Hoyt v. Willdnson, 57 Vt. 404; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Willis v. Twambly, 13 Mass. 204; Stafford v. Roof, 9 Cow. (X. Y.) 628; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; Petrie v. Williams. OS Hun, 589, 23 N. Y. Supp. 237; Cogley V. Cushman, 16 Minn. 397 (Gil. 354). Contra: Lansing v. Railroad Co., 126 Mich. 663, 86 N. W. 147, 86 Am. St. Rep. 567. And see Pippen v. In- surance Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 505. 112 Dunton v. Brown, 31 Mich. 182; Armitage v. Widoe, 36 Mich. 130; Bush V. Linthieum, 59 Md. 344 (but see Adiuns v. Beall, 67 Md. 53, 8 Atl. 6G4, 1 Am. St. Rep. 37). 113 Shirk V. Shultz, 113 Ind. 571, 15 N. E. 12 (collecting cases); Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 37. 166 CAPACITY OF PARTIES. (Ch. 6 silence, without more. It may be otherwise where the circumstances are such as to make it the infant's duty to speak, for in such a case silence or acquiescence may amount to a ratification.^^* In the case of conveyances of land, sales and delivery of chattels, and the like, many courts hold that the infant must disaffirm the contract within a reasonable time after he attains his majority, or be held to have ratified it, and to be barred from avoiding it.^^" Many courts, however, have held that a conveyance of land by an infant need not be disaffirmed within any period short of that prescribed by the statute of limitations, and that acquiescence for any shorter time will not bar his right to avoid it.^^® It is provided by statute in some states that an infant is bound on all his contracts unless he disaffirms them within a reasonable time.^^^ l^ '^ ' * SAME— WHAT AMOUNTS TO A RATIFICATION. 105. In some jurisdictions, by statute, ratification of a contract by an infant must, snbject to specified exceptions, be in ^nrriting, signed by bim or bis agent. 106. In tbe absence of sncb a provision, ratification may be by an ex- press neixr promise, orally or in xcrriting; or it may be implied from declarations or conduct clearly sbo\ving an intention to be bound. 107. Tbe promise must be made or tbe acts done by tbe infant under- standingly, but tbe cases are in conflict as to w^betber knoxrl- edge of tbe legal rigbt to avoid tbe contract is necessary. 114 Ante, p. 162 ; post, p. 169. 115 Delano v. Blake, 11 Wend. (N. Y.) 85, 25 Am. Dec. 617; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N. W. 283, 47 Am. Rep. 798 (collecting tlie cases pro and con); Bigelow v. Kinney, 3 Vt 353, 21 Am. Dec. 589; Dolpti V. Hand, 156 Pa. 91, 27 Atl. 114, 36 Am. St. Rep. 25; Amey v. Cockey, 73 Md. 297, 20 Atl. 1071; Ihley v. Padgett, 27 S. C. 300, 3 S. E. 468; Sanders V. Bennett (Ky.) 1 S. W. 436; Scott v. Buchanan, 11 Humph. (Tenn.) 468; Aldrich v. Funk, 48 Hun, 367, 1 N. Y. Supp. 543; Ward v. Laverty, 19 Neb. 429, 27 N. W. 393 ; Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089 ; Kline v. Beebe, 6 Conn. 506. An infant's delay of less than six months after majority in avoiding a deed of land, with knowledge that purchasers from his gran- tee are making improvements, does not estop him. Ruudle v. Spencer, 67 Mich. 189, 34 N. W. 548. ii« Drake's Lessees v. Ramsay, 5 Ohio, 251; Prout v. Wiley, 28 Mich. 164; Lacy V. Pixler, 120 Mo. 383, 25 S. W. 206; Sims v. Everhardt, 102 U. S. 300, 26 L. Ed. 87; Wells v. Seixas (C. C.) 24 Fed. 82; Richardson v. Pate, 93 Ind. 482, 47 Am. Rep. 374; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; Eagan V. Scully, 29 App. Div. 617, 51 N. Y. Supp. 680, affirmed 173 N. Y. 581, 65 N. E. 1116; Shipp v. McKee, 80 Miss. 741, 32 South. 281, 92 Am. St Rep. 616. 117 Leacox v. Griffith, 76 Iowa, 89, 40 N. W. 109; Mehlhop v. Rae, 90 Iowa, 30, 57 N. W. 650; Hegler v. Faulkner, 153 U. S. 109, 14 Sup. Ct. 779, 38 L. Ed. 653 (Tinder Nebraska statute); Johnson t. Storie, 32 Neb. 610, 49 N. W. 371. §§ 105-107) WHAT AMOUNTS TO A RATIFICATION. 167 In some jurisdictions it is declared by statute that, with specified ex- ceptions, no action shall be maintained on any contract made by an in- fant, unless he, or some person lawfully authorized, ratified it in writ- ing after he attained his majority. ^^^ In the absence of such a pro- vision, ratification may either be by an express new promise, made orally or in writing, or it may be implied from acts or declarations clearly showing an intention to recognize the contract, and to be bound by it. The new promise, whether in writing or oral, or evidenced by conduct, must be clear and unequivocal, and must show an intention to be bound. ^^® A mere acknowledgment of the contract, without a promise to be bound, express or implied, is not sufficient.^ ^° Where there is a new promise, it must be made to the other party or his agent ;^^^ and if it is not absolute, but conditional — as, for instance, where it is a promise to pay or otherwise perform when able — the condition must be ful- filled before any liability attaches. ^^* It has frequently been held that to render an act or promise binding as a ratification it must be performed or made with knowledge that there was in law no liability on the original contract.^^' There are many cases, however, which hold that knowledge of the law is not necessary, or, rather, must be presumed.^^* There need be no fresh consideration for the new promise, for, as we have seen, this is one of the cases in which a past censideration is suflicient.^*' 118 Bird V. Swain, 79 Me. 529, 11 Atl. 421. 118 Whitney v. Dutch, 14 Mass., at page 460. 7 Am. Dec. 229; Carrell v. Potter, 23 Mich. 379. And see notes 126-131, infra. 120 Ford V. Phillips, 1 Pick. (Mass.) 202; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Hale v. Gerrish, 8 N. H. 374. 121 Goodsell V. Myers, 3 Wend. (N. Y.) 479; Bigelow v. Grannis, 2 HHI (N. Y.) 120. 122 Everson v. Carpenter, 17 Wend. (N. Y.) 419; Kendi-ick v. Neisz, 17 Colo. 506, 30 Pac. 245; Thompson v. Lay, 4 Pick. (Mass.) 48, 16 Am. Dec. 325; Proctor V. Sears, 4 Allen (Mass.) 95. 128 Hamer v. Killing, 5 Esp. 103; Curtin v. Patton, 11 Serg. & R. (Pa.^ 305; Thing v. Libbey, 16 Me. 55; Trader v. Lowe, 45 Md. 1; Smith v. Mayo, '^ Mass. 62. 6 Am. Dec. 28; Ford v. Phillips, 1 Picli. (Mass.) 202; Reed v. Boshears, 4 Sneed (Tenn.) 118; NoiTis v. Vance, 3 Rich. Law (S. C.) 164; Bur- dett V. Williams (D. C.) 30 Fed. 697 ; Bresee v. Stanly, 119 N. C. 278, 25 S. E. 970. No ratification, if adult is ignorant that he was an infant when he made the contract Ridgeway v. Herbert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St Rep. 464. 124 Morse v. Wheeler, 4 Allen (Mass.) 570; Taft v. Sergeant, 18 Barb. (N. Y.) 321 ; Anderson v. Soward, 40 Ohio St. 325, 48 Am. Rep. 687 : American Mort- gage Co. V. Wright 101 Ala. 658, 14 South. 399 ; Clark v. Van Court, 100 Ind. 113, 50 Am. Rep. 774 ; Ring v. Jamison, 66 Mo. 424 ; Bestor y. Hickey, 71 Conn, 181, 41 Atl. 555. 126 Ante, p. 140. 168 CAPACITY OF PARTIES. (Ch. G Implied Ratification. Unless a statute so requires, an express promise in terms is not necessary in order to constitute ratification of an obligation incurred during- infancy. "Where the declarations or acts of the individual after becoming of age," said the Vermont court, "fairly and justly lead to the inference that he intended to and did recognize and adopt as binding an agreement executory on his part, made during infancy, and intended to pay the debt then incurred, we think it is sufficient to con- stitute ratification, provided the declarations were freely and under- standingly made, or the acts in like manner performed, and with knowl- edge that he was not legally liable." ^*® The courts go much further than this, and hold substantially that any intelligent conduct by a person, after attaining his majority, in- consistent with the nonexistence of a contract, executory or executed, will, as a rule, amount to an affirmance of the contract.^^^ If, for in- stance, an infant takes a lease, and after becoming of age recognizes it by occupying under it, or if, having given a lease, he accepts rent after becoming of age, his conduct amounts to a ratification.^ ^^ So, also, a purchase of land or chattels by an infant is ratified if he retains and uses the property for an unreasonable time after attaining his ma- jority, or if he sells it to a third person, or otherwise disposes of it.^^* 120 Hatch V. Hatch's Estate, 60 Vt. 160, 13 Atl. 791. And see Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Baker v. Kennett, 54 Mo. 88; Wheaton v. East, 5 Yerg. (Tenn.) 41, 26 Am. Dec. 251; Ernmous v. Murray, 16 N. H. 3S5; Drake v. Wise, 36 Iowa, 476; Hale v. Gerrish, 8 N. H. 374; Middleton v. Hoge, 5 Bush (Ky.) 478 (colIectiDg cases); Barlow v. Robinson, 174 111. 317, 51 N. E. 1045. See Ewell, Lead. Cas. 173-180. 12T Hem-y v. Root, 33 N. Y. 526 (collecting cases). Where an infant buys land, and gives a mortgage to secure the purchase money, a sale and con- veyance of the land after h© becomes of age is a ratification of the mort- gage. Uecker t. Koehn, 21 Neb. 559, 32 N. W. 583, 59 Am. Rep. 849. And see Callis V. Day, 38 Wis. 643. Acceptance of part of the proceeds of a sale un- der a deed of trust given while an infant. Darraugh v. Blackford, 84 Va. 509, 5 S. E. 542. Taking releases of part of premises mortgaged during infancy, and acquiescence for two years. Wilson v. Darragh, 55 Hun, 605, 7 N. Y. Supp. 810. 128 Ashfleld T. Ashfleld, W. Jones, 157; Paramour v. Yardley, Plowd. 546. 129 Henry v. Root, 33 N. Y. 526; Lawson v. Lovejoy, 8 Me. 405, 23 Am. Dec. 526; Boyden v. Boyden, 9 Mete. (Mass.) 519; Robbins v. Eaton, 10 N. H. 561; Hubbard v. Cummings, 1 Me. 11; Boody v. McKenney, 23 Me. 517; Ellis v. Alford, 64 Miss. 8, 1 South. 155; Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538; Cheshire v. Barrett, 4 McCord (S. C.) 241, 17 Am. Dec. 735; Deason V. Boyd, 1 Dana (Ky.) 45; Shropshire v. Burns, 46 Ala. 108; Aldrich v. Grimes, 10 N. H. 194; Dana v. Coombs, 6 Grecnl. (Me.) 89, 19 Am. Dec. 194; Armfield v. Tate, 29 N. C. 258; Callis v. Day, 38 Wis. 643; Hilton v. Shepherd, 92 Me. 160, 42 Atl. 387. This is expressly declared by statute in some states. See McKamy v. Cooper, 81 Ga. 679, 8 S. E. 312. Retaining property after tendering it on disaffirmance, and on the other's refusal to receive it, is not a ratification. House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189. §§ 105-107) WHAT AMOUNTS TO A RATIFICATION. 169 The receipt of, or a suit to recover, the purchase money of property sold by him, or suit to enforce any other kind of contract, would amount to a ratification of the contract.^^*^ Generally speaking, the act relied upon as a ratification must show an intention to affirm the con- tract; but the decisions are not in accord as to what acts are sufficient to show such an intention. Disposing of the property received under the contract, and the other acts above mentioned, would clearly show such intention ; but where an infant has executed a conveyance, a mere offer, after attaining his majority, to execute a confirmatory deed if the other party will pay the balance of the purchase money, which offer is refused, clearly could not be regarded as a ratification of the sale and convejance.^^^ Mere silence or acquiescence after becoming of age, without more, does nor, as a rule, amount to a ratification.^'* It is otherwise where the contract is one which requires disaffirmance, and there is a failure to disaffirm for an unreasonable time, under such circumstances as to lead others to act to their prejudice.^ '^ And see Scott v. Scott, 29 S. C. 414, 7 S. E. 811. The retention by a person, after becoming of age, of material furnished him during his minority in the construction of his houss, is not a ratification of his purchase of the material, for he cannot return it. Bloomer v. Nolan, 36 Neb. 51, 53 N. W, 1039, 38 Am. St. Eep. 690. 180 Morrill v. Aden, 19 Vt. 505; Fe:gt:son v. Bell's Adm'r, 17 Mo. 347; Purs- ley V. Hays, 17 Iowa, 310. Where an infant takes a deed and gives back a purchase-money mortgage, and the property is sold under the mortgage, the infant after his majority, by bringing ejectment against the purchaser, not only affirms the deed, but the mortgage. Kennedy v. Baker, 159 Pa. 146, 28 Atl. 252. lii Craig V. Van Bebbei', 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 569. WheX'i a note by an infant remains In part unpaid, mere acknowledgment of the debt, or payment of interest or part of principal, after becoming of age. Is not a binding affirmance. Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245. Contra, American Mortgage Co. v. Wright, 101 Ala. 658. 14 South. 399. So, where land has been purchased, and installment notes given by an infant, payment of some after becoming of age is not of itself a ratification. Rapid Transit Land Co. v. Sanford (Tex. Civ. App.) 24 S. W. 587. The recital in a mortgage executed after attaining majority, that It is subject to a mortgage executed during Infancy, is a ratiflcation of the prior mortgage. Ward v. An- derson, 111 N. 0. 115, 15 S. E. 933. 132 Durfee v. Abbott, 61 Mich. 471, 68 N. W. 521; Irvine v. Irvine, 9 Wall. 618, 19 L. Ed. 800; Tyler v. Fleming, 68 Mich. 185, 35 N. W. 902, 13 Am. St. Eep. 336; Hill v. Nelms, 86 Ala. 442, 5 South. 796. But see Delano v. Blake, 11 Wend. (N. Y.) 85, 25 Am. Dec. 617; ante, p. 165. 138 Langdon v. Clayson. 75 Mich. 204, 42 N. W. 805; Lacy v. Pixler. 120 Mo. 383, 25 S. W. 206; Dolph v. Hand, 156 Pa. 91, 27 Atl. 114, 36 Am. St Rep. 25; Wheaton v. East, 5 Yerg. 41, 62. 26 Am. Dec. 258; Hartman r. Kendall, 4 Ind. 403; Wallace's Lessee v. Lewis, 4 Har. (Del.) 80. CAPACITY OF PARTIES. (Oh. 6 .4^ SAME— WHAT AMOUNTS TO DISAFFIRMANCE. 108. A contract is disaffirmed by any conduct T^hich. is inconsistent with the existence of the contract, and shovtrs an intention not to be bound by it. Disaffirmance, like ratification, may be implied, and it will generally be implied from conduct clearly inconsistent with the existence of the contract.^^* Where, for instance, a person who has sold and conveyed or mortgaged land or goods while an infant, sells, leases, or mortgages the same to another after becoming of age, this is a disaffirmance of his contract.^^° An action by a person, after becoming of age, to re- cover goods or land sold by him during his minority, is a disaffirmance of the sale; ^^* and a contract is disaffirmed by merely pleading infancy when suit is brought against him to enforce it. At one time disaffirmance of a deed of land was required to be by some act as high and solemn as the deed ; but, according to the weight of authority, this solemnity is no longer necessary, and a deed may be effectually avoided by any acts or declarations disclosing an unequivo- cal intent to repudiate it^*'' 134 Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; Vent v. Osgood, 19 Pick. (Mass.) 572; Whitmarsh v. Hall, 3 Deuio (N. Y.) 375; Dallas v. HoUingsworth, 3 Ind. 537. 135 Tucker v, Moreland, 10 Pet. 58, 9 L. Ed. 345; Mustard v, Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Vallandingliam v. Johnson, 85 Ky. 288, 3 S. W. 173; Corbett v. Spencer, 63 Mlcb. 731, 30 N. W. 385; Haynes v. Bennett, 53 Mich. 15, 18 N. W, 539; Dawson v. Helmes. 30 Minn. 107, 14 N. W. 462; Chapin v, Shafer, 49 N. Y. 407; Peterson v. Laik, 24 Mo. 541, 69 Am. Dec. 441; Cresinger v. Welch's Lessee, 15 Ohio, 156, 45 Am. Dec. 565; Pitcher v. Layrock, 7 Ind. 398; McGan v. Marshall, 7 Humph. (Tenn.) 121; Ridgeway v. Herbert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St. Rep. 464. In some jurisdictions a person is not allowed to convey land which is in the ad- verse possession of another. Here, therefore, an infant cannot avoid his deed of land by a second deed, executed while his first grantee or another is in the adverse possession of the land. He must first make an entry. Harrison v. Adcock, 8 Ga. 68. See Bool v. Mix, 17 Wend. (N. Y.) 133, 31 Am. Dec. 285. 136 Clark V. Tate, 7 Mont. 171, 14 Pac. 761; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 569; Philips v. Green, 3 A. K. Marsh. (Ivy.) 7, 13 Am. Dec. 124; Stotts v. Leonhard, 40 Mo. App. 336; Scott v. Buchanan, 11 Humph. (Tenn.) 469; Hughes v. Watson, 10 Ohio, 134. Where, however, the action is based on the assumption that defendant is wrongfully in posses- sion, as in the case of ejectment, the weight of authority seems to require that there shall have been some previous act of disaffirmance on the part of the infant, for until disaffirmance defendant is rightfully in possession. See Law V. Long, 41 Ind. 586; McClanahan v. Williams, 136 Ind. 30, 35 N. E. 897; Bool v. Mix, 17 Wend. (N. Y.) 135, 31 Am. Dec. 285; Clawson v. Doe, 5 Blackf. (Ind.) 300; Wallace's Lessee v. Lewis, 4 Har. (Del.) 75. 13T McCarty v. Iron Co., 92 Ala. 463, 8 South. 417, 12 L. R. A. 136. And Bee note 135, supra. §g 109-111) KETURN OF CONSIDERATION. 171 SAME— EXTENT OF RATIFICATION OR DISAFFIRMANCE. 109. The ratification or disaffirmance mnst be in toto. The contract cannot be ratified or disaffirmed in part only. The disaffirmance or ratification must go to the whole contract. An infant cannot ratify a part which he deems for his benefit, and repudi- ate the rest/^® He cannot, for instance, ratify a lease to himself, and avoid a covenant in it to pay rent ; nor can he hold lands conveyed to him in exchange, and avoid the transfer of those with which he part- ed; ^^^ nor can he hold land conveyed to him, and repudiate a mort- gage given at the time as part of the same transaction to secure the purchase money. ^*° As a rule, a person cannot retain property purchased by him during infancy, and repudiate the contract under which he received it; nor can he disaffirm a sale by him, and retain the consideration received; but as to this there is much conflict, and we must go into the subject at some length. SAME— RETURN OF CONSIDERATION. 110. An infant may disaffirm his executory contract \17ithont first re- turning the consideration he has received; but after disaffirm- ance he must return the consideration, if he has it. 111. If the contract has been executed by him, he cannot avoid it, and recover T^hat he has paid, or for ^vhat he has done, without re- turning the consideration if he has it; but, by the ^veight of authority, if he has squandered or other^vise disposed of it dur- ing his minority, it is otherwise. EXCEPTIONS — (a) Though the infant has the consideration, he may effectually disaffirm his executed contract without its return as a condition precedent, if he does not affirmatively seek re- lief; as, for instance, w^here he disaffirms his conveyance of land by conveying to another. Qt) Some courts hold that an infant cannot recover \ehat he has paid, or for w^hat he has done, under a contract by ivhich he has received a substantial benefit, unless he can and does place the other party in statu quo. This probably does not apply to his conveyances of land. 188 Badger v. Pbinney, 15 Mass. 359, 8 Am. Dec. 105; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 589; LK3wry v. Drake's Heirs, 1 Dana (Ky.) 46. Cf. O'Rourke v. Insurance Co., 23 E. I. 457, 50 All. 834, 57 L. R. A. 496, 91 Am. SL Rep. 643. 139 Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538. 140 Hubbard v. Cummings, 1 Greenl. 11; Uecker v. Koebn, 21 Neb. 559, 32 N. W. 583. 59 Am. Rep. 849; Bigelow v. Kinney, 3 Vt 353, 21 Am. Dec. 589: Heath v. West, 28 N. H. 108; Young v. McKee, 13 Mich. 556; Skinner v. Maxwell, 66 N. C. 45; Cogley v. Cushuian, 16 Minn. 402 (Gil. 354); Callis v. 172 CAPACITY OF PARTIES, (Cb. 6 As we have just stated, when a person avoids a contract made by him during his minority, he must, as a rule, return the consideration he has received.^*^ As to whether or not he must do so as a condition precedent to disaffirmance, or whether the other party must be left to his action to recover the consideration after disaffirmance, and_as tq^ whether the consideration must be returned where it has been wasted or otherwise disposed of, the decisions are conflicting, (a) Where the contract is executory on the part of the infant, and he has not ratified it by his conduct, as explained above,^*^ it cannot, according to the weight of authority, be enforced against him, even though he retains the consideration received by him in kind. He need not return the consideration as a condition precedent to repudiating the contract and pleading his infancy in an action brought against him to enforce it.^** When he repudiates his contract, however, he no longer has any right to the consideration he has received, and at least, if he has it, the other party may maintain an action to recover it.^** According to the weight of authority, if he has disposed of the con- sideration so that he cannot return it in kind, he cannot be held liable for it. The adult is remediless.^*" It must be remembered that re- taining the consideration may amount to a ratification. (b) Where the contract is executed on the part of the infant, and he has the consideration received by him in kind, many cases hold that he cannot repudiate the contract, and recover what he has parted with, unless he returns, or offers to return, the consideration.^*" Many cases, Day, 38 Wis. 643 ; Ready v. Pinkham, 181 Mass. 351, G3 N. E. 887. Cf. Not- tingham, etc., Soc. V. Thurston, 19 L. T. R. 54 (H. L.). 1*1 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 5S9; Wilhelm v. Hardman, 13 Md. 140; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Combs v. Hawes (Cal.) 8 Pac. 597 (statutoi-y) ; Kitchen v. Lee, 11 Paige (N. Y.) 107, 42 Am. Dec. 101; Bartlett v. Cowles, 15 Gray (Mass.) 446. 1*2 Ante, p. 168. 1*8 Craighead v. Wells. 21 Mo. 409: Price v. Furman, 27 Vt. 268, 65 Am, Dec. 194. See, also, Nichols & Shepard Co. v. Snyder, 78 Minn. 502, 81 N. W. 516. 1** Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Mustard v. Wohl- ford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209. Where an infant bought of another infant, and paid the price, and after the seller had spent the mon- ey the l)uyer disaffirmed the contract, and brought action to recover tlie mon- ey paid both in contract and in tort, it was held that the defendant's plea of infancy was a defense to the count in contract, and that there was no deal- ing with the money by the defendant which could constitute conversion. Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. R. A. 755. 14 5 See Brawner v. Franklin, 4 Gill (Md.) 470; Boody v. McKenney, 23 Me. 517, 525. And see post, p. 178. i«« See Price v. Furman, 27 Vt 268, 65 Am. Dec. 194; Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476; Carr v. Clough, 26 N. H. 280, 59 Am. Dec. 345; Robinson v. Weeks, 50 Me. 102; Johnson v. Insurance Co., 56 Minn. 365, 57 §§ lOD-111) RETURN OF CONSIDERATION. 173 on the other hand, go to the extent of saying without qualification that the return of the consideration in such a case is not a condition pre- cedent to the right to disaffirm and recover what has been parted with ; although, if the infant still retains the consideration, the adult may re- claim it, or, upon demand and refusal, recover in trover.^*'' That return of the consideration is not a condition to disaffirmance, where the disaffirmance by the infant is by dealing with the property he has parted with as his own, and where he is not seeking the aid of a court to recover it, is everywhere conceded ; as where, having sold land and received the purchase money, he disaffirms by conveying the land to an- other. The latter deed is effectual though he has not returned the consideration for his prior deed.^*^ (c) According to the weight of authority, an infant, on attaining his majority, may disaffirm his contract, whether it is executory or ex- ecuted, and in the latter case may recover back what he has parted with, or for what he has done, without returning or offering to return the consideration received by him, if, during his minority, he has squandered or otherwise disposed of it so that he cannot return it.^*® N. W. i.J4, 26 L. R. A. 187, 45 Ain. St Rep. 473 ; Lane v. Iron Co., 101 Tenn. 581, 48 R. W. /1094. See, also, cases cited infra, note 151. Money Don-owed by an infant mortgagor and used to pay off prior liens and for permanent impi-ovements will be regarded in equity as in his hands ; and ill a suit to foreclose the mortgage after disaffirmance, relief may be given ty a stile of the property and the application of the proceeds in such manner uu ix> place the mortgagee in statu quo, provided this can be done wiiaou depriving the mortgagor of an interest equivalent to that vrhich he had in the property at the time the mortgage was executed. MacGreal v. Taylo. 167 U. S. 688, 1/ Sup. Ct. 961. 42 L. Ed. 326. Cf. Nottingham, etc., Soeietj v. Thtrston, 19 L. T. R. 54 (H. of L.), affirming s. c. [1902] 1 Ch. 1 (C. A.), reversing s. c. [1901] 1 Ch. 88. I'^T Chandltr v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Tucker v. More- land, 10 Pet. 58, 73, 9 L Ed. 345 ; Shaw v. Boyd, 5 Serg. & R. (Pa.) 309, 9 Am. Dec. 368; McCarty v. Iron Co., 92 Ala. 463, 8 South. 417, 12 L. R. A. 136;, SWrk V. Siiultz, 113 Ind. 571, 15 N E. 12; Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L R. A. 755 i*« Dawson v. Helmes, Hi Mmn. 107, 14 N. W. 462. 1*8 Chandler a . Simmons, 97 Mass. 508, 93 Am. Dec. 117; Price v, Furraan, 27 Vt. 268, 65 Am. Dec. 191; Boody v. McKenney, 23 Me. 517; Lemmon v. Eceman, 4f Ohio St. 505, 15 N. E. 476; Reynolds v. McCurry, 100 Hi. 356; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Miller v. Smith, 26 Minn. 248, 2 N. VV. 942, 37 Am. Rep. 407; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233 ; Mordecai v. Pearl, 63 Hun, 553, 18 N. Y. Supp. 543 ; Petrie v. Williams, 68 Ilun, 589, 23 N. Y. Supp. 237 ; Brandon v. Brown, 106 111. 519; Craig v. Van Bobber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 569; Lacy V. Pixler, 120 Mo. 383, 25 S. W. 206; Harvey v. Briggs, 68 Miss. 60. 8 South. 274, 10 L. R. A. 62; Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. Rep. 065; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732 ; Ridgeway v^ Herbert, 150 INIo. 606, 51 S. W. 1040, 73 Am. St. Rep. 404; MacGreal v. Taylor, 167 U. S. 688, 17 Sup. Ct 961, 42 L. Ed. 174 CAPACITY OF PARTIES. (Ch. 6- He is not bound to return an equivalent. Some of the courts extend this rule to cases in which the infant was even benefited by disposing of the consideration.^^" The principle on which this rule is based is that the privilege of the infant to avoid his contracts is intended to protect him against the improvidence which is incident to his imma- turity, and that to require him to return the consideration received and squandered or otherwise disposed of during his minority would be to withdraw this protection, and frustrate the object of the law. This rule has been applied, not only where the contract was a sale and con- veyance of land by the infant, but to sales of personalty and other con- tracts as well. (d) Many courts, on the other hand, apply the principle that the privilege of an infant is intended as a shield, and not as a sword, — or, in other words, as a protection to the infant, and not as an instru- ment of fraud and injustice to others, — hold, or have held, that an in- fant cannot avoid his executed contracts, whereby he has benefited, and recover what he has parted with, or for what he has done, unless he can and does restore the consideration he has received ; and that it is immaterial that the consideration has been disposed of by him, or for any other reason cannot be returned. In other words, they hold that an infant who receives a substantial consideration for his executed con- tract cannot, on attaining his majority, avoid the contract, and recover what he has parted with, unless he can and does place the other party in statu quo.^"^^ 326; Bullock v. Sprowls, 93 Tex. 188, 54 S. W. 661, 47 L. R. A. 326, 77 Am. St. Rep. 849; White v. Cottou AVaste Corp., 178 Mass. 20, 59 N. E. 642; Gillis v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 26-5. iBOA minor who contracts with his employer that the price of articles, not necessaries, purchased by him from his employer, shall be deducted from his wages, may, on becoming of age, repudiate his contract, and recover his wages without deduction; and this, even though he may have disposed of the articles to his benefit. Morse v. Ely, 154 Mass. 458, 28 N. E. 577, 26 Am. St. Rep. 203. And see Genereux v. Sibley, 18 R. I. 43, 25 Atl. 345. 1" Adams v. Beall. 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Wilhelxn v. Hardman, 13 Md. 140; Holden v. Pike, 14 Vt. 405, 39 Am. Dec. 228; Womack V. Womack, 8 Tex. 397, 417. 58 Am. Dec. 119; Bailey v. Bamberger, 11 B, Mon. (Ky.) 113. The right to avoid is conditional on his restoring what he received in specie, or, if he cannot, on his accounting for its value. Heath V. Stevens, 48 N. H. 251; Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Bartlett v. Bailey, 59 N. H. 408; Riley v. Mallory, 33 Conn. 201. In England the right to avoid an executed sale and recover back the price is de- nied. Holmes v. Blogg, 8 Taunt. 508; Ex parte Taylor, 8 De G. M. & G. 258. See, also, Williams v. Pasquali, Peake, Add. Oas. 197; Valentini v. Canali, 24 Q. B. D. 166. Where the personal contract of an infant is fair and reason- able, and free from fraud or undue influence, and has been wholly or partly perforniod on both sides, so that the infant has enjoyed the benefits of it, but has parted with what he has received, or the benefits are of such a nature that ho cannot restore them, he cannot recover back what he has paid, John- i§ 112-114) EFFECT OF RATIFICATION AND DISAFFIRMANCE. 175 X SAME— EFFECT OF RATIFICATION AND DISAFFIRMANCE. 112. Ratification renders the contract absolutely binding ab initio. 113. DisafiSrzaance renders the contract absolutely void ab initio, and the rights of the parties are determined as if there had never been a contract bet^peen them. 114. Third parties, therefore, acquire no rights under an avoided con- tract. Disaffirmance of a contract relates back to the date of the contract, and renders it void on both sides ab initio; ^^^ and it follows that the rights of the parties must be determined as if there never had been any contract. One, therefore, who has occupied land under a deed by an infant which is avoided by him on becoming of age is liable for rents during the" time of his occupation, just as if there had been no deed.^^^ If the infant's vendee has sold the property to a third per- son, the latter occupies no better position than the vendee, and the prop- erty may be recovered from him even though he was a purchaser for value, and without notice of the defeasible nature of the title. ^"^^ Where services have been rendered by an infant under a voidable contract, and he has received nothing under it, he may, on disaffirming the contract, recover the value of the services as upon an implied con- tract/ ^"^ In such a case he may, according to the better opinion, re- cover without any deduction for damages caused by his breach of the contract, for to allow such a deduction would be, in effect, to enforce son V. Insuiiance Co., 56 Minn. 365, 57 N. W. 934, 26 L. R. A. 187, 45 Am. St. Rep. 473; Alt v. Graff, 65 Minn. 191, 68 N. W. 9. See, also, Rice v. Butler, 160 N. Y. 578, 55 N. E. 275, 47 L. R. A. 303, 73 Am. St. Rep. 703. Cf. Gillis v. Goodwin, ISO Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 265. 152 Rice V. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53; Mustard v. Wohlford's Heirs. 15 Grat. (Va.) 329, 76 Am. Dec. 209 ; French v. McAndrew, 61 iliss. 187; Boyden v. Boy den, 9 Mete. (Mass.) 519; Hoyt v. Wilkinson, 57 Vt. 404; Mette v. Feltgen (111.) 27 N. E. 911; Id., 148 111. 357, 36 N. E. 81; Derocber v. Continental Mills. 58 Me. 217, 4 Am. Rep. 286; Vent v. Osgood, 19 Pick. (Mass.) 572. 1B3 French v. McAndrew, 61 Miss. 187. 164 Hill V. Anderson, 5 Smedes & M. (Miss.) 216; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Searcy v. Hunter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837; Downing v. Stone. 47 Mo. App. 144; Miles V. Lingerman, 24 Ind. 385. isoMedbury v. Watrous, 7 Hill (N. Y.) 110; Gaffney v. Hayden, 110 Mass, 137, 14 Am. Rep. 580; Pric* v. Furman. 27 Vt. 268, 65 Am. Dec. 194; Vent V. Osgood, 19 Pick. (Mass.) 572; Ray v. Haines, 52 111. 485; Judkins v. Walk- er, 17 Me. 38, 35 Am. Dec. 229; Vebue v. Pinkham, 60 Me. 142; Lowe v. Siuk- lear. 27 Mo. 308; Dallas v. Hollingsworth, 3 Ind. 537; Lnfkin v. Mayall, 25 N. H. 82; Dearden v. Adams, 19 R. I. 217, 36 Atl. 3. But he can recover no more than he is equitably entitled to under all the circumstances. Hagerty y. Lock Co., 62 N. H. 576, 176 CAPACITY OF PARTIES. (Ch. 6 the contract.^"' So, also, if an infant has paid money or parted with other property under a voidable contract, and has himself received nothing, he may recover what he has parted with on avoiding the con- tract.^ '^ As to whether an infant who has received something under his contract can avoid it and recover what he has parted with, or for what he has done, the authorities are conflicting. We have already discussed this question, and shown the different positions which the (j\ courts have taken.^''® ♦ )'''' A-disaffirmarlce cannot be retracted. Ratification of a contract after it has once been disaffirmed comes too late.^^" SAME— TOUTS IN CONNECTION WITH CONTRACTS. 115. Tliongli an infant is liable for Ms torts, a breacli of contract cannot be treated as a tort, so as to make him liable. The tort must be separate and independent of it. 116. At common laxr, though it is otherMrise in equity, an infant's false representations as to his age will not estop him from avoiding his contract; they may, hon^ever, render him liable in an action for deceit. Though an infant is liable for his torts, it is well settled that a breach of contract cannot be treated as a tort, so as to make him liable. The wrong, according to the weight of authority, must be more than a misfeasance in the performance of the contract, and must be separate from and independent of it.^^° Where, for instance, an infant hired a horse to ride, and injured it by overriding, it was held that he could 166 Derocher v. Continental Mills, 58 Me. 217, 4 Am. Rep. 286; Whitmarsli V. Hall, 3 Denio (N. Y.) 375; Radley v. Kenedy (City Ct. Brook.) 1-1 N. Y. Supp. 268. But see Moses v. Stevens, 2 Pick. (Mass.) 332; Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690. The defendant may set o£E any legal claim against the infant; as, for instance, for necessaries furnished him. Meredith V. Crawford, 34 Ind. 399. 1B7 Stafford v. Roof, 9 Cow. (N. Y.) 026; Corpe v. Overton, 10 Bing. 252; Millard v. Hewlett, 19 Wend. (N. Y.) 301. And see cases cited in note 149, supra. 1B8 Ante, p. 171. 100 McCarty v. Iron Co., 92 Ala. 463, 8 South. 417, 12 D. R. A. 136; Pippen V. Insurance Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 505. 180 Jennings v. Rundall, 8 Term R. 335, JSwell, Lead. Cas. 185; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Freeman v. Roland, 14 R. I. 39, 51 Am. Rep. 340; West v. Moore, 14 Vt 447, 39 Am. Dec. 235; Campbell v. Perkins, 8 N. Y., at page 440; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; Mathews v. Cowan, 59 III. 341; Penrose v. Curren, 3 Rawle (Pa.) 351. 24 Am. Dec. 356. But see Vance V. Word, 1 Nott & McC. (S. C.) 197, 9 Am. Dec. 683; Peigne v. Sutcllffe, 4 Mc- Cord (S. C.) 387, 17 Am. Dec. 756; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53; Fitts v. Hall, 9 N. H. 441. An infant cannot he held liable §§ 115-116) TORTS IN CONNECTION WITH CONTRACTS. 177 not be made liable upon tbe contract by framing the action in tort for negligence.*'^ Where, on the other hand, an infant hired a horse ex- pressly for riding, and not for jumping, and then lent it to a friend, who killed it in jumping, he was held liable, because what he had done was not an abuse of the contract, but an act which he was expressly forbidden to do, and was, therefore, independent of the contract.*'^ The fraud of an infant in falsely representing himself to be of age, and so inducing another to contract with him, does not estop him from pleading his infancy if sued upon his contract.^**^ He may, however, in many jurisdictions, be held liable in an action for deceit.*** In equity, where the infant has falsely represented that he was of age, or taken active steps to conceal his age, or been otherwise guilty of fraud, and has thereby induced the other party to enter into the contract, his for false warranty on an exchange of horses, since it is "a case In which the assumpsit is clearly the foundation of the action; for it is in fact undertaliing that the horse w?.s sound." An infant is not bound on his warranties in an application for insurance, and the insurer cannot defend an action on the policy by proving th-^ir falsity. O'Rourke v. Insurance Co., 23 R. I. 457, 50 Atl. 834, 57 L. R. A. 496, 91 Am. St. Rep. 643. Green v. Greenbank, 2 Marsh. 485. A promise by an infant to marry is not binding on him, but he may never- tlieless be held liable for his tort in seducing a woman under promise of mar- riage. Becker v. Mason, 93 Mich. 336, 53 N. W. 361. 161 Jennings v. Rundall, 8 Term R. 335. He may, however, sue in trespass, though he cannot bring an action on the case, as the latter, but not the for- mer, would be based on lawful possession in defendant under the contract. Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. 162 Biirnird v. Hag.m's, 15 C. B. (N. S.) 45; Homer v. Thwing, 3 Pick. (Mass.) 492 ; Ray v. Tubbs, 50 Vt. 688, 28 Am, Rep. 519. But see Penrose v. Curren, 3 Rawle (Pa.) 351, 24 Am. Dec. 356. 163 Studwell V. Shapter, 54 N. Y. 249; Burdett v. Williams (D. C.) 30 Fed. 697 ; Wieland v. Kobick, 110 111. 16, 51 Am. Rep. 676 ; Conroe v. Birdsall, 1 Johns. Cas. (N. Y.) 127. 1 Am. Dec. 105; Merrlam v. Cunningham, 11 Cush. (Masii, 40; Brown v. McCune, 5 Sandf. (N. Y.) 228; Burley v. Russell, 10 N. H. 184, 34 Am. Dec. 146; Conrad v. Lane, 26 Minn. 389, 4 N. W. 695, 37 Am. Rep. 412; Sims v. Everhardt, 102 U. S. 300, 26 L. Ed. 87; Norris v. Vance, 3 Rich. Law (S. C.) 164; Whitcomb v. Joslyn, 51 Vt. 79, 31 Am. Rep. 678; Mc- Kamy v. Cooper, 81 Ga. 679, 8 S. E. 312. But see Bradshaw v. Van Winkle, 133 Ind. 134, 32 N. E. 877; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206; Carolina Interstate Buildiiig & Loan Ass'n v. Black, 119 N. C. 323, 25 S. E. 975; New York Building Loan Banking Co. v. Fisher, 20 Misc. Rep. 244, 45 N. Y. Supp. 795. Contra, under Kansas statute. Dillon v. Burnham, 43 Kan. 77, 22 Pac, 1016. 164 Fitts V. Hall, 9 N. H. 441; Rice v. Boyer, 108 Ind. 472, 9 N. B. 420, 58 Am. Rep. 53; Wallace v. Morss, 5 Hill (N. Y.) 391; Burley v. Russell. 10 N. H. 184, 34 Am. Dec. 146 ; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732 ; Eckstein v. Frank, 1 Daly (N. Y.) 334. Contra, Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R. A. 561, 15 Am. St. Rep. 931; Johnson v. Pie, 1 Sid. 258; Slay- ton V. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510. He is not liable in trover. Slayton v. Barry, supra. Clakk Cont. (2d Ed.) — 12 178 CAPACITY OF PARTIES. (Ch. 6 fraud will estop him from pleading his infancy to the other's preju- dice.^*^ Mere failure to disclose his age, however, is not such fraud as will warrant equitable interference with the common-law rule/®' Where an infant obtains goods by false and fraudulent representations as to his age, the better opinion is that the other party may rescind and recover them back/®'^ We have already to some extent noticed the remedies of the adult party where an infant repudiates his contract after having received the consideration. In such a case, he no longer has a right to hold the consideration ; and, if he refuses to return it, he is, according to the better opinion, guilty of a tort, for which the other party may maintain an action.^ "^ If the infant, while rightfully in possession of the consideration which he has received, has wasted or disposed of it during his minority, and he is allowed to disaffirm his contract, the other party is remedi- less,^®^ unless he can trace the property into the hands of those who obtained it from the infant. INSANE PERSONS— IN GENERAL. f ^ fl 117. As a rule, a contract entered into by an insane person, or person non compos mentis, is voidable at bis option; but tbe rule is subject to exceptions, as folloTtrs: EXCEPTIONS— (a) Tbe following contracts are valid and binding: (1) Contracts created by laiv, or quasi contracts. (2) In most, but not all, jurisdictions, ivbere tbe sane party acted fairly and in good faitb, without actual or coni- tructive knowledge of tbe other's insanity, and tbe contract bas been so far executed tbat be cannot be placed in statu quo. (b) Tbe follow^ing contracts are void: (1) In most, but not all, jurisdictions, contracts by a person wbo bas been judicially declared insane on inquisition, and placed under guardianship. (2) In a few^ jurisdictions, deeds; and, in most jurisdictions, powers of attorney or other appointments of an agent. 188 Ferguson v. Bobo, 54 Miss. 121. See Evans v. Morgan, 69 Miss. 3'JS, 12 South. 270; Cliarles v. Hastedt, 51 N. J. Eq. 171, 26 Atl. 564; Thormaehlen v. Kaeppel, 86 Wis. 378. 56 N. W. 1089. 16G Baker v. Stone, 136 Mass. 405; Sewell v. Sewell, 92 Ky. 500, 18 S. W. 162, 36 Am. St. Rep. 606; Davidson v. Young, 38 111. 145; Brantley v. Wolf, 60 Miss. 420; Price v. Jennings, 62 Ind. 111. 187 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Neff v. Landis, 110 Pa. 204, 1 Atl. 177. 188 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Mustard v. Wohl- ford's Heirs, 15 Grat. (Ya.) 329, 70 Am. Dec. 209; Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207 ; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732. i«» Ante, p. 173, note 149. § 117) INSANE PERSONS. 1T9 Formerly it was thought that a man could not avoid a contract en- tered into while he was non compos mentis. It was said to be a maxim of the common law that no man of full age should be allowed by plea to stultify himself, and thereby avoid his own deed or contract.^^° It seems, however, that this never was the common law, and that the cases so holding were erroneous.^" At any rate, the doctrine has long since been exploded, and it is almost universally held that a contract made by a person who is lacking in mental capacity, unless he has been judicially declared insane, is at most voidable.^^^ The incapacity may result from lunacy,^ '^^ from idiocy,*'^* from senile dementia,^^'' or any other defect or disease of the mind, whatever may be its cause.^^® To render a person thus incapable of contracting, his infirmity need not be so great as to dethrone his reason, nor amount to entire want of reason; "' but, on the other hand, it must be some- thins: more than mere weakness of intellect/^* It must be such as to render the person incapable of comprehending the subject of the con- 170 Beverley's Case, 4 Coke, 123; Co. Litt. 147; 2 Bl. Comm. 292. iTi Fitzli. Nat. Brev. 202; Yates v. Boen, 2 Strange, 1104; Webster v. Wood- ford, 3 Day (Conn,) 90; Mitchell v. Kingman, 5 Pick. (Mass.) 431. 172 Post. p. 181. 17 3 MeiTitt V. Gumaer, 2 Cow. (N. T.) 552. i74Burnham v. Kldwell, 113 111. 425; Ball v. Mannin, 3 Bligh (N. S.) 1, Ewell, Lead. Cas. 534. i7 5As to weakness of intellect or imbecility from old age, see Guild v. Hull, 127 III. 523, 20 N. E. 665; Peabody v. Kendall, 145 HI. 519, 32 N. E. 674; Argo V. Coffin, 142 111. 368. 32 N. E. 679, 34 Am. St. Rep. 86; Lynch v. Doran. 95 Mich. 895, 54 N. W. 882 ; King v. Cummings, 60 Vt. 502, 11 Atl. 727 ; Keeble V. Cummins, 5 Hayw. (Tenn.) 43; Coleman v. Frazer, 3 Bush (Ky.) 300; Bressey's Adm'r v. Gross (Ky.) 7 S. W. 150; Clark v. Kirkpatrick (N. J. Ch.) 16 Atl.' 309; Trimbo v. Trimbo, 47 Minn. 389, 50 N. W. 350; Cole v. Cole, 21 Neb. 84, 31 N. W. 493; Crowe v. Peters, 63 Mo. 429; Shaw v. Ball, 55 Iowa, 55, 7 N. W. 413; Marshall v. Marshall, 75 Iowa, 132. 39 N. W. 2.30. Old age is not of itself evidence of incapacity. Buckey v. Buckey, 38 W. Va. 168, 18 S. E. 383. And see cases cited above. 176 See Henderson v. McGregor. 30 Wis. 78; Brothers v. Bank, 84 Wis. 381, 54 N. W. 786, 36 Am. St. Rep. 932; Somes v. Skinner, 16 Mass. 348; Hale v. Bro^Ti. 11 Ala. 87; Conant v. Jackson, 16 Vt. 335; Wilson v. Oldham, 12 B. Mon. (Ky.) 55; Johnson v. Chadwell, 8 Humph. (Tenn.) 145. Result of habit- ual drunkenness: Bliss v. Railroad Co., 24 Vt. 424; Menkius v. Lightner, 18 111. 282. 17 7 Ball V. Mannin, 3 Bligh (N. S.) 1, Ewell, Lead. Cas. 534. 17S Dennett v. Dennett, 44 N. H. 531, 81 Am. Dec. 97; Stone v. Wilbem, 83 111. 105; Lawrence v. Willis, 75 N. C. 471; Simonton v. Bacon, 49 Miss. 582; Des Moines Nat. Bank v. Chisholm, 71 Iowa. 675, 33 N. W. 234; Farnam V. Brooks, 9 Pick. (Mass.) 212; Guild v. Hull, 127 111. 523, 20 N. E. 665; Davis v. Phillips, 85 Mich. 198. 48 N. W. 513; White v. Farley, 81 Ala. 563. 8 Soutli. 215; Maddox v. Simmons, 31 Ga. 528; Kimball v. Cuddy, 117 111. 213, 7 N. E. 589; Dewey v. Allgire, 37 Neb. 6, 55 N. W. 276, 40 Am. St. Rep. 468; Cain V. Warford, 33 Md. 23; Cadwallader v. West, 48 Mo. 483. The fact that a person is deaf and dvunD does not alone render him incapable. See Brower ISO CAPACITY OP PARTIES. (Ch. 6 tract, and its nature and probable consequences.*^" He need not be permanently insane; it is enough if he is insane at the time he enters into the contract.^ ^° A contract made during a lucid interval is binding.*" Nor need the insanity be general. A person who is laboring under an insane delusion is incapable of making a binding contract if his de- lusion is so connected with the subject-matter of the contract as to render him incapable of comprehending its nature and probable con- sequences. If such was his condition, he may avoid the contract, though he may have been perfectly sane in respect of other matters, and might have been able to make a binding contract in reference to some other subject-matter.*** Effect of Contracts. Thus far we have spoken of the contracts of a person non compos mentis as being voidable only, and as a rule they are so; but, as in the V. Fisher, 4 Johns. Ch. (N. Y.) 441; Brown v. BrowB, 3 Conn. 299, 8 Am. Dec. 187; Barnett v. Baruett, 54 N. C. 221. 17 8 Bishop, Cont. § 962; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97; Perry v. Pearson, 135 111. 218, 25 N. E. 636; Bond v. Bond, 7 Allen (Mass.) 1; Young V. Stevens, 48 N. H. 135, 2 Am. Rep. 202, 97 Am. Dec. 592; Mussel- man V. Cravens, 47 Ind. 1; Lilly v. Waggoner, 27 111. 396; Baldwin v. Duntou, 40 111. 188; Titcomb v. Vantyle, 84 111. 371; Worthington v. Worthington (Md.) 20 Atl. 911; Brown v. Brown, 108 Mass. 386; Crowther v. Rowlandson, 27 Cal. 381; Somers v. Pumphrey, 24 Ind. 231; Bumham v. Mitchell, 34 Wis. 136; Henderson v. McGregor, 30 Wis. 78; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514; Hovey v. Hobson, 55 Me. 256; Aiman v. Stout, 42 Pa. 114; Noel V. Karper, 53 Pa. 97; Dicken v. Johnson, 7 Ga. 484; Lozear v. Shields, 23 N. J. Eq. 509; Tolson's Adm'r v. Garner, 15 Mo. 494. 180 Curtis V. Brownell, 42 Mich. 165, 3 N. W. 936; Peaslee v. Eobbins, 3 Mete. (Mass.) 164; Jenners v. Howard, 6 Blackf. (Ind.) 240. 181 Hall V. Warren, 9 Ves. 605; Lilly v. Waggoner, 27 111. 395; McCormick V. Littler, 85 111. 62, 28 Am. Rep. 610; Smith v. Smith, 108 N. C. 365, 12 S. E. 1045, and 13 S. E. 113; Jones' Adm'r v. Perkins, 5 B. Mon. (Ky.) 222; Norman v. Trust Co., 92 Ga. 295, 18 S. E. 27; Beckwith v. Butler, 1 Wash. (Va.) 224; Carpenter v. Carpenter, 8 Bush (Ky.) 283; Staples v. Wellington, 58 Me. 453 ; Stewart v. Redditt, 3 Md. 81 ; Wright v. Market Bank (Term.) 60 S. W. 623. The authorities are conflicting as to whether the burden is on the other party to show that the contract was made in a lucid interval. That it is, see Fishburne v. Ferguson's Heirs, 84 Va. 87, 4 S. E. 575; Sheets v. Bray, 125 Ind. 33, 24 N. E. 357; Hall v. Warren, 9 Ves. 605. Contra, Wright v. Wright, 139 Mass. 177, 29 N. E. 380. 182 Bond V. Bond, 7 Allen (Mass.) 1; Riggs v. Tract Soc, 95 N. Y. 503; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97; Searle v. Galbraith, 73 111. 269; Alston v. Boyd, 6 Humph. (Tenn.) .504; Samuel v. Marshall, 3 Leigh (Va.) 567 ; Dominick v. Randolph, 124 Ala. 557, 27 South. 481. Monomania on the sul)Ject of religion or spiritualism. Boyce's Adm'r v. Smith, 9 Grat (Va..) 704, GO Am. Dec. 313; Lewis v. Arbuckle, So Iowa, 3.35, 52 N. W. 237, 16 L R. A. 677; West v. Russell, 48 Mich. 74, 11 N. W. 812; Bui-ges3 y. Pollock, 53 Iowa, 273, 5 N. W. 179, 36 Am. Rep. 218. § 117) INSANE PERSONS. 181 case of infants, some of his contracts are valid, and some of them are held to be absolutely void. In some jurisdictions the contract is held binding where the other party acted in good faith, and without knowl- edge of the insanity. Of this we will presently speak at some length. Same — Quasi Contracts. As in the case of infancy, the rule that a person may avoid a con- tract made while he was insane does not apply to so called contracts created by law, or quasi contracts, for here the obligation is imposed by law without regard to the consent of the party bound.^'' Same — Contracts for Necessaries. Nor does the rule apply to the contracts of a person non compos men- tis for necessaries furnished to himself or to his wife, or, in some jurisdictions, to his children. ^^* The rules on this subject are substan- tially the same as in the case of an infant's necessaries; except, it seems, that, unlike an infant, a person non compos mentis is liable for labor and materials furnished for the preservation of his estate, where they were necessary for its preservation.^ ^'^ In all cases the credit must have been given to the insane person, and not to some third person.^®* The fact that the person has been judicially declared insane, and placed under guardianship, does not prevent his liability for necessaries.^^'' Same — Void and Voidable. It has been held by some courts that the deed of an insane per- son,^ *^ or a power of attorney or other appointment of an agent,^®^ 183 Reando v. Misplay, 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13. Post, p. 547. 184 La Rue v. Gilkyson, 4 Pa. 375, 45 Am. Dec. 700; Richardson v. Sti'ong, 35 N. C. 106, 55 Am. Dec. 430; McCormick v. Littler, 85 111. 62, 28 Am. Rep. 610; Baxter v. Portsmouth, 5 Bam. & C. 170; Van Horn v. Hann, 89 N. J. Law, 207; Read v. Legard, 6 Exch. 636; Surles v. Pipkin, 69 N. C. 513; Shaw V. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; Sawyer v. Lufkin, 56 Me. 308; Reando v. Misplay, 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13; Pearl V. McDowell, 3 J. J. Marsh. (Ky.) 658, 20 Am. Dec. 199; Kendall v. May, 10 Allen (Mass.) 59; Rhodes v. Rhodes, 44 Ch. Div. 94; SCEVA v. TRUE, 53 N. H. 627. Liability for necessaries furnished his wife. Read v. Legard, supra. He has even been held liable for luxuries furnished in good faith. Kendall v. May, supra. 18 5 Williams v. Went^worth, 5 Beav. 325. i88Bish. Cont. § 968; Massachusetts Hospital v. Fairbanks, 129 Mass. 78, 37 Am. Rep. 303; Id., 132 Mass. 414. 187 McCrillis v. Bartlett, 8 N. H. 569; Sawyer v. Lufkin, 56 Me. 308; Reando V. Misplay, 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13 ; Baxter v. Portsmouth, 5 Barn. & C. 170; Fruitt v. Anderson, 12 111. App. 421. 188 Van Deusen v. Sweet, 51 N. Y. 378 (but see Ingraham v. Baldwin, 9 N. Y. 45); Rogers v. Blackwell, 49 Mich. 192, 13 N. W. 512; In re Estate of 180 Dexter v. Hall, 15 Wall. 9, 21 L. Ed. 73. And see Marvin v. Inglis, 39 How. Prac. (N. Y.) 329 ; Plaster v. Rigney, 97 Fed. 12, 38 C. C. A- 25 ; Mc- Ginn V. McClun, 176 111. 370. 52 N. E. 928. But see Williams v. Sopieha, 94 Tex. 430, 61 S. W. 115; Tiffany, Ag. OS. 182 CAPACITY OF PARTIES, (Ch. 6 is absolutely void. In most jurisdictions, however, no distinction is made in this respect between the deed of an insane person and that of an infant. It is held to be voidable, and not void.^"" As an almost universal rule, all his contracts other than valid ones are not void, but simply voidable at his option ;^^^ and they are binding on the other party if he elects to hold him.^^^ Inquisition and Adjudication of Lunacy. In most jurisdictions it is held — in some, however, by reason of ex- press statutory provisions — that if a person has been judicially deter- mined to be insane, and placed under guardianship, the decree and letters of guardianship take from him all capacity to contract, and that his contracts while under guardianship are absolutely void.^"^ In other jurisdictions the fact that he has been adjudged insane, and placed un- der guardianship, only raises a presumption of incapacity to contract, which may be rebutted ; but the presumption is very strong, and the proof of capacity must be clear,^^* Desilver, 5 Rawle (Pa.) Ill, 28 Am. Dee. 645; Farley v. Parker, 6 Or. 105, 25 Am. Rep. 504; Goodyear v. Adams, 52 Hun, 612, 5 N. Y. Supp. 275; Brown v. Miles, 61 Hun, 453, 16 N. Y. Supp. 251; Elder v. Schumaclier, 18 Colo. 433, 33 Pac. 175 ; Thompson v. Leach, 3 Salk. 300 ; Edwards v. Davenport (C. C.) 20 Fed. 756. i90Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Wait v. Maxwell, 5 Pick. (Mass.) 217, 16 Am. Dec. 391; Gibson v. Soper, 6 Gray (Mass.) 279, OCi Am. Dec. 414; Arnold v. Iron Works, 1 Gray (Mass.) 434; Allis v. Billings, 6 Mete. (Mass.) 415, 39 Am. Dec. 744; Evans v. Horan, 52 Md. 602; Bm-nham V. Kidwell, 113 111. 425; Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 71G: Boyer v. Berryman, 123 Ind. 451, 24 N. E. 249; Breckenridge's Heirs v. Orms- by, 1 J. J. Marsh, a^y.) 245, 19 Am. Dec. 71; Allen v. Berryhill, 27 Iowa, 534, 1 Am. Rep. 309; French Lumbering Co. v. Theriault, 107 Wis. 627, 83 N. W. 927, 51 L. R. A. 910, 81 Am. St. Rep. 856. 191 Eaton V. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716; Carrier v. Sears, 4 Allen (Mass.) 326 ; Burnham v. Kidwell, 113 111. 425 ; Arnold v. Iron Works, 1 Gray (Mass.) 434; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Riley v. Carter, 76 Md. 581, 25 Atl. 667, 19 L. R. A. 489, 35 Am. St. Rep. 443; .Etna Life Ins. Co. v. Sellers, 154 Ind. 370, 56 N. E. 97, 77 Am. St. Rep. 481. 192 Harmon v. Harmon (G. C.) 51 Fed. 113; Allen v. Berryhill, 27 Iowa, 534, 1 Am. Rep. 309. 193 Wait V. Maxwell, 5 Pick. (Mass.) 217, 16 Am. Dec. 391; Leonard v. Leonard. 14 Pick. (Mass.) 280; Ranuels v. Geruer, 80 Mo. 474; Fitzhugh v. Wilcox, 12 Barb. (N. Y.) 235; Bradbury v. Place (Me.) 10 Atl. 461; Mohr v. Tulip, 40 Wis. 66; Griswold v. Butler, 3 Conn. 227. Where the guardian was discharged as being an unsuitable person, and no other guardian was appoint- ed, the decree adjudging the ward insane was not conclusive as to his in- capacity after the guardian's discharge. Willwerth v. Leonard, 156 Mass. 277, 31 N. E. 299. The rule, it has been held, does not apply to statutory pro- ceedings merely to determine whether a pei'son is insane for the purpose of committing him to a hospital for the insane. Knox v. Haug, 48 Minn. 58, 50 N. W. 934. 194 As to this, see Mott v. Mott, 49 N. J. Eq. 192, 22 Atl. 997; Hart v. Dcamer, 6 Wend. (N. Y.) 497; Parker v. Davis, 53 N. C. 460; Hopson v. Boyd, § 117) INSANE PEIISONS. Iii3 Ignorance and Good Faith of the Other Party. In some states it is held tliat the contract of an insane person may be avoided by him, though it is fair and reasonable, and though it was entered into by the other party in perfect good faith, and in ignorance of his infirmity.^"'* "The fairness of the defendant's conduct," it was said in a leading Massachusetts case, "cannot supply the plaintiff's want of capacity." ^^* The weight of authority, however, in this country is in favor of the doctrine that, if the sane party did not know, or have reasonable cause to know, of the other's insanity, and acted in good faith, and the con- tract was fair, and has been so far executed that the parties cannot be placed in statu quo, it cannot be avoided. In Molton v. Camroux, a leading English case, a lunatic had purchased annuities of a society, paid the money, and died, whereupon his administratrix sued the so- ciety to recover back the money on the ground that the contract was void. The jury found that at the time of the contract the deceased was insane, but that there was nothing to indicate this to the defendant, and that the transaction was in good faith. It was held that the money could not be recovered. "The modern cases show," it was said, "that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defense cannot prevail, especially where the contract is not merely executory, but executed in whole or in part, and the parties cannot be restored to their original position." ^" This case has been expressly followed and applied in a number of our courts, while others, though not citing it, have laid down the same doctrine.^ "^ 6 B. Mon. (Ky.) 296; Snook v. Watts, 11 Beav. 105; In re Gangwere's Es- tate, 14 Pa. 417, 53 Am. Dec. 554 ; Topeka Water Supply Co. v. Root, 56 Kan. 187, 42 Pac. 715; Lower v. Sclmmacber, 01 Kan. G25, 60 Pac. 538. 180 seaver v. Phelps, 11 Pick. fMass.) 304, 22 Am. Dec. 372; Gibson v. So- per, 6 Gray, 279, 66 Am. Dec. 414; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Fitzgerald v. Keed, 9 Smedes & M. (Miss.) 94; Sullivan v. Flynn, 20 D. C. 396; Brigham v. Fayerweatber, 144 Mass. 52, 10 N. E. 735; Orr v. Mort- gage Co.. 107 Ga. 499, 33 S. E. 708; Dewey v. Allgire, 37 Neb. 6. m N. W. 276, 40 Am. St. Rep. 468; Wager v. Wagoner, 53 Neb. 511, 73 N. W. 937. 186 Seaver v. Phelps, supra. 197 Molton V. Camroux, 2 Exch. 489, 4 Exch. 17. 198 Eaton V. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716; Mutual Life Ins. Co. V. Hunt, 79 N. Y. 541; Ingraham v. Baldwin, 9 N. Y. 45; Boyer v. Berry- man, 123 Ind. 451, 24 N. E. 249; Lincoln v. Buckmaster, 32 Vt 652; Young V. Stevens, 48 N. H. 136, 2 Am. Rep. 202, 97 Am. Dec. 592; Schaps v. Lehuer, 54 Minn. 208, 55 N. W. 911; GRIBBEN v. MAXWELL, 34 Kan. 8; Abbott v. Cre.al, 56 Iowa, 175, 9 N. W. 115; Shoulters v. Allen, 51 Mich. 529, 16 N. W. 888; Mattbiessen & Weicbers Relining Co. v. McMabon's Adm'r, 38 N. J. Law, 536; Bumham v. Kidwell, 113 111. 425; Scanlon v. Cobb, 85 111. 296; North- western Ins. Co. V. Blankensbip, 94 Ind. 535, 48 Am. Rep. 185; McCoiinick V. Littler, 85 111. 62, 28 Am. Rep. 610; Reals v. See, 10 Pa. 56, 49 Am. Dec. 573; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77; Myers v. Kuabe, 51 184 CAPACITY OP PARTIES. (Ch. 6 The distinctions between executory and executed contracts how- ever, suggested in Molton v. Camroux, appear to have been repudiated in England, and in that country the more recent rule appears to be that the contract of a lunatic is binding unless the other party knew of his condition.^"' The doctrine thus stated, however, is not to be applied as a technical rule in all cases. "The cases will disclose," it has been said, "that one dealing with an insane person, and not knowing his condition, or any facts to put him on his guard, will be protected by the courts of law and equity against such person's repudiating his contract on the ground of his mental incapacity. But the rule is not a technical one, to be relied on at all times and under all circumstances. It is applied in each case only to prevent a wrong being done, and is based on the prin- ciple that 'the law will not permit the lunatic's infirmity to be made an instrument of fraud.' " *°" Ij^ ^1,1^ SAME— RATIFICATION AND AVOIDANCE. lis. The voidable cou.tract of a person non. compos mentis may be ratified or avoided by himself ivben sane, or by bis guardian during insanity, or by bis representatives or beirs after bis deatb. 119. Tbe rigbt to disaffirm is personal, and neitber tbe otber party nor tbird persons can avoid it. 120. In a fcTsr jurisdictions, altbougb tbe otber party did not knoxr of tbe insanity and tbe contract was fair, tbe consideration receiv- ed by tbe insane person need not be returned as a condition precedent to avoidance if be is unable to return it. 121. Tbe contract can be avoided as against bona fide purcbasers. The voidable contracts of a person non compos mentis may be rati- fied or disaffirmed by him when he becomes sane, or during a lucid interval; ^°^ or, during the continuance of his infirmit}^ by his com- mittee or guardian; ^°- or, after his death, by his personal representa- Kan. 720, 33 Pac. 602; Harrison v. Otley, 101 Iowa, 652, 70 N. W. 724; Flach v. Gottsclialk Ck)., 88 Md. 368, 41 Atl. 908, 42 L. R. A. 745, 71 Am, St Rep. 418; McKenzie v. Donnell, 151 Mo. 431, 52 S. W. 214; Jamison v. Ctdligan, 151 Mo. 410, 52 S. W. 224. If, however, the lunatic has received no benefit xmder the contract, it has been said that he can recover what he has parted with, notwithstanding the other party's good faith. Lincoln v. Buckmas- ter, 32 Vt 658; Van Patton v. Reals, 46 Iowa, 63. 188 IMPERIAL LOAN CO. V. STONE [1892] 1 Q. B. 599. See Anson, Cent, (8th Ed.) 120. 200 Knowlton's Anson. Cont. 116, note. 201 AlHs V. Billings. 6 Mote. (Mass.) 410, 39 Am. Dec. 744; Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Arnold v. Iron Works, 1 Gray (Mass.) 434; Turner v. Rnsk. 53 Md. 65. 2'^2 Moore v. Horshoy, 9 Norris (Pa.) 196; Halley v. Troester, 72 Mo. 73; McClain v. Davis, 77 lud. 419. §§ 118-121) RATIFICATION AND AVOIDANCE. 185 tive,*"' or his heirs.-°* The privilege is personal to the insane per- son, or those who thus represent him; and neither the other party to the contract nor third persons can avoid it.*"" Ratification or dis- affirmance need not be in express words, but may be by conduct, as in the case of ratification or disaffirmance by a person of a contract made during infancy.'"® Return of Consideration on Avoidance. In those jurisdictions where an insane person's contract is voidable, whether it is executed or not, and whether or not the other party acted in good faith and in ignorance of his infirmity, a person is not required to restore, or offer to restore, the consideration received by him as a condition precedent to the avoidance of a contract made by him while insane. "If the law required restoration of the price as a condition precedent to the recovery of the estate, that would be done indirectly which the law does not permit to be done directly, and the great purpose of the law in avoiding such contracts — the protection of those who cannot protect themselves — defeated." ^"'^ As we have already seen, however, most courts do not allow an in- sane person to avoid his contracts where the other party acted in good faith, and in ignorance of his insanity, and cannot be placed in statu quo. Where this doctrine prevails, if the contract was made in good faith and without knowledge of the insanity, the right to avoid is con- ditional on return of the consideration.^"* Avoidance as against Third Persons. The fact that third persons have acquired an interest under the con- tract of a person non compos mentis, in good faith, for value, and without notice of his infirmity, cannot defeat his right to avoid the 203 Beverley's Case, 4 Coke, 123b; Campbell v. Kubn, 45 Mich. 513, 8 N. W, 523, 40 Am. Rep. 479; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; SchufE V. Ransom, 79 Ind. 458; Orr v. Mortgage Co., 107 Ga. 499, 33 S. E. 708. 204Allis V. Billings, 6 Mete. (Mass.) 415, 39 Am. Dec. 744; Scliuff v. Ran- som, 79 Ind. 458. 205 Carrier v. Sears, 4 Allen (Mass.) 336, 81 Am. Dec. 707; Allen v. Berry- hlll, 27 Iowa, 534, 1 Am. Rep. 309 ; ante, p. 1G2. Contra, Burke v. Allen, 29 N. H. 106, 61 Am. Dec. 642. Sureties are liable on a note executed by an insane person. Lee v. Yandell, G9 Tex. 34, 6 S. W. 665. Only privies in blood or legal representatives can avoid. Hunt v. Rabitoay, 125 Mich. 137, Si N, W. 59, 84 Am. St. Rep. 563. 206 Gibson v. Soper, 6 Gray (Mass.) 283. 66 Am. Dec. 414; Arnold v. Iron Works, 1 Gray (Mass.) 434; Whitcomb v. Hardy, 73 Minn. 285, 76 N. W. 29. Cf. Beasley v. Beasley, ISO 111. 163, 54 N. E. 187. Disaffirmance by action to avoid. Hull v. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. Rep. 405; Ashmead v. Reynolds, 127 Ind. 441, 26 N. E. 80. 20 7 Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414. See, also, Hovey v. Hobson, 53 Me. 453, 89 Am. Dec. 705. 208 Cases cited supra, note 183. 186 CAPACITY OF PARTIES. (Cll. 6 contract.^"® This rule applies to deeds ^^° and negotiable instru- ments ^^^ as well as to other contracts, and it applies whether the con- tract be regarded as void or merely voidable. To protect bona fide pur- chasers in such cases would be to withdraw protection from the in- sane person. DRUNKEN PERSONS. 122. A contract made by a person iirliile lie is so drunk as to be inca- pable of understanding its nature and effect is voidable at bis option, except tbat— EXCEPTIONS— He is liable on contracts created by law, or quasi contracts. 123. Tbe rules as to ratification and avoidance are substantially tbe same as in the case of infants and insane persons, except tbat some (but not all) courts bold tbat tbe contract cannot be avoided as against a bona fide purchaser. The modern law places a drunken person, in respect of his capacity to contract, in the same position as an insane person. If his drunken- ness is so excessive as to render him incapable of comprehending the nature and effect of his contract, it is voidable at his option, and it is immaterial that his drunkenness was voluntary, and not procured through the circumvention of the other party.^^^ In the absence of fraud, slight intoxication does not aft'ect the validity of a contract. It 209 Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Hull v. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. Rep. 405; Long v. Fox, 100 111. 43; Rogers v. Black- well, 49 Micli. 192, 13 N. W. 512. 210 Rogers V. Blackwell, 49 Mich. 192, 13 N. W. 512. In North Carolina it is held that the deed of a lunatic, duly recorded, cannot be avoided as against bona fide purchasers. Odom v. Riddick, 104 N. C. 515, 10 S. E. 609, 7 L. R. A. 118, 17 Am. St. Rep. 686. 211 Sentance v. Pool, 3 0. & P. 1 ; Anglo-Californian Bank v. Ames (C. C.) 27 Fed. 727; Wirebach's Ex'r v. Bank, 97 Pa. 543, 39 Am. Rep. 821; McClain V. Davis, 77 Ind. 419. 212 BARRETT v. BUXTON, 2 Aikens (Vt.) 167, 16 Am. Dec. 691; Carpen- ter V. Rodgers, 61 Mich. 384, 28 N. W. 156, 1 Am. St. Rep. 595; Miller v. Fin- ley, 26 Mich. 254, 12 Am. Rep. 306; Gore v. Gibson, 13 Mees. & W. 623; Coulkins v. Fry, 35 Conn. 170; Johns v. Fritchey, 39 Md. 258; Bush v. Breinig, 113 Pa. 310, 6 Atl. 86, 57 Am. Rep. 469; Foss v. Hildi-eth, 10 Allen (Mass.) 76; Matthews v. Baxter, L. R. 8 Exch, 132; Shackelton v. Sebree, 86 111. 616; Bates Y. Ball, 72 111. 108; Mansfield v. Watson, 2 Iowa, 111; Warnock v. Campbell, 25 N. J. Eq. 485; French's Heirs v. French, 8 Ohio, 214, 31 Am. Dec. 441; Cummings v. Henry, 10 Ind. 109; Reynolds v. Waller's Heirs, 1 Wash. (Va.) 164; Newell v. Fisher, 11 Smedes & M. (Miss.) 431; Broadwater V. Dame, 10 Mo. 277; Phelan v. Gardner, 43 Cal. 306. But see Reiuskopf v. Rogge, 37 Ind. 207. In Hunter v. Tolbard, 47 W. Va. 258, 34 S. E. 737, it Is held that the contract is void. It has been held that a person who, when so- §§ 122-123) DRUNKEN PEKSONS. 187 must be so excessive as to render him incapable of knowing what he is doing.^^^ The contract, though voidable at the option of the drunk- en person, is binding on the other party, and cannot be attacked by third persons.^^* By the weight of authority, if a person has been judicially declared incapable of conducting his own affairs by reason of habitual drunkenness, and has been put in the custody and under the control of a committee or guardian, his contracts are absolutely void.^^" A person who was drunk, but not under guardianship, when he en- tered into a contract, may either avoid or ratify it when sober ;^^® and ratification or disaffirmance may be by conduct showing an intention to ratify or to avoid it, as by retention of the consideration, after be- coming sober, or failure to disaffirm for an unreasonable time.^^' Having ratified the contract, he cannot retract and avoid it.^^^ On avoidance he must return or offer to return the consideration received by him,^^® though, if the consideration were wasted before becoming sober, this would probably not be required. ^^"^ A drunken person is liable on contracts created by law, or quasi con- tracts, and is liable for necessaries furnished him.^^^ As to whether drunkenness is a defense against persons in good faith acquiring rights for value under the contract, — as, for instance, against the bona fide holder of a negotiable instrument, — the authori- ber, agrees to sign a contract, cannot avail himself of intoxication at the time of signatm-e as a defense. Page v. Krekey, 63 Hun, 629, 17 N. Y. Supp. 764. Cf. Youn v. Lament, 56 Minn. 216, 57 N. W. 478. 213 Van Wyck v. Brasher, 81 N. Y. 260; Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112; Willcox v. Jackson, 51 Iowa, 208, 1 N. W. 513: Van Horn v. Keenan, 28 111. 445 ; Peck v. Gary, 27 N. Y, 9, 84 Am. Dec. 220 : Wright V. Waller, 127 Ala. 557, 29 South. 57, 54 L. R. A. 440. And see cases cited in preceding note. 214 Matthews v. Baxter, L. R. 8 Exch. 132; Eaton's Adm'r v. Perry, 29 Mo. 96. 215 Wadsworth v. Sharpsteen, 8 N. Y. 388, 59 Am. Dec. 499. Contra, Appeal of Donehoe (Pa. Sup.) 15 Atl. 924. This is true even of a negotiable instru- ment in the hands of a bona fide purchaser for value. Wadsworth v. Sharp- steen, supra. This does not apply to contracts for necessaries. McCrillis v. Bartlett, 8 N. H. 569. 2i« See cases cited in note 212, supra. It may be avoided by his personal I'epresentatives. Wigglesworth v. Steers, 1 Hen. & M. (Va.) 70, 3 Am. Dec. 602. 21T Williams v. Inabet, 1 Bailey (S. C.) 343; Reinskopf v. Rogge, 37 Ind. 207; Smith v, Williamson, 8 Utah, 219, 30 Pac. 753; Mansfield v. Watson, 2 Iowa, 111. 218 Matthews v, Baxter, L. R. 8 Exch. 132; Joest v. Williams, 42 Ind. 565, 13 Ajb. Rep. 377. 219 Joest V. Williams, 42 Ind. 565, 13 Am. Rep. 377. 220 Thackrah v. Haas, 119 U. S. 4'J9, 7 Sup. Ct. 311, 30 L. Ed. 486. 221 Gore V. Gibson, 13 Mees. & W. 023; McCrillis v. Bartlett, 8 N. H. 569. 188 CAPACITY OF PARTIES. (Ch. 6 ties are conflicting. Some courts hold that total, but not partial, drunk- enness, is a defense ; while others hold that not even total drunkenness is a defense.^^' MARItlBD WOMEN. 124. At common lax^, as a rule, a married tvomaiL, dnring ooTeTtnre, is incapable of contracting, and can incur no contractual obli- gation. EXCEPTIONS AT COMMON LAW— (a) If the husband is civilly dead. (b) If the husband has deserted his -wife, and left the state. EXCEPTIONS IN EQUITY— (c) In equity a married woman may have a separate estate, and contract in reference thereto as a feme sole. EXCEPTIONS BY STATUTE— (d) In most jurisdictions, the common- law disabilities of married w^omen have been virtually removed by statute. At common law, as a rule, a married woman is without capacity to enter into a valid contract. Her contracts are absolutely void.^^' It makes no difference whether she is living with her husband or not.^^* An agreement of separation, for instance, by which the husband has secured to his wife a separate maintenance, it is said, cannot change their legal relationship so as to render her liable on her contracts; ^-'^ nor can the fact that a wife has deserted her husband, and is living 1 in adultery, render her liable.^^' Even a divorce a mensa et thoro does ' 222 State Bank v. McCoy, 69 Pa. 204, 8 Am. Rep. 246; McSparran v. Neeley, 91 Pa. 17; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. See Norton, Bills & N. (3d Ed.) 232. 223 Jackson v, Vanderheyden, 17 Johns. (N. Y.) 167, 8 Am. Dec. 378; Mar- tin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245; Smith v. Plomer, 15 East, 607 ; Manby v. Scott, 2 Smith, Lead. Cas. 375 ; Mackinley v. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 522; Tracy v. Keith, 11 Allen (Mass.) 214; Mor- ris V. Norfolk, 1 Taunt. 212; Musick v. Dodson, 76 Mo. 624, 43 Am. Eep. 780; Dobbin v. Hubbard, 17 Ark. 189, 65 Am. Dec. 425; Palmer v. Oakley, 2 Doug. (:Mich.) 433, 47 Am. Dec. 41; Hollis v. Francois, 5 Tex. 195, 51 Am. Dec. 760; Stevens v. Parish, 29 Ind. 260, 95 Am. Dec. 636; Burton v. Marshall, 4 Gill (Md.) 487, 45 Am. Dec. 171; HAYWARD v. BARKER, 52 Vt. 429, 36 Am. Rep. 762 ; Porterfield v. Butler, 47 Miss. 165, 12 Am. Rep. 320 ; Caldwell v. Wal- ters, 18 Pa. 79, 55 Am. Dec. 592; Pond v. Carpenter, 12 Minn. 430 (Gil. 315); Fan-ar v. Bessey, 24 Vt. 89; Howe v. Wildes, 34 Me. 566; Young v. Paul, 10 N. J. Eq. 404, 64 Am. Dec. 456; Tucker v. Cocke, 32 Miss. 184; Thompson V. Warren, 8 B. Mon. (Ky.) 488. And see cases cited in Ewell, Lead. Cas. 312. 224 Harris v. Taylor, 3 Sneed (Term.) 536, 67 Am. Dec. 576. Conti'a; Love V. Moynehan, 16 111. 277, 63 Am. Dec. 306. 225 Marshall v. Rutton, 8 Term R. 545. 226 MEYER v. HAWORTH, 8 Adol. & E. 467. § 124) MARRIED WOMEN. 189 not give a woman power to bind herself by contract at common law,^^^ though this is very generally changed by statute. As a rule, a married woman is liable for her torts, including her frauds, and may be sued in respect of such acts, jointly with her hus- band, or separately if she survives him ; but, as in the case of infants, she cannot even be sued for her fraud where it is directly connected with her contract, and is part of the same transaction, though it is otherwise if the fraud is not connected with her contract.*^^ False represen- tations by a married woman that she is unmarried, or a widow, to induce a person to contract with her, will not estop her from pleading her coverture when sued upon the contract, though, like an infant under similar circumstances, she would no doubt be liable in an action for deceit ^^® Exceptions — At Common Law. At common law a married woman may acquire contractual rights by reason of personal services rendered by her, or by reason of the assign- ment or execution to her of a chose in action, such ^s a bond or note.^^" The husband may reduce to his possession the rights so accruing to-^ his wife; but, unless he does this by some act indicating an intention to deal with them as his own, they do not pass, like other personalty of the wife, into the estate of the husband, but survive to the wife if she outlives him, or pass to her personal representatives if she dies in his lifetime. The wife of a man who was civilly dead by reason of his being under conviction of a felony had the same capacity to contract as a feme sole.^'^ The old common-law doctrine of civil death from con- viction of a felony, however, is not recognized in this country ; but there are, in some states, statutes declaring that a man who is under a sentence of imprisonment in the penitentiary for life shall be deemed civilly dead. 227 Faithome v. Blaquire, 6 Maule &. S. 73; Lewis v. Lee, 8 Bam. & C. 291. Contra, Dean v. Richmond, 5 Picli. (Mass.) 461; Pierce v. Burnham, 4 Mete. (Mass.) 303. 22 8 Lealje, Cont. 235; Liverpool Adelphi Loan Ass'n v. Fairliurst, 9 Esch. 422; Wright v. Leonard, 11 C. B. (N. S.) 258. »2 9 Cannam v. Farmer, 3 Bxch. 698; Liverpool Adelphi Loan Ass'n v. Fairhurst, 9 Exch. 422; Wi'ight v. Leonard, 11 C. B. (N. S.) 258. 2 30 Stevens v. Beals, 10 Cush. (Mass.) 291, 57 Am. Dec. 108; Cobb v. Duke, 86 Miss. 60, 72 Am. Dec. 157. 231 Co. Litt 132b; Hatchett v. Baddeley, 2 W. Bl. 1079, 1082; Carrol v. Blencovr, 4 Esp. 27. Civil death arose formerly in England also from out- lawry. As to other exceptions not material In this country, see Anson, Cont. (Sth Ed.) 122 ; Pollock, Cont. (3d Ed.) 80. As to agreements of separation, see Tiffany, Pers. & Dom. liel. 168. 190 CAPACITY OF PARTIES. (Ch. 6 Where, however, a husband deserts his wife absohitely an5 com- pletely, and leaves the state, it is generally held in this country that the wife may contract and sue and be sued as a feme sole.'^^'' Same — In Equity. In equity a married woman may have property settled upon her tO' her separate use, in which case she may dispose of it in the same manner as if she were a feme sole. In the exercise of this right, she may charge it with the Hability to satisfy contracts made by her ; and an engagement or security entered into by her, showing an intention to charge her separate property, will have that effect.^^^ As said in an English case : "Courts of equity have, through the medium of trusts, created for married women rights and interests in property, both real and personal, separate and independent of their husbands. To the extent of the rights and interests thus created a married woman has, in courts of equity, power to alienate, to contract, to enjoy. She is considered a feme sole in respect of property thus settled or secured to her separate use.*' ^^* It is presumed in general that a contract or engagement made by a married woman in writing imports an intention to charge her separate estate, otherwise the writing would have no meaning. If not in writing, it must be proved that the engagement was entered into with such an intention.^^^ Under this rule, bonds, bills of exchange, and promissory notes of a married woman are pre- sumptively payable out of her separate estate.^^® It is very generally 232 Gregory v. Pierce, 4 Mete. (Mass.) 478; Mead v. Hughes' Adm'r, 15 Ala,. 141, 1 Am. Rep. 123; Krebs v. O'Grady, 23 Ala. 726, 58 Am. Dec. 312; Cheek V. Bellows, 17 Tex. 613, 67 Am. Dec. 6S6. See Kogers v. Phillips, 8 Ark. 366, 47 Am. Dec. 727. See Mete. Cont. 98 et seq. A married woman whose hus- band is an alien, and has never been in the United States, is liable on her contracts. Levi v. Marsha, 122 N. C. 565, 29 S. E. 832. 233 See Hulme v. Tenant, 1 Brown, Ch. 16; Shattock v. Shattock, L. R. 2 Eq. 182; Jaques v. Methodist Church, 17 Johns. (N. Y.) 549, 8 Am. Dec. 447; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245; Hollis v. Francois, 5 Tex. 195; Bradford v. Greenway, 17 Ala. 797, 52 Am. Dec. 203; Dobbin v. Hubbard, 17 Ark. 189, 65 Am. Dec. 425; Rogers v. Ward. 8 Allen (:Mass.) 387, 85 Am. Dec. 710; Smith v. Thompson, 2 MacArthur (D. C.) 291; Priest v. Cone, 51 Vt 495, 31 Am. Rep. 695; Willard v. Eastham, 15 Gray (Mass.) 328, 79 Am. Dec. 360; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Burch V. Breckenridge, 16 B. Mon. (Ky.) 482. 63 Am. Dec. 553; Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 587; Phillips v. Graves, 20 Ohio St. 371, 5 Am. Rep. 675; Baker v. Gregory, 28 Ala. 544, 65 Am. Dec. 366. See Tiffany, Pers. & Dom. Rel. 131 et seq. 234 Johnson v. Gallagher, 3 De Gex, P. & J. 494. 288 Leake, Cont. 238; Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 587j Burch V. Breckenridge, 16 B. Mon. (Ky.) 482, 63 Am. Dec. 553; Litton v. Baldwin, 8 Humph. (Tenn.) 209, 47 Am. Dec. 605; Johnson f. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142. 236Tullett v. Armsti-ong, 4 Beav. 319; Phillips v. Graves, 20 Ohio St 371, §§ 125-128) CORPORATIONS. 191 held that, where a debt contracted by a married woman is for the benefit of her separate estate, it will be chargeable in equity for the payment thereof, without regard to her intention. ^^'' There are some limitations on the power of a married woman in respect to her separate property which should be noticed. She cannot sue or be sued alone in respect of the separate estate. She does not acquire a sort of equitable status of capacity to contract debts in respect of her separate estate, without regard to when it is acquired. She can only bind such separate estate as is in her possession or control at the time the liabilities accrue. She cannot bind herself nor create liabilities in excess of her estate. Her creditor's remedy is not against her, but against her property. ^^® Same — Disability Removed by Statute. , The common law has of late years been almost universally changed by statutes both in this country and in England. The statutes vary so much in the different states that it would be impracticable to attempt to state the law. CORPORATIONS. 125. A corporation, by reason of its artificial natnre, can only con- tract througli a duly-authorized agent. 126. Formerly, \rith certain exceptions, it could only contract under its corporate seal; but noinr, unless restricted by its charter or by statute, it may contract in the same manner as a natural person. 127. The power of a corporation to enter into a contract is limited in respect of the subject-matter only by its charter or act of in- corporation or by other statutes binding on it. Except as so restricted, it has the implied pow^er to enter into any contract Trhich is reasonably incidental to the accomplishment of the objects for xp^hich it is created. 5 Am. Rep. 675; Biirch v. Breckenridge, 16 B. Mon. (Ky.) 482, 63 Am. Dec. 553; Dobbin v. Hubbard, 17 Ark. 189, 65 Aifi. Dec. 425; Rogers v. Ward, 8 Allen (Mass.) 387, 85 Am. Dec. 710. 237 Willard v. Eastham, 15 Gray (Mass.) 328, 79 Am. Dec. 366; Rogers v. Ward, 8 Allen (Mass.) 387, 85 Am. Dec. 710; James v. Mayrant, 4 Desaus. Eq. (S. G.) 591, 6 Am. Dec. 630; Yale v. Dederer, 22 N. Y. 450, 78 Am. Dec. 216; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Dyett'v. Coal Co., 20 Wend. (N. Y.) 570, 32 Am. Dec. 598; Dale v. Robinson, 51 Vt. 20, 31 Am. Rep. 669; Patrick v. Llttell, 36 Ohio St. 79, 38 Am. Rep. 552; McCoriBick v. Holbrook, 22 Iowa, 487, 92 Am. Dec. 400. Liability- for medical attendance and funeral expenses. McClellan v. Filson, 44 Ohio St. 184, 5 N. K.861, 58 Am. Rep. 814. 23 8 Pipard V. Hire, 5 Ch. App. 277. 192 CAPACITY OF PARTIES, n \D . (Ch. 6 128. An attempted contract, inrliicli is not within tlie poxrers of a cor- poration, is said to be ultra vires, and in many jurisdictions is held to be void, so that it cannot be enforoedi but in otber juris- dictions tlie defense of ultTja vires is excluded ivben the contract Has been performed by the party seeking to enforce it, and it would be inequitable to allow the defense. A corporation can contract only by means of an agent. It "cannot act in its own person, for it has no person." ^^^ It cannot act through one or any number of its members, merely as such, for, though they compose the corporation, they are not the corporation. It must act through an agent expressly authorized to act for it.^*° Mode of Contracting — Seal. It was formerly the rule, subject to some exceptions, that a corpo- ration could manifest its intention and act only by the use of its corpo- rate seal ; **^ but this doctrine is no longer recognized in this country. Unless the charter or act of incorporation or some statute provides otherwise, it need only use a seal where an individual would be required to use one. In all cases where it is not expressly so restricted, it may, like a natural person, contract under seal, or by writing not under seal, or orally. ^*^ Like a natural person, also, it can ratify any contract made by an agent which it could have authorized the agent to make,^*^ and it may be liable on contracts implied as a fact from corporate acts,^** and on quasi contractual obligations.^*"* If the charter or act of incorporation, or any other statute, expressly prescribes a certain mode or form for entering into contracts, as is frequently the case, that form and mode must be strictly followed. 246 280 Per Lord Cairns, in Ferguson v. Wilson, 2 Ch. 99. 240 Anonymous, 12 Mod. 423; Bank of Ireland v. Evans Charities, 5 H. L. Cas. 389. 241 1 Bl. Comm. 475; Church v. Gas Co., 6 Adol. & E. 846. 242 Bank of Columbia v. Patterson, 7 Cranch, 299, 3 I^ Ed. 351; Bank of the United States v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552; Topping v. Bick- ford, 4 Allen (Mass.) 120; Goodwin v. Screw Co., 34 N. H. 378; Pixley v. Eailroad Co., 33 Cal. 183, 91 Am. Dec. 623; Regents of University of Michi- gan V. Society, 12 Mich. 138; Board of Education of Illinois v. Greenbaum, 39 111. 609; Mott V. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550; Trustees of Christian Church of Wolcott v. Johnson, 53 Ind. 273; Clark, Corp. 156. 24S Peterson v. Mayor, etc., 17 N. Y. 450. 244 Proprietors of the Canal Bridge v. Gordon, 1 Pick. (Mass.) 297, 11 Am. Dec. 170 ; Bank of Columbia v. Patterson, 7 Cranch, 299, 3 L. Ed. 351. 24 6 Bank of Columbia v. Patterson, 7 Cranch, 299, 3 L. Ed. 351; Hall V. Mayor of Swansea, 5 Q. B. 526; Jelferys v. Gurr, 2 Barn. & Adol. 833; Seagraves v. City of Alton, 13 111. 366; Trustees of Cincinnati Tp. v. Ogden, 5 Ohio, 23. 240 Head v. Insurance Co., 2 Cranch, 127, at page 169, 2 L. Ed. 229; BiBsell V. Spring Valley Tp^ 110 U. S. 102, 3 Sup. Ct. 555, 28 L. Ed. 105. §§ 125-128) CORPORATIONS. 193 The statutory provision, however, must be mandatory, and not merely directory.^ *^ What Contracts are Authorized. The power of a corporation to enter into contracts is limited, in respect of the matter of the contract, by the charter or act of incorpo- ration, and by other statutes binding upon it. Being a creature of the legislature, it may make only such contracts as are expressly or im- pliedly authorized by the legislature. It exists for no other purpose, and has no greater powers, than are conferred by its creation. By implication a corporation is given power, in the absence of expressi- restriction in its charter, to enter into any contract which is necessary and usual in the course of business, or reasonably incident to the ac- complishment of the objects for which it was created.^** To borrow money for carrying on its business, and to give a mort- gage to secure its debts, to receive or give negotiable paper, to buy and sell land, are all acts within the power of the corporation if it is acting within its proper sphere, and in carrying out the purposes for which it was incorporated; but not otherwise.^** Ultra Vires Contracts. A contract made by a corporation ultra vires — that is, beyond the powers of the corporation executing it — is in many jurisdictions held to be void, so that no action can be brought upon it.^°° In many states, on the other hand, the defense of ultra vires is in such cases excluded, whether interposed for or against the corporation, on the ground of an equitable estoppel, when the contract has been wholly or partly performed on the part of the plaintiff, and it would be inequitable to allow the defense.^^^ And as a rule, in all jurisdictions, where either party has received benefits under the contract in the form of money, property, or services, an action quasi ex contractu may be maintained 247 Soutliern Life Ins. Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448; Witte v. Fishing Co., 2 Conn. 260; Bulldey v. Same, 2 Conn. 252, 7 Am. Dec. 271. 248 MORVILLE V. SOCIETY, 123 Mass. 129, 25 Am. Rep. 40; Union Bank V. Jacobs, 6 Hnmph. (Tenn.) 515; London & N. W. Ry. Co. v. Price, 11 Q. B. D. 485; Simpson v. Hotel Co., 8 H. L. Cas. 712; Ft. Worth City Co. v. Bridge Co., 151 U. S. 294, 14 Sup. Ct. 339, 38 L. Ed. 167. 24 9 Clark, Corp. 183 et seq. 2R0 East Anglian Rys. Co. v. Railway Co., 11 C. B. 775; Directors, etc., of Ashbury Railway Carriage & Iron Co. v. Riche, L R. 7 H. L. 653; Pearce V. Railroad Co., 21 How. 441, 16 L. Ed. 184; Thomas v. Railroad Co., 101 U. S. 71, 25 L. Ed. 950; Central Transp. Co. v. Car Co., 139 U. S. 24. 11 Sup. Ct 478, 35 L. Ed. 55; California Nat Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198. 251 Whitney Arms Co. v. Barlow, 63 N. Y. 62, 20 Am. Rep. 504; Holmes & Griggs Mfg. Co. v. Metal Co.. 127 N. Y. 252, 27 N. E. 831, 24 Am. St Rep. 448; Denver Fire Ins. Co. v. McClelland, 9 Colo, 11, 9 Pac. 771, 59 Am. Rep. Clark Cont. (2d Ed,)— 13 194 CAPACITY OF PARTIES. (Ch. 6 to recover if' A discussion of the law of corporations in relation to contracts is, however, beyond the scope of this book.'^" 134; Bradley v. Ballard, 55 111. 413, 8 Am. Rep. 656; Day v. Buggy Co., 57 ailch. 151, 23 N. W. 628, 58 Am. Rep. 352; Wright v. Hughes, 119 Ind. 324, 21 N. E. 907, 12 Am. St. Rep. 412; Seymour v. Society, 54 Minn. 147, 55 N. W. 907; Manchester & L. R. Co. v. Railroad Co., 66 N. H. 100, 20 Atl. 383, 9 L. R. A. 689, 49 Am. St Rep. 582; Union Hardware Co. v. Manufacturing Co., 58 Conn. 219, 20 Atl. 455. 2 62 Day V. Buggy Co., 57 Mich. 146, 23 N. W. 628, 58 Am. Rep. 352; Davis V. Railroad Co., 131 Mass. 258, 41 Ain. Rep. 221; Logan County Nat Bank v. Townsend, 139 U. S. 67, 11 Sup. Ct 496, 35 L. Ed. 107; Nashua & L. R. Corp. V. Railroad Corp., 164 Mass. 222, 41 N. E. 268, 49 Am. St Rep. 454; Anthony V. Machine Co., 16 R. I. 571, 18 Atl. 176, 5 L. R, A. 575; Moore v. Tanning Co., 60 Vt. 459, 15 Atl. 114. 2 63 See Clark, Corp. 170 et seq. § 129) EEALITY OF CONSENT. 195 CHAPTER Vn. REALITY OF CONSENT. 129. In General. 130-131. Mistake. 132-134- Effect— Remedies. 135-138. Misrepresentation. 139. Fraud. 140-141. Effect— Remedies. 142-144. Duress. 145-146. Undue Influence. IN GENCRAIt. 129. Tlie mutual eoiLsent 'whicli is esseiLtia.1 to every agreement must be real. There may be no real consent, and tlierefore no con- tract, because of (a) Mistake, (b) Misrepresentation, (c) Fraud, (d) Duress, or (e) Undue influence. The next feature in the formation of contract to be considered is genuineness or reaHty of consent. If we have an apparent agreement possessing the element of form or consideration, or both, and made between parties capable of contracting, we must ask whether the consent of both or either of the parties was given under such circum- stances as to make it no real expression of their intention. There may be various causes for unreality of consent : (i) The parties may not have meant the same thing; or one or both, while meaning the same thing, may have formed untrue conclusions as to the subject-matter of the agreement. This is Mistake. (2) One of the parties may have been led to form untrue conclusions respecting the subject-matter of the agreement by statements innocently made, or facts innocently withheld by the other. This is Misrepresentation. (3) These untrue conclusions may have been induced by intentional misrepresentations or active concealment by the other party, or inten- tional concealment where there was a duty to disclose, for the purpose of deceiving. This is Fraud. (4) The consent of one of the parties may have been extorted from him by the other by actual or threatened violence. This is Duress. (5) Circumstances may have rendered one of the parties morally incapable of resisting- the will of the other, so 196 REALITY OP CONSENT. (Cll. 7 that his consent was no real expression of intention. This is Undue Influence.^ MISTAKE. 130. Mistake is -nrhere tlie parties did not mean the same thing, or ivhere one or both., ivhile mea^ning the same thing, formed un> true conclusions as to the subject-matter of the agreement. 131. Mistake avoids the contract in the followdng cases: (a) AVhere the mistake is as to the nature of a xsrritten contract, the execution of \Fhich Is induced or procured by misrepresenta- tion; (b) "Where the mistake is as to the identity of the person vnLth ivhom the contract is made; (c) Where the subject-matter of the contract, unknown to the par- ties, does not exist; (d) Where two things have the same name, and the parties, owing to the identity of names, do not mean the same subject-matter; (e) W^here one of the parties is mistaken as to the nature of the promise made, and the other party knoivs, or has good reason to know^, of the mistake. This, however, it seems, renders the contract merely voidable. It must be borne in mind that we are here dealing with mistake of intention, and not mistake of expression. The parties may be genu- inely agreed on the terms of their contract, but the terms may, by mistake, be so expressed as not to convey their meaning. In these cases they may be permitted to explain the contract, or the court may correct the mistake. This is mistake of expression, and pertains to the interpretation of contracts, with which we shall deal in a subsequent chapter. The almost universal rule is that a man is bound by an agreement to which he has expressed his assent in unequivocal terms, uninfluenced by falsehood, violence, or oppression. If he has exhibited all the outward signs of agreement, the law will hold that he has agreed. As a rule, a person cannot avoid his contract simply by showing that he has made a mistake. There are some exceptions to the rule, which we shall now consider. Mistake as to the Nature of the Transaction — Written Instrument. There are cases in which a contract will be void because of a mistake as to the nature of the transaction. Such cases arise in the execution of written instruments, and must arise almost of necessity from mis- representation, either of a third person or of the other party. A man who has executed an instrument cannot avoid its operation by saying that he did not put his mind to it or that he did not suppose it would 1 Anson, Cont (8th Ed.) 127. §§ 130-131) MISTAKE. 197 have any legal effect.* He must have been induced to execute it by some deceit or misrepresentation which ordinary diligence could not penetrate. Thus, where a man who is illiterate, or blind, or ignorant of the language, executes a deed, which is misread or misdescribed to him by the other party or a stranger, and the deed is in fact a different instrument from that which he was led to believe it to be, the deed is void.^ But if a man can read and does not read the document which he signs,* or if, being unable to read, he signs without having it read," he will not be heard to say that the contract is void, although in such case, if he was induced to sign it by fraudulent misrepresentation as to the character or terms, it is generally held that the contract is voidable.® In a leading case, the acceptor of a bill of exchange had induced a person to indorse it by telling him that it was a guaranty, and the defendant signed on the faith of the representation without seeing the face of the bill. It was held that, if the defendant was not guilty of any negligence in so signing, the bill did not bind him, even in the hands of a bona fide purchaser for value. It seems "plain, on principle and on authority," said the court, "that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) for- bears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid, not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and 2 Hunter v. Walters, L. R. 7 Ch. 81; Cannon v. Lindsey, 85 Ala. 198, 3 South. 676, 7 Am. St Rep. 38. And see Kennerty v. Phosphate Co., 21 S. C 226, 53 Am. Rep. 669; Little v. Little, 2 N. D. 175, 49 N. W. 736; Quimby v. Shearer, 56 Minn. 534, 58 N. W. 155; Campbell v. Van Houten, 44 Mo. App. 231; Liska v. Lodge, 112 Mich. 635, 71 N. W. 171; Royston v. Miller (C. C.) 76 Fed. 50 ; Chicago, St P., M. & O. Ry. v. Belliwith, 83 Fed. 437, 28 C. C. A. 358; Muller v. Kelly (C. C.) 116 Fed. 545; Sheneberger v. Insurance Co., 114 Iowa, 578, 87 N. W. 493, 55 L. R. A. 269 ; Martin v. Smith, 116 Ala. 639, 22 South. 917; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 92 N. W. 246; Fivey V. Railroad Co., 67 N. J. I^w, 627, 52 Atl. 472, 91 Am. St Rep. 445. 3 Thoroughgood's Case, 2 Coke, 9; McGinn v. Tohey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848; Schuylkill Co. v. Copley, 67 Pa. 386, 5 Am. Rep. 441; Rockford, R. L & St L. R. Co. v. Shunick, 65 111. 223; Burlington Lumber Co. v. Lumber Co., 100 Io^Ya, 469, 69 N. W. 558; Sibley v. Holcomb, 104 Ky. 670, 47 S. W. 765. * Cases cited supra, note 2. ^ Chicago, St P., M. & O. Ry. Co. v. Belliwith, 83 Fed. 437, 28 0. a A. 358 ; Muller V. Kelly (C. C.) 116 Fed. 545. 8 Post, p. 228, note 126. 198 REALITY OF CONSENT. (Ch. 7 therefore, in contemplation of law, never did sign, the contract to which his name is appended." ^ In this case the contract was void, and therefore could not be enforced even by a bona fide holder. And the case would have been the same had the execution been obtained, without negligence on the part of the signer, by the fraud of the other party.* In that case also the minds of the parties never meet, for tlie defrauded party thinks he is signing one instrument, and the defrauding party is aware that the signer is signing a different instrument. The case is, in effect, one of mistake, induced by fraud. If the ground of avoidance is the fraud of the other party, whereby the signer was induced to execute the instrument understandingly, the misrepresentation not relating to the character of the instrument, the contract, as we shall see, would be voidable, and not void.® The absence of negligence is strongly dwelt upon by the court in the case above stated, and the jury had expressly negatived its exist- ence. A person cannot assert the invalidity of a note or bill of exchange or deed, as against a bona fide purchaser for value, on the ground that through fraud and circumvention he was induced to sign, not knowing the nature of the instrument, unless he shows that he was not guilty of negligence ; for if he was negligent he will be estopped from asserting the invalidity. If he shows this, but not otherwise, he may assert the invalidity of the instrument, even as against a bona fide purchaser.^" There are some cases which hold that a negotiable T FOSTER V. McKINNON, L. R. 4 C. P. 704. And see Gibbs v. Linabury, 22 Mich. 479, 7 Am, Rep. 675 ; Kagel v. Totten, 59 Md. 447 ; Whitney v. Sny- der, 2 Lans. (N. Y.) 477; Cline v. Guthile, 42 Ind. 227, 13 Am. Rep. 357; WALKER V. EBERT, 29 Wis. 194, 9 Am. Rep. 54; Puffer v. Smith, 57 111. 527; Soper v. Peck, 51 Mich. 563, 17 N. W. 57; De Camp v. Hamma, 29 Ohio St. 467; Trambly v. Ricard, 130 Mass. 259; Corby v. Weddle, 57 Mo. 452 ; Detwiler v. Bish, 44 Ind. 70 ; Baldwin v. Bricker, 86 Ind. 221 ; Hewett V. Jones, 72 111. 208; Bowers v. Thomas, 62 Wis. 480, 22 N. W. 710; Schaper V. Schaper, 84 111. 603; Vanbrunt v. Singley, 85 111. 281; Esterly v. Eppelshel- mer, 73 Iowa, 260, 34 N. W. 846; W^ood v. Lock Co., 96 Ga. 120, 22 S. E. 909. 8 McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 844; Ester- ly V, Eppelsheimer, 73 Iowa, 260, 34 N. W. 846; Green v. Wilkie, 98 Iowa, 74, 66 X. W. 1046, 36 L. R. A. 434, 60 Am. St. Rep. 184; Lindley v. Hofman, 22 Ind. App. 237, 53 N. B. 471. And see cases cited in note 7, supra, and note 10, infra. » Post, p. 239. 10 Chapman v. Rose, 56 N. Y. 138, 15 Am. Rep. 401; Abbott v. Rose, 62 Me. 194, 16 Am. Rep. 427; Taylor v. Atchison, 54 111. 196, 5 Am. Rep. 118; Mackey V. Peterson, 29 Minn. 298, 13 N. W. 132, 43 Am. Rop. 211 ; Upton v. Tribil- cock, 91 U. S. 50, 23 L. Ed. 203; Gavagan v, Bryant, 83 111. 376; Leach v. Nichols, 55 111. 273; Ross v. Doland, 29 Ohio St 473; Douglas v. Matting, 29 Iowa, 498, 4 Am. Rep. 238; Fayette Co. Sav. Bank v. StefCes, 54 Iowa, 214, 6 N. W\ 207; Millard v. Barton, 13 R. I. 601; Baldwin v. BaiTows, 80 Ind. 351; Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 200; Ort v. Fowler, 31 Kan, J §§ 130-131) MISTAKE. 199 instrument cannot be avoided in the hands of a bona fide holder, even though there was no negligence; ^^ but the great weight of authority is in favor of the rule above stated. Mistake as to the Person with Whom the Contract is Made. A mistake as to the person with whom the contract is made may avoid it; as, for instance, where a contract is made with one person under a belief that it is being made with another. Where a man in- tends to contract with one person, another cannot make himself a party to the contract by substituting himself; for, in the first place, a man, in entering into a contract, looks to the credit and character of the person with whom he supposes he is contracting,^* and, in the second place, the person who thus substitutes himself is never present in the mind of the other party, and the latter, therefore, does not con- sent to a contract with him. Where a man imitated another's signa- ture, and thereby induced persons to supply him with goods under the belief that they were supplying the person whose signature was imi- tated, it was held that there was no contract with the person so pro- curing the goods. "Of him," says Lord Cairns, "they knew nothing, and of him they never thought. With him they never intended to deal. Their minds never even for an instant of time rested upon him, and as between him and them there was no consensus of mind which could lead to any agreement or contract whatever. As between him and them there was merely the one side to a contract, where, in order to produce a contract, two sides would be required." ^^ In this case the mistake was induced by fraud, but an innocent mis- take may produce the same result. Thus, where an order for goods was sent to a particular person, and a man who had succeeded to his business filled the order without giving notice of the change, it was held that he could not recover the price of the goods. "In order to entitle the plaintiff to recover," it was said, "he must show that there was a contract with himself." ^* And on the same principle, if a man sells goods to another, representing that he is the owner, and the other party intends to buy from him, there is no contract with the real owner, 478, 2 Pac. 580, 47 Am, Rep. 501; Weller's Appeal, 103 Pa. 594; Johnston v. Patterson, 114 Pa. 398, G All. 746; Shirts v. Overjohn, 60 Mo. 305; Citizens' Nat. Bank v. Smith, 55 N. H. 593. And see cases cited supra, note 8. 11 First Nat Bank v. Johns, 22 W. Va, 520, 46 Am. Rep. 506 (collecting cases), 12 Humble v. Hunter, 12 Q. B. 311; BOSTON ICE CO. v. POTTER, 122 Mass. 28, 25 Am. Rep. 9. 18 CUNDY V. LINDSAY, L. R. 3 App. Cas. 465. Post, p. 239. 14 BOULTON V. JONES, 2 Hurl. & N. 564. And see BOSTON ICE CO. v. POTTER, 123 Mass. 28, 25 Am. Rep. 9; Randolph Iron Co. v. Elliott, 34 N. J. Law, 184; Gregory v. Wendell, 40 Mich. 443; Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 3G7; Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 9<>, Fox V. Tabel, 66 Conn. 397, 34 Atl. lOL 200 REALITY OF CONSENT. (Ch. 7 who was the undisclosed principal of the seller, for "every man has a right to elect what parties he will deal with." ^' So, also, if a man obtains goods from another by falsely representing that he is the agent of another person, to whom tlie owner of the goods thinks he is selling them, the sale is void.^* To render the sale void, however, there must be a false representation that the agency exists, and not merely belief in its existence on the part of the seller, and intent to sell to the supposed principal,^' Mistake as to Subject-Matter of Contract. If a man knows the nature of the transaction, and the party with whom he is entering into legal relations, it is, for the most part, his own fault if the subject-matter of the contract — the thing contracted for and the terms of the bargain — is not what he supposed. "If, what- ever a man's real intention may be, he so conducts himself that a rea- sonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms." ^® And so, if the parties are agreed in clear terms, and one of them does not get what he anticipates under the contract, this is, if anything, failure of performance, and not mistake. Cases cited in illustration of the rule that a man is not bound to accept a thing substantially different from that which he bargained for ^^ have nothing to do with the formation of contract, and we must keep these ques- tions of mistake and so-called failure of consideration clearly apart. IB Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93; Mitchell v. Rail- ton, 45 Mo. App. 273. It Is not meant that an agent must always disclose his agency. An agent may sell the property of his principal without dis- closing that he acts as agent, or that the property is not his own; and the principal may maintain an action in his own name to recover the price. If the purchaser says nothing on the subject, he Is liable to the unknown prin- cipal. Huntington v. Knox, 7 Cush. (Mass.) 371. See Tiffany, Ag. 304-307. 16 Hardman v. Booth, 1 Hurl. & C. 803; Hollins v. Fowler, L. R. 7 H. L. 757; Hamet v. Letcher, 37 Ohio St. 356, 41 Am. Rep. 519; Hentz v. Miller, 94 N. Y. G7; Barker v. Dinsmore, 72 Pa. 427, 13 Am. Rep. 697; EDMUNDS v. TRANSPORTATION CO., 135 Mass. 283; McCrillis v. Allen, 57 Vt 505; Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367. So, also, where a person obtains goods by falsely representing that he is member of a firm, and gives in payment a forged check of the firm. Al- exander V. Swacldiamer, 105 Ind. 81, 4 N. E. 433, 5 N. E. 908, 55 Am. Rep. 180; Moody v. Blake, 117 Mass. 23, 19 Am. Rep. 394. So, also, where a per- son obtains goods by falsely representing that he is agent of an undisclosed principal. Rodliff v. Dollinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439. See, also, Paine v. Loeb, 90 Fed. 164, 37 C. C. A. 434 ; post, p. 239. 17 STODDARD v. HAM, 129 Mass. 383, 37 Am. Rep. 369. 18 Per Blackburn, J., in Smith v. Hughes, L. R. 6 Q. B., at page 607. 10 GOMPERTZ V. BARTLETT, 2 El. & Bl. 849; Couder v. Hall, 26 B. (N. S.) 22. §§ 130-131) MISTAKE. 201 Mistake as to the subject-matter of a contract will only avoid it at law in a few cases. Equity, however, may grant relief in cases where the law may afford no remedy.^** Saiiie — Mistake as to Existence of Sub ject-M after. If the agreement is in respect of a thing which, unknown to both parties, does not exist at the time of entering into the contract, this goes to the very root of the matter, and avoids the contract. It seems that this rests upon the ground that the existence of the subject-matter is a condition of the contract, rather than upon the ground of mutual mistake.^^ The subject belongs with impossibility of performance; but, inasmuch as the thing agreed upon has ceased to be possible before the agreement, such impossibility prevents a contract from ever arising, and does not operate, as impossibility arising subsequent to the agree- ment will sometimes operate, as a form of discharge. One of the leading English cases on this subject arose out of a sale of a cargo of corn which was supposed by the parties, at the time of the sale, to be on its voyage to England, but which, in fact, having become heated on the voyage, had been unloaded and sold. It was held that the contract was void, inasmuch as it "plainly imported that there was something which was to be sold at the time of the contract, and some- thing to be purchased," whereas the object of the sale had ceased to exist.^^ So, also, where a person purchased an annuity which, at the time of the purchase, had ceased to exist owing to the death of the annuitant, it was held that he could recover the price which he had paid for it.^' And so where tlie subject-matter of the contract is a right or title which, unknown to the parties, does not exist.^* There are some cases seemingly at variance with this rule, but they are cases 20 See Fritzler v. Robinson, 70 Iowa, 500, 31 N. W. 61 ; Geib v. Reynolds, 35 Minn. 331, 28 N. W. 923; Fleetwood v. Brown, 109 Ind. 567, 9 N. E. 352, 11 N. E. 779; Thwing v. Lumber Co., 40 Minn. 184, 41 N. W. 815. 21 See Anson, Cont. (8tli Ed.) 135; Pollock, Cont. (3d Ed.) 386, 455. 22 Couturier v. Hastie, 5 H. L. Cas. 673. See, also, Allen v. Hammond, 11 Pet. 63, 9 L. Ed. 6.33; GIBSON v. PEL.KIB, 37 Mich. 380; Thompson v. Gould, 20 Pick. (Mass.) 134; Ketchum v. Catlin, 21 Vt. 191; King v. Doolittle, 1 Head (Tenn.) 77 ; Scioto Fire Brick Co. v. Pond, 38 Ohio SL 65 ; Anderson v. Arm- stead, 69 111. 452; Fritzler v. Robinson, 70 Iowa, 500, 31 N. W. 61; Riegel v. Insurance Co., 153 Pa. 134, 25 Atl. 1030; Bluestone Coal Co. v. Bell, 38 W. Va. 297, 18 S. E. 493; Thwing v. Lumber Co., 40 Minn. 184, 41 N. W. 815; United States V. Charles, 74 Fed. 142, 20 C. C. A. 346; Nordyke & Marmon Co. v. Kehlor, 155 Mo. 643, 56 S. W. 287, 78 Am. St Rep. GOO. 2 3 STRICKLAND v. TURNER, 7 Exch. 208. And see Cochran v. Willis. L. R. 1 Ch. App. 58. 24 BINGHAM V. BINGHAM. 1 Ves. Sr. 126 ; COOPER v. PHIBBS, L. R. 2 H. L. 170; Yaraum v. Town of Hygate, 65 Vt. 416. 26 Atl. 628; Hamilton v. Park & McKay Co., 125 Mich. 72, 83 N. W. 1018 ; post, p. 206. 202 REALITY OF CONSENT. (Cb. 7 in which the contract was absolute, and not impliedly conditional upon the existence of the subject-matter,^^ Same — Mistake as to Identity of Subject-Matter. An agreement may be void where there is a mistake as to the identity of the subject-matter; as, for instance, where the contract is in refer- ence to a thing of a certain name, and one of the parties thinks he is contracting for one thing that answers the description, while the other party thinks it is something else which also answers the description. Thus, where a person agreed to buy a cargo "to arrive ex Peerless from Bombay," and there were two ships of that name, and the buyer meant one, and the seller the other, it was held that there was no contrac:-.-' The things meant by the parties must have fitted the description, or there is no mistake. If, in the case above mentioned, the buyer had meant a ship of a different name, he would have been bound by the terms of his contract. Unless the description admits of more mean- ings than one, the party setting up mistake can only do so by showing that he meant something different from what he said, and, as we have seen, he cannot do this. Nor will a mere misnomer of the subject- matter of a contract entitle either party to avoid it if the contract itself contains such a description of its subject-matter as practically identifies it.^^ Same — Mistake as to Nature' and Essential Qualities of Subject- Matter. If the parties are agreed as to the terms and subject-matter of the contract, it is complete by mutual assent, notwithstanding that the 25 Barr v. Gibson, 3 Mees. & W. 390; HILLS v. SUGHRUE, 15 Mees. & W. 253. "The parties to an agreement must be acquainted with the extent of their rights and the nature of the information they can call for respecting them, else they will not be bound. The reason is that they proceed under an idea that the fact which is the inducement to the contract is in a particular waj', and give their assent, not absolutely, but on conditions that are falsified by the event. But where the parties treat upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations as- sented to, the contract will be valid, notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the oppo- site party that would affect any other contract" Perkins v. Gay, 3 Serg. & R. (Pa.) 327, 7 Am. Dec. 653. 2 6 RAFFLES V. WICHELHAUS, 2 Hurl. & C. 906. And see Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779; KYLE v. KAVANAGH, 103 Mass. 350, 4 Am. Rep. 560; Thornton v. Kempster, 5 Taunt. 7S0; Cutts v. Guild, 57 N. Y. 229; Sheldon v. Capron, 3 R. I. 171; Harvey v. Harris, 112 Mass. 32. Where on a sale of land one party thinks he is buying one tract, and the other party thinlcs he is selling a different tract, there is no con- 2T lonides v. Pacific Ins. Co., L. R. 6 Q. B. 6SG; Hazard v. Insurance Co., 1 Sumn. 218, Fed. Cas. No. 0,282. §§ 130- 131) MISTAKE. 203 parties may be totally mistaken in the motives which induced the ascent. The fact that the subject-matter of the contract possessed, or failed to possess, qualities which the parties both believed, or did not believe, it to possess, is immaterial.-^ The parties may, indeed, make the ex- istence of some quality a condition of the contract, as if they should contract for the sale of "this uncut diamond," in which case, if the contract should be construed as making it a condition that the uncut stone in question should be a diamond and in fact the stone was not a diamond, there would be no contract, because the subject-matter of the contract was not in existence.^^ On the other hand, if the subject of sale was an uncut stone, as a matter of fact believed by both parties to be a diamond, but there was nothing in the terms of the contract to mal<:e it a condition that the stone should be a diamond, their mutual mistake as to the nature of the stone would not affect the validity of the contract.^" Thus, where a woman sold an uncut stone to a jeweler for $i, both being ignorant of the nature of the stone, and it turned out to be a diamond worth $i,ooo, it was held that the con- tract was binding.^^ So where the subject of sale was a note, the maker of which the parties mutually supposed to be solvent.^^ It is difficult to reconcile with the current of authority the case of Sher- tract. KYLE v. KAVANAGH, supra; Strong v. Lane, 66 Minn. 94, 68 N. W. 765. And see Irwin v. Wilson, 45 Oliio St. 426, 15 N. E. 209. 2 8 WOOD V. BOYNTON, 64 Wis. 265, 25 N. W. 42, 54 Am. Rep. 610; HECHT V. BATCHELLER, 147 Mass. 335, 17 N. E. 651, 9 Am. St. Rep. 708 ; Taylor v. Fleet, 4 Barb. 95; Taylor v. Ford, 131 Cal. 440, 63 Pac. 770. A settlement with a railway company for injuries is binding, although the parties were ignorant of the extent of the injuries. Rideal v. Railway Co., 1 Fost & F. 706; Seeley v. Traction Co., 179 Pa. 334, 36 Atl. 229; KO- W^lUvE V. LIGHT CO., 103 Wis. 472, 79 N. W. 762, 74 Am. St. Rep. 877; Houston & T. C. R. Co. v. MeCarty, 94 Tex. 298, 60 S. W. 429, 53 L. R. A. 507, 80 Am. St. Rep. 854. 2 9 "But sometimes, even when the thing which is the subject-matter of an agreement is specifically ascertained, the agreement may be avoided by ma- terial error as to some attribute of the thing, for some atti'ibute which the thing in truth has not may be a material part of the description by which the thing was contracted for. It this is so, the tiling as it really is, namely, without that quality, is not that to which the common intention of the par- ties was directed, and the agreement is void. An error of this kind will not sufflce to make the transaction void, unless (1) it is such that, according to the ordinary course of dealing and use of language, the difference made by the absence of the quality wi-ongly supposed to exist amounts to a difference in kind; (2) and the error is also common to both pai'ties." Pol. Cont. (3d Ed.) 450. See, on this point, Brant. Cont 104-108; Miles v. Stevens, 3 Pa. 21, 45 Am. Dec. 621; Irwin v. Wilson, 45 Ohio St. 426, 15 N. E. 209; Watson V. Brown, 113 Iowa, 308, 85 N. W. 28. 3 Hood V. Todd (Ky.) 58 S. W. 783. 31 WOOD V. BOYNTON. 64 Wis. 265, 25 N. W. 42. 54 Am. Rep. 610. 3 2 HECHT V. BATCHELLER, 147 Mass. 335, 17 N. E. G51, 9 Am. St Rep. 70S. 204 REALITY OF CONSENT. (Ch. 7 wood V. Walker, where the subject of sale was a blooded cow, be- lieved by the parties to be barren, and hence worth only $80, which was the price, but actually capable of breeding, and hence worth not less than $750, and it was held that the seller could rescind on the ground that the mistake went to the substance of the agreement^' Same — Mistake as to Quantity or Price. Quantity as well as quality may be a condition of the contract, and in such case, if the designated quantity does not exist, there is no con- tract because of the nonexistence of the subject-matter. Where, for example, the contract is for the sale of a described tract, which is also described as containing a certain number of acres, it has been held that a material difference in the quantity is ground for rescission.** Of course, if the acceptance varies from the terms of the offer, there is no contract. Thus, where, by mistake of a telegraph clerk, an offer is wrongly transmitted, and is accepted as altered, it has been held that the offeror is not bound. ^"^ So if the price is stated in such terms that the offeree understands it as for one quantity, while the offeror means it in another, the parties are never ad idem.*^ The effect of such mistake is merely to show that there was no contract, because of the failure of the minds of the parties to meet. Mistake as to Nature of Promise Knozvn to the Other Party. Except as stated in the preceding paragraphs, the only form of mis- take that can affect the validity of a contract is where there is a mistake on the part of one of the parties as to the nature of the promise, and the other party knows of the mistake. S3 SHERWOOD V. WALKER, 66 Mich. 568, 33 N. W. 919, 11 Am. St. Rep. 531. 3 4 Ne^vton v. Tolles, 66 N. H. 136, 19 Atl. 1092, 9 L. R. A. 50, 49 Am. St. Rep. 593. As to mistake as to quantity of land, and relief in equity, see Paine V. Upton, 87 N. Y. 327, 41 Am. Rep. 371; Miller v. Craig, 83 Ky. 623, 4 Am. St. Rep. 179; Pratt v. Bowman, 37 W. Va. 715, 17 S. E. 210; Hill v. Buckley, 17 Ves. 394 ; Rogers v. Pattie, 96 Va. 498, 31 S. B. 897 ; Bingham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267. 35 Henkel v. Pape, L. R. 6 Exch. 7; Pegram t. Telegraph Co., 100 N. C. 28, 6 S. E. 770, 6 Am. St. Rep. 557; Pepper v. Telegraph Co., 87 Tenn. 554, 11 S. W. 783. 4 L. R. A. 660, 10 Am. St. Rep. 699. Some courts, however, hold the contrary, on the gi-ound that the telegraph company, being selected by the proposer, is his agent, and that he and not the other party should suffer loss from the error. His remedy is against the telegraph company if it was negligent. See Western Union Tel. Co. v. Shotter, 71 Ga. 760; AYER V. TELEGRAPH CO., 79 Me. 493, 10 Atl. 495. And see Durkee v. Railroad Co., 29 Vt. 127; Anheuser-Busch Brewmg Ass'n v. Hutmacher, 127 111. 652, 21 N. E. 626, 4 L. R. A. 575 ; Howley v. Whipple, 48 N. H. 487 ; Saveland v. Green, 40 Wis. 431 ; Barons v. Brown, 25 Kan. 410. 3 6 Greene v. Bateman, 2 Woodb. & M. 350. See, also, RUPLEY v. DAG- Gr71"r, 74 111. 351; ROVEGXO v. DEFFERARI, 40 Cal. 459; Peerless Glass Co. V. Tinware Co., 121 Cal. 641, 54 Pac. 101. §§ 130-131) MISTAKE. 205 It must be remembered that we are speaking here of contracts which are prima facie valid, and we must exclude from our consideration cases in which the offer and acceptance never agreed in terms, so that there was never the outward form of agreement, and cases in which the meaning of the terms is disputed, so that the court must determine whether the contract has, upon its true construction, been performed or broken. A mistake on the part of one of the parties to a contract, as a mis- understanding in respect to the nature or qualities of the subject-matter, or a mistake in fixing or expressing the terms, not induced by the conduct of the other party, has as a rule no effect upon the contract.''^ But the law will not allow one party to accept a promise, which he knows that the other party understands in a different sense from that in which he understands it.^^ If the mistake or misunderstanding of the one party as to the nature of the promise is known to the other, or if the other has reason to know it, the contract is voidable.'^ Thus where a person was sued for refusing to accept some oats which he had agreed to buy from the plaintiff, on the ground that he had agreed and intended to buy old oats, and that those supplied were new, the jury were told that, if the plaintiff knew that the defendant "thought he was buying old oats," then he could not recover. The court of review, however, held that this was not enough to avoid the sale ; that in order to do so the plaintiff must have known that the defendant "thought he was being promised old oats." It was not knowledge of the misapprehension of the quality of the oats, but knowledge of the misapprehension of the quality promised, which would defeat a re- covery.*° So where the seller, intending to offer cattle for $261.50, by a slip of the tongue offered them for $161.50, and the buyer, having good reason to suppose that the price named was a mistake, accepted the offer and paid $20 on account, and the seller tendered back the $20, and repudiated the sale, it was held that the buyer was not entitled to maintain replevin. ^^ And where by mistake the plaintiff in compil- ing a rate sheet printed the fare at $21.25 instead of $36.70, and the 87 Scott V. Littledale, S El. & Bl. 815 : rpople's Bank v. Bog.art, 81 N. "S. lUl. 37 Am. Rep. 481; LAIDLAW v. ORGAN, 2 Wheat. 178, 4 L. Ed. 214; Borden v. Railroad Co., 113 N. C. 570, 18 S. E. 392, 37 Am. St. Rep. 632; Griffin v. O'Xeil, 48 Kan. 117, 29 Pac. 143; Seeley v. Traction Co., 179 Pa. 334, 36 Atl. 229; Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W. 255. 3 8 Anson, Cont. (Stii Ed.) 138. 3 9 Smith V. Hughes, L. R. 6 Q. B. 597; Thayer v. Knote, 59 Kan. 181, 52 Pac. 433. Sir William Anson says "void." Anson, Cont. (8th Ed.) 138. *o Smith V. Hughes, supra. 41 Harran v. Foley, 62 Wis. 584, 22 N. W. 837. See, also, Webster v. Cecil, 30 Beav. 62; Tamplin v. Jones, 15 Ch. D. 221; Gerrard v. Franlsel, 30 Beav. 445; Everson v. Granite Co., 65 Vt 658, 27 Atl. 320. 206 REALITY OF CONSENT. (Ch. 7 defendant, who had discovered the mistake, purchased tickets at the printed price, it was held that the plaintiff could rescind,*^ This subject is treated by Sir William Anson and many other writers under mistake, but most of the courts of this country treat is as a question of fraud. Whatever classification is adopted, it seems that mistake of the character under consideration can have no greater effect than to render the contract voidable, not void. Mistake of Laiv. As a rule, ignorance or mistake of law, by reason of which the parties do not understand the legal effect of their contract, does not avoid it, unless there is some fraud, or unless there is a relation of confidence between the parties.*^ In cases where the nonexistence of a right is concerned, it has been said that the mistake is not a mistake of law, so as to render the avoid- ance of a contract on that ground a violation of the rule that ignorance of law is no excuse. "It is said, 'Ignorantia juris baud excusat ; ' but in that maxim the word 'jus' is used in the sense of denoting general law, — the ordinary law of the country. But, when the word 'jus' is used as denoting a private right, that maxim has no application. Pri- vate right of ownership is a matter of fact ; it may be the result also of a matter of law ; but, if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that that agreement is liable to be set aside as having proceeded upon a common mistake." ** Under this rule, the sale of 4 2 SHELTON V. ELLIS, 70 Ga. 297. A contract to furnish the government with many articles at stipulated prices, among them shucks at 60 cents per pound, was unenforceable as to the shucks, where the government showed that they were worth from $12 to $35 per ton; that it was customary to buy them by the hundred weight; and that the seller failed to strike out the word "pounds" on the printed form of proposal, and to insert "himdred weight" instead, though the seller insisted that there was no mistake on his part. Hume v. United States, 132 U. S. 406, 10 Sup. Ct. 838, 33 L. Ed. 393. See, also, Moffett, Hodgkins & Clarke Co. v. City of Rochester, 178 U. S. 373, 20 Sup. Ct. 957, 44 L. Ed. 1108. 4 3 Birkhauser v. Schmitt, 45 Wis. 316, 30 Am. Rep. 740; FISH v. CLE- T^ND, .33 111. 243; Hunt v. Rousmanier, 1 Pet. 1, 7 L. Ed. 27; Storrs v. Bar- ker, 6 Johns. Ch. 1G6; Starr v. Bennett, 5 Hill (N. Y.) 303; Bank of United 4 4 COOPER V. PHIBBS, L. R. 2 H. L. 170, per Lord Westbm-y. And see Wilson V. Insurance Co., 60 Md. 157; Toland v. Corey, 6 Utah, 392, 24 Pac. 190; Lovell v. Wall, 31 Fla. 73, 12 South. 659; Motherway v. Wall, 168 Mass. 333, 47 N. E. 135. "In the often quoted passage * * * he [Lord West- buryl only meant that certain words, such as 'ownership,' 'marriage,' 'settle- ment,' etc., import both a conclusion of law and facts justifying it, so that, when asserted without explanation of what the facts relied on are, they as- sert the existence of facts sufficient to justify the conclusion, and a mistake induced by such an assertion is a mistake of fact." Alton v. Bank, 157 Mass. 341, 32 N. E. 228, 18 L. R. A. 144, 34 Am. St. Rep. 285, per Holmes, J. §§ 132-134) MISTAKE. 207 a thing which, unknown to the parties, already belongs to the buyer, or does not belong to the seller, is void..*" This is not a mistake of law, but of fact. Ignorance of foreign laws, including the laws of a sister state, is regarded as ignorance of fact, and not of law, since a person is not bound to acquaint himself with them.*^ A mistake in drawing up a contract, or a mistake in the legal effect of a description in a deed or other writing, or in the use of technical language, may be ground for relief in equity.*' SAME— EFFECT— REMEDIES. \lc 132. EFFECT. Mistake, where it lias aiiy effect, as a rale renders a contract void. 133. REMEDIES AT LAW^. At common law the contract may he re- pudiated if it is executory, or, if executed in w^hole or in part, Tvhat has heen paid or delivered under it may he recovered hack. 134. REMEDIES LN EQUITY. In equity a suit for specific perform- ance may he resisted; or suit may he hrought to declare the contract void; or, if the mistake is merely in drawing up the contract, suit may he hrought to reform the iiLstrument. As we shall presently see, fraud renders a contract voidable only. The effect of mistake, however, where it has any operation at all, is, as a rule,*^ to render the contract void. The common law, therefore. States V. Daniel, 12 Pet. 32, 9 L. Ed. 989; Mellish v. Robertson, 25 Vt. 603; Good V. Herr, 7 Watts & S. (Pa.) 253, 43 Am. Dec. 236; Rice v. Manufac- turing Co., 2 Cush. (Mass.) 80; Dodge v. Insurance Co., 12 Gray (Mass.) G5; Hubbard v. Martin, 8 Yerg. (Tenn.) 498; Townsend v. Cowles, 31 Ala. 42S; Christy v. Sullivan, 50 Cal. 337; Wbeaton v. Wheaton, 9 Conn. 96; Goltra v. Sanasack, 53 111. 458; Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203; Porter V. Jefferies, 40 S. C. 92, 18 S. E. 229; Osburn v. Throckmorton, 90 Va. 311, 18 S. E. 285; Pittsburgh & L. R. Iron Co. v. Iron Co., 118 Mich. 109, 76 N. W. 395; post, pp. 226, ai2. But see Lowndes v. Chisholm, 2 McCord, Eq. (S. C.) 455, 16 Am. Dec. 667. 45 2 Bl. Comm. 450; Trigg v. Read, 5 Humph. (Tenn.) 529, 42 Am. Dec. 447; BINGHAM V. BINGHAM, 1 Ves. Sr. 126; Martin v. McCormick, 8 N. Y. 331; Cutts V. Guild, 57 N. Y. 229. Contra, Birkhauser v. Schmitt, 45 Wis. 316, 30 Am. Rep. 740. Ante, p. 201. 4 6 HAVEN V. FOSTER, 9 Pick. (Mass.) 112, 19 Am. Dec. 353; Vinal v. Im- provement Co., 53 Hun, 247, 6 N. Y. Supp. 595; Bank of Chillicothe v. Dodge, 8 Barb. (N. Y.) 233; Wood v. Boeder, .50 Neb. 476, 70 N. W. 27; Rosenbatim v. Credit System Co., 64 N. J. Law, 34, 44 Atl. 966. 4T Canedy v. Marcy, 13 Gray (Mass.) 373; Snell v. Insurance Co., 98 U. S. 85, 25 L. Ed. 52; Griswold v. Hazard, 141 U. S. 200, 11 Sup. Ct 972, 35 L. Ed. 678; Benson v. Markoe, 37 Minn. 30, 33 N. W. 38, 5 Am. St. Rep. 816; Kyner V. Boll, 182 111. 171, 54 N. E. 925; Pinkham v. Pinkham, GO Neb. 600, S3 N. W. 837. 48 As to the effect of mistake of one party known to the other. Ante, p. 204 208 REALITY OF CONSENT. (Cll. 7 offers two remedies to a person who has entered into an agreement which is void on the grounc^ of mistake. If it be still executory, he may repudiate it, and successfully defend an action brought upon it. If he has paid money under it, he may recover it back upon the general principle that "where money is paid to another under the influ- ence of a mistake, — that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is un- true, — an action will lie to recover it back." *° In equity the victim of the mistake may resist specific performance of the contract, and may sometimes do so successfully when he might not be able to successfully defend an action at law for damages arising from its breach.'" He may also sue to have the contract declared void, and to be freed from his liabilities in respect of it. If the mistake was in drawing up the contract, a suit in equity may be brought to correct the mistake, and reform the instrument so it will express the real inten- tion of the parties. °^ A party who is entitled to avoid a contract on the ground of mistake must rescind at law, or seek his relief in equity, within a reasonable time after knowledge of the mistake.^^ MISREPRESENTATION. 135. Misrepresentation is an innocent misstatement or nondisclosure of facts. It must be distinguisSied from (a) Fraud, Tvliicli is a false representation (or nondisclosure under such circumstances tliat it amounts to a misrepresentation) knoTim to be false, or made in reckless ignorance as to its truth or falsity. (b) Conditions and x^arranties, vchich are representations consti- tuting terms of the contract. 49 KELLY V. SOLARI, 9 Mees. & W. 54; WHEADON y. OLDS, 20 Wend. (N. Y.) 174; post, pp. 536, 542. 50 Webster v. Cecil, 30 Beav. 62; Frisby v. Ballance, 4 Scam. (111.) 287, 39 Am. Dec. 409; Trigg v. Read, 5 Humph. (Tenn.) 529, 42 Am. Dee. 447. 61 Elliott V. Sackett, 108 U. S. 132, 2 Sup. Ct. 375, 27 L. Ed. 678; Beardsley V. Knight, 10 Vt. 185, 33 Am. Dec. 193; Newcomer v. Kline, 11 Gill & J. (Md.) 457, 37 Am. Dec. 74 ; Kilmer v. Smith, 77 N. Y. 226, 33 Am. Rep. 613 ; Jenks V. Fritz, 7 Watts & S. (Pa.) 201, 42 Am. Dee. 227; Fowler v. Woodward, 26 Minn. 347, 4 N. W. 231; Paine v. Upton, 87 N. Y. 327, 41 Am. Rep. 371. 82 Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798; Thomas v. Bartow, 48 N. Y. 193; Sable y. Maloney, 48 Wis. 331, 4 N. W. 479; Dodge v. Insui-ance Ck)., 12 Gray (Mass.) 71; Diman v. Railroad Co., 5 R. L 130. §§ 135-138) MISREPRESENTATION. 209 SAME— EFFECT. 136. Mere misrepresentation has at law^ no efPect on a^ contract, ex- cept in the case of contracts said to be uberrima; fidei, in which, from their nature, or from the particular circumstan- ces, one party must rely on the other for his knowledge of the facts, and the other Lb bound to the utmost jgood^aith. These are : ~ (a) Contracts of marine, fire, and life insurance. (b) Contracts betw^een persons occupying a confidential relation, as betw^een attorney and client, principal and agent, guardian and ward, trustee and cestui que trust, etc. (c) To a limited extent, contracts for the sale of land. (d) In England, and probably with us, contracts with promoters of a corporation for the purchase of shares. 137. Where misrepresentation has any effect at all, it renders the con- tract voidable. 138. A material misrepresentation is ground for granting or refusing equitable relief. Distinguished from Fraud. "Misrepresentation," as the term is here used, must be distinguished from "fraud," with which we are to deal presently. Misrepresentation means an innocent misstatement or nondisclosure of facts, while fraud consists in representations which are known to be false, or which are made in reckless ignorance of their truth or falsity, or in nondis- closure or concealment of facts under such circumstances that it amounts to a representation that the facts concealed do not exist. This will be more fully explained in treating of fraud. The practical test of fraud, as opposed to mere misrepresentation, is that fraud gives rise to an action ex delicto, while innocent misrepresentation does not. Fraud, besides being a vitiating element in contract, is a tort or wrong apart from contract, and may be treated as such by bringing an action of deceit. Misrepresentation, in exceptional cases, may invalidate a contract, but will not support an action of deceit. Distinguished from Conditions and Warranties. It may be stated as a rule, subject to exception in case of certain contracts to be hereafter noticed, that innfifient misrepresentation or nondisclosure of fact does not affect the validity of consent. The tendency of the courts has been to bring, i f. possible, every statement^ which is important enough to affect consent into the terms of the con- tract, and a representation which cannot be shown to have had so material a part in determining consent as to have formed, if not the basis of the contract, at least an integral part of its terms, is set aside altogether. Tf it i.c; a pf?^^ "f <'!"""- c-ontrnrt, it is no longer called a mere_ misrepresentation ; it js a condition or warranty^ and its falsity does not Claek Cont. (2d Ed.) — 14 210 REALITY OF CONSENT. (Ch. 7 affect the formation of the contract, but operates to discharge the in- jured party from his obligation, or gives him a right of action based on the contract for loss sustained by reason of the untruth of the statement. The statement in such case is a term of the contract. The distinctions are well shown in a leading English case. The action was brought on a charter party in which it was agreed that the plaintiff's ship, "then in the port of Amsterdam," should proceed to a certain port and load a cargo. At the date of the contract the ship was not in the port of Amsterdam, and did not arrive there for several days. The defendant refused to carry out the agreement, and repudi- ated it. The court held that the statement that the ship was in the port of Amsterdam was intended by the parties to be a condition, and a breach thereof discharged the charterer.^^ Williams, J., in giving judgment, thus distinguishes the various parts or terms of a contract: "Properly speaking, a representation is a statement or assertion, made by one party to the other, belore or at the lime of the contract, of some matter or circumstance relating to it. Though it is sometimes con- tained in the written instrument, it is not an integral part of the con- tract, and consequently the contract is not broken, though the repre- sentation proves to be untrue ; nor (with the exception of the case of policies of insurance, — at all events, marine policies, which stand on a peculiar anomalous footing) is such untruth any cause of action, nor has it any efficacy whatever, unless the representation was made fraud- ulently, either by reason of its being made with a knowledge of its untruth, or by reason of its being made dishonestly, with a reckless ignorance whether it was true or untrue. * * * Though repre- sentations are not usually contained in the written instrument of con- tract, yet they sometimes are. But it is plain that their insertion therein cannot alter their nature. A question, however, may arise whether a descriptive statement in the written instrument is a mere representation, or whether it is a substantive part of the contract. This is a question of construction which the court, and not the jury, must determine. If the court should come to the conclusion that such a statement by one party was intended to be a substantive part of his contract, and not a mere representation, the often-discussed question may, of course, be raised, whether this part of the contract is a condi- tion precedent, or only an independent agreement, a breach of which will not justify a repudiation of tlie contract, but will only be a cause of action for a compensation in damages. In the construction of char- es BETIN V. BURNESS, 3 Best & S. 751. And see Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct 346, 28 L. Ed. 885; Lowber v. Bangs, 2 Wall. 728, 17 L. Ed. 768; NOKRINGTON v. WRIGHT, 115 U. S. 188, 6 Sup. Ct. 12, 20 L. Ed. 366. As to the distinction in contracts of insurance, see Hartford Protection Ins. Co. V. Ilarmor, 2 Ohio St. 4.52, 59 Am. Dec. 084; Schwarzbacli v. Protective Union, 25 W. Va. 655, 52 Am. Rep. 227. I I §§ 135-138) MISllEPUESENTATION. 211 ter parties, this question has often been raised with reference to stipu- lations that some future thing shall be done or shall happen, and has given rise to many nice distinctions. Thus, a statement that a vessel is to sail, or be ready to receive a cargo, on or before a given day, has been held to be a condition,^* vi^hile a stipulation that she shall sail with all convenient speed, or u'ithin a reasonable time, has been held to be only an agreement.^^ But with respect to statements in a contract descriptive of the subject-matter of it, or of some material incident thereof, the true doctrine, established by principle as well as authority, appears to be, generally speaking, that, if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty ; that is to say, a condition on the failure or nonper- formance of which the other party may, if he is so minded, repudiate the contract in toto, and so be relieved from performing his part of it, provided it has not been partially executed in his favor. If, indeed, he has received the whole or any substantial part of the consideration for the promise on his part, the warranty loses the character of a condi- tion, or, to speak perhaps more properly, ceases to be available as a condition, and becomes a warranty in the narrower sense of the word, viz. a stipulation by way of agreement, for the breach of which a com- pensation must be sought in damages." Same — Various Senses of the Terms and Their Effect. It will be observed ^^ that in the opinion above quoted "condition" is used in two senses, — as meaning a statement that a thing is, and a promise that a thing shall be. In either case the statement or promise is of so important a nature that the untruth of the one, or the breach or the other, discharges the contract. "Warranty" also is used in several senses. It is first made a convertible term with a condition. It is then used "in the narrower sense of the word," in which sense it. means (i) a subsidiary promise in the contract, the breach of which; could under no circumstances do more than give rise to an action for damages, and (2) a condition, the breach of which might have dis- charged the contract had it not been so far acquiesced in as to lose its effect for that purpose, though it may give rise to an action for damages. The various senses of the terms we have been discussing, and their effect, may be summed up as follows: (i) "Representations," not fraudulent, made at the time of entering into the contract, but not forming a part of it, may affect its validity in certain special cases, but are otherwise inoperative. When they do operate, their falsehood viti- ates the formation of the contract and makes it voidable. (2) "Condi- 64 GLAHOLM V. HATS, 2 Man. & G. 257. 66 SEEGER V. DUTHIE, 8 C. B. (N. S.) 45; TARRABOCHIA v. HICKLE, 1 Hurl. & N. 183. 5 6 See Ajison, Cont (8tli Ed.) 149. 212 REALITY OF CONSENT. (Ch. 7 tions" are either statements or promises which form the basis of the contract. Whether or not a term in the contract amounts to a con- dition must be a question of construction, to be answered by ascertain- ing the intention of the parties from the wording of the contract and the circumstances under which it was made. But when a term in the contract is ascertained to be a condition, then, whether it be a state- ment or a promise, the untruth or the breach of it will entitle the party to whom it is made to be discharged from his liabilities under the con- tract. (3) "Warranties," used in "the narrower sense," are independent subsidiary promises, the breach of which does not discharge the con- tract, but gives to the injured party a right of action for such damage as he has sustained by the failure of the other to fulfill his promise. (4) A condition may be broken, and the injured party may not avail himself of his right to be discharged, but continue to take benefit under the contract, or, at any rate, to act as though it were still in operation. In such a case the condition sinks to the level of a warranty, and the breach of it, being waived as a discharge, can only give a right of action for the damage sustained.**' This is sometimes called a "warranty ex ■ +• post facto." . ■ ■ • ■ ,-trX, A strong illustration of the tendency of the courts to bring a state- ment material enough to afifect consent into the terms of the contract is ofifered by an English case arising out of a sale of hops by the plaintiff to the defendant. It appeared that, before commencing to deal, the defendant asked the plaintiff if any sulphur had been used in the treat- ment of that year's crop. The plaintiff said, "No." The defendant said that he would not even ask the price if any sulphur had been used. After this the parties discussed the price, and the defendant agreed to purchase the crop of that year. He afterwards repudiated the con- tract on the ground that sulphur had been used, and the plaintiff sued for the price. It was shown that the plaintiff had used sulphur over 5 acres, the entire growth consisting of 300 acres. He had used it for the purpose of trying a new machine, had afterwards mixed the whole growth together, and had either forgotten the matter or thought it unimportant. The jury found that the representation made by the plaintiff as to the use of sulphur was not willfully false, and they further found that "the affirmation that no sulphur had been used was intended by the parties to be a part of the contract of sale, and a war- ranty by the plaintiff." The court had to consider the effect of this finding, and came to the conclusion that the representation of the plaintiff was a part of the contract, and a preliminary condition, the breach of which entitled the defendant to be discharged from liability. Erie, C. J., said : "We avoid the term 'warranty' because it is used in two senses, and the term 'condition' because the question is whether 87 Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503; post, p. 4CS. I §§ 135-138) MISREPRESENTATION. 213 that term is applicable. Then the effect is that the defendants required, and that the plaintiff gave, his undertaking that no sulphur had been used. This undertaking was a preliminary stipulation ; and, if it had not been given, the defendants would not have gone on with the treaty which resulted in the sale. In this sense it was the condition upon which the defendants contracted, and it would be contrary to the inten- tion expressed by this stipulation that the contract should remain valid if sulphur had been used. The intention of the partie s govprus^n the making;_and. iii-tlie construction of all contracts. If the parties so inten^Tthe sale may be absolute, with a warranty superadded ; or the sale may be conditional, to be null if the warranty is broken. And, upon this statement of facts, we think that the intention appears that the contract should be null if sulphur had been used ; and upon this ground we agree that the rule should be discharged." *** Conclusion as to Effect of Misrepresentation. From what has been shown, we may state the rule as to misrepre- sentations in this way : Whenever the validity of a contract is called in question, or the liabilities of the parties are said to be affected, by reason of representations made before or at the time of entering into the contract, the effect of the representation will depend on the answers to the following questions : (i) Were the s tatem ents in question a part_of the terms of the contract? (2) If not, were they made_ fraudu- lently? (3) If neither of these, was the contract~one"of that class of contracts called "contracts uberrimse fidei_," in which one of the parties had to rely peculiany~on the other for his knowledge of material facts, and the other was bound to the most perfect good faith? If all of these questions are answered in the negative, the representation has no effect at all. Excepted Contracts Affected by Mere Misrepresentation. To the general rule that misrepresentations not amounting to fraud, and not forming a term of the contract, do not affect its validity, ther? are exceptions in case of certain special contracts sometimes said to be uberrimae fidei ; that is, contracts of such a character that one of the parties must rely on the other for his knowledge of the facts. As the term implies, the most perfect good faith is required in such cases, and any material misstatement or concealment of facts, even though innocent, will avoid the contract. Same — Contracts of Insurance. Among these excepted contracts are contracts of insurance. In the case of a contract of marine insurance the assured is bound to give the insurer all such information as would be likely to affect his judgment in accepting the risk, and misrepresentation or nondis- 68 Baunerman v. White, 10 C. B. (N. S.) 8G0. 2li REALITY OF COXSEXT. (Cll. 7 closure of an}^_ju.ch. .matter, tlioilgh-perfectly innocent, will- vkiate the pohcy?^ As said by the Ohio Court: "The assured is bound to ■communicate every material fact within his knowledge not known, or presumed to be known, to the underwriter, whether inquired for or not ; and a failure in either particular, although it might have arisen from mistake, accident, or forgetfulness, is attended with the rigorous con- sequence that the policy never attaches, and is void, for the reason that the risk assumed is not the one intended to be assumed by the par- ties." ®** Thus, a policy of marine insurance has been avoided because the goods were insured for an amount considerably in excess of their value, though the fact of overvaluation did not affect the risks of the voyage, simply because the valuation is a fact usually taken into con- sideration by underwriters,®^ It is said that the doctrine applicable to marine insurance does not apply, to the full extent, to other contracts of insurance. ^^ It is set- tled, however, that any false representation of a material fact, how- ever innocently made, will avoid the policy.®^ It has even been held, in cases where the fact undisclosed was peculiarly within the knowledge of the insured, and not such as to be patent on examina- tion, that the innocent nondisclosure of a material fact will vitiate the policy. Where, for instance, one fire insurance company reinsured a risk in another company without informing the latter that it had heard that the assured, or at least some one of the same name, had been so unlucky as to have had several fires, in each of which he was heavily insured, it was held that such nondisclosure, though uninten- tional, vitiated the contract of reinsurance.®* Where, however, as is now generally the practice, written applications for insurance are re- quired, in which specific questions are asked and answered, an innocent failure to disclose facts about which no inquiry is made will not avoid 69 McLanahan v. Insurance Co., 1 Pet. 170, 7 L. Ed. 98; Lewis v. Insurance Co., 10 Gray (Mass.) 508; Ely v. Hallett. 2 Caines (N. Y.) 57; Stoney v. Insur- ance Co., Harp. (S. C.) 235; Lexington Fire, Life & Marine Ins. Co. v. Paver, 16 Ohio, 324; Vale v. Insurance Co., 1 Wash. C. C. 283, Fed. Cas. No. 16,811; Augusta Ins. & Banking Co. v. Abbott, 12 Md. 348. 60 Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452, at page 462, 59 Am. Dec. 684. 61 lonides v. Pender, L. R. 9 Q. B. 537. 6 2 Hartford Protection Ins. Co. v. Harmer, 2 Ohio St., at page 4a3. 59 Am. Dec. 684. And see Burritt v. Insurance Co., 5 Hill (N. Y.) 188, 40 Am. Dec. 345; Wineland v. Insurance Co., 53 Md. 276; United States Fire & Marine Ins. Co. V. Kimborly, 34 Md. 224. 6 Am. Rep. 325. 63 Armour v. Insurance Co., DO N. Y. 450. 64 New York Bowery Fire Ins. Co. v. Insurance Co., 17 Wend. (N. Y.) 359. And see WALDEN v. INSURANCE CO., 12 La. 134, 32 Am. Dec. 116; Curry v. Insurance Co., 10 Pick. (Mass.) 535, 20 Am. Dec. 547; Fowler v. Insurance Co., 6 Cow. (N. Y.) 673, 16 Am. Dec. 400; Bobbitt v. Insm-ance Co., 66 N. C. 70, 8 Am. Rep. 494. §§ 135-138) MISREPKESENTATION. 215 the policy, though it is otherwise where there is an innocent failure to disclose a fact where inquiry is made.®^ In England and in some of our states a distinction has been drawn between life insurance and marine and fire insurance, and life insurance has been said not to be within the exception to the rule that innocent misrepresentation docs not avoid a contract.^" In most of our states, however, no distinction is made in this respect between life and fire insurance, misrepresentation of a material fact, whether innocent or fraudulent, avoiding the policy.*' Even in England the tendency of the modern adjudications is towards applying the doctrine that innocent misrepresentation, including non- disclosure, vitiates a contract of fire or life, as well as marine, insurance, without any practical distinction.^* Same — Contracts for the Sale of Land. It is said by Sir William Anson that contracts for the sale of land are uberrimae fidei, and therefore within the exception to the rule that innocent misrepresentation does not afifect the validity of the contract ; but this is so only to a very limited extent, even in England, ''^ and prob- ably to a less extent in this country. As a rule, the courts of law with us recognize no distinction in this respect between contracts for the sale of land and other contracts.'^'' A purchaser of land, it has been held, is not bound to disclose facts within his knowledge which render the land worth much more than the price he offers ; as, for instance, the fact that there is a valuable mine under it.'^^ It has, however, been held that a misdescription of the land, or of the title, or of the terms to which it is subject, though made without any fraudulent intention, 65 Green v. Insurance Co., 10 Pick. (Mass.) 402; Com. v. Insurance Co., 112 Mass. 136, 17 Am. Kep. 72; Washington Mills Mfg. Co. t. Insurance Co., 135 Mass. 505; Burritt v. Insurance Co., 5 Hill (N. Y.) 188, 40 Am. Dec. 345; Bro'wning v. Insurance Co., 71 N. Y. 508, 27 Am. Rep. 8G; North American Ins. Co. V. Thi-oop, 22 Mich. 146, 7 Am. Rep. 638 ; Clark v. Insurance Co., 8 How. 249, 12 L. Ed. 1061; Ripley v. Insurance Co., 30 N. Y. 136, 86 Am. Dec. 362; Short V. Insurance Co., 90 N. Y. 16, 43 Am. Rep. 138. 6 6 Wbulton V. Hardesty, 8 El. & Bl., at page 299; Schwarzbach v. Protec- tive Union. 25 W. Va. 655, 52 Am. Rep. 227. 6T Bliss, Ins. 75; Vose y. Insurance Co., 6 Cush. (Mass.) 42; Campbell v. Insurance Co., 98 Mass. 381, at page 396 ; Goucher v. Association (C. C.) 20 Fed. 596; New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, 29 L. Ed. 934 ; Mutual Ben. Life Ins. Co. v. Wise, 34 Md. 582 ; .^tna Life Ins. Co. V. France, 91 U. S. 512. 23 L. Ed. 401. See PHCENIX MUT. LIFE INS. CO. V. RADDIN, 120 U. S. 183, 7 Sup. Ct 500, 30 L. Ed. 044 ; Cable v. Insurance Co., Ill Fed. 19, 49 C. C. A. 216. 6 8 London Assurance v. Mansel, 41 Law T. (N. S.) 225. 6 2 Add. Cont. § 538 ; 1 Sugd. Vend. 8. TO Livingston v. Iron Co., 2 Paige, Ch. (N. Y.) 392; Williams v. Spurr, 24 Mich. 335. T' Note 91, infra., 216 REALITY OF CONSENT. (Ch. 7 will avoid the contract.^^ Courts of equity have granted or refused their peculiar remedies in the case of contracts for the sale of land because of innocent misrepresentation/^ but this has been because of principles peculiar to equity, and not because of the nature of the con- tract. The same principles have been applied, and the same relief granted or refused, in the case of other contracts. Same — Contracts to Purchase Shares in Companies. Another exception is in the case of contracts with the promoters of a corporation for the purchase of shares. It is said in an English case : "Those who issue a prospectus holding out to the public the great ad- vantages which will accrue to persons who will take shares in a pro- posed undertaking, and inviting them to take shares on the faith of the representations therein contained, are bound to state everything with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not so, but to omit no one fact within their knowledge, the existence of which might in any degree affect the nature, extent, or quality of the privileges and advantages which the prospectus holds out as inducements to take shares." ''* As said in a New York case, the promoters of a corporation occupy before its organization a position of trust and confidence towards those whom they seek to induce to invest in the enterprise.'^ ° Same — Confidential Relations in General. All contracts, whatever may be the subject-matter, are uberrimse fidei, where the parties occupy a confidential relation towards each other, as in the case of contracts between an attorney and his client, a prin- cipal and his agent, a trustee and his cestui que trust, a guardian and his ward, a parent and his child, etc. The parties in such a case do not stand on equal ground ; one of them reposes confidence in the other, and the latter, in dealing with the former, is held to the utmost good faith, and can gain no advantage by his dealings. Any misrepresen- 72 Flight V. Booth, 1 Bing. N. C. 370; Jones v. Edney, 3 Camp. 285; In re Fawcett «& Holmes, 42 Ch. Div. 156; Rayner v. Wilson, 43 Md. 440; McKln- non V. Vollmar, 75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178; Munroe v. Pritchett, 16 Ala. 785, 50 Am. Dec. 203; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Tyson v. Passmore, 2 Pa. 122, 44 Am. Dec. 181; Keating V. Price, 58 Md. 532, at page 536; Gunby v. Sluter, 44 Md. 237; Foley v. Crow, 37 Md. 51; Mitchell v. McDoiigall, 62 111. 498; Baughman v. Gould, 45 Mich. 481, 8 N. W. 73; Smith v. Richards, 13 Pet. 26, 10 L. Ed. 42; Mulvey v. King, 39 Ohio St. 491. 7 3 Price V. McCauley, 19 13ng. Law & Eq. 162; O'Rourk v. Percival, 2 Ball & B. 58; Brooks v. Hamilton, 15 Minn. 26 (Gil. 10); Mohler v. Carder, 73 Iowa, .582, 35 N. W. 647; Watson v. Baker, 71 Tex. 739, 9 S. W. 867. 7 4 New Brunswick & C. R. Co. v. Muggeridge, 1 Drew. & S. 381. And see Venezuela R. Co. v. Kisch, L. R. 2 II. L. 113; Peck v. Gurney, L. R. 6 H. L. 403. 7 6 Brewster v. Hatch, 122 N. Y. 349, 25 N. E. 505, 19 Am. St. Rep. 49S. §'i 136-138) MISREPRESENTATION. 217 tation or nondisclosure of material facts will vitiate a contract between them.''® All the exceptions to the rule that innocent misrepresentation does not avoid a contract are based on the fact that a relation of confi- dence exists between the parties.''^ Same — Contracts of Suretyship. The contract of suretyship has sometimes been treated as being within this excepted class of contracts, but as regards the formation of the contract it is not really so. To vitiate such a contract the mis- representation or nondisclosure must amount to fraud ; but we shall see, in treating of fraud, that nondisclosure of facts which there is a duty to disclose is sometimes regarded as fraud, without regard to the question of motive or design. '''^ Where the contract of suretyship has once been formed, the surety is entitled to be informed of any agreement between the creditor and the debtor which alters their relations, or any circumstance which would give him a right to avoid the contract.''^ Failure of the creditor to give such information does not affect the formation of the contract, but merely discharges the surety from any further liability, and therefore the question has nothing to do with our present discussion. Agent's Warranty of Authority. To the rule that an innocent misrepresentation has no effect upon the liabilities of the parties another exception must be noted. A person who contracts as agent in effect represents that he has the authority of his principal, and if the representation is untrue he is liable to the other party for any resulting loss, even if he acted in good faith and in the belief that he had authority. By a fiction, the professed agent is deemed to warrant his authority.^* Effect in Equity. This rule as to the effect of misrepresentations is not adhered to in courts of equity. A false statement made by one of the parties to the 7 6 Brooks V. Martin, 2 Wall. 70, at page 84, 17 L. Ed. 732 ; Baker v. Humph- rey, 101 U. S. 494, at page 502, 25 L. Ed. 1065 ; James v. Steere, 16 R. I. 367, 16 Atl. 143, 2 L. R. A. 164; Smith v. Davis, 49 Md. 470; McConkey v. Cockey, 69 Md. 286, 14 Atl, 465; Reed v. Peterson, 91 111. 288; Ward v. Armstrong, 84 111. 151; Zeigler v. Hughes, 55 111. 288; Norris v. Tayloe, 49 111. 17, 95 Am. Dec. 568; Gasey v. Casey, 14 111. 112; note 227, infra. 7 7 2 Pom. Eq. Jur. § 902. 7 8 North British Ins. Co. v, Lloyd, 10 Exch. 523; Atlas Bank v. Brownell, 9 R. I. 168, 11 Am. Rep. 231; Hamilton v. Watson, 12 Clark & F. 109; Guard- ian Fire & Life Assur. Co. v. Thompson, 68 Cal. 208, 9 Pac. 1; post, p. 221. 79 Phillips V. Foxall, L. R. 7 Q. B. 666; Roberts v. Donovan, 70 Cal. 108, 11 Pac. 599; Evans v. Kneeland, 9 Ala. 42. But see Atlantic & P. Telegraph Co. V. Barnes, 64 N. Y. 385, 21 Am. Rep. 621; Jones v. U. S., 18 Wall. 662, 21 L. Ed. 867. 80 Post, p. 518. 218 REALITY OF CONSENT. (Cll. 7 other has been held sufficient ground for refusing specific perform- ance of the contract, though there was no fraud, and the statement was not a term in the contract; ^^ and a false representation beheved to be true at the time it was made, and which was no part of the con- tract, has been held sufficient ground for setting the contract aside.^^ We have seen that the tendency of the common-law courts is to bring any statement which is material enough to affect consent, if possible, into the terms of the contract. ^^ Where the statement or representa- tion is of this character — that is, where it is a "vital condition" — equity, says Sir William Anson, will give "the same relief, but upon a different and more intelligible principle." In equity an innocent misrepresenta- tion, if it furnishes a material inducement, gives a right to avoid or j]escind_a_contract where capable of rescissions!^'* " " Same — Equitable Estoppel. A representation by a party to a contract, relied upon by the other, may, in equity, create an estoppel against him. This is variously termed an "e stoppel by conduct," or an "estoppel in_j)ais," or an "equitable estoppel." Thus, in a suit based on a promise to make a provision by will in consideration of marriage, the chancellor, while admitting that the transaction amounted to a contract, based his deci- sion on "this larger principle : that where a man makes a representation to another, in consequence of which that other alters his position, or is induced to do any other act which is either permitted or sanctioned by the person making the representation, the latter cannot withdraw from the representation, but is bound by it conclusively." ^^ 81 Lamare v. Dixon, L. R. 6 H. L. 414, at page 428. 82 Traill v. Baring, 4 De Gex, J. & S. 318, 33 L. J. Ch. 521; Redgrave v. Hurd, 20 Cb. Div. 13; Newbigging v. Adam, 34 Cb. Div. 582; Brooks v. Hamil- ton, 15 Minn. 26 (Gil. 10) ; Smitb v. Ricbards, 13 Pet. 26, 36, 10 L. Ed. 42 ; Cow- ley V. Smytb, 46 N. J. Law, 380, 50 Am. Rep. 432; Florida v. Morrison, 44 Mo. App. 529; Alker v. Alker (Sup.) 12 N. Y. Supp. 676; Joice v. Taylor, 6 Gill & J. (:Md.) 54, 25 Am. Dec. 325; Taymon v. Mitcbell, 1 Md. Cb. 497; Kent V. Carcaud, 17 Md. 299; Keating v. Price, 58 Md. 532; Tbompson v. Lee, 31 Ala. 292 ; Converse v. Blumrich, 14 Micb. 109, 90 Am. Dec. 230 ; WILCOX v. UNIVERSITY, 32 Iowa. 367; Allen v. Hart, 72 111. 104; Twitcbell v. Bridge, 42 Vt. 68 ; Frenzel v. Miller, 37 Ind. 1, 10 Am. Rep. 62 ; Bankbead v. Alloway, 6 Cold. (Tenn.) 56; Foard v. McComb, 12 Busb (Ky.) 723. But see Tone v. Wilson, 81 111. 529; Groff v. Robrer, 35 Md. 327. 8 3 Ante, p. 209. R* Anson, Contr. (8tb Ed.) 155, 156, citing Derry v. Peak, 14 App. Cas. 347; Newbigging v. Adam, 34 Cb. Div. 582; Kennedy v. Panama, etc., Co., L. R. 2 Q. B. 580. 85 Coverdale v. Eastwood, L. R. 15 Eq. 121. And see Brown v. Wbeeler, 17 Conn. 345, 44 Am. Dec. 550; Tbrall v. Tlirall, 60 AVis. 503, 19 N. W. 353; Jobn.son v. Hubbell, 10 N. J. Eq. 332, 64 Am. Dec. 773; Com. v. Moltz, 10 Pa. 527, 51 Am. Dec. 499; Cowles v. Bacon. 21 Conn. 451. 56 Am. Dec. 371; Scudder v. Carter, 43 111. App. 252; STEVENS v. LUDLUM, 46 Minn, 160, ;§§ 135-138) MISREPRESENTATION. 219 What Amounts to a Representation. In speaking of representations in entering into contracts of insurance, Mr. Justice Story said : "To constitute a representation, there should be ^an explicit affirmation or denial of a fact, — of such an allegation as would irresistibly lead the mind to the same conclusion. If the ex- pressions are ambiguous, or such as the parties might fairly use without intending to authorize a particular conclusion, the assured ought not to be bound by the conjectures, or calculations of probability, of the under- writer." *« A mere statement or expression of opinion or statement of intention will not amount to a representation, the falsity of which will avoid a contract.^^ Thus, in a contract of marine insurance, the assured com- municated to the insurer a letter from the master of his vessel, stating that, in his opinion, the anchorage of the place to which the vessel was bound was safe. The 'vessel was lost there, but the court held tliat the assured, in reading the master's letter to the insurers, communi- cated to them all that he himself knew of the voyage, and that the expressions contained in the letter were not a representation of fact, but an opinion which the insurers could act upon or not, as tliey pleased.^* Nor are commendatory expressions, such as men habitually use in order to induce others to enter into a bargain, regarded as rep- resentations of fact.^^ The misrepresentation, to be effective at all in avoidance of the contract, must have been relied upon by the other party, and have induced him to enter into the contract, or, rather, it must have been one of the inducements.®" This will be more fully considered in treating of fraud. 'a^ 48 N. W. 771, 13 L. R. A. 270, 24 Am. St. Rep. 210: Dickerson v. Colgrove, 100 U. S. 578, 580, 25 L. Ed. 618; The Ottiimwa Belle (D. C) 78 Fed. 643. 86 Livingston v. Maryland Ins. Co., 7 Ci-anch, 506, 541. 3 L. Ed. 421. 87 Dowdall V. Canndy, 32 111. App. 207; Bryant v. Ocean Ins. Co., 22 Pick. (Mass.) 200 ; Rice v. Insurance Co., 4 Pick. (Mass.) 439 ; Allegre's Adm'rs v. Insurance Co., 2 Gill & J. (Md.) 136, 20 Am. Dec. 424; Fosdick v. Insm-auce Co., 3 Day (Conn.) 108; Dennison v. Insurance Co., 20 Me. 125, 37 Am Dec. 42; Connecticut Mut. Life Ins. Co. v. Luchs, 108 U. S. 498, 2 Sup. Ct, 949, 27 L. Ed. 800. 88 Anderson v. Insurance Co., L. R. 7 C. P. 65. 89 A statement by an auctioneer that land which he offered for sale was "very fertile and improvable," whereas, in fact, it was in part abandoned as useless, was held to be "a mere flourishing description by an auctioneer," and not such a representation as would avoid the sale. Dimmock v. Hallett. L. R. 2 Ch. 21, 27. But on the sale of an hotel it was held that the contract was avoided by a false statement that the present lessee was "a most desirable tenant." Smith v. Property Co., 28 Ch. Div. 7. And see Tuck v. Downing, 76 111. 71. See, also, post, p. 227. »o Tuck v. Downing, 76 111. 71; Fauntleroy v. Wilcox, 80 111. 477; Slaughter V. Gerson, 13 Wall. 379, 20 L. Ed. 627; post, p. 232. V v 220 REALITY OF CONSENT. (GL 7 FRATTD. 139. Frand is a false representation of a material fact, or nondis- closure of a material fact under sucli circumstances tliat it amounts to a false representation, made ipitli kno'wledge of its falsity, or in reckless disregard of -whether it is true or false, or as of personal knoivledge, ivith the intention that it shall be acted upon hy the other party, and ivhich is acted upon by him to his injury. In detail: (a) There must, as a rule, be a false representation, and not a mere nondisclosure; but nondisclosure or concealment is equivalent to a false representation— (1) Where active steps are taken to prevent discovery of the truth. (2) Where, though the representation made is true as far as it goes, the suppression of facts I'enders it in fact untrue. (3) Where, under the circumstances, there is a duty to disclose the facts suppressed, so that failure to disclose them is an implied representation that they do not exist. (b) The repriesentation must be of a past or existing fact; and there- fore fraud cannot result from — (1) Expressions of opinion, belief, or expectation^ Promises or expressions of intention, A representation, how^ever, that a certain intention exists, when it does not exist, is a false representation of an existing fact. (3) Representations as to the law, as a rule. (c) The representation must be of a material fact. (d) The representation must be of such a character, or must be made under such circumstances, that the other party has a right to rely on it. Fraud, therefore, cannot be predicated upon — (1) Commendatory expressions as to value, prospects, and the like. (2) False representations in cases w^here the means of knowledge are at hand, but the other party does not use them (in some jurisdictions). (e) The representation must be made w^ith know^ledge of its falsity. It is regarded as "knowingly" false— (1) If actually know^n to be false. (2) If made in reckless disregard of w^hether it is true or false. (3) If the fact is susceptible of know^ledge, and the representa- tion is made as of the party's personal knowledge (in most jurisdictions). (f) The representation need not be made directly to the other party, but it must be intended to reach him, and to be acted upon by him. (g) The representation must deceive; that is, it must be relied upon by the other party, and must induce him to act. (h) It must result in injury. Fraud is a False Representation. Subject to exceptions to be presently explained, a mere nondisclosure of fact, without more, is not fraud, whatever the intention may be. There must be some active attempt to deceive, either by a statement § 139) FRAUD. 221 which is false, or by a representation, true as far as it goes, but accom- panied with such a suppression of facts as to make it convey a false impression, or else there must be a concealment of facts which the party is under a duty to disclose. Mere silence or nondisclosure of facts may be such a misrepresenta- tion as will avoid a contract uberrimse fidei, but otherwise it generally has no effect, whatever may be the intention in failing to make the dis- closure. Nondis^^losure, even with intent to deceive, does not amount to a fraud which will render a contract voidable, or sustain an action for deceit, unless there is active concealment or a suppression of facts which there is a duty to disclose. °^ For instance, in an English case, where the defendant had let to the plaintiff a house which he knew was required for immediate occupation, without disclosing that it was in a ruinous condition and unfit for habitation, it was held that an action for fraud would not lie. "It is not pretended," it was said, "that there was any warranty, express or implied, that the house was fit for immediate occupation ; but it is said that, because the defendant knew that the plaintiff' wanted it for immediate occupation, and knew that it was in an unfit and dangerous state, and did not disclose that fact to the plaintiff, an action of deceit will lie. The declaration does not allege that the defendant made any misrepresentation, or that he had reason to suppose that the plaintiff v/ould not do what any man in his senses would do, viz. make proper investigation, and satisfy him- self as to the condition of the house before he entered upon the occu- pation of it. There is nothing amounting to deceit." ®^ The fact that the purchaser of goods fails to disclose the fact that he is insolvent does not amount to fraud if he intends to pay for them, and is not asked as to his financial condition.®^ If, however, at the 81 Peek V. Gnrney, L. R. 6 H. L. 403; Dambmann v. Sehulting, 75 N. Y. 55; People's Bank of City of New York v. Bogart, 81 N. Y. 103, 37 Am. Rep. 481; HacUey v. Importing Co., 13 Ohio St. 502, 82 Am. Dec. 454 ; Rison v. Newber- ry, 90 Va. 513, 18 S. E. 916; LAIDLAW v. ORGAN, 2 Wheat 178, 4 L. Ed. 214; Williams v. Spurr, 24 Mich. 335; Crowell v. Jackson, 53 N. J. Law, G56, 23 Atl. 426; Cleaveland v. Richardson, 132 U. S. 318, 10 Sup. Gt. 100, 33 L. Ed. 384; Cochrane v. Halsey, 25 Minn. 52; West v. Anderson, 9 Conn. 107, 21 Am. Dec. 737; Juzan v. Toulmin, 9 Ala. 662, 44 Am. Dec. 448; Coddington v. Goddard, 16 Gray (Mass.) 463. Failure of the purchaser of land to disclose to the vendor the fact that there is mineral under it does not amount to fraud. Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661; Butler's Appeal, 26 Pa. 63; Smith V. Beatty, 37 N. C. 456, 40 Am. Dec. 435. See, also, as to concealment by purchaser, Neill v. Shamburg, 158 Pa. 263, 27 Atl. 992; ante, p. 217, note 78. 9 2 Keates v. Lord Cadogan, 10 C. B. 591. See, also, Fisher v. Lighthall, 4 Mackey (D. C.) 82; Lucas v. Coulter, 104 Ind. 81, 8 N. E. 622; Foster v. Peyser, 9 Gush. CNIass.) 242, 57 Am. Dec. 43. S3 Talcott V. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Powell v. Brad- lee, 9 Gill & J. (Md.) 220; Morrill v, Blackman, 42 Conn. 324; Zucker V. 222 REALITY OF CONSENT. (Ch. 7 time of the purchase, he does not intend to pay, he is guilty of fraud, for he impliedly represents that he does intend to pay; ^* and it has been held by a number of courts that, if he has no reasonable expecta- tion of being able to pay, it is equivalent to an intention not to pay."' Active efforts to conceal a fact — as, for instance, where obstacles are thrown in the way to prevent the other party's inquiries from resulting in its discovery, or his attention is diverted for such a purpose — are equivalent to a false representation.^® So, also, if a person makes a representation as to facts which is true as far as it goes, but intention- ally suppresses other facts so as to make the representation convey a false impression, this is a false representation, and not a mere non- disclosure. The concealment or withholding of that which is not stated makes that which is stated absolutely false. "'^ Karpeles, 88 Mich. 413, 50 N. W. 373; Hotchkin v. Bank, 127 N. Y. 329, 27 N. E. 1050; Le Grand v. Bank, 81 Ala. 123, 1 South. 460, 60 Am. Eep. 140; Eeticker v. Katzenstein, 26 111. App. 33; Bidault v. Wales, 20 Mo. 546, 64 Am. Dec. 205; Wilson v. White, SO N. C. 280. 94Talcott V. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Stewart v. Emerson, 52 N. H. 301; Donaldson v. Farwell, 93 U. S. 633, 23 L. Ed. 993; Ex parte Whittaker, 10 Ch. App. 446 ; Burrill v. Stevens, 73 Me. 395, 40 Am. Rep. 366; Belding Bros. & Co. v. Frankland, 8 Lea (Tenn.) 67, 41 Am. Rep. 630; HaiTis v. Alcock, 10 Gill & J. CVld.) 226, 32 Am. Dec. 158; Wilmot v. Lyon, 49 Ohio St. 296, 34 N. E. 720; Nichols v. McMichael, 23 N. Y. 266; Far- well V. Hanchett, 120 111. 573. 11 N. E. 875; Brower v. Goodyer, 88 Ind. 572; Ross V. Miner, 64 Mich. 204, 31 N. W. 185; Id., 67 Mich. 410, 35 N. W. 60; Ayres v. French, 41 Conn. 142; Jordan v. Osgood, 109 Mass. 457, 12 Am. Rep. 731; Dow V. Sanborn, 3 Allen (Mass.) 181; Yeager Milling Co. v. Lawler, 39 La. Ann. 572, 2 South, 398 ; Allen v. Hartfield, 76 111. 358 ; Devoe v. Brandt, 53 N. Y. 462; Hennequin v. Naylor, 24 N. Y. 139; Carnahan v. Bailey (C. C.) 28 Fed. 519; Fechheimer v. Baum, 37 Fed. 167, 2 L. R. A. 153; Shipman v. Seymour, 40 Mich. 274; Wright v. Brown, 67 N. Y. 1; Bidault v. Wales, 20 Mo. 546, 64 Am. Dec. 205; Des Farges v. Pugh, 93 N. C. 31, 53 Am. Rep. 446. There are a few decisions to the contrary. Smith v. Smith, 21 Fa. 367, 60 Am. Dec. 51; Bughman v. Bank, 159 Pa. 94, 28 Atl. 209; Bell v. Ellis, 33 Cal. 620. »5 Talcott V. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501 ; Jaffrey v. Brown (C. C.) 29 Fed. 476; Elsass v. Harrington, 28 Mo. App. 300; Whittin v. Fitz- water, 129 N. Y. 626, 29 N. E. 298; Dalton v. Thurston, 15 R. I. 418, 7 Atl. 112, 2 Am. St. Rep. 905. But see, contra, Com. v. Eastman, 1 Cush. Olass.) 189, 48 Am. Dec. 596; Biggs v. Barry, 2 Curt. 259, Fed. Cas. No. 1,402; Bur- rill V. Stevens, 73 Me. 395, 40 Am. Rep. 366. It has even been held that the fact of insolvency and concealment is sufficient to take the case to the jm-y on the question of intention not to pay. Edson v. Hudson, 83 Mich. 450, 47 N. W. 347; Slagle & Co. v. Goodnow, 45 Minn. 531. 48 N. W. 402. 8 6 Croyle v. Moses, 90 Pa. 250; Matthews v. Bliss. 22 Pick. (Mass.) 48; Firestone v. Werner, 1 Ind. App. 293, 27 N. E. 623; Kenner v. Harding, 85 111. 265, 28 Am. Rep. 615; Kohl v. Lindley, 39 111. 195, 201, 89 Am. Dec. 294; Cogel v. Kniseley, 89 111. 598, 601; Roseman v. Canovan, 43 Cal. 110. 97 Mallory v. Leach, 35 Vt. 156; Hadley v. Clinton Imp. Co., 13 Ohio St 502; Coles v. Kennedy, 81 Iowa, 360, 46 N. W. 1088, 25 Am. St. Rep. 503; Kidney v. Stoddard, 7 Mete. (Mass.) 252 ; Newell v. Randall, 32 Minn. 171, 19 § 139) FRAUD. 223 Most exceptions to the rule that nondisclosure is not fraud lie in the distinction between mere silence where there is no duty to speak, and concealment of facts which are peculiarly within the knowledge of the party concealing them, and which, under the circumstances, he is bound in good faith to disclose. "In an action of deceit," it has been said by the supreme court of the United States, "it is true that silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation. But mere silence is quite different from con- cealment. 'Aliud est tacere, aliud celare,' — a suppression of the truth may amount to aT suggestion of falsehood. And if, with intent to de- ceive, either party to a contract of sale conceals or suppresses a material fact which he is in good faith bound to disclose, this is evidence of, and equivalent to, a false representation, because the concealment or suppression is, in effect, a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and, if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff." «« In contracts of sale, disclosure is not ordinarily incumbent on the N. W. 972, 50 Am. Rep. 562; Van Houten v. Morse, 162 Mass. 414, 3S N. E. 705, 26 L. R. A. 430, 44 Am. St. Rep. 373. "If the presentation of that which is true creates an impression which is false, it is, as to liim who, seeing the misap- prehension, seeks to profit by it, a case of false representation." Lomerson V. Johnston, 47 N. J. Bq. 312, 20 Atl. 675, 24 Am. St. Rep. 410. And see Busch V. Wilcox, 82 Mich. 315, 46 N. W. 940; Howard v. Gould, 28 Vt 523, 67 Am. Dec. 728; Baker v. Rockabrand, 118 111. 365, 8 N. E. 456. 98 Stewart v. Cattle-Ranch Co., 128 U. S. 383. 9 Sup. Ct. 101, 32 L. Ed. 439; LAIDLAW V. ORGAN, 2 Wheat. 178, 4 L. Ed. 214; Smith v. Countrj-man, 30 N. Y. 655; Griel v. Lomax, 89 Ala. 420, 6 South. 741; Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368; George v. Johnson, 6 Humph. (Tenn.) 36, 44 Am. Dec. 288; Beard v. Campbell, 2 A. K. Marsh. (Ky.) 125, 12 Am. Dec. 362; Pee- bles V. Stephens, 3 Bibb (Ky.) 324, 6 Am. Dec. 660; Waters v. Mattingley, 1 Bibb (Ky.) 244, 4 Am. Dec. 631; FISH v. CLELAXD, 33 111. 237; Mitchell v. McDougall, 62 111. 498; Firestone v. Werner, 1 Ind. App. 293, 27 N. E. 623. A person taking a bond for the future good conduct of an agent already in his employment must communicate to a surety his knowledge of the past criminal conduct of such agent in the course of his past employment. The mere nondisclosure of such knowledge, irrespective of motive or design, is a fraud, which will invalidate the bond. Guardian Fire & Life Assur. Co. v. Thompson, 68 Cal. 208, 9 Pac. 1; State v. Sooy, 39 N. J. Law, 135; Dinsmore V. Tidball, 34 Ohio St. 418; Roberts v. Donovan, 70 Cal. 108, 11 Pac. 599. See ante, p. 217. A man may avoid his promise to marry a woman if she con- cealed from him the fact that she had previously given birth to a bastard child, or was of immoral character. Bell v. Eaton, 28 Ind. 408, 92 Am. Dec. 329; Palmer v. Andrews, 7 Wend. (N. Y.) 143; Berry v. Bakeman, 4A Me. 164; Goodall V. Thurman, 1 Head (Tenn.) 208; Butler v. Eschleman, IS 111. 44; Capehart v. Carradine, 4 Strob. (S. C.) 42; post, p. 232. 224 REALITY OF CONSENT. (Ch. 7 seller. The rule is caveat emptor.®' It has even been held that the seller is not bound to communicate the existence of a latent defect, such as a hidden disease of an animal, unless, by act or implication, he represents that such defects do not exist.^"" But it is generally held in this country that the intentional nondisclosure of such a defect by the seller, when he knows or has reason to know that it is unknown to the buyer, is fraudulent.^"^ So where premises leased are infected with a contagious disease, or otherwise subject to a nuisance which is prejudicial to life or health, it has been held that there is a duty to disclose the fact, and that concealment is a fraud. ^"'^ Character of Representations — Opinion or Expectation. To constitute fraud, the representation must be of a past or existing fact. What has been said in treating of misrepresentation is equally applicable here, A mere expression of opinion, belief, or expectation, however unfounded, will not invalidate a contract, nor give cause for an action for deceit.^" ^ If, for instance, the seller of property says it is worth so much, this is a mere expression of opinion upon which the buyer may or may 09 Smith V. Hughes, L. E. 6 Q. B. 597; LAIDLAW v. ORGAN, 2 Wheat. ITS, 4 L. Ed. 214; People's Bailk of City of New Yorli v. Bogart, 81 N. Y. 101, 37 Am. Rep. 481; Kintzing v. McElrath, 5 Pa. 4G7; Cogel v. Kniseley, 89 III. 598, 100 Ward v. Hobbs, 3 Q. B. Div. 150, 4 App. Cas. 13 ; Beninger v, Corwin, 24 N, J, Law, 257 ; Paul v. Hadley, 23 Barb. (N, Y,) 521 ; Morris v. Thompson, 85 111. 16. 101 Hoe V. Sanborn, 21 N. Y, 552, 78 Am. Dec. 163; French v, Vining, 102 Mass, 132, 3 Am. Rep. 440; Marsh v. Webber, 13 Minn. 109 (Gil. 99); Cecil V. Spurger, 32 Mo. 462, 82 Am. Dec. 140; Patterson v, Kirkland, 34 Miss. 423; Johnson V, Wallower, 18 Minn. 288 (Gil. 262); Cardwell v. McClelland, 3 Sneed (Tenn.) 150; AVaters v. Mattingley, 1 Bibb (Ky.) 244, 4 Am. Dec. 631; Maynard v. Maynard, 49 Vt. 297; Paddock v, Strobridge, 29 Vt, 470; Graham v. Stiles, 38 Vt. 578; Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552. Sale of cattle known to be infected with contagious disease: Jeffrey v. Bige- low, 13 Wend. (N. Y.) 318, 28 Am. Dec. 476; GRIGSBY v. STAPLETON, 94 Mo. 423, 7 S. W, 421. The rule does not apply if the sale is "with all faults." West V. Anderson, 9 Conn, 107, 21 Am. Dec. 737; Whitney v, Boardman, 118 Mass. 242. Otherwise if seller makes efforts to prevent buyer from discover- ing defects. West v. Anderson, supra. Note 96, supra, 102 Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; Cesar v. Karutz, 60 N, Y, 229 ; Cutler v, Hamlen (Mass.) 18 N, E. 397. 103 Gordon v. Parmelee, 2 Allen (Mass.) 212; Gordon v. Butler, 105 U. S. 553, 26 L. Ed, 1166 ; Mooney v. Miller, 102 Mass. 217 ; Sawyer v, Prickett, 19 Wall. 146, 22 L. Ed. 105; Allen v. Hart, 72 111. 104; Buschman v, Codd, 52 Md, 207 ; Ellis v. Andrews, 50 N. Y. 83, 15 Am. Rep. 379 ; Chrysler v. Canaday, 90 N, Y. 272, 43 Am. Rep. 166; Beard v, Bliley, 3 Colo. App. 479, 34 Pac. 271; Montreal Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507; Southern Develop- ment Co. V. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678 ; SHELDON v. DAVIDSON, 85 Wis, 138, 55 N, W, 161 ; Nash v. Trust Co., 159 Mass. 437, 34 N. E, 625; Reeves v. Corning (C. C) 51 Fed, 774. § 139) FRAUD. 225 not act, just as he chooses.*'** So, also, where a person makes a false representation as to the harvest which land sown in certain crops will produce,^"^ or as to the cubic contents of a piece of grading which he employs another to do,^°° or as to what it will cost to build a house, ^°^ these are all mere expressions of opinion, and, as a rule, do not amount tofraud.^o* Same — Statement of Intention, Expectation, or Promises. A representation of fact is a statement that a thing was or is, and does not, therefore, include expressions of intention or expectation, or promises, or other representations that a thing shall be.^"^ Notwith- standing this, a representation of intention may amount to a fraudulent representation. The law makes a distinction between a promise which the promisor, when he makes it, intends to perform, and one which he intends to break. In the first case he represents truly enough his intention that something shall take place in the future, while in the second case he misrepresents his existing intention. He not merely makes a promise which is ultimately broken, but when he makes it he represents his state of mind to be other than it really is.^^° It is there- fore, as we have already seen, very generally held tliat if a man buys 104 Lindsay Pet. Co. v. Hurd, L, R. 5 P. C. 243; Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523; Shanks v. Whitney, 66 Vt. 405, 29 Atl. 367; Johnson v. Seymour, 79 Mich. 156, 44 N. W. 344; Geddes' Appeal, 80 Pa. 442; Doran v. Eaton, 40 Minn. 35, 41 N. W. 244; Belz v. Keller (Ky.) 1 S. W. 420; Noetling V. Wright, 72 111. 390; Lockwood v. B^tts, 90 Ala. 150, 7 South. 467; Gordon V. Butler, 105 U. S. 553, 26 L. Ed. 1166; Cagney v. Cuson, 77 Ind, 494; Lynch V. Murphy, 171 Mass. 307, 50 N. E. 623. 10 5 Holton V. Noble, 83 Cal. 7, 23 Pac. 58. 106 East V. Worthington, 88 Ala. 537, 7 South. 189. 107 Sweney v. Davidson, 68 Iowa, 386, 27 N. W. 278. 108 Representations as to the speed of a horse not made as of personal knowledge. State v. Cass, 52 N. J, Law, 77, 18 Atl. 972. Representation that a stallion will not produce sorrel colts. Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437. Representations as to solvency and credit. See Homer v. Perkins, 124 Mass. 431, 27 Am. Rep. 677; Yeager Milling Co. v. Lawler, 39 La. Ann. 572, 2 South. 398; Childs v. Men-ill, 63 Vt. 463, 22 Atl. 626, 14 L. R. A. 264. And see post, p. 226. 109 DA WE V. MORRIS, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158. 14 Am. St. Rep. 404 ; Burrell's Case, 1 Ch. Div. 552 ; Knowlton v. Keenan, 146 Mass. 86, 15 N. E. 127, 4 Am. St. Rep. 282; Saunders v. McClintock, 46 Mo. App. 2ie'; SHELDON v. DAVIDSON. 85 Wis. 138, 55 N. W. 161; Lawrence v. Gayetty, 78 Cal. 126, 20 Pac. 382, 12 Am. St. Rep. 29 ; Haenni v. Bleisch, 146 111. 262, 34 N. E. 153; Balue v. Taylor, 136 Ind. 368, 36 N. E. 269; Birmingham Warehouse & Elevator Co. v. Land Co., 93 Ala. 549, 9 South. 235; Huber v. Guggenheim (C. C.) 89 Fed. 598. But see Williams v. Kerr, 152 Pa. 560, 25 Atl. 618; Moore v. Cross (Tex. Civ. App.) 26 S. W. 122. Representation that stock sold will pay a certain dividend. Robertson v. Parks, 76 Md. 118, 24 Atl. 411. 110 Old Colony Trust Co. v. Traction Co. (C. C.) 89 Fed. 794; Russ Lumber & Mill Co. V. Water Co., 120 Cal. 521, 52 Pac. 995, 65 Am. St Rep. 186. Claek Cont. (2d Ed.) — 15 226 REALITY OF CONSENT. (Cll 1 goods, not intending at the time to pay for them, he makes a fraudulent representation.^*^ Same — Misrepresentation of Law. As a rule, misrepresentation of law does not amount to a fraudulent representation for which an action of deceit will lie, nor make a con- tract voidable. A contract, therefore, cannot, unless there are peculiar circumstances of fraud, or a relation of trust and confidence between the parties,^ ^^ be rescinded by one party on the ground that the other falsely represented the legal effect of the contract, or otherwise misrep- resented the law.**' As already stated, private right of ownership, although it be the result also of a matter of law, is regarded as matter of fact, and ignorance of foreign laws, which include the laws of a sister state, is regarded as ignorance of fact, and misrepresentation in regard to either is misrepresentation of fact.*** Same — Materiality. Not only must the representation be of a fact, but it must be of a material fact. A false representation of an immaterial fact, whatever may have been the intention, has no effect.**" It may often be difficult to say when a representation is material, but it is probably safe to say that it is always material if, had it been known to be false, the contract would not have been entered into.*** Right to Rely on Statements. In order that a person may be entitled to rescind or maintain an action for deceit, the representations must have been of such a character, and 111 Ante, p. 221. 112 Berry v. Whitney, 40 Mich. 71; Haviland v. Willets, 141 N. Y, 35, 35 N. E. 958; Motherway v. Wall, 1G8 Mass. 333, 47 N. E. 135. lis Upton V. Tribilcock, 91 U. S. 45, 23 L. Ed. 203; FISH v. OLELAND, 33 111. 238; Wheaton v. Wheaton, 9 Conn. 96; Grant v. Grant, 56 Me. 573; Bank of United States v. Daniel, 12 Pet. 32, 9 L. Ed. 989 ; Pinkham v. Gear, 3 N. H. 163; Clem v. Railroad Co., 9 Ind. 488, 68 Am. Dec. 653; ^tna Ins. Co. v. Reed, 33 Ohio St. 203; Townseud v. Cowles, 31 Ala. 428; Sims v. Ferrill, 45 Ga. 585 ; Starr v. Bennett, 5 Hill (N. Y.) 303 ; Moreland v. Atchison, 19 Tex. 303 ; People v. Supervisors, 27 Cal. 655 ; Dillman v. Nadlehoffer, 119 111. 567, 7 N. E. 88. But see Underwood v. Brockman, 4 Dana (Ky.) 309, 29 Am. Dec. 407 ; Fitzgerald v. Peck, 4 Litt. (Ky.) 125 ; Lowndes v. Chisolm, 2 McCord, Eq. (S. C.) 455, 16 Am. Dec. 667. False representation by the lessor of property that the lessee will have the right to sell intoxicating liquors therein. Gor- mely v. Association, 55 Wis. 350, 13 N. W. 242. 114 Ante, p. 206. 115 Young V. Young, 113 111. 430; DAWE v. MORRIS, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404; Geddes v. Pennington, 5 Dow, 159; Davis v. Davis, 97 Mich. 419, 50 N. W. 774; Nounnan v. Land Co., 81 Cal. 1, 22 Pac. 515, 6 L. R. A. 219; Winston v. Young, 52 Minn. 1, 53 N. W. 1015; Palmer v. Bell, 85 Me. 352, 27 Atl. 250; Cmiiss v. Howoll, 39 N. Y. 211. 118 McAlcer T. Horsey, 35 Md. 439; Powers v. Fowler, 157 Mass. 318, 32 N. § 139) TRAUD. 227 must have been made under such circumstances, that he had a right to rely on them. Representations, for instance, amounting merely to commendatory expreseions, or exaggerated statements as to value, or prospects, or the like, as where a seller puffs up the value and quality of his goods, or a man, to induce another to contract with him, holds out flattering prospects of gain, are not regarded as fraudulent.^^^ Simplex commendatio non obligat. As we have seen, the buyer of property is not justified in relying on the seller's representation as to its value."* Some of the courts hold, however, that a statement by the seller of property that he gave so much for it is a representation of fact upon which the buyer may rely, and that, if it is knowingly false, it amounts to fraud.^^* Other courts hold that such a statement is merely a commendatory expression, on which the buyer must not rely.^^° But, even where the statement would ordinarily be regarded as a mere commendatory expression ^^^ or expression of opinion,^^^ the circumstances may be such as to justify the other party in relying on it, as, for instance, where the parties do not meet on equal terms by reason of the possession of special knowledge by the party making the statement, or there is a relation of confidence between them. In such a case the statement may be fraudulent. • B. 166; Hoist v. Stewart, 161 Mass. 516, 37 N. E. 755, 42 Am. St. Rep. 442. Post, p. 232. 117 Demlng v. Darling, 148 Mass. 504, 20 N. E. 107, 2 L. R. A. 743; Hughes V. Manufacturing Co., 34 Md. 318; Kimball v. Bangs, 144 Mass. 321, 11 N. E. 113; Lockwood v. Fitts, 90 Ala. 150, 7 South. 467; Southern Development Co. V. Silva, 125 U. S. 247, ^ Sup. Ct. 881, 31 L. Ed. 678; Dillman v. Nadlehoffer, 119 111. 567, 7 N. E. 88; Jackson v. Collins, 39 Mich. 557; Burns v. Mahannah, 39 Kan. 87, 17 Pac. 319; Patten v. Glatz (C. C.) 87 Fed. 283; Macklem v. Fales, 130 Mich. 66, 89 N. Vv'^. 581 (representations as to future possibilities). See the cases cited in notes 89, 103, supra. 118 Ante, p. 224. 119 Sandford v. Handy, 23 Wend. (N. Y.) 260; Pendergast v. Reed, 29 Md. 398, 96 Am. Dec. 539; Salm v. Israel. 74 Iowa, 314, 37 N. W. 387; Weidner v. Phillips, 39 Hun (N. Y.) 1; Ives v. Carter, 24 Conn. 392; Strickland v. Gray- bill, 97 Va. 602, 34 S. E. 475. 120 Tuck V. Downing, 76 111. 71; Medbury v. Watson, 6 Mete. (Mass.) 246, 39 Am. Dec. 726; Cooper v. Lovering, 106 Mass. 77; Hemmer v. Cooper, 8 Allen (Mass.) 334; Bishop v. Small, 63 Me. 12; Holbrook v. Connor, 60 Me. 578, 11 Am. Rep. 212; Sowers v. Parker, 59 Kan. 12, 51 Pac. 888. See, also. Cole V. Smith, 26 Colo. 506, 58 Pac. 1086. 121 Teachout v. Van Hoesen, 76 Iowa, 113, 40 N. W. 96, 1 L. R. A. 664, 14 Am. St. Rep. 206; Hauk v. Brownell, 120 111. 161, 11 N. E. 416; .Jackson v. Col- lins, 39 Mich. 557; Paetz v. Stoppleman, 75 Wis. 510, 44 N. W. 834; Chrysler V. Canaday, 90 N. Y. 272, 43 Am. Rep. 166; Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321, 69 N. W. 722 ; Horton v. Lee, 106 Wis. 439, 82 N. W. 360. 122 Hedin v. Institute, 62 Minn. 146, 64 N. W. 158, 35 L. R. A. 417, 54 Am. St Rep. 628 ; Hicks v. Stevens, 121 111. 186, 11 N. E. 241 ; Robbins v. Barton, 50 Kan. 320, 31 Pac. C86; Vilett v. Moler, 82 Minn. 12, 84 N. W. 452. 228 REALITY OF CONSENT. (Ch. 7 Same — CreduUiy and Negligence.of Party Defrauded. It would seem upon principle that a person cannot avoid the effect of his fraudulent misrepresentation on the ground of the credulity of the injured party or of his negligence in failing to ascertain the facts, and many cases so hold.^'^ Thus it is very generally held that a man may act upon a representation of fact, although means of obtaining knowledge are at hand and open to him.^" "Every contracting par- ty has an absolute right to rely on the express statement of an exist- ing fact, the truth of which is known to the opposite party and unknown to him, as the basis of a mutual engagement, and he is under no obli- gation to investigate and verify statements, to the truth of which the other party to the contract has deliberately pledged his faith." ^-^ On the other hand, by many courts it is laid down in broad terms that if the means of knowledge are at hand and equally available to both parties, and the subject of the contract is open to the inspection of both, the party to whom the representation is made will not be heard to say that he has been deceived thereby, if he has not availed himself of such means of knowledge.^^® This conflict of authority is illus- 123 Redgrave v. Hurd, 20 Ch. Div. 1; Jackson v. Collins, 39 Mich. 557; Ken- dall V. Wilson, 41 Vt. 567 ; Chamberlin v. Fuller, 59 Vt. 247, 9 Atl. 832 ; Lining- ton V. Sti-ong, 107 111. 295; Cottrill v. Knim, 100 Mo. 397, 13 S. W. 753, 18 Am. St. Rep. 549 ; Warder, Bushnell & Glessner Co. v. Whitish, 77 Wis. 430, 46 N. W. 540; Sutton v. Morgan, 158 Pa. 204, 27 Atl. 894, 38 Am. St. Rep. 841; Mc- Gibbons v. Wilder, 78 Iowa, 531, 43 N. W. 520; Erickson v. Fisher, 51 Minn. 300, 53 N. W. 638; Blacknall v. Rowland, 108 N. C. 554, 13 S. E. 191; Fargo Gas & Coke Co. v. Electi-ic Co., 4 N. D. 219, 59 N. W. 10G6, 37 L. R. A. 593; Speed V. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Wilson v. Carpenter's Adm'r, 91 Va. 183, 21 S. E. 243, 50 Am. St. Rep. 824; Sti-and v. Griffith, 97 Fed. 854, 38 0. C. A. 444. 124 Gammill v. Johnson, 47 Ark. 335, 1 S. W. 610; Redding v. Wright, 49 Minn. 322, 51 N. W. 1056; Hanscom v. Drullard, 79 Cal. 234, 21 Pac. 736; Clark V. Ralls (Iowa) 24 N. W. 567; Ledbetter v. Davis, 121 Ind. 119, 22 N. E. 744; Rohrof v. Schulte, 154 Ind. 183, 55 N. E. 427; Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798 ; Wheeler v. Baars, 33 Fla. 696, 15 South. 584 ; Love.ioy V. Isbell, 73 Coim. 368, 47 Atl. 682. Negligence is, of course, no defense, in the case of negotiable paper, against innocent purchasers. Ante, p. 198. i2BMead v. Bunn, 32 N. Y. 275. But see Long v. Warren, 68 N. Y. 426; Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 755, 757. 126 Slaughter's Adm'r v. Gerson, 18 Wall. 379. 20 L. Ed. 627; Salem India- Rubber Co. v. Adams, 23 Pick. (Mass.) 256. 265; Poland v. Brownell. 131 Mass. 138, 41 Am. Rep. 215; Brady v. Finn, 162 Mass. 2G0, 38 N. E. 506; Palmer v. Bell, 85 Me. 352, 27 Atl. 250, 251; Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 755, 757; Washington Cent. Imp. Co. v. Xewlands, 11 Wash. 212, 39 Pac. 360; South Milwaukee Boulevard Heights Co. v. Harte, 95 Wis. 592, 70 N. W. 21. See, also, Kingston v. L. P. & J. A. Smith Co., 114 Fed. 294, 52 C. C. A. 206. "The requirement, as it has been worked out, does not call for more tlian reasonable diligence (Hoist v. Stewart, 161 Mass. 516, 522, 37 N. E. 755, 42 Am. St. Rep. 442; Brown v. Leach, 107 Mass. 364, 368; Nowlan v. Cain, 3 § 139) FRAUD. 229 trated by the opposite decisions which have been reached in cases involving the liability of a person who has been fraudulently induced to execute an instrument upon misrepresentation of the other party as to its character or terms. Doubtless a person who fails to read an instru- ment before signing it is wanting in ordinary prudence, but it has been held by many courts that he is not precluded thereby from asserting the invalidity of the contract as against the party who has thus pro- cured the execution by fraud.^^^ By other courts it has been held that the party so signing is precluded by his negligence from asserting the invalidity of the contract^** Knowledge of Falsity — Recklessness. A representation is fraudulent if it is made with knowledge of its falsity or without belief in its truth. The mere absence of belief is enough, and hence, if a man makes a misrepresentation in reckless dis- regard whether it is true or not, the representation is fraudulent, for he can have no belief in the truth of what he asserts.^*' And if a man Allen [Mass.] 261, 264); and distance or other slight circumstances have been held sufficient to warrant leaving the question to the jury (Hoist v. Stewart, 161 Mass. 516, 522, 523, 37 N. E. 755, 42 Am. St. Rep. 442). See Burns v. Lane, 138 Mass. 350, 355, 356 ; Whiteside v. Brawley, 152 Mass. 133, 24 N. E. 1088. The matter may have been confused a little by not distinguishing between sellers' talk as to the value and the like, where the rule is absolute in or- dinary cases that the buyer must look out for himself, and representation of facts concerning which even sellers may be held liable for fraud, and as to which the buyers may be warranted in relying wholly on the seller's word. The notion that the buyer must look out for himself sometimes has been pressed a little too strongly into the latter class of cases." Per Holmes, J., in Whiting v. Price, 172 Mass. 240, 51 N. E. 1084, 70 Am. St. Rep. 262. 127 Alfred Shrimpton & Sons v. Philbrick, 53 Minn. 366, 55 N. W. 551; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848 ; Burroughs V. Guano Co., 81 Ala. 255, 1 South. 212; Smith v. Smith, 134 N. Y. 62, 31 N. E. 258, 30 Am. St. Rep. 617; Kingman v. Reinemer, 166 111. 208, 46 N. E. 786; ALEXANDER v. BROGLEY, 63 N. .T. Law, 307, 43 Atl. 888; Woodbridge v. De Witt, 51 Neb. 98, 70 N. W. 506; McBride v. Publishing Co., 102 Ga. 422, 30 S. E. 999. See, also, Louisville & N. R. Co, v. Cooper (Ky.) 56 S. W. 144; Story V. Gammell (Neb.) 94 N. W. 982. 128 Taylor v. Fleckenstein (C. C.) 30 Fed. 99; Keller v. Orr, 106 Ind. 406, 7 N. E. 195; Wallace v. Railway Co., 67 Iowa, 547, 25 N. W. 772; Dowagiac Mfg. Co. V. Schroeder, 108 Wis. 109, 84 N. W. 14; Kimmell v. Skelly, 130 Cal. 55, 62 Pac. 1067; Binford v. Bruso, 22 Ind. App. 512, 54 N. E. 146. 129 Per Lord Cairns, in Reese River Min. Co. v. Smith, L. R. 4 H. L. 79; Fisher v. Mellen, 103 Mass. 50.*?; Cole v. Cassidy, 138 Mass. 437, 52 Am. Rep. 284 ; Stone v. Denny, 4 Mete. (Mass.) 151 ; Humphrey v. Merriam, 32 Minn. 197, 20 N. W. 138 ; Bennett v. Judson, 21 N. Y. 238 ; Marsh v. Falker, 40 N. Y. 562; Allen v. Hart, 72 111. 104; Case v. Ayers, 05 111. 142; Stone v. Covell, 29 Mich. 359 ; Bristol v, Braidwood, 28 Mich. 191 ; Walsh v. Morse, 80 Mo. 568; Cotzhausen v. Simon, 47 Wis. 103, 1 N. W. 473; Indianapolis, P. & C. R. Co. V. Tyng. 63 N. Y. 653; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313; Ruff V. Jarrett, 94 111. 475; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 230 REALITY OF CONSENT. (Ch. 7 falsely asserts a fact as true of his own knowledge when he has no knowledge, it is none the less fraudulent because he believes it to be true. Probably it is the prevailing rule in this country that an unqual- ified statement of a material fact susceptible of actual knowledge is to be taken as a representation as of one's own knowledge, and that such a representation if false is fraudulent, notwithstanding belief in its truth.^^" In England, on the other hand, and in some states it is held that a statement made in the honest belief that it is true is not fraudu- lent, notwithstanding absence of reasonable grounds for believing it to be true.^^^ The absence of such grounds can only go to show that the belief was not entertained.^'^ The fact that the party making the representation professed to rely on the representations of others, and gave the source of his informa- tion, is immaterial, if he knew, or had reason to believe, that they were untrue.^" Intention. The representation must have been made with the intention that it should be acted upon by the injured party.^** Another statement of 360, 28 L. Ed. 382; Bower r. Fenn, 90 Pa. 359, 35 Am. Rep. 662; Leavitt v. Sizer, 35 Neb. 80, 52 N. W. 832; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406. 130 Litchfield v. Hutchinson, 117 Mass. 197; CHATHAM FURNACE CO. V. MOFFATT, 147 Mass. 403, 18 N. E. 168, 9 Am. St. Rep. 727 (Cf. Goodwin V. Trust Co., 152 Mass. 189, 25 N, E. 100); Kirkpati-ick v. Reeves, 121 Ind. 280, 22 N. E. 139; Bullitt v. Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A. 149, 18 Am. St. Rep. 485; Montreal Lumber Co. v. Mihills, 80 Wis. ■'540, 50 N. W. 507; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533; State v. Cass, 52 N. J. Law, 77, 18 Atl. 972; Hamlin v. Abell, 120 Mo. 188, 25 S. W. 516; Rothschild v. Mack, 115 N. Y. 1, 21 N. E. 726; Hadcock v. Osmer, 153 N. Y. 604, 47 N. B. 923; Braley v. Powers, 92 Me. 203, 42 Atl. 362; Walters v. Eaves, 105 Ga. 584, 32 S. E. 609; Simon v. Rubber Shoe Co., 105 Fed. 573, 44 C. C. A. 612, 52 L. R. A. 745. The fraud in such a case "consists in stating that the party knows the thing to exist when he does not know it to exist; and, if he does not know it to exist, he must ordinarily be deemed to know that he does not. Forgetfulness of its existence after a former knowledge, or a m.ere belief of its existence, will not warrant or excuse a statement of actual knowledge." CHATHAM FURNACE CO. v. MOFFATT, supra. And see Alvarez v. Brannan, 7 Cal. 503, 68 Am. Dec. 274. 131 Derry v. Peek, 14 App. Cas. 337; Merwin v. Arbuckle, 81 111. 501; Cox v. Highley, 100 Pa. 249; Lamberton v. Dunham, 165 Pa. 129, 30 Atl. 716; WIL- COX v. UNIVERSITY, 32 Iowa, 367; Lord v. Goddard, 13 How. 198, 14 L. Ed. Ill; Pettigrew v. Chellis, 41 N. H. 95; Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437; Sylvester v. Henrich, 93 Iowa, 489, 61 N. W. 942; Morton v. Scull, 23 Ark. 289; Farmers' Stock Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac. 978. 132 Anson, Cont. (8th Ed.) 172. 18 8 Hanscom v. DruUard, 79 Cal. 234, 21 Pac. 736, 18* Buschman v. Codd, 52 Md. 202; Humphrey v. Merriam, 32 Minn. 197, § 139) FRAUD. 231 this rule is that the representation must be made as part of the same transaction.^^'* The representation need not, indeed, have been made to the injured party himself. If a person, desiring to enter into a contract with an- other, should make a representation to a third person with the inten- tion that it should reach the ears of such other person, and be acted upon by him, in entering into the contract, this would constitute a fraudulent misrepresentation equally as if it had been made to the other party.^^° Where a gun was sold to a man for the use of himself and sons, the seller falsely representing that it had been made by a certain maker, and was a good, safe, and secure gun, it was held that a son of the buyer who was injured by the gun's exploding could sue the seller for deceit. In that case it was argued that the defendant could not be held liable to the plaintiff for a representation not made to him ; but the court held that inasmuch as the gun was sold to the father to be used by the plaintiff, and there was a false representation to effect the sale, and "as there was fraud, and damage the result of that fraud, not from an act remote and consequential, but one con- templated by the defendant at the time as one of its results," the de- fendant was liable.^^^ So, also, where a merchant makes a false state- ment as to his financial responsibility to a mercantile agency for the purpose of procuring credit, and customers of the agency, in reliance thereon, give him- credit, and are defrauded, they may maintain an ac- tion of deceit against him, or avoid their contract with him on the ground of fraud. ^^^ The representation, however, must have been made with the inten- tion that it slipuld be acted upon by the injured party in the manner that occasions the injury. ^^® Thus, where the directors of a company made false statements in the prospectus of the company, which would have made them liable to the original allotters of shares, they were 20 N. W. 138; Bach v. Tuck, 57 Hun. 588, 10 N. Y. Supp. 884; Carter v. Har- den, 78 Me. 528, 7 Atl. 392 ; Thorp v. Smith, 18 Wash. 277, 51 Pac. 381. 135 Pollock, Cont. (3d Ed.) 545 ; Barnett v. Baruett, 83 Va. 504, 2 S. E. 733. 138 Langridge v. I^vy, 2 Mees. & W. 519; Snow v. Judson, 38 Barb. (N. Y.) 210; Benton v. Pratt, 2 Wend. (N. Y.) 385, 20 Am. Dec. 623; Chubbuck v. Cleveland, 37 Minn. 4G6, 35 N. W. 3G2, 5 Am. St Rep. 864 ; Waterbury v. An- drews, 67 Mich. 281, 34 N. W. 575 ; Hubbard v. Weare, 79 Iowa, 678, 44 N. W. 915. 18T Langridge t. Levy, 2 Mees. & W. 519. 13 8 Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389; Moouey v. Davis, 75 Mich. 188, 42 N, W. 802, 13 Am. St. Rep. 425; Furry v. O'Connor, 1 Ind. App. 573, 28 N. E. 103; Hinchman v. Weeks, 85 Mich. 535, 48 N. W. 790; Gainesville Nat. Bank v. Bramberger, 77 Tex. 48, 13 S. W. 959, 19 Am. St. Rep. 738; P. Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316. See, also, STEVENS v. LUDLUM, 46 Minn. 160, 48 N. W. 771, 13 L. R. A. 270, 24 Am. St Rep. 210. 139 Barry v. Crosky, 2 Johns. & H. 1. 232 REALITY OF CONSENT. (Ch. 7 held not to be liable to persons who subsequently purchased shares which came into the market, on the ground that their intention to de- ceive could not be supposed to extend beyond the original applicants for shares.^*** The directors in such a case would be Uable to the orig- inal applicants for shares, relying on the prospectus/*^ Same — Dishonesty of Motive. If a person makes a representation which was fraudulent as has been above explained, it is immaterial that he may not have been actuated by any dishonest motive. If a man chooses to make such assertions, hoping or even believing that all will turn out well, he cannot escape the results of his fraud by showing the excellence of his motives.^*^ Thus, where a person accepted a bill of exchange drawn on another person, and falsely represented that he had authority from that other to do so, he was held liable in an action of deceit brought against him by an indorsee, the acceptance having been repudiated by the drawee and the bill dishonored; and the fact that the defendant honestly be- lieved that the acceptance would be sanctioned by the drawee, and the bill paid, was held immaterial.^*' Representation must Deceive. A false representation, to constitute fraud, must actually deceive; that is, it must be reUed on by the other party, and must induce him to act to his prejudice. If it is not believed, or the party disregards it, and makes inquiries for himself, there is no fraud.^** In a leading 140 Peek V. Gurney, L. R. 6 H. L. 377, 410. And see Nash v. Trust Co., 159 Mass. 437, 34 N. E. 625; Davidson v. Nichols, 11 Allen (Mass.) 514. It has been held that it could not be said, as a matter of law, that false representa- tions concerning the value of certain stock, by which a person was induced to buy, may not have continued in his mind, and induced him to buy more of the stock a year later. Reeve v. Dennett, 145 Mass. 23, 11 N. E. 938. 141 Reese River Min. Co. v. Smith, 4 H. L. Cas. 64; Vreeland v. Stone Co., 29 N. J. Eq. 188. 142 Polhill V. Walter, 3 Barn. & Adol. 114. A buyer of goods cannot avoid the effect of knowingly false statements as to his financial condition by show- ing that he intended and expected to pay for them. Judd v. Weber, 55 Conn. 267, 11 Atl. 40. See, also, ante, p. 221. Although the maker of the representa- tion believes it to be true, if he discovers that it is false before it is acted on, and does not disclose the fact, he is guilty of fraud. Loewer v. Harris, 57 Fed. 368, 6 C. C. A. 394; Guilfcri-d School Tp. v. Roberts, 28 Ind. App. 355, 62 N. E. 711. 143 Polhill V. Walter, 3 Barn. & Adol. 114. i44Arkwright v. Newbold, 17 Ch. Div. 324; Ming v. Woolfolk, 116 U. S. 599, 6 Sup. Ct. 489, 29 L. Ed. 740; Humphrey v. Merriam, 32 Minn. 197, 20 N. W. 138 ; Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98 ; Runge v. Brown, 23 Neb. 817, 37 N. W^ 660; Brackett v. Griswold, 112 N. Y. 454, 20 N. E. 376; Craig V. Hamilton, 118 Ind. 505, 21 N. E. 315 ; Priest v. White, 89 Mo. 609, 1 S. W. 361; Buscliman v. Codd, 52 Md. 202; Farrar v. Churchill, 135 U. S. 616, 10 Sup. Ct. 771, 34 L. Ed. 246; Hubbard v. Weare, 79 Iowa, 678, 44 N. W. § 139) FRAUD. 233 case on this subject it appeared that the defendant had bought a cannon from the plaintiff, having a defect in it which rendered it worthless, and the plaintiff had endeavored to conceal the defect by inserting a metal plug in the weak spot. The defendant never inspected the cannon. He accepted it, and, in using it, it burst. It was held that the attempted fraud, having had no operation upon the mind of the defendant, did not exonerate him from paying for the gun. "If," said the court, "the plug which it was said was put in to conceal the defect had never been there, his position would have been the same ; for, as he did not examine the gun, or form any opinion as to whether it was sound, its condition did not affect him." ^*'^ If the representation was one calculated to induce the other party to make the contract, the pre- sumption is that he was influenced by it ; and, in order to take away his right to relief on the ground of fraud, it must be shown that he did not rely on it.^** The representation need not have been the sole inducement to enter into the contract. If it was a material' inducement, — that is, if it so contributed as an inducement that without it the contract would not have been made, — it is sufficient.^*'' Injury must Result. It is essential, in order to sustain an action of deceit, or to give a party the right to avoid a contract on the ground of fraud, that he shall have been prejudiced or injured by the fraud. ^*® Where, for instance, a person was induced to exchange his property for shares of stock by false representations of the other party, but the stock was worth what he gave for it, so that he suffered no injury, it was held that he could not maintain an action for deceit.^*® And, in a case in 915; Cobb v. Wright, 43 Minn. 83, 44 N. W. 6G2; Wimer v. Smith, 22 Or. 469, 30 Pac. 416; Pennybacker v. Laidley, 33 W. Va. 624. 11 S. E. 39; Darby v. Kroell, 92 Ala. 607, 8 South. 384 ; Pratt v. Burhans, 84 Mich. 487, 47 N. W. 1064, 22 Am. St. Rep. 703; Fowler v. McCann, 86 Wis. 427, 56 N. W. 1085; Black V. Black, 110 N. C. 398, 14 S. E. 971; Dady v. Condit, 163 111. 511, 45 N. E. 224; Brady v. Evans, 78 Fed. 558, 24 C. C. A. 236; Wagner v. Insurance Co., 90 Fed. 395, 33 C. C. A. 121. i4BHorsfall v. Thomas, 1 Hurl. & C. 90, 99. 1*8 Redgrave v. Hurd, 20 Ch. Div. App. 21 ; Hicks v. Stevens. 121 111. 186, 11 N. E. 241; Gan-ison v. Electrical Works, 59 N. J. Eq. 440, 45 Atl. 612; Dashiel v. Harshman, 113 Iowa, 283, 85 N. W. 88. 14T Peek V. Derry, 37 Ch. Dlv. 541, L. R. 14 App. Cas. 337; SaCford v. Grout, 120 Mass. 20; Burr v. Willson, 22 Minn. 206; Lebby v. Ahrens. 26 S. C. 275, 2 S. E. 387; Saunders v. McClintock, 46 Mo. App. 216; Strong v. Strong. 102 N. Y. 69, 5 N. E. 799; Ruff v. Jarrett, 94 111. 475; Moline-Milburn Co. v. Frank- lin, 37 Minn. 137, 33 N. W. 323. 148 Schubart v. Coke Co., 41 111. App. 181; Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386; Lorenzen v. Investment Co., 44 Neb. 99. 62 N. W. 231; Bomar V. Rosser, 131 Ala. 215, 31 South. 430. But see Northrop v. Hill, 57 N. Y. 351, 15 Am. Rep. 501 . 149 Alden v. Wright, 47 Minn. 225, 49 N. W. 767, and cases there cited. 234 REALITY OP CONSENT. (Ch. 7 which the seller of property had falsely represented that there was no mortgage thereon, it was held that the purchaser could not avoid the sale, where the seller had the mortgage released as soon as his at- tention was called to it.^'*" SAME— EFFECT— REMEDIES. 140. Frand renders a contract, not void, but merely voidable at tbe op- tion of the party injured. Tberefore, (a) He may affirm the contract, and sue for damages for the deceit, or, if sued on the contract, set up tbe fraud in reduction of tlie demand. (b) He may rescind tbe contract, and (1) Sue for damages for tbe deceit; (2) Sue to recover ivbat be bas parted ivitb; (3) Resist an action at lavr on tbe contract; (4) Resist a suit in equity for specific performance, or (5) Sue in equity to bave tbe contract avoided judicially. 141. Tbere are tbe following limitations to a party's rigbt to rescind a contract for fraud: (a) He cannot rescind after affirming it by accepting its benefits, or by suing or otber\7ise acting upon it after discovery of tbe fraud. Cb) Delay in rescinding after discovery of tbe fraud, or after it sbould bave been discovered, may amount to an affirmance at la\5r, and may bar relief in equity on tbe ground of lacbes. (o) Tbe consideration must be returned as a condition precedent to tbe rigbt to rescind; and, as a rule, tbere can be no rescission if tbe subject-matter of tbe contract bas been so dealt witb tbat tbe parties cannot be placed in statu quo. EXCEPTIONS— (1) This rule does not apply wbere tbe considera- tion bas been destroyed, or taken from tbe injured party's control, 'nritbout bis fault. (2) "Wbere it is of no value whatever. (3) Provided tbe consideration is returned, tbe fraudulent par- ty need not be placed in as good a position as be before oc- cupied, if, by reason of bis own act, it is impossible to do so. (4) If, by natural causes, or reasonable use, tbe value of tbe con- sideration bas diminisbed, it may be returned in its depre- ciated condition, (d) Tbe rigbt to rescind may be defeated by a tbird person's having acquired an interest under the contract for value, and without notice of the fraud. Fraud does not render the contract void, but renders it only void- able at the option of the party defrauded. ^''^ In other words, it is valid until rescinded. It is for the party defrauded to elect whether he will 1 BO Johnson v. Seymour, 79 Mich. 156, 44 N. W. 344. And see Beard v. Bliley, 3 Colo. App. 479, 34 Pac. 271. Cf. Stevenson v. Marble (C. C.) 84 Fed. 23. 181 Baird v. Mayor, 96 N. Y. 567; Rowley v, Bigelow, 12 Pick. (Mass.) 307, ■J^ §§ 140-141) FRAUD. 235 be bound.^°' He therefore has several remedies on discovering the fraud : First. He may affirm the contract, and bring- an action for deceit to recover such damages as the fraud has occasioned him, or set up such damages by way of recoupment or counterclaim, if sued upon the con- tract by the other party. ^"^^ For instance, the defrauded buyer, on dis- covering the fraud, may keep the goods, and bring an action for dam- ages; ^^* or, if he has not paid for them, he may set up the fraud when sued by the seller for the price.^'"' Second. He may rescind the contract, and (i) sue, in an action of deceit, for any damages he may have sustained by reason of the fraud ;^°® or (2) if he has paid money under the contract, he may recover it back,^^^ and if he has delivered goods or property he may maintain an action of replevin or trover ;^°^ or (3) he may resist an ac- tion at law brought against him on the contract ; ^"^^ or (4) he may resist a suit in equity by the other party for specific performance; ^®° or (5) he may himself sue in equity to have the contract judicially canceled and set aside.^®^ 23 Am. Dec. 607 ; Smith v. Hornback, 4 Lltt. (Ky.) 232, 14 Am. Dec. 122 ; Fore- man V. Bigelow, 4 Cliff. 541, Fed. Cas. No. 4,934 ; Cobb v. Hatfield, 46 N. Y. 533 : Wilson T. Hundley, 96 Va. 96, 30 S. E. 492, 70 Am. St. Rep. 837. 152 Kawlins v. Wickham, 3 De Gex & J. 322; Clough v. Railway Co., L. R. 7 Exch. 26; Tiffany, Sales, 119. IBS Union Cent. Life Ins. Co. v. Schidler, 130 Ind. 214, 29 N. E. 1071, 15 L. R. A. 89; Peck v. Brewer, 48 111. 54; Haven v. Neal, 43 Minn. 315, 45 N. W. 612; Pryor v. Foster, 130 N. Y. 371, 29 N. E. 123; Nauman v. Oberle, 90 Mo. 666, 3 S. W. 380; Barr v. Kimball, 43 Neb. 766, 62 N. W. 196. But some cases hold that if, while the contract is still wholly or largely executory, the defrauded party learns of the fraud, and nevertheless continues to carry out the contract, exacting performance, and receiving benefits, he cannot maintain an action for the deceit. Kingman & Co. v. Stoddard, 85 Fed. 740, 29 C. C. A. 413; Simon v. Rubber Shoe Co., 105 Fed. 573, 44 C. C. A. 612, 52 L. R. A. 745. iB4Houldsworth v. City of Glasgow Bank, 5 App. Cas. 323. iBOApplegarth v. Robertson, ,i5 Md. 493, 4 Atl. 896. 156 Warden v. Fosdick, i3 Johns. (N. Y.) 325, 7 Am. Dec. 3S3; Burns v. Dockray, 156 Mass. 135, 30 N. E. 551; Peck v. Brewer, 48 111. 54. 157 Clarke v. Dickson, El. Bl. & El. 148; CooMdge v. Brigham, 1 Mete. (Mass.) 547. 158 Thurston v. Blanchard, 22 Pick. (Mass.) 18, 33 Am. Dec. 700; FERGU- SON V. CARRINGTON, 9 Barn. & C. 59 ; Lee v. Burnham, 82 Wis. 209, 52 N. W. 255; Moody v. Blake, 117 Mass. 23, 19 Am. Rep. 394; Cary v. Hotailing, 1 Hill (N. Y.) 311, 37 Am. Dec. 323; Benesch v. Weil, 69 Md. 276, 14 Atl. 666; Barker v. Dinsmore, 72 Pa. 427, 13 Am. Rep. 697. 159 Clough V. Railway Co., L. R. 7 Exch. 26, 36. i«oRatliix V. Vandikes, S9 Va. 307, 15 S. E. 864; Friend v. Lamb, 152 Pa. 529, 25 Atl. 577, 34 Am. St. Rep. 672; McShane v. Hazlehurst, 50 Md. 107; 181 See note 161 on following page. 236 REALITY OF CONSENT. (Ch. 7 Limitations to Right to Rescind. As a rule, the defrauded party must elect to rescind within a rea- sonable time after discovering the fraud,^*^ or, what amounts to the same thing, after he could have discovered it by the use of due dili- gence. ^^^ It has been said that mere lapse of time, in the absence of statutory regulation, will not bar his right to rescind, though it would be evidence tending to show an intention to affirm.^ ^* A delay in re- scinding which is unreasonable in view of the particular circumstances, however, will generally be regarded, even at law, as an election to af- gj.j^ 165 ^j^^j ^ji} i^^j. relief in equity on the ground of laches.^®' Any acts which unequivocally treat the contract as subsisting will constitute an affirmance. If, after discovering the fraud, the party in- jured acts on the contract by accepting some benefit under it, or other- wise, he affirms it, and cannot afterwards rescind, for after an af- firmance the election is determined.^ ®^ Bringing an action on the con- Chute V. Quincy, 156 Mass. 189, 30 N. E. 550 ; Brown v. Pitcairn, 148 Pa. 387, 24 Atl. 52, 33 Am. St. Rep. 834. 101 Castle V. Kemp, 124 111. 307, 16 N. E. 255; Downing v. Wherrin, 19 N. H. 9, 49 Am. Dec. 139; Burrows v. Wene (N. J. Ch.) 26 Atl. 890; Williams v. Kerr, 152 Pa. 560, 25 Atl. 618; Jackson v. Hodges, 24 Md. 468; Tretheway V. Hulett, 52 Minn. 448, 54 N. W. 486. ica Johnson V. McLane, 7 Blackf. (Ind.) 501, 43 Am. Dec. 102; Schiffer v. Dietz, 83 N. Y. 300; Sti'ong v. Strong, 102 N. Y. 69, 5 N. E. 799; Bailey v. Fox, 78 Cal. 389, 20 Pac. 868; Young v. Arntze, 86 Ala. 116, 5 South. 253; Pence V. Langdon, 99 U. S. 578, 25 L. Ed. 420 ; Taylor v. Short, 107 Mo. 384, 17 S. W. 970 ; Kugan v. Sabin, 10 U. S. App. 519, 3 C. C. A. 578, 53 Fed. 415 ; Wil- bur V. Flood, 16 Mich. 40, 93 Am. Dec. 203; Conlan v. Koemer, 52 N. J. Law, 53, IS Atl. 858; Foley v. Crow, 37 Md. 62; Fleming v. Hanley, 21 R. I. 141, 42 Atl. 520. Delay alone, without discovery of the fraud, will not bar the right to rescind. Smith's Adm'r v. Smith, 30 Vt. 139; Brown v. Norman, 65 Miss. 309, 4 South. 293, 7 Am. St. Rep. 663; Bowman v. Patrick (C. C.) 36 Fed. 138. 163 Redgrave v. Hurd, 20 Ch. Div. 1; Georgia Pac. R. Co. v. Brooks, 66 Miss. 583, 6 South. 467; Bostwick v. Insurance Co., 116 Wis. 392, 92 N. W. 246. 164 Anson, Cont. (8th Ed.) 177; Clough v. Railroad Co., L. R. 7 Exch. 35; Wicks V. Smith, 21 Kan. 412, 30 Am. Rep. 433. 18B Masson v. Bovet, 1 Denio (N. Y.) 69, 43 Am. Dec. 6.51; Perry v. Pearson, 135 111. 218, 25 N. E. 636; Carroll v. People, 13 111. App. 200; note 162, supra. 160 Cox V. Montgomery, 36 111. 396; Perry v. Pearson, 135 111. 218, 25 N. E. 636; Whittaker v. Improvement Co., 34 W. Va. 217, 12 S. E. 507; Barnard v. Iron Co., 85 Tenn. 139, 2 S. W. 21; Burkle v. Levy, 70 Cal. 250. 11 Pac. 643; Wilkinson v. Sherman, 45 N. J. Eq. 413, 18 Atl. 228; Coles v. Vanneman, 51 N. J. Eq. 323, 18 Atl. 468. 167 Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798; Dennis v. Jones, 44 N. J. Eq. 513, 14 Atl. 913, 6 Am. St. Rep. 899; Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 420 ; Lockwood v. Fitts, 90 Ala. 150, 7 South. 467 ; Crooks v. Nippolt, 44 Minn. 239, 46 N. W. 340; Eberstein v. Willets, 134 111. 101, 24 N. B. 967: Troup v. Appleman, 52 Md. 456; Wyeth v. Walzl, 43 Md. 426; Cobb v. Hat- field, 46 N. Y. 5.33; Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; Bach v. Tuch, 12G N. Y. 53, 26 N. E. 1019. §§ 140-141) FRAUD. 237 tract, or otherwise seeking to enforce it, after knowledge of the fraud, is an affirmance/"* It is otherwise if an action is brought, or the contract otherwise acted upon, in ignorance of the fraud.^^^ As al- ready stated, an affirmance of the contract is no bar to an action to re- cover damages for the deceit.^''" Return of Consideration — Placing in Statu Quo. The contract must be rescinded in toto; it cannot be rescinded in part and affirmed in part.^^^ As a rule, therefore, it is a condition precedent to the right to rescind a contract on the ground of fraud that the party seeking to rescind shall return, or offer to return, what he has received under the contract ; ^^^ and generally, if the subject- matter has been so dealt with, even before discovery of the fraud, that the parties cannot be reinstated in their former position, the court will not allow a rescission, but will leave the matter to be adjusted by an action for damages by the party injured, or defense or counterclaim in an action by the other party/^^ The defrauded party need not return what he has received, however, if it has been destroyed, or taken from his control, without fault on his i«8 Bach V. Tuch, supra ; Conrow v. Little, 115 N. Y. 387, 22 N. E. 346, 5 L. R. A. 693; Goodall v. Stewart, 65 Miss. 157, 3 Soutli. 257; Mansfield v. Wilson (Ark.) 13 S. W. 598; Bedier v. Keaume, 95 Mich. 518, 55 N. W. 366; Wheeler v. Dunn, 13 Colo. 428, 22 Pac. 827; Stevens v. Pierce, 151 Mass. 207, 23 N. E. lOOG. 169 Lee V. Buruham, 82 Wis. 209, 52 N. W. 255; Equitable Co-op. Foundry Co. V. Hersee, 103 N. Y. 25, 9 N. E. 487; Hoyt Mfg. Co. v. Turner, 84 Ala. 523, 4 South. 658 ; Baker v. Maxwell, 99 Ala. 558, 14 South. 468. 170 Ante, p. 235; Gilchrist v. Manning, 54 Mich. 210, 19 N. W. 959; Mattock V. Repi^y, 47 Ark. 148, 14 S. W. 546; Hinchman v. Weeks, 85 Mich. 535, 48 N. W. 790; Childs v. Merrill, 63 Vt 463, 22 Atl. 626, 14 L. R. A. 264; Union Cent. Life Ins. Co. v. Schidler, 130 Ind. 214, 29 N. E. 1071, 15 L. R. A. 89 ; Wa- bash Valley Protective Union v. James, 8 Ind. App. 449, 35 N. E. 919 ; Teachout V. Van Hoesen, 76 Iowa, 113, 40 N. W. 96, 1 L. R. A. 664, 14 Am. St. Rep. 206. 171 Brill V. Rack (Ky.) 23 S. W. 511; Merrill v. Wilson, 66 Mich. 232, 33 N. W. 716; Barrie v. Earle, 143 Mass. 1, 8 N. E. 639, 58 Am. Rep. 126; Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; ante, p. 171. And see the cases cited in the following notes. 172 Brown v. Norman, 65 Miss. 369, 4 South. 293, 7 Am. St. Rep. 663 ; Esta- brook V. Swett, 116 Mass. 303; Cobb v. Hatfield, 46 N. Y. 533; Thompson v. Peck, 115 Ind. 512, 18 N. E. 16, 1 L. R. A. 201; Babcock v. Case, 61 Pa. 427; Young v. Arntze, 86 Ala. 110, 5 South. 253 ; Doughten v. Association, 41 N. J. Eq. 556, 7 Atl. 479; Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95; Carlton V. Hulett, 49 Minn. 308, 51 N. W. 1053; Balue v. Taylor, 136 Ind. 368, 36 N. E. 269; Freeman v. Kieffer, 101 Cal. 254, 35 Pac. 767; Moore v. Association, 165 Mass. 517, 43 N. E. 298; Friend Bros. Clothing Co. v. Hulbert, 98 Wis. 183, 73 N. W. 784; Breyfogle v. Walsh, SO Fed. 172, 25 C. C. A. 357. i73CurtIss V. Howell, .39 N. Y. 211: Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785 ; Rigdon v. Walcott, 141 111. 649, 31 N. E. 158 ; Stanton v. Hughes, 97 N. C. 318, 1 S. E. 852; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634. 238 REALITY OF CONSENT. (Ch. 7 part,^^* or if it is absolutely worthless.^'" Nor need he place the other party in the position which he before occupied, if, by reason of the latter's act, it is impossible to do so. All that can be required is that he return what he has himself received.^ ^' Mere depreciation in value of the thing received before discovery of the fraud will not defeat rescission; ^^^ and if in the meantime he has incurred expenses for re- pairs, he may, on rescission and return, recover the cost.^"^® . Same — As against Third Persons. It follows from the principle that the contract is voidable, and not void, that, when innocent third persons have for value acquired rights under the contract, their rights are indefeasible. The rule is also said to be an application of the principle of convenience, that, when one of two innocent persons must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud. ^^^ Hence, a sale of land or goods cannot be rescinded so as to revest the property in the vendor if the vendee has in the meantime sold them to a bona fide purchaser. The seller's remedy is by an ac- tion for damages.^*" The purchase must be for value, and hence the i74Neblett v. Macfarland, 92 U, S. 101, 23 L. Ed. 471; Flynn v. Allen, 57 Pa. 482 ; Hammond v. Pennock, 61 N. Y. 145 ; Henninger v. Heald, 51 N. J. Eq. 74, 26 Atl. 449; Groff v. Hansel, 33 Md. 161. 17 5 Fitz V. Bynum, 55 Cal. 459; Wicks v. Smith, 21 Kan. 412, 30 Am. Rep. 433; Babcock v. Case, 61 Pa. 427, 100 Am. Dec. 654. If the things received are capable of serving any purpose of advantage by their possession or con- trol, or if their loss would be a disadvantage in any way, they must be return- ed. "This rule is held with great strictness in actions at law, as in the case of the casks that contained worthless lime (Conner v. Henderson, 15 Mass. 319, S Am. Dec. 103), and the sack that covered the rejected bale of cotton (Morse v. Brackett, 98 Mass. 205; Id., 104 Mass. 494)." Bassett v. Brown, 105 Mass. 558. And see Evans v. Gale. 17 N. H. 573, 43 Am. Dec. 614. 176 Masson v. Bovet, 1 Denio (N. Y.) 69, 43 Am. Dec. 651; Hammond v. Pennock, 61 N. Y. 145; Guckenheimer v. Angevine, 81 N. Y. 394; Gates v. Raymond, 106 Wis. 657, 82 N. W. 530. And see John V. Farwell Go. v. Hilton (C. C.) 84 Fed. 293. 177 Veazie v. Williams, 8 How. 134, 158, 12 L. Ed. 1018; Neblett v. Mc- Farland, 92 U. S. 101, 104, 23 L. Ed. 471 ; Baker v. Lever, 67 N. Y. 304, 23 Am. Rep. 117; Catling v. Newell, 9 Ind. 574; Goodrich v. Lathrop, 94 Cal. 56, 29 Pac. 329, 38 Am. St. Rep. 91. 178 Farris v. Ware, 60 Me. 482. 170 Pollock, Cont. (3d Ed.) 556; Tiffany, Sales, 122. 180 Babcock v. Lawson, 4 Q. B. Div. 394; Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607; Hoffman v. Noble, 6 Mete. (Mass.) 68, 39 Am. Dec. 711; Neff v. Landis, 110 Pa. 204, 1 Atl. 177; Le Grand v. Bank, 81 Ala. 123, 1 South. 460, 60 Am. Rep. 140 ; Moore v. Moore, 112 Ind. 149, 13 N. E. 673, 2 Am. St. Rep. 170 ; Jones v. Christian, 86 Va. 1017, 11 S. E. 984 ; Armstrong V. Lewis, 38 111. App. 104; First Nat. Bank v. Carriage Co., 70 Miss. 550, 12 South. 598 ; Scheuer v. Goetter, 102 Ala. 313, 14 South. 774 ; Hall v. Hinks, 21 Md. 400; Singer Mfg. Co. v. Sammons, 49 Wis. 316, 5 N. W. 788; Cochran V. Stewart, 21 Minn. 435. §§ Ub-Ul) FRAUD. 239 protection does not extend to attaching creditors,^** to an assignee in bankruptcy/^- or to a person taking the property in payment of an ex- isting indebtedness. ^^^ A sale, however, is to be distinguished from mere delivery of pos- session induced by fraud ; for in the latter case the person obtaining possession acquires no property in the goods, and can pass none to a third person, hov\^ever innocent. Thus, where a person obtains goods by fraudulently impersonating a third person,^^* or by pretending to be the agent of a third person,^ ^^ to whom the owner supposes he is sell- ing, the person thus obtaining the goods acquires no title, and a bona fide purchaser from him stands in no better position. In such case there is no contract at all, as the seller never consented to sell to the person to whom he delivered the goods. As a rule, if a negotiable instrument is procured by fraud, the party intending to sign it as such, so that there is no mistake as to the char- acter of the instrument, it cannot be avoided on the ground of the fraud after it has passed into the hands of a bona fide purchaser for value; ^^® but, as we have seen, it is otherwise where, by fraud or cir- cumvention, a person is induced to sign a negotiable instrument, when he does not intend to sign it, but thinks he is signing something else, provided, of course, he is not guilty of such negligence as will estop him from setting up his mistake.^*' ' 181 Buffington v. Gerrish, 15 Mass. 158, 8 Am. Dec. 97; Thompson v. Rose, 16 Conn. 71, 41 Am. Dec. 121; .Jordan v. Parker, 56 Me. 557; Oswego Starch Factory v. Lendrum, 57 Iowa, 573, 10 N. W. 900, 42 Am. Rep. 53 ; Henderson V. Gibbs, 39 Kan. 679, 684, 18 Pac. 926. 182 Donaldson v. Farwell, 93 U. S. 631, 23 L. Ed. 993; Bussing v. Rice, 2 Gush. (Mass.) 48; Singer v. Schilling, 74 Wis. 369, 43 N. W. 101; Benesch v. Weil, 69 Md. 274, 14 Atl. 666. 183 Barnard v. Campbell, 58 N. Y. 73, 17 Am. Rep. 208; Stevens v. Brennan, 79 N. Y. 258; Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201, 10 Am. St. Rep. 377; Poor V. Woodburn, 25 Vt 235; McGraw v. Solomon, 83 Mich. 442, 47 N. W. 345. Contra, Shufeldt v. Pease, 16 Wis. 659; Butters v. Haughwout, 42 111. 18, 89 Am. Dec. 401. 184 GUNDY V. LINDSAY, 3 App. Gas. 459; Loeffel v. Pohlman, 47 Mo. App. 574. Gf. EDMUNDS v. TRANSPORTATION CO., 135 Mass. 283. 188 Gases cited, ante, p. 200, note 16. 18 6 Clark V. Thayer, 105 Mass. 216, 7 Am. Rep. 531; Smith v. Livingston, 111 Mass. 342 ; SOUTHWIGK v. BANK, 84 N. Y. 420 ; Gridley v. Bane, 57 IlL 529 ; Ormsbee v. Howe, 54 Vt 182, 41 Am. Rep. 841. 187 See ante, p. 19a ^ fj<^' 240 REALITY OF CONSENT. (Ch. 7 V1 DURESS. ^- 42. Duress Is aotnal or threatened violence or imprisonment, by rea- son of nrhich a person is reasonably forced to enter into a con- tract. To affect tbe contract, bowrever, (a) It must have been against or of tbe contracting party, or his or her v/if e, or husband, parent, child, or other near relative. (b) It must have been inflicted or threatened by the other party to the contract, or by one acting xrith his knoivledge or on his be- half. (c) It must have induced the party to enter into the contract. 143. OF GOODS. By the weight of modern authority, the unlawful de- tention of another's goods under oppressive circumstances, or their threatened destruction, may constitute duress. 144. EFFECT. A contract entered into by a person under duress is voidable at his option. The ground upon which a contract entered into under duress can be avoided is because there is no real consent. The apparent consent is unreal because of the imprisonment of "force, or of the fear caused by the threats. "Actual violence," it has been said, "is not necessary to constitute duress, * * * because consent is the very essence of a contract ; and, if there be compulsion, there is no actual consent ; and moral compulsion, such as that produced by threats to take life, or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because in that state of the case there is no consent. 'Duress,' in its more extended sense, means that degree of constraint or danger, either actually inflicted or threat- ened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness." ^®*' 188 Pierce v. Brown, 7 Wall. 205. 19 L. Ed. 134. See, also, Baker v. Morton, 12 Wall. 150, 20 L. Ed. 262; Foshay v. Ferguson, 5 Hill (N. Y.) 154; Eadie V. summon, 26 N. Y. 12, 82 Am. Dec. 395; French v. Shoemaker, 14 Wall. 314, 20 L. Ed. 852; U. S. v. Huckabee, 16 Wall. 432, 21 L. Ed. 457; Miller v. Miller, 68 Pa. 486; Guilleaunie v. Rowe, 94 N. Y. 2GS, 46 Am. Rep. 141; Har- mon V. Harmon, 61 Me. 227; Fisher v. Shattuck, 17 Pick. (Mass.) 252; Got- walt V. Neal, 25 Md. 434; Bane v. Detrick, 52 111. 19; Alexander v. Pierce, 10 N. H. 494 ; McClair v. Wilson, IS Colo. 82, 31 Pac. 502 ; Horton v. Bloedorn, 37 Neb. 666, 56 N. W. 321; Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1010. A threat by a husband to separate from his wife and not support her has been held such duress as to avoid a deed by her to him induced thereby. Tapley v, Tapley, 10 Minn. 448 (Gil. 360), 83 Am. Dec. 76. An angry command by husband to wife, unaccompanied bj^ threats of pei'sonal violence, held not duress. Gabbey v. Forgeus, 38 Kan. 62, 15 Pac. 866. Merely to speak roughly to a woman, Avithout threats of personal violence, is not duress. Dausch v. Crane, 109 iNIo. 323, 10 S. W. 61. Mere vexation and annoyance is not duress. Brower v. Callender, 105 111. 88. §§ 142-144) DURESS. 241 The statement of what constitutes duress, made in this and many other cases/®" requires that the violence or threats shall have been sufficient to overcome a mind of "ordinary firmness/' or the mind of a person of "ordinary courage." Some cases, however, have rejected this test, holding that violence or threats employed for the purpose of overcoming the mind, and having that effect, constitute duress, although the mind acted upon be one of less than ordinary firmness.^®" It is almost needless to add that the contract must have been made because of the imprisonment, or of fear of the threatened injury or im- prisonment; otherwise, there is no duress.^®^ Duress per Minas. Duress per minas, as defined at common law, is where a person is forced to enter into a contract (a) from fear of loss of life ; (b) from fear of loss of limb; (c) from fear of mayhem; (d) from fear of im- prisonment, — and there is no doubt but that threats of such injuries will constitute duress.^'* Many of the modern English decisions re- strict the operation of the rule within the limits mentioned. They deny that contracts procured by menace of a mere battery to the person can be avoided on that ground; and the reason assigned for this rule is that such threats are not of a nature to overcome the mind and will 189 United States v. Huckabee, 16 Wall. 414, 21 L, Ed. 457; Hines v. Board, 93 Ind. 266; MORSE v. WOODWORTH, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525; Flanigan v. City of Minneapolis, 36 Minn. 406, 31 N. W. 359; Hor- ton V. Bloedorn, 37 Neb. 666, 56 N. W. 320; Kennedy v. Roberts, 105 Iowa, 521, 75 N. W. 363. IPO Cribbs v. Sowle, 87 Mich. 340, 49 N. W. 587, 24 Am. St. Rep. 166; Bald- win V. Hutchinson, 8 Ind. App. 454, 35 N. E. 711 ; GALUSHA v. SHERMAN, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417. See, also, Parmentier v. Taber, 13 Or. 121, 9 Pac. 59. See Bishop, Cont. § 719. 191 Feller v. Green, 26 Mich. 70; Flanigan v. City of Minneapolis, 36 Minn. 406, 31 N. W. 359; Schwartz v. Schwartz, 29 111. App. 516; Inhabitants of Whitefield v. Longfellow, 13 Me. 146; Alexander v. Pierce, 10 N. H. 494; Bos- ley V. Shanner, 26 Ark. 280 ; Stone v. Weiller, 57 Hun, 588, 10 N. Y. Supp. 828 ; Post V. Bank, 138 111. 559, 28 N. E. 978. 192 3 Bac, Abr. "Duress," 252; Baker v. Morton, 12 Wall. 150, 20 L. Ed. 262; and cases hereafter cited. Threat of personal violence. Pierce v. Brown, 7 Wall. 205, 19 L. Ed. 134; Baker v. Morton, supra; Magoon v. Reber, 76 Wis. 392, 45 N. W. 112; Anderson v. Anderson, 74 Hun, 56, 26 N. Y, Supp. 492. Threat of criminal prosecution and imprisonment. Foshay v. Ferguson, 5 Hill (N. Y.) 154; 2 Co. Inst. 483; Co. Litt. 2.53b; Eadie v. Sllmmon, 26 N. Y. 9, 82 Am. Dec. 395; Inhabitants of Whitefield t. Longfellow, 13 Me. 146; Bane v. Detrick, 52 111. 19; James v. Roberts, 18 Ohio, 548; Baldwin v. Hutch- ison. 8 Ind. App. 454, 35 N. E. 711; Maricle v. Brooks, 51 Hun, 638, 5 N. Y. Supp. 210 ; Morrison v. Faulkner, SO Tex. 128, 15 S. W. 797 ; Landa v. Obert, 78 Tex. 33, 14 S. W. 297; Winfield Nat. Bank v. Croco, 46 Kan. 620, 26 Pac. 939. See post, p. 292, and cases cited. A threat to "make complaint" and send the person threatened to prison is not duress, where the threats do not specify an offense for which Imprisonment may be had, Kruschke v. Stefan, 83 Wis. 873, 53 N. W. 679. Clakk Cont. (2d Ed.)— 16 242 EEALITY OF CONSENT. (Ch. 7 of a firm and prudent man.^®^ There are cases to the same effect in this country, and some of the text writers have adopted the old rule.^®* Many American cases, on the other hand, adopt a more liberal rule, and hold that contracts procured by threats and fear of battery to the person may be avoided on the ground of duress.^" Duress of Imprisonment. Imprisonment is any restraint of a person's liberty, whether it be in prison or elsewhere. Any unlawful imprisonment, whatever may be the ground of illegality, constitutes duress, and avoids a contract entered into by the person imprisoned for the purpose of regaining his liberty.^'* Under the older rule, the imprisonment must have been illegal; lawful imprisonment, whatever might be the circumstances, was not regarded as duress; ^^'^ and tliis rule has been adhered to in some of the modern cases.^®* By the overwhelming weight of modern authority, however, the rule has been so far modified that now even a legal imprisonment will constitute duress if the process is sued out maliciously and without probable cause, or if it is sued out with prob- able cause, but for an unlawful purpose; as, for instance, where a legal arrest for crime is procured for the purpose of coercing payment of a private demand, or if the imprisonment, though legal, is made un- justly oppressive.^®® All the courts agree, however, that if the im- prisonment is lawful, and there is no abuse of process, there is no duress.2°o 193 2 Co. Inst. 483; Sbep. Touch. 6; post, p. 243. 194 1 Pars. Cont. 393. 18B Pierce v. Brown, 7 Wall. 205, 19 L. Ed. 134; Foshay v. Ferguson, 5 Hill (N. Y.) 154; Love v. State, 78 Ga. 66, 3 S. E. 893, 6 Am. St. Rep. 234. 188 Osborn v. Robbing, 36 N. Y. 365; Guilleaume v. Rowe, 94 N. Y. 268, 46 Am. Rep. 141; Stepney v. Lloyd, Cro. Eliz. 647, Ewell, Lead. Cas. 760; Fisher V. Shattuck, 17 Pick. (Mass.) 252; Alexander v. Pierce, 10 N. H. 494; White- field V. Longfellow, 13 Me. 146; Thompson v. Lockwood, 15 Johns. (N. Y.) 256; Bowker v. Lowell, 49 Me. 429; Tilley v. Damon, 11 Gush. (Mass.) 247. 18 7 2 Co. Inst. 483; Shep. Touch. 6. 188 Clark V. Turn bull, 47 N. J. Law, 265, 54 Am. Rep. 157; Kelsey v. Hob- by, 16 Pet. 269, 10 L. Ed. 961; Taylor v, Cottrell. 16 111. 93; Heaps v. Dunham, 95 111. 583 ; McCormick Harvester Co. v. Miller, 54 Neb. 644, 74 N. W. 1061. 188 Watkins v. Baird, 6 Mass. 506, 4 Am. Dec. 170; Richardson v. Duncan, 3 N. H. 508; Selber v. Price, 26 Mich. 518; Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395; Schoener v. Lissauer, 107 N. Y. Ill, 13 N. E. 741; Bane v. Detrick, 52 111. 19; Work's Appeal, 59 Pa. 444; Phelps v. Zuschlag, 34 Tex. 371; Holmes v. Hill, 19 Mo. 159; Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419; Town of Sharon v. Gager. 46 Conn. 189; Bentley v. Robson, 117 Mich. 691, 76 N. W. 146; Behl v. Schuett, 104 Wis. 76, 80 N. W. 73. 200 Soule V. Bouney, 87 Me. 128; Prlchard v. Sharp, 51 Mich. 432, 16 N. W. 798; Felton v. Gregory, 130 Mass. 176; Taylor v. Cottrell, 16 111. 93; Nealey V. Greenough, 25 N. H. 325 ; Smith v. Atwood, 14 Ga. 402 ; Stouffer v. Lat- shaw, 2 Watts (Pa.) 165, 27 Am. Dec. 297 ; State v. Such, 53 N. .J. Law, 351, 21 Atl. 852; Meek v. Atkinson, 1 Bailey (S. C.) 84, 19 Am. Dec. 653; Stebbins §§ 142-144) DURESS. 243 The rule that the imprisonment must be unlawful applies equally to duress per minas, where the threat is of imprisonment. A threat of unlawful arrest and imprisonment is duress/"^ but, as a rule, a threat of lawful imprisonment is not A threat, for instance, by a creditor, to bring a suit against his debtor, and procure his arrest therein, is not duress where the creditor may lawfully so proceed.^"* It has also been said, without qualification, that, if a person has been wronged by the embezzlement or other criminal act of, another, it is not duress to threaten him with a criminal prosecution, and thereby coerce him into giving a note, or otherwise settling for the injury.^"* As we have seen, however, a strictly legal imprisonment procured for the purpose of enforcing a private demand is an abuse of process, and constitutes duress ; and on the same principle it has been held duress to threaten imprisonment for such a purpose.^"* Duress of Goods. Under the stricter rule which formerly prevailed, a promise was not given under duress if made in consideration of the release of goods from unlawful destruction or detention, and there is modern authority to the same effect.^"^ Most courts, however, have established a more liberal rule, and regard duress of goods under oppressive circumstances as sufficient to avoid a contract.^"* Duress in this connection must not V. Niles, 25 Miss. 267, 349; Mascolo v. Montesanto, Gl Conn. 50, 23 Atl. 714, 29 Am. St. Rep. 170; Marvin v. Marvin, 52 Ark. 425, 12 S. W. 875, 20 Am. St. Rep. 191. And see Medrano v. State, 32 Tex. Or. R. 214, 22 S. W. 684, 40 Am. St. Rep. 775. 201 Ante, p. 241, note 192. 202 DUNHAM V. GRISWOLD, 100 N. Y. 224, 3 N. B. 76; Clark v. Tumbull, 47 N. J. Law, 265, 54 Am. Rep. 157; Hilborn v. Bucknam, 78 Me. 482, 7 Atl. 272, 57 Am. Rep. 816. 208 Eddy V. Herrin, 17 Me. 338, 35 Am. Dec. 261 ; Hilborn v. Bucknam. 78 Me. 482, 7 Atl. 272, 57 Am. Rep. 816; Taylor v. Cottrell, 16 111. 93; Sanford v. Sornborger, 26 Neb. 295, 41 N. W. 1102; Thorn v. Pinkham, 84 Me. 103, 24 Atl. 718, 30 Am. St. Rep. 335; Weber v. Barrett, 125 N. Y. 18, 25 N. E. 1068; Comp- ton V. Banii, 96 111. 301. 2 04 See MORSE v. WOODWORTH, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525 ; Adams v. Bank, 116 N. Y. 606, 23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447 ; Miller v. Bryden, 34 Mo. App. 602 ; Morrison v. Faulkner, 80 Tex. 128, 15 S. W. 797; Scbultz v. Catlin, 78 Wis. 611, 47 N. W. 946; Mon-ill v. Nightingale, 93 Cal. 452, 28 Pac. 1068, 27 Am. St. Rep. 207; Bryant v. Peck, 154 Mass. 460, 28 N. E. 678; Lighthall v. Moore, 2 Colo. App. 554, 31 Pac. 511; Heaton v. Norton Co. State Bank, 59 Kan. 281, 52 Pac. 876. 20BAtlee V. Backhouse, 3 Mees. & W. 633; SKEATE v. BEALE, 11 Adol. & E. 983; Hazelrigg v. Donaldson, 2 Mete. (Ivy.) 445. 206 Lonergan v. Buford, 148 U. S. 581, 13 Sup. Ct. 684, 37 L. Ed. 569; U. S. v. Huekabee, 16 Wall. 432, 21 L. Ed. 457; Foshay v. Ferguson, 5 Hill (N. Y.) 154; Sasportas v. Jennings, 1 Bay (S. C.) 470; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; White v. Hey 1 man. 34 Pa. 142; Motz v. Mitchell, 91 Pa. 114; Miller v. Miller, 68 Pa. 486; Pemberton v. Williams, 87 111. 15; 244 REALITY OF CONSENT. (Ch. 7 be confounded with want of consideration. If the detention were ob- viously without right, the promise would be void because of want of consideration; if the right were doubtful, the promise might be sup- ported by a compromise. Against Whom. As a rule a contract entered into in order to relieve a third person is not voidable on the ground of duress.^*^^ It should be noted, how- SCHOLEY V. MUMFORD, 60 N. Y. 498; McPherson v. Cox, 86 N. Y. 472; Crawford v. Cato, 22 Ga. 594; Bennett v. Ford, 47 Ind. 264; Oliphant v. Mark- ham, 79 Tex. 543, 15 S. W. 569, 23 Am^ St. Rep. 363; McCormick v. Dalton, 53 Kan. 146, 35 Pac. 1113; Fuller v. Roberts, 35 Fla. 110, 17 South. 359. A note given, or money paid, to obtain release of goods from attachment fraud- ulently obtained, may, under some circumstances, be avoided or recovered back. CHANDLER v. SANGER, 114 Mass. 364, 19 Am. Rep. 367; Collins V. Westbury, 2 Bay (S. C.) 211, 1 Am. Dec. 643; Spaids v. Barrett, 57 111. 289, 11 Am. Rep. 10; Nelson v. Suddarth, 1 Hen. & M. (Va.) 350. But seizure of property claimed by A. under attachment against B. is not duress of A. KINGSBURY v. SARGENT, 83 Me. 230, 22 Atl. 105. So, where a note is given, or money paid, to prevent seizure of property under execution fraudulently obtained, Thurman v. Burt, 53 111. 129; or under warrant for the collection of illegal tax or assessment, BOSTON & S. GLASS CO. v. CITY OF BOSTON, 4 Mete. (Mass.) 181; BRUECHER v. VILLAGE OF PORT CHESTER, 101 N. Y, 240, 4 N. E. 272; Bradford v. City of Chicago, 25 111. 411. Exactions by carrier before delivery of property. Beckwlth v. Frisbie, 32 Vt, 559 ; Tutt v. Ide, 3 Blatchf. 249, Fed. Cas. No. 14,275b ; Harmony v. Bingham, supra. Refusal by carrier to transport freight. Little Rock & Ft S. Ry. Co.. V. Cravens, 57 Ark. 112, 20 S. W. 803, 18 L. R. A. 527, 38 Am. St. Rep. 230. Refusal by carrier to carry stock which has been loaded on cars, unless shipper will sign special contract. Atchison R. Co. v. Dill, 48 Kan. 210, 29 Pac. 148. Refusal by banker to honor check unless fraudulent claim is acced- ed to, held duress. Adams v. SchifCer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202. Threat to file mechanic's Hen. Gates v. Dundon (City Ct N. Y.) 18 N. Y. Supp. 149. Exactions by customs officer as condition to delivery of proper- ty. Maxwell v. Griswold, 10 How. 242, 13 L. Ed. 405 ; ELLIOTT v. SWART- WOUT, 10 Pet. 137, 9 L. Ed. 373. Mere refusal of debtor to pay debt does not amount to duress of goods, even though creditor be in straitened circumstan- ces, and need the money. Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Secor V. Clark, 117 N. Y. 350, 22 N. E. 754 ; Cable v. Foley, 45 Minn. 421, 47 N. W. 1135; Adams v. Schiffer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202; Doyle V. Church, 133 N. Y. 372, 31 N. E. 221. Threat of civil action not duress. McClair v. Wilson, 18 Colo. 82, 31 Pac. 502 ; Whittaker v. Improvement Co., 34 W. Va. 217, 12 S. E. 507; Wilson S. M. Co. v. Curry, 126 Ind. 161, 25 N. E. 896; Atkinson v. Allen, 71 Fed. 58, 17 C. C. A. 570; York v. Hinkle, 80 Wis. 624, 50 N. W. 895, 27 Am. St. Rep. 73 ; Bestor v. Hickie, 71 Conn. 181, 41 Atl. 555; Hart v. Strong, 183 111. 349, 55 N. E. 029. Threat to levy attachment or execution Is not duress. Wilcox v. Howland, 23 Pick. (Mass.) 167 ; Waller v. Cralle, 8 B. Mon. (Ky.) 11; Stover v. Mitchell, 45 111. 213. Threats to prevent clearance of vessel, with power to carry out, is duress of ship's master. Bald- win V. Timber Co., 65 Hun, 625, 20 N. Y. Supp. 490. And see McPherson v. Cox, supra. 207 Robinson v. Gould, 11 Cush. (Mass.) 55; Plummer v. People, 16 III. 358; Phillips v. Henry, 160 Pa. 24, 28 Atl. 477, 40 Am. fcJt. Rep. 706; Jones v. Turn- §§ 142-144) DURESS. 245 ever, that a simple contract, the consideration for which is the dis- charge of a third person from illegal imprisonment, would be void for want of consideration.''"^ Though the law does not regard a per- son as under duress who enters into a contract to relieve a stranger, it is otherwise where the person relieved is a near relative, as a hus- band, wife, parent, or child. ^°° These are the only relationships gen- erally mentioned in the books, but the rule has been extended to other relationships, as of brother, sister, grandparent, or grandchild.**" By Whom. The duress, to be available as a defense, must have been inflicted or threatened by the other party to the contract, or by some one acting with his connivance.^^* A person entering into a contract with another under duress exercised by a third person may avoid the contract if the third person was the other party's agent, or if the other party knew the circumstances,^" but not if he acted in good faith and with- out such knowledge. er, 5 Litt. (Ky.) 147; Wright v. Remington, 41 N. J. Law, 48, 32 Am. Rep. 180; Spaulding v. Crawford, 27 Tex. 155; Lewis v. Bannister, 16 Gray (Mass.) 500 (creditors). A surety cannot avoid a common-law bond or note on the ground that his principal was under duress. Huscombe v. Standing, Cro. Jac. 187; Graham v. Marlis, 98 Ga. 67, 25 S. B. 931. Contra, Strong v. Gran- nis, 26 Barb. (N. Y.) 122. But it is otherwise in the case of statutory bonds, such as a bond given under a statute to release the principal from imprison- ment, where the imprisonment is illegal. In such case the officer has no right to take the bond, and it is void. Thompson v. Lockwood, 15 Johns. (N. Y.) 256. And see State v. Brantley, 27 Ala. 44 ; Patterson v. Gibson, 81 Ga. 802, 10 S. E. 9, 12 Am. St. Rep. 356; Fisher v. Shattuck, 17 Pick. (Mass.) 252; Jones v. Turner, 5 Litt. (Ky.) 147. But see Plummer v. People, 16 111. 358 ; Huggins V. People, 39 111. 246; Inhabitants of Bordentown Tp. v. Wallace, 50 N. J. Law, 13, 11 Atl. 267. 208 Ante, p. 123. 209 Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188; Plummer v. People, 16 111. 360; First Nat. Bank v. Bryan, 62 Iowa, 42, 17 N. W. 165; Lomerson V. Johnston, 44 N. J. Eq. 93, 13 Atl. 8; Brooks v. Berryhill, 20 Ind. 97; South- ern Exp. Co. V. Duffey, 48 Ga. 361 ; Adams v. Bank, 116 N. Y. 600, 23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; McClatchie v. Haslam, 63 Law T. 376; Meech v. Lee, 82 Mich. 274, 46 N. W. 383: Bryant v. Peck, 154 Mass. 460, 28 N. E. 678; CITY NAT. BANK v. KUSWORM, 88 Wis. 188, 59 N. W. 564, 26 L. R. A. 48, 43 Am. St. Rep. 880; Giddings v. Iowa Sav. Bank, 104 Iowa, 676, 74 N. W. 21 ; Heaton v. Norman Co.'s Bank, 59 Kan. 281, 52 Pac. 876 ; Davis V. Smith, 68 N. H. 253, 44 Atl. 384, 73 Am. St. Rep. 584. 210 Schultz V. Catlin, 78 Wis. 611, 47 N. W. 946; Bradley v. Irish, 42 111. App. 85. It seems that it does not extend to master and. servant. 1 Rolle, Abr. 687; Bac. Abr. "Duress," B; 2 Brownl. 276. 2111 Rolle, Abr. 688; Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596, 1 Am. St. Rep. 446; Fightmaster v. Levi (Ky.) 17 S. W. 195; Sherman v. Sher- man (Com. PI. N. Y.) 20 N. Y. Supp. 414; Compton v. Bank, 96 111. 301, 36 Am. Rep. 147; Schwartz v. Schwartz, 29 111. App. 516. 212 Fairbanks v. Snow, supra; McClatchie v. Haslam, 63 Law T. 376. ^ 246 REALITY OP CONSENT. (Ch. 7 Effect. A contract is not void because it was entered into under duress, but, as in the case of fraud, is merely voidable at the option of the injured party, and stands unless he sees fit to avoid or rescind it. He may either ratify or disaffirm it, and may do so by his conduct.-^' The rules as to the right to rescind a contract for fraud apply with equal force here, and it is unnecessary to repeat them. "UNDUE INFLUENCE. 145. Undue influence is a species of fraud. It may be said generally to consist— (a) In the use by one in -nrhom confidence is reposed by another, or TO^ho holds a real or apparent authority over him, of such con- fidence or authority for the purpose of obtaining an unfair ad- vantage over him. (b) In taking an unfair advantage of another's iveakness of mind. (c) In taking a grossly oppressive and unfair advantage of another's necessities and distress. 146. EFFECT. Undue influence renders a contract voidable at the op- tion of the injured party. Courts of equity have always given a wider interpretation to the term "fraud" than that adopted by the courts of common law. Look- ing beyond definite false and fraudulent statements, they have inferred from a long course of conduct, from the peculiar relations of the par- ties, or from the circumstances of one of them, that an unfair ad- vantage has been taken of the promisor, and that his promise ought not, in equity, to bind him. The taking of such an unfair advantage is sometimes called "fraud," but it is more convenient, for the purpose of distinguishing it from the kind of fraud with which we have already dealt, to call it the "exercise of undue influence." ^^* It is difficult to give a clear and concise definition of "undue influence" because of the wide meaning of the term. The definition given in the black-letter 213 Miller v. Minor, 98 Mich. 163, 57 N. W. 101, 39 Am. St. Rep. 524; Fair- banks V. Snow, 145 Mass. 153, 13 N. E. 596, 1 Am. St. Rep. 446; OREGON PAC. R. CO. V. FORREST, 128 N. Y. 83, 28 N. E. 137; Veach v. Thompson, 15 Iowa, 380; Belote v. Henderson, 5 Cold. (Tenn.) 472, 98 Am. Dec. 432; Brown v. Peck, 2 Wis. 261; Deputy v. Stapleford, 19 Cal. 302; Eberstein v. Willets, 134 111. 101, 24 N. E. 967; Bush v. Brown, 49 Ind. 577, 19 Am. Rep. 695; Sornborgcr v. Sanfoid, 34 Neb. 498, 52 N. W. 368; Commercial Nat. Bank v. Wheelock, 52 Ohio St. 534, 40 N. E. 636, 49 Am. St. Rep. 738. Post, P- 234. A negotiable instrument executed under duress is binding in hands of bona fide purchaser for value. Hogan v. Moore, 48 Ga. 15G ; Clark v. Pease, 41 N. H. 414 ; THOMPSON v. NIGGLEY, 53 Kan. 664, 35 Pac. 290, 26 L. R, A. 803. 214 Anson, Cont. (4th Ed.) 165. §§ 145-146) UNDUE INFLUENCE. 247 text, and taken substantially from the proposed New York Code, is probably as good as can be framed without going beyond a mere defini- tion.'^' Another good definition is given by an English judge, who, in speaking of the sort of cases "which * * * raise, from the cir- cumstances and conditions of the parties contracting, a presumption of fraud," says: "Fraud does not here mean deceit or circumvention; it means an unconscientious use of the power arising out of these cir- cumstances and conditions ; and, when the relative position of the par- ties is such as prima facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been, in puiu. of fact, fair, just, and reasonable." ^^® Neither in law nor in morals is a person standing in confidential re- lations to another prohibited from exerting any influence whatever to obtain a benefit to himself. The influence must be what the law re- gards as "undue influence." '^'' "Influence obtained by modest persua- sion, and arguments addressed to the understanding, or by mere ap- peals to the afifections, cannot properly be termed 'undue influence' in a legal sense ; ^^^ but influence obtained by flattery, importunity, su- periority of will, mind, or character, or by what art soever that human thought, ingenuity, or cunning may employ, which would give do- minion over the will" of a person "to such an extent as to destroy the free agency,^ ^® or constrain him to do against his will what he is un- able to refuse, is such an influence as the law condemns as undue." '^^ The Presumption from Circumstances. When it is said that equity presumes prima facie the exercise of un- due influence from the circumstances, we mean that, when certain cir- cumstances are shown to have existed, the court will, from that alone, hold that the contract was procured by undue influence, and will relieve the promisor unless the promisee assumes the burden of proof, and shows that everything was fair and just.^^^ In some cases the relation 215 Proposed N. Y. Civ. Code, 231. 218 Lord Selbourne, in Earl of Aylesford v. Morris, 8 Ch. 490. See, also, Green v. Ro worth, 113 N. Y. 462, 21 N. E. 165; Nelson's Will, 39 Minn. 204, 39 N. W. 143. 217 Wallace v. Harris, 32 Mich. 397. 218 Rogers V. Higgins, 57 111. 244; Wise v. Foote, 81 Ky. 10; Hale v. Cole, 31 W. Va. 576, 8 S. E. 516; Beith v. Beith, 76 Iowa, 601, 41 N. W. 371: Black V. Foljambre, 39 N. J. Eq. 234 ; Sturtevant v. Sturtevant, 116 111. 340, 6 N. E. 428; Bowdoin College v. Merrett (C. C.) 75 Fed. 480; In re Coleman's Estate, 193 Pa. 605, 44 Atl. 1085. 218 Latham v. Udell, 38 Mich. 238; Layman v. Conrey, 60 Md. 286. 220 Schofleld v. Walker (In re Disbrow's Estate) 58 Mich. 96, 24 N. W. 624. 221 Dent V. Bennett, 4 Mylne & C. 269; Cowee v. Cornell, 75 N. T. 91, 31 Am. Rep. 428, at page 99; Fisher v. Bishop, 108 N. Y. 25, 15 N. E. 331, 2 Am. St. Rep. 357; Woodbm.'y v. Woodbm-y, 141 Mass. 329, 5 N. E. 275, 55 Am. 248 REALITY OF CONSENT. (Ch. 7 alone, being confidential, raises the presumption. In others, the con- fidential character of the relation must be shown. In others, want or inadequacy of consideration will raise the presumption. ^^^ "We may therefore frame the question we have to discuss somewhat in this way : When a man demands equitable remedies, either as plain- tiff or defendant, seeking to escape the effects of a grant which he has made gratuitously, or a promise which he has given upon a very in- adequate consideration, what must be shown in addition to this in order to raise the presumption that undue influence has been at work?"**" Relationship of Parties — Parental and Quasi Parental Relation. One class of circumstances which will raise the presumption that un- due influence was used in procuring another to enter into a contract is where the party benefited stood in some such relation to him as to render him peculiarly subject to influence. Parental or quasi parental relations subsisting between promisor and promisee, or grantor and grantee, will raise this presumption.^^* Where an orphan who had been living with her uncle for seven years became security for him soon after attaining her majority, it was said by the court, adverting to the fact that the security was obtained, through the influence of one standing in loco parentis, from the object of his protection and care: "This is a transaction which, under ordinary circumstances, this court will not allow. * ♦ ♦ This court does not interfere to prevent an act, even of bounty, between parent and child, but it will take care (un- der the circumstances in which the parent and child are placed before the emancipation of the child) that such child is placed in such a posi- tion as will enable him to form an entirely free and unfettered judg- ment, independent altogether of any sort of control." ^*° Same — Other Family Relations. The term "parental relations" applies, not only to the actual relation of parent and child, and of one in loco parentis and child, but extends to husband and wife, brother and brother or sister, and to all cases Rep. 479; Greenfield's Estate, 14 Pa. 489; Jones v. Lloyd, 117 111. 597, 7 N. E. 119; Sands v. Sands, 112 111. 225; Ward v. Armsti-ong, 84 111. 151; Zeigler V. Hughes, 55 III. 288; Jennings v. McConnel, 17 111. 148; Casey v. Casey, 14 111. 112. 2 22 Ante, p. 60. The acceptance of a voluntary donation throws upon the ac- ceptor the necessity of proving that the transaction was just. Houghton v. Houghton, 15 Beav. 299. 223 Anson, Cont. (4th Ed.) 166. 224 Taylor v. Taylor, 8 How. 183, 12 L. Ed. 1040; Miskey's Appeal, 107 Pa. Gil; Noble's Adm'r v. Moses, 81 Ala. 530, 1 South. 217, GO Am. Rep. 175; Highberger v. Stiffler, 21 Md. 338, 83 Am. Dec. 593; Berkmeyer v. Kellermau, 32 Ohio St 239, 30 Am. Rep. 577; Brown v. Burbank, 64 Cal. 99, 27 Pac. 940; Clutter V. Clutter, 8 Ky. Law Rep. 956, 4 S. W. 182; Sayles v. Christie, 187 III. 420, 58 N. E. 480. But see Jenkins v. Pye, 12 Pet. 241, 9 L. Ed. 1070. 22B Archer v. Hudson, 7 Beav. 560. §§ 145-146) UNDUE INFLUENCE. 249 in which one member of a family, from age, character, or circumstan- ces, exercises a substantial preponderance of authority in the family councils.--* Sa)n e — Pidxi ciary R elatio ns. Persons standing in a fiduciary relation occupy a relation of con- fidence, and are within this equitable rule. A contract between a trus- tee and his cestui que trust,^^^ or between a guardian and his ward,^^* is looked upon with suspicion. It is presumed that the trustee or guardian who is benefited by the promise of his cestui que trust or ward has used his peculiar position of confidence to his own advantage, and, in order that the contract may stand, he must show the contrary. Same — Other Confidential Relations. The power which a spiritual adviser may acquire over persons sub- ject to his influence is also looked upon as raising the presumption of undue influence; ^^^ and to this may be added a number of other rela- tions, such as attorney or solicitor and client,*^° and doctor and pa- tient. ^^^ The relations mentioned are not all.^^* The courts have not limited or defined the relations which they will regard as raising this 226 Green v, Roworth, 113 N. Y. 462, 21 N. E. 165; Harvey v. Mount, 8 Beav, 439 ; Graham v. Burch, 44 Minn. 33, 46 N. W. 148 ; Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Watkins v. Brant, 46 Wis. 419, 1 N. W. 82; Bowe v. Bowe, 42 Mich. 195, 3 N. W. 843; Golding v. Golding, 82 Ky. 51; Swiashelm's Ap- peal, 56 Pa. 475, 94 Am. Dec. 107; HUI v. Miller, 50 Kan. 659, 32 Pac. 354; Scarborough v. Watkins, 9 B. Mon. (Ky.) 540, 50 Am. Dec. 528; Brown v. Burbank, 64 Cal. 99, 27 Pac. 940; Greene v. Greene, 42 Neb. 634, 60 N. W. 937, 47 Am. St. Rep. 724; Woods v. Roberts, 185 111. 489, 57 N. E. 426. 227 Spencer's Appeal, 80 Pa. 317; Ward v. Armstrong, 84 111. 151; Jones V. Lloyd, 117 111. 597, 7 N. E. 119; Nichols v. McCarthy, 53 Conn. 299, 23 Atl. 93, 55 Am. Rep. 105 ; McCants v. Bee, 1 McCord, Eq. (S. C.) 383, 16 Am. Dec. 610. Principal and agent. Burke v. Taylor, 94 Ala. 530, 10 South. 129. 228 Ashton V. Thompson, 32 Minn. 25. 18 N. W. 918; Wickiser v. Cook, 85 111. 68; Wade v. Pulsifer. 54 Vt. 45; Bowe v. Bowe, 42 Mich. 195, 3 N. W. 843 ; Garvin's Adm'r v. Williams, 44 Mo. 465, 100 Am. Dec. 314 ; Id., 50 Mo. 206. 229 Huguennin v. Baseley, 14 Ves. 273; Marx v. McGlynn, 88 N. Y. 357; Corrigan v. Pironi, 48 N. J. Eq. 607, 23 Atl. 355; Ross v. Conway, 92 Cal. 632. 28 Pac. 7S5; Finegan v. Theisen, 92 Mich. 173, 52 N. W. 619; Ford v. Hennessy, 70 Mo. 580. Spirit medium's influence over believer in spiritualism. Thompson v. Hawks (C. C.) 14 Fed. 902; Connor v. Stanley, 72 Cal. 556, 14 Pac. 306, 1 Am. St. Rep. 84. 230 St. Leger's Appeal, 34 Conn. 434, 91 Am. Dec. 735 ; Carter v. West, 93 Ky. 211, 19 S. W. 592 ; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848; Jennings v. McConnel, 17 111. 148; Zeigler v. Hughes, 55 HI. 288; Ryan v. Ashton, 42 Iowa, 305. 231 Audenreid's Appeal, 89 Pa. 114, 33 Am. Rep. 731; Woodbury v. Wood- bury, 141 Mass. 329, 5 N. E. 275, 55 Am. Rep. 479; Dent v. Bennett, 4 Mylue &, C. 269 ; Blackie v. Clark, 15 Beav. 603 ; Cadwallader v. West, 48 Mo. 4S3 ; Watson v. Mahan, 20 Ind. 227. 2o2Deut V. Bennett, 4 Mylne & C. 269; Drake's Appeal, 45 Conn. 9; Boyd V. De La Montagnie, 73 N. Y. 498, 29 Am. Rep. 197; Pierce v. Pierce, 71 N. Y. 250 REALITY OF CONSENT. (Ch. 7 presumption of influence. The principle, it is said, applies to every case where "influence is acquired and abused, where confidence is re- posed and betrayed." ^^^ Thus, where a young man who had just at- tained his majority incurred heavy liabilities to a person by the con- trivance of an older man who had acquired a strong influence over him, and who professed to assist him in a career of extravagance and dissi- pation, it was held that influence of this nature entitled the young man to the protection of the court. "The principle," it was said, "applies to every case where influence is acquired and abused, where confidence is reposed and betrayed. The relations with which the court of chancery most ordinarily deals are those of trustee and cestui que trust, and such like. It applies especially to those cases, for this reason, and for this reason only : that from those relations the court presumes confidence put and influence exerted, whereas, in all other cases where those relations do not subsist, the confidence and the influence must be proved extrinsically. But, where they are proved extrinsically, the rules of reason and common sense, and the technical rules of a court of equity, are just as applicable in the one case as the other." ^^* Same — Continuance of Presumption. The presumption of undue influence from the parental or quasi parental relation does not cease as soon as the child becomes of age and is emancipated in law. His judgment must also be emancipated. The confidential relation and consequent presumption of undue influence continues until the child is entirely released from any sort of con- trol ; "^^^ and the same principle applies to the relation of guardian and ward and the other confidential relations. ^^* 154, 27 Am. Rep. 22; Darlington's Appeal, 86 Pa. 512, 27 Am. Rep. 726; Rockafellow v. Newcomb, 57 111. 186; Cadwallader v. West, 48 Mo. 483; Cas- par! V. Church, 82 Mo. 649; Allcord v. Skinner, 36 Ch. Div. 145; Hessick v. Hessick, 1G9 111. 486, 48 N. E. 712; Russell v. Russell, 60 N. J. Eq. 282, 47 Atl. 37. As to master and seiTant, Doran v. McConlogue, 150 Pa. 98, 24 Atl. 357. 233 Sears v. Shafer, 6 N. Y. 268; Fisher v. Bishop, 108 N. Y. 25, 15 N. E. 331, 2 Am. St. Rep. 357; Long v. Mulford, 17 Ohio St. 484, 93 Am. Dec. 638; Leighton v. OiT, 44 Iowa, 679; Haydock v. Haydock's Ex'rs, 34" N. J. Eq. 570, 38 Am. Rep. 385; McCormick v. Malin, 5 Blackf. (Ind.) 509; Todd v. Grove, 33 Md. 188; Cherbonnier v. Evitts, 56 Md. 276; Hansen v. Berthelsen, 19 Neb. 433, 27 N. W. 423; McClure v. Lewis, 72 Mo. 314; Williams v. Collins, 67 Iowa, 413, 25 N. W. 682; Hauna v. Wilcox, 53 Iowa, 547, 5 N. W. 717; Reed v. Peterson, 91 111. 288; NoiTis v. Tayloe, 49 111. 17, 95 Am. Dec. 568; Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668. 234 Smith V. Kay, 7 H. L. Cas. 750, 779. See, also, Knott v. Tidyman, 86 Wis. 164, 56 N. W. 632. 28BArcher v. Hudson, 7 Beav, 560; Ashton v. Thompson, 32 Minn. 25, 18 N. W. 918; Noble's Adm'r v. Moses, 81 Ala. 530, 1 South. 217, 00 Am. Rep. 175 ; Miller v. Simonds, 72 Mo. 669 ; Wliite v. Ross, 160 111. 56, 43 N. E. 336. aae Rhodes v. Bates, L. R. 1 Ch. 252; Mitchell v. Homfray, 8 Q. B. Dlv. 587. §§ 145-146) UNDUE INFLUENCE, 251 Mental Weakness. Mere weakness of intellect, not so great as to render the person non compos mentis, will not of itself affect the validity of a contract.^^^ If, however, the other party has taken advantage of such weakness, and by the use of fraud and undue influence has made an unfair con- tract, it will be set aside.-^^ Personal Influence Absent — Advantage Taken of Another's Necessi- ties and Distress. The doctrine of undue influence has been extended to a class of cases from which the element of personal influence is altogether absent. They all appear to possess these common features, namely, that the promisor incumbers himself with heavy liabilities for the sake of a small gain, or, at any rate, an inadequate present gain ; and the prom- isee takes advantage either of the improvidence and moral weakness, or else of the ignorance and unprotected situation of the promisor, or, as stated in the black-letter text, takes an unfair advantage of the prom- isor's weakness of mind,^^" or of his necessities and distress. ^**' The law has attempted by statute in some jurisdictions, as in case of the usury laws, to guard against advantage being taken against persons in such a situation, and courts of equity at one time adopted a rule that purchasers of any reversionary interest might always be called upon to show that they had given full value for their bargains, so that they might not take advantage of a man's present necessities to deprive him of his future estates without reasonable return.-*^ The usury laws do not exist in all jurisdictions, and the rule as to reversionary interests has been, to a great extent, abrogated by statute in England, and is recognized in very few cases with us. If, however, a man, even in the absence of usury laws, tal4; Moncrieff v. Golds- borough, 4 Har. & McH. (Md.) 281, 1 Am. Dec. 407; Curtis v. Aspinwall, 114 Mass. 187; Peck v. List, 23 W. Va. 338, 48 Am. Rep. 398; Pennock's Appeal, 14 Pa. 446, 53 Am. Dec. 561; Staines v. Shore, 16 Pa. 200, 55 Am. Dec. 492. 10 Otherwise if the bidder, though employed by one interested in the sale, can be compelled by the auctioneer to take the property. McMillan v. Har- ris, 110 Ga. 72, 35 S. E. 334, 48 L. R. A. 345, 78 Am. St. Rep. 93. 11 GIBBS V. SMITH, 115 Mass. 592; Ray v. Mackin, 100 111. 246; Doolin V. Ward, 6 Johns. (N. Y.) 194; Atcheson v. Mallon, 43 N. Y. 147, 3 Am. Rep. 678; Barton v. Benson, 126 Pa. 431, 17 Atl. 642, 12 Am. St. Rep. 883; Gardiner V. Morse, 25 Me. 140; Goldman v. Oppenheim, 118 Ind. 95, 20 N. E. 635; Wooten V. Hinkle, 20 Mo. 290; Atlas Nat Bank v. Holm, 71 Fed. 489, 19 C. C. A. 94 ; De Baun v. Brand, 60 N. J. Law, 283, 37 Atl. 726 ; Hallam v. Huff- man, 5 Kan. App. 303, 48 Pac. 602; McClelland v. Bank, 60 Neb. 90, 82 N. W. 319. 12 GIBBS v. SMITH, 115 Mass. .592; Smith v. Ulman. 58 Md. 183. 42 Am. Rep. 329; I'hippen v. Stickuey, 3 Mete. (Mass.) 388: Garrett v. Moss, 20 111. 549; Marie v. Garrison, 83 N. Y. 14; Smull v. Jones, 1 Watts & S. (Pa.) § 151) AGREEMENTS IN VIOLATION OF rOSlTIVE LAW. 259 Same — Publication of Libel. Since it is a civil wrong to publish a libelous book or article, even when it does not constitute a crime, an agreement contemplating such a publication is illegal. No action will lie, therefore, to recover com- pensation for printing or publishing a libelous book, or for breach of a contract to print or publish it, or on an agreement to indemnify against liability for publishing it.^' In order to render such a con- tract illegal, "it should appear that there was an intention on the part of the author and publisher to write and publish libelous matter ; or that the author proposed, with the knowledge and acquiescence of the publisher, to write libelous matter; or that the contract on its face provided for or promoted an illegal act." ^* Same — Illegality Distinguished from Fraud. Fraud is a civil wrong, and an agreement to commit a fraud is an agreement to do an illegal act ; but fraud as a civil wrong must be kept apart from fraud as a vitiating element in contract. Fraud may vitiate a contract because it prevents the consent of the other from being genuine; and in such case the contract can be avoided by the party defrauded, because his consent was unreal. SAME— AGREEMENTS IN BREACH OF STATUTE— CONSTITU- TIONAL LAW. 151. The legislature, in the exercise of its police power, may regulate or prohibit the making of contracts. The United States, or a state, in the exercise of its police power, may regulate or prohibit the making of contracts where, in the judg- ment of the legislature, the public good requires the restriction, and ordinarily the courts will not review its judgment as to the propriety of the law. There is, however, some limitation to the police power. The federal constitution protects the vested rights of the people, and prohibits congress and the state legislatures from passing any law which shall deprive a citizen of his liberty or property without due process of law. The courts are bound to enforce the constitution even 128; Id., 6 Watts & S. (Pa.) 122; Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; Kearney v. Taylor, 15 How. 494, 14 L. Ed. 787; Wicker v. Hoppock, 6 Wall. 94, 18 L. Ed. 752; Barnes v. Morrison, 97 Va. 372, 34 S. E. 93; Fi- delity Ins. & Safe-Deposit Co. v. Railway Co. (C. O.) 98 Fed. 475 (agreement by bondholders to purchase on foreclosure). 13 Shackell v. Rosier, 2 Bing. N. C. 634; Atkins v. Johnson, 43 Vt. 78, 5 Am. Rep. 260; Arnold v. Clifford, 2 Sumn. 238, Fed. Cas. No. 555; Ives y. Tones, 25 N. C. 538, 40 Am. Dec. 421; Clay v. Yates, 1 Hurl. & N. 78. 14 JEWETT PUB. CO. v. BUTLER, 159 Mass. 517, 34 N. E. 10S7. 260 LEGALITY OF OBJECT. (Oil. 8 as against the legislatures; and if the legislature, assuming to act under the police power of the state, should pass a statute depriving a person of the right to make contracts, where the public good clearly does not require such interference, the statute would be unconstitu- tional and void.^" A discussion of the police power and of its limi- tations, however, in its bearings upon the power of the legislature in this regard, is beyond the scope of this book. SAME— PROHIBITION BY STATUTE. 152. In determining xrhetlier a contract, or an act or omission involved in tlie performance of a contract, is proMbited by statute, the intention of a legislature must be ascertained, and must govern; and in ascertaining the intention tbe court xrill look to tbe language and subject-matter of tbe statute, and tbe evil 'whicli it seeks to prevent. Subject to tMs fundamental rule, the follo^v^ing rules of construction, ivhich are frequently applied, may be stated: Booth V. Bank of England, 7 Clark & F. 509, 540; Bank of U. S. v. Owens. 2 Pet. 527, 536, 7 L. Ed. 508 ; Wells v. People, 71 111. 532. 20 Booth V. Bank of England, snpra. 27 Bank of U. S. v. Owens, 2 Pet 527, 7 L. Ed. 508. § 153) AGREEMENTS IN VIOLATION OF POSITIVE LAW. 2G3 that, if made, it shall not be void, then, if made, it is a contract which the courts must enforce.** Same — Agreements Simply Void and Unenforceable. Where no penalty is imposed, and the intention of the legislature appears to be simply that the agreement is not to be enforced, neither the agreement itself nor its performance is to be treated as unlawful for any other purpose.^' SAIVLE— PARTICULAR AGREEMENTS IN BREACH OF STATUTE. 153. ATiiong the statutes proliibiting agreements, tlie folloMping may be mentioned as the most important: (a) Statutes regrulatiug the conduct of a particular trade, business, or profession, or regulating dealings in particular articles of commerce. (b) Statutes regulating the traffic in intoxicating liquors. (c) Statutes prohibiting labor, business, etc., on Sunday. (d) Statutes prohibiting the taking of usuiry. (e) Statutes prohibiting gaming and xcagers. This head includes statutes prohibiting the buying and selling of stocks or com- modities for future delivery, vrhere the parties intend, not an actual delivery, but a settlement by paying the difference be- t^ireen the market and the contract price. so / (f) Statutes prohibiting lotteries. Li.,^-*'^'^ \ Regulating Trade, Profession, or Business. qJM^ r<-'*>»'*T^ There are numerous statutes in all of the states, enacted for the purpose of protecting the public in dealing with certain classes of traders or professional men, and with certain articles of commerce. Protection to the public is generally the object of these statutes, and they are construed as prohibiting contracts entered into without having complied with the prescribed conditions. As falling within this class may be mentioned statutes imposing a penalty on dealers who fail to have the weights, measures, or scales used by them approved and sealed by the proper ofificer. Such a statute is for the protection of the pubHc against fraud and imposition, and amounts to a prohibition of sales in measures or by weights or scales not sealed, so that a dealer who has made such a sale cannot recover the price.*^ ' tjf 28 Lewis V. Bright, 4 El. & Bl. 917. ^ ^''-^^■^'^--i^^J^isr^ 2 8 Post. p. 332. 80 Independently of statute, wagers on siibjects In which the parties have no interest are, in this coimtry, generally held illegal, as being contrary to public policy. Post, p. 276. 31 Miller v. Post, 1 Allen (INIass.) 434; BISBEE v. McALDEN, 39 Minn. 143, 39 N. W. 299; Finch v. Barclay, S7 Ga. 393, 13 S. E. 566; Eaton v. K^^s^, 114 aiass. 433. 204 LEGALITY OF OBJECT. (Ch. 8 Falling within this class are also statutes requiring professional men, such as lawyers, physicians and surgeons, and others, to procure a license, certificate, or diploma as a condition precedent to the right to engage in the practice of their profession. These statutes are in- tended to protect the public against incompetent and unqualified prac- titioners, and a person coming within the statute cannot recover for his services if he has not complied with its provisions.^* There are also, in most of the states, statutes regulating dealings with certain articles of commerce. They are designed either for the protection of the public against fraud or imposition from the sale of a spurious article, or for the protection of the public health against adulterated articles of food, or dangerous substances, such as powder and poisons.^* Sales of fertilizers, for instance, have been held illegal where the article was not inspected or labeled as required by statute.^* In many of the states there are statutes prohibiting the employment of young children in factories, and a contract for such employment would be illegal, so that a father could not recover for the services of a child so employed.^" 82 Lawyers. Hall v. Bishop, 3 Daly (N. Y.) 109; Ames v. Gilman, 10 Mete. (Mass.) 239; Hittson v. Brown, 3 Colo. 304. But see Yates v. Robertson, 80 Va. 475; Harland v. Lilienthal, 53 N. Y. 438. Physicians and surgeons. Bailey v. Mogg, 4 Denio (N. Y.) 60; Alcott v. Barber, 1 Wend. (N. Y.) 526; Orr V. Meek, 111 Ind. 40, 11 N. E. 787; Coyle v. Campbell, 10 Ga. 570; Puck- ett T. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43; Davidson v. Bohl- man, 37 Mo. App. 576; Richardson v. Dorman, 28 Ala. 679; Jordan v. Dayton, 4 Ohio, 295; Underwood v. Scott, 43 Kan. 714, 23 Pac. 942; Holmes v. Halde, 74 Me. 28, 43 Am. Rep. 567; Dow v. Haley, 30 N. J. Law, 354; Adams v. Stewart, 5 Har. (Del.) 144; Haworth v. Montgomery, 91 Tenn. 16, 18 S. W. 399; Hargan v. Pm-dy, 93 Ky. 424, 20 S. W. 432; Roberts v. Levy (Cal.) 31 Pac. 570. Unlicensed real-estate broker. Buckley v. Humason, 50 Minn. 195, 52 N. W. 385, 16 L. R. A. 423, 36 Am. St. Rep, 637; Johnson v. Hulings, 103 Pa. 498, 49 Am. Rep. 131; Stevenson v. Ewing, 87 Tenn. 46, 9 S. W. 230. Unlicensed stockbroker. COPE v. ROWLANDS, 2 Mees. & W. 149; Hustis V. Pickards, 27 111. App. 270. School teacher without certificate. Ryan v. School Dist, 27 Minn. 433, 8 N. W. 146; Wells v. People, 71 111. 532. Unquali- fied conveyancer. Taylor v. Gas Co., 10 Exch. 293. Unlicensed plumber. Johnston v. Dahlgren, 31 App. Div. 204, 52 N. Y. Supp. 555. Innkeeper. Ran- dall v. Tuell, 89 Me. 443, 36 Ati. 910, 38 L. R. A. 143. Keeper of stallion. Smith V. Robertson, 106 Ky. 472, 50 S. W. 852 ; Nelson v. Beck, 89 Me. 264, 36 Atl. 374. 33 Sale of oleomargarine. Waterbury v. Egan (City Ct. N. Y.) 3 Misc. Rep. 355, 23 N. Y. Supp. 115; Braun v. Keally, 146 Pa. 519, 23 Atl. 389, 28 Am. St. Rep. 811. 8 4 McConnell v. Kitchens, 20 S. C. 430, 47 Am. Rep. 845; Conley v. Sims, 71 Ga. 161; Johnston v. McConnell, 65 Ga. 129; Baker v. Burton (C. C.) 31 Fed. 401; Williams v. Barfield, Id. 398; Campbell v. Segars, 81 Ala. 259, 1 South. 714. Contra, NIemeyer v. Wright. 75 Va. 239, 40 Am. Rep. 720. 3 Birkett v. Chatterton, 13 R. I. 299, 43 Am. Rep. 30. Under eight-hour law, making violation of act a misdemeanor, an employe cannot recover for overtime. Short v. Mining Co., 20 Utah, 20, 57 Pac. 720, 45 L. R. A. 603. § 153} AGREEMENTS IN VIOLATION OF POSITIVE LAW. 265 Further illustrations of statutes within this class are referred to below. ^" Safue — Traffic in Intoxicating LiquorsV Where a statute in terms prohibits the sale of intoxicating liquors, a contract of sale is of course invalid. Some difficulty has arisen where the statute was not absolutely prohibitory, but merely prescribed certain conditions to be complied with by dealers. An example is where a statute imposes a penalty for selling without a license. It is generally held that such a statute is not merely for purposes of revenue, but is to diminish the evils of intemperance, and prevent disreputable and objectionable persons from engaging in the business, and that sales without a license are prohibited and rendered illegal. "• Somewhat in line with these statutes are those which regulate the conduct of saloons, such as statutes prohibiting billiard tables, bowling alleys, etc., in connection with a saloon. An agreement in breach of such a statute is illegal. A carpenter, for instance, cannot recover the price of erecting a bowling alley in ia building appurtenant to a tavern, where a statute prohibits it from being so kept.^® So, also, under a statute imposing a penalty on any person owning or controlling any premises who shall suffer them to be used for the sale of spirituous liquors, a person who owns a building, and has knowledge that his tenant at will is using the premises for the sale of spirituous liquors, and who permits him to continue in possession, cannot recover for use and occupation.*** Contracts in Breach of Sunday Laws. The common law does not prohibit the making of contracts on Sun- day, and, in the absence of statutory prohibition, such contracts are 88 Loan by pawnbroker who has neglected to comply with statute. Fer- gusson V. Norman, 5 Bing. N. C. 76. Failure of printer to print his namo on the work as required by statute. Bensley v. Bignold, 5 Barn. & Aid. 335. Unlicensed peddlers. Stewartson v. Lothrop, 12 Gray (Mass.) 52. Agreement to construct building not complying with building regulations. Stevens v. Gourley, 7 C. B. (N. S.) 99; Burger v. Roelsch, 77 Hun, 44, 28 N. Y. Supp. 4G0. Failure to measure wood sold, as required by statute. Pray v. Burba uk, 10 N. H. 877. Agreement for threshing grain, where machine is not boxed as required by a statute, intended to prevent Injury to workmen. Dillon v. Allen, 46 Iowa, 299, 26 Am. Rep. 145. Sale of shingles not of size prescribed. Wheeler v. Russell, 17 Mass. 258. 8 7 On this subject, see Black, Intox. I>lq. §§ 242-276. 88 Griffith V. Wells, 3 Denio (N. Y.) 226; Territt v. Bartlett, 21 Vt. 184; AIKEN v. BLAISDELL, 41 Vt. 655; O'Bryan v. Fitzpatrick, 48 Ark. 487. 3 S. W. 527; Vannoy v. Patton, 5 B. Mon. (Ky.) 248; Solomon v. Dreschler, 4 Minn. 278 (Gil. 197); Lewis v. Welch, 14 N. H. 294; Cobb v. Billings. 23 Me. 470; Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605; Bach v. Smith, 2 Wash. T. 145, 3 Pac. 831. 89 Spurgeon v. McEhvain, 6 Ohio, 442, 27 Am. Dec. 26G. *o Mitchell v. Scott, 62 N. H. 596. Post, p. 82a 26G LEGALITY OF OBJECT. (Ch. 8 as valid as if made on any other day.*^ In most states, however, stat- utes have been enacted on the subject.*^ Where the statute expressly prohibits the making of contracts on Sunday, and declares that they shall be void, there should be no difficulty in applying it; *^ and, if a statute prohibits servile v^ork and labor on Sunday, there can of course be no recovery for such work.** Where it is provided that no person shall do any labor, work, or business on Sunday, all secular business is prohibited. Not only would a contract to do work on Sunday, made on some other day, be illegal because of the object, but a contract made on Sunday to work on another day would be likewise prohibited. The making of a contract is secular business, within the meaning of the statute. *^ But where the prohibition is only against servile work and labor, the making of contracts, including the execution of commercial paper, is not gen- erally regarded as included.*" Again, if the prohibition is confined to 41 Story V. Elliott, 8 Cow. (N. Y.) 27, 18 Am. Dec. 423; Sayles v. Smith, 12 Wend. (N. Y.) 57, 27 Am. Dec. 117; Richmond v. Moore, 107 111. 429, 47 Am. Rep. 445; Bloom v. Richards, 2 Ohio St. 387; Swann v. Swann (C. C.) 21 Fed. 299; Adams v. Gay, 19 Vt 358; Brown v. Browning, 15 R. I. 422, 7 Atl. 403, 2 Am. St. Rep. 90S. 4 2 Sunday laws are not an unconstitutional interference with the religious liberty of the people. State v. O'Rourk, .35 Neb. 614, 53 N. W. 591, 17 L. R. A. 830; State v. Judge, 39 La. Ann. 132, 1 South. 437; Scales v. State, 47 Ai'k. 476, 1 S. W. 769, 58 Am. Rep. 768; Petit v. Minnesota, 177 U. S. 164, 20 Sup. Ct. 660. 44 L. Ed. 716 ; Heunington v. State, 163 U. S. 299, 16 Sup. Ct 1086, 41 L. Ed. 166 ; State v. Powell. 58 Ohio St. 324. i'>0 N. E. 900. 41 L. R. A. 854. 4 3 Burns v. Moore, 76 Ala. 339, 52 Am. Rep. 332. In Maine, and probably in some of the other states, the statute provides that the defense that a con- tract was executed on Sunday cannot be made to an action thereon unless the consideration is returned. Wentworth v. Woodside, 79 ISIe. 156, 8 Atl. 763: First Nat Bank v. Kingsley, 84 Me. Ill, 24 Atl. 794; Wheelden v. Ly- ford, 84 Me. 114, 24 Atl. 793. 44 Watts V. Van Ness, 1 Hill (N. Y.) 76. 4 5 Northrup v. Foot, 14 Wend. (N. Y.) 248; Pattee v. Greely, 13 Mete. (IVIass.) 284; Towle v. Larrabee, 26 Me. 464; Lyon v. Strong, 6 Vt. 219; Varney v. French, 19 N. H. 233; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252; Id., 25 Atl. 474; Calhoun v. Phillips, 87 Ga. 482, 13 S. E. 593; Goss v. Whitney, 27 Vt. 272; Kepner v. Keefer, 6 Watts (Pa.) 231, 31 Am. Dec. 460; Smith v. Railway Co., 83 Wis. 271, 50 N. W. 497: Brazee v. Bryant, 50 Mich. 136, 15 N. W. 49; Durant v. Rhener, 26 Minn. 362, 4 N. W. 610. A notice to a tenant. Cannon v. Ryan, 49 N. J. Law, 314, 8 Atl. 293. Indorsement of note. First Nat. Bank v. Kingsley, 84 Me. Ill, 24 Atl. 794. Selling of soda water by a druggist is "worldly employment." Splane v. Commonwealth (Pa. Sup.) 12 Atl. 431. Extension of time of payment of debt. Rush v. Rush (N. J. Ch.) 18 Atl. 221. Casual execution of note is not "labor." Hoklen v. O'Brien, 86 Minn. 297, 90 N. W. 531. 4 6 Birks V. French, 21 Kan. 238; Richmond v. Moore, 107 111. 429. 47 Am. Rep. 445; Boynton v. Page, 13 Wend. (N. Y.) 425. Contra, REYNOLDS v. STEVENSON. 4 Ind. 619; Link v. Clemmens, 7 Blackf. (Ind.) 479. Sale of tickets by manager of theater, and superintending Sunday performance, is § 153) AGIIEEMENTS IN VIOLATION OF POSITIVE LAW. 267 labor, business, or work of a man's "ordinary calling," contracts or other business or work on Sunday by a person is not illegal unless it is within his ordinary calling.'''' A real-estate broker or lawyer, there- fore, would not violate the statute by purchasing or selling a horse on Sunday. If the statute prohibits the exposure of merchandise for sale on Sunday, the prohibition extends only to public sales, and does not prevent private contracts of sale without such exposure.** Same — Works of Necessity or Charity. In all of the states the statutes expressly except from the prohibition W^ks ofnecessity or charity, but as to what constitutes a work of necessity or charity the authorities are somewhat conflicting. As a rule, whatever must be done in order to preserve life or health *" or ^iroperty,'^" and must be done on Sunday if done at all, is a work of -ne££5^jty.^^ If property is in imminent danger, work may be done "laboring." Quarles v. State, 55 Ark. 10, 17 S. W. 269, 14 L. R. A. 192. Run- ning excursion steamboat is "worldly employment." Commonwealth v. Rees, 10 Pa. Co. Ct. R. 545. Acknowledgment of debt barred by statute of limita- tions. Thomas v. Hunter, 29 Md. 406. Athletic games and sports are not \\ithin the prohibition against labor. St. Louis Agr. & Mech. Ass'n v. Delano, 37 Mo. App. 284 ; Id., 108 Mo. 217, 18 S. W. 1101. 4 7 Hazard v. Day, 14 Alien (Mass.) 487, 92 Am. Dec. 790 (construing the Rhode Island statute); Allen v. Gardner, 7 R. I. 22; Amis v. Kyle, 2 Yerg. (Tenn.) 31, 24 Am. Dec. 463; Sanders v. Johnson, 29 Ga. 526; Mills v. Wil- liams, 16 S. C. 593 ; Hellams v. Abercromble, 15 S, C. 110, 40 Am. Rep. 684 ; Swann v. Swann (C. C.) 21 Fed. 299. 4« Boynton v. Page, 13 Wend. (N. Y.) 425; Batsford v. Every, 44 Barb. (X. Y.) 618. See, also. Ward v. Ward, 75 Minn. 269. 77 N. W. 965. But public exposure and sale of newspapers is within the statute. Smith v. Wilcox. 24 N. Y. 353, 82 Am. Dec. 302. *8 Smith V. Watson, 14 Vt. 332; Aldrich v. Blackstone, 128 Mass. 148. 60 Johnson v. People, 42 111. App. 594 (reaping held of grain); Whitcomb v. Gllmaii, 35 Vt 297; Parmelee v. Wilks, 22 Barb. (N. Y.) ,^)39; State v. McBee, 52 W. Va. 257, 43 S. E. 121. 51 "By the word 'necessity' in the exception "we are not to understand a physical and absolute necessity ; but a moral fitness or propriety of the work and labor done, vmder the circumstances of any particular case, may well be deemed necessity within the statute." Flagg v. Inhabitants, 4 Cush. (Mass.) 243. And see Burns v. Moore, 76 Ala. 339, 52 Am. Rep. 332. The following con- tracts have been held to be within the exceptions: Contract securing in- demnity from an absconding debtor pursued and overtaken on Sunday. Hooper v. Edwards, 18 Ala, 280. Repairing railroad tracks. Yonoski v. State, 79 lud. 393. 41 Am. Rep. 614. Bail bond. Hammons v. State, 59 Ala. 164, 31 Am. Rep. 13. Repairing defect in highway. Flagg v. Inhabitants, supra. Shoeing horses used in carrying mail. Nelson v. State, 25 Tex. App. .599, 8 S. W. 927. Loading vessel where there is danger of navigation closing. Mc- Gatrick v. Wason, 4 Ohio St. 566. Pumping oil well; whether a work of ne- cessity is a question of fact. Commonwealth v. Gillespie, 146 Pa. 546, 23 Atl. 393. Transportation of cattle by a railroad company, so that it cannot excuse itself for delay on the ground that the delay was on Sunday. Philadelphia, W. & B. R. Co. V. Lehman, 56 Md. 209, 40 Ajn. Rep. 415. Riding for exercise. 268 LEGALITY OF OBJECT. (Ch. 8 on Sunday to save it. If, however, the work is only to prevent loss on a secular day, as where a mill wheel is cleaned on Sunday because to do so on another day will make it necessary to shut down and stop work for the purpose, it is not a work of necessity. ^^ Any act con- nected with religious worship,^^ or for the relief of suffering or dis- tress,^* is an act of charity, and may be performed on Sunday. Same — Incomplete Transactions. The fact that negotiations are carried on, and the terms of a con- tract agreed upon, on Sunday, where the contract is not really made until a week day, does not render the contract illegal.^^ A promissory Sullivan v. Railroad Co., 82 Me. 196, 19 Atl. 169, 8 L. R. A. 427. Telegram from liusband to wife explaining absence. Burnett v. Telegraph Ck)., 39 Mo. App. 599. Telegram to physician. W. U. Tel. Co. v. Griffin, 1 Ind. App. 46, 27 N. E. 113. Telegram annoimcing death of father. W. U. Tel. Co. v. Wilson, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23. Transaction of business by benefit association. Pepin v. Soci6t# (R. I.) 54 Atl. 47, 60 L. R. A. 620. The following have been held not within the exception: Note given to procure discharge of person arrested on charge of bastardy. Shippy v. Eastwood, 9 Ala. 198. Telegram respecting ordinary business affairs. W. U. Tel. Co. v. Yopst (Ind. Sup.) 11 N. E. 16. Publication and sale of newspaper. HANDY V. PUBLISHING CO., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St Rep. 695; Commonwealth v. Matthews, 12 Pa. Co. Ct R. 149, 22 Pittsb. Leg. J. (N. S.) 309; Id., 152 Pa. 160, 25 Atl. 548, 18 L. R. A. 761. Shaving and cutting or di'essing hair by a barber. Phillips v. Innes, 4 Clark & F. 234; State v. Schuler, 23 Wkly. Law Bui. 450; State v. Sopher, 25 Utah, 318, 71 Pac. 482, 60 L. R. A. 468. But see, contra, Ungericht v. State, 119 Ind. 379, 21 N. E. 1082, 12 Am. St Rep. 419; Stone v. Graves, 145 Mass. 353, 13 N. E. 906. Sale of meat by butcher. Arnheiter v. State, 115 Ga. 572, 41 S. E. 989, 58 L. R. A. 392. Tobacco is not within exception allowing sale of "drugs or medicines, provisions, or other articles of immediate ne- cessity." State V. Ohmer, 34 Mo. App. 115. C2 McGrath v. Merwin, 112 Mass. 467, 12 Am. Rep. 119. And see, to the same effect Hamilton v. Austin, 62 N. H. 575. Contra, Hennersdorf v. State, 25 Tex. App. 597, 8 S. W. 926, 8 Am. St Rep. 448. 5 3 Church subscriptions made on Sunday are enforceable, see Allen v. Duffie, 43 Mich. 1, 4 N. W. 427, 38 Am. Rep. 159; Bryan v. Watson, 127 Ind. 42, 26 N. E. 666, 11 L. R. A. 63; Dale v. Knepp, 98 Pa. 389, 38 Am. Rep. 165, note, 42 Am. Rep. 624; Hodges v. Nalty, 113 Wis. 507, 89 N. W. 535. But see Catlett v. Trustees, 62 Ind. 365, 30 Am. Rep. 197. Where a carriage is hired on Sunday, the contract is not made legal "because the hirer did a kind act by conveying a young lady home who had been 'to meeting' during the day." TILLOCK v. WEBB, 56 Me. 100. 64 Buck v. City of Biddeford, 82 Me. 433, 19 Atl. 912. 6 5 Taylor v. Young, 61 Wis. 314, 21 N. W. 408; McKinnIs v. Estes, 81 Iowa, 749, 46 N. W. 987; Tuckerman v. Hinkey, 9 Allen (Mass.) 452; Dickinson v. Richmond, 97 Mass. 45; Love v. Wells, 25 Ind. 503, 87 Am. Dec. 375; Uhler V. Applegate, 20 Pa. 140; Beitenman's Appeal, 55 Pa. 183; Meriwether v. Smith, 44 Ga. 541; Bryant v. Booze, 55 Ga. 438; Tyler v. Waddington, 58 Conn. 375, 20 Atl. 335, 8 L. R. A. 057; Merrill v. Downs, 41 N. H. 72; Stack- pole V. Symonds, 23 N. II. 229; Moseley v. Vanhooser, 6 Lea (Tenn.) 286, 40 Am. Rep. 37; Butler v. Lee, 11 Ala. 885, 40 Am. Dec. 230. That bill of sale § 153) AGREEMENTS IN VIOLATION OF POSITIVE LAW. 2G9 note, for instance, or a deed, though written and signed on Sunday, is vahd if delivered on Monday, since it does not take effect until delivery ; "* and a sale of goods, though the negotiations are on Sun- day, is valid if the goods are not set apart and delivered until Monday." Same — Ratification. Whether a contract made on Sunday is capable of ratification is a question on which there is much conflict of authority. Upon principle, it seems that the contract, being void in its inception, is incapable of ratification, and many cases so hold.''* There is a tendency, however, to avoid the hardship resulting from the invalidity of such contracts, and many cases declare that such contracts are capable of ratification.^" Where the contract is one of sale or exchange accompanied by actual delivery, there is authority to the effect that the property does not pass, and that the seller may maintain replevin '° or trover;®^ in is made on Sunday, in pursuance of sale made on previous day, does not in- validate sale. Foster v. Wooten, 67 Miss. 540, 7 South. 501. But see Hanctiett V. Jordan, 43 Minn. 149, 45 N. W. 617. 5 6 King V. Fleming, 72 111. 21, 22 Am. Rep. 131; Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331 ; Hill v. Dunham, 7 Gray (Mass.) 543 ; Stacey v. Kemp, 97 Mass. 166; Lovejoy v. Whipple, IS Vt. 379, 46 Am, Dec. 157; Hilton v, Houghton, 35 Me. 143; Gibbs & Sterrett Mfg. Co. v. Brucker, 111 U. S. 59V, 4 Sup, Ct, 572, 28 L. Ed. 534; Schwab v. Rigby, 38 Minn. 395, 38 N. W. 101; Dohoney v. Dohoney, 7 Bush (Ky.) 217; Beman v. Wessels, 53 Mich, bid; 19 N, W. 179; Wilson v. Winter (C. C.) 6 Fed. 16. So, where one of two partners executes an assignment on Sunday, but the other partner executes and delivers it on a secular day, the instrument is valid. Farwell v. Webster, 71 Wis. 485, 37 N. W. 437. B7 Rosenblatt v. Townsley, 73 Mo. 536; Banks v. Werts, 13 lud. 203. 58 Day V. McAllister, 15 Gray (Mass.) 4.33; Allen v. Deming, 14 N. H. 133, 40 Am. Dec. 179; Winrteld v. Dodge, 45 Mich. 355, 7 N. W. 906, 40 Am. Rep. 476; TILLOCK v. WEBB, 56 Me. 100; Plaisted v. Palmer, 63 Me. 570; Kountz V. Price, 40 Miss. 341; Grant v. McGrath, 56 Conn. 333, 15 Atl. 370; Vinz V. Beatty, 61 Wis. 645, 21 N. W. 787; Riddle v. Keller, 61 N. J. Eq. 513, 48 Atl. 818; Acme Electrical, etc., Co. v. Van Derbeck, 127 Mich. 341, 80 N. W. 786; Tennent-Stribling Shoe Co. v. Roper, 94 Fed. 738, 36 C. C. A. 455. 5 9 Russell v. Murdock, 79 Iowa, 101, 44 N. W. 237, 18 Am. St. Rep. 348 ; Kuhns v. Gates. 92 Ind. 66; Adams v. Gay, 19 Vt. 358; Parker v. Pitts, 73 Ind. 597, 38 Am. Rep. 155; Banks v. Werts, 13 Ind. 203; Gwinn v. Simes, Gl Mo. 335; Wilson V. Milligan, 75 Mo. 41; Campbell v. Young, 9 Bush (Ky.) 245; William- son V. Brandenberg, 6 Ind. App. 97, 32 N. E. 1022; Sumner v. Jones, 24 Vt. 317; Flinn v. St John, 51 Vt. 334; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771 ; Van Hoven v. Irish (C. C.) 10 Fed. 13, 3 McCrary, 443 ; Cook v. Forker, 193 Pa. 461, 44 Atl. 560, 74 Am. St Rep. 699. 00 Tucker v. Mowray, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355, 7 N, W. 906, 40 Am. Rep. 476. See, also, Magee v. Scott 9 Cush, 148, 55 Am. Dec. 49. Contra, Smith v. Bean, 15 N. II. 577, 578 ; Kinney v. McDermott 55 Iowa, 674, 8 N. W. 656. See, also, SIMPSON v. NICHOLS, 3 M. & W. 244, as cor- rected in 5 M. & W. 702 (questioning Williams v. Paul, 6 Bing. 653). ci Ladd V. Rogers, 11 Allen, 209. See, also, Myers v. Meinrath. 101 Mass. 366, 369, 3 Am. Rep. 368; Hall v. Corcoran, 107 Mass, 251, 9 Am, Rep. 30; Cranson v, Goss, Id. 439, 441, 9 Am. Rep. 45. 270 LEGALITY OF OBJECT. (Ch. 8 which case it seems that a sufficient consideration for a new promise to pay may be found in the consent of the seller to the transfer of the property at the time of such promise; the liability of the promisor resting, however, upon a new contract, and not upon the ratification of the original contract.®^ So, if a sale is made on Sunday, but the goods are not delivered until a week day, the buyer is liable, not upon the original promise, but upon an implied promise to pay for the goods. °^ A contract made on a previous day cannot be rescinded on Sunday.'* Usii^ry. At common law a man could contract for and recover any amount of interest for a loan of money that the borrower might be willing to give ; but, to protect persons in necessity against unconscionable exactions, usury laws have been enacted in most of the states, prescribing a legal rate of interest. In some states the contract in which usury is charged is declared void. In many states the contract is not void, but the entire interest is forfeited. In other states only the excess of interest charged is for- feited ; the legal amount is nevertheless recoverable. Difficult questions arise in determining what amounts to usury. The following general rules may be stated : In the first place there must be a lending and borrowing of money. If it is so understood by the parties, no shifting or contrivance for the purpose of disguising the real nature of the transaction can avail to evade the statute; and, on the other hand, if it was not a borrowing and lending, it cannot be brought within the statute.^ ^ The parties to a contract, for instance, 62 Winfleld v. Dodge, 45 Mich. 355, 7 N. W. 906, 40 Am. Rep. 476; Haacke V. Knights of Liberty, 76 Md. 429, 25 Atl. 422; Brewster v. Banta, 66 N. J. Law, 367, 49 Atl. 718. An action may be maintained on a new promise. Williams v. Paul, 6 Bing. 653; Harrison v. Colton. 31 Iowa, 16; Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605. See Winchell v. Gary, 115 Mass. 560, 15 Am. Rep. 151. Contra, Bontelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 152; Kountz v. Price, 40 Miss. 341. 6 3 Bradley v. Rea, 14 Allen, 20; Id., 103 Mass. 188, 4 Am. Rep. 524; Hopkins V. Stefan, 77 Wis. 45, 45 N. W. 676 ; Flynn v. Columbus Club, 21 R. I. 534, 45 Atl. 551; Bollin v. Hooper, 86 Mich. 287, 86 N. W. 795. The delivery must be accompanied by circumstances showing new contract. Aspell v. Hosbein, 98 Mich. 117, 57 N. W. 27. Defendant, who was indebted to plaintiff, agreed on Sunday to furnish a laborer on Monday to help plaintiff's son thresh, on plaintiff's account, which he did, and the son paid plaintiff a sum, which the latter placed to defendant's credit. Held, that the transaction on Mon- day did not show the elements of a contract without relying on the Sunday transaction, and hence was not sufficient to take the account out of the statute of limitations. Pillen v. Erickson, 125 Mich. 68, 83 N. W. 1023. «4 Benedict v. Batchelder, 24 Mich. 425, 9 Am. Rep. 130. er. Tyson v. Rickard, 3 Har. & J. (Md.) 109, 5 Am. Dec. 424; Price v. Camp- bell, 2 Call (Va.) 110, 1 Am. Dec. 535; Ferguson v. Sutphen, 8 Oilman (111.)- § 153) AGREEMENTS IN VIOLATION OF POSITIVE LAW. 271 may agree on a sum as stipulated damages in case of breach, and it may be recovered, though it exceeds the legal interest on the value of property vv^hich should have been paid.^« So, aJso, on a loan of chat- tels, the agreed compensation may be recovered, though it exceeds what would be the legal rate of interest on the value of the chattel ; ®^ and, after a negotiable instrument has been executed and delivered, it is not usury for a person to buy it from the holder at a discount greater than the legal rate of interest, except, according to some opin- ions, in the case of accommodation paper.**^ In neither of these cases is there a loan or forbearance of money.*"' As already said, however, the contract must be made bona fide, and not as a cover for a loan.''*' 547; Osborn v. McCowen, 25 111. 218; Struthers v. Drexel, 122 U. S. 487, 7 Sup. Ct. 1293, 30 L. Ed. 1216; Gaither v. Clai-ke, 67 Md. 18, 8 Atl. 740; Hart- lanft V. Uhlinger, 115 Pa. 270, 8 Atl. 244; Lukens v. Hazlett, 37 Minn. 441, 35 N. W. 265; Pope v. Marshall, 78 Ga. 635, 4 S. E. 116; Drury v. Wolfe, 34 111. App. 23; Id., 134 111. 294, 25 N. E. 626. Money paid above the legal rate for the forbearance of an existing debt is usury. Hatliaway v. Hagau, 59 Vt. 75, 8 Atl. 678. Charging "banker's commission." Bowdoin v. Hammond, 79 Md. 173, 28 Atl. 769. An agreement by which a party lends bonds and the bor- rower agrees to pay to the owner the interest paid by the government, and 6 per cent, in addition, is not a contract for the loan of money. Marshall v. Rice, 85 Tenn. 502, 3 S. W. 177. Loans by building and loan association. Jackson v. Cassidy, 68 Tex. 282, 4 S. W. 541; Tilley v. Association (C. C.) 52 Fed. 618; Succession of Latchford, 42 La. Ann. 529, 7 South. 628; Hensel v. Association, 85 Tex. 215, 20 S. W. 116; International Bldg. & Loan Ass'n v. Abbott, 85 Tex. 220, 20 S. W. 118; Sullivan v. Association, 70 Miss. 94, 12 South. 590; Reeve v. Association, 56 Ark. 335, 19 S. W. 917, 18 L. R. A. 129; Iowa Savings & Loan Ass'n v. Heidt, 107 Iowa, 356, 77 N. W. 1050, 43 L. R. A. 689, 70 Am. St. Rep. 197; Washington Nat. Building, Loan & Investment Ass'n v. Stanley, 38 Or. 319, 63 Pac. 489. 58 L. R. A. 816, 84 Am. St. Rep. 793. Four things, It is said, are necessary to constitute usury: (1) A loan, ex- press or implied; (2) an understanding between the parties that the money shall be or may be returned ; ^3) th_at for such_loan a greater rate of interest than is allowed by law sha ll be paid , or agreed to be paid; and (4) a corrupt i ntent to take more than the legal rate for the use of the sum loaned. Bal- four v. Davis, 14 Or. 47, 12 Pac. 89. «6 Tardeveau v. Smith's Ex'r, Hardin (Ky.) 175; Blackburn v. Hayes, 59 Ark. 366, 27 S. W. 240. Yls. 290, 37 N. W. 259. And see Harris v. White, 81 N. Y. 532; Misuer v. Knapp, 13 Or. 135, 9 Pac. 65, 57 Am. Rep. 6; Belief V. Society, 57 Iowa, 481, 10 N. W. 872; Alvord v. Smith, 63 Ind. 58; People T. Fallon, 152 N. Y. 12, 46 N. E. 296, 37 L. R. A. 227, 57 Am. St. Rep. 492; Hankins v. Ottinger, 115 Cal. 454, 47 Pac. 254, 40 L. R. A. 76; Wilkinson v. Stitt, 175 Mass. 581, 56 N. E. 830. In some states the offer of such rewards or premiums is prohibited in certain cases. Brouson Agrieultm'al & B. Ass'n V. Ramsdell, 24 Mich. 441. It is otherwise where the offer of a premium is a mere subterfuge to cover a bet; as where the owners of horses make up a purse, and put it in the hands of a third person to pay to the one of them whose horse shall win. Gibbons v. Gouverueur, 1 Denio (N. Y.) 170. 8 Kulen Kemp v. Vigne, 1 Term R. 304; Dean v. Dicker, 2 Strange, 1250. 81 Clendiniiig v. Church, 3 Gaines (N. Y.) 141 ; Buchanan v. Insurance Co., 6 Cow. (N. Y.) 318 ; Trenton Mut. Life & Fire Ins. Co. v. Johuson, 24 N. J. Law, 576. 2 Stevens v. Warren, 101 Mass. 564; WABNOCK v. DAVIS, 104 U. S. 775, 26 L. Ed. 924; Amory v. Gilman. 2 Mass. 1; Loomis v. Insurance Co., 6 Gray (Mass.) 396; Bersch v. Insurance Co., 28 Ind. 64; Bevin v. Insurance Co., 23 Conn. 244; Sawyer v. Mayhew, 51 Me. 398; Sweeney v. Insurance Co., 20 Pa. 337; Fowler v. Insurance Co., 26 >\ Y. 422; ante, p. 276. 278 LEGALITY OF OBJECT. (Ch. 8 The question as to what amounts to an insurable interest is one more pecuUarly for a work on insurance, and it would be impracti- cable for us to go into it. In the case of marine or fire insurance it is sufficient to say that if a person has any interest in the vessel, cargo, or other property, legal or equitable, so that he would suffer a loss if it should be destroyed, he has an insurable interest.®^ In the case of life insurance it has been said that "all which it seems necessary to show in order to take the policy out of the objection of being a wager policy is that the insured has some interest in the life of the cestui que vie; that his temporal affairs, his just hopes, and well-grounded expectations of support, of patronage, and advantage in life will be impaired; so that the real purpose is not a wager, but to secure such- advantages supposed to depend on the life of another." ^* Same — Futures. b^^Xr^"-' \a ^-*- ^-^A Ux..'-*"^^" An agreement for the sale of stocks, grain, or any other commodity is a gambling contract where the parties do not intend an actual deliv- ery, but agree that at the time fixed for delivery, they shall settle by one of them paying the other the difference between the price agreed upon and the market price at the time of delivery. This is a mere bet or speculation on the rise and fall of the price of the article, and is illegal, not only under the statutes, but in most states even indepen- dently of any statute.^^ The law on this subject was thus stated in a »3 1 Bid. Ins. § 155 et seq. 8 4 Loomis V. Insurance Co., 6 Gray (Mass.) 398; 1 Bid. Ins. § 186 et seq. 9 5 HARVEY V. MERRILL, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Gregoi-y v. Wendell, 39 Mich. 337, 33 Am. Rep. 390; Burt v. Meyer, 71 Md. 467, 18 Atl. 796; Brua's Appeal, 55 Pa. 294; Kingsbm-y v. Kirwan, 77 N. Y. 612; Whitesides v. Hunt, 97 Ind. 191, 49 Am. Rep. 441; Crawford v. Spencer, 92 Mo. 498, 4 S. W. 713, 1 Am. St. Rep. 745; Everingham v. Meigban, 55 Wis. 354, 13 N. W. 269; White v. Barber, 123 U. S. 392, 8 Sup. Ct 221, 31 L. Edv 243; Hatch v. Douglass, 48 Conn. 116, 40 Am. Rep. 154; Dunn v. Bell, 85 Tenn. 581, 4 S. W. 41; Pickering v. Cease, 79 111. 328; Flagg v. Gilpin, 17 R. I. 10, 19 Atl. 1084; Lawton v. Blitch, 83 Ga. 663, 10 S. E. 353; Lester v. Buel, 49 Ohio St. 240, 30 N. E. 821, 34 Am. St. Rep. 556; MOHR v. MIESEN, 47 Minn. 228, 49 N. W. 862; Wagner v. Hildebrand, 187 Pa. 136, 41 Atl. 34; Johnston v. Miller, 67 Ark. 172, 53 S. W. 1052; Counselman v. Reichart. 103 Iowa, 430, 72 N. W. 490; Jamieson v. Wallace, 167 111. 388, 47 N. E. 762, 59 Am. St. Rep. 302; Ponder v. Jerome Hill Cotton Co., 100 Fed. 373, 40 C. C. A. 416 ; Clews v. Jamieson, 96 Fed. 648, 38 C. C. A. 473 r Morris v. Western Union Telegraph Co., 94 Me. 423, 47 Atl. 926; Atwater v. Manville, 106 Wis. 64, SI N. W. 985; Rogers v. Miimott, 59 Neb. 759, 82 N. W. 21. And see cases cited in notes 345, 347, infra. Such transactions are not regarded as contrary to public policy in England, but ai'e held to be gaming and wagering transactions within the meaning of the statute prohibiting such transactions. THACKER v. HARDY, 4 Q. B. Div. 085. It has been held, however, that this class of contracts were not gaming contracts within the meaning of statutes avoiding instruments in the hands of bona Me § 153) AGREEMENTS IN VIOLATION OF POSITIVE LAW. 279 late Massachusetts case : "If, in a formal contract for the purchase and sale of merchandise to be delivered in the future at a fixed price, it is actually the agreement of the parties that the merchandise shall not be delivered and the price paid, but that, when the stipulated time for performance arrives, a settlement shall be made by a payment in money of the difiference between the contract price and the market price of the merchandise at that time, this agreement makes the con- tract a wagering contract. If, however, it is agreed by the parties that the contract shall be performed according to its terms if either party requires it, and that either party shall have a right to require it, the contract does not become a wagering contract because one or both of the parties intend, when the time for performance arrives, not to require performance, but to substitute therefor a settlement by the pay- ment of the difference between the contract price and the market price at that time. Such an intention is immaterial, except so far as it is made a part of the contract, although it need not be made expressly a part of the contract. To constitute a wagering contract, it is suffi- cient, whatever may be the form of the contract, that both parties understand and intend that one party shall not be bound to deliver the merchandise and the other to receive it and to pay the price, but that a settlement shall be made by the payment of the difference in prices." ^® This intention must be common to both parties. If one of them in- tends a bona fide sale, and actual delivery if it shall be required, he may enforce the contract, though the other party may have intended a wager on future prices. ^^ The fact that the seller has not the article holders if given on a gaming consideration. Shaw v. Clark, 49 Mich. 384, 13 X. W. 786, 43 Am. Rep. 474; Third Nat. Bank v. HaiTison (C. C.) 10 Fed. 243. But see, contra, THACKER v. HARDY, 4 Q. B. Div. 685; Cunning- ham v. Bank, 71 Ga. 400, 51 Am. Rep. 266; Grizewood v. Blane, 11 C. B. 526; Lyons v. Hodgen, 90 Ky. 280, 13 S. W. 1076. That they are wagers within the meaning of a statute, see McGrew v. Produce Exchange, 85 Tenn. 572, 4 S. W. 38, 4 Am. St. Rep. 771. 96 HARVEY V. MERRILL, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159. And see Barnes v. Smith, 159 Mass. 344, 34 N. E. 403. But if the circumstances show that tlie transaction was a speculation only, and tliat no delivery was intended, it is void, notwithstanding a rule of the exchange that actual delivery may be exacted. Beadles v. McElrath, 85 Ky. 230, 3 S. W. 152. 97 PIXLEY V. BOYNTON, 79 111. 351; Whitesides v. Hunt, 97 Ind. 191. 49 Am. Rep. 441; Bangs v. Hornick (C. C.) 30 Fed. 97; Jones v. Shale, 34 Mo. App. 302; Scaulon v. Warren, 169 111. 142, 48 N. E. 410; Donovan v. Daiber, 124 Mich. 49, 82 N. W. 848. Otherwise by some statutes. Harvey v. Doty, 54 S. C. 382, 32 S. E. 501. So of the contract between broker and prin- cipal. If the broker is privy to the unlawful intention of the parties, his con- tract with his principal is illegal, and he cannot recover his commissions, etc.; but if he is not privy thereto, his contract is legal. Irwin v. Williar, 110 U. S. 4!.H), 4 Sup. Ct. 160, 28 L. Ed. 225; Bibb v. Allen. 149 U. S. 498, 13 Sup. Ct. 950, 87 L. Ed. 819; HARVEY v. MERRILL, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 280 LEGALITY OF OBJECT. (Ch. 8 sold at the time of the contract does not render the contract void. It is valid if an actual delivery is intended, though he is to buy the article in the market at the time of delivery, and though a margin may have been deposited as security."^' Lotteries. In England, and in most, if not all, of our states, lotteries are pro- hibited by statute. In Webster's Dictionary a "lottery" is defined to be "the distribution of prizes by lot or chance," and this definition has been expressly approved by some of the courts.^^ In an English case the proprietor of a journal had advertised a "missing word competi- tion," the scheme of which was that persons should guess upon the word omitted in a published paragraph, accompanying their guess by a fee, the money so received to be distributed among the successful competitors. The proprietor, after receiving the money, refused to distribute it, and suit was brought against him by a successful com- petitor. It was held that the transaction was a lottery, as the distri- bution was to take place by chance, and that the action could not be maintained,^"** 200, 15 Am. St Rep. 159 ; Barnes v. Smith, 159 Mass. 344, 34 N. E. 403 ; MOHR V. MIESEN, 47 Minn. 228, 49 N. W. 802. 08 story V. Solomon, 71 N. Y. 420; Appleman v. Fisher, 34 Md. 540; Irwin V. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct 950, 37 L. Ed. 819; GregoiT v. Wattowa, 58 Iowa, 711, 12 N. W. 726; Cole v. Milmine, 88 111. 349; Wall v. Schneider, 59 Wis. 352, 18 N. W. 4-13, 48 Am. Rep. .520; Wollcott v. Heath, 78 111. 433; Kahn v. Walton, 46 Ohio St 195, 20 N. E. 203; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S. E. 485, 81 Am. St. Rep. 28. Parol evidence is always admissible to show what was the real intention. Clarke v. Foss, 7 Biss. 540, Fed. Cas. No. 2,852; AVatte v. Wickersham, 27 Neb. 457, 43 N. W. 259; Gaw v. Bennett, 153 Pa. 247, 25 Atl. 1114, 34 Am. St Rep. 699; Hentz v. Jewell (C. C.) 20 Fed. 592. 99 BARCLAY V. PEARSON [1893] 2 Ch. 154; Taylor v. Smetten, 11 Q. B. Div. 210. 100 BARCLAY v. PEARSON [1893] 2 Ch. 154. And see, as to what con- stitutes a lottery, Jackson Steel Nail Co. v. Marks, 4 Ohio Civ. Ct R. 343; Caiuinada v. Hulton, 64 I^aw T. 572; gift enterprises. State v. Boneil, 42 La. Ann. 1110, 8 South. 298, 10 L. R. A. 60, 21 Am. St Rep. 413; Long v. State, 73 Md. 527, 21 Atl. 6S3. 12 L. R. A. 89, 25 Am. St. Rep. 606; Id., 74 Md. 565, 22 Atl. 4, 12 L. R. A. 425, 28 Am. St Rep. 268; People v. Gillson, 109 N. Y. 389, 17 N. E. 843, 4 Am. St. Rep. 465; merchant tailor clubs, State v. Moren, 48 Minn. 555, 51 N. W. 618; prizes to stimulate trade, Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. 708, 45 Am. St. Rep. 303; Lynch v. Rosenthal, 144 Ind. 86, 42 N. E. 1103, 31 L. R. A. 835, 55 Am. St Rep. 168; State v. In- vestment Co., (54 Ohio St. 28.3, 60 N. E. 220, 52 L. R. A. 530. 83 Am. St. Rep. 754. A law prohibiting the giving of trading stamps held violative of liberty guarantied by constitution, since transaction prohibited not a lottery. State v. Ualton, 22 R. I. 77, 46 Atl. 234. 48 L. R. A. 775, 84 Am. St Rep. 818. See, also, Ex parte McKenna, 126 Cal. 429, 58 Pac. 916. §§ lo4r-lo5) AGREEMENTS CONTRARY TO PUBLIC POLICY. 281 A distribution, however, does not constitute a lottery where no con- si deration is paid, directly or indirectly, for the right to participate.^"^ , AGREEMENTS CONTRARY TO PUBLIC POLICY. 154. Any agreement which is contrary to the policy of the law, or pub- lic policy, because of its mischievous nature or tendency, is ille- gal and void, though the acts contemplated may not be expressly prohibited either by the common law or by statute. 155. The test of public policy must be applied in each case as it arises, and therefore agreements which have been or may be declared contrary to public policy cannot be exactly classified. The most general are: (a) Agreements tending to injure the public service. (b) Agreements involving or tending to the corruption of private citizens xpith reference to public matters. (c) Agreements tending to pervert or obstruct public justice. (d) Agreements tending to encourage litigation. (e) Agreements of immoral tendency. (f) Gambling transactions. (g) Agreements tending to induce fraud aoid breach of trust. (h) Agreements affecting the freedom or security of marriage, or otherwise in derogation of the marriage relation. (i) Agreements in derogation of the parental relation. (j) Agreements in unreasonable restraint of trade, including combi- nations to prevent competition, control prices, and create mo- nopolies. (k) Agreements exempting a person or corporation from liability for negligence. There are many things which the law does not prohibit in the sense of attaching penalties, but which are so mischievous in their nature and tendency that, on grounds of public policy, they cannot be ad- mitted as the subject of a valid contract. It is clearly to the interest of the public, however, that persons should not be unnecessarily re- stricted in their freedom to make their own contracts. "You have this paramount public policy to consider: that you are not lightly to interfere with the freedom of contract." ^"^ The interests of the public, however, do require that there shall be some restrictions on the free- dom of persons to enter into contracts. "The common law will not permit individuals to oblige themselves by a contract either to do or not to do anything Avhen the thing to be done or omitted is in any degree clearly injurious to the public." ^°' 101 Yellowstone Kit v. State, SS Ala. 196, 7 South. 3.'«5, 7 L. R. A. 599, 16 Am. St. Rep. 38; Cross v. People. 18 Colo. 321, 32 Pac. 821, 36 Am. St. Rep. 292. 102 Printing & Numerical Registering Co. v. Sampson, L. R. 19 Eq. 462, per Jessel, M. R. 103 West Virginia Transp. Co. v. Pipe-Line Co., 22 W. Va. 600, 46 Am. Rep. 527. 282 LEGALITY OF OBJECT. (Ch. 8 SAME— AGREEMENTS TENDING TO INJURE THE PUBLIC SERVICR 156. Among the agreements xrliicli are illegal as tending to injure the public service may be mentioned — (a) Agreements for the sale of, or other traffic in, a public office, or its emoluments. (b) Agreements by public officers for greater pay than is fixed by law^ for performance of official duty; or for less pay where the services are yet to be performed. (c) Assignment of his future salary, and, under some circumstances, of his pension, by a public officer. (d) Agreements to influence legislation by personal solicitation of the legislators, or other objectionable means. (e) Agreements to procure administrative action by public officers by corrupt means. Some, but not all, courts hold that any agree- ment by a third person, for a compensation, to procure such ac- tion, is illegal, because of its tendency to introduce corrupt means. (f) Agreements by public or quasi public corporations ivhich inter- fere ivith their performance of the duties \phich they oive to the public. As the public has an interest in the proper performance of their duty by pubhc officers, and would be prejudiced by agreements tending to impair an officer's efficiency, or otherwise interfere with the due exe- cution of the duties of the office, such agreements are contrary to public policy and void. Traffic in Public Offices. As stated by Greenhood,*"* therefore, "any contract to appoint one to public office,^*"* or involving the sale of a public ^^^ or quasi pub- lic ^"^ office, or to do anything in consideration of the promisee ex- 104 Greenh. Pub. Pol. rule 287, p. 3c5S. 105 Robertson v. Robinson, ti5 Ala. GIO, 39 Am. Rep. 17; Hager v. Catlln. 18 Him (N. Y.) 448; Stout v. Ennis, 28 Kan. 70G. A contract by an officer, after election, to employ a person as his deputy may be valid. Stout v. Ennis. supra. 106 Hall V. Gavitt, 18 Ind. 300; Card v. Hope, 2 Barn. & C. GGl; Proprietors of Cardigan v. Page, 6 N. H. 183; Town of Meredith v. Ladd, 2 N. H. 517; Love V. Buckner, 4 Bibb (Ky.) 506; Groton v. Inhabitants of Waldoborough, 11 AEe. 30(5, 26 Am. Dec. 530; Martin v. Royster, 8 Ark. 74; Outon v. Rodes, 3 A. K. Marsh. (Ky.) 432, 13 Am. Dec. 193; Engle v. Chipman, 51 Mich. 524, 16 N. W. 886; Alvord v. Collin, 20 Pick. (]klass.) at page 428. The leg- islature may provide for sale of an office. Town of Thetford v. Hubbard, 22 Vt. 440. lOT Blatcliford v. Preston, 8 Term R. 89; Card v. Hope, 2 Barn. & C. 661. I § 156) AGREEMENTS CONTRARY TO PUBLIC POLICY. 283 changing office with,"* or securing an office for "^ the promisor, or recommending him for such office, ^^" or resigning any office,^^^ is void." As tending to injure the pubHc service may also be mentioned agree- ments by which a person not occupying a pubHc office secures to him- self all or any part of its benefits or emoluments.^^^ Other agreements to which this principle applies are agreements by a public officer to pay another for performing the duties of his office for him, for an officer has no authority to delegate his duties to another ;^^' but this does not apply where an officer merely employs a deputy or other pri- vate person to assist him."* Agreements Affecting the Compensation of Public Officers. As we have seen, a promise to pay a public officer for performing duties which he is required by law to perform without such com- pensation, or to pay him more than the fees fixed by law, is void for want of consideration.^^ ^ Such contracts are also illegal as being contrary to public policy.^^* "The rewards of officers," it has been 10 s Stroud V. Smith, 4 Houst (Del.) 448. 109 Gray v. Hook, 4 N. Y. 449; Law v. Law, 3 P. Wms. 391; MEGUIRE V. CORWINE, 101 U. S. Ill, 25 L. Ed. S99; Nichols v. Mudgett, 32 Vt. 546; Martin v. Wade, 37 Cal. 1G8; Huuter v. Nolf, 71 Pa. 282; Morse v. Ryau, 26 Wis. 356; Harris v. Chamberlain, 126 Mich. 2S0, 85 N. W. 728. 110 Hartwell v. Hartwell, 4 Ves. 811; Edwards v. Randle, 63 Ark. 318, 38 S. W. 343, 36 L. R. A. 174, 58 Am. St. Rep. 108. 111 Eddy V. Capron, 4 R. I. 394, 67 Am. Dec. 541; Meacham v. Dow, 32 Vt. 721; Basket v. Moss, 115 N. C. 4-18, 20 S. E. 733, 48 L. R. A. 842, 44 Am. St. Rep. 463. And see Forbes v. McDonald, 54 Cal. 98. 112 Greenh. Pub. Pol. rule 293, p. 349. An agreement by which one party stipulates to pay the other a proportion of the fees and emoluments of a pixblic office which he is seeking, in consideration that that other will aid him in obtaining it, is void. Gray v. Hook, supra. And see Deyoe v. Wood- worth, 144 N. Y. 448, 39 N. E. 375. 113 Engle v. Chipman, 51 Mich. 524, 16 N. W. 886; Schloss v. Hewlett, 81 Ala. 266, 1 South. 263. 13 4 Price V. Caperton, 1 Duv. (Ky.) 207. 1 1 5 Ante, p. 127. 118 Weaver v. Whitney, 1 Hopk. Ch. (N. Y.) 13; Preston v. Bacon, 4 Conn. 471; Neustadt v. Hall, 58 111. 172; Trundle's Adm'r v. Riley, 17 B. Mon. (Ky.) 396; GILIMORE v. LEWIS, 12 Ohio, 281; Brown v. Bank, 137 Ind. 655, 37 N. B. 158, 24 L. R. A. 206; Adams Co. v. Hunter, 78 Iowa, 328, 43 N. W. 208, 6 L. R. A. 615; Foley v. Piatt, 105 Mich. 635, 63 N. W. 520; ante, p. 127, and cases there cited. Bond of indemnity given a sheriff to induce him to do what he was required to do without it. Mitchell v. Vance. 5 T. B. Mon. (Ky.) 528, 17 Am. Dec. 96. Bond indemnifying officer against loss for omitting to execute process. Harrington's Adm'r v. Crawford, 136 Mo. 467, 38 S. W. SO, 35 L. R. A. 477, 58 Am. St. Rep. 653. A public officer is not entitled to reward offered for the arrest which it was his duty to make \\'ith- out pay. SMITH v. WHILDIN, 10 Pa. 39, 49 Am. Dec. 572; GIL:M0RE v. LEWIS, 12 Ohio, 281; POOL v. CITY OF BOSTON, 5 Gush. (Mass.) 219; 284 LEGALITY OF OBJECT. (Ch. 8 said, "are established by law. Their services are to be performed for those legal rewards ; and other private rewards for acts which are required from them * * * rnust be regarded as corrupt and illegal exactions." ^^^ The rule does not apply so as to prevent an officer from recovering on a promise to pay him for doing more than he is required by law to do.^^® It has also been held that an agreement by a public officer, before performance of services, to accept less than the fees fixed by law, is against public policy.^ ^® Assignment of Salary or Pension by OiUcer. The rule also applies to the assignment of their salaries by public officers. One of the reasons given by an English judge was that "it is fit that the public servants should retain the means of a decent sub- sistence, without being exposed to the temptations of poverty." ^^^ It is not regarded as contrary to public policy for an officer to assign his salary after it has become due, but an assignment of it before it is due is void. The reason is that an officer is not apt to be as efficient in the performance of his duties after he has assigned his unearned salary. ^'^^ So, also, the assignment of a pension may be illegal if it is not granted exclusively for past services. "Where the pension is granted, »iot exclusively for past services, but as a consideration for some con- tinuing duty or service, although the amount of it may be influenced Stamper v. Temple, 6 Himiph. (Tenn.) 113, 44 Am. Dec. 2t)G; Da vies v. Bm-ns, 5 Allen (Mass.) 349. ii» Weaver v. Whitney, 1 Hopk. Ch. (N. Y.) 13. ii» Ti-undle v. Riley, 17 B. Mon. (Ky.) 396; McCandless v. Steel Co., 15? Pa. 139, 25 Atl. 579; Carroll v. Tyler. 2 Har. & G. (Md.) 57. An officer may recover a reward offered for apprehension of a criminal, If It was no part 01* his duty to make the arrest. Morrell v. Quarles, 35 Ala. 544; Evans V. Inhabitants of City of Trenton, 24 N. J. Law, 764. 119 Hawkeye Ins. Co. v. Brainard, 72 Iowa, 130, 33 N. W. 603; Edgerly V. Hale, 71 N. H. 138, 51 Atl. G79 (sheriff's fee for service payable only If action successful). Contra, Bloom v. Hazzard. 104 Cal. 310, 37 Pac. 1037. Cf. Peters v. City of Davenport, 104 Iowa, 625, 74 N. W. 6. 120 ^\e\\s V. Foster, 8 Mees. & W. 149. 121 Bliss v. LaAvrence, 48 How. Prac. (N. Y.) 22; Id., 58 N. Y. 442, 17 Am, Rep. 273; Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Bowery Nat. Bank v. Wil- son, 122 N. Y. 478, 25 N. E. 855, 9 L. R. A. 700, 19 Am. St. Rep. 507; Schloss V. Hewlett, 81 Ala. 266, 1 South. 263; State v. Williamson, 118 Mo. 146, 23 S. W. 10.54, 21 L. R. A. 827, 40 Am. St. Rep. 358; Field v. Chipley, 79 Ky. 260, 42 Am. Rep. 215; National Bank of Elpaso v. Fink, 86 Tex. 303, 24 S. W. 256, 40 Am. St. Rep. 883; Brackett v. Blake, 7 Mete. (Mass.) 335; First Nat. Bank v. State (Neb.) 94 N. W. 633. Contra, State Bank v. Hastings. 15 Wi.s. 78. The rule applies to an assignment of his fees by an executor before they are ascertained and fixed as provided by statute. In re Worth- ington. 66 Hun, 033, 22 N. Y. Supp. 19; Id., 141 N. Y. 9, 35 N. E. 929. 23 L. R. A. 97. § 15(3) AGREEMENTS CONTKAKY TO PUBLIC POLICY. 285 by the length of service which the party has already performed, it is against the policy of the law that it should be assignable." ^" Lobbying Contracts. What are known as "lobbying contracts" also fall within this class of illegal agreements. Any agreement to render services in procuring legislative action, either by congress or by a state legislature or by a municipal council, by personal solicitation of the legislators or other objectionable means, is contrary to the plainest principles of public policy, and is void.^-^ "A contract for lobby services," it is said in a New York case, "for personal influence, for mere importunities to mem- bers of the legislature or other official body, for bribery or corruption, or for seducing or influencing them by any other arguments, persua- sions, or inducements than as directly and legitimately bear upon the merits of the pending application, is illegal, and against public policy, and void;" ^^* and it has been held that a promise to pay a contingent fee on the passage of a bill is void, because such a fee is "a direct and strong incentive to the exertion of not merely personal, but sinister, influence upon the legislature." ^^^ 122 Wells V. Foster, 8 Mees. & W. 149. And see Bliss v. Lawrence, 58 N. Y. 422, 17 Am. Rep. 273 (collecting the English cases). Act Cong. Feb. 28, 1883, c. 58, § 2, 22 Stat. 432 [U. S. Comp. St. 1901, p. 3278], makes void any "pledge, mortgage, sale, assignment, or ti'ansfer of any right, claim, or interest in any pension." See Loser v. Board, 92 Mich. 633, 52 N. W. 956. 123 TKIST V. CHILD, 21 Wall. 441, 22 L. Ed. 623; Spalding v. Ewing, 149 Pa. 375, 24 Atl. 219. 15 L. R. A. 727, 34 Am. St. Rep. 608; Frost v. Bel- mont, 6 Allen (Mass.) 152; Rose v. Truax, 21 Barb. (N. Y.) 361; Powers v. Skinner, 34 Vt. 274, SO Am. Dec. 677; McBratney v. Chandler, 22 Kan. 692, SI Am. Rep. 213; Cook v. Shipman, 24 111. 614; Houlton v. Dunn, 60 Minn. 26, 61 N. W. 898, 30 L. R. A. 737, 51 Am. St. Rep. 493; Colusa County r. Welch, 122 Cal. 428, 55 Pac. 243; Hayward v. Manufacturing Co., 85 Fed. 4, 29 C. C. A. 438. "It is not necessary to adjudge that the parties stipu- lated for corrupt action, or that they intended that secret and improper resorts should be had. It is enough that the contract tends directly to those results. It furnishes a temptation to the plaintiff to resort to corrupt means or improper devices to influence legislative action. It tends to subject the legislature to influences destructive of its character, and fatal to public confidence in its action." Mills v. Mills, 40 N. Y. .543, 100 Am. Dec. 535. And see Veazey v. Allen, 173 N. Y. 359, -315. "It was a principle of the common law that trading with an enemy, without the king's license, was illegal in British subjects." Potts v. Bell, 8 Term R. 548. Some writers class such agreements among those in breach of express rules of the common law. 149 McMullen v. Hoffman, 174 U. S. 6S9, 19 Sup. Ct. 839, 43 L. Ed. 1117; Boyle V. Adams, 50 Minn. 255, 52 N. W. SGO, 17 L. K. A. 96; Conway v. Post Co., 190 111. 89, 60 N. B. 82; Baird v. Sheehan, 38 App. Div. 7, 56 N. Y. Supp. 228, affirmed 166 N. Y. 031, 60 N. E. 1107. See, also, Kine v. Turner, 27 Or. 356, 41 Pac. 664. Cf. Hyer v. Traction Co., 108 U. S. 471, 18 Sup. Ct 115, 42 L. Ed. 547; ante. p. 258. 160 Greenh. Pub. Pol. p. 383. 161 Keed v. Warehouse Co., 2 Mo. App. 82. i52pingry v. Washburn, 1 Aikens (Vt.) 264, 15 Am. Dec. 676. This rule does not apply to opposition to private legislation on purely private grounds. Greenh. Pub. Pol. rule 317, p. 38i. 163 Usher v. McBratney, 3 Dill. 38.3, Fed. Cas. No. 16,805. 184 Slocum V. Wooley, 43 N. J. Eq. 451, 11 Atl. 264. 4 § 157) AGREEMENTS CONTRARY TO PUBLIC POLICY. 291 ing or not opposing a public improvement or other public project,^" or withdrawing his petition for such an improvement.^^" Any agreement which tends to impair the integrity of public elec- tions is clearly contrary to public policy/^'' "Every voter is bound to use his influence to promote the public good according to his own honest opinions and convictions of duty, and if, for money or other personal profit, he agrees to exert his influence against what he believes to be for the public good, he is corrupt, and the agreement void." ^^' A promise, therefore, in consideration of the promisee's voting for the promisor for a public office,^ ^^ or procuring his nomination,^®" or aiding in procuring his election,^ ®^ or of withdrawing himself as a candidate for election,^ *^^ or a promise to pay money if a certain candi- date shall be elected, is illegal and void. A bet on the result of an election is illegal even in the absence of a statutory prohibition,^'^ IBB Howard v. Independent Church, 18 Md. 451; Maguire v. Smock, 42 Ind. 1, 13 Am. Rep. 353; Smith v. Applegate, 23 N. J. Law, 352; Doane v. Railway Co., IGO 111. 22, 45 N. E. 507, 35 D. R. A. 588; Greer, Hawes & Co. V. Serer-son, 119 Iowa, 84, 93 N. W. 72 (consent of property holder required by statute to establishment of saloon). Where the opposition is on purely private grounds, it has been held that the rule does not apply. Weeks v. I.ippencott, 42 Pa. 474. Cf. Montclair Military Academy v. Railway Co.^ G5 N. J. Law, 328, 47 Atl. 890. 156 Jacobs V. Tobiason, G5 Iowa, 245, 21 N. W. 590, .54 Am. Rep. 9. 167 A person who furnishes liquor or refreshments to electors at the re- quest of another, for the purpose of influencing them in their votes, cannot recover therefor. Duke v. Asbee, 33 N. C. 112; Greenh. Pub. Pol. p. 389. 158 Nichols V. Mudgett, 32 Vt. 546; Roby v. Carter, 6 Tex. Civ. App. 295^ 25 S. W. 725; Burden Rank v. Phelps, 5 Kan. App. 685, 48 Pac. 938. 159 Nichols V. Mudgett, 32 Vt. 546. Ante, p. 286. 160 Liness v. Hesing, 44 111. 113, 92 Am. Dec. 153; Livingston v. Page, 74 Vt. 35(^ 52 Atl. 965, 59 L. R. A. 336, 93 Am. St. Rep. 901 (to use influence of newspaper to secm'e nomination). 161 Stout V. Ennis, 28 Kan. 706; Swayze v. Hull, 8 N. J. Law, 54, 14 Am. Dec. 399; Ham v. Smith, 87 Pa. 63. This does not apply to "an agreement to pay for open advocacy of the election of a candidate, or for legitimate political work." Greenh. Pub. Pol. 393; Murphy v. English, 64 How. Prac. (N. Y.) 362; Sizer v. Daniels, 66 Barb. (N. Y.) 426. 162 Robinson v. Kalbfleisch, 5 Thomp. & C. (N. Y.) 212. i63Lockhart v. Hullinger, 2 111. App. 465; Gordon v. Casey, 23 111. 70; Guyman v. Burlingame, 36 111. 201; Vischer v. Yates, 11 Johns. (N. Y.) 23; McAllister v. Hoffman, 10 Serg. & R. (I'a.) 147, 16 Am. Dec. 55t>; Wroth V. Johnson, 4 liar. & McH. (Md.) 284; Gregory v. King, 58 111. 169, 11 Am. Rep. 56 (bet in one state on result of presidential election in another); Greenh. Pub. Pol. 391. 292 LEGALITY OP OBJECT. (Ch. 8 SAME— AGREEMENTS TENDING TO PERVERT OR OBSTRUCT PUBLIC JUSTICE. 158. Any agreement t^McIi tends to pervert or obstruct public justice is contrary to public policy, and void. 159. COMPOUNDING CRIME. An agreement to stifie a criminal prosecution is illegal. 160. ARBITRATION. Agreements to refer matters to arbitration as a condition precedent to suit, at least if not going to tbe Tvbole question of liability, are valid; but it is othervtrise where tbe agreement is to refer to arbitration alone, aoid not to sue at all. Any agreement which tends to pervert or obstruct public justice, even though it may not amount to a crime,^®* is illegal, as being con- trary to public policy. If an agreement, for instance, tends to induce a witness to perjure himself, or to give false testimony through bias, or if it tends to induce parties to procure false testimony, it will not be enforced.^*^^ In an Alabama case a party had promised to give a witness, for attending court, a sum of money in excess of his legal fees, the amount of the comipensation to depend on the promisor's suc- cess in the suit, and the agreement was held void. "Such contracts," said the court, "are against sound policy, because their inevitable tendency is, if not to invite to perjury, at least to sway the mind of the witness, by giving him the interest of a party to the cause, and thus contaminate the stream of justice at its source." ^®® So, also, agree- ments are illegal if they contemplate the suppression of lawful evi- dence.^®^ 164 Clark, Cr. Law (2d Ed.) 148, 376, and eases cited; Buck v. Bank, 27 Mich. 293, 15 Am. Rep. 189. Agreement for feigned suit to test validity of bonds before issue. Van Horn v. Kittitas County (C. C.) 112 Fed. 1. 165 Gillet V. Logan Co., 07 III. 25G; Goodrich v. Tenney, 144 111. 422, 33 N. E. 44, 19 L. R. A. 371, 36 Am. St. Rep. 459; Patterson v. Donner, 48 Cal. 369; Greenh. Pub. Pol. p. 441, and cases cited; HUTLEY v. HUTLEY, L. R. 8 Q. B. 112; Pa ton v. Stewart, 78 111. 481; Bowling v. Blum (Tex. Civ. App.) 52 S. W. 97; Langdon v. Conlin (Neb.) 93 N. W. 389, 60 L. R. A. 429. A contract between a physician and a party injured by a railroad company, that the physician shall go to the advisors of the company, and explain the nature of the injuries, and receive as compensation an amount dependent on the amount awarded, is void. Tliomas v. Caulkett 57 Mich. 392, 24 N. W. 154, 58 Am. Rep. 369. A contract to procure such testimony as will pro- cure a verdict is void. Quirk v. Muller, 14 Mont 467, 36 Pac. 1077, 25 L. R. A. 87, 43 Am. St. Rep. 647. 166 Dawkins v. Gill, 10 Ala. 206. There are many cases which hold that an agreement by a party to pay a witness compensation in addition to his legal fees is contrary to public poUcy. See Greenh. Pub. Pol. p. 441. 167 Greenh. Puli. I'ol. p. 441. As, where an attorney for a consideration agrees with a person accused of crime to procure the release from Jail of a witness against him. Crisup v. Grosslight, 79 Mich. 380, 44 N. W. 621, §§ 158-160) AGREEMENTS CONTRARY TO PUBLIC POLICY. 293 All agreements, it is said in a late Indiana case, relating to proceed- ings in courts, civil or criminal, which may involve anything incon- sistent with the impartial course of justice, are void, though not open to the charge of actual corruption, and regardless of the good faith of the parties, or of the fact that no evil resulted therefrom.^'* Compounding Crime. The most obvious example of agreements tending to obstruct public justice are agreements to stifle criminal prosecutions. "You shall not make a trade of a felony. If you are aware that a crime has been committed, you shall not convert that crime into a source of benefit or profit to yourself." ^®® Not only is an agreement not to prosecute a person for a crime void on the ground that it is against public policy, but it is void because the agreement is in itself a crime. ^^° It has been said that this rule is subject to exceptions in cases where civil and criminal remedies coexist, and that it is permissible in some cases to compromise with the offender, and agree not to prosecute And see Bostick v. INIcClaren, 2 Brev. (S. C.) 275; Badger v. Williams, 1 D. Chip. (Vt.) 137 ; Thompson v. Whitman, 4 Jones (N. C.) 47 ; Young v. Thom- son, 14 Ck)lo. App. 294, 59 Pac. 1030. Regulating disclosure of witness. Wight v. Rindslvopf, 43 Wis. 344. Asserting unjust claims. Rhodes v. Sparks. 6 Pa. 473. 168 Brown v. Bank, 137 Ind. 165, 37 N. E. 158. 24 L. R. A. 206 (contract made by justice of peace whereby, in case the justice secures arrest and the return of stolen property, he is to receive a percentage). See Weber v. Shay, 56 Ohio St. 116, 46 N. E. 377, 37 L. R. A. 230, 60 Am. St Rep. 743 (contract by attorney to prevent Indictment). Contract to withdraw opposition to probate of will not void. Seaman v. Colley, 178 Mass. 478, 59 N. E. 1017. 189 AVILLIAMS V. BAYLEY, L. R. 1 H. L. 200. Ajid see Collins v. Blan- tern, 2 Wils. 341, 1 Smith, Lead. Cas. 387, notes; Henderson v. Palmer, 71 111. 579, 22 Am. Rep. 117; Roll v. Raguet 4 Ohio, 400, 22 Am. Dec. 759; McMahan v. Smith, 47 Conn. 221, 36 Am. Rep. 67; Chandler v. Johnson, 39 Ga. 85; Schultz v. Culbertsou, 40 Wis. 313, 1 N. W. 19; Meech v. Lee, 82 Mich. 274, 46 N. W. 383; Ricketts v. Harvey, 106 Ind. 5<54, 6 N. E. 325; Gorham v. Keyes, 137 Mass. 583; Friend v. Miller, 52 Kan. 139, 34 Pac. 397, 39 Am. St Rep. 340; Smith v. Steely, 80 Iowa, 73& 45 N. W. 912; Foley V. Greene, 14 R. I. 618, 51 Aju. Rep. 419; Br\\s v. Smith, 68 N. H. 253, 44 Atl. 384, 73 Am. St Rep. 584; Kirkland v. Benjamin, 67 Ark. 480, 55 S. W. 840; Smith Premier Typewriter Co. T. Mayhew (Neb.) 90 N. W. 993. A prosecution for seduction cannot he compoimded. Budd v. Rutherford, 4 Ind. App. 386, 30 N. E. 1111. Nor prosecution for obstructing a highway. Amestoy v. Tl-ansit Co., 95 Cal. 311, 30 Pac. 550. A conti'act not to sue for pollution of stream, amounting to public nuisance, is void. Weston Paper Co. v. Comstock (Ind. Sup.) 58 N. E. 79. It makes no difference whether the agreement is express or implied. Janis v. Roentgen, 52 Mo. App. 114. If no crime was in fact committed, the contract is not illegal. Smith v. Blach- ley, 188 Pa. 550, 41 Atl. 619, 68 Am. St. Hep. 887; Treadwell v. Tobert, 122 Ala. 297, 25 South. 216; Woodham v. Alien, 130 Cal. 194, 02 Pac. 398. But see State v. Carver, 69 N. H. 21(-. 39 Atl. 973. iTo Clark, Cr. Law (2d Ed.) 383. 294 LEGALITY OF OBJECT. (Ch. 8 him. In an English case it was said: "We shall probably be safe in laying it down that the law will permit a compromise of all offenses, though made the subject of a criminal prosecution, for which offenses the injured party might sue and recover damages in an action. It is often the only manner in which he can obtain redress. But if the offense is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it." "^ In the United States this distinction is not generally recognized, and it is held that an agreement to compound a crime, whether misdemeanor or felony, is illegal/ '^^ Of course, persons may always settje^^ny . claims they may have against each other, even though the claim may arise from the crime of one of them, as from larceny or embezzlement, provided there is no agreement not to prosecute for the crime. ^" It is the stifling of pros- ecutions which renders such agreements invalid. In some states par- ties are expressly permitted by statute to compromise prosecutions for certain misdemeanors.^'* Reference to Arbitration. Agreements to refer matters in dispute to arbitration are sometimes regarded as attempts to "oust the jurisdiction of the courts," and to that extent will not be enforced.^ '^ The most common illustrations 171 Keir v. Leeman, 6 Q. B. 321. See, also, Id. 9 Q. B. 395; Windhill Local Board v. Vint, 45 Ch. D. 351. 172 PARTRIDGE v. HOOD, 120 Mass. 403, 21 Am. Rep. 524; Wright v. Rindskopf, 43 Wis. 361; Pearce v. Wilson, 111 Pa. 14, 2 Atl. 99, 56 Am. Rep. 243; Jones v. Daunenberg Co., 112 Ga. 426. 37 S. E. 729, 52 D. R, A. 271. And see State t. Carver, 69 N. H. 216, 39 Atl. 973. 173 FLOWER V. SADLER, 10 Q. B. Div. 572; NICKELSON V. WILSON, 60 N. Y. 362; Weber v. Barrett, 125 N. Y. 18, 25 N. E. 1068; Bothwell v. Brown, 51 111. 234; Cass County Bank v. Bricker. 34 Neb. 516, 52 N. W. 575, 33 Am. St Rep. 049; Fosdick v. Van Arsdale, 74 Mich. 302, 41 N. W. 931; Poitner v. Kirschner, 169 Pa. 472, 32 Atl. 442, 47 Am. St. Rep. 925: Sloan V. Davis, 105 Iowa, 97, 74 N. W. 922; Powell v. Flanary, 109 Ky. 342, 59 S. W. 5 ; Paige v. Hieronymus, 192 111. 546, 61 N. E. 832. 1T4 Brown v. McCreight, 187 Pa. 181, 41 Atl. 45. 17 5 Mutual Reserve Fund Life Ass'n v. Woolen Mills, 82 Fed. 508, 27 C. C. A. 212. Agreement between fidelity insurance company and employ^ whose honesty is guarantied that voucher showing payment by company to employer of loss occasioned through employe's dishonesty should be con- clusive evidence against employe as to fact and extent of his liability to com- pany, was void as against public policy. Fidelity & Casualty Co. of New York V. Eickhoff (Minn.) (S N. W. 351; Fidelity & Casualty Co. of New York V. Grays, 76 Minn. 450, 79 N. W. 531. Stipulation in contract entered into between Italian citizens, partly to be performed in Italy and partly in United States, that Italian courts should have exclusive jurisdiction of actions thereon, is not so objectionable, on grounds of public policy, that Massa- chusetts courts will refuse to give it the validitj' which it has under the Italian law, under the treaty with Italy, which gives citizens of each country §§ 158-160) AGREEMENTS CONTRARY TO TDBLIC POLICY. 295 of such agreements are provisions in a buikling or construction con- tract for determination of questions by the architect or engineer, and in insurance poHcies for submission to arbitrators to determine the loss, though of course they are not Hmited to these contracts. An agreement to refer to arbitration, though so far vahd that an action can be maintained for its breach, ^'^^ will not be specifically enforced,^^'' and does not oust the jurisdiction of the court; that is, it cannot be set up as a bar to an action brought to determine the very dispute which it was agreed to refer.^^^ Parties to a contract may, however, make arbitration a condition precedent to a right of action for breach of the contract, and such a condition is valid. ^^® It is very generally declared that an agreement to submit to arbitration the whole question of liability, and not merely those questions which affect the amount of damages, is void, even as a condition precedent,^*" Upon principle, full rights in the courts of the other. MIIT^ENTHAL v. MASCAGNI, 66 N. E. 42.J, 183 Mass. 19, GO L. K. A. 812. 176 LIVINGSTON V. RAILLI, 5 El. & B. 132; Munson v. Straits of Dover S. S. Ck)., 102 Fed. 92G, 43 C. C. A. 57, affirming (D. G.) 99 Fed. 787. See rollook, Cent. {3d Ed.) 308. 17T Street v. Rigby, 6 Yes. 815, 818. 1T8 Hurst V. Litchfield, 39 N. Y. 377; Chamberlain v. Railroad Co., 54 Conn. 472, 9 Atl. 244; Dugan v. Thomas, 79 Me. 221, 9 Atl. 3.54; WHITE v. RAILROAD CO., 135 Mass. 216; Mentz v. Insurance Co., 79 Pa. 480; REED V. INSURANCE CO., 138 Mass. 572; Allegre v. Insurance Co., G Har. & J. (Md.) 408, 14 Am. Dec. 289; Kinney v. Association, 35 W. Va. 385, 14 S. E. 8, 15 L. R. A. 142; HAMILTON v. INSURANCE CO., 137 U. S. 370, 11 Sup. Ct. 133, 34 L. Ed. 708 ; Lesure Lumber Co. v. Insurance Co., 101 Iowa, 514, 70 N. W. 7G1; Voluntary Relief Department v. Spencer, 17 Ind. App. 123, 46 N. E. 477; MILjpS v. SCHMIDT. 168 Mass. 339, 47 N. E. 115; Fox V. Association, 96 Wis. 390, 71 N. W. 363; Mitchell v. Dougherty, 90 Fed. 639, 33 C. C. A. 205; Kant v. Rice (Ky.) 55 S. W. 202; Hartford Fire Ins. Co. V. Horr (Neb.) 92 N. W. 746. But see Raymond v. Insurance Co., 114 Mich. 3SG, 72 N. W. 2.o4; Robinson v. Templar Lodge, 117 Cal. 370, 49 Pac. 170, 59 Am. St. Rep. 193. 179 SCOTT V. AVERY, 5 H. L, Cas. 811; Viney v. Rignold, 20 Q. B. D 172; President, etc., of Delaware & H. Canal Co. v. Coal Co., 50 N. Y. 250; HAMILTON V, INSURANCE CO., 136 U. S. 242, 10 Sup. Ct. 945, 34 L. Ed. 419; Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Smith v. Railroad Co., 36 N. H. 458 ; Hudson v. McCartney, 33 Wis. 331 ; Pha?nix Ins. Co. v. Badger, 53 Wis. 283, 10 N. W. 504; Berry v. Carter, 19 Kan. 135; Reed v. Insurance Co., 138 Mass. 572; Hood v. Hartshorn, 100 Mass. 117, 1 Am. Rep. 89; Denver & N, O. Const Co. V. Stout, 8 Colo. 61, 5 Pac. 627; Commercial Union Assur. Co. V. Hocking, 115 Pa. 407, 8 Atl. 589, 2 Am. St. Rep. 562; Fisher v. Insur- ance Co., 95 Me. 486, 50 Atl. 282, 85 Am. St. Rep. 428; National Contracting Co. V. Water Power Co., 170 N. Y. 439, 63 N. E. 450. But see Phoenix Ins. Co. T. Zlotky (Neb.) 92 N. W. 736. 180 See Stephenson' v. Insurance Co., 54 Me. 55; Perry v. Cobb, 88 Me. 435, 34 Atl. 278, 49 L. R. A. 380; Jones v. Brown, 171 Mass. 318, 50 N. E. 648; ^ilitchell v. Dougherty, 90 Fed. 639, 33 C. C. A. 205. See, also, cases cited notes 178, 179. \yj^ 296 LEGALITY OP OBJECT. (Ch. 8 however, it seems that such a condition should be given effect in the one case as in the other, and that to do so is in no sense to oust the jurisdiction of the court. "^ J P^<-^-< t^ Cv SAME — ENCOURAGEMENT OF LITIGATION — CHAMPERTY AI^ ^ n-< MAINTENANCE. ^,-v.^^^Y-^ 161. In most states an agreement amounting to maintenance or champerty is considered contrary to public policy because of its tendency to encourage litigation. In. some states, hoTvever, the doctrine is scarcely recognized. ' , "Maintenance" is defined in the old books as the officious intermed- dling in a suit by one who has no interest therein, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it.^^^ "Champerty" is defined as a bargain by a person with a plaintiff or defendant to divide the land or other matter sued for between them if they prevail at law, whereupon the champertor is to carry on the party's suit or defense at his own expense. In other words, cham- perty is "maintenance aggravated by an agreement to have a part of the thing in dispute." ^^^ Some courts have held that the champertor need not carry on the suit at his own expense, — that it may be where an attorney agrees to conduct a suit for a compensation contingent on success; ^^* but the weight of authority is to the contrary. Cham- perty and maintenance are held to be crimes at common law in England, and are so recognized in many states. In many jurisdictions, how- ever, neither maintenance nor champerty is recognized as a crime, but they are held to render agreements illegal on the ground of public policy. In some states the doctrine is scarcely recognized at all, the courts considering that, because of the difference in the state of society 181 SCOIT V. AVERY, 5 H. L. C. 811; COLTJNS v. LOCKE, 4 App. Cas. 674; Spackman v. Plumstead Board of Works, 10 App. Cas. 229. See "Arbi- tration as a condition precedent," by Addison C. Bamham, 11 Harv. L. R. 234. Where the rules or by-laws of an association so provide, a member must exbaust his remedies in its tribunals before resorting to the courts. Jeane V. Grand Lodge, 80 Me. 434, 30 Atl. 70; Smith v. Ocean Castle No. 11, 59 N. J. Law, 198, 35 Atl. 917; Whitty v. McCarthy, 20 R. I. 792, 86 Atl. 129; Myers v. Jenkins, 63 Ohio St. 101, 57 N. E. 1089, 81 Am. St Rep. 613. 182 4 Bl. Comm. 134; 1 Hawk. P. C. 249. 188 4 Bl. Comm. 135; 1 Hawk. P. C. 257; THOMPSON v. REYNOLDS, 73 111. 11; Torrence v. Shodd, 112 111. 466. 184 Lathrop v. President, etc., 9 Mete. (Mass.) 489; ACKERT v. BARKER, ]31 Mass. 436. Contra, Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730; Phil- lips V. Commissioners, 119 111. (i2(>, 10 N. E. 230; Winslow v. Railway Co., 71 Iowa, 197, 32 N. W. 330; Pittsbmrg, O., G. & St. L. Ry. v. Volkert, 58 Ohio St. 302, 50 N. E. 924. § 161) AGREEMENTS CONTRARY TO PUBLIC POLICY. 297 in England and in this country, the reasons which make the doctrine salutary or necessary there do not exist here.^*' Maintenance. "A contract," says Greenhood, "by which a stranger is to sustain the expense of the prosecution or defense of litigation, especially when he is to have an interest in the result thereof, is void ;" and the rule thus laid down is sustained by numerous cases, both in England and in this country. ^^^ Illustrations of maintenance are where a stranger to a cause of action induces the person who has the right of action to sue by prom- ising to save him harmless from any liability for costs, or to pay the costs in case of failure in the action.^" It has generally been deemed necessary, in order to avoid a contract, that there should be something vexatious in the maintenance, and that mere assistance was not enough ; that maintenance "is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defenses which they have no right to make." ^^® This is probably the general rule in this country where the doctrine of maintenance is recognized at all.^^® It is not maintenance for a person to assist another in litigation, if he is himself interested in the subject of the litigation,^ ®° or if he in 185 Richardson v. Rowlind, 40 Conn. 565; Stoddard v. Mix, 14 Conn. 12; Brown v. Bigne, 21 Or. 200, 28 Pac. 11, 14 L,. R. A. 745, 28 Am. St. Kep. 752; Bayard v. McLaue, 3 Har. (Del.) 139; Schamp v. Sclienck, 40 N. J. Law, 195, 29 Am. Rep. 219; Hoffman v. Vallejo, 45 Cal. 5G4; Bentinck v. Franklin, 38 Tex. 458; Sherley v. Riggs, 11 Humph. (Tenn.) 53. The common law In re- lation to champerty has been virtually abolished or superseded by statute in several states. Wildey v. Crane, 63 Mich. 720. 30 N. W. 327; Heaton v. Dennis, 103 Tenn. 155, 52 S. W. 175; Potter v. Mining Co., 22 Utah, 273, 61 Pac. 999. In New York it is abolished, except in so far as it is em- bodied in statutes in reference to certain cases affecting -the title to lands, and prohibiting the purchase of claims bj* attorneys for the purpose of suing on them. See Bundy v. Newton, 65 Hun, 019. 19 N. Y. Supp. 734; FOWLER V. CALLAN, 102 N. Y. 395, 7 N. E. 109; Coughlin v. Railroad Co., 71 N. Y. 443, 27 Am. Rep. 75; Oisher v. Lazzarone, 61 Hun, 623. 15 N. Y. Supp. 933. 186 Greenh. Pub. Pol. rule 324; HUTLEY v. HUTLEY, L. R. 8 Q. B. 112; Kerr v. Bnmton, 24 U. C. Q. B. 390; Knox v. Martin, 8 N. H. 154. And see the cases in the following notes. 187 Wheeler v. Pounds, 24 Ala. 472; Low v. Hutchinson, 37 Me. 196; Mar- tin V. Amos, 35 N. C. 201. 188 Findon v. Parker, 11 Mees. & W. 682. Cf. Bradlaugh v. Newdegate, 11 Q. B. Div. 10. 189 See Ferine v. Dunn, 3 Johns. Ch. (N. Y.) 508; Thallhimer v. Brincker- hoff, 3 Cow. (N. Y.) 023, 15 Am. Dec. 308; Duke v. Harper, 66 Mo. 51, 37 Am. Rep. 314; McCall's Adm'r v. Capehart, 20 Ala. 521; Com. v. Dupuy, Brightly, N. P. (Pa.) 44. 190 Williams v. Fowle, 132 Mass. 385; Knight v. Sawin, 6 Groenl. (Me.) 301; Inhabitants of Industry v. Inhabitants of Starks, 65 Me. 107; HUTLEY 298 LEGALITY OF OBJECT. (Ch. 8 good faith believes that he is so interested/^^ or if he is a near relative of the litigant; ^°' nor, it seems, for a person to assist one who has a good cause of action, and is too poor to sue.^"^ He must assist, how- ever, because of such interest or relationship/** Champerty. Champerty, or the maintenance of a suit for a share of the proceeds, avoids an agreement made in contemplation of it."^ A frequent in- stance of champerty is where an attorney agrees to conduct litigation, and pay the costs, in consideration of a certain part of whatever he may recover. Most of the courts hold such an agreement illegal. ^^"^ "But where the right to compensation is not confined to an interest in the V. HUTLEY, L. R. 8 Q. B. 112; Board of Com'rs of Bartholomew County T. Jameson, 80 Ind. 154; Cooley v. Osborne, 50 Iowa, 526. It is not main- tenance for several to contribute to the expense of a suit by one where all have a common interest in settling the question as to defendant's liability. Davies v. Stowell, 78 Wis. 334, 47 N. W. 370, 10 L. R. A. 100. 191 Lewis V. Broun, 36 W. Va. 1, 14 S. E. 444; Wellington v. Kelly, 84 N. Y. 543; Findon v. Parker, 11 Mees. & AV. 679. 192 Thallhimer v. Brinckerhoff, 3 Cow. (N. Y.) 623, 15 Am. Dec. 308; Gille- land V. Failing, 5 Denio (X. Y.) 308; Moms v. Henderson, 37 Miss. 492; Walker v. Ferryman, 23 Ga. 309, at page 316. See Graham v. McReynolds, 90 Tenn. 673, 18 S. W. 272. But see Barnes v. Strong, 54 N. C. 100; HUT- LEY V. HUTLEY, L. R. 8 Q. B. 112. 193 Dunne v. Herrick, 37 111. App. 180. 194 Greeuh. Tub. Pol. p. 401. 195 Gilbert v. Holmes, 64 111. 548; Coleman v. Billings, 89 111. 183; Munday y. Whissenhunt, 90 N. C. 458; Slade v. Rhodes. 22 N. C. 24; Barnes v. Strong, 54 N. C. 100; Thompson v. Warren, 8 B. Mon. (Ky.) 488; Hayney V. Coyne, 10 Heisk. (Tenn.) 339; Jenkins v. Bradford, 59 Ala. 400; Martin V. Yeeder, 20 Wis. 466; Barker v. Barker, 14 Wis. 131; Duke v. Harper, 66 Mo. 51, 37 Am. Rep. 314; Stanley v. Jones, 7 Bing. 369; Sprye v. Porter, 7 El. & Bl. 81. 196 THOMPSON' V. REYNOLDS, 73 111. 11; Holloway v. Lowe, 7 Port. (Ala.) 4&S; Coughlin v. Railroad Co., 71 N. Y. 443, 27 Am. Rep. 75; Lancy V. Havender, 146 Mass. 615, 16 N. E. 464; Boardman v. Thompson, 25 Iowa, 487; Evans v. Bell, 6 Dana (Ky.) 479; Million v. Ohnsorg, 10 Mo. App. 432; Scobey v. Ross, 13 Ind. 117; Lafferty v. Jelley, 22 Ind. 471; Hamilton v. Gray, 67 Vt. 233i, 31 Atl. 315, 48 Am. St. Rep. 811; Geer v. Frank, 179 111. 570, 53 N. E. 965, 45 L. R. A, 110; In re Evans, 22 Utah, 366, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794; Casserleigh v. Wood, 119 Fed. 308, 56 C. C. A. 212. It has even been held that, where the attorney has received money under such an agreement for his client, the latter cannot maintain an action to recover it. Best v. Strong. 2 Wend. (N. Y.) 319, 20 Am. Dec. 607. Contra, ACKERT v. BARKER, 131 Mass. 436; Stearns v. Felker, 28 Wis. 594. A contract whereby the client is bound not to settle without the consent of the attorney is void. Huber v. Johnson, 68 Minn. 74, 70 N. W. 806, 64 Am. St. Rep. 456; North Chicago St. R. Co. v. Ackley, 171 111. 100, 49 N. E. 222, 44 L. R. A. 177; Davis v. Webber, 06 Ark. 190, 49 S. W. 822, 45 L. R. A. 196, 74 Am. St. Rep. 81; Davis v. Chase, 159 Ind. 242, 64 N. E. S8. Sec, also, Potter v. Mining Co., 22 Utah, 273, 61 i'ac. 999. t § 161) AGREEMENTS CONTRARY TO PUBLIC POLICY. 209 thing recovered, but gives a right of action against the party, though pledging the avails of the suit, or part of them, as security for the pay- ment, the agreement is not champertous." ^°'' A less obvious form of champerty is in the case of a purchase out and out of a right of action. The validity of such an agreement would depend on whether the purchase included any substantial interest be- yond a mere right to litigate. If property is bought to which a right to sue attaches, that fact will not avoid the contract,^°* but an agreement to purchase a bare right to sue would not be sustained.^ ^" "It is not unlawful to purchase an interest in property, though adverse claims exist which make litigation necessary for realizing that interest, but it is unlawful to purchase an interest merely for the purpose of litigation ; in other words, the sale of an interest to which a right to sue is incident is good, but the sale of a mere right to sue is bad." ^°° As we have stated above, it is not regarded as maintenance for a near relative to assist a person in litigation. This rule, however, does not apply to champerty. Not even a relative can assist for a share of the recovery. "Lineal kinship in the first degree, or apparent heirship, and to a certain extent, it seems, any degree of kindred or affinity, or the relation of master and servant, may justify acts which, as between strangers, would be maintenance; but blood relationship will not justify champerty." ^°^ It should be noted that the defense of champerty or maintenance cannot be set up to defeat a recovery on the cause of action to which 197 BLAISDELL v. AHEEN, 144 Mass. 393. 11 N. E. G81. See, also, Mc- Pherson v. Cox, 96 U. S. 404, 24 L. Ed. 74G; Hadlock v. Brooks, 17S Mass. 425. 59 N. E. 1009. Coutra, Huber v. Johnson, 68 Minn. 74, 70 N. W. 806, 64 Am. St. Kep. 456. The rules governing champerty are not applicable to the prosecution of a claim otherwise than by suit. Manning v. Sprague, 148 Mass. 18, 18 N. E. 673, 1 L. R. A. 516, 12 Am. St. Rep. 508 (court of com- missioners of Alabama claims). See, also, Stanton v. Embrey, 93 U. S. 548, 23 L. Ed. 9S3; Taylor v. Bemiss, 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 64. 198 Dickinson v. Bun-ell, 1 Eq. 337, 342. 199 Prosser v. Edmonds, 1 Younge & C. 499; Norton v. Tuttle, 60 111. 130; Brush X. Sweet, 38 Mich. 574; Illinois Land & Ix)au Co. v. Speyer, 138 111. 137, 27 N. E. 931; Storrs v. Hospital, 180 111. 368, 54 N. E. 185, 72 Am. St. Rep. 211; Mihvauicee & St. P. R. Co. v. Railroad Co., 20 Wis. 174, 88 Am. Dec. 740; Archer v. Freeman, 124 Cal. 528. 57 Pac. 474; Haseltine v. Smith, 154 Mo. 404, 55 S. W. 633; Miles v. Association (Wis.) iW N. W. 159. See Greenhood, Pub. Pol. pp. 409-411. Conveyance of land held adversely by another. Smith v. Price (Ky.) 7 S. W. 918; Combs v. McQuinn (Ky.) 9 S. W. 495; Nelson r. Brush, 22 Fla. 374; Snyder v. Church, 24 N. Y. Supp. 337, 70 Hun, 42.S. 2 00 Pol. Cont. (3d Ed.) 315. 201 Pol, Cont. (3d Ed.) .320; HUTT-EY v. HITTLEY. L. R. 8 Q. B. 112; In re Evans, 22 Utah, 366, 62 Pac. 913, 53 L. K. A, 952, 83 Am. St. Kep. 794. 300 LEGALITY OF OBJECT. (Ch. 8 the illegal agreement relates. It can only be set up against the en- forcement of the illegal agreement itself.^**^ SAME— AGREEMENTS OF IMMORAL TENDENCY. 162. Any agreement which is contrary to established rules of decency and morality is contrary to public policy. Agreements which are contrary to established rules of decency and morality, though the acts to which they tend may not be prohibited in the sense of rendering the doer liable to a penalty,^"' will not be en- forced. Unlawful sexual intercourse is not a crime at common law unless it is open and notorious, but any unlawful sexual intercourse is contra bonos mores. A promise, therefore, given in consideration of present or future illicit cohabitation or intercourse, is void; 2°* and it is immateral, in such case, whether the contract is by parol or under seal, for, as we have seen, though no consideration is necessary to support a promise under seal, yet, if there is a consideration, its ille- gality will avoid the contract. A promise made in consideration of past illicit cohabitation is not generally held to be made on an illegal consideration, but is a mere gratuitous promise, because the consideration is past, and is not en- 202 Burnes v. Scott. 117 U. S. 582, 6 Sup. Ct. 8G.j, 29 U Ed. 991; Tliallhimer V. Brinckei-lioff, 3 Cow. (N. Y.) «23, 15 Am. Dec. 308; Boone v. Chiles, 10 Piet. 177, 9 L. Ed. 388; Whitney v. Kirtland, 27 N. J. Eq. 333; Hilton v. Woods, L. R. 4 Eq. 432; Courtright v. Burnes (C. C.) 3 McCrary, 60, 13 Fed. 317;- Pennsylvania Co. v. Lombardo, 49 Ohio St. 1, 29 N. E. 573, 14 L. R. A. 785; SMALL v. RAILROAD CO., 55 Iowa, 583, 8 N. W. 437; Chamberlain v. Grimes, 42 Neb. 701, 60 N. W. 948; Davis v. Settle, 43 W. Va. 17, 26 S. E. 557; Potter v. Mining Co., 22 Utah, 273, 61 Pac. 999; Ellis V. Smith, 112 Ga. 480, 37 S. E. 739. Contra, Barker v. Barker, 14 Wis. 131; Allard v. Lamirande, 29 Wis. 502; Heaton v. Dennis, 103 Tenn. 155, 52 S. W. 175; Miles v. Association, 108 Wis. 421, 84 N. W. 159. See, also, The Clara A. ISIcIutyre (D. C.) 94 Fed. 552 (distinguishing Barnes v. Scott, supra, on ground that here suit was in name of champertor to whom note and mortgage had been assigned). 20 3 A policy obtained by one on his own life, payable to himself, his ex- ecutors, administrators, or assigns, which is silent on the subject of suicide, becomes void if the insured commits suicide when sane, both from the pre- sumed intention of the parties and from principles of public policy. Ritter V. Insurance Co.. 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693. 20-1 Ayerst v. Jenkins, 16 Eq. 275; Wallace v. Rappleye, 103 111. 229; Walker V. Perkins, 3 Bm-rows, 1568; Baldy v. Sti-atton, 11 Pa. 316; Massey v. Wal- lace, 32 S. C. 149, 10 S. E. 937; Drennan v. Douglas, 102 111. 341, 40 Am. Rep. 595; Hanks v. Naglee, 54 Cal. 51, 35 Am. Rep. 07; Forsythe v. State, 6 Ohio. 20; Walker v. Gregory, 30 Ala. 180; De Sobry v. De Laistre, 2 Har. & J. (Md.) 191, 3 Am. Dec. 555; Goodall v. Thurman, 1 Head (Tenn.) 209; Saxon V. Wood, 4 lud. App. 242, 30 N. E. 797. § 163) AGREEMENTS CONTRARY TO PUBLIC POLICY. 301 forceable if made by parol, though it is binding if made under seal.^*"* It has been held that, if the past illicit cohabitation was accompanied by seduction, there is sufficient consideration to support a parol prom- ise ; ^"^ but this is contrary to the well-settled doctrine that a moral obligation is no consideration for a promise, and the weight of au- thority is the other way.^*'^ An agreement may be innocent in itself, but may be intended to further an immoral purpose. The effect of such agreements will be considered later.-**^ 4- SAME— AGREEMENTS TENDING TO FRAUD AND BREACH OF / TRUST. -^ V 163. Any agreement tvliicli lias a direct tendency to indnce a person to commit a fraud npon the rights of others, or a breach of trust and confidence, is illegal as being contrary to public policy. "Contracts," it has been said, "which are opposed to open, upright, and fair dealings, are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence re- posed in him by another is of this character, * * * The law will not only avoid contracts, the avowed purpose or express object of which is to do an unlawful act, but those made with a view to place, or the necessary effect of which is to place, a person under wrong influences, and offer him a temptation which may injuriously affect the rights of third persons." ^°® Although the act contracted to be done 20 5 Gray v. Matliias, 5 Ves. 286; BEAUMONT v. REEVE, 8 Q. B. 483; Con- ley V. Nailor, 118 U. S. 127. G Sup. Ct. 1001, 30 L. Ed. 112; BKOWM v. KIN- SEY, 81 N. C. 245; Alassey v. Wallace, 32 S. C. 149, 10 S. E. 937; Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Wyant v. lusher, 23 Ta. 338. But see Wallace v. Rappleye, 103 111. 229, at page 249; McDonald v. Fleming, 12 B. aion. (Ky.) 285. 206 Smith V. Richards, 29 Conn. 232; Shenk v. Mingle, 13 Serg. & R. (Pa.) 29. 2 07 Ante, pp. 1D8, 142. 20 8 Post, p. 327. 209 Greenh. Pub. Pol. 294; Edwards v. Estell, 48 Cal. 194; Byrd v. Hughes, 84 111. 174, 25 Am. Rep. 442; Forsyth v. Woods, 11 Wall. 484, 20 L. Ed. 207; Rice v. Williams (C. C.) 32 Fed. 437; Gleason v. Railroad Co. (Iowa) 43 N. W. 517; Smith v. Humphreys, 88 Me. 345, 34 Atl. 166. A contract made by a person in contemplation of becoming an othcer in a private corporation, and controlling a majority of its stock, that he will use his influence to retain another in office at a fixed salarj', is void as against public policy, being in- consistent with the duty that the promisor, as an officer, owes to tlie stock- holders, though no direct private gain is to result therefrom to him. West V. Camden, 135 U. S. 507, 10 Sup. Ct. 838. 34 L. Ed. 254; Gage v. Fisher, 5 N. D. 297, G5 X. W. 809, 31 L. R. A. 557. For other instances of illegal con- 302 LEGALITY OF OBJECT. (Cll. 8 "may be just and beneficial as between the parties immediately con- cerned in it, and though it be accomplished in good faith and without undue means, yet the contract to procure to be done is held to be against public policy, because its natural effect is to cause the party to abuse the confidence placed in him, * * * and thereby preju- dicially to affect the rights of others." ^^° It is impossible to go fur- ther into the various rules growing out of this principle. They have been admirably stated, and the illustrations and authorities collected, bv Greenhood in his work on Public Policy.^^^ SAME— AGREEMENTS IN DEROGATION OF THE MARRIAGE RELATION. 164. As a general rule, any agreement vrliich restrains the freedom of parties to marry, or the freedom of choice in marrying, or im- pairs the sanctity and security of the marriage relation, or is other\irise in derogation of such relation, is contrary to puhlic policy. Agreements which restrain the freedom of marriage are discouraged on political and social grounds, as injurious to the increase of popula- tracts by officers of corporations, see Wilbur v. Stoepel, 82 Mich. 344, 40 N. W. 724, 21 Am. St. Rep. 568; Attaway v. Bank, 93 Mo. 485, 5 S. W. 16; Lum T. McEwen, 56 Minn. 278, 57 N. W. 662; GUERNSEY v. COOK, 120 Mass. 501; Diclvson v. Kittson, 75 Minn. 168, 77 N. W. 820, 74 Am. St. Rep. 447. It tends to a fraud on a corporation for its officers to purchase claims against it, and a contract for such a purchase cannot be enforced. McDonald v. Haughton, 70 N. C. .393. A good illustration of such an agreement is where a broker employed to sell property is also employed by the person to whom he sells to buy, thus to receive a commission from both parties. Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459; Everhart v. Searle, 71 Pa. 256. And see HOLCOMB v. WEAVER, 136 Mass. 265. So, also, where a broker is employed to sell land, an agreement with a person who wishes to buy, by which the broker is to introduce him to the principal, and receive part of the land when purchased, is void. Smith v. Townsend, 109 Mass. 500. An agreement between real-estate agents representing different principals to divide commissions in case they effect sale is void. Levy v. Spencer, 18 Colo. 532, 33 Pac. 415, 36 Am. St. Rep. 303. See Tiffany, Ag. 415 et seq. An agreement by a client releasing his attorney from all the duties of the re- lationship is void. In re Boone (C. 0.) 83 Fed. 944. A stipulation in a contract that false representations used in procuring it shall not affect its validity is itself invalid. Hofflin v. Moss, 07 Fed. 440, 14 C. C. A. 459. 210 Spiuks V. Davis, 32 Miss. 152. See, also, Harrington v. Dock Co., 3 Q. B. Div. 549; Atlee v. Fink, 75 Mo. 100, 43 Am. Rep. 3gan, 112 Ind. 183, 13 N. E. 669, 2 Am. St. Rep. 177; Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Weir V. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672; Hibbette v. Baines, 78 Miss. 695, 29 South. SO, 51 L, R. A. 839. Cf. Enders v. Enders, 164 Pa. 266, 30 Atl. 129, 27 L. R. A. 56, 44 Am. St. Rep. 598. 222 See Tiffany, Pers. & Dom. Rel. 253-255. Clark Cont. (2d Ed.)— 20 306 LEGALITY OF OBJECT. (Ch. 8 ingenuity and skill. (4) They prevent competition and enhance prices. (5) They expose the public to all the evils of monopoly.^^^ Public policy requires, how'ever, that the freedom of persons to enter into con- tracts shall not be lightly interfered with. Some restraint of trade, therefore, must be permitted, but w6 shall see that it must not be unrea- sonable. At one time in England it was considered that a contract was con- trary to public policy if it placed any restraint at all on a man's right to exercise his trade or calling. Gradually, however, exceptions were recognized, until at last the court, in a leading case, established the rule that a contract in restraint of trade, upon consideration which shows it was reasonable for the parties to enter into it, is good ; "that wherever a sufficient consideration appears to make it a proper and useful contract,^-^ and such as cannot be set aside without injury to a fair contractor, it ought to be maintained, but with this constant di- versity, viz. where the restraint is general, not to exercise a trade throughout the kingdom, and where it is limited to a particular place, for the former of these must be void, being of no benefit to either party, and only oppressive." ^^^ Although in that case the restraint was limited both as to time and space, so that it did not call for a de- cision on a contract in general restraint of trade, it has since been as- sumed in numerous cases, and in some directly decided, that a con- tract which imposes a restraint which is unlimited as to space is void on its face.-^° In England the law is now settled that a restraint, al- though unlimited as to space, is valid, if, under the particular circum.- stances, it is reasonable.^^^ Some diversity of opinion exists, however, between the courts of this country.^ ^* In determining whether a particular restraint is reasonable, the court vill consider the nature and extent of the trade or business, the situa- ion of the parties, and all the other circumstances. If, on such a con- j.ideration, the restraint seems unreasonable, the contract will be de- A:lared void, however partial the restraint may be. As said in a lead- ing case, the court will consider "whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protec- tion of the party can be of no benefit to either. It can only be oppres- sive, and, if oppressive, it is, in the eye of the law, unreasonable. 223 Alger V. Thacher, 19 Pick. (Mass.) 51, 31 Am. Dec. 119. 224 A contract in restraint of trade must be based on a sufficient consid- eration. Ante, p. 114. See Chapin v. Brown, 83 Iowa, 1.5G, 48 N. W. 1074, 12 L. R. A. 428. 32 Am. St. Rep. 287; Cleaver v. Lenhai-t, 182 Pa. 285, 37 Atl. 811. And see Urmston v. Wliitelegg, (kJ Law. T. 455. 225MITCHEL V. REYNOLDS. 1 P. Wms. 181. 228 r>ost, p. 308. 22 7 Post, p. 309. 228 Post, p. 809. §§ 166-169) AGREEMENTS CONTRARY TO PUBLIC POLICY. 307 Whatever is injurious to the interests of tlie public is void on the ground of pubhc policy." --" To illustrate this rule, a retail merchant, a mechanic, or a profes- sional man, whose trade or business does not extend beyond the limits of the city in w^hich he does business, or the immediate neighborhood, may, on selling his business, bind himself not to engage in the same business in that city or neighborhood. This is clearly necessary to protect the interests of the other party.^^'^ On the other hand, it could only oppress him, and could not benefit the other party, to uphold a promise not to engage in the same business anywhere in the state, and such a promise would be unreasonable and void.^^^ We can even imagine cases in which an agreement by a person, on selling his busi- ness, not to engage in the same business in the same city, would be unreasonable; as, for instance, in case of a small bakery in a large city, the trade of which is only in the vicinity of the shop. Again, a 220 Horner v. Graves, 7 Bing. 735. See, also, ROUSILLON v. ROUSILr- LON, 14 Cli. Div. 358; HBRRESHOFF v. BOUTINEAU, 17 R. I. 3, 19 Atl. 712, 8 L. R. A. 4G9, 33 Am. St Rep. 850; Keeler v. Taylor, 53 Pa. 467, 91 Am. Dec. 221; Arnold v. Kreiitzer, 67 Iowa, 214, 25 N. W. 138; Ellerman v. Stockyards Co., 49 N. J. Eq. 217, 23 Atl. 287; Gill v. Ferris, 82 Mo. 156; Tecktonius v. Scott, 110 Wis. 441, 86 N. W. 672; Harrison v. Sugar Refining Co., 116 Fed. 304, 53 C. C. A. 484, 58 L. R. A. 915; Fisheries Co. v. Lennen (C. C.) 116 Fed. 217; Kronschnabel-Smith Co. v. Kronschnabel, 87 Minn. 230, 91 N. W. 892; Ti-entman v. Walirenburg, 30 Ind. App. 304, 65 N. E. 1057. Injury to tlie interests of the public is always to be taken into considera- tion. See Western Wooden- Ware Ass'n v. Starkey, 84 Mich. 76, 47 N. W. 604, 11 L. R. A. 503, 22 Am. St. Rep. 686. 230 Washburn v. Dosch, 68 Wis. 436, 32 N. W. 551, 60 Am. Rep. 873; D wight V. Hamilton, 113 Mass. 175; Finger v. Hahn, 42 N. J. Eq. 606, 8 Atl. 6.54; Linn v. Sigsbee, 67 111. 75; Hubbard v. Miller, 27 Mich. 15, 15 Am. Uep. 153; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 034; Smith v. Leady, 47 111. App. 441; McClurg's Appeal, 58 Pa. 51; Boutelle v. Smith, 116 Mass. 111. An agreement not to sell a particular line of goods in a certain town may be valid, Clark v. Crosliy, 37 Vt 188; or not to sell to anybody in certain town or state except promisee, Newell v. Meyendorff, 9 Mont. 254, 23 Pac. 333, 8 L. R. A. 440, 18 Am. St Rep. 738; Roller v. Ott 14 Kan. 609; Keith v. Optical Co., 48 Ark. 138, 2 S. W. 777. The following agreements have been held a reasonable restraint: Covenant in deed not to sell intoxicating liquors on premises in less quantities than five gallons, Sutton v. Head, SO Ky. 156. 5 S. W. 410, 9 Am. St. Rep. 274; or not to cariT on trading or mercantile business thereon, Morris v. Manufacturing Co., 83 z\.la. 565, 3 South. 689. Agreement by vendee of land not to sell sand from it. Hodge V. Sloan, 107 N. Y. 244, 17 N. E. 335, 1 Am. St Rep. 816. Not to manufacture ochre in certain count3^ Smith's Appeal, 113 Pa. 579, 6 Atl. 251. Not to use premises sold for hotel. Wittenberg v. MoUyneaux, 60 Neb. 583, 83 N. W. 824. Covenant by lessee not to sell any beer on premises except that made by a certain company. Feriis v. Brewing Co., 155 Ind. 539, 58 N. E. 701. 231 See HERRESHOFF v. BOUTINEAU, 17 R. I. 3, 19 Atl. 712, 8 L. R. A, 469, 33 .4m. St Rep. 850. 308 LEGALITY OF OBJECT. (Cb. 8 wholesale merchant selling only in a particular section of the country could not, on selling his business, bind himself not to engage in the same business anywhere in the United States, though the restriction would be valid if limited to the district covered by his trade, even though it might extend over several states.^^^ The business of some wholesale houses extends over the entire United States, and even fur- ther ; and the courts, as we shall see, show a tendency in some of the modern cases to allow a restriction coextensive with the business. Other courts, however, looking upon the restraint as general, hold it void on its face for that reason alone, without regard to what the in- terests of the other party may require. A contract between manufacturers or dealers, not incidental to a sale of the business, to refrain from selling or competing, tending, as it does, to destroy competition, and not being necessary for the protec- tion of the promisee, has been held unreasonable and void.^^* Restraint Unlimited as to Space. As we have already stated, it was for a long time thought, both in England and with us, that a contract in restraint of trade was void on its face if the restraint was unlimited as to space, and there are modern cases laying down the same rule.^^* 232 See DIAMOND MATCH CO. v. ROEBER, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464. 23 3 Fox Solid Pressed Steel Co. v. Scboen (C. C.) 77 Fed. 29; Clark v. Needham, 125 Mich. 84, 83 N. W. 1027, 51 L. R. A. 785, 84 Am. St Rep. 559; Culp V. Love, 127 N. C. 457, 37 S. E. 476. Contra, Wood v. Whitehead Bros. Co., 165 N. Y. 545, 59 N. E. 357. And see Oakes v. Water Co., 143 N. Y. 430, 38 N. E. 461, 26 L. R. A. 544. 234 Alger V. Thacher, 19 Pick. (Mass.) 51; BISHOP v. PALMER, 146 Mass 469. 16 N. E. 299, 4 Am. St Rep. 339; Dean v. Emerson, 102 Mass. 480 Thomas v. Miles' Adm'r, 3 Ohio St 274; Long v. Towl, 42 Mo. 545, 97 Am Dec. 355; Peltz v. Eichele, 62 Mo. 171; Sutton v. Head. 86 Ky. 156, 5 S. W 410, 9 Am. St Rep. 274; Smith's Appeal, 113 Pa. 579, 6 Atl. 231; Warfield V. Booth, 33 Md. 63; Goodman v. Henderson, 58 Ga. 567; Lufkin Rule Co. v Fringeli. 57 Ohio St 596, 49 N. E. 1030, 41 L. R. A. 185, 63 Am. St Rep. 736 Harding v. Glucose Co., 182 111. 551, 55 N. E. 577, 74 Am. St Rep. 189 (Cf, Lanzit v. Manufacturing Co., 184 111. 326, 56 N. E. 393, 75 Am. St Rep. 171) ; Union Strawboard Co. v. Bonfield, 193 111. 420, 61 N. E. 1038, 86 Am. St. Rep. 346. See, also, GAMEWELL FIRE ALARM TELEGRAPH CO. v. CRANE, 160 Mass. 50, 35 N. E. 98, 22 L. R, A. 673, 39 Am. St. Rep. 458. It was at one time considered that an agreement not to carry on a business anywhere within a state, like an agreement not to carry it on anywhere within the United States, was unlimited as to space, and was invalid as imposing a gen- eral restraint Taylor v. Blanchard, 13 Allen (Mass.) 370, 90 Am. Dec. 203; Chappel V. Brockway, 21 Wend. (N. Y.) 157; Wright v. Ryder. 36 Cal. 342, 95 Am. Dec. 186; More v. Bonnet 40 Cal. 251, 6 Am. Rep. 621; Nobles v. Bates, 7 Cow. (N. Y.) 307; but this doctrine is now generally repudiated, and such an agreement will be enforced, if, under the circumstances, the restraint Is reasonable. Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. Ed. 315; §§ 166-169) AGREEMENTS CONTRARY TO PUBLIC POLICY. 309 The tendency of the cases is, however, to relax the old rule, and to allow a restraint unlimited in space if it is reasonable, and no broader than is necessary for the protection of the covenantee. Such is the doctrine which is now established in England. ^^* Thus, in a recent case,^^' where a patentee and manufacturer of guns and ammunition covenanted with a company to which his patents and business had been transferred not to engage, for twenty-five years, in the business of manufacturing guns and ammunition, it was held that the covenant was not in restraint of trade. "The inquiry as to the validity of all cove- nants in restraint of trade," said Lord Ashborne, "must now ultimately turn upon whether they are reasonaWe, and whether they exce£d_wJiat is reasonably necessary for the covenantee." In this country, also, the tendency oT the modern cases is to support a restraint, although un- limited in space, provided it is reasonably necessary for the protection of the promisee. ^^'^ Restraint Unlimited a^ to Time. It has been said without qualification that, if the restraint is rea- sonably limited as to space, the fact that it is unlimited as to time will not render the agreement void ; that, for instance, an agreement not to carry on a trade, business, or profession in a certain city is valid, though it may be agreed that it shall never be carried on there.*'* It Beal V. Chase, 31 Mich. 490; DIAMOND MATCH CO. v. ROEBER, 35 Hun (X. Y.) 421; Id., 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464; HERRES- HOFF V. BOUTINEAU, 17 R. I. 3, 19 Atl. 712, 8 L. R. A. 469, 33 Am. St. Rep. 8.50 235ROUSILLON V. ROUSILLON, 14 Ch. Div. 351; BADISCHE AXILIN UXD SODA FABRIK v. SCHOTT [1892] 3 Ch. 447; NORDENFELT v. ]SIAXIM-NORDENFELT CO. [18&4] App. Cas. 535; Underwood t. Barker 11899] 1 Ch. 300. 230 XORDEXFELT v. MAXIM-XORDEXFEI.T CO. [1894] App. Cas. 535. 287 DIAMOND MATCH CO. v. ROEBER, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464; HERRESHOFF v. BOUTIXEAU, 17 R. I. 3, 19 Atl. 712, 8 L. R. A. 469, 33 Am. St. Rep. 850; Xational Ben. Co. v. Hospital Co.. 45 Minn. 272, 47 X. W. 806, 11 L. R. A. 437; Gibbs v. Gas Co., 130 U. S. 409, 9 Sup. Ct 553, 32 L. Ed. 979; Fowle v. Park, 131 U. S. 88, 9 Sup. Ct 658, 33 L. Ed. 67; Oakdale Mfg. Co. v. Garst, 18 R. I. 484, 28 Atl. 973, 23 L. R. A. 639, 49 Am. St. Rep. 784: Carter v. Ailing (C. C.) 43 Fed. 208; Richacds v. Seating Co.. 87 Wis. 503. 58 X. W. 787; Consumers' Oil Co. v. Nunnemaker, 142 Ind. 500, 41 N. E. 1048. 51 Am. St. Rep. 193; ANCHOR ELECTRIC CO. V. HAWKES, 171 Mass. 101, 50 X. E. 509, 41 L. R. A. 189, 68 Am. St. Rep. 403; Kramer v. Old. 119 X. C. 1, 25 S. E. 813, .34 L. R. A. 389, 56 Am. St Rep. 650; Trenton Potteries Co. v. Oliphant, 58 N. .1. Eq. 507, 43 AU. 723, 4G U R. A. 255. 78 Am. St. Rep. 612; Buck v. Coward. 122 Mich. 530, 81 X. W. 32S; Xational Enameling & Stamping Co. v. Haberman (C. C.) 120 Fed. 415. See "Conti-acts in-Resti-aint of Trade," by Amasa M. Eaton, Harv. L. R. 128. 238 Bowser v. Bliss, 7 Blackf. (Ind.) 344, 43 Am. Dec. 93; Angier v. Web- 310 LEGALITY OF OBJECT. (Cb. 8 is clear, however, that the same considerations apply as in the case of a restraint unlimited in space. A restraint unlimited as to time may be necessary to protect the party in whose favor it is imposed, and in such a case it will be upheld; but, if unnecessary, the agreement cannot be sustained. ^^^ In a leading English case the defendant had entered the service of the plaintiff, who was a druggist carrying on his business in the town of Taunton, as the plaintiff's assistant, under a contract where- by he agreed that he would not, at any time after leaving the plaintiff's service, engage in the business of a druggist and chemist in that town. The agreement was held void in the lower court on the ground that the restraint was larger than the necessary protection of the party in favor of whom it was given required.^'" This judgment was reversed on writ of error on the ground that a restriction so extensive in point of time was necessary for the protection of the promisee in the enjoy- ment of the good will of his trade. "The good will of a trade," it was said by Tindal, C. J., "is the subject of value and price. It may be sold, bequeathed, or become assets in the hand of the personal rep- resentative of a trader ; and, if the restriction as to time is to be held to be illegal if extended beyond the period of the party by himself carrying on the trade, the value of such good will, considered in those various points of view, is altogether destroyed. If, therefore, it is not unreasonable (as undoubtedly it is not) to prevent a servant from en- tering into the same trade in the same town in which his master lives, so long as the master carries on the trade there, we cannot think it un- reasonable that the restraint should be carried further, and should be allowed to continue if the master sells the trade, or bequeaths it, or it becomes the property of his personal representative." ^*^ Some courts draw a distinction between contracts binding the prom- isor to desist from the practice of a learned profession, and contracts not to engage in a business which, with its good will, the promisor ber, 14 Allen (Mass.) 211, 92 Am. Dec. 748; Cook v. Johnson, 47 Conn. 178, 36 Am. Rep. 64. 239 Hitchcock V. Coker, 6 Adol. & E. 453; Smith v. Brown, 164 Mass. 584, 42 N. E. 101; Mandeville v. Ilarman, 42 N. J. Eq. 185, 7 Atl. 37; Carrl v. Snyder (N. J. Ch.) 26 Atl. 977; French v. Parker, 16 R. I. 219, 14 Atl. 870, 27 Am. St. Rep. 733; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 43 Atl. 723, 40 L. R. A. 2.55, 78 Am. St. Rep. 612; Up River Ice Co. v. Denier, 114 Mich. 296, 72 N. W. 157, 68 Am. St. Rep. 480; Eisel v. Hayes, 141 Ind. 41, 40 N. E. 119; O'Neal v. Hines, 145 Ind. 32, 43 N. E. 946; Swanson v. Kirby, 98 Ga. 586, 26 S. E. 71; Rakestraw v. I-anier, 104 Ga. 188, 30 S. E. 735, 69 Am. St. Rep. 154. 240 Hitchcock V. Coker, 6 Adol. & E. 438. 241 Hitchcock V. Coker, 6 Adol. & E. 453. And see Pemberton v. Vaughan, 10 Q. B. 87; Elves v. Crafts, 10 C. B. 241; Atkyns v. Kinnier, 4 Exch. (Welsh., H. & G.) 782; Bowser v. Bliss, 7 Blackf. (Ind.) 344, 43 Am. Dec. 93. §§ 166-169) AQKEEMENTS CONTRARY TO TUBLIC POLICY. 311 has sold, holding that in the former case a restraint unlimited in time is unreasonable,-*^ Thus, in a recent New Jersey case, in which it was held that since a contract imposing a restraint greater than is neces- sary to protect the party for whose benefit it is imposed is void, a covenant that a physician shall not "at any time thereafter" engage in practice in a certain city is void, because it would prevent him from practicing after the death of the other party. ^*^ The court considered the English case above mentioned, and held that the reasoning did not apply. "The practice of a physician," it was said, "is a thing so purely personal, depending so absolutely on the confidence reposed in his personal skill and ability, that when he ceases to exist it necessarily ceases also, and after his death can have neither an intrinsic nor a mar- ket value." The contrary, however, has been held in Rhode Island. The reason of the English decisions mentioned above, it was said, "is as valid in the case of a profession as of a trade ; for whether, tech- nically speaking, there be any good will attending a profession or not, the professional practice itself would probably sell for more with the restraining contract, if the restraint were unlimited in duration, than it would if the restraint were for the life of the promisee or covenantee only. If the complainant here wished to retire from his practice and sell it, he could probably sell it for more if he would secure the pur- chaser from competition forever than he could if he could only secure him from such competition during his own life. So, if he wished to take in a partner, he could for the same reason make better terms with him." 2" Sale of Secret Process. A person engaged in manufacturing an article by a secret process may sell the business and secret, and make a valid promise not to divulge the secret to any one else, nor to engage himself at any time in manufacturing by that process. Such a restraint is necessary to protect the other party, and does not unduly prejudice the public. In speaking of such a contract, it was said by the New York court, in a late case, that it "simply left matters substantially as they were 242 Mandeville v. Harman, 42 N. J. Eq. 1S5, 7 Atl. 37; Rakestraw v. Lanier, 104 Ga. 188, 30 S. E. 735, 69 Am. St. Hep. 154. 243 Mandeville v. Harman, 42 N. J. Eq. 185, 7 Atl. 37. 244 French v. Parker, 10 R. I. 219, 14 Atl. 870, 27 Am. St. Rep. 733. To the same effect, see Butler v. Burleson, 16 Yt. 176; Martin v. Mm-pliy, 129 Ind. 404, 28 N. E. 1118; Linn v. Sigsbee, 67 111. 75; McClurg's Appeal, 58 Pa. 51; Miller v. Elliott, 1 Ind. 484, 50 Am. Dec. 475; Cook v. Johnson, 47 Conn. 175, 36 Am. Rep. 64; Doty v. Martin, 32 Mich. 462; Timmerman v. Dever, 52 Mich. 34, 17 N. W. 230, 50 Am. Rep. 240; Cole v. Edwards, 93 Iowa, 477, 61 N. W. 940; McCui-ry v. Gibson, 108 Ala. 451, 18 South. 806, 54 Am. St Rep. 177; Tillinghast v. Boothby, 20 R. 1. 59, 37 Atl. 344. Agreement never to pi-actice law in a particular town. Smalley v. Greene, 52 Iowa, 241, 3 N. W. 78, 35 Am. Rep. 207; Bunn y. Guy, 4 East, 190. 312 LEGALITY OP OBJECT. (Ch. 8 before the sale, except that the seller of the secret had agreed that she would not destroy its value after she had received full value for it. The covenant was not in general restraint of trade, but was a rea- sonable measure of mutual protection to the parties, as it enabled the one to sell at tli-e highest price, and the other to get what he paid for. It imposed no restriction upon either that was not beneficial to the other by enhancing the price to the seller, or protecting the purchaser. Recent cases make it very clear that such an agreement is not opposed to public policy, even if the restriction was unlimited as to both time and territory." ^** SAME— UNIiAWTUIi COMBINATIONS— MONOPOLIES, TRUSTS, ETC. 170. A combination bet^reen dealers in a necessary oommodity to con- trol and enhance the price by preventing competition in the sale thereof, or by decreasing tlie production, or by withhold- ing it from the market, or other illegitimate means, is contrary to public policy. 171. Combinations to prevent competition have been alloxved under particular circumstances. 172. A combination between laborers, mechanics, and other workmen to control tke price of their labor, by tbe weight of authority, is la^vful if unlaw^ful or unreasonable means for accomplish- ing the object are not contemplated, the mere fact of combina- tion to control the price of labor not being per Be illegal. The law does not undertake to say to a dealer in a commodity, even though it may be one of the necessaries of life, that he shall not sell it above a certain price, nor to compel him to sell it at all. Singly, he may suspend sales and raise the price to suit his own interests, though it may be detrimental to the public interest. The law does, however, condemn a combination between several manufacturers or dealers in a necessary commodity, the object of which is to control 246 Tode V. Gross, 127 N. Y. 4S0, 28 N. E. 469, 13 L. R. A. 652, 24 Am. St. Rep. 475 (affirming 51 Hun, 644, 4 N. Y. Supp. 402). And see Fowle v. Park, 131 U. S. 88, 9 Sup. Ct. 658. 33 L. Ed. 67; Wiley v. Baumgardner, 97 Ind. 66, 49 Am. Kep. 427; Vickery v. Welch, 19 Pick. (Mass.) 523; Peabody V. Norfolk, 98 Mass. 452, 96 Am. Dec. 664; Jarvis v. Peck, 10 Paige (N. Y.) 118. Condition of conti'act of employment that servant shall not use or divulge trade secrets Is not invalid as in restraint of trade. Tlium Co. v. Tloczynski, 114 Mich. 149, 72 N, W. 140. 38 L. R. A. 200, 68 Am. St. Rep. 469; Simmons Medicine Co. v. Simmons (C. C.) 81 Fed. 163. Contract of em- ployment between company using patented machines and mechanic, which requires that improvements in machines made by mechanic shall belong to company, is not unreasonable. Hulse v. Machine Co., 65 Fed. S64, 13 C. C. A. 180. §§ 170-172) AGREEMENTS CONTRARY TO PUBLIC POLICY. 313 and enhance the price by preventing competition in the sale thereof, or by decreasing- the production, or by witliholding it from the market, or other illegitimate means. "When competition is left free," it was said by the Pennsylvania court, in holding a combination betv^een coal com- panies void, "individual error or folly will generally find a correction in the conduct of others. But here the companies have combined to- gether to govern the supply and the price of coal. * * * This combination has a power in its confederated forms which no individual can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful' influence. When the supply of coal is suspended, the demand for it becomes importunate, and prices must rise; or, if the supply goes forward, the price fixed by the confederates must accompany it. * * * The influence of a lack of supply, or a rise in the price, of an article of such prime necessity, can- not be measured. * * * Such a combination is more than a con- tract; it is an offense."^*® Such agreements as these tend to create monopolies and stifle competition. They are not only contrary to statutes which have been enacted in most jurisdictions,^*' but are 246 Mon-is Run Coal Ck). v. Coal Co., 68 Pa. 173. See, also, Craft v. Mc- Conougby, 79 III. 346, 22 Anx Rep. 171 ; Central Ohio Salt Co. y. Guthrie, 35 Ohio St. 666; Arnot v. Coal Co., 68 N. Y. 558, 23 Am. Rep. 390; Richardson v. Buhl, 77 Mich. 632. 43 N. W, 1102, 6 L. R. A. 457; People v. Refining Co., 121 N. Y. 582, 24 N. E. 834, 9 L. R. A.. 33, IS Am. St. Rep. 843; Urmston v. Whitelegg, 63 Law T. 455; De Witt Wire-Cloth Co. v. Wii'e-Cloth Co., 16 Daly, 529, 14 N. Y. Supp. 277; Judd v. Harrington, 139 N. Y. 105, 34 N. E. 790; Strait V. Harrow Co. (Sup.) 18 N. Y. Supp. 224; Nester v. Brewing Co., 161 Pa. 473, 29 Atl. 102; State v. Oil Co., 49 Ohio St. 137, 30 N. E. 279, 15 D. R. A. 145, 34 .Am. St. Rep. &41; SANTA CLARA VALLEY MILL & LUMBER CO. V. HAYES, 76 Cal. 387, 18 Pac. 391, 9 Am. St Rep. 211 ; Leonard v. Poole, 114 N. Y. 371, 21 N. E. 707, 4 L. R. A. 728, 11 Am. St. Rep. 667; People v. Milk Exchange. 145 N. Y. 267, 39 N. E. 1062, 27 L. R. A. 437, 45 Am. St. Rep. 609 ; Milwaukee INIasons' & Builders' Ass'n v. Niezerowski, 95 Wis. 129, 70 N. W. 166, 37 L. R. A. 127, 60 Am. St. Rep. 97; Trenton Potteries Co. v. OUphant, 58 N. J. Eq. 507, 43 Atl. 723, 46 L. R. A. 255, 78 Am. St Rep. 612. 247 By Act Cong. July 2, 1800, c. 047, 26 Stat. 209 [U. S. Comp. St 1901, p. 3200], every contract or combination in the form of a trust or other\\-ise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations, is declared illegal; and every person who monopolizes, or attempts or combines or conspires with another to monopolize, any part of such trade or commerce is made guilty of a misdemeanor. Under this act a combination imposing restraint is unlawful, whether reasonable or unrea- sonable, and whether or not it actually raises prices. United States v. As- sociation, 166 U. S. 290, 17 Sup. Ct 540. 41 L. Ed. 1007; United States v. As- sociation, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259. A contract between manufacturers of iron pipe in different states, Avhereby free competition was restrained, and prices determined by a committee, held unlawful. Addyston I'ipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136. See, also, United States v. E. C. Kight Co., 156 U. S. 1, 15 Slip. Ct. 249, 39 L. Ed. 325; Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct 40, 43 L. 314 LEGALITY OF OBJECT. (Ch. 8 contrary to public policy, and void independently of any statutory pro- hibition. Some combinations between dealers are legitimate, and have been sustained, though the object was, to a certain extent, to prevent com- petition and enhance prices.^^s The line between combinations that are lawful and those that are unlawful is not clear, and the cases are not uniform. It has been held that an agreement between partners not to sell below a certain price is not unlawful where there is no intention to create a monopoly and controfprices-^*" The rule that combinations to prevent competition and enhance prices are illegal has been held not to apply to a combination between manufacturers of an article which is not a necessity, where the agree- ment puts no restraint on the production and sale of the article. In a Massachusetts case several rival manufacturers and sellers of a certain fixture, under patents owned by them, who were the principal dealers in the article, and substantially supplied the market with it, entered into a combination to prevent competition between them, and it was upheld. "In effect," it was said, "it is an agreement, between three makers of a commodity, that for three years they will sell it at a uniform price fixed at the outset, and to be changed only by consent of a ma- jority of them. The agreement does not refer to an article of prime necessity, nor to a staple of commerce, nor to merchandise to be bought and sold in the market, but to a particular curtain fixture of the parties' own manufacture. It does not look to affecting competition from out- side (the parties have a monopoly by their patents), but only to restrict competition in price between themselves. Even if such an agreement tends to raise the price of the commodity, it is one which the parties have a right to make. To hold otherwise would be to impair the right 01 persons to make contracts and to put a price on the products of their own mdustry. But we cannot assume that the purpose and effect of the combination are to unduly raise the price of the commodity. A natural purpose and a natural effect are to maintain a fair and uniform price, and to prevent the injurious effects, both to producers and cus- tomers, of fluctuating prices caused by undue competition. When it appears that the combination is used to the public detriment, a different question will be presented from that now before us. The contract is apparently beneficial to the parties to the combination, and not neces- sarily injurious to the public, and we know of no authority or reason Ed. 200: Anderson v. United States, 171 U. S. G04, 19 Sup. Ct. 50, 43 L. Ed. 800: United States v. Northern Securities Co. (C. C) 120 Fed. 721. Tliere are statiitos declaring contracts and combinations in restraint of trade unlawful in many of the states. The subject is beyond the scope of this booli. ■■H& See Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319. 24» Marsh v. Uussell, GO N. Y. 2SiJ. §§ 170-172) AGREEMENTS CONTRARY TO PUBLIC POLICY. 315 •for holding- it to be invalid, as in restraint of trade or against public policy." "° On the other hand, many cases hold that any combina- tion among manufacturers to create a monopoly to control the price of a useful article or commodity, alth.ough not a prime necessity, is ille- gal."^ ^'Corners" in the Market. There are few combinations more clearly contrary to public policy than agreements to create what are known as "corners" in the market, as where several persons enter into a combination to buy up more of a commodity than there is in the market, so as to force a fictitious and unnatural rise in values, with a view of taking advantage of dealers and purchasers whose necessities compel them to buy.^'^ A combina- tion to create a corner in one of the necessaries of life is not only illegal, but is criminal. A combination to acquire a controlling interest in the stock of a corporation for the purpose of creating a corner in the stock market, though probably not criminal, is at least illegal.^^^ Monopolies under Patents. The rule against contracts in restraint of trade and monopolies does not apply to contracts in reference to the production and sale of a pat- ented article. It is the purpose oi- a.,^atent_to give the inventor a mo- nopoly. It is a morioppix authorized by the government In uphold- ing an agreement by a patentee to allow an association and its members 250 CENTRAL SHADE ROLLER CO. v. CUSHMAN, 143 Mass. 353, 9 N. E. (j29. And see Dolpli v. Machinery Co. (C. C.) 2S Fed. 553; Skraiuka v. SchaiTinghausen, 8 Mo. App. 522; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 43 Atl. 723, 46 L. R. A. 255. 78 Am. St. Rep. (J12. A contract by which three of four companies engaged in the manufacture of oleomargarine consolidate as a corporation, for the purpose of stopping the shai-p competition between them, and agree tliat none sliall separately engage in the business for five years, held not invalid as creating a monopoly. Oakdale Mfg. Co. v. Garst, 18 R. I. 484, 28 Atl. 973, 23 L. R. A. 639, 49 Am. St. Rep. 7S4. There can be no monopoly in anything but property, and news is not a sub- ject of property until published and copyrighted, and hence a corporation engaged in gathering and ti'ansmitting news for publication cannot be com- pelled to furnish to a newspaper the same service extended to others. State V. Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368. Contra, Tnter-Ocean Pub. Co. v. Associated Press, 184 111. 438, 56 N. E. 822, 48 L. R. A. 568. 75 Am. St. Rep. 184. 251 EMERY T. CANDLE CO., 47 Ohio St. 320, 24 N. E. 660, 21 Am. St. Rep. 819 (candles); Cummings v. Stone Co., 164 N. Y. 401, 58 N. E. 525, 52 L. R. A. 262, 79 Am. St. Rep. 655 (Hudson river bluestono); Cohen v. En- velope Co., 106 N. Y. 292, 59 N. E. 906 (envelopes); Tuscaloosa Ice Mfg. Co. V. Williams, 127 Ala. 110, 28 South. 609, 50 L. R. A. 175, 85 Am. St Rep. 125 (ice). 252 Wright V. Crabbs, 78 Ind. 487; Raymond v. Leavitt, 40 Mich. 447, 9 N. W. 525, 41 Am. Rep. 170; Samuels v. Oliver, 130 111. 73, 22 N. E. 499. 2 53 Sampson v. Shaw, 101 Mass. 145, 3 Am. Rep. 327. 316 LEGALITY OF OBJECT. (Ch. 8 the exclusive use and sale of inventions patented by him, it was said : "The owner does not possess his patent upon the condition that he shall make or vend the article patented, or allow others to do so for a fair and reasonable compensation. * * * Considerations which might obtain if the agreement were in regard to other articles cannot be of any weight in the decision of the questions arising upon an agreement as to patented articles." ^^* Patents, however, confer no right upon the owners of several distinct patents to combine for the purpose of re- straining competition and trade, and such a combination is unlawful. ^^^ Combinations between Laborers, Mechanics, and Other Workmen. If dealers cannot combine to stifle competition and control the price of a commodity, it may seem reasonable to suppose that workmen can- not combine to control the price of their labor. Authority for declaring that the same principle applies is not wanting. In an Illinois case, a large number of the law stenographers of Chicago formed an associa- tion, and fixed a schedule of prices which should be binding on them. The court held that it was contrary to public policy and illegal, citing, in support of the judgment, cases in which dealers in commodities and proprietors of boats had combined for a similar purpose. "All of the members of the association," it was said, "are engaged in the same busi- ness within the same territory, and the object of the association is pure- ly and simply to silence and stifle all competition as between its mem- bers. No equitable reason for such restraint exists, the only reason put forward being that, under the influence of competition as it existed prior to the organization of the association, prices for stenographic work had been reduced too far, and the association was organized for the purpose of putting an end to all competition, at least as between those who could be induced to become members. True, the restraint is not so far- reaching as it would have been if all the stenographers in the city had joined the association, but, so far as it goes, it is precisely of the same character, produces the same results, and is subject to the same legal objection." ^^e 254 Good V. Daland, 121 N. Y. 1. 24 N. E. 15. And see Morse Twist Drill. & Macli. Co. V. Morso, 103 Mass. 73, 4 Am. Rep. 513; Bowling v. Taylor (C. C.) 40 Fed. 404 ; Gloucester Isinglass & Glue Co. v. Cement Co., 154 Mass. 02, 27 N. E. 1005, 12 L. R. A. 5G3. 26 Am. St. Rep. 214; Printing & Numerical Reg. Co. V. Sampson, L. R. 19 Eq. 462; GARST v. HARRIS, 177 Mass. 72, 58 N. E. 174; ante, p. 314. 255 A combination among manufacturers of harrows, by which each assigns to a corporation patents under which he is operating, and takes back an ex- cluKive license to make and sell the same stjie of harrow previously made by him, and no other, all to sell at uniform prices, held to be unlawful. Na- tional Harrow Co. v. Hench (C. C.) 76 Fed. 667; Id., 83 Fed. 36, 27 C. C. A. 349, 39 1j. R. A. 299. See, also, National Harrow Co. v. Quick (C. C.) 67 Fed. 130; Strait v. IlaiTow Co. (Snp.) 18 N. Y. Supp. 224. 250 MORE V. BENNETT, 140 111. 69, 29 N. E. «««, 15 L. R. A. 361, 33 Am. St. Rep. 21G. §§ 170-172) AGREEMENTS CONTRARY TO PUBLIC POLICY. 317 By most courts, however, it is held that combinations between labor- ers, mechanics, or other workmen are valid, even though the object be to prevent competition and maintain prices, provided the provisions for that purpose are reasonable.-"'' Greenhood ^'^^ lays down the rule (no doubt estabhshed by the weight of authority) that "combinations of ar- tisans for their common benefit, as for the development of skill in their trade, or to prevent overcrowding therein, ^°® or to encourage those be- longing to their trade to enter their fold,^"** or for the purpose of raising the prices of labor,^^^ are valid, provided no force or other unlawful means be employed to carry out their ends,^^^ or their object be not to impoverish third persons,^*^ or to extort money from employers,^^* or to encourage strikes or breaches of contract,^®'* or to restrict the free- dom of members for the purpose of compelling employers to conform to their rules." =^"^« 25T COLLINS V. LOCKE, 4 App. Cas. 674. 258 Greenli. Pub. Pol. rule o4U. 250 Snow V. Wheeler, 118 Mass. 179. 2 60 Coin. V. Hunt, 4 Mete. (Mass.) Ill, 38 Am. Dec. ^46. In this case a rule of an association forbade its members to work tor any one who should em- ploy nonunion members, and yet the combination was held not illegal. This, ' however, was a criminal prosecution, and this fact may be important. Many acts and objects render a conti-act iUegal as being contrary to public policy which would not render the parties liable to a criminal prosecution. See Greenh. Pub. Pol. G4S, note 2. 261 COLLINS V. LOCKE, 4 App. Cas. G74; Master Stevedore's Ass'n v. Walsli, 2 Daly (N. Y.) 1; Herriman v. Menzies, 115 Cal. 16, 46 Pac. 780, 35 L. K. A. 318, 56 Am. St. Rep. 81. But see People v. Fisher, 14 Wend. (N. Y.) 9, 28 Am. Dec. 50L 262 Reg. V. Rowlands, 17 Adol. & E. 671; CAREW v. RUTHERFORD, 106 Mass. 1. 8 Am. Rep. 287; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; State v. Clidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23; Old Dominion S. S. Co. v. McKerma (C. C.) 30 Fed. 48. 2 63 People V. Fisher, 14 Wend. (N. Y.) 9; Rigby v. Connol, 14 Ch. Div. 482; Hornby v. Close, L. R. 2 Q. B. 153. 264 CAREW T. RUTHERFORD, 106 Mass. 1, 8 Am. Rep. 287. 265 Hornby v. Close, L. R. 2 Q. B. 153; Farrer v. Close, L. R. 4 Q. B. 602; Old Dominion S. S. Co. v. McKenna (C. C.) 30 Fed. 48. 266 A provision in a contract between stevedores that unless the mer- chants in particular cases employ one of the contracting parties to whom, as between themselves, the business is assigned by the contract, none of them will accept the employment, is bad. COLLINS v. LOCKE, 4 App. Cas. 674. A contract between a brewers' association aiid a labor union, providing that no employe of the former shall work more than four weeks without becoming a member of the latter, is void. Curran v. Galen, 152 N. Y. 33, 46 N. E. 297. 37 L. R. A. 802, 57 Am. St. Rep. 496. A liverymen's association, which pro- hibits any member from doing business with any person who does not patronize its members exclusively, or from letting a hearse to a person for a funeral where the undertaker patronizes nonunion members, is illegal, Gatzow V. Buening, 1(H) Wis. 1, 81 N. W. 1003, 49 L. R. A. 475, SO Am. St. Rep. 1. By-laws of a builders" association, which require members to pay to 318 LEGALITY OF OBJECT. (Ch. S Combinations between Employers. In England a contract between employers for the purpose of protect- ing their interests against combinations of workmen, by which they agree to regulate wages and hours of work, or wholly or partially to suspend work for a time, as the majority may resolve, has been held in restraint of trade, as depriving each of the control of his own business, and therefore not enforceable.^^'^ In Pennsylvania, on the other hand, it has been held that where employes enter into a combination, which under the statutes of the state is lawful, to control by artificial means the supply of labor, preparatory to a demand for an advance in wages, a combination of employers to resist such artificial advance is lawful,, since it is not made to lower the price of labor as regulated by supply and demand.268 .l,--0~ SAME— EXEMPTING FROM LIABILITY FOB NEGLIGENCE. 173. A stipulation, in a contract betxreeu master and servant, that the master shall not be liable for injuries to the servant caused by the negligence of the master, or by the negligence of superior • servants for -which the laxp makes the master liable, is contrary to public policy. 174. The same is true of a stipulation in a contract with a common carrier, either of goods or passengers, exempting it from liabil- ity for losses or injuries caused by its negligence. 175. The same is true, in some jurisdictions, of a stipulation by a tel- egraph company exempting it from liability for error, delay, or nondelivery; but as to this there is a direct conflict of opin- ion. -( /,U^ (^.....VJUXt - CM . According to the better opinion, a master cannot, by stipulation in the contract with his servant, exempt himself from liability for injuries to tlie servant caused by his negligence. Such a stipulation is void as being contrary to public policy.^^® It has also been held that, since the the association G per cent, on all contracts taken by them, and to submit all bids lirst to the association, and pi'ovide that the lowest bidder shall add G per cent, to his bid before it is submitted to the owner, are void. Mil- waukee Masons' & Builders' Ass'n v. Niezerowski, 95 Wis. 129, 70 N. W. 166, 37 L. R. A. 127, GO Am. St. Rep. 97. To same effect, Bailey v. Association, 103 Tenn. 99, 52 S. W. G52, 46 L. R. A. 561. 20 7 Hilton V. Eckersley, 6 El. & Bl. 47, 66. 26 8 Cote V. Murphy, 159 Pa. 420, 28 Atl. 190, 23 L. R. A. 135, 39 Am. St Rep. 686. "The moment the legislature relieves one," said tlie court, "and by far the larger number, of the citizens of the commonwealth from the common- law prohibitions against combinations to raise the price of labor, down went the foundation on which common-law conspiracy was based as to that par- ticular subject." 268 Runt V, Herring, 2 Misc. Rep. 105, 21 N. Y. Supp. 244, and cases there §§ J.73-1T5) AGREEMENTS CONTRARY TO PUBLIC POLICY. 319 liability imposed upon a railroad company by law for injuries to chcir servants caused by the carelessness of those who are superior in author- ity and control over them is based upon considerations of public policy, for this reason a railroad company cannot stipulate with its employes, at the time and as a part of their contract of employment, that such lia- bility shall not attach to it. "Such liability is not created for the protec- tion of the employes simply, but has its reason and foundation in a pub- lic necessity and policy, which should not be asked to yield or surrender to mere private interests and agreements." ^^° A railroad company, shipowner, or other common carrier cannot, by stipulation in contracts of carriage, exempt itself from liability, or limit its liability, for injury to passengers or goods caused by its own negli- gence or the negligence of its servants. Such a stipulation is, in this country at least, regarded as contrary to public policy.^" ^ It may, how- ever, exempt itself from losses or injuries occurring from other causes than its own negligence, as from accident, and for which it would be liable as an insurer.^^^ cited ; Louisville & N. R, Co. v. Orr, 91 Ala. 548, 8 South. 3G0 ; Richmond & D. R. Co. V. Jones, 92 Ala. 218, 9 South. 27G; Roesner v. Hermann (C. C) 8 Fed. 782. See Purdy v. Railroad Co., 125 N. Y. 2m, 20 N. E. 255. 21 Am. St. Rep. 736. Where an employ^ joins a relief association to which he con- tributes, and his employer guaranties the obligations, etc., the employe's agree- ment in his application for membership that acceptance of benefits from the association for an injury shall release the company from damages is not void as against public policy, since he has the right of election to accept benefits or sue. Otis v. I'ennsylvania Co. (C. C.) 71 Fed. 13G; Maine v. Rail- road Co., 109 Iowa, 2G0, 70 N. W. G30; Pittsburg, C, C. & St. L. Ry. Go. v. Cox, 55 Ohio, 497, 45 N. E. G41, 35 L. R. A. 507; Eckman v. Railroad Co., 169 111. 312, 48 N. E. 496. 38 U R. A. 750; Pittsburg, C, C. & St. L. Ry. Co. V. Moore, 152 Ind. a4.5, 53 N. E. 290, 44 K R. A. 638; Hamilton v. Railroad Co. (C. C.) 118 Fed. 92. 27 Lake Shore & M. S. Ry. Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467, 58 Am. Rep. 833; Johnson's Adm'x v. Railroad Co., 86 Va. 975, 11 S. E. 829; Hissong V. Railroad Co., 91 Ala. 514, 8 South. 776. Contra, Western & A. R. Co. V. Bishop, 50 Ga. 465 (holding such a contract valid so far as it does not waive any criminal neglect of the company or its principal officers; but this case expressly declares tliat contracts contravening public policy will not be enforced). 271 New York Cent. R. Co. v. Lockwood, 17 Wall. 857, 21 L. Ed. 627; Arm- strong V. Express Co., 159 Pa. 640, 28 Atl. 448; Abrams v. Railway Co.. 87 Wis. 485, 58 N. W. 780, 41 Am. St. Rep. 55; Schulzc-Berge v. The Guildhall (D. C.) 58 Fed. 796; Monroe v. The Iowa (D. C.) 50 Fed. 501; Johnson v. Rail- way Co., 69 Miss. 191, 11 South. 104, 30 Am. St. Rep. 534; Louisville & N. R. Co. V. Grant, 99 Ala. 325, 13 South. 599; Gulf, C. & S. F. R. Co. v. Eddins, 7 Tex. Civ. App. 116, 26 S. W. 161; Louisville & N. R. Co. v. Dies, 91 Teun. 177, IS S. W. 26G, 30 Am. St. Rep. 871; Union Pac. Ry. Co. v. Rainey, 19 Colo. 225, 34 Pac. 996; The Hugo (D. C.) 57 Fed. 403; Atchison, T. & S. F. R. Co. V. Lawler, 40 Neb. 356, 58 N. W. 968; St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463, 56 N. W. 957, 22 L. R. A. 335. 272 Indianapolis, D. & W. R. Co. v. Forsythe, 4 Ind. App. 326, 20 N. B. 320 LEGALITY OF OBJECT. (Ch. 8 As to the validity of stipulations in contracts with telegraph com- panies for the transmission of messages, there is a direct conflict. Many cases hold that a stipulation providing that the liability of the company for any mistake or delay in the transmission and delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regular rate additional, is a reasonable precaution to be taken by the company, and not against public policy, except in so far as it would exempt the company from liability for willful misconduct or gross negligence. ^^^ Another class of cases holds that there can be no consideration for such a stipulation on the part of the sender of the message, and, furthermore, that it is contrary to public policy,^''* Still another class of cases, while upholding such a stipulation in part, hold 1138; Davis v. Railroad Co., 66 Vt 290, 29 All. 313, 44 Am. St Rep. 852; Hartford Fire Ins. Co. v. Railroad Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84. It may limit its liability to injuries received on its own line, Texas & P. Ry. Co. V. Smith (Tex. Civ. App.) 24 S. W. 505; Galveston, H. & S. A. R, Co. V. Short (Tex. Civ. App.) 25 S. W. 142; McCann v. Eddy (Mo. Sup.) 27 S. W. 541; McEacheran v. Railroad Co., 101 Mich. 264, 59 N. W. 612; Coles v. Railroad Co., 41 111. App. G07; Dunbar v. Railway Co., 36 S. C. 110, 15 S. Ew 357, 31 Am. St. Rep. 860; but not when it is a partner with the connecting line, Gulf, C. & S. F. R. Co. v. Wilbanks, 7 Tex. Civ. App. 489, 27 S. W. 302. It may exempt itself from liability after unloading, where it provides a cov- ered warehouse into which the cargo is discharged, and the time and place of discharge are easily ascertainable by the consignees. Constable v. Steam- ship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903. Express messenger, accompanying express car in pursuance of contract between railroad com- pany and express company, held not a passenger, and cannot recover from railroad company for injuries in collision where contract between companies exempts from such liability and his own contract of employment assimies such risk. Baltimore & O. S. W. R. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 365, 44 L. Ed. 560. 2T3 I'iiey V. Telegraph Co., 6 Misc. Rep. 221, 26 N. Y. Supp. 532; Primrose v. Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Griunell v. Telegraph Co., 113 Mass. 299, 18 Aiu. Rep. 485; Western Union Telegraph Co. v. Carew, 15 Mich. 525; Camp v. Telegraph Co., 1 Mete. (Ky.) 164, 71 Am. Dec. 4G1; Breese v. Telegraph Co., 48 N. Y. 132, 8 Am. Rep. 526; Passmore V. Telegraph Co., 78 Pa. 238; Western Union Telegraph Co. v. Blanchard, 68 Ga. 299 (45 Am. Rep. 486, note, collecting cases); Coit v. Telegraph Co., 130 Cal. 657, 63 Pac. 83, 53 L. R. A. 678, 80 Am. St. Rep. 153. 274 Brown v. Telegraph Co., Ill N. C. 187, 16 S. E. 179, 17 L. R. A. 648, 32 Am. St. Rep. 793; Tyler v. Telegraph Co., GO 111. 421, 14 Am. Rep. 38; Western Union Telegraph Co. v. Tyler, 74 111. 168, 24 Am. Rep. 279; Weitz V. Telegraph Co., 8 Utah, 499, 33 Pac. 136; Western Union Telegraph Co. v, T>inn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. r)8; Western Union Telegraph Co. V. Cook, 61 Fed. 624, 9 C. C. A. 680; Candee v. Telegraph Co., 34 Wis. 477, 17 Am. Rep. 452; Bartlett v. Same, 62 Me. 218, 16 Am. Rep. 437; West- ern Union Telegraph Co. v. Chamblee, 122 Ala. 42i>, 25 South. 232, 82 Am. St. Rtp. 89. >^' f. S ' f^ lU^ § 176) EFFECT OF ILLEGALITY. 321 that it cannot exonerate the company from Hability for damages caused by defective instruments, or a want of skill or ordinar/xare on the part of its operators. ^^^ EFFECT OF ILI^GALITY. We come now to the second branch of the subject of illegality in contract, — its effect upon the validity of a contract. The effect of ille- gality upon the validity of contracts in which it appears varies accord- ing to the circumstances. It may affect the whole, or only a part , of a contract, and the legal and illegal parts may or not be capable of sep- aration. The direct object of a contract may be the doing of an illegal act, or the direct object may be innocent, though the contract is designed to further an illegal purpose. The parties may both be igno- rant, or both be aware, of the illegality which remotely or directly affects the transaction; or one may be innocent of the objects intended by the other. Securities may be given for money due upon, or money ad- vanced for, an illegal transaction, and the vahdity of such securities depends upon various considerations. Finally, though the contract is illegal, certain considerations may require that some relief be granted to one of the parties, notwithstanding his fault. This is a very com- plex and difficult branch of the law, and on some of the questions sug- gested there is a conflict of opinion. All we can do is to state the gen- eral principles which govern, and call attention to those points on which there is a conflict.^'^* SAME— AGREEMENTS PARTLY ILLEGAL. 176. 'Wliere an agreement is illegal in part only, the part which is i/ good may be enforced, provided it can be separated from the part which is bad, but not otherwise. La detail: (a) An indivisible promise to do several acts, some of which are ille- gal, or a single promise to do a legal act, based on several con- siderations, one of which is illegal, is wholly void. (b) But where distinct promises, some of xvhich are good, are based on a good consideration, or where there are distinct promises based on several distinct considerations, some of which are good, the good promises, or promises based on good considera- tions, may be enforced. An agreement may consist of a single promise based on a single con- sideration. If either the promise or the consideration is illegal, there is no difficulty in pronouncing the agreement void.^^^ On the other 27 5 ST\-eatland v. Telegraph Co., 27 Iowa, 433, 1 Am. Kep. 2S5. 2 76 Anson, Cont. (4th Ed.) 189. »7T Dennehy v. McXulta, 86 Fed. S25, 30 C. O. A. 422, 41 L. R. A. COO. Clakk Cont. (2d Ed.)— 21 322 LEGALITY OF OBJECT. (Ch. 8 hand, there may be several promises or considerations, some of which only are illegal, and in these cases the agreement may or may not be wholly void, according to the circumstances. Whether it is wholly void or not will depend upon whether it is one entire and indivisible agree- ment, or whether it is divisible, so that the good may be separated from the bad. "If any part of an agreement is valid, it will avail pro tanto, though another part of it may be prohibited by' statute; provided the statute does not, either expressly or by necessary implication, render the whole void ; and provided, furthermore, that the sound part can be separated from the unsound, and be enforced without injustice to the defendant." ^''^ "If the part which is good depends upon that which is bad, the whole is void ; and so I take the rule to be if any part of the consideration be malum in se, or the good and void consideration be so mixed, or the contract so entire, that there can be no apportion- ment." 2-» At one time a distinction was made in the application of this principle between illegality by reason of a statute and illegality at common law. The judges, fearing that statutes might be eluded, laid it down that "the statute is like a tyrant, — where he comes he makes all void ; but the common law is like a nursing father, — makes only void that part where the fault is, and preserves the rest." Such a distinction, however, is no longer recognized.^*" The above are the general rules, but it will aid us in understanding the doctrine if we state the law more in detail. Same — Indivisible Agreements. If a promise to do several acts is indivisible, and is in part illegal, it cannot be enforced as to that part which is legal, but the whole agree- ment is void.^®^ This rule is too clear to need explanation. The only difficulty is in determining whether the promise is divisible; but this is a question of interpretation of contracts. Where the agreement consists of one promise made upon several 27 8 Rand V. Mather, 11 Cusb. (Mass.) 1, 59 Am. Dec. 131, overruling Loomis V. Newhall, 15 Pick. (Mass.) 159 ; BIXBY v. MOOR, 51 N. H. 402. 27» 2 Kent, Comm. 467; U. S. v. Bradley, 10 Pet. 343, 9 L. Ed. 448; HANDY V. PUBLISHING CO., 41 Minn. 1S8, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 095; Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal. 387, 18 Pae. 391, 9 Am. St. Rep. 211. 2 80 Anson, Cont. (4th Ed.) 189; Pickering v. Railway Co., L. R. 3 C. P. 250; State V. Findley, 10 Ohio, 51; Rand v. Mather, 11 Cush. (Mass.) 1, 59 Am. Dec. 131; U. S. v. Bradley, 10 Pet. 343, 9 L. Ed. 448; Hj-nds v. Hays, 25 Ind. 31. 281 Crawford v. Morrell, 8 Johns. (N. Y.) 253; Thayer v. Rock, 13 Wend. (X. Y.) 53; Leavitt v. Palmer, 3 N. Y. 19, 51 Am. Dec. 333; McMullen v. Hoff- man, 174 U. S. 639, 19 Sup. Ct. 8;^9. 43 L. Ed. 1117; Foote v. Nickerson, 70 N. H. 496, 48 Atl. 1088, 54 L. R. A. 554; Union Cent. Life Ins. Co. r. Berlin, 90 Fed. 779, 33 O. C. A. 274. § 176) EFFECT OF ILLEGALITY. 323 considerations, some of which are bad and some good, here, also, the promise is wholly void, for it is impossible to say whether the legal or the illegal portion of the consideration most affected the mind of the promisor, and induced his promise.-*^ An illustration of this rule is in the case of sales of goods, some of which it is illegal to sell. Where each article is sold for a separate price, the price of those articles which it was lawful to sell may be recovered. ^®^ If, however, a note is given for the price of all the articles, there can be no recovery at all on it, for it is based in part on an illegal consideration.^^* The consideration, to bring a case within this principle, must be illegal and not merely void. If part of the consideration is merely void, and there is still a valid consideration left, it will support the promise, for, as we have seen, the law does not undertake to determine whether the consideration is adequate. It is only where part of the consideration is illegal that it taints the entire agreement.^®" 282 FEATHERSTON V. HUTCHINSON, Cro. Eliz. 199; TRIST v. CHILD, 21 Wall. 441, 22 L. Ed. 623; State v. Board, 35 Ohio St., at page 519; BIXBY v. MOOR, 51 N. H. 402; Wlsuer v. Bardwell, 38 Mich. 278; Saratoga County Bank v. King, 44 N. Y. 87; Bredin's Appeal, 92 Pa. 241, 37 Am. Rep. 677; Sumner v. Summers, 54 Mo. 340; Perkins v. Cummings, 2 Gray (Mass.) 258; BISHOP V. PALMEHi, 146 Mass. 469, 16 N. E. 290, 4 Am. St. Rep. 339; Mc- Quade v. Rosecrans, 36 Ohio St. 442; Tobey v. Robinson, 99 111. 222; James V. Jellison, 94 Ind. 292, 48 Am. Rep. 151; Ricketts v. Hai-vey, 106 Ind. 564, 6 N. E. 325; Hajiies v. Rudd, 102 N. Y. 372, 7 N. E. 287, 55 Am. Rep. 815; Pettit's Adm'r v. Pettit's Distributees, 32 Ala. 288; Woodruff v. Hinman, 11 Vt. 592, 34 Am. Dec. 712; Chandler v. Johnson, 39 Ga. 85; Gage v. Fisher,. 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557; Edwards Co. v. Jennings, 89 Tex. 618, 35 S. W. 1053; Geer v. Frank, 179 111. 570, 53 N. E. 965, 45 L. R. A. 110. But see Pierce v. Pierce, 17 Ind. App. 107, 46 N. E. 480; FISHELL v. GRAY, 60 N. J. Law, 5. 37 Atl. 606; Rosenbamn v. Credit System Co., 65 N. J. Law, 255, 48 Atl. 237, 53 L. R. A. 449; KING v. KING, 63 Ohio St. 363, 59 N. E. Ill, 52 L. R. A. 157, 81 Am. St. Rep. 635. Thus, in Kansas, it is held that a chattel mortgage is entirely void if illegal as to one of the articles mortgaged (intoxicating liquors). Gcrlach v. Skinner, 34 Kan. 86, 8 Pac. 257, 55 Am. Rep. 240; Flersheim v. Gary, 39 Kan. 178, 17 Pac. 825. No recovery, for instance, can be had on the quantum meruit for services ren- dered in the grocery part of the business under a contract to work for agreed wages as bartender and clerk for a dealer in groceries and liquors, the sale of the latter being prohibited. Sullivan v. Horgan, 17 R. I. 109, 20 Atl. 232, 9 L. R. A. 110. A note, in consideration of both past and future cohabitation, is void in toto. Massey v. Wallace, 32 S. C. 149, 10 S. E. 937. 2 83 Post, p. 824, note 287. 284 Widoe v. Webb, 20 Ohio St 431, 5 Am. Rep. 664; Deering v. Chapman, 22 Me. 4SS, 39 Am. Dec. 592; Kidder v. Blake, 45 N. H. 530; Allen v. Pearce, 84 Ga. 006, 10 S. E. 1015; Braitch v. Guelick. 37 Iowa, 212; Gotten v. Mc- Kenzie, 57 Miss. 418; Oakes v. Merrifield, 93 Me. 297, 45 Atl. 31. But see Shaw V. Carpenter, 54 VL 155, 41 Am. Rep. 837; Wilcox v. Daniels, 15 R. I. 261, 3 Atl. 204. 28B Cobb V. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; Widoe v. Webb, 20 Ohio St. 431, 5 Am. Rep. 664; ailte, p. 112. See, also, Rosenbaum v. Credit Sya- 324 LEGALITY OF OBJECT. (Cll. 8 Same — Divisible Agreements. Where an agreement consists of several promises based upon several considerations, the fact that one or more of the considerations is illegal will not avoid all the promises, if those which are based upon legal con- siderations are severable from the others. ^^" Thus, in the case of the sale of various articles, some of which it is illegal to sell, if each article is- sold for a separate price, so that the consideration is apportionable, the price of those which it was lawful to sell may be recovered.^*^ Again, if there are several promises, made for a lawful consideration, some of which are legal and some illegal, the legal promises may be enforced. ^^® At an early day it was declared "that if some of the cov- enants of an indenture or the conditions indorsed upon a bond are against law, and some are good and lawful ; that in this case the cov- enants or conditions which are against law are void ab initio, and the others stand good." ^'^ In other vvords, a lawful promise, made upon a^lawful consideration^ is,not invalid merely because an unlawful prom- ise was made at the same time and for ihe same^cgnsideration.'^®" This principle is frequently applied to contracts in restraint of trade. An agreement, for instance, not to engage in business at a certain place, or any other place, though void as to the general restriction, may be enforced as to the partial restriction, provided tlie restriction is so worded as to be divisible." ^^ tem Co., 65 N. J. Law, 255, 48 Atl. 2.37, 53 L. R. A. 449; KING v. KING, 63 Ohio St. 3(>3, 59 N. E. Ill, 52 L. R. A. 157, 81 Am. St. Kep. 635. 2 86 Robinson v. Green, 3 Mete. (j\Iass.) 159. 287 Ante, p. 323, note 284. See Carleton v. Woods, 28 N. H. 290; Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837; Wallier v. Lovell, 28 N. H. 138, 61 Am. Dec. 605; Boyd v. Eaton, 44 Me. 51, 69 Am. Dec. 83; Chase's Ex'rs v. Burkholder, 18 Pa. 48. If a sale of a nimiber of articles is for a gross price, the contract is indivisible, and, if a sale of some is prohibited, none of the price can be recovered. Eadd v. Dillingham, 34 Me. 316. And see Holt v. O'Brien, 15 Gray (Mass.) 311. 28 8 Bank of Australia v. Breillat, 6 Moore, P. C. 152, 201; U. S. v. Bradley, 10 Pet 343, 9 L. Ed. 448; State v. Board, 35 Ohio St. 519; State v. Findley, 10 Ohio, 51; Union Locomotive & Express Co. v. Railway Co., 35 N. J. Law, 240: Stewart v. Railway Co., 38 N. J. Law, at page 520; Presbury v. Fisher, 18 Mo. 50; Gelpcke t. City of Dubuque, 1 Wall. 175, 17 L. Ed. 520; Pennsyl- vania Co. T. Wontz, 37 Ohio St. 333; Ware v. Curry, 67 Ala. 274; U. S. v. Hodgson, 10 Wall. 395, 19 L. Ed. 937; U. S. v. Mora, 97 U. S. 413, 24 L. Ed- 1013. Contra, LINDSAY v. SMITH, 78 N. C. 328, 24 Am. Rep. 463. 280 PIGOT'S CASP:, 11 Co. Rep. 27b. 290 Pollock, Cont. (3d Ed.) 337. 231 Peltz V. Eichele, 62 Mo. 171; Dean v. Emerson, 102 Mass. 480; Mallon V. May, 11 Mees. & W. 653; Hubbard v. Miller, 27 Mich. 15, 15 Am. Rep. 153; Thomas v. Miles' Adm'r, 3 Ohio St. 275; Davies v. Lowen, 64 Law T. 655; Haynes v. «Dorman [1899] 2 Ch, 13; Smith's Appeal, 113 Pa. 579, 6 Atl. 251; Rosenbaum v. Credit System Co., 65 N. J. Law, 255, 48 Atl. 237, 53 L. R. A. 449. Contra, More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 62L A §§ 177-178) EFFECT OF ILLEGALITY. 325 Illustrations of this rule are also found in cases where a rnrpftj-ptinn has entered into an agreement, some parts of which are ultra vires, and so, in a sense, unlawful. It is held in such cases that, "where you can- not sever the illegal from the legal part, * * * the contract is alto- gether void ; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good." ^*^ These cases serve as an illustration, but it must be remembered that agreements of this nature are invalidated not so much by the illegality of their objects as by the incapacity of the corporation to bind itself.^^^ SAME— OBJECT UNLAW^FUL BUT INTENTION INNOCENT. 177. 'Where the direct object is illegal, the agreement is void, though the parties did not know of the illegality, since ignorance of IsLxv is no excuse. 178. EXCEPTIONS— This rrde does not ^pply (a) "Where the agreement can be, and is, legally performed in a way not originally contemplated, if there ixras no intention to break the law. (b) W^here a party performs his part in ignorance of a fact w^hich renders performance illegal, and w^hich he is not bound to know^. Where the direct object of the, parties is to do an .ilkgal_a£jL the agreement is void. In such a case it is immaterial' that they did not know their object was illegal, for ignorance of law is no excuse.^** A contract, for instance, in violation of a statute, cannot be sustained on the ground that the parties did not know of the existence of the statute. Ignorance of illegality, however, may become important if the con- tract admits of being performed, and is in fact performed, in a legal manner, though a detail in the performance as originally contemplated by the parties would, unknown to' them, have directly resulted in a breach of the law. In a leading case on this point the defendant had chartered the pl'aintiflF's ship to take a cargo of hay from a port in France to London, the cargo to be taken from the ship alongside and landed at a certain wharf. Unknown to the parties an order in council contract by which one formerly dealing in oil in the city of H. agreed not to prosecute such business within the state, the city of I. excepted, for five years, is not divisible, and, being void as to the restriction vrithiu the state, is void as to the resti'iction in the city of H. Consumers' Oil Go. v. Nimne.- malver, 142 Ind. 5G0, 41 X. E. 104S, 51 Am. St. Rep. 103. 292 Pickering v. Railway, L. R. 3 C. P. 25U; State T. Boai'd, 35 Ohio St. 519. 298 Ashbury Carriage Co. v. Kiche, L. R. 7 H. L. (553. See Anson, Cont. (Sth Ed.) 207. 204 Favor v. Philbriclc, 7 N. H. 32G; Rosenbauui v. Credit System Co., 64 N. J. Law, 34, 44 Atl. UCG. 326 LEGALITY OF OBJECT. (Ch. 8 had forbidden the landing of French hay. The defendant on learning this, instead of landing the cargo, took it from alongside the ship in the Thames into another ship, and exported it. In an action by the plain- tiff for delay of his vessel the defendant set up the unlawful intention as avoiding the contract, but without success. "We quite agree," it was said by the court, "that where a contract is to do a thing which cannot be performed without a violation of the law, it is void, whether the parties knew the law or not. But we think that, in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wick.ed_intention to break the law ; and, if this be so, the knowledge of what the law is becomes of great importance." ^^° Mistake of Fact. Though mistake of law does not excuse, it is otherwise in case of mistake of fact.-^® A father, for instance, may recover for services per- formed by his minor son, in unlawfully selling intoxicating liquors if he did not know the character of the services while his son was per- forming them. In reference to the defense of illegality in such a case it was said : "This defense is founded on a well-settled rul'e of law, that the law will not lend its aid to carry into effect any agreement made for the purpose of accomplishing things expressly prohibited by law. * * * The only question is whether it applies to this case. If the plaintiff did not place his son in the service of the defendant for the purpose of selling liquor illegally, more especially if he did not consent to it or know of it, then he is chargeable with no violation of law ; and being, by the general rule of law, entitled to compensation for the serv- ices of his son, the defense is not maintained," ^^'^ So, also, it has been held that an actor may maintain an action for his services in an unlicensed theatrical exhibition, unless it appears that he knew that his employer had no license. As said in such a case : "It is ignorance of a fact, and not of the law, that saves the plaintiff's case. He undoubtedly knew, or was bound to know, that unlicensed theatrical exhibitions were unlawful ; but he was not bound to know that the de- fendants had no license, and were doing unlawful acts." ^®® 295 WAUGH V. MORRIS, L. R. 8 Q. B. 202. See FOX v. ROGERS, 171 Mass. .540, 50 N. E. 1(M1. 298 Clark, Cr. Law (2d Ed.) 82. 207 Emery v. Kempton, 2 Gray (Mass.) 257. If, however, an agent sells liquor, for instance, knowing it is to be retailed in violation of law, his prin- cipal is charged with such knowledge. Fishel v. Bennett, 56 Conn. 40, 12 Atl. 102. 2 98 Roys V. Johnson, 7 Gray (Mass.) 162 (cf. STEWART v. THAYER, 168 Mass. 519, 47 N. E. 420, GO Am. St. Rep. 407). And see BLOXSOME v. WILLIAMS, 3 Barn. & C. 232; Miller v. Hirschberg (Or.) 37 Pac. 85. As illustrating this principle may also be mentioned bonds given to indemnify §55 179-181) EFFECT OF ILLEGALITY. 327 SAME— OBJECT INNOCENT BUT INTENTION UNLAWFUL. 179. W^here tlie direct object of an agTeement is injiocent in itself, bnt the intention of both parties is unlavirf ul, the agreement is void- ISO. 'Where the direct object of the agreement is innocent, but the in- tention of one of the parties is unlawful, as where goods are bought or money borrow^ed to be used for an unlawful purpose, the fact that the other party knoxes of such purpose does not render the agreement illegal, unless (a) He shares in the unlaAvful intention. (b) Or does some act in aid or furtherance of the other's unlaw^ful ^ design. ..^.a ,,,- X^ *-X«-»^<^ > (o) Or where the intention is to commit a crime xirhich is not merely malum prohibitum or of inferior criminality. 181. If the direct object of the agreement is innocent, and there is an unlaw^ful intention on one side only, of w^hich the other party is ignorant, the latter is entitled to full benefits under the agreement, or, while the agreement is still executory, he may avoid it. The English Rule. In England it is held that, where the direct object of a contract is innocent in itself, but one of the parties has in contemplation an unlaw- ful purpose, the contract is void if both parties knew of the illegal pur- pose at the time the contract was entered into; that, though there is nothing illegal in a loan of money or a sale of goods, still, if it is known by the lender or seller that the other party intends to use the money or the goods for an illegal purpose, neither the money lent, nor the goods supplied, can form the subject of an action ; that the whole transaction is void. Thus, where the plaintiff supplied a brougham to a prostitute, it was held not necessary to show that he expected to be paid from the proceeds of her calling; that his knowledge of her calling justified the jury in inferring knowledge of her purpose; and that this knowledge rendered the contract void. "My difficulty was," said Bramwell, B., "whether, though the defendant hired the brougham for that purpose, it could be said that the plaintiffs let it for the same purpose. In one sense it was not for the same purpose. If a man were to ask for duel- an officer or private person assisting him against liability for seizing goods under attacliment. or for arresting a person. If the otfiLcer knows tlie seizure or arrest to be unlawful, the bond is illegal; but it is otherwise if he acts in good faith, and in ignorance of the illegality, as where it is in dispute whether property is subject to levy. Stone v. Hooker, 9 Cow. (N. Y.) 154; Marsh v. Gold, 2 Pick (Mass.) 2So; Ives v. Jones, 25 N. O. 538, 40 Am. Dec. 421; Anderson v. Fams, 7 Blackf. (Ind.) 343; Avery v. Halsey, 14 Pick. (Mass.) 174; Davis v. Tibbats, 7 J. J. Marsh. (Ky.) 264: McCartney v. Shepard, 21 Mo. 573, 64 Am. Dec. 250; Whitney v. Gammon, 103 Iowa, 363, 72 N. W. 551. 328 LEGALITY OF OBJECT. (Ch. 8 ing pistols, and to say, 'I think I shall fight a duel tomorrow,' might not the seller answer, 'I do not want to know your purpose. I have nothing to do with it, that is your business. Mine is to sell the pistols, and I look only to the profit of the trade.' No doubt the act would be immoral, but I have felt a doubt whether it would be illegal ; and I should feel it still but that the authority of Cannan v. Bryce "^ and McKinnell v. Robinson ^"^ concludes the matter." ^"^ The Rule in America. There is some conflict in this country on this point, but the cases, on the whole, are consistent with the rule that the qiere knowledge on the p,ail-jaf.-Dn£..party to a contract.thalL- the other contemplat es an illegal purpose will not invalidate the contract. , We can best arrive at a cor- rect understanding of the rules established by the weight of authority in this country by taking cases of sale s_of goods and loans^f, money for illustrations, as it is generally with reference to them that the question arises. We will divide the subject accordingly, as some of the courts seem to have made a distinction between sales of goods and loans of money. Same — Sale. It is everywhere settled that, if it is a part of the contract under which the goods are sold that they shall be used for an unlawful pur- pose, then the contract is void, and the price cannot be recovered ; and the same is no doubt true where goods are sold for the purpose of enabling the buyer to accomplish an unlaw^ful purpose, for in the latter case there is an unlawful intention on the part of both parties.^"^ Some 289 3 Barn. & Aid. 179. «oo 3 Mees. & W. 435. 301 PEARCE V. BROOKS, K R. 1 Exch. 218. This case seems to have gone further than the cases which the court followed, which were actions brought for the recovery of money lent for an illegal object, the money being furnished for the express purpose of accomplishing that object. 302 Talmage v. Pell, 7 N. Y. 328; St. Louis Fair Ass'n v. Carmody, 151 Mo. 5G(J, 52 S. W. 3G5, 74 Am. St. Rep. 571. It has been held, for instance, that if liquor is sold for the express puiiiose of enabling the buyer to retail it in violation of law, the sale is illegal. Kohn v. Melcher (C. C.) 43 Fed. 641, 10 L. R. A. 439. It has also been held that if a house is knowingly leased or furniture sold to be used as or in a bawdy house, or for any other unlawful purpose, the rent or price cannot be recovered. Doughei-ty v. Seymour, 16 Colo. 2SQ, 26 Pac. 823; Ashbroolv v. Dale, 27 Mo. App. 649; Ernst v. Crosby, 140 N. Y. 364, 35 N. E. 603; Riley v. Jordan, 122 Mass. 231; Edelmuth v. McGan-en, 4 Daly (N. Y.) 467; Ralston v. Boady, 20 Ga. 449; Sherman v. Wilder, 106 Mass. 537; Reed v. Brewer, 90 Tex. 144. 37 S. W. 418; Chateau V. Singla, 114 Cal. 91, 45 Pac. 1015. 33 L. R. A. 750, 55 Am. St Rep. 63; Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Pac. 145, 51 L. B. A. 889, 79 Am. St. Rep. 960. Some of the above cases come very close to the English rule. See, also, Mound v. Barker, 71 VL 253, 44 Atl. 346, 76 Am. St. Rep. 767. §§ 179-181) EFFECT OF ILLEGALITY. 329 cases hold that the sale is void if made "with a view to" the illegal purpose. ^''^ It is also settled that if, in addition to a sale of goods which the ven- dor knows are to be used for an illegal purpose, he does some act in aid or furtherance of the unlawful design, his contract is void, and he can- not recover the price. An example of such a case is where a person who sells goods not only knows that his vendee intends to smuggle them into the country, but packs them up or marks them in a manner convenient for the purpose, with a view of their being smuggled.^"* If the vendor of goods knows that they are to be used for the per- petration of a criiiie which is not merely malum prohibitum or of in- ferior criminality, even though he may not expressly stipulate that they shall be so used, and though he does nothing further than furnishing them to aid in such use, the cont ract of sale js illegal and void, and he 308 Webster r. Hunger, 8 Gray (Mass.) 584; GRAVES v. JOHNSON, 156 Mass. 211, 30 N. E. 818, 15 L. E. A. 834, 32 Am. St. Rep. 446; Davis v. Bron- son, 6 Iowa, 410. "When a sale of intoxicating liquors in another state has just so much gi-eater approximation to a breach of the Massachusetts law as is implied in the statement that it is made with a view to such a breach it is void. Webster v. Hunger, 8 Gray, 584; Orcutt v. Nelson, 1 Gray, 536. 541; Hubbell v. Flint, 13 Gray, 277, 279; Adams v. Coulliard, 102 Mass. 107, 172, 173. * * * If the sale would not have been made but for the seller's desire to induce an unlawful sale in Maine, it would be an unlawful sale. * * * We assume that the sale would have taken place whatever the buyer had been expected to do Avith the goods. * * * The question is whether the sale is saved by the fact that the intent mentioned was not the controlling inducement to it. * * ' If the sale is made with the de- sire to help him (the buyer) to his end, although primarily made for money, the seller cannot complain if the Illegal consequence is attributed to him. If the buyer knows that the seller while aware of his intent is indifferent to it, or disapproves of it, it may be doubtful whether the connection is sufficient. It appears to us not unreasonable to draw the line as was drawn In Webster v. Hunger, 8 Gray, 584, and to say that when the illegal intent of the buyer is not only known to the seller, but encouraged by the sale, as just explained, the sale is void." GRAVES v. JOHNSON, supra, per Holmes, J. 804 TRACY V. TALMAGE, 14 N. Y. 162, 67 Am. Dec. 132; Waymell v. Reed, 5 Term R. 599; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Arnot V. Coal Co., 68 N. Y. 566, 23 Am. Rep. 190; Foster v. Thurston, 11 Cush. (Mass.) 322; Skiff v. Johnson, 57 N. H. 475; Banchor v. Hansel, 47 He. 58. Concealing and disguising form of liquor sold, in order to evade the law. AIKEN V. BLAISDELL, 41 Vt. 655. In Massachusetts the court has shown an inclination to follow the English rule on this point. In Mclntyre v. Parks, 3 Hetc. (Hass.) 207, it was held that the bare fact of knowledge on the part of the vendor of the vendee's unlawful intent was not enough to avoid the sale; but this case, though not overruled, was criticised in Webster v. Hunger, 8 Gray (Hass.) 584. And see GRAVES v. JOHNSON, 156 Hass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Hubbard V. :\loore, 24 La. Ann. 591, 13 Am. Rep. 128; Sampson v. Townseud, 25 La. Ann. 78; Fishel v. Bennett, 56 Conn. 40, 12 Atl, 102. 330 LEGALITY OF OBJECT. (Ch. 8 cannot recover the price.^"^ It seems that it is otherwise where the crime intended to be perpetrated is merely malum prohibitum or of inferior criminaHty.^°® If the particular circumstances do not bring the contract of sale within any of the cases mentioned above, then, according to the weight of authority in this country, the contract of sale is not illegal merely because the vendor knew that the goods were intended to be used for an unlawful purpose.^"^ "The law," it is said in a New York case, "does not punish a wrongful intent when nothing is done to carry that intent into efifect ; much less bare knowledge of such an intent, without any participation in it. Upon the whole, I think it clear, in reason as well as upon authority, that in a case like this, where the sale is not necessarily per se a violation of law, unless the unlawful purpose enters into and forms a part of the contract of sale, the vendee cannot set up his own illegal intent in bar of an action for the purchase money." ^°* Same — Loan. According to the weight of authority, if a person lends money to another for the express purpose of enabling the borrower to use it to accomplish an illegal object, the transaction is illegal, and he cannot recover it.^°® It is not easy to draw any legal distinction in respect to 305 HANAUER y. DOANE, 12 Wall. 342, 20 L. Ed. 439; Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717; Lightfoot v. Tenant, 1 Bos. & P. 556; Langton V. Hughes, 1 Maule & S. 593; TRACY v. TALMAGE, 14 N. Y. 162, 67 Am. Dec. 132; Howell v. Stewart, 54 Mo. 40O; Russell v. Post, 138 U. S. 425, 11 Sup. Ct. 353, 34 L. Ed. 1009. 306 HANAUER v. DOA^^E, 12 Wall. 342, 20 L. Ed. 439; Gaylord v. Sor- agen, 32 Vt. 110, 76 Am. Dec. 154; Hodgson v. Temple, 5 Taunt 181; Howell V. Stewart, 54 Mo. 404. 307 TRACY V. TALMAGE, 14 N. Y. 162, 67 Am. Dec. 132; Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205; ANHEUSER-BUSCH BREWING ASS'N v. MASON, 44 INIinn. 318, 46 N. W. 558, 9 L. R. A. 506, 20 Am. St. Rep. 580; HANAUER V. DOANE, 12 Wall. 342, 20 L. Ed. 439 ; Bickel v. Sheets, 24 lud. 1; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154 (but see Terrltt v. Bart- lett, 21 Vt. 184; McConihe v. McMann, 27 Vt 95); Walker v. JeCEries, 45 Miss. 160; Webber v. Donelly, 33 Mich. 469; Cheney v. Duke, 10 Gill & J. (Md.) 11; Michael v. Bacon, 49 Mo. 474, 8 Am. Rep. 138; Hedges v. Wallace, 2 Bush (Ky.) 442, 92 Am. Dec. 497 ; Ai-mfield v. Tate, 29 N. C. 258 ; Rose v. Mitchell, 6 Colo. 102, 45 Am. Rep. 520; McKinney v. Andrews, 41 Tex. 363 (but see Roquemore v. Alloway, 33 Tex. 461); Howell v. Stewart, 54 Mo. 400; Dela- vina V. Hill, 65 N, H. 94, 19 Atl. 1000; Gambs v. Sutherland's Estate. 101 Mich. 355, 59 N. W. 652; Goodall t. Bremng Co., 56 Ohio St 257, 46 N. E. 983. He who performs labor and furnishes materials for a bar and the room containing it may recover, though he loiew they were intended to be used for unlawful pm-poses. Brj'son v. Haley, 68 N. H. 337, 38 Atl. 1006. •OS TRACY V. TALMAGE, 14 N. Y. 162, 67 Am. Dec. 132. 800 Cannan v. Bryce, 3 Barn. & Aid. 179; McKINNELL v. ROBINSON, 3 Mees. & W. 435 ; TYLER v. CARLISLE, 79 Me. 210, 9 Atl. 356, 1 Am. St Rep. 301 ; White v. Buss, 3 Cush. (Mass.) 448 ; Ruckman v. Bryan, 3 Denio (N. Y.) §§ 179-181) EFFECT OF ILLEGALITY. 331 I the legality of the transaction between a loan of money to be used for an illegal purpose and a sale of goods to be so used, and probably there is none. In a leading case it is said : "The plaintiff claims to recover a sum of money loaned by him while the defendant was engaged in playing- at cards. The ruling at the trial was that if the plaintiff lent the money with an express understanding, intention, and purpose that it was to be used to gamble with, and it was so used, the debt so created ■cannot be recovered, but otherwise if the plaintiff had merely knowledge that the money was to be so used. Upon authority and principle the ruling was correct. * * * j^ order to find the le nder in fault, he niust himself have an intention that the money shall T)e illegally used. There must be a combination of intention between lender and bor- rower, — a union of purposes. The lender must in some manner be a confederate or participator in the borrower's act, — be himself implicated in it. He must loan his money for the express purpose of promoting the illegal design of the borrower ; not intend merely to serve or accom- modate the man." ^^° Unlazvful Intention on One Side Only. Where one of the parties intends a contract, innocent in itself, to further an illegal purpose, and the other enters into the contract in ignorance of his intention, the innocent party i s entit led t Q full he^^t.s u nder the co ntract.^^^ In the\a56 Of (i6ntracts ot sal'e lor future de- livery, for instance, if one o ^he partk s - intendo a bona fide sale, he may enforce the contract, though the other party may have intended no actual saleTtrntrrrrerely an illegal speculation on future prices. ^^^ 346 ; Peck v. Briggs, Id. 107 ; Cutler v. Welsh, 43 N. H. 497 ; Wright v. Crabbs, 78 Ind. 487 ; Mordecai v. Dawkius, 9 Rich. Law (S. C.) 2G2 ; Williamson v. Ba- ley, 78 Mo. 636 ; Euierson v. Townsend, 73 Md. 224, 20 Atl. 984 ; Raymond v. I.eavitt, 46 Mich. 447, 9 N. W. 525, 41 Am. Rep. 170; Critcher v. Holloway, 64 N. 0. 526; Viser v. Bertrand, 14 Ark. 267; White v. Wilson's Adm'ra (Ky.) 38 S. W. 495. It has been said, however, that money, though loaned for the purpose of being used for gambling purposes, may be recovered, if it was not in fact so used. TYLER v. CARLISLE, supra. 310 TYLER V. CARLISLE, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301. And see Armstrong v. Bank, 133 U. S. 433, 10 Sup. Ct. 450, 33 L. Ed. 747 Plank V. Jackson, 128 Ind. 424, 26 N. E. 568, 27 N. E. in7; Jackson v Bank, 125 Ind. 347, 25 N. E. 430, 9 L. R. A. 657; Howell v. Stewart, 54 Mo 400; Lyon v. Respass, 1 Litt. (Ky.) 133; Lewis v. Alexander, 51 Tex. 578 Waugh V. Beck, 114 Pa. 422, 6 Atl. 923, 60 Am. Rep. 354; Jones v. Bank 9 Heisk. (Teun.) 455. A loan of money, intended to pay lost bets, has been held to be recoverable. "The mischief had been completed," it was said in such a case. "The illegal act had been carried out before the money was lent." Pyke's Case, 8 Ch. Div. 756. And see Armstrong v. Toler, 11 Wheat. 258, 6 L. Ed. 468; Armstrong v. Bank, 133 U. S. 433, 10 Sup. Ct. 450, 33 L. Ed. 747. siiPIXLEY V. BOYNTON, 79 111. 351; Quirk v. Thomas, 6 Mich. 76; Scanlon v. Warren, 169 111. 142, 48 N. B. 410. 312 Williams v. Tiedemann, 6 Mo. App. 269; PIXLEY v. BOYNTON, 79 332 LEGALITY OF OBJECT. (Ch. 8 On the other hand, if the contract is still executory, he is not bound to go on with it, but may avoid it at his option.^ ^^ Thus where, in an action for breach of an agreement by the defendant to let to plaintiff a set of rooms, it appeared that the plaintiff intended to use the rooms for the purpose of delivering blasphemous lectures, which were unlaw- ful under a statute, though the defendant was not aware of such a pur- pose when the agreement was made, and he afterwards refused to allow the plaintiff to use the rooms, it was held that he was entitled to avoid the contract.*^* SABHQ— PROMISES TO PAY MONEY DUE ON IIXEGAIi TRANSACTIONS. 182. The effect of a promise to pay money due or to become due upon an. illegal transaction may be stated as foUoivs: (a) Vriiere tie transaction -was illegal in tlie strict sense, and not merely void and unenforceable, tbe promise, not being in tbe form of a negotiable instriiment, is void, xtrbetber under seal or not. (b) Wbere the transaction vras not illegal, but merely void and unen- forceable, a parol promise, not being in tbe form of a negotiable instrument, is void as xvithout consideration; but a promise under seal is valid. (c) Where the promise is in the form of a negotiable instrument the above rules still apply as betiveen the immediate parties, and as against all persons who are not bona fide purchasers for value. In the hands of bona fide purchasers for value the in- strument is valid, \rhether the transaction ivas illegal or mere- ly void, unless a statute declares that the instrument shall be void. Where a promise has been given to secure the payment of money due or about to become due upon an illegal transaction, the validity of such a promise, as between the immediate parties, or others occupying the same position, is based upon two considerations : (i) Whether the transaction was illegal or merely void, and (2) whether or not the promise is made under seal. Where the promise is given in the form of a negotiable instrument, a further question arises as to its value in the hands of third parties, but it will prevent confusion if we treat of the latter question separately. There is a distinction, not very easy to analyze, but of considerable practical importance, between cases in which the common law or stat- in. 351; Whitesides v. Hunt, 97 Ind. 191, 49 Am. Rep. 441; Gregory v. Wendell, 39 Mich. 337, 33 Am. Rep. 390. Post, p. 341. 313 COWAN V. MILBOURN, L. R. 2 Excli. 230; CHURCH ▼. PROCTOR, G6 Fed. 240, 13 C. C. A. 426. And see Clay v. Yates, 1 Hurl. & N. 78. But see O'Brien v. Prioteul)acIi, 1 Hilt. (X. Y.) 304. 314 COWAN V. MILBOURN, L, R. 2 Exch. 230. § 182) EFFECT OF ILLEGALITY. 333 iites make an object illegal, and cases in which they make it merely void. The effect of the difference is this : that in the one case the promise is regarded as given upon an illegal consideration, while in the other it is regarded as given on no consideration at all. In the first case every- thing connected with the transaction is "tainted with illegality,"- while in the second collateral contracts arising out of the avoided transaction are, under certain circumstances, supported. In cases where the tra nsaction is__illeg al, a promise, even under seal, given to se cure the payment of money due upon it, is void. In an action upon a covenant to pay money, in which the defense was that the cove- nant was security for the payment of a sum of money due upon a pur- chase of land conveyed for a purpose prohibited by statute, the court of exchequer chamber, reversing the judgment of the queen's bench, held that the illegality, when proved, tainted the subsequent promise, and that this was not a simple promise to pay money, but that it "springs from and is the creature of the illegal agreement." ^^'^ It will be noticed that in the case mentioned the promise was under seal, but that made no difference ; for, although want of consideration will not defeat a sealed contract, the seal will not prevent the contract from being void if the consideration, where there was a consideration, was illegal. The objec- tion on the ground of illegality is "rather that of the public, speaking through the court, * * * not from any consideration of the moral position and rights of the parties, but upon grounds of public pohcy." ^'^^ Where the consideration is not illegal, but the transaction is merely void, a promise given to pay money due upon such a transaction is based upon no consideration at all. If made under seal, it is binding, for no consideration is then necessary ; but, if made by parol, it is void. Where a municipal corporation, for instance, borrowed money, and gave a mortgage, which a statute declared it unlawful for them to give without complying with certain conditions which they failed to observe, it was held that, though the mortgage was invalid, the corporation was liable on its covenant therein to repay the money it had received.^ ^' So, also, in case of promises of payment made in consideration of past illicit cohabitation, the promises are invalid if made by parol ; not on the 31B Fisher v. Bridges, 3 El. & Bl. 642. And see Everingham v. Meighan, 55 Wis. 354, 13 N. W. 209; Claflin v. Torlina, 50 Mo. 3G9; Howe v. Litclifleld, 3 Allen (ilass.) 443; Btanton v. Allen. 5 Denio (N. Y.) 435, 49 Am. Dec. 2S2; Holden v. Cosgrove, 12 Gray (INLass.) 21G; Hall v. Gavitt, 18 Ind. 300; Cross- ley V. Moore, 40 N. J. Law, 27; Chancely v. Bailey, 37 Ga. 532, 95 Am. Dec. 350; Coulter v. Robertson, 14 Smedes & M. (Miss.) 18. "i6L5'on V. Waldo, 30 Mich. 315, 353. See Parks v. McKamy, 3 Head (Tenn.) 207; Wooden v. Sliotwcll, 23 N. J. Law, 405; Buffendoau v. Brooks, 28 Cal. 041; Seidenbender v. Charles' Adm'rs, 4 Serg. & R. (Pa.) 151, 8 Am. Dec. 062. 317 Payne v. Maj-or of Brecon, 3 Hurl. & N. 579. 334 LEGALITY OF OBJECT. (Ch. 8- ground that the consideration is illegal, but because there is in fact no consideration at all.^^*^ A bond given upon such a past consideration, because of the seal, would be binding.^^"* It is often a difficult question to determine whether a given contract is illegal or merely void, and there is much direct conflict in the de- cisions. Of course there can be no question but that it is illegal where it involves the commission of a crime which is raalumjn_ _se, or, it seems, where it tends to the pi-pj ndirp of the pi thHcj and is void be- cause againsi43ubli€--policy ; ^^^ but it is not so easy to declare a trans- action illegal in the strict sense, where it is only unlawful because pro- hibited by statute. In an English case it was held that a note given to secure the payment of money under a wagering contract did not take its inception in illegality within the meaning of the rule we have been discussing. "There is no penalty attached to such a wager," it was said. "It is not in violation of any statute, nor of the common law, but is simply void ; so that the consideration was not an illegal con- sideration, but equivalent in law to no consideration at all." ^^^ In those of our states where wagers are held contrary to public policy, even where there is no statute prohibiting them, the ruling on this point would be different.^^^ Negotiable Instruments. In the case of negotiable instruments we have to consider not only the effect of the illegality as between the original parties, but the ef- fect upon subsequent holders of the instrument. A negotiable instru- ment given upon an illegal transaction is like any other simple contract as between the immediate parties, and cannot be enforced unless it has passed into the hands of a bona fide purchaser for value. ^-^ Whether it can be enforced in the latter event will depend on the cir- cumstances. The position of such a purchaser may be shortly stated as follows : (i) If the transaction in which the instrument was given was not illegal, but merely void, so that the instrument is based, not on an il- legal consideration, but on no consideration at all, it may be enforced by one who purchased the same for value before maturity, and with- 818 BEAUMONT v. REEVE, 8 Q. B. 483. sioAyerst v. Jeukins, L. R. 16 Eq. 275. 320 BISHOP V. PALMER, 14G Mass. 469, 16 N. E. 299, 4 Am. St. Rep. 339; HARVEY v. MERRILL, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159. a2i Fitch V. Joues, 5 El. & Bl. 245. See, also, TH ACKER v. HARDY, 4 Q. B. Div. 685. 822 Embrey v. Jeraison, 131 U. S. 336, 9 Sup. Ct. 776, 33 L. Ed. 172; HARVEY V. ^n<:RRlLL, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159; MOHR V. MIESEN, 47 Minn. 228, 49 N. W. 862; ante, p. 279. S23 Embrey v. Jemison, 131 U. S. 336, 9 Sup. Ct. 776, 33 L. Ed. 172. § 182) EFFECT OF ILLEGALITY. 335 out notice of the want of consideration. In such a case it is to be pre- sumed, prima facie, that the holder paid value, and had no notice of want of consideration.^^* (2) If the transaction in wliich the instrument was given was illegal, unless the illegality is by force of a statute which renders the instru- ment absolutely void, a bona fide holder for value may enforce it. "If the legislature has declared that the illegality of the contract or con- sideration shall make the note void, the defendant may set up that defense, though the note be in the hands of a bona fide holder; ^^'^ but unless it has been so expressly declared by the legislature, illegal- ity of consideration will be no defense against a bona fide holder, without notice, and for sufficient consideration, unless he obtained the note after it became due." ^-® In such a case, however, the ordinar>' presumption in favor of the holder does not exist. Upon proof of the illegality which tainted the instrument in its inception, the holder must show that he paid value for the instrument; and even then, if it is shown that he knew of the illegality, he cannot recover.*^^ Most courts even hold that the burden is on the holder to show that he had no notice of the illegality.^ ^^ 824 Norton, Bills & N. (3d Ed.) 327, 332; Mechanics' & Traders' Nat Bank V. Crow, 60 N. Y. 85; Harger v. Worrall, 69 N. Y. 370, 25 Am. Rep. 206; Little V. Mills, 98 Mich. 423, 57 N. W. 266. 32 5 City of Aurora v. West, 22 Ind. 88, So Am. Dec. 413; Laffonda Nat. Bank v. 'Portner, 46 Ohio St. 381, 21 N. E. 634; Meadow v. Bird, 22 Ga. 246; Unger v. Boas, 13 Pa. 001; Snoddy t. Bank, 88 Term. 573, 13 S. W. 127, 7 L. R. A. 705, 17 Am. St. Rep. 918; Harper v. Young, 112 Pa. 419, 3 Atl. 670; Emerson v. Townsend, 73 Md. 224, 20 Atl. 984; Lucas v. Waul, 12 Smcdes & M. (Miss.) 157; Faris v. King, 1 Stew. (Ala.) 255; Traders' Bank v. Alsop, 64 Iowa, 97, 19 N. W. 8(!o. 326 Vallett V. Parker, 6 Wend. (N. Y.) 615; Town of Eagle v. Kohn, 84 111. 292; Sondheim v. Gilbert, 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St Rep. 23; Glenn v. Bank, 70 N. C. 191; Fuller v. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600; Bayley v. Taber, 5 Mass. 286, 4 Am. Dec. 57; Root V. Merriam (C. C.) 27 Fed. 909; Crawford v. Spencer, 92 Mo. 498, 4 S. W. 713, 1 Am. St Rep. 745; Shaw v. Clark, 49 Mich. 384, 13 N. W. 786, 43 Am. Rep. 474; Thome v. Yontz. 4 Cal. 321; Meadow v. Bird, 22 Ga. 246; Johnston v. Dickson, 1 Blackf. (Ind.) 256; Rockwell v. Charles, 2 Hill (N. Y.) 499; Knox v. White, 20 La. Ann. 326. But see Cunningham v. Bank, 71 Ga. 400, 51 Am. Rep. 266. 327 Note 325, supra. 328 Norton, Bills & N. (3d Ed.) 333; Canajoharie Nat Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676; Vosburgh v. Diefendorf, 119 N. Y. 357, 23 N. E. 801, 16 Am. St. Rep. 836; McDonald v. Aufdengarten. 41 Neb. 40, 59 N. W. 762; State Nat Bank v. Bennett 8 Ind. App. 679, 36 N. B. 551. 336 LEGALITY OF OBJECT. (Ch. 8 SAME— RELIEF OF PARTY TO UNLAWFUL AGREEMENT. I S3. In no case can an action be maintained to enforce an illegal agreement. 184. WTiere an agreement has been executed in T^hole or in part by the payment of money or the transfer of other property, the coiirt will not generally lend its aid to recover it back. The rnle is that the court will not lend its aid to a party w^ho, as the ground of his claim, must disclose an illegal transaction. This rule is subject to exceptions as follow^s, w^here the action is brought, not to enforce the agreement, but in disaffirmance EXCEPTIONS— (a) In some cases a locus poenitentise remains, and, while the agreement is unperformed, money or goods delivered in furtherance of it are allow^ed to be recovered. (b) 'Where the parties are not in pari delicto, the on© w^ho is less guilty may recover w^hat he has parted with, as (1) Where the party asking relief w^as induced to enter into the agreement under the influence of fraud or strong pressure. (2) Where the laiv \Fhich makes the agreement unlaw^ful w^as intended for the protection of the party asking relief. 185. A broker, or other agent, employed to carry out an illegal trans- action, cannot recover compensation, reimbursement, or indem- nity in respect to the transaction, if he w^as privy to the princi- pal's unlawful purxiose. r - It is a well-settled rule that in no case will the court lend its aid to the enforcement of an illegal agreement. Further than this, if the agreement has been executed, in whole or in part, by the payment of money or transfer of property, the court will not, as a rule, entertain an action to recover it back. The rule is necessary on the ground of public policy. "The objection," said Lord Mansfield in a leading case, "that a contract is immoral or illegal, as between plaintiff and defend- ant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is -^y !_/''founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff; by accident, if I may so say. The principle of public policy is this : 'Ex dolo malo non oritur actio.' No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a posi- tive law of this country, there the court says he has no right to be as- sisted. It is upon that ground the court goes ; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the de- fendant was to bring his action against the plaintiff, the latter would §§ 183-185) EFFECT OF ILLEGALITY. 337 then have the advantage of it; for where both are equally In fault, 'potior est conditio defendentis.' " ^^^ "; ,^ &t r' "" As we have said, therefore, a party to an illegal agreement cannot, , ^r under any circumstances, come into a court of law or equity and ask "VtM*^ to have his illegal objects carried out; nor, as a rule, can he ask the court to relieve him from the effect of his agreement. He cannot set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. ^^"^ This rule is expressed in the maxim, 'ln_j)aT[jlelictpjpotior est conditio defendentis;" tliat is to say, where 329 HOLMAN V. JOHNSON, 1 Cowp. 341. See, also, FROST v. GAGE, 3 Allen (Mass.) 5G0; Shenk v. Phelps, 6 111. App. (512; Jameson v. Carpeuter, 08 N. H. (j2, 30 Atl. 554; Winchester Electric Light Co. v. Veal, 145 Ind. 500, 41 N. E. 334; Crichfield v. Paving Co., 174 111. 400, 51 N. E. 552, 42 L. R. A. 347. 330 Begbie v. Sewage Co., L. R. 10 Q. B. 400; BARCLAY t. PEARSON [1803] 2 Ch. 154; SCOIT? v. BROWN [1802] 2 Q. B. 12A; FROST v. GAGE, 3 Allen (Mass.) 500; EMERY v. CANDLE CO., 47 Ohio St. 320, 24 N. E. 000, 21 Am. St. Rep. 810; Hill v. Freeman, 73 Ala. 200, 49 Am. Rep. 48; Haynea v. Rudd, 102 N. Y. 372, 7 N. E. 287, 55 Am. Rep. 815; Gotwalt v. Neal, 25 Md. 434; Roman v. Mali, 42 Md. 513; Bartle v. Coleman, 4 Pet. 184. 7 L. Ed. 825; Miller v. Marckle, 21 111. 152; Myers v. Meinrath, 101 Mass. 300, 3 Am. Rep. 308; St. Louis, V. & T. H. R. Co. v. Railroad Co., 145 U. S. 393, 12 Sup. Ct. 953, 30 L. Ed. 748; Singer Mfg. Co. v. Draper, 103 Tenn. 202, 52 S. W. 879; Minzesheimer v. Doolittle, 00 N. J. Eq. 394, 45 Atl. Oil. Where persons are engaged in an unlawful transaction, the court will not entertain a suit for an accomiting in respect to the profits thereof. Jackson v. McLean (C. C.) 30 Fed. 213; McMullen v. Hoffman, 174 U. S. 039. 19 Sup. Ct. 839, 43 L. Ed. 1117; Craft v. McConoughy. 79 lU. 340, 22 Am. Rep. 171; Morrison v. Bennett, 20 Mont. 500, 52 Pac. 553, 40 L. R. A. 158; AtAvater v. Manville, 100 Wis. 04, 81 N. W. 985. But if money has been actually paid to an agent for the use of his principal, the legality of the transaction of which it was the fruit does not affect the right of the principal to recover it out of the agent's hands, on the ground that, though the law would not have assisted the principal by enforcing the recovery of it from the party by whom it was paid, yet, when that contract is at an end, the agent, whose liability arises solely from having received the money for another's use, can have no right to retain it. Tenant v. Elliott, 1 Bos. & P. 3; Farmer v. Russell, Id. 295; McBlair v. Gibbes, 17 How. 230, 15 L. Ed. 332; Brady v. Horvath, 107 111. 010, 47 N. E. 757; Hertzler v. Geigley, 190 Pa. 419, 40 Atl. 300, 79 Am. St. Rep. 724; Hardy v. Jones. 03 Kan. 8, 04 Pac. 909, 88 Am. St. Rep. 223. In Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732, among other cases, the principle was applied so as to allow one member of a firm formed for the purpose of illegal transactions to recover from the other member his share of the profits. See, also, in support of this doctrine. State v. Railro.id Co., 34 Md. 344. at page 305; Bonsfield v. Wilson, 10 Mees. & W. 185; Haacke v. Knights of Liberty, 70 Md. 429, 25 Atl. 422; Daniels V. Barney, 22 Ind. 207; Peters v. Grim, 149 Pa. 103, 24 Atl. 192. 34 Am. St. Rep. 599; Portsmouth Brewing Co. v. Modge, 08 N. II. 402, 44 Atl. 000; McDonald v. Lund, 13 Wash. 412, 43 Pac. 348; Andrews v. Association, 74 Miss. 302, 20 South. 837, GO Am. St. Rep. 509. There is certainly little reason in the distinction. One sued on an implied contract for services rendered Clark Cont. (2d Ed.)— 22 338 LEGALITY OF OBJECT. (Ch. 8 j the parties are equally in fault tlie condition of the defendant is the | better. The law, in such a case, will leave the parties where it finds them.'^^ There are some exceptional cases, however, as stated in the black- j letter text, in which a man may be relieved from an illegal agreement. I Locus PoenitenticB. * Although there is some difference of opinion on the subject, it is safe to say that in some cases of illegal agreements, at least if they are pot mala in se, but merely mala prohibita, a locus poenitentiae remains, andT:hat, while the illegal object has not been carried out by perform- ance of the agreenient, money paid or goods delivered under it may be recovered. ^^^ "It best comports with public policy to arrest the illegal proceeding before it is consummated." ^^^ In a leading English case on this point the plaintiff had made a fictitious assignment of goods to a third party, to defraud his creditors, and the defendant, with a knowledge of the circumstances, had taken a bill of sale of the goods from the assignee, and afterwards, though the plaintiff demanded them back, liad caused them to be put up at auction and sold. Noth- ing further had been done in respect of the fraud contemplated against the creditors, and the plaintiff was allowed to recover, on the ground that, as the illegal purpose was not carried out, there was a locus poeni- tentiae. "If money is paid," it was said in that case, "or goods de- livered, for an illegal purpose, the person who has so paid the money or delivered the goods may recover them back before the illegal purpose^ is carried out; but if he waits until the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action." ^^* So, also, in a case where persons had each deposited money with may under a general denial show an express contract, and It is immaterial that sncb express contract was unlawful. STEWAllT v. THAYER, 170 Mass. 5G0, 49 N. E. 1020. "31 Howson V. Hancock, 8 Tenn R. 575; Perkins v. Savage, 15 Wend. (N. Y.) 412; Buit V. Place, 6 Cow. (N. Y.) 431. 332 TYLER V. CARLISLE, 79 Me. 210, 9 Atl. 35G, 1 Am. St. Rep. 301; BARCLAY V. PEARSON [1893] 2 Ch. 154; Clarke v. Brown, 77 Ga. GOO, 4 Am. St. Rep. 98; Peters v. Grim, 149 Pa. 1G3, 24 Atl. 192, 34 Am. St. Rep. 599; Skinner v. Henderson, 10 Mo. 205; Adams Exp. Co. v. Reno, 48 Mo. 2G4; Souhegan Nat. Bank v. Wallace, 61 N. H. 24; Wassermaun v. Sloss, 117 Cal. 425, 49 Pac. 5GG, 38 L. R. A. 17G, 59 Am. St. Rep. 209; Stansfield V. Kunz, G2 Kan. 797, G4 Pac. G14. But see Knowlton v. Spring Co., 57 N. Y. 518. 333 Stacy V. I'oss, 19 Me. 335, 36 Am. Dec. 755. 33* Taylor v. Bowers, 1 Q. B. Div. 291. See, also. Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Gowan's Adin'r v. Gowan, 30 Mo. 472. The prin- ciple of Taylor v. Bowers, supra, as w^ell as its application, was questioned in Kearley v. Thomson, 24 Q. B. Div. 742, 746. §§ 183 185) EFFECT OF ILLEGALITY. 339 another on a wager, and one of them, after a decision of the wager against him, but before the money was paid over, demanded it back, he was allowed to recover.^ ^"^ On the other hand, if the illegal object has been effected by the mere deposit of the money or goods, they cannot be recovered. And it seems that, if the illegal contract has been performed in part, there can be no recovery.^^" In an English case the defendant had agreed with the plaintiff to go bail for him for a specified time if the plaintiff would deposit with him the amount of the bail as an indemnity against his (plaintiff's) possible default, the defendant undertaking to return the money at the expiration of the specified time. Before the time had expired, the plaintiff sued for the money, on the ground that the agreement was illegal, and that he was entitled to rescind it. It was held that the illegal purpose was effected when the public lost "the pro- tection which the law affords for securing the good behavior of the plaintiff;" for, as it was said, "when a man is ordered to find bail, and a surety becomes responsible for him, the surety is bound, at his peril, to see that his principal obeys the order of the court. * * * But if money to the amount for which the surety is bound is deposited with him as an indemnity against any loss which he may sustain by reason of his principal's conduct, the surety has no interest in taking care that the condition of the recognizance is performed." ^^'' So, also, where a person placed money to the credit of a corpora- tion to give it a fictitious credit in case of inquiries, the money to be returned to him at a specified time, and he sued to recover the same 836 HAMPDEN V. WALSH, 1 Q. B. Div. 189. And see Fisher v. Hildretb,. 117 Mass. 558; BERNARD v. TAYLOR, 23 Or. 416, 31 Pac. 9G8, 18 L. R. A. 859, 37 Am. St. Rep. G93; Lewis v. Bruton, 74 Ala. 317, 49 Am. Rep. 816; Weaver v. Harlan, 48 Mo. App. 319; McDonough v. Webster, 68 Me. 530; McAllister v. Hoffman, 16 Serg. & R. (Pa.) 147, 16 Am. Dec. 556; TYLER V. CARLISLE, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301; Stacy v. Foss, 19 Me. 335, 36 Am. Dec. 755; Wheeler v. Spencer, 15 Conn. 28; House v. McKenuey, 46 Me. 94; Shannon v. Baumer, 10 Iowa, 210; Hodson v. Terrill, 1 Cromp. & M. 797; Hastelow v. Jackson, 8 Bam. & C. 221; Martin v. Hewson, 10 Exch. 737; Strachan v. Stock Exchange [1895] 2 Q. B. 329; Pabst Brewing Oo. v. Listen, 80 Minn. 473, 83 N. W. 448, 81 Am. St. Rep. 275. In many states by statute persons who have lost money by gambling may, under certain circumstances, recover it back. In some states by statute any money betted or staked is forfeit. Ferguson v. Yunt, 13 S. D. 120, 82 N. W. 509. In some by statute a stakeholder on notice must retui-n it. Turner v. Thompson, 107 Ivy. 647, 55 S. W. 210. 336 Keasley v. Thomson, 24 Q. B. Div. 742; Ullman v. Association, 167 Mo. 273, 66 S. W. 949, 56 L. R. A. 606; Anson, Cont. (Sth Ed.) 219. 33 7 Herman v. .lenchner, 15 Q. B. Div. 561, overruling Wilson v. Stnignell. 7 Q. B. Div. 548. Otherwise where an agreement to indemnify the signer of a bail bond against loss is not against public policy. MALONEY v. NEL- SON, 12 App. Div. 545, 42 N. Y. Supp. 418; MOLONEY v. SAME, 158 N. Y. 351, 53 N. E. 31. 340 LEGALITY OF OBJECT. (Ch. 8 after the company had gone into liquidation, he was not allowed to recover, because "the object for which the advance was made was attained as the company continued to have a fictitious credit till the commencement of the winding-up." ^^^ Par Delictum. If the party asking to be relieved from the effect of an illegal agree- ment was induced to enter into the agreement by means of fraud, he is not always regarded as being in pari delicto with the other party, and the court may relieve him. As illustrating this rule is a case in which a party sued in equity to set aside a conveyance made in pur- suance of an agreement which was illegal on the ground of champerty. It was urged that the parties were in pari delicto, but the court, being satisfied that the plaintiff had been induced to enter into the agreement by the fraud of the defendant, held that he was entitled to relief. "Where the parties," it was said, "to a contract against public policy, or illegal, are not in pari delicto (and they are not always so), and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the trans- action, relief is given to him." ^'* So, where the party asking relief was induced to enter into the agree- ment under the influence of duress, strong pressure, or undue in- fluence.^*" "This is not a case of par delictum," it was said by an English judge in reference to a case of duress. "It is oppression on one side and submission on the other. It never can be predicated as par delictum, when one holds the rod and the other bows to it." ^*^ In a case, for instance, where a debtor sued to recover an additional S38 In re Great Britain Steamboat Co., 26 Ch. Div. 616. 339 Reynell v. SpiTe, 1 De Gex, M. & G. 660. See, also, Ford v. Har- rin,^on, 16 N. Y 2S5; Roman v. ISIali, 42 Md. 513; Green v. Corrigan. 87 Mo. 359; Davidsun v. Carter, 55 Iowa, 117, 7 N. W. 4G6; Barnes v. Brown, 32 Micli. 146; Belding v. Smythe, 138 Mass. 530. So in New York it was held that money paid to a marriage broker may be recovered by the party who paid it, as obtained by constructive fraud; and that she will not be regarded as in pari deUcto with him. DUVAL v. WELLINIAN, 124 N. Y. 156, 26 N. E. 343. 3 40 Reynell v. Sprye, 1 De Gex, M. & G. 660; Baehr v. Wolf, 59 111. 470; Richardson v. Craudall, 48 N. Y. 348; TRACY v. TALMAGE, 14 N. Y. 162, 67 Am. Dec. 132; Green v. Corrigan, 87 Mo. 359; Roman v. Mali, 42 Md. 513; Curtis v. Leavitt, 15 N. Y. 9; Mount v. Waite, 7 Johns. (N. Y.) 434; WIIIT-E V. BANK, 22 Pick. (Mass.) 181; Bell v. Campbell, 123 Mo. 1, 25 S. W. 359, 45 Am. St. Rep. 505; Woodham v. Alien, 130 Cal. 194, 62 Pac. 398; Gon-inge v. Reed, 23 Utah, 120. 63 Pac. 902. 90 Am. St. Rep. 602. Though a mortgage given by a father to prevent the prosecution of his son for a crime is illegal, he may sue to set it aside. Having executed it under strong pressure, he is not in pari delicto with the mortgagee. Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419. 841 SMITH V. CUFF, 6 Maule & S. 160, at page 165. §§ 183-185) EFFECT OF ILLEGALITY. 341 sum, paid by him to one of his creditors, in fraud of the others, to in- duce the former to agree to a composition, he was allowed to recover, it being shown that the decision of several other creditors depended on the defendant's acceptance or rejection of the offer of a composi- tion. "It is said that the parties are in pari delicto," said the court. "It is true that both are in delicto, because the act is a fraud upon the other creditors; but it is not par delictum, because the one has power to dictate, the other no alternative but to submit." ^*^ The parties are not to be regarded as being in pari delicto where the agreement is merely malum prohibitum, and the law which makes it il- legal was intended for the protection of the party asking relief.^*^ As illustrating this rule are cases in which banks or otlier corporations are prohibited under penalties from issuing bills or other securities, but no penalty is imposed on persons who receive the illegal securities. In such cases it is held that the law creating the illegality is to protect the pub- lic against the prohibited securities, that the corporation issuing them is the only offender, and that persons who receive them may recover the money paid for them. They are not in pari delicto. "The cor- poration issuing the bills contrary to law and against penal sanctions is deemed more guilty than the members of the community who re- ceive them, whenever the receiving of them is not expressly prohibited. The latter are regarded as the persons intended to be protected by the law ; and, if they have not themselves violated an express law in re- ceiving the bills, the principles of justice require that they should be able to recover the money received by the bank for them." ^** If a broker or other agent is employed to carry out an illegal trans- 84 2 Atkinson v. Denby, 6 Hurl. & N. 778, 7 Hurl. & N. 934. And see Solinger v. Earle, 82 N. Y. 393; Crossley v. Moore, 40 N. J. Law, 27; Brown V. Everett-Ridley-Ragan Co., Ill Ga. 404, 30 S. E. 813. 343 lu Bowditch V. Insurance Co., 141 Mass. 292, 4 N. E. 798, 55 Am. Rep. 474, It was held that a statute providing that "no member of a com- mittee or officer of a domestic insurance company, who is charged with the duty of investing its funds, shall borrow the same," was intended to protect the company and policy holders from the dishonesty or self-interest of the officers, and did not render a loan to an officer illegal, so as to prevent the company from recovering on his promise to repay. And see White v. Bank, 22 Pick' (Mass.) 181; President, etc., of Atlas Bank v. President, etc., 3 Mete. (Mass.) 581; Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238; Browning v. Morris, 2 Cowp. 790; Smitli v. Bromley, 2 Doug. 696; Clarke v. Lumber Co., 59 Wis. 055, 18 N. W. 492; Mason v. McLeod, 57 Kan. 105. 45 Pac. 7G, 41 L. R. A. 548, 57 Am. St. Rep. 327. 344 Thomas v. City of Richmond, 12 Wall. 349, 20 L. Ed. 453; Oneida Bank V. Bank, 21 N. Y. 490; Smith v. Bromley, 2 Doug. 696. Where a statute commands cei'tain paiiies to do or prohibits them from doing certain acts, and prescribes penalties for their violation of its commands, the court may not inflict other penalties for its violation on other parties not named in the law by avoidance of their contracts. Hanover Nat. Bank v. Bank, 109 Fed. 421, 48 C. C. A. 482. 342 LEGALITY OF OBJECT. (Otl. 8 action, and is privy to the unl3:w:ful^ design, and by virtue of his em- ployment performs services, makes disbursements, suffers losses, or incurs liabilities, he has no remedy against his principal.^*' Not only is this true, but it has been held that any express promise made by the principal to reimburse him is voidjji^ This, of course, does not apply wliere a broker is employedTornake contracts the illegality of whicli depends on the intention of his principal, and the broker is not aware of such intent; as, for instance, where a stock or grain broker is em- ployed to sell stock or grain on the exchange for future delivery, and he is not aware of the fact that his principal intends, not an actual sale and delivery, but a mere gambling on the rise and fall of prices.^*^ CONFLICT OF LA\VS. 186. IN SPACE. The validity of a contract is as a rule determined by tlie law of the place where it is made, but if it is to be per- formed in some other place its validity is as a rtQe determined by the laxr of that place. EXCFPTION— A contract xvill not be enforced where to enforce it w^ould be injurious to the interest of the state or country w^here it is sought to be enforced, or of its citizens. 187. IN TIMIL An agreement \7hich is illegal w^hen made is not ren- dered valid by subsequent legislation. On the other hand a change in the law cannot render illegal an agreement w^hich w^as legal w^hen made, though it may render further perform- ance impossible, and operate as a discharge. 84B Greenh. Pub. Pol. 110 (collecting tbe cases); HARVEY v. MERRILL. 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159; Foss v. Cum- mmgs, 149 111. 353, 36 N. E. 553; Kirkpatrick v. Adams (C. C.) 20 Fed. 287; Gibbs V. Gas Co., 130 U. S. 396, 9 Sup. Ct. 553, 32 L. Ed. 979; Hooker v. Knab, 26 Wis. 511; Gregory v. Wendell, 39 Mich. 337, 33 Am. Rep. 390; Fareira v. Gabell, 89 Pa. 89; Cunningliam v. Bank, 71 Ga. 400, 51 Am. Rep. 266; Stewart v. Scball, 65 Md. 308, 4 Atl. 399, 57 Am. Rep. 327; White- sides V. Himt, 97 Ind. 191, 49 Am. Rep. 441; Colderwood v. McCrea, 11 Bradw. (111.) 543; Connor v. Black, 119 Mo. 126, 24 S. W. 184; Samuels v. Oliver, 130 111. 73, 22 N. E. 499; Jamieson v. Wallace, 167 111. 38S, 47 N. E. 762, 59 Am. St. Rep. 302; Rogers v. Marriott, 59 Neb. 759, 82 N. W. 21. See, also, Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819; Tif- fany, Ag. 459. 34 8 Everiugham v. Meighan, 55 Wis. 354, 13 N. W. 269; Embrey v. Jemi- son, 130 U. S. 396, 9 Sup. Ct. 776, 33 L. Ed. 172; Kahn v. Walton, 46 Ohio St. 195, 20 N. E. 203. 34 7 Rountree v. Smith, 108 U. S. 269, 2 Sup. Ct. 630, 27 L. Ed. 722; Invin V. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Edwards v. Hoef- finghoff (C. C.) 38 Fed. 635; Lehman v. Feld (C. C.) 37 Fed. 852; Boyd v. Hanson (C. C.) 41 Fed. 174; Pape v. Wright, 116 Ind. 502, 19 N. E. 459; MOHR V. MIBSEN, 47 Minn. 228, 49 N. W. 862; Bartlett v, Collins, 109 AVis. 477, 85 N. W. 703, 83 Am. St. Hep. 928. A mere expectation on the part of the principal and broker, in sales for future delivery, that purchasers §§ 186-18Y) CONFLICT OF LAWS. 343 As a general rule, subject to exceptions which we will notice briefly, the legality of a contract is to be determined by the law of the place where it is made and is to be performed. If it is valid there it is valid everywhere. "This rule is founded on the tacit consent of civilized nations, arising from its general utility, and seems to be a part of the law of nations adopted by the common law," ^*^ A sale of goods, for instance, made and completed by delivery in one state, where it is valid, will be enforced in another state, tliough it would have been invalid if made in the latter state.^*^ A marriage, also, though strictly from the principal may be willing to adjust the transactions by paying or receiving differences, when there is no agreement to that effect, does not render the contract illegal. Barnes v. Smith, 159 Mass. 344, 34 N. E. 403; ante, p. 278. In England, where gaming and wageruig contracts are held not illegal at common law, but were by statute rendered null and void, but not illegal, money paid by an agent in pursuance of such a contract was recov- erable from his principal. THACHER v. HARDY, 4 Q. B. D. 6S5. And see Read v. Anderson, 13 Q. B. D. 779; Seymour v. Bridges, 14 Q. B. D. 4G0; Knight V. Lee [1893] 1 Q. B. D. 41. This has since been changed by stat- ute. Tatam v. Reeve [1S98] 1 Q. B. 44. 348 Pearsall v. Dwight, 2 Mass., at page 89, 3 Am. Dec. 35. And see An- drews v. Herriot, 4 Cow. (N. Y.) 508, note (where the earlier cases are col- lected); Ward V. Vosburgh (G. C.) 31 Fed. 12; Brown v. Finance Co., Id. 516; SULLIVAN v. SULLIVAN, 70 Mich. 583, 38 N. W. 472; Western & A. R. Co. V. Cotton Mills, 81 Ga. 522, 7 S. E. 916, 2 L. R. A. 102; Fessenden V. Taft, 65 N. H. 39, 17 Atl. 713; Central Trust Co. v. Burton, 74 Wis. 329. 43 N. W. 141; Appeal of Fowler, 125 Pa. 388, 17 Atl. 431, 11 Am. St Rep. 902; Atlantic Phosphate Co. v. Ely, 82 Ga. 438, 9 S. E. 170; Fairchild v. Railroad Co., 148 Pa. 527, 24 Atl. 79; FONSECA v. STEAMSHIP CO., 153 Mass. 553, 27 N. E. 6G5, 12 L. R. A. 340, 25 Am. St. Rep. 660; O' Regan v. Steamship Co., 160 Mass. 356, 35 N. E. 1070, 39 Am. St. Rep. 484; Thompson V. Taylor, 66 N. J. Law, 253, 49 Atl. 544, 54 L. R. A. 585. 88 Am. St. Rep. 485. A note executed in one state, and free from usury under its laws, is valid in another state, though, if made in the latter state, it would have been usurious. Brown v. Finance Co., supra; Matthews v. Paine, 47 Ark. 54, 14 S. W. 463 ; Van Vleet v. Sledge (C. C.) 45 Fed. 743 ; Mott v. Rowland, 85 Mich. 561, 48 N. W. 638; Staples v. Nott, 128 N. Y. 403, 28 N. E. 515, 26 Am. St. Rep. 480; Buchanan v. Bank, 55 Fed. 223, 5 C. C. A. 83. Note on gaming consideration, valid where it was made and the transaction took place, is enforceable in a state under whose laws it would have been void. Sond- heim v. Gilbert, 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. Rep. 23. Dealings in futures. Ward v. Vosburgh (C. C.) 31 Fed. 12; Lehman v Feld, 37 Fed. 852. Sunday conti-act. McKee v. Jones, 67 Miss. 405, 7 South. 348; Arbuckle v. Reaume, 96 Mich. 2i3, 55 N. AV. 808; Adams v. Gay, 19 Vt. 358; Swann v. Swann (C. C.) 21 Fed. 299; Brown v. Browning, 15 R. I. 422, 7 Atl. 403, 2 Am. St Rep. 90S; O'Rourke v. O'Rourke, 43 Mich. 58, 4 N. W. 531. Contract in consideration of dismissal of criminal prosecution valid where made. Harrison v. Baldwin, 5 Ohio Cir. Ct R. 310. 349 Greenwood v. Curtis, 6 Mass. 377, 4 Am. Dec. 145; Grant v. McLachlin. 4 Johns. (N. Y.) 34; Braim v. Keally, 146 Pa. 519, 23 Atl. 380, 28 Am. St Rep. 811; Brinker v. Scheunemann, 43 111. App. 659; Dame v. Flint 64 Vt 533, 24 Atl. 1051; Claflin v. Meyer, 41 La. Ann. 1048, 7 South. 139; Ken\in V. Doran, 29 Mo. App. 397; Wagner v. Breed, 20 Neb. 720, 46 N. W. 286. 344 LEGALITY OF OBJECT. (Ch. 8 not a contract, is governed by the same principle. If valid where it is executed, it is valid everywhere.^ ^^ On the other hand, a contract which is invalid where it is made and is to be performed is invalid everywhere. A note, for instance, which is void for usury in the state where it is executed, is void in another state, though, if made in the latter, it would have been valid.^^^ The rule that a contract which is valid where it is made and is to be performed is valid everywhere is subject to exceptions. No state is bound to recognize and enforce a contract which is injurious to its own interests, or to the interests of its citizens. "This exception re- sults from the consideration that the authority of the acts and con- tracts done in other states, as well as the laws by which they are regu- lated, are not, proprio vigore, of any efficacy beyond the territories of that state ; and whatever effect is attributed to them elsewhere is from comity, and not of strict right. And every independent community will and ought to judge for itself how far that comity ought to extend. The reasonable limitation is that it shall not suffer prejudice by its comity. * * * Contracts, therefore, which are in evasion or fraud of the laws of a country, or of the rights or duties of its subjects; con- tracts against good morals, or against religion, or against public rights ; and contracts opposed to the national policy or national institutions, — are deemed nullities in every country affected by such considerations, although they may be valid by the laws of the place where they are made." *°^ To illustrate this exception, a contract made in one coun- 3 50 Com. V. Lane, 113 Mass. 458, 18 Am. Rep. 509; Sutton v. Warren, 10 Mete. (Mass.) 451; Scrimsliire v. Scrimsbire, 2 Hagg. Const. 395; Ilderton V. Ilderton, 2 H. Bl. 145; Inhabitants of West Cambridge v. Inhabitants of Lexington, 1 Pick. (Mass.) 507, 11 Am. Dec. 168; Thorp v. Thorp, 90 N. Y. 602, 43 Am. Rep. 189; Jackson v. Jackson, 82 Md. 17, 33 Atl. 137, 34 L. R. A. 773. Cf. In re Stall's Estate, 183 Pa. 625, 39 Atl. 16, 63 Am. St. Rep. 776; McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 38 L. R. A. 863, 65 Am. St. Rep. 815. 3 51 Van Schaick y. Edwards, 2 Johns. Cas. (N. Y.) 355; Matthews v. Paine, 47 Ark. 54, 14 S. W. 4^; Meroney v. Association, 112 N. C. 842, 17 S. E. 637. Note void for gaming in France, where it is made, is void in England. Robinson v. Bland, 2 Burrows, 1077. And see, for other cases, Touro V. Cassin, 1 Nott & McC. (S. C.) 173, 9 Am. Dec. GSO; Tolman Co. V. Reed, 115 Mich. 71, 72 N. W. 1104 ; Washington Nat. Building Loan & Inv. Co. V. Stanley, 38 Or. 319, 63 Pac. 489, 58 L. R. A. 816, 84 Am. St. Rep. 793 ; Alexander v. Barker, 64 Kan. 396, 67 Pac. 829. Sale made in another state in violation of its liquor laws. Tredway v. Riley, 32 Neb. 495, 49 N. W. 268, 29 Am. St. Rep. 447 ; Wind v. Her, 93 Iowa, 316, 61 N. W. 1001, 27 L. R. A. 219. Stipuliation relieving carrier from liability. Brockway v. Express Co., 168 Mass. 257, 47 N. E. 87. 362 story, Confl. Law, § 244; Randall v. Protective Union, 43 Neb. 876, 62 N. W. 252. And see Greenwood v. Curtis, 6 Mass. 378, 4 Am. Dec. 145; Davis V. Bronson, 6 Iowa, 410; Kentucky v. Bassford, G Hill (N. Y.) ri26; Teiritt v. Bartlett, 21 Yt. 189; Blanchard v. Russell, 13 Muss. 6, 7 Am. Dec. §§ 186-187) CONFLICT OF LAWS. 345 try to smuggle goods into another in violation of its laws will not be enforced in the latter country.^''* So also a sale of intoxicating liquors or other goods in one state will not be enforced in another state, where the intention of both parties was to import the goods into the latter state, and sell them in violation of its laws.^*^* So of contracts made in a foreign country for future illicit cohabitation and prostitution.^"** An exception to the rule that contracts which are invalid where they are made are invalid everywhere is in the case of contracts violating the revenue laws. It seems to have been an established doctrine of the common law that a nation will not recognize or enforce the revenue laws of another country, and that the contracts of its own subjects, made to evade or defraud the revenue laws of foreign nations, may be enforced in its own courts.^'® This doctrine has been deprecated by eminent judges and lawyers, and the later cases have shown a tendency to hold the contrary.*^^ 1; In re Dalpay, 41 Minn. 532, 43 N. W. 564, 6 L. R. A. 108, 16 Am. St Rep. 729; Savings Bank of Kansas v. Bank (C. C.) 38 Fed. 800; Kilcrease v. Johnson, 85 Ga. GOO, 11 S. E. 870; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 25 L. R. A. 1(88, 84 Am. St. Rep. 473. See, also, Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539. A contract made in another state, though valid there, will not be enforced if it is opposed to the public policy of the state of the forum. The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; Seamans v. Temple Co., 105 Mich. 4r00, 63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457; Thompson v, Taylor, 65 N, J. Law, 107, 46 Atl. 567; Bartlett v. Collins, 109 Wis. 477, 85 N. W. 703, 83 Am. St. Rep. 928; Gooch V. Faucett, 122 N. C. 270, 29 S. E. 302, 39 L. R. A. 885; Winward v. Lincoln, 23 R. I. 476, 51 Atl. 106; WelUng v. Association, 56 S. C. 280. 34 S. E. 409; Parker v. Moore, 115 Fed. 799, 53 C. C. A. 369. But see FOXSECA v. STEAMSHIP CO., 153 Mass. 553, 27 N. K 665, 12 L. R. A. 340, 25 Am. St. Rep. 660; O'Regan v. Same, 160 Mass. 356, 35 N. B. 1070, 39 Am. St. Rep. 484. 8 53 Armstrong v. Toler, 11 Wheat. 258, 6 L. Ed. 468; HOLM AN v. JOHN- SON, Cowp. 341. See, also, ante, p. 329. 854 Aiken v. Blaisdell, 41 Vt. 655; Banchor v. Mansel, 47 Me. 58; Webster V. Munger, 8 Gray (Mass.) 584; Davis v. Bronson, 6 Iowa, 410. Or even in tiae state where the sale was made. GRAVES v. JOHNSON, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 3 Am. St. Rep. 446. 355 Walker v. Perkins, 3 Burrows, 1568; Jones v. Randall, Cowp. 37; De Sobry v. De Laistre. 2 Har. & J. (Md.) at page 228, 3 Am. Dec. 555; Robinson V. Bland, 2 Burrows, 1084. Marriage valid where entered into, but incestuous in Pennsylvania, will not be there recognized. U. S. v. Rodgers (D. C.) 109 Fed. 886. 856 Story, Confl. Law, §§ 245, 256, 257; Boucher v. Lawson, Cas. t. Hardw. 84, 89, 191; HOLM AN v. JOHNSON, Cowp. 341; Ludlow v. Van Rensselaer, 1 Johns. (N. Y.) 94. 3 57 Story, Confl. Law, §§ 245, 256, 257. A bill or note void for want of a stamp is void everywhere, though, if the stamp is merely a condition of its admissibility in evidence, this will have no effect outside the jimsdiction. Alves V. Hodgson, 7 T. R, 241; Bristow v. SequevUle, 5 Ex. 275; Fant v. Miller, 17 Grat. (Va.) 47. 346 LEGALITY OF OBJECT. (Cb. 8 The rule stated at the beginning of this paragraph only appUes, it will be noticed, where the contract is to be performed where it is made. Where it is either expressly or by implication to be performed at some other place, "there the general rule is in conformity to the presumed intention of the parties that the contract, as to its validity, * * * is to be governed by the law of the place of performance." ^^^ Change of Law. An agreement which is illegal and void at the time of its inception cannot be rendered valid by subsequent legislation; '^^ nor, on the other hand, can a change of the law render invalid a contract which was valid when made.^®" Where, however, performance of a contract law- ful in its inception is made unlawful by any subsequent legislation or event, the contract is thereby dissolved, unless the statute, to have this effect, would be unconstitutional, as impairing the obligation of con- tract. 3 88 story, Confl. Law, § 280; Andrews v. Pond, 13 Pet. 65, 10 L. Ed. 61; Frazier v. Warfleld, 9 Smedes & M. (Miss.) 220; Thayer v. Elliott, 16 N. H. 104; First Nat. Bank v. Hall (Pa.) 24 Atl. 665; Livei-pool & G. W. Steam Co. V. Insurance Co., 129 U. S. 397, 9 Sup. Ct 469, 32 L. Ed. 788. That a note Is governed by the law of the place where it is payable, see Stevens v. Gregg (Ky.) 12 S. W. 775; Tenant v. Tenant, 110 Pa. 478, 1 Atl. 532; Barrett V. Dodge, 16 R. I. 740, 19 Atl. 530, 27 Am. St. Rep. 777; Bigelow v. Bum- ham, S3 Iowa, 120, 49 N. W. 104, 32 Am. St. Rep. 294; Bennett v. Eastern Building & Loan Ass'n, 177 Pa. 233, 35 Atl. 684, 34 L. R. A. 595, 55 Am. St. Rep. 723; Building & Loan Ass'n of Dakota v. Logan, 66 Fed. 827, 14 C. C. A. 133; Hieronymus v. Association (C. C.) 101 Fed. 12. Contract to be performed partlj' in state where made and partly elsewhere. Bartlett v. Collins, 109 Wis. 477, 85 N. W. 703, 83 Am. St Rep. 928. 3 59 HANDY v. PUBLISHING CO., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695; Puckett v. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43; Mays v. Williams, 27 Ala. 267. Repeal of law does not validate prior invalid contract. Hathaway v. Moran, 44 Me. 67; Hughes v. Boone, 102 N. C. 137, 9 S. E. 2S0; Robinson v. Barrows, 48 Me. 186; Banchor r. Mansel, 47 Me. 58; Webber v. Howe, 36 Mich. 150, 24 Am. Rep. 590; Anding V. Levy, 57 Miss. 51, 34 Am. Rep. 435; Gilliland v. Phillips, 1 S. C. 152; Bailey V. Mogg, 4 Denio (N. Y.) 60; Ottaway v. Lowden, 55 App. Div. 410, 66 N. Y. Supp. 952; Denning v. Yount, 62 Kan. 217, 61 Pac. 803, 50 L. R. A. 103. Otherwise where contract merely voidable and not void. Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682. And see Hartford Fire Ins. Co. v. Railway Co. (C. C.) 62 Fed. 904. 8 00 Boyce v. Tabb, 18 Wall. 540, 21 L. Ed. 757; Jump v. Johnson (Ky.) 13 S. W. S13; Richardson v. Campbell, 34 Neb. 181, 51 N. W. 753, 33 Am. St. Rep. 033; Knight v. Lee [1893] 1 Q. B. 41; Stephens v. Railway Co., 109 Cal. S6, 41 Pac. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17. § 188) orERATioN or contract. 347 |3 CHAPTER IX. OPERATION OF CONTRACT. 1S8. Limits of Contractual Relation — In General 189-190. Imposing Liability on Third Persons. 191-192. Conferring Rights on Third Persons. 193. Assignment of Contracts — In General. 194. Assignment of Liabilities by Act of Parties. 195-197. Assignment of Rights by Act of Parties. 198. Assignment by Operation of Law. 199. On Transfer of Interests in Land. 200. On Marriage. 201. On Death. 202. Joint and Several Contracts — In General. 203-204. Joint Contracts. 205-206. Several Contracts. 207. Contracts both Joint and Several. 208. Contribution between Joint Debtors. Thus far we have endeavored to show what is necessaiy to the formation and existence of a vahd contract. Having ascertained this, we must next consider its effect when formed. In doing so we will first ascertain to whom the obligation of a contract extends, or who have rights or liabilities under it. Then we shall ascertain the extent to which the rights and liabilities may be assigned or pass to others than the original parties. After that we will consider the operation and effect of a contract having several parties on one or both sides. LIMITS OF CONTRACTUAL RELATION— IN GENERAL. 188. As a rule, a contract does not impose liabilities nor confer rights on a person xirh.o is not a party to it. EXCEPTIONS — (a) There are apparent exceptions to this rule: (1) WTiere one person represents another in entering into a con- tract; that is, in the case of contracts throngh agents. (2) 'Where the rights or liabilities created by a contract pass to a. person or persons other than the original parties by as- signment, (b) There are also real exceptions to the rule in some jurisdictions. The rule that a person who is not a party to a contract cannot be included in the rights or liabilities which it creates, so as to entitle him to sue, or render him liable to be sued, upon it, flows from the very nature of contract as a legal conception. As we have seen, a true con- 348 OrERATION OF CONTRACT. (Ch. 9 tract is an agreement between two or more persons, by which an ob- ligation or legal tie is created, binding those persons together, so that one or each has the right to require some act or forbearance on the part of the other. As a rule, the legal relations of third persons are not affected, because they are not parties to the agreement. They are not bound by the legal bond which it creates, and a breach thereof cannot give them any rights. Nor, on the other hand, can any liabili- ties be imposed upon them. It will be noticed that the rule stated in the black-letter text is divis- ible. There are in fact two rules, — the first, that a contract cannot im- pose liabiHties, and the second, that it cannot confer rights, on a per- son who is not a party to it.^ We can better reach a correct under- standing of the law on this subject if we consider each of these rules separately, together with the exceptions, or apparent exceptions, pe- culiar to it; but before doing so we must notice two apparent excep- tions to the rule as a whole. Apparent Exceptions to the Rule — Agency. Although one person cannot, as a rule, by contract with another, impose liabilities, nor confer rights, on a third person not a party to the contract, one person may rej^rgsent another, as being employed by him, for the purpose of bringing him into contractual relations with a third. Employment for this purpose is called "ageiLcy," the employer being call'ed the "principal" and the employed his "agent." The acts of the agent in malcing contracts are done on behalf, and generally, though not necessarily, in the name, of his principal. The principal really becomes a party to the contract made for him by his agent. A contract made by an agent can bind the principal only by force of a previous authority or subsequent ratification by the principal, and this auttIorrfy"or~fatification is nothing else than the assent of the principal to be bound. The contract which binds him is his own contract. After all, therefore, this is only an apparent exception to the rule that persons not parties to a contract are not bound or given rights thereby. The subject of agency will be dealt with in a subsequent chapter. Same — Assignment of Contracts. If John Doe contracts with Richard Roe, their contract cannot im- pose liabilities or confer rights upon John Styles. There are circum- stances, however, under which John Doe or Richard Roe may substi- tute John Styles for himself as a party to the contract, and there are circumstances under which the law would operate to effect this sub- stitution. John Styles thus becomes a party to the contract. This substitution is called assignment of the contract. Before discussing assignment we will take up in turn, and explain, each subdivision of 1 Alison, Cont. (4tli Ed.) 209. §§ 189-190) LIMITS OF CONTRACTUAL RELATION. 349 the general rule mentioned in the black-letter text, and show the ex- ceptions to which it is subject. SAME— IMPOSING LIABILITY ON THIRD PERSONS. 189. A contract cannot impose liabilities on a person \xrh.o is not a party to it. 190. A contract, hovirever, bettreen master and servant at least, im- poses a duty on tbird persons not to interfere malicionsly witb its performance by inducing tbe servant to break it, and for a violation of tbis duty an action veill lie. Many courts bold tbat tbe doctrine applies to all contracts. The proposition that a man cannot incur liabilities from a contract to which he was not a party is a part of a wider rule that liability ex contractu cannot be imposed upon a man otherwise than by his act or consent. "A man cannot, of his own will, pay another man's debt without his consent, and thereby convert himself into a creditor." - Two persons cannot, by any contract into which they may enter, there- by impose liabilities upon a third person.^ Where a person, for in- stance, contracts with another to perform services for him, or to sell him goods, he may, under some circumstances, procure the services to be rendered or the goods delivered by a third person, and thus per- form his contract; but he cannot, by any such agreement with a third person, confer upon the latter the right to require payment of the other party. Nor will the law create a contract between the latter and such third person because of the acceptance of the services or goods, where there was no intention to enter into legal relations with the third per- son.* Contract may Impose Duty on Third Parties. Though|'a contract cannot impose the burdens of an obligation upon one who was not a party to it, it may impose a duty upon persons ex- traneous to the obligation not to interfere maliciously with its due per- formance. In a leading English case, Lumley v. Gye,"^ where a person induced a singer to break her contract with the manager of an opera house, and was sued by the manager for maliciously procuring the breach, it was argued (i) that an action would lie against one who pro- cured the breach of any kind of contract ; and (2) tliat, if that were not 2 Durnford v. Messiter, 5 Maule & S. 440; Heam v. Cnllin, 54 Md. 533. 3 Rossman v. Townsend, 17 Wis. 98, 84 Am. Dec. 733; BoUes v. Carli, 12 Minn. 113 (Gil. 62). 4 Sclimaling v. Thomlinson, 6 Taunt. 147; BOSTON ICE CO. v. POTTER, 123 Mass. 2S, 25 Am. Rep. 9; Scliool Dist. of Beatrice v. Tlaomas, 51 Neb. 740, 71 N. W. 731; post, p.351- 6 2 El. & Bl. 216. 350 OPEKATION OF CONTRACT. (Ch. 9 SO, an action would lie, at any rate, for inducing a servant to quit the service of his master. The relation of master and servant has always been held to involve a right on the part of the master to sue any one who enticed away his servant, and so the court was called upon to an- swer two questions : Does an action lie for procuring a breach of any contract? If not, then does the exceptional rule applicable to the con- tract of master and servant apply to the manager of a theater and the actors whom he engages to perform? The majority of the court answered both questions in the affirmative, with the qualification that the inducement must be malicious. Later English cases have affirmed this decision, but upon the broad ground that it is an actionable wrong maliciously to induce another to break a contract.^ If the interference is used for the purpose of injuring the plaintiff or of benefiting the defendant at the expense of the plaintiff, the conduct is malicious. The same doctrine has been held by many courts in this country.^ On the other hand, some courts have held that the doctrine does not apply to other contracts than the contract between master and servant.* As to this contract, there is probably no conflict at all.^ 6 Bowen V. Hall, 6 Q. B. Uiv. 339; Temperton v. Enssell [1893] 1 Q. B. 376. 7 WALKER V. CRONIN, 107 Mass. 555; Jones v. Stanly, 76 N. C. 355; Lucke V. Clothing Cutters, 77 Md. 396, 26 Atl. 505, 19 L. R. A. 408, 39 Am. St. Rep. 421; Jones v. Blocker, 43 Ga. 331; iChipIey v. Atkinson, 23 Fla. 206, 1 South. 934, 11 Am. St. Rep. 367 ; Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780 ; Angle v. Railroad Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55 ; Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669 ; Morgan v, An- drews, 107 Mich. 33, 64 N. W. 869. And see Ensor v. Bolgiano, 67 Md. 190, 9 Atl. 529 ; Dudley v. Briggs, 141 Mass. 582, 6 N. E. 717, 55 Am. Rep. 494 ; Burgess v. Carpenter, 2 S. C. 7, 16 Am. Rep. 643 ; Doremus v. Hennessy, 176 111. 608, 52 N. E. 924, 43 L. R. A. 797, 68 Am. St. Rep. 203. 8 Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57, 11 L. R. A. 545, 34 Am. St. Rep. 165; Ashley v. Dixon, 48 N. Y. 430, 8 Am. Rep. 559; Heywood v. 'HUson, 75 Me. 225, 40 Am. Rep. 373; Bourlier v. Macauley, 91 Ky. 135, 15 S. W. 60, 11 L. R. A. 550, 34 Am. St. Rep. 171; Boyson v. Thorn, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233; Glencoe Land & Gravel Co. v. Commission Co., 138 Mo. 439, 40 S. W. 93, 36 L. R. A. 804, 60 Am. St. Rep. 560. All the courts probably agree, however, that an action will lie by a pai-ty to a contract against a third person for fraudulent representations by the latter, inducing the other party to the contract to break it. Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; Benton v. Pratt, 2 Wend. (N, Y.) 385, 20 Am. Dec. 623; Ashley v. DLxon, 48 N. Y. 430, 8 Am. Rep. 559. Bi.xby v. Dunlap, 50 N. H. 450, 22 Am. Rep. 475; NOICE v. BROWN, 39 N. J. Law, 509; Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; Wood- ward V. Washburn, 3 Denio (N. Y.) 369; WALKER v. CRONIN, 107 Mass. 555; Ames v. liailway Co., 117 Mass. 541, 19 Am. Rep. 426; Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; Jones v. Blocker, 43 Ga. 331; Daniel V. Swearengeu, 6 S. C. 297, 24 Am. Rep. 471; Huff v. Watkins, 15 S. C 82, 40 Am. Rep. 680. §§ 191-192) LIMITS OF CONTRACTUAL RELATION. 351 SAME— CONFERRING RIGHTS ON THIRD PERSONS. 191. As a rule, a contract cannot confer rights on a person Yirlio is not a party to it. 192. EXCEPTIONS— (a) The rule is subject to apparent exceptions as folloAvs: (1) If the contract is such as to constitute the promisor trustee for the benefit of the third person, the latter may sue in equity. (2) AVhere money or other property has come into the promisor's hands by virtue of the contract, for the use of the third person, the lawr creates a so-called contract betwreen him and such third person, on tirhich the latter may sue. (b) In many of the states an exception is made in case of a promise made for the benefit of a third person, and the latter is allowed to sue thereon. It seems, hoixrever, that there must be such a relation betiveen the promisee and the person for Trhose benefit the proniLse is made as makes the performance of the promise a satisfaction of some legal or equitable duty oi^ring l»y the former to the latter. This rule, in its general application, is recognized by all courts. It is settled, for instance, that where a bilateral contract is made, a third person cannot perform for one of the parties, and himself claim per- formance by the other. He cannot thus acquire rights under the con- tract, even by agreement with the party whose promise he performs, unless the contract, as will be presently explained, is assignable, and is assigned. This is, in effect, another way of looking at the rule which we have already considered, — that a contract cannot impose liabilities on a person not a party to it. In a leading English case, shippers had employed a firm of brokers to transport a quantity of cocoa for them, and the brokers got a third person to do it. It was held that the latter could not sue the shippers for his expenses and commission, inasmuch as there was no privity of contract between him and them. It was said that the brokers were employed by the shippers to do the whole work for them ; that the shippers looked to the brokers for the performance of the work, and the brokers had a right to look to them for payment, and that no one else had that right. ^"^ This case illustrates both of the rules which we are considering. The contract between the brokers and the third per- son could not impose a liability on the shippers, as they were not par- ties to it ; nor could the contract between the shippers and the brokers confer any rights upon the third person, since he was not a party to it. Thus far the rule is clear and is not controverted." A difficulty, 10 Schmaling v. Thomlinson, 6 Taunt. 147. 11 Standard Oil Co. v. Murray, 119 Fed. 572, 57 C. C. A. 1. To the effect that a company which has contracted with a city to supply it with water 352 OPERATION OF CONTRACT. (Ch. 9 and considerable difference of opinion, arises, however, where the con- tract consists of a promise expressly made by one of the parties for the benefit of a third person ; as, where one of the parties, for a con- sideration moving from the other, promises him to pay money to, or perform services for, a stranger to the contract. There may be said to be three different doctrines on this point; and probably there are more. For convenience we will call them the English,^ ^ the Massa- chusetts, and the New York doctrines, and will treat them separately. Promise for Benefit of Third Person — The English Doctrine. If two persons should make a contract in which one promises to do something for a third person, all three might be willing that such third person should have all the rights of an actual contracting party, and should be allowed to sue on the promise. In England, however, it is ,*. \ established that the action cannot be maintained. If a person makes a promise to another, the consideration for which is a benefit to be conferred by the promisee on a third person, the contract confers no right on the third person to sue. In a leading English case the de- fendant had made a promise that, in consideration of the promisee's "*»^" V"T working for him, he would pay the plaintiff a sum of money, and it was held that the plaintiff could not recover on the promise. The members of the court stated in different forms the same reason for ' their decision. One said that the declaration did not "show any con- sideration for the promise moving from the plaintiff to defendant;" another, that "no privity is shown between the plaintiff and the de- fendant;" another, that it was "consistent with the matter alleged in the declaration that the plaintiff may have been entirely ignorant of the arrangement" between the promisee and the defendant; and an- other, that there was "no promise to the plaintiff alleged." ^^ Same — Exceptions. It was at one time thought in England that, if the person who was to take a benefit under the contract was nearly related by blood to the promisee, a right of action would vest in him; ^* but such a doc- for extinguishing flres is not liable for breach of the contract to a citizen "Whose property is destroyed because of such breach, see Becker v. Water- works, 79 Iowa, 419, 44 N. W. 694, 18 Am. St. Rep. 377; Fitch v. Water Co., 139 Ind. 214, 37 N. E. 982, 47 Am. St. Rep. 258; House v. Waterworks Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532 ; BOSTON SAFE-DEPOSIT & TRUST CO. V. SALEM WATER CO. (C. C.) 94 Fed. 238. Contra, Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 S. W. 554, 7 L. R. A. 77, 25 Am. St. Rep. 536; GORKELL v. WATER SUPPLY CO., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513, 70 Am. St Rep. 598. 12 Anson, Cont (4th Ed.) 212 et seq. 13 PRICE V. EASTON, 4 Bam. & Adol. 433. And see TWEDDLE v. AT- KINSON, 1 Best & S. 393. 14 DUTTON V. POOLE, 2 Lev. 210; BOURNE v. MASON, 1 Vent Q. §g 191-192) LIMITS OF CONTRACTUAL RELATION. 353 trine, if it ever really existed, has been overruled. In a case in which the respective fathers of the parties to a marriage had entered into a contract between themselves only that each should pay a sum of money to the husband, and expressly stipulated that the latter should have power to sue therefor, it was held that an action by him would not lie. "Some of the old decisions," it was said, "appear to support the propo- sition that a stranger to the consideration of a contract may maintain an action upon it if he stands in such a near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration. * * * It is now established that no stranger to the consideration can take advantage of a contract, al- though made for his benefit." *' In courts of equity, language has been used, sometimes very ex- plicit, to the effect that, where money is payable to one person for the benefit of another, the latter "can claim under the contract as if it had been with himself;"^® but the later cases go to show that even in equity a person who was not a party to a contract cannot acquire rights thereunder and sue thereon.^^ The beneficiary of a contract ac- quires no rights ex contractu, even in equity. If the contract is so framed as to make one of the parties trustee for a third person for whose benefit it is made, such third person acquires rights by virtue of the trust. A mere contract, however, between two parties, that one of them shall pay money to a third, does not make that third person a cestui que trust. There must be some declaration of trust by one of the contracting parties in favor of the third person.^* Same — Massachusetts Doctrine. The English doctrine on this subject is also recognized by the Massa- chusetts court, and by the courts of some of the other states.^" "The 16 TWEDDLE V. ATKINSON, 1 Best & S. 393. 16 Touche V. Warehousing Co., 6 Ch. App. 671; Spiller v. Skating Rink, 7 Cli. Div. 3G8. 17 Eley V. Assurance Co., 1 Exchi. Div. (Ct App.) 88; In re Empress Eng. Co., 16 Ch. Div. 123. 18 Two English cases, decided about the same time, are cited by Anson as illustrating this distinction. In one it was held that a clause in a contract of partnership which provided for the payment of an annuity, for five years after the determination of the partnership, to the retiring partner or his widow, created a trust in favor of the widow. Murray v. Flavell, 25 Ch. Div. 89. On the other hand, where a person had employed the plaintiff in the formation of the defendant company, and afterwards agi-eed with the company that it should pay the plaintiff for his services, it was held that the agreement gave no right of action to the plaintiff. In re Rotheram Alum Co., 2.5 Ch. Div. 104. 19 EXCHANGE BANK v. RICE, 107 Mass. 37, 9 Am. Rep. 1 ; Rogers v. Stone Co., 130 Mass. 5S1, 39 Am. Rep. 47S; Wheeler v. Stewart, 94 Mich. 44.5, 54 N. W. 172; Linneman v. Moross' Estate, 98 Mich. 178, 57 N. W. 103, 39 Am. St. Rep. 528; Edwards v. Clement, 81 Mich. 513, 45 N. W. 1107; Clabk Cont. (2d Ed.)— 23 554 OPERATION OF CONTRACT. (Ch. 9 general rule of law," it was said by the Massachusetts court, "is that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract; and, consequently, that a promise made by one person to another for the benefit of a third person, who is a stranger to the consideration, will not support an ac- tion by the latter." ^o Same — Exceptions to the Massachusetts Doctrine. There is no doubt that in this country courts of equity recognize the apparent exception to this rule, already mentioned in the case of trusts ; and that where a contract, consisting of a promise for the benefit of a third person, is so framed as to make the promisor a trustee for such third person, the latter may sue to enforce the trust.^^ Pipp V. Reynolds, 20 Mich. 88; Woodland v. Newhall's Adm'r (C. C.) 31 Fed. 434; ADAMS v. KUEHN, 119 Pa. 76, Vi Atl. 1&4; Wilbur v. Wilbur, 17 R. I. 295, 21 Atl. 497; Baxter v. Camp, 71 Conn. 245, 41 Atl. 803, 42 L. K. A. 514, 71 Am. St. Rep. 169; Morgan v. Randolph & Clowes Co., 73 Conn. o96, 47 Atl. 658, 51 L. R. A. 653. The exceptions to the rule that a stranger to a contract cannot maintain an action on it were stated by the supreme , court of the United States in language frequently referred to by that court A^'ith approval, as follows: "There are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets have come to the promisor's hands or under his control which in equity belong to a third person. In such a case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets than on the express promise. Another exception is where the plaintiff is the beneliciary solely interested in the promise, as Tvhere one person contracts with another to pay money or deliver some val- uable thing to a third. But where a debt already exists from one person to another, a promise by a third person to pay such debt being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity; and, if the original creditor can also sue, the promisor would be liable to two separate actions, and therefore the rule is that the original creditor cannot ' sue. His case is not an exception from the gen- eral rule that privity of contract is required. Tliere are some other excep- tions recognized, but they are unimportant now." Second Nat. Bank v. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75. See, also, Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct 494, 33 D. Ed. 667; Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210; Union Mut. Life Ins. Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118; Johns v. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613. The question whether the remedy of the mortgagee against a grantor who has assumed the mortgage is in law in his own right, or in equity and in the right of the mortgagor only, is to be determined by the law of the place where the suit is brought. Willard v. Wood, supra; Union Mut Life Ins. Co. v. Hanford, supra; Johns v. Wilson, supra. See, also, Adams v. Shirk. 105 Fed. 659, 44 C. C. A. 653. 20 EXCHANGE BANK v. RICE, 107 Mass. 37, 9 Am. Rep. 1. 21 Union Pac. R. Co. v. Durant, 95 U. S. 576, 24 L. Ed. 391; Chace v. Chapin, 130 Mass. 128; Preachers' Aid Soc. v. England, 106 111, 125; Mory §§ 191-192) LIMITS OF CONTRACTUAL RELATION. 355 In addition to this, there is another apparent exception. This excep- tion is in cases where, under a contract in which a promise is made for the benefit of a third person, assets come to the promisor's hands, or under his control, which in equity belong to the third person; or, as it has been expressed, "those cases in which the defendant has in his hands money which in equity and good conscience belongs to the plain- tiff, as where one person receives from another money or property as a fund from which certain creditors of the depositor are to be paid, and promises, either expressly or by implication from his acceptance of the money or property without objection to the terms on which it is de- livered to him, to pay such creditors." ^^ In such cases the third per- son may sue the promisor in his own name. The rights of the third person are not conferred upon him by the contract between the prom- isor and promisee, but arise out of a contract crea'ted by law, or quasi contract, between the promisor and the third person. ^^ The exception formerly recognized in England, but since overruled there, to the eflfect that, if a third person for whose benefit a contract is made is nearly related by blood to the promisee, a right of action on the promise vests in him, has been recognized in this country,^* but some of the courts have refused to recognize it.^^ Even in Massa- chusetts, where it has been directly held, the court has since expressed a doubt on the question, even if it has not expressly held the contrary »^®^^ -V" Same— The New York Doctrine. ^"^ ^'^^^^^^"'C^^^^^ -" r'^' • In New York, and in most of the other states, the courts have re- c^ -^ fused to recognize the doctrine that a person for whose benefit a prom^i ise is made cannot sue the promisor unless he was a party to the con-., tract. In a leading New York case a debtor of the plaintiff had loaned money to the defendant, and the defendant had promised him to pay** ,^, the plaintiff. The plaintiff was not a party to the contract, but it was'^Vl 'j» X. Michael, 18 Md. 227; Harrisbui-g Bank v. Tyler, 3 Watts & S. (Pa.) 373./^- '-^ And see Allen v. Witbrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 90. '"^ 2 2 EXCHANGE BANK v. RICE, 107 Mass. 37, 9 Am. Rep. 1. 2 3 Carnegie v. Morrison, 2 Mete. (Mass.) 381; Putnam v. Field, 103 Mass. ."".56; Spencer v. Towles, 18 Mich. 9; Grim v. Iron Co., 115 Pa. 611, 8 Atl. 595; Hosford v. Kanouse, 45 Mich. 620, 8 N. W. 567; Second Nat. Bank V. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75; Hostetter v. Hollinger, 117 Pa. 606, 12 Atl. 741; O'Neal v. Board, 27 Md. 227; Wood v. Moriarty, 15 R. I. 518, 9 Atl. 427; Lewis v. Sawyer, 44 Me. 332; Keene v. Sage, 75 Me. 138; Taylor t. Taylor, 20 111. 650. 24 Felton V. Dickinson, 10 Mass. 287 ; Benge v. Hiatt's Adm'r, 82 Ky. 666, 56 Am. Rep. 912. See, also, BUCHANAN v. TILDEN, 158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454; Everdell v. Hill, 27 Misc. Rep. 285, 58 N. Y. Supp. 447. 25 Wilbur V. Wilbur, 17 R. I. 295, 21 Atl. 497; Linneman v. Moross' Estate, 98 Mich. 178, 57 N. W. 103, 39 Am. St. Rep. 528. 2 6 EXCHANGE BANK v. RICE, 107 Mass. 37, 9 Am. Rep. 1; MARSTON V. BIGELOW, 150 Mass. 53, 22 N. E. 71, 5 L. R. A. 43. 356 ' ; /^'^-^ •'^ OPERATION -OF CONTRACT. • >r^ / ■ , (Ch. 9. held by four of the seven judges that he could sue on the promise, as it was considered settled in that state that, where a promise is "made to one for the benefit of another, he for whose benefit it is made may bring an action for its breach." *'' In many cases the rule has been de- clared broadly as thus stated.^' According to the decisions in New York and many other states, however, there must be something more than a mere promise for the benefit of the third person. The promise must be for his benefit,^ ^ and there must be between the promisee and the third person seeking to en- force the promise the relation of debtor and creditor, or some such relation as makes the performance of the promise a satisfaction of some legal or equitable duty owing by the promisee to such third per- son.*" "It is not sufficient that the performance of the promise may ^ ^"t^T LAWRENCE v. FOX, 20 N. Y. 268/\ See, also, Schermerhorn v. Vander- heyden, 1 Jolius. 140, 3 Am. Dec. 304; TODD v. WEBER, 95 N. Y. 181, 47 Am. Rep. 20; Stewart v. Trustees, 2 Denio, 403; GIFFORD v. COR- Jt^>^' RIGAN, 117 N. Y. 257. 22 N. E. 75G, 6 L. R. A. 610, 15 Am. St. Rep. 508. 2 8 BASSETT V. HUGHES, 43 Wis. 319; Bristow v. Lane, 21 111. 194; Bay V. Williams, 112 111. 91, 54 Am. Rep. 209; Mason v. Hall, 30 Ala. 599; Brice V. King, 1 Head (Tenn.) 152; WOOD v. MORIARTY, 15 R. I. 518, 9 Atl. 427; Small v. Schaefer, 24 Md. 143; BOHANAN v. POPE, 42 Me. 93; Cole- man V. Whitney, 62 Vt. 123, 20 Atl. 322, 9 L. R. A. 517; Kaufman v. Bank, 31 Neb. 661, 48 N. W. 738; Hendrick v, Lindsay, 93 U. S. 143, 23 L. Ed. 855; Flint V. Cadenasso, 64 Oal. 83, 28 Pac. 62; Hecbt v. Caughron, 46 Ark. 135; .Tones v. Thomas, 21 Grat. (Va.) 96; Robbins v. Ayres, 10 Mo. 538, 47 Am. Dec. 125; WHITEHEAD v. BURGESS, 61 N. J. Law, 75, 38 Atl. 802; Enos V. Sanger, 96 Wis. 150, 70 N. W. 1069, 37 L. R. A. 862, 65 Am. St. Rep. 3^; Marble Sav. Bank v. Mesarvey, 101 Iowa, 285, 70 N. W. 198; Ingram v. In- gram, 172 111. 287, 50 N. E. 198; Rohman v. Gaiser. 53 Neb. 474, 73 N. W. !)23; Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, .53 L. R. A. 753; GORRELL V. WATER SUPPLY CO., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513. 70 Am. St. Rep. 598; Ferris v. Brewing Co., 155 Ind. 539, 58 N. E. 701; Elmer V. Loper, 66 N. J. Law, 50, 48 Atl. 550. Cf. Electric Appliance Co. v. Guar- anty Co., 110 Wis. 434, 85 N. W. &48, 53 L. R. A. 609. That the person for whose benefit a promise is made may sue does not prevent the promisee from also suing. Steene v. Aylesworth, 18 Conn. 244; Merriam v. Lumber Co., 23 Minn. 314. But see Seigman v. Hoffacker, 57 Md. 321. 2 9 Simson v. Brown, 68 N. Y. 355; WHEAT v. RICE, 97 N. Y. 296; Austin V. Seligman (C. C.) 18 Fed. 519; Say ward v. Dexter, Horton & Co., 72 Fed. 758, 19 C. C. A. 176; American Exch. Nat Bank v. Railroad Co. (C. C.) 76 Fed. 130 ; Greenwood v. Sheldon, 31 Minn. 254, 17 N. W. 478 ; Wright v. Terry, 23 Fla. 160, 2 South. 6; Burton v. Larkin, 36 Kan. 246, 13 Pac. 398. 59 Am. Rep. 541 ; Chung Kee v. Davidson, 73 Cal. 522, 15 Pac. 100 ; Crandall v. Payne, 154 111. 627, 39 N. E. 601; Walsh v. Featherstone, 67 Minn. 103, 69 N. W. 811; School Dist. of Beatrice v. Thomas, 51 Neb. 740, 71 N. W. 731; Ger- man State Bank v. Light Co., 104 Iowa, 717, 74 N. W. 685; Washburn v. Investment Co., 26 Or. 436, 38 Pac. 620; Newberry Land Co. v. Newberry, 95 Va. 119, 27 S. E. 899; Thomas Mfg. Co. v. Prather, 65 Ark. 27, 44 S. W. 218; Rowe v. Moon, 115 Wis. 566, 92 N. W. 263. so DURNHERR v. RAU, 135 N. Y. 219, 32 N. E. 49; WHEAT v. RICE, 97 N. Y. 302; LorilUird v. Clyde, 122 N. Y. 498, 25 N. E. 917, 10 L. R. A. §§ 191-192) LIMITS OF CONTRACTUAL RELATION. 357 benefit the third person. It must have been entered into for his bene- fit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties ; and, in addition, the promisee must have a legal interest that the promise be performed in favor of the party claiming performance." *^ Thus, where a mortgagor conveys the mortgaged premises to a purchaser, who in his deed assumes and agrees to pay the mortgage, it is generally held that the mortgagee may maintain an action against the grantee upon the covenant to pay; ^^ but if the grantor is not per- sonally bound to pay a mortgage upon the granted premises, as where he has purchased subject to the mortgage without assuming it, his grantee does not by assuming the mortgage become personally liable to the mortgagee. ^^ It is very generally held that the promisee can release the promisor from his obligation before the third person for whose benefit the promise was made has assented to and adopted it,^* but not afterwards.^" 113; Townsend v. Rackham, 143 N. Y. 516. 38 N. E. 731 (but see BUCHANAN V. TILDEN, 158 N. Y. 109, 52 N. B. 72A, 44 L. R. A. 170, 70 Am. St. Rep. 454); Jefferson v. Asch, 53 Minn. 446, 55 N. W. 604. 25 L. R. A. 257, 39 Am. St. Rep. 618; Union Railway Storage Co. y. McDermott, 53 Minn. 407, 55 N. W. 606; Tliomas Mfg. Co. v. Pratlier, 65 Ark. 27, 44 S. W. 218. And see Coleman v. Whitney, 62 Vt. 123, 20 Atl. 322, 9 L. R. A. 517; Lovejoy v. Howe, 55 Minn. 353, 57 N. W. 57; BARNES v. INSURANCE CO., 56 Minn. 38, 57 N. W. 314, 45 Am. St. Rep. 438; MontgomeiT v. Rief, 15 Utah, 495, 50 Pac. 623; German State Bank v. Light Co., 104 Iowa, 717, 74 N. W. 685; Feldman v. McGuire, 34 Or. 309, 55 Pac. 872; Street v. Goodale, 77 Mo. App. 318; Frerking v. Thomas, 64 Neb. 193, 89 N. W. 1005. 31 DURNHERR v. RAU, 135 N. Y. 219, 32 N. E. 49. 81 DURNHERR v. RAU, 135 N. Y. 219, 32 N. E. 49. 82 Bmr V. Beers, 24 N. Y. 178, 80 Am. Dec. 327; BAT v. WILLIAMS, 112 111. 91, 54 Am. Rep. 209; Follansbee v. Johnson, 28 Minn. 311, 9 N. W. 882; Flint v. Cadenasso, 64 Cal. 8S, 28 Pac. 62; Stephenson v. Elliott 53 Kan. 550, 36 Pac. 980; Starbird v. Cranston, 24 Colo. 20, 48 Pac. 652; Web- ster V. Fleming, 178 111. 140, 52 N. E. 975; Kehoe v. Patton, 23 R, I. 360, 50 Atl. 655. See note 35, infra. 3 3 YROOMAN v. TURNER, 69 N. Y. 280, 25 Am. Rep. 195; Brown v. Still- man, 43 Minn. 120, 45 N. W. 2; Nelson v. Rogers, 47 Minn. 103, 49 N. W. 526; Young Men's Christian Ass'n v. Croft, 34 Or. 106, 55 Pac. 489, 75 Am. St. Rep. 568; Eakin v. Shultz, 61 N. J. Eq. 156, 47 Atl. 274. Contra, Marble Sav. Bank v. Mesai-vey, 101 Iowa, 285, 70 N. W. 198; Enos v. Sanger, 96 Wis. 150, 70 N. W. 1069, 37 L. R. A. 8G2, 65 Am. St. Rep. 38. 34 KELLY V. ROBERTS, 40 N. Y. 432; Brewer v. Mauerer, 38 Ohio St. 543, 43 Am. Rep. 436; GUbert v. Sanderson, 56 Iowa, 349, 9 N. W. 293; Com- ley V. Dazian, 114 N. Y. 161, 21 N. E. 135. 85BASSETT V. HUGHES, 43 Wis. 319; GIFFORD v. CORRIGAN, 117 N. Y. 257, 22 N. E. 75+!, 6 L. R. A. 610, 15 Am. St. Rep. 508; New York Life Ins. Co. V. Aitkin, 125 N. Y. 660, 26 N. E. 732; Dodge's Adm'r v. Moss, 82 Ky. 441; Etscheid v. Baker, 112 Wis. 129, 88 N. W. 52. And see Clark v. Fisk, 9 Utah, 94, 33 Pac. 248. But some courts hold that tlie promise in- vests the third person with an immediate right, which the promisee cannot 358 OPERATION OF CONTRACT. (Ch. 9 Same — Contracts under Seal. In some of the states it is held that the doctrine allowing suit on a contract by a third person for whose benefit it is made applies as well to covenants or promises under seal as to simple contracts.^* In other states the contrary has been held, on the ground that assumpsit will not lie on a covenant under seal, and that it is only an action of assumpsit that will lie by a person for whose benefit a promise has been made to another,^'^ Same — Statu tory Bxcep tions By statute, in many of the states, — no doubt in all the code states, — it is expressly provided that every action must be prosecuted in the name of the real party in interest, except in certain cases ; and under such a provision it has been held that the person for whose benefit a contract is made may sue thereon.^* Action by Third Party for Many Joint Contractors. If a person and a group of persons, such as an unincorporated society should enter into a contract, it might be convenient that a third person release. BAY v. WILLIAMS, 112 111. 91, 54 Am. Rep. 209; Starbird v. Cran- ston, 24 Colo. 20, 48 Pae. 652; Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, 61 L. R. A. 509. In states which do not recognize the right of a third person for whose benefit the promise is made to enforce the contract, he maj' sometimes avail himself of the promise in equity by subrogation to the rights of the promisee, as in the case of a mortgagee where a grantee of a mort- gii'^oi- has assumed the mortgage. Such is the rule in the federal courts. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Knapp v. In- surance Co., 83 Fed. 329, 29 C. C. A. 171, 40 L. R. A. 861. Here the rights of the mortgagee against the grantee are necessarily defeated if the grantor releases the grantee from his covenant, unless the release is in fraud of creditors. See Jones, Mtg. § 763; Crowell v. Hospital, 27 N. J. Eq. 650; Youngs V. Public Schools, 31 N. J. Eq. 290; O'Neill v. Clark, 33 N. J. Eq. 444. aaBASSETT v. HUGHES, 43 Wis. 319. And see GIFFORD v. COR- RIGAN, 117 N. Y. 257, 22 N. E. 756, 6 L. R. A. 610, 15 Am. St. Rep. 508; Coster V. City of Albany, 43 N. Y. 399; Riordan v. Presbyterian Church, 6 Misc. Rep. 84, 26 N. Y. Supp. 38; Kimball v. Noyes, 17 Wis. 695; McDowell V. Leav, 35 Wis. 171; Webster v. Fleming, 178 111. 140, 52 N. E. 975; of. Harms v. McCormick, 132 111. 104, 22 N. E. 511. 8 7 Hinkley v. Fowler, 15 Me. 285. And see Cocks v. Varney, 45 N. J. Eq. 72, 17 Atl. 108; Seigman v. HofCacker, 57 Md. 321; Robbins v. Ayres, 10 Mo. 538, 47 Am. Dec. 125 ; Baldwin v. Emery, 89 Me. 496, 36 Atl. 994. Cf. Styles V. F. R. Ix)ng Co., 67 N. J. Law, 413, 51 Atl. 710. 88 Bliss, Code PI. § 241; Pomeroy, Rem. & Rem. R. § 139. See Paducah Lumber Co. v. Water Supply Co., 89 Ky. 340, 12 S. W. 554, 7 L. R. A. 77, 25 Am. St. Rep. 536; Ellis v. HaiTison, 104 Mo. 270, 16 S. W. 198; Stevens v. Flannagan, 331 Ind. 122. 30 N. E. 898; Starbird v. Cranston, 24 Colo. 20, 48 Pac. 652. But it seems that a third person must establish a legal, or at least an equitable, right to enforce the contract independently of this pro- vision. Ante, p. 356, and cases cited in note 30; Anson, Contr. (8th Ed.) 282, note by I'rof. lluffcut. In some stales il is euuctod that if u promise is made §193) ASSIGNMENT OF CONTRACTS. 359 should be able to sue on behalf of the group. The general rule, how- ever, that a contract cannot confer rights on persons not parties to it, applies. In a case in which the managers of an association, under powers of attorney executed by the members, sued upon a contract entered into by the association, it was held that they could not main- tain the action, "for the simple reason * * * that the proper per- son to bring an action is the person whose right has been violated." "This is an attempt," it was further said, "to do what has been fre- quently, but fruitlessly, attempted before, viz. to get rid of the diffi- culty of a large number of people suing in their own names, — to ap- point a public officer without obtaining an act of parliament or a charter of incorporation.^" In some of the states, statutes have been enacted expressly providing that where the parties are very numerous, and it would be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.*** ASSIGNMENT OF CONTRACTS— IN GENERAI.. 193. Under some circumstances, a person not a party to a contract may take tlie place of one of the parties. This substitution is called assignment of the contract. It may be either (a) By the voluntary act of the parties, or (b) By operation of law. We have just seen that, subject to certain exceptions, a contract cannot affect any but the parties to it, either by imposing liabilities or conferring rights on them. The original parties to a contract, how- ever, may, under certain circumstances, drop out, and others may take their places. The operation by which this change in the con- tractual relation is effected is termed an assignment of the contract. for the sole benefit of a third person, he may sue in his own name. See City of Newport News v. Potter, 122 Fed. 321, 58 C. C. A. 483. 3 9 Gray v. Pearson, L. R. 5 C. P. 568. See Anson, Cont (8th Ed.) 230. 40 Thames v. Jones, 97 N. C. 121, 1 S. E. G92; Gibson v. Ti'ust Co.. 58 Hun, 443, 12 N. Y. Supp. 444; Gieslie v. Anderson, 77 Cal. 247, 19 Pac. 421; Piatt V. Colvin, 50 Ohio St. 703, 36 N. E. 735; Alexander v. Gish, 88 Ky. 13, 9 S. W. 801; LUly v. Tobbein (Mo. Sup.) 13 S. W. 1060. 360 OPERATION OF CONTRACT. (Ch. 9 S ami:— ASSIGNMENT OF LIABILITIES BY ACT OF PARTIES. 194. A person caimot assign Ms liabilities under a contract. APPARENT EXCEPTIONS— (a) He may so assig:n witli the consent of the other party to the coutract. (b) In contracts to do work involving no personal skill or personal qualifications, the party may have the ivork done by another, but he remains liable if it is not properly done. (c) When an interest in land is transferred, certain liabilities at- taching to the enjoyment of the interest pass T^th it. A person cannot assign his liabilities under a contract, or, to put the matter from the point of view of the other party to the contract, a person cannot be compelled to accept performance of the contract from a person who was not originally a party to it. The reason for the rule lies not only in the right of a person to know to whom he is to look for the satisfaction of his rights under a contract, but in his right "to the benefit which he contemplates from the character, credit, and sub- stance of the person with whom he contracts." *^ The rule is well illustrated by a case in which one Sharpe let a carriage to the defendant, at a yearly rent, for five years, undertaking to paint it every year and keep it in repair. One Robson was, in fact, the partner of Sharpe, but the defendant contracted with Sharpe alone. After three years, Sharpe retired from business, and the defendant was informed that Robson was thenceforth answerable for the repair of the carriage and would receive the rent. The defendant refused to accept the substitution, and it was held that he could not be sued upon the contract. "The defendant," it was said, "may have been induced to enter into this contract by reason of the personal confidence which he reposed in Sharpe. * * * The latter, therefore, having said it was impossible for him to perform the contract, the defendant had a right to object to its being performed by any other person, and to say that he contracted with Sharpe alone, and not with any other person." ^^ 41 Humble v. Hunter, 12 Q. B. 310. And see ARKANSAS VAL. SMELT- ING CO. V. REJ^DEN Mlx\. CO., 127 U. S. 879, 8 Sup. Ct. 1308, 32 L. Ed. 246; Chapin v. Longwortb, 31 Ohio St. 421; Rappleye v. Seeder Co., 79 Iowa, 220, 44 N. W. 3(J3, 7 L. R. A. 139; Bui-ger v. Rice, 3 Ind. 125; Betlilebem v. Annis, 40 N. H. 34, 77 Am. Dec. 700; Griswold v. Railroad Co., 18 Mo. App. 52; Lansden v. McCarthy, 45 Mo. 106; Palo Pinto Co. v. Gano, 60 Tex. 249; Donelson v. Polk, 64 Md. 501, 2 Atl. 824; Stewart v. Railroad Co., 102 N. Y. 601, 8 N. E. 200, 55 Am. Rep. 8H4; Sprankle v. Tinilove, 22 Ind. App. 577, 54 N. E. 401; post, p. 364, and cases there cited. 42 Robson V. Drummond, 2 Bani. & Adol. 303. Cf. BRITISH WAGGON §§ 195-197) ASSIGNMENT OF CONTRACTS. 361 Exceptions to the Rule. The exceptions to this rule are apparent rather than real. A person may assign the liabilities imposed upon him by a contract which he has made if the other party to the contract consents. This, however, is, in effect, a new contract. It is a rescission by agreement of the old contract, and the substitution of a new one, in which the same acts are to be performed by different parties. Another apparent exception is in this, namely, that if a person under- takes to do work for another which requires no special skill, and he has not been selected for the work with reference to any personal quali- fications, he may have the work done by some equally competent third person. This, however, is not an assignment of his liabilities, for he does not cease to be liable if the work is not done in accordance with the contract.^^ The third apparent exception is where an interest in land is trans- ferred. In such case, liabilities attaching to the enjoyment of the I interest pass with it. This will be discussed presently. ^ L^ f SAME— ASSIGNMENT OF RIGHTS BY ACT OF PARTIES. 195. AT COMMON LAAV. Rights arising out of a contract cannot be assigned at common law except'— EXCEPTIONS — (a) By an agreement between tbe original parties and tbe intended assignee, 'which is subject to all the rules for the formation of a valid contract. (b) By the rules of the law^ merchant in the case of negotiable in- struments. (c) An assignment in equity is so far recognized at common law as to permit the assignee to sue thereon in the name of the assignor or his representatives. 196. IN EQUITY. A chose in action, or rights under a contract, may be assigned in equity -whenever the contract is not for exclu- sively personal services, and does not involve personal credit, trust, and confidence. But— COIVDITTONS — (a) Notice is necessary to bind the debtor or person liable. (b) The assignee tahes subject to all such defenses as would have pre- vailed against the assignor. 197. BY STATUTE. There are statutes in most states allowing the assignment of choses in action, and a suit at l&xsr by the assignee in his owia name. CO. V. LEA, 5 Q. B. Div. 149. And see Hand v. Evans Marble Co., 88 Md. 220, 40 Atl. 899. 43 BRITISH WAGGON CO. v. LEA, 5 Q. B. Div. 149; ROCHESTER IxA-NTERN CO. V. PRESS CO., 135 N. Y. 209, 31 N. E. 1018. 362 OPERATION OF CONTRACT. (Cll. 9 At common law, apart from the customs of the law merchant, the rights or benefits arising out of a contract, or, as it is generally termed, a chose in action, cannot be assigned so as to entitle the assignee to sue upon it in his own name.'** This is a settled and inflexible rule, and its effect cannot be avoided by stipulations of the parties, as by an express provision in the contract to the effect that it may be as- signed, provided, of course, the stipulation does not render the contract a negotiable instrument, and so bring it within the law merchant.*^ As will be seen, however, the assignment creates rights in equity, and the common law so far takes cognizance of these equitable rights as to permit the assignee to use the name of the assignor, or his rep- resentative if the assignor be dead, as trustee for the assignee, so that he may sue on the contract in their name. An equitable assignment of a chose m action is in the nature of a declaration of trust by the party having the legal right, and an agreement on his part to permit the assignee to make use of his name to enforce it.*® Strictly speaking, the only mode by which the rights under a contract can be really transferred at la w is, not by assignment at all, but by means of a subst '^-iitpH agrppinpni- If A. owes B. $ioo, and B. owes C. $ioo, it may be agreed between all three that A. shall pay C. in- stead of paying B., so that B. thereby terminates his legal relations with both parties. In such case the consideration for A.'s promise is the discharge of B. ; the consideration for B.'s discharge of A. is the extinguishment of his debt to C. ; the consideration for C.'s prom- ise is the substitution of A.'s liability for that of B. This is known as a "novation."*'' To effect such a change^ of relations, there must be asce rtained sums due from A. to B., and from B. to C. ; and it is further essential that there shall be a definite aoje^m ent between the parties, for it is the promise of each which is the consideration for the promise of the others. It would not be enough for A. to say to C, 44 Leake, Cont. GOl; Co. Litt. 214a, 232b; 2 Bl. Comm. 442; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; Hay v. Green, 12 Gush. (Mass.) 282; Hunt v. Mann, 132 Mass. 53; GLENN v. MARBURY, 145 U. S. 499, 12 Sup. Ct. 914, 36 L. Ed. TOO. "The origin of the rule was attributed by Coke to the 'wisdom and policy of the founders of our law' in discouraging maintenance and litigation; but there can be little or no doubt that it was in truth a logical consequence of the primitive view of a contract as creating a strictly personal obligation between the creditor and the debtor." Pol. Cont. 20G. 4 5 Coolidge V. Ruggles, 15 Mass. 387; Weidler v. Kauffman, 14 Ohio, 455. Legro V. Staples, IG Me. 252; Little v. Bank, 2 Hill (N. Y.) 425, 7 Hill (N. Y.) 359; People v. Gray, 23 Cal. 125. 46 Leake, Cont. 002; WELCH v. MANDEVILLE, 1 Wheat. 233, 4 L. Ed. 79; Halloran v. Whitcomb, 43 Vt. 30G; Fay v. Guynon, 131 Mass. 31; Frear V. Evertson, 20 Johns. (N. Y.) 142; PARSONS v. WOODWARD, 2 Zab. (N. J.) 19(j; McWilliam v. Webb, 32 Iowa, 577; Webb v. Steele, 13 N. H. 230. 4T Post, p. 422. §§ 195-197) ASSIGNMENT OF CONTRACTS. 3G3 ''I will pay you instead of B.," and to afterwards suggest the arrange- ment to B., and receive his assent.*® Nor would it be enough for B. to authorize A. in writing to pay to C, and for A. to acknowledge the j^aper in writing.*" In neither of these cases would there be such an agreement between all three persons as to amount to a discharge by B. of the debt due by him to A. There would, therefore, be no consideration for A.'s promise to pay C, so as to support an action by C. against him. In an action under the circumstances of the sec- ond case mentioned above by C. against A. it was said : "There are two legal principles which, so far as I know, have never been departed from. One is that, at common law, a debt cannot be assigned so as to give the assignee a right to sue for it in his own name, except in the case of a neg otiabl e jiTstrument ; and, that being the law, it is perfectly clear that B. could not assign to the plaintiff the debt due from the defendant to him. * * * f j-,g other principle which would be infringed by allowing this action to be maintained is the rule of law that a bare promise ca nnot be the foundation of an action." '^° Same — Recognition of Equitable Assignment in Law. Courts of common law recognize the validity of equitable assign- ments for other purposes than to permit the assignee to sue at law in the name of the assignor. An assignment of a chose in action has always been held a good consideration for a promise.®^ Thus, the benefit of a contract may be sold, and the assignment of the contract forms a valuable consideration for a promise to pay the price, which may be recovered in an action at law.^" The forbearance by the as- signee of a debt to sue the debtor is a good consideration for an express promise by the debtor to pay the assignee, and on this promise the assignee may maintain an action in his own name.*^^ He must sue on the debtor's promise to him, and not on the promise to the assignor assigned to him. Rule in Equity, Equity permits the assignment of certain contracts subject to cer- tain conditions. As a rule, however, the assignee of a chose in action must seek his remedy at law, by an action in the name of his assignor, and cannot, merely because his interest is an equitable one, bring a 4 8 Caxon V. Chadley, 3 Barn. «fc C. 591. 4 9 LIVERSIDGE v. BROADBENT, 4 Hurl. & N. 603. 60 LIVERSIDGE v. BROADBENT, 4 Hurl. & N. 003. 61 Leake, Cont. G05; Master v. Miller, 4 Term R. 341; Skinner v. Somes, 14 Mass. 107. 62 Price V. Seaman, 4 Barn. & C. 525. 63 MORTON V. BURN, 7 Adol. & E. 19; Penner v. Mears, 2 W. Bl. 12G9; Skinner v. Somes, 14 jMass. 107; Crocker v. Wliitney, 10 Mass. 310; JESSEL V. INSURANCE CO., 3 Hill (N. Y.) 88; COMPTON v. JONES, 4 Cow. (N. Y.) 13 ; Onion v. Paul, 1 Har. & J. (Md.) 114. 364 OPERATION OF CONTRACT. (Ch. 9 suit in equity for the recovery of his demand.^* "A court of equity will not entertain a bill by the assignee of a strictly legal right, merely because he cannot bring an action at law in his own name, nor unless it appears that the assignor prevents and prohibits such an action from being brought in his name, or that an action so brought would not afford an adequate remedy at law." ^^ When, however, a suit in equity is maintainable, it may be maintained by the assignee in his own name. As we shall presently see, there are statutes in most of the states authorizing the assignment of choses in action, so as to give the assignee a right to sue at law in his own name. Where the statute is general, or does not provide otherwise, it is held that it allows such assignments at law as were formerly allowed in equity, and leaves them subject at law to the same rules as governed them in equity. What we shall now say, therefore, in regard to assignments in equity, will generally apply to assignments at law authorized by these statutes. Same — What is Assignable. It may be said generally that anything which di rectly o rjndJregtly involves, a right of property is assignable,^® with the exception that righ ts when coupled with liabilities under an executory contract for personal services, or under contracts otherwise involving p ersona l credit,._trust, or confidence cannot be assigned. ^'^ Such things pasl to B4 CARTER V. INSURANCE CO., 1 Johns. Ch. (N. Y.) 463; Hay ward v. Andrews, lOG U. S. 672, 1 Sup. Ct. 544, 27 L. Ed. 271; New York Guaranty & Indemnity Co. v. Water Co., 107 U. S. 205, 2 Sup. Ct. 279, 27 L. Ed. 4Si; Adair v. Winchester, 7 Gill & J. (Md.) 114; SmUey v. Bell, Mart. & Y. (Tenn.) 378, 17 Am. Dec. 813; Moseley v. Boush, 4 liand. (Va.) 392. 55 Walker v. Brooks, 125 Mass. 241. See Smith v. Bates Machine Co., 182 111. 160, 55 N. E. 69. 56 Mulhall V. Quinn, 1 Gray (Mass.) 105, 61 Am. Dec. 414; Harbord v. Cooper, 43 Minn. 466, 45 N. AV. 860; Dayton v. Fargo, 45 Mich. 153, 7 N. W. 758; Grant v. Ludlow, 8 Ohio St. 1; Burkett v. Moses, 11 Rich. Law (S. C.) 432; I^uisville R. Co. v. Goodbar, 88 Ind. 213; La Rue v. Groezinger, 84 Cal. 281, 24 Pac. 42, 45, 18 Am. St. Rep. 179; Francisco v. Smith, 143 N. Y. 488, 38 N. E. 980; Up River Ice Co. v. Denier, 114 Mich. 296, 72 N. W. 157, 68 Am. St. Rep. 480; Fleekenstein Bros. Co. v. Fleekenstein (N. J. Ch.) 53 Atl. 1043. 57 Robson V. Dnimmond, 2 Barn. & Adol. 303; BRITISH WAGGON CO. V. LEA, 5 Q. B. Div. 149; Jaeger's Sanitary Woolen Supply Co. v. Walker, 77 L. T. (N. S.) 180; Bethlehem v. Annis, 40 N. H. 34. 77 Am. Dec. 700; Rappleye v. Seeder Co., 79 Iowa, 220, 44 N. W. 363, 7 L. R. A. 139 ; Sloan v. Williams, 138 HI. 43, 27 N. E. 531, 12 L. R. A. 496; Joslyn v. Parlin, 54 Vt, 670; Chapin v. Longworth, 31 Ohio St. 421; DEVLIN v. CITY OF NEW YORK. 63 N. Y. 8; Hardy Implement Co. v. South Bend Iron Works, 129 Mo. 222, 31 S. W. 599; Edison v. Balka, 111 Mich. 235, 69 N. W. 499; Eastern Advertising Co. v. McGow, 89 Md. 72, 42 Atl. 923; Zetterlund v. Texas Land & Coal Co., 55 Neb. 3.55, 75 N. W. 860; Campbell v. Board of Com'rs, 64 Kan. 376, 67 Pac. S66. A contract by a publisher with an author to publish a §§ 195-197) ASSIGNMENT OF CONTRACTS. 305 the personal representatives of the party Hable or entitled, and, as we shall see, are thus assigned by operation of law ; and it has been said that "the power to assign and to transmit to personal representatives are convertible propositions." "^^ A person who has made a contract to render personal services cannot assign his right to render such serv- ices, but he can assign his right to receive pay for them when ren- dered by him ; and so, it seems, a man can assign the money to become d ue under any contra ct. ° ° work has been held not assignable by the publisher without the author's consent, because of the personal trust placed in the publisher by the author. Stevens v. Benuing, 1 Kay & J. 168; Gibson v. Carruthers, 8 Mees. & W. 321, at page 343. And see Griffith v. Tower Pub. Co. [1897] 1 Ch. 21. A contract for the sale of goods on credit cannot be assigned by the vendee with- out the vendor's consent. ARKANSAS VALLEY SMELTING CO. v. BELDEN MIN. CO., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. MG. "When rights arising out of contract are coupled with obligations to be performed by the contractor, and involve such a relation of personal confidence that it must have been in- tended that the rights should be exercised, and the obligations performed, by liim alone, the couti'act, including both his rights and his obligations, cannot be assigned without the consent of the other party to the original contract." Board of Com'rs of Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 10 Sup. Ct. 399, 33 L. Ed. G74, per Gray, J. And see Burck v. Taylor, 152 U. S. 634, 12 Sup. Ct 396, 38 L, Ed. 578. If the contract prohibits as- signment, an assignee succeeds to no rights. Mueller v. Northwestern Uni- vei-sity, 195 111. 263, 63 N. E. 110, 88 Am. St. Rep. 194. osZabriskie v. Smith, 13 N. Y. 333; Byxbie v. Wood, 24 N. Y. 607; DEV- LIN V. CITY OF NEW YORK, 63 N. Y. 8; Edmunds v. Illinois Cent. Ry. (C. C.) 80 Fed. 78. But see dictum in ARKANSAS VALLEY SMELTING CO. v. BELDEN MIN. CO., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246. 69 DEVLIN V. CITY OF NEW YORK, 63 N. Y. 8; Thayer v. Kelley, 28 Vt. 19, 65 Am. Dec. 220; Weed v. Jewett, 2 Mete. (Mass.) 608. 37 Am. Dec. 115; Brackett v. Blalce, 7 Mete. (Mass.) 335, 41 Am. Dec. 442; Emery v. Lawrence, 8 Cush. (Mass.) 151; Garland v. Harrington, 51 N. H. 409; Shaffer V. Mining Co., 55 Md. 74; Hawley v. Bristol, 39 Conn. 26; Greene v. Bar- tholomew, 34 Ind. 235; Metcalf v. Kincaid, 87 Iowa, 443, 54 N. W. 867, 43 Am. St. Rep. 391; Bates v. Lumber Co., 56 Minn. 14, 57 N. W. 218; Galey v. Mellon, 172 Pa. 443, 33 Atl. 560; Rodgers v. Torrent, 111 Mich. 680, 70 N. W. 335. One not under contract or existing employment cannot, at law, make a valid assignment of wages he may earn in the future. It is the mere possi- bility of a subsequent acquisition of property, which is too uncertain to be the basis of assignment. Mulhall v, Quinn, 1 Gray (Mass.) 105, 61 Am. Dec. 414; Hamilton v. Rogers, 8 Md. 301; Lehigh Valley R. Co. v. Woodring, 116 Pa. 513, 9 Atl. 58; O'KEEFE v. ALLEN, 20 R. I. 414, 39 Atl. 752, 78 Am. St. Rep. 884. A thing to be assignable, at law, must have at least a potential existence. Thallhimer v. Brinckerhoff, 3 Cow. (N. Y.) 623. 15 Am, Dec. 308; Moody V. Wright, 13 INIetc. (Mass.) 17, 46 Am. Dec. 706; Hassie v. Congi-ega- tion, 35 Cal. 378; Skipper v. Stokes, 42 Ala. 255, 94 Am. Dec. G46; Needles V. Needles, 7 Oliio St. 432, 70 Am. Dec. 85. A man could not assign money to become due under a policy not yet issued, but, after issuance, he may do so before any loss. Bergson v. Insurance Co., 38 Cal. 541. Future rent under an existing lease. Demarest v. WiHard, S Cow. (N. Y.) 206. A contract be- tween an insurance company and its agent, by which the latter is entitled to 366 OPERATION OF, CONTKACT. ^ , _JLu (Ch. 9 Same — Partial Assignment. -'• V ; A debtor has a right to pay his debt as a whole, and cannot without his consent be subjected to separate actions by different persons. A creditor, therefore, canQ Ot, at law, assign a. part of..his claim witbotit the d ebtor's consent.®" It is generally held, however, that the rule only applies where the assignment is sought to be enforced at law in the name of the assignor, and that in equity a partial assignment is good, for the reason that in equity the assignor, as well as the debtor, may be joined, and the whole controversy may be determined in one suit.®^ Same — Form of Assignment. No particular form for an assignment is necessary, unless it is re- quired by statute. In the absence of a statute an equitable assignment may be made without any deed or writing, by any words or acts show- receive commissions on renewal premiums, to accrue annually for a given period in the future, is assignable by the agent, as tbe contract is not de- pendent upon any contingency, though the profits arising under it are. Knevals v. Blauvelt, 82 Me. 458, 19 Atl. 818. But equity will uphold an as- signment of a thing resting in mere possibility, as of wages to be earned in the future not under an existing contract" or employment, if based on a valuable consideration, the assignment taking effect when the thing comes into existence. FIELD v. MAYOR, 6 N. Y. 179, 57 Am. Dec. 435; Edwards V. Peterson, 80 Me. 3G7, 14 Atl. 936, 6 Am. St. Rep. 207; Patterson v. Cald- well, 124 Pa. 455, 17 Atl. 18, 10 Am. St. Rep. 598. 60 Mandeville v. Welch, 5 Wheat. 277, 5 L. Ed. 87; CARTER v. NICHOLS, 58 Vt. 553, 5 Atl. 197; Getchell v. Maney, 69 Me. 442 ; Beardsley v. Morgner, 73 Mo. 22; Tripp v. Brownell, 12 Cush. (Mass.) at page 382; Gibson v. Cooke, 20 Pick. (Mass.) 15, 32 Am. Dec. 194; Milroy v. Iron Co., 43 Mich. 231, 5 N. W. 287; Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; Philadelphia's Appeal, 86 Pa. 179; Dean v. St. Paul & D. R., 53 Minn. 504, 55 N. W. 628; Kansas City, M. & B. R. V. Robertson, 109 Ala. 296, 19 South. 432; Skobis v. Ferge, 102 Wis. 122. 78 N. W. 426; Rivers v. A. & C. Wright & Co., 117 Ga. 81, 43 S. E. 499. Where a contract for work provides for payment in installments, each installment is a separate demand, and may be assigned. Adler v. Railroad Co., 92 Mo. 2/42, 4 S. W. 917. 61 National Exch. Bank v. McLoon, 73 Me. 498; Canty v. Latterner, 31 :siinn. 239, 17 N. W. 385; First Nat. Bank v. Kimberlands, 16 W. Va. 555; FIELD V. CITY OF NEW YORK, 6 N. Y. 179, 57 Am. Dec. 435; RISLEY v. BANK, 83 N. Y. 318, at page 329, 38 Am. Rep. 421; Daniels v. Meinhard, 53 Ga. 359; Fordyce v. Nelson, 91 Ind. 447; Harris Co. v. Campbell, 68 Tex. 22, 3 S. \V. 243, 2 Am. St. Rep. 467; Etheridge v. Veraoy, 74 N. C. 80O; Bower V. Stone Co., 30 N. .7. Eq. 171; Coimty of Des Moines v. Hiukley, 62 Iowa, 637, 17 N. W. 915; Schilling v. Mullen, 55 Minn. 122, 56 N. W. 586, 43 Am. St. Rep. 475; Warren v. Bank, 149 111. 9, 38 N. E. 122, 25 L. R. A. 746; The Elmbank (D. C.) 72 Fed. 610; Chambers v. Lancaster, 160 N. Y. 342, 54 .\. E. 707. Contra, Burnett v. Crandall, 63 Mo. 410; Gardner v. Smith, 5 Heisk. (|Tenn.) 256. Some cases maintain that consent of the debtor is nec- essary even in eciuity. Story, J., La Mandeville v. Welch, 5 Wheat. 277, 5 L. Ed. 87. See .TAMES v. NEWTON, 142 Mass. 366, 8 N. E. 122, 5G Am. Rep. 692; Kingsbm-y v. Burrill, 151 Mass. 199, 24 N. E. 36. §§ 195-197) ASSIGNMENT OF CONTRACTS. 307 ing a clear intention to assign. '^ An order made by a creditor on his debtor to pa}' the debt to another would amount to an equitable assignment of the debt to the person in whose favor it is made or to whom it is given. ^^ An assignment may be conditional, or as_security, as well as absolute.®* By statute in some of the states, allowing assignments of choses in action at law, and suit by the assignee in his own name, it is required that the assignment shall be in writing, signed by the assignor or his agent. If it is not in such a form, it is only an equitable assign- ment, and suit, if in the assignee's name, must be brought in equity, or, if suit is brought at law, it must be in the name of the assignor.®* Same — Notice of Assignment. The assignment is complete as betw££n-tl4e-asstffnof and the assignee, or those standing in their shoes and representing them, without any notice to the debtor or person liable; ®® but it will not bind the debtor until he has received notice of it.®'' A person liable under a contract 8 2 Leake, Cont. G03; ROW y. DAWSON, 1 Ves. Sr. 331; Heath v. Hall, 4 Taunt. 32G: Bower v. Stone Co., 30 N. J. Eq. 171; Tingle v. Fisher, 20 W. Va. 497; Shannon v. City of Hoboken, 37 N. J. Eq. 123; Crane v. Gough, 4 Md. 31(>; Watson v. Bagaley, 12 Pa. 164, 51 Am. Dec. 595; Bank of Commerce V. Bogy, 44 Mo. 13, 100 Am. Dec. 247; Tone v. Shankland, 110 Iowa, 525, 81 N. W. 789. It is said that an assignment will not be supported unless con- sideration has been given by the assignee. Anson, Cont. (8th Ed.) 238. But the debtor cannot defend on the ground that the assignment was without con- sideration. Coe V. Hinkley, 109 Mich. 008, 67 N. W. 915; Anderson v. Reardon, 46 Minn. 185, 48 N. W. 777; Greig v. Riordan, 99 Cal. 316, 33 Pac. 913; Forsyth v. Rj^an (Colo. App.) 68 Pac. 1055; Henderson v. Railway Co. (Mich.) 91 N. W. 630. But see Waterman v. Men-ow, 94 Me. 237, 47 Atl. 157. Want of consideration may affect rights of assignee as against as- signor's creditors. In re Doringh, 20 R. I. 459, 40 Atl. 4. 3 Story, Eq. Jur. § 1044; Mandeville v. Welch, 5 Wheat. 285, 5 L. Ed. 87; Switzer v. Noffsinger, 82 Va. 518; Wilson v. Carson, 12 Md. 54. 64 Draper v. Fletcher, 26 Mich. 154; Herbstreit v. Beckwith, 35 Mich. 93; Gill V. Weller, 52 Md. 8 ; Hunting v. Emmart, 55 Md. 265. An assignment may be illegal and contrary to public policy (ante, pp. 284, 299). 6 5 Tradesmen's Nat. Bank v. Green, 57 Md. 602; Mutual Life Ins. Co. v. Watson (C. C.) 30 Fed. 653 (Georgia statute); Chamborlin v. Gilman, 10 Colo. 94, 14 Pac. 107. 66 Muir V. Schenck, 3 Hill (N. Y.) 228. 38 Am. Dec. 633; Wood v. Parti-idge, 11 Mass. 488; Tliayer v. Daniels, 113 Mass. 129; Burn v. Carvalho, 4 Mylne & C. 690; Bishop v. Holcomb, 10 Conn. 444: Kafes v. McPherson (N. J. Ch.) 32 Atl. 710; Marsh v. Garuey, 69 N. H. 236, 45 Atl. 745. 67 Stebbins v. Bruce, 80 Va. 389; Fraley's Appeal, 76 Pa. 42; Bostwick V. Bryant, 113 Ind. 448, 16 N. E. 378; Richards v. Griggs. 16 Mo. 416. 57 Am. Dec. 240; Winben-y v. Koonce, SS N. C. 351; Porter v. Dunlap, 17 Ohio St. 591; Shade v. Creviston, 93 Ind. 591. In case of bankruptcy of the debtor before notice, it would pass to his assignees in bankniptcy. Ryall v. Rowles, 1 Ves. Sr. 348; Dean v. James, 1 Adol. & E. 809. Otherwise where notice has been received before banki-uptcy. CRO^VFOOT v. GURNEY, 9 Bing. 372; Hutchinson v, Heyworth, 9 Adol. & E. 375. 368 OPERATION OF CONTRACT. (Ch. 9 has a right to know to whom his liability is due, and therefore, if he receives no notice that it is due to another than the party with whom he originally contracted, and pays the latter, he is entitled to credit for the payment.®* If, for instance, a mortgage is assigned by the mortgagee without notice to the mortgagor, and the mortgagor after- wards pays to the mortgagee, the payment is good as against a subse- quent claim by the assignee.'® The reason of the rule has been thus stated: "The debtor is liable at law to the assignor of the debt, and at law must pay the assignor if the assignor sues in respect of it. If so, it follows that he may pay without suit. The payment of the debtor to the assignor discharges the debt at law. The assignee has no legal right, and can only sue in the assignor's name. How can he sue if the debt has been paid? If a court of equity laid down the rule that the debtor is a trustee for the assignee, without having any notice of the assignment, it would be impossible for a debtor safely to pay a debt to his creditor. The law of the court has therefore required notice to be given to the debtor of the assignment in order to perfect the title of the assignee." '^^ The notice need not be given in any formal manner, provided it is such as to inform the debtor of the assignment.''^ After notice of the assignment, he cannot refuse to be bound by it; ''^ and a payment by him to the original debtor will not discharge the debt.'^^ Same — Title of Assignee. A person cannot acquire title to a chose in action from one who has himself no title to it. And if a man takes an assignment of a chose in action, he takes his chance as to the exact position in which the party giving it stands. In other words, the__assignee of a chose in 68 Robinson v. Marshall, 11 Md. 1251. 69 Williams v. Sorrell, 4 Ves. 389; Van Keuren v. Corkins, 66 N. Y. 77. 10 Stocks V. Dobson, 4 De Gex, M. & G. 15. 71 Smith V. Smith, 2 Cromp. & M. 231; Andei"son v. Van Alen, 12 Johns. (N. Y.) 343; Meux v. Bell, 1 Hare, 73; Edwards v. Scott, 1 Man. & G. 962; HEERMANS v. ELLSWORTH. 64 N. Y. 159; Tlbbits v. George, 5 Adol. & E. 107; Riley v. Taber, 9 Gray (Mass.) 372; Barron v. Porter. 44 Vt. 587; Dale V. Kimpton, 46 Vt. 76; Bean v. Simpson, 16 Me. 49; Kellogg v. Krauser, 14 Serg. & R. (Pa.) 137, 16 Am. Dec. 480 ; Guthrie v. Bashline, 25 Pa. 80 ; Skobis V. Ferge, 102 Wis. 122, 78 N. W. 426. 72 Tibbits V. George, 5 Adol. & E. 107; BRILL v. TUTTLE, 81 N. Y. 454, 37 Am. Rep. 515; Switzer v. Noff singer, 82 Va. 518; Savage v. Gregg, 150 111. 161. 37 N. E. 312. 7 3 BRILL V. TUTl'LE, 81 N. Y. 454, 37 Am. Rep. 515; BRICE v. BAN- NISTER, 3 Q. B. Div. 569; Hall v. Insurance Co., Ill Mass. 53, 15 Am. Rep. 1; Whitman v. Arms Co., 55 Conn. 247, 10 Atl. 571; Shriner v. Lamborn, 12 :Md. 170; Kitzinger y. Beck, 4 Colo. App. 206. 35 Pac. 278; Schilling v. Mullen, 55 Minn. 122, 56 N. W. 586, 43 Am. St. Rep. 475; Ferguson v. David- son, 147 Mo. 064, 49 S. W. 859. §§ 195-197) ASSIGNMENT OF CONTRACTS. 369 action takes it subject to all the equities of the debtor against the as- signor existing; at the time he rcccivcd'iTotice of'the assignment.''* If the debtor, for instance, has a right of set-off against the debt at the time of the assignment, he may enforce the right as against the as- signee; ^^ and, as we have already seen, he may enforce a right of set-off acquired after the assignment, but before he received notice of it.'^^ Since, however, notice thereof completes the assignment as against the debtor, he cannot set off a claim afterwards acquired.''^ So, also, if a party is induced to enter into a contract by fr aud, and the fraudulent party assigns his interest in the contract, thepa rty de frauded ma y have the contract^ et aside 4J^-equitv-ia^pite o l tlie^assi^nmen t. and T4 Crouch V. Credit Foncier, L. R. 8 Q. B. 380; Mangles t. Dixon, 3 H. L. Cas. 702, 735; Clute v. Robisou, 2 Jolins. (N. Y.) 595; Littlefield v. Banli, 97 N. Y. 581; CaUanan v. Edwards, 32 N. Y. 483; Kleeman v. Frisbie, t33 III. 482; Buckner v. Smith, 1 Wash. (Va.) 29G, 1 Am. Dec. 463; Kamena V. Huelbig, 23 N. J. Eq. 78; Spinning v. Sullivan, 48 Mich. 5, 11 N. W. 758; Edson v. Gates, 44 Mich. 253, 6 N. W. G45; Barney v. Gvover, 28 Vt. 391; Martin v. Richardson, 68 N. C. 255; Lane v. Smith, 103 Pa. 415; Willis v. Twambly, 13 Mass. 204; Shade v. Crevislon, 93 Ind. 591; Goldsborough v. Cradle, 28 Md. 477; Boardman v. Hayne, 29 Iowa, 339; Russell v. Kirkbride, 62 Tex. 455; Hill v. McPherson, 15 Mo. 204, 55 Am. Dec. 142; Third Nat. Bank v. Railroad Co., 114 Ga. 890, 40 S. E. 1016. If the debtor does any- thing to mislead the assignee, he may be estopped; and in this way the as- signee may get a better title than his assignor. Holbrook v. Burt, 22 Pick. (Mass.) 546; Kemp's Ex'x v. McPherson, 7 Har. & J. (Md.) 320; Johnston V. Insurance Co., 39 Md. 233; Woodson v. Barrett, 2 Hen- & M. (Va.) 80, 3 Am. Dec. 612; Scott v. Sadler, 52 Pa. 211; Buckner v. Smith, 1 Wash. (Va.) 296, 1 Am. Dec. 463; Boardman v. Hayne, 29 Iowa, 339. Equities which may be interposed as defenses against the assignee of a nonnegotlable instrument are only such as are inherent in the contract evidenced b y the instrument, and which exist at _tiifiLJJJiifi_Q£_toe_ assignment. Merchants' "Bank v. Weill, 163 N. Y. 486, 57 N. E. 749, 79 Am. St. Rep. 605. 7 5 Story, Eq. Jur. § 1047; Cavendish v. Greaves, 24 Beav. 163; Massachu- setts Ix)an & Trust Co. v. Welch, 47 Minn. 183. 49 N. W. 740; Greene v. Hatch, 12 Mass. 195; Zabriskie v. Railroad Co., 131 N. Y. 72, 29 N. E. 1006; Wood V. City of New York, 73 N. Y. 556; McKenna v. Kirkwood, 50 Mich. 544, 15 N. W. 898; First Nat. Bank v. Bynum, 84 N. C. 24, 37 Am. Rep. 604; Hooper v. Brundage. 22 Me. 460; Hunt v. Shackleford, 55 Miss. 94; Sanborn v. Little, 3 N. H. 539; Littlefield v. Bank, 97 N. Y. 581; Jack v. Davis, 29 Ga. 219. An unmatured debt, existing at the time of the assign- ment, cannot be set off. Roberts v. Carter, 38 N. Y. 107; Chambliss v. Matthews, 57 Miss. 306; Backus v. Spaulding, 129 Mass. 234; Adams v. Rodarmel, 19 Ind. 339; Graham v. Tilford, 1 Mete. (Ky.) 112; Follett v. Buyer, 4 Ohio St 586. 78 McCabe v. Gray, 20 Cal. 509; Abshire v. Corey, 113 Ind. 484, 15 N. E. 685; Faulknor v. Swart, 55 Hun, 261, 8 N. Y. Supp. 239; Adams v. Leavens, 20 Conn. 73. 7T Goodwin v. Cunningham, 12 Mass. 193; St. Andrew v. Manufacturing Co., 134 Mass. 42; Weeks v. Hunt, 6 Vt. 15; Crayton v. Clark, 11 Ala. 787. Clabk Cont. (2d Ed.)— 24 370 OPERATION OF CONTRACT. (Ch. 9 this though the assignee may have paid full value, and may have been vi-holly innocent. ''' It seems that the parties to a contract may_stipulate that, if either assign his rights under it, the assignment shall be "free from equities.;" that is to say, that the assignee shall not be liable to be met by such defenses as would have been valid against his assignor.'" Same — Priority between Assignees. It is held in England that "equitable titles have priority according (to the priority of no tice ;" ^° that the successive assignees of an obli- jgation rank as to their title according to the dates at which they gave hotice to the party to be charged. This doctrine is also recognized oy the courts of some of our states, and by the supreme court of the United States.^ ^ The courts of many of the states, on the other hand, hold that equitable titles have priority, not according to the priority of notice, but according to_prlQri_ty— J n time of assignment, on the ground that as between assignor and assignee the~~assignmcnt is complete without any notice to the debtor, and that a purchaser of a chose in action must always abide by the case of the person from whom he buys.®^ Under Statutes. In most of the states, statutes have been enacted changing the com- mon-law rules in relation to assignments of choses in action. These statutes vary somewhat, so that it would be impracticable to attempt to set them out. In most states it is substantially provided that the assi gn ee of -a chose may sue. the debtor in his o_w,n name^in the same manner as the assignor might have done before the assignment. In some states the same result is accomplished by statutes requiring ac- 7 8 Graham v. Johnson, L. B. 8 Eq. 38; Holbrook v. Burt, 22 Pick- (Mass.) 546. But see Bloomer v. Henderson, 8 Mich. 31)5, 77 Am. Dec. 453. f 9 Ex parte Asiatic Banking Corp., 2 Ch. App. 397. "It is questionable, how- ever, whether such a stipulation would protect the assignee against the effects of fraud, or any vitiil defect in the formation of the original con- tract." Anson, Cont. (8th Ed.) 238. so Stocks V. Dobson, 4 De Gex, M. & G. 15, 81 Ward V. Morrison, 25 Vt. 593; Murdoch v. Finney, 21 Mo. 138; Clod- felter v. Cox, 1 Sneed (Tenn.) 330, 60 Am. Dec. 157; White's Heirs v. Pren- tiss" Heirs, 3 T. B. Mon. (Ky.) 449; Judson v. Corcoran, 17 How. 612, 15 U Ed. 331; Spain v. Brent, 1 Wall. 624, 17 L. Ed. 619; Daclede Bank v. Schuler, 120 U. S. 511, 7 Sup. Ct. 644, 30 L. Ed. 704; In re Gillespie (D. C.) 15 Fed. 734; Methven v. Power Co., 66 Fed. 113, 13 C. C. A. 362; Graham Paper Co. y. Pembroke, 124 Cal, 117, 56 Pac. 627, 44 L. R. A. 632, 71 Am. St Bep. 26. S2 Muir V. Schenck, 3 Hill (N. Y.) 228, 38 Am. Dec. 633; Thayer v. Daniels, 113 Mass. 129; Kamena v. Iluelbig, 23 N. J. Eq. 78; Tingle v. Fisher, 20 W. Va. 497; Nowby v. Hill, 2 Mete. (Ky.) 530; Ohio Life Ins. & Timst Co. v. Pt0.ss, 2 Md. Ch. 25; MacDonald v. Knooland, 5 Minn. 352 (Gil. 283j; For- tunate V. Patten, 147 N. Y. 277, 41 N. E. 572. §§ 195-197) ASSIGNMENT OF CONTRACTS. 371 tions to be brought in the name of the "real party in interest." It may be said generally that the effect of the statutes is to put an assignment of a chose in action on the same footing at law as in equity. What we have said, therefore, in treating of assignments in equity, generally applies to assignments at law under the statutes.** Negotiable I ustruments. It remains to mention a class of promises the benefit of which is transferabjfi, under the law merchant, in such a way that the promise may be enforced by the transferee in his own name, without noticg to the promisor, and under certain circumstances without risk of being- m ^t by many of the defenses which would have prevailed as agamst his transferror. These contracts are calle d "negotiable" in strupients, for the reason that they may be transferred by "negotiation" as dis- tinguished from "assignment." They include bills of exchange, prom-\ issory notes, checks, some classes of corporate bonds for the payment ) of money, and some other instruments. Most of these instruments are negotiable bjv__t he custom of m prrliantR recognized by the courts. Some instruments are negotiable _by_statute. Promissory notes were put upon the same footing as bills of exchange by the statute of 3 & 4 Anne, c. 9, §§ 1-3, although this statute is to be regarded as only declaratory of the law. Negotiation means transfer in the form and manner prescribed by the law merchant. If the instrument is payable t r eorde r, it is trans- ferable by indorsement; if payable to beare r, by mere delivery .^* The usual form of indorsement is the signature of the indorser, with or without a direction to pay to a specified indorsee or to his order. If the indorsee is specified, the indorsement is necessary to the further negotiation of the instrument; but if the indorsement specifies no in- dorsee, the instrument becomes in effect payable to bearer, and may be further negotiated by deliv ery.^ '^ The effect of negotiation is (i) to transfer tlie legal title to the transferee, so that he may sue upon the instrument in his own name ; ** and (2) if the transferee is a purchaser for value, before maturity of the instrument, and without notice of facts which would impeach its validity between antecedent parties, he may enforce payment, not- withstanding defenses (other than those which attach to the instru- ment itself and are good against all persons) which would have been' good against his transferror or other prior parties.®'' Notice of the 88 Dakin v. Pomeroy, 9 Gill. (Md.) 1; Dooring v. Kenamoro, 86 Mo. 588; Strong V. Clem, 12 Ind. 37, 74 Am. Dec. 200; Jordan v. Thornton, 7 Ark, 224, 44 Am. Dec. 54G. 84 Norton, Bills & N. (3d Ed.) 200-20G. 8 5 Norton, Bills & N. (3d Ed.) 105-118. &« Norton, Bills & N. (3d Ed.) 207-215. ST Norton, Bills & N. (3d Ed.) 21U et seq. 372 OPERATION OF CONTRACT. (Cll. 9 transfer n ^ed n ot be given to the party liable. Consideration is pre- sumed to be given until the contrary appears, although the burden of proof may be changed if it appears that there was fraud or illegality in the issue or subsequent negotiation of the instrument.®^ Negotiable instruments may be transferred by assignment as well as by negotiation, but in such case only the e^jjitahle as distinguished from the legal title is transferred, and the incidents of the transfer are substantially the same as in the case of the transfer of a mere chose in action, the assignee standing in no better position than his assignor."® It would be beyond the scope of this book to go further into the law of negotiable instruments. SAME— ASSIGNMENT BY OPERATION OF LAW. 198. Rules of la\e operate to transfer rights and liabilities arising out of a contract, under certain circumstances and to a certain extent, in the follov^ing cases: (a) Upon the transfer of an interest in land. (b) Upon a ivoni.an's marriage. (c) By death. (d) By bankruptcy. We have thus far dealt with the manner in which the parties to a contract may by their own acts assign to others the benefits or liabili- ties of the contract. It remains now to show how these rights and lia- bilities may pass by operation of law. SAME— ASSIGNMENT OF OBLIGATIONS ON TRANSFER OF INTERESTS IN LAND. 199. If a person, by purchase or lease, acquires an interest in land from another, on terms ^irhich bind them by contractual obliga- tions in respect of their several interests, the assignment by either party of his interest -will operate as a transfer of these obligations to the assignee as follow^s: (a) Covenants affecting leasehold interests, (1) If they touch and concern the thing demised, and relate to something -nrhich xtras in existence at the time of the lease, pass to the assignee, though not expressed to have been made with the lessee "and his assigns." 8 8 Norton, Bills & N. (3(1 Ed.) 327. 8 9 Edge V. Buniford, 31 L. J. Ch. 805; Ceutral Trust Co. v. Bank, 101 U. S. G8, 25 L. Ed. 87G; Osgood's Adm'i-s v. Artt (G. C.) 17 Fed. 575; I^ncaster Nat. Bank v. Taylor, 100 Mass. 18, 1 Am. Rep. 71, 97 Am. Dec. 70; GOSHEN NAT. BAxNK v. BINGHAM, 118 N. Y. 34'J, 23 N. E. 180, 7 L. R. A, 595, IG Am. St. Rep. 705; Norton, Bills iSc N. (3d Ed.) VM, 200. § 199) ASSIGNMENT OF COXTKACTS. 373 (2) If they relate to something not in existence at the time of the lease, they pass to the assignee, if expressed as nLEtde with the lessee "and assigns." (3) In no case do merely personal or collateral covenants be- tTpeen the landlord and lessee pass to the latter's assignee. (4) The reversioner or landlord does not at common law, by as- signing his interest in the land, convey his rights and lia- bilities to the assignee, but this is very generally changed by statute, (b) Covenants affecting freehold interests, (1) If made to the owner of the land, and for his benefit, pass to his assignees, provided they touch and concern the land, and are not 3tnerely personal. (2) If made by the oxsmer, restricting his enjoyment of the land, ^^^ ^ they do not, at common law, bind his assignees, except in '^ a ^^ case of 'well-know^n interests, such as easements, recognized _ i^ . by laxe. In equity, hoivever, it is otherwise in case of cer- _ ^_^^ tain covenants of xphich the assignee had notice at the time of his purchase. 80 Covenants Affecting Leasehold Interests. At common law, r.nv(^nants affecting leasehold Interests are said to "run with the land, and not with the reversion;" that is to say, they pass upon an assignment of the ]ease, but not upon an assignment or transfer of the ce^ergisH. If a lessee assigns his lease, the assignee, in certain cases, will be bound to the landlord by the same liabilities, and entitled to the same rights, as his assignor. The extent to which this is so may be stated thus : (i) Covenants in a lease which "touch and concern the thing- de- mised" ®^ pass to the lessee's assignee, and it is not necessary in such case that the covenants be expressed to have been made with the lessee "and his assigns." Of this class are covenants to repair, or to leave in good rep ajr, or to deal with the land in any specified man- ner. Such covenants touch and concern the l and , which is the thing demised.*' 9 Following substantially Anson, Cont. (4th Ed.) 232. 01 As to the meaning of this term, see Masury v. South worth, 9 Ohio St. 341; Wiggins Ferry Co. v. Railroad Co., 94 111. 83; Norman v. Wells. 17 Wend. (X. Y.) 13U; Peden v. Railway Co., 73 Iowa, ;i28, 35 N. W. 424, 5 Am. St. Rep. 080; Kettle R. R. Co. v. Raihvay Co., 41 Minn. 401, 43 N. W. 469, L. R. A. Ill; Noi-fleet v. Cromwell, 70 N. C. 634, 16 Am. Rep. 787; Pittsburgh, Ft. W. & C. R. Co. T. Reno, 123 111. 273, 14 N. E. 195; Lyford v. Railroad Co., 92 Cal. 93, 28 Pac. 103. 2 Spencer's Case, 1 Smith, Lead. Cas. lOS, and cases collected in note; Norman v. Wells, 17 Wend. (N. Y.) 136; Suydam v. Jones, 10 Wend. (N. Y.) 180, 25 Am. Dec. 552 ; Leppla v. Mackey, 31 Minn. 75, 16 N. W. 470 ; Donelson V. Polk, G4 Md. .501, 2 Atl. 824; Demarest v. Willard, 8 Cow. (N. Y.) 206; Callan V. McDaniel, 72 Ala. 96; Post v. Kearney. 2 N. Y. 394. 51 Am. Dec. 303; Fitch V. Johnson, 104 111. Ill; Co burn v. Goodall, 72 Cal. 498, 14 Pac. 190, 1 Am. St. Rep. 75. 374 OPERATION OF CONTRACT. (Ch. 9 (2) Covenants in a lease which touch and concern the thing demised, but relate to something not in existence at the time of the lease, pass to the lessee's assignee only where the covenant is expressly made with the lessee "and assigns." '' (3) In no case does the assignee of a lease acquire benefit or incur liability from merely personal_qr coljateral ,covenants made between the lessee and landlord!^ For instance, where a lessee of land cove- nanted to use the premises as a schoolhouse, and the lessor covenanted not to build or keep any house for the sale of intoxicating liquor within a certain distance of the premises, it was held that the benefit of the lessor's covenant did not pass to the assignee of the lease."* At common law, the assignment of his interest by the reversioner or landlord does not convey his rights and liabilities to his assignee. The law in this respect, however, was changed in England by a statute in the reign of Henry VIII. ,®^ under which the assignee_of^ the reversion is enabled to take the benefits and also incurs the liabilities of cove- nants entered into with his assignor. This statute is recognized as a part of the common law in some of our states, while in others similar statutes have been enacted."® The rules as to the connection of the covenants with the thing demised apply to such as run with the rever- sion equally with those that run with the land ; that is to say, they must "touch and concern the thing demised," and not be merely personal or collateral."^ 8 3 MinshuU v, Oakes, 2 Hurl. & N. 80S; Spencer's Case, 1 Smith, Lead. Cas. 168; Hansen v. Meyer. 81 111. 321, 25 Am. Rep. 282; Newbm-g Petroleum €0. V. Weare, 44 Ohio St. 604, 9 N. E. 845; Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; Coffin v. Talman, 8 N. Y. 465; Tallman v. Coffin, 4 N. Y. 134; Masury v. Southworth, 9 Ohio St. 340; Dorsey v. Railroad Co., 58 111. 65; Cronin v. Watkins. 1 Tenn. Ch. 119; Bream v. Dickersou, 2 Humph. (Tenn.l 126; Hartung v. Witte, 59 Wis. 285, 18 N, W. 175. 0* Thomas v. Haywood, L. R. 4 Exch. 311. The lessee cannot, by as- signing the lease, release himself from his express covenants — as to pay rent. He cannot escape this liability without the landlord's consent, and the lat- ter's mere assent to the assignment does not amount to a release. Ffaff v. Golden, 126 Mass. 402; Oswald v. Fratenburgh, 3G Minn. 270, 31 N. W. 173; ■Greenleaf v. Allen, 127 Mass. 248; Nova Cesarea Harmony Lodge No. 2 v. White. 30 Ohio St. 569, 27 Am. Rep. 492; Harris v. Heackman, 62 Iowa, 411, 17 N. W. 592; Wilson v. Gerhardt, 9 Colo. 585, 13 Pac. 705; Ghogan v. Young. 23 Pa. 18. If the landlord accepts the sublessee as tenant, and releases the lessee, it is otherwise. See Colton v. Gorham, 72 Iowa, 324, 33 N. W. 76. 9532 Hen. VIIL c. 34. 98 Baldwin v. Walker. 21 Conn. 168; Howland v. Coffin, 12 Pick. (Mass.) 125 ; Perrin v. Lepper, 34 Mich. 295. Where statute requires actions to be brought in name of real party in interest, it is held that action on covenants of lease may be brought by assignee of reversioner. See Masury v. South- worth, 9 Ohio St. 340; Smith v. Harrison, 42 Ohio St. 180. 9T Spencer's Case, 1 Smith, Lead. Cas. 168. I 1 § 199) ASSIGNMENT OF CONTRACTS. 375 Covenants Affecting Freehold Interests. At common law, covenants entered into with the owner of land — ■ that is to say, promises_uricler seal made to .the owner of land, and-ler Jiis benefit — pass to his assignees, provided, as in other cases, they touch _and concern the land conveyed, and are not merely personal."* For instance, if the vendor of land covenants with the purchaser that he has a good right to convey the land, the benefit of the covenant will pass to an assignee of the purchaser;®^ but it would be other- wise in case of a covenant relating to a matter purely personal between the covenantor and covenantee/ °° On the other hand, covenants entered into by the owner of land wh ich re strict. his enjoyment of the land_do not, at common law, bind his assignee, except where he creates certain well-known interests, such as^_easements, recognized by the common law.^°^ If a man an- as Horn V. Miller, 136 Pa. 640, 20 Atl. 706, 9 L. R. A. 810; Kellogg v. Robin- son, 6 Vt. 270, 27 Am. Dee. 550; Peden v. Railway Co., 73 Iowa, 328, 35 X. W. 424, 5 Am. St. Rep. 680; Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190; St. Loiiis, I. M. & S. Ry. Co. v. O'Baugh, 49 Ark. 418^ 5 S. W. 418; Raby v. Reeves, 112 N. C. 688, 16 S. E. 760; Hallenbeck v. Kindred, 109 N. Y. 620, 15 N. E. 8S7; Scott v. Stetler, 128 Ind. 385, 27 N. E. 721; De Gray v. Club- liouse Co., 50 N. J, Bq. 329. 24 Atl. 388; Lucas v. Turnpike Co., 36 W. Va. 427, 15 S. E. 182; Inhabitants of Middlefield v. Knitting Co., 160 Mass. 267, 35 N. E. 780. Covenant against paramount ground rent. Providence Life 41 Am. Rep. 365; Same v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615; Haskell v. Wright, 23 N. J. Eq. 380; Stiues v. Dorman, 25 Ohio St. 580; Thurston v. Minke, 32 Md. 487; DeGray v. Clubhouse Co., 50 N. J. Eq. 458, 24 Atl. 388; Clark v. Maitin, 49 Pa. 289. Covenant by grantor of lots, "his heirs and assigns," not to build improvement on lots retained inferior to spccitied qualifications, binds his subsequent grantees with notice. Halle V. Newbold, 69 Md. 265, 14 Atl. 662. It has even been held that a cov- enant by a vendee of land not to sell sand therefrom, the intention being to prevent competition with the vendor, is enforceable against the covenantor's grantee buying with notice. Hodge v. Sloan, 107 N. Y. 214, 17 N. E. 335, 1 §§ 2U0-201) ASSIGNMENT OF CONTKACTS. 377 SAME— ASSIGNMENT OF CONTRACTUAL OBLIGATION BY MARRIAGE 200. At connuon laxr, upon a w^oman's marriage the right to reduce her cho«es in action into possession is transferred to her husband, and he becomes liable jointly ivith her, during coverture, upon her antenuptial contracts. These rules are changed by statute in most jurisdictions. At common law, a married woman is disabled from acquiring the benefits of her antenuptial contract, because she cannot sue upon it apart from her husband, and she may lose them altogether, for they are vested conditionally in the husband, who mry take them to himself by reduction into possession of the chose in action. He may also sue jointly with his wife for what is due on her contracts. Whatever is thus obtained passes absolutely to him. If the husband does not thus reduce his wife's choses in action into his possession, they survive to her if he dies first, or pass to her representatives if she dies in his lifetime. At common law, the husband acquires the liabilities of the wife to the extent that he may be sued jointly with her on any contracts made by her before marriage. Satutory Changes in the Law. In England and in all of our states the common law in this respect has been very greatly changed by statute. In some states it has been virtually abolished and in these states the marriage of a woman does not in any way affect her rights or habilities under contracts entered into before marriage. SAME— ASSIGNMENT OF CONTRACTUAL OBLIGATION BY DEATH. 201. Death passes to the executors or administrators of the deceased all rights of action in respect of the personal estate, and, to the extent of his estate, all liabilities chargeable upon it. This does not include— EXCEPTIONS — (a) Contracts depending on the personal services or skill of the deceased, (b) Contracts the breach of -nrhich involves a purely personal loss. On the death of a person all his personal estate passes, by operation of law, to his executors or administrators, and with it also pass all rights of action on contract which will afifect such estate, and all lia- Am. St. Rep. 816. Agreement for exclusive transportation of products of land by railroad to be extended or built over it will be so enforced. Kettle River R. Co. V. Railway Co., 41 Minn. 4G1, -13 N. W. ■m), G L. R. A. 111. 378 OPERATION OP CONTRACT. (Ch. 9 bilities arising out of contract which are chargeable upon it;^°* and actions on such contracts are brought by or against the personal rep- resentative in his own name.^"'* Covenants, for instance, which are attached to a leasehold estate, pass, as~fo~benefit and liability, with the personalty to the executor or administrator; but covenants affect- ing freehold estates, such as covenants for title in a conveyance of freehold property, pass to the heir or devisee of the realty. This rule does not include such contracts as depend upon the per- sonal services or the skill of the deceased, which expire on the death of either of the parties. ^"^ An apprenticeship contract is thus ter- minated by the death of the master, and no claim to the services of the apprentice survives to the executor or administrator.^"'^ In like manner, breach of a contract which involves a purely personal loss does not confer a right of action upon executors or administrators. Thus, where an executor sued for a breach of promise to marry his testatrix, the promise having been broken, and the right of action hav- ing accrued in her lifetime, it was held that he could not recover, as it did not clearly appear that the breach of contract had resulted in damage to the personal estate.^"* Executors and administrators take no personal benefit from the con- tracts of the decedent, nor are they personally liable. They merely stand in his shoes, and represent him to the extent of his estate. 104 Anson, Cont. (4th Ed.) 235; Jewett v. Smith, 12 Mass. 309; Snodgrass V. Cabiness, 15 Ala. 160; Henderson v. Henshall, 54 Fed. 320, 4 C. G. A. 357; Beecher t. Buckingham. 18 Conn. 110, 44 Am. Dec. 580; Shirley v. Healds, 34 N. H. 407. This subject is covered by statute in most of the states. 10 5 Potter V. Van Yranken, 36 N. Y. 619. 106 BAXTER V. BURFJBLD, 2 Str. 1266; DICKINSON v. CALAHAN'S ADM'RS, 19 Pa. 227; YERRINGTON v. GREExXE, 7 R. I. 589, 84 Am. Dec. 578; LACY v. GETMAN, 119 N. Y. 109, 23 N. E. 452, 6 L. R. A. 728, 16 Am. St. Rep. 806; Mai-vel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370; Blakely v. Susa, Pa., 47 Atl. 286. 107 BAXTER V. BURFIELD, 2 Strange, 1266. 10 8 CHAMBERLAIN v. WILLIAMSON, 2 Maule & S. 408. And see Flnlay V. Chirney, 20 Q. B. D. 494; Stebbins v. Palmer, 1 Pick. (Mass.) 7l, 11 Am. Dec. 146; Smith v. Sherman, 4 Gush. (Mass.) 408; Chase v. Fitz, 132 Mass. 359; Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250; Hovey v. Page, 55 Me. 142; Lattimore v. Simmons, 13 Serg. & R. (Pa.) 183; Grubbs v. Suit, 32 Grat (Va.) 203, 34 Am. Rep. 765. §§ 202-204) JOINT AND SEVERAL CONTRACTS. 379 JOINT AND SEVERAL CONTRACTS. 202. A contract in xp^hich there are two or more parties on either or both sides may be^ (a) Joint; 5) 108. Ill WHELPDAEE'S CASE, 5 Coke, 119; Rice v. Shute, 5 Bun-ows, 261^. 115 RICHARDS v. HEATHEPh 1 Bam. & Aid. 29; Gere v. Clarlc, G Hill (N. Y.) 350; Brown v. Benight, 3 Blackf. (Ind.) 37, 23 Am. Dec. 373; Foster v. Hooper, 2 Mass. 572; Stevens v. Catlin, 152 111. 5G, 37 N. E. 1023; Hoskinson v. Eliott, 62 Pa. 393; Atwell v. INIilton, 4 Hen. & M. (Va.) 2-53; Clark v. I'arish, 1 Bibb (Ky.) 547; Murphy v. Weil, 92 Wis. 4G7, GG N. VV. 532. As to the effect of the death of a joint debtor after judgment, see Leake, Cont. 215; Harbarfs Case, 3 Coke, 14a. The doctrine of survivorship is virtually abolished by statute in most states. Taylor v. Taylor, 5 Humph. (Tenn.) 110; Williams V, Bradley, 5 Ohio Cir. Ct. R. 114: Fisher v. Hopkins, 4 Wyo. 379. 34 Pac. 899; Bachelder v. Fiske, 17 Mass. 4(M. lie DAVIS V. VAN BUREN, 72 N. Y. 587; Richardson v. Draper, 87 N. Y. 337. 11'? Leake, Cont. 214. Otherwise if creditor presents claim, under statute providing that creditor so doing shall be barred. Mungau v. French, GO N. J. 112, 3G Atl. 771. lis Brooks V. Stuart, 9 Adol. & E. 854; Maslin v. Hiett, 37 W. Va. 15, IG S. E. 437; Rowley v. Stoddard. 7 Johns. (N. Y.) 207; HALE v. SPAULDING, 145 Mass. 482, 14 N. E. 534. 1 Am. St. Rep. 475; Goldbeck v. Bank, 147 Pa. 2G7, 23 Atl. 5G5; Lunt v. Stevens, 24 Me. 534; Aliin v. Shadburue, 1 Dana (Ky.) 68, 25 Am. Dec. 121; Newcomb v. Ray nor, 21 AVend. (N. Y.) 108, 34 Am. Dec. 219. This is changed by statute in some states. Otherwise if the instrument shows a contrary intention, as by a reseiwatiou of rights against other parties. North v. Wakefield, 13 Q. B. 53G; Yates v. Donaldson, 5 Md. 389, Gi Am. Dec. 2S3; Whittemore v. Judd Linseed & Sperm Oil Co., 124 N. Y. 5G.J, 27 N. E. 244. 21 Am. St. Rep. 708; Parsons, Cont 29. 119 Clayton v. Kyuaston, 2 Salk. 573; Shed v. Pierce, 17 Mass. 62S; Couch V. Mills, 21 Wend. (N. Y.) 424; Walker v. McCulloch. 4 Greenl. (Me.) 421; McLellau v. Bank, 24 Me. 5GG; Rowley v. Stoddard, 7 Johns. (N. Y.) 207. 4- \ 382 OPERATION OF CONTRACT. (Cll. &' Joint Promisees. Where the contract is joint on the part of the promisees, all must" join in suing upon it.^-° Even a disclaimer by one, if without the assent of the promisor, will not entitle the others to sue alone/^^ If one of them is not joined as a plaintiff, the defendant may plead in abatement; but failure to do so will not constitute a waiver of the defect.^==2 Same — Survivorship. Where one of several joint promisees dies, the legal right under the contract devolves upon the survivors, and they only can sue on the contract. The representative of the deceased promisee cannot be joined, nor can he sue alone.^^* Same — Release. A payment of the debt to one of several joint promisees is a dis- charge of the debt. So, also, one of the promisees, without the others joining, may give a valid release of the debt, and it will bind the J others.^24 , I 120 Eccleston v. Clipsbam, 1 Wms. Saund. 153; Hatsall v. Griffith, 2 Cromp. 6 M. G79; Pease v. Hii-st, 10 Barn. & C. 122; Dob v. Halsey, 16 Johns. (N. Y.) 34, S Am. Dec. 293; Gould v. Gould, 6 Wend. (N. Y.) 2(53; Hewes v. Bayley, 20 Pick. (Mass.) 90; Archer v. Bogue, 3 Scam (111.) 526; Wilson v. Wallace, 8 Serg. & K. (Pa.) 53; Slaughter v. Davenport, 151 Mo. 26, 51 S. W. 471. See, also, Clark v. Great Northern R. Co. (C. C.) hi Fed. 282. 121 Wetherell v. Langston, 1 Exch. 634; Angus v, Kobinsou, 59 Vt. 585. 8 Atl. 497, 59 Am. Rep. 75S; Whart. Cont. 814. 122 If one of the joint promisees is omitted, and the defect appears upon the record, It may be objected to by demurrer, or by motion in arrest of judg- ment or by error. Petrie v. Bury, 3 Barn. & C. 353; Pugh v. Stringtield, 3 C. B. (N. S.) 2; Wetherell v. I.angston, 1 Exch. 634; Ehle v. Purdy, 6 Wend. (N. Y.) 629; Baker v. Jewell, 6 Mass. 460, 4 Am. Dec. 162; Beach v. Hotchkiss, 2 Conn. 697; Wiggin v. Cumiugs, S Allen (Mass.) 353. If the de- fect does not appear upon the record, there would be a variance between the contract as pleaded and proved, which, unless amended, would be fatal. JELL v. DOUGLAS, 2 B. «fc Aid. 374; Chanter v. Leese, 4 Mees. & W. 295; Hallett V. Gordon, 122 Mich. 567, 81 M. W. 556. 123 MARTIN V. CRUMP, 2 Salk. 444; ANDERSON v. MARTINDALE, 1 East 497; Peters v. Davis, 7 Mass. 257; Murray v. Mumford, 6 Cow. (N. Y.) 441; Supreme Lodge v. Portingall, 167 111. 291, 47 N. E. 203, 59 Am. St Rep. 296; Mcintosh v. Zaring, 150 Ind. 301, 49 N. E. 164. 124 RAAVSTORNE v. GANDELL, 15 Mees. & W. 304; Wilkinson v, Lindo, 7 Mees. & W. 81 ; ]Myrick v. Dame, 9 Cush. (Mass.) 248; Tuckerman v. New- hall, 17 Mass. 581; Bruen v. Marquard, 17 Johns. (N. Y.) 58; Pierson v. Hooker. 3 Johns. (N. Y.) 68, 3 Am. Dec. 467; Napier v. McLeod, 9 Wend. (N. Y.) 120; OSBORN V. MARTHA'S VINEYARD R., 140 Mass. 549, 5 N. E. 486 ; Moore V, Bevier, 00 Minn. 240, 62 N. W. 281. Where a partner in a firm doing biisi- ness in the .state, to which a citizen of the state was indebted, was a non- resident a discharge of the debtor in insolvency by a court of the stiite, since It did not affect the rights of the noni'esident, did not discharge the debt. Chase v. Ileni-j-, 166 Mass. 577, 44 N. E. 988, 55 Am. St. Rep. 423. 1 §§ 205-206) JOINT AND SEVERAL CONTRACTS. 383 SAME— SEVERAL CONTRACTS. 205. If t-wo or more parties bind themselves severally to another in respect of the same matter or debt, their liability is separate and distinct, and they cannot be sued jointly. 206. If one party binds himself to several parties severally, their right to enforce the promise is separate. On the other hand, several persons may bind themselves severally to another in respect of the same matter or debt, so that the creditor is entitled to claim the whole debt or performance against each debtor separately.^ ^^ In such case the promisors must be sued separately; they cannot be sued jointly.^^^ Where the promisors are severally liable, and therefore, of course, where they are both jointly and sev- erally liable, a judgment against less than all of them does not dis- charge the others until it has been satisfied. ^^'^ Again, one person may bind himself to each of several persons, provided the interest of each in the subject-matter of the promise is several, so that each prom- isee is separately entitled to sue thereon.^^® Survivorship. The doctrine of survivorship applicable to joint contracts does not apply to several contracts/^" 125 Lurton T. Gilliam, 1 Scam. (III.) 577, 33 Am. Dec. 430. 120 Davis V. Belford, 70 Mich. 120, 37 N. W. 919; Price v. Railroad Co., 18 Ind. 137; Sims v. Clark, 91 Ga. 302, 18 S. B. 158; Streator v. Paxton, 201 Pa. 135, 50 Atl. 92G. This is changed by statute in most states. See Steftes V. Lemke, 40 Minn. 27, 41 N. W. 302; Wibaux v. Live-Stock Co., 9 Mont. 154, 22 Pac. 492; Brown v. McKee, 108 N. C. 387, 13 S. E. 8; Wallis v. Carpenter, 13 Allen (Mass.) 19; Costigan v. Lunt, 104 Mass. 217. 127 Ward V. Johnson, 13 Mass. 148; Harlan v. Beri-y, 4 G. Greene (Iowa) 212. 128 KEIGHTLEY v. WATSON, 3 Ex. 716; Rorabacher v. Lee, IG Mich. 169; Hall v. Leigh. 8 Cranch. 50, 3 L. Ed. 484; Chanter v. Leese. 4 Mees. & W. 295; Geer v. School Dist, 6 Vt. 76; Catawissa R. Co. v. Titus, 49 Pa. 277; Yates V. Foot, 12 Johns. (N. Y.) 1; Burton v. Henry, 90 Ala. 281, 7 South. 925; Emmeluth v. Home Benefit Ass'n. 122 N. Y. 130. 25 N. E. 234, 9 L. R. A. 704; Shipman v. Straitsville Cent Min. Co., 158 U. S. 356, 15 Sup. Gt. 886, 39 L. Ed. 1015. i29Enys V. Donnithorne, 2 Burrows, 1190; Garthrae v. Brown, 3 Leigb (Va.) 98, 23 Am. Dec. 255. 384 OPERATION OF CONTRACT. (Ch. 9 SAME-CONTRACTS BOTH JOINT AND SEVERAI*. 207. AVliere a contract in respect of the promisors is both joint and several, (a) The promisee may sue all the promisors jointly, or each one sep- arately. (b) If he sues jointly, he must sue all the promisors; he cannot sue less than all jointly. Again, several persons may concurrently contract respecting the same matter, binding themselves jointly and also severally. ^^^ Where the promise is both joint and several, the promisee may, at his election, either sue all the promisors jointly, or each one of them separately.^^^ But he must do one or the other. He cannot sue less than all of them jointly. If, for example, there are three promisors, he cannot join two.^^^ A promise cannot be so made in respect of one and the same matter as to entitle several persons under it both jointly and severally. They must either be entitled under it jointly only, or severally only.^^^ Survivorship. As we have seen, the doctrine of survivorship does not apply to several contracts. It necessarily follows that it does not apply to joint and several contracts. SAME— CONTRIBUTION BETWEEN JOINT DEBTORS. 208. AVhere one of several joint debtors pays the \rhole debt, he may, in the absence of an agreement to the contrary, enforce con- tribution from the others; that is, he may recover from them their proportionate share of the debt. The rights and liabilities of persons who have contracted jointly or severally respecting the same matter as between themselves depend 130 Leake, Cont. 217; BEECHAM y. SMITH, El., Bl. & El. 442; Hemmen- ■way V. Stone, 7 Mass. 54, 5 Am. Dec. 27; Klapp v. Kleckner, 3 Watts & S. (Pa.) 51!). 131 Sciiilling V. Black, 49 Kan. .%2, 31 Pac. 143; Carter v. Carter, 2 Day (Conn.) 442, 2 Am. Doc. 113. A judgment against all Is not a bar to an action against eacb, PEOPLE v. HARRISON, 82 111. 84; Davis v. Sanderlin. 119 N. C. 84, 25 S. E. 815. Contra, United States v. Price, 9 How. 83, 13 L. Ed. 56. 132 STATE V. CHANDLER, 79 Me. 172, 8 Atl. 553. 133 SLINGSBY'S CASE, 5 Coke, 18b; ANDERSON v. MARTINDALE. 1 East, 497; Bradbinne v. Botfield, 14 Mees. & W. 573; Eveletli v. Sawyer, 96 Me. 227, 52 Atl. G39. § 208) JOINT AND SEVERAL CONTRACTS. 3S5 upon the relation in which they stand, and the agreement or under- standing upon which they have joined in the contract. In general, the contract itself is independent of such relation or agreement. In contracts of guaranty or suretyship, for instance, made between the creditor and the principal debtor and his sureties, the principal debtor and the sureties are usually all made debtors in equal degree to the creditor, who may recover the whole debt against all or any of them. As between themselves, however, the principal debtor is solely liable ; and, if the surety is called upon by the creditor to pay any part of the debt, he may, upon payment, recover the amount from the principal debtor. ^^* So, where there are several sureties, who are all primarily liable for the whole debt to the creditor, and one of them is called upon to pay, ea^h. of the cosureties becomes ratably indebted to him for contribution. ^^^ This rule is not limited to contribution between sureties, but applies to joint contractors generally. Where one of them is compelled to pay the whole debt, the law creates a promise. qn_tlie part of the others to pay him their proportion, and he may sue theni thereon,^ ^® The liability is c|uasi_contrjictual. This doctrine of contribution applies where the contract is joint, or both joint and several, but not where it is several only. Formerly the right to con- tribution could only be enforced in equity, but now, except as between sureties, it may be enforced at_JaWj as well as in_£qiiity. In some jurisdictions contribution between sureties can still be enforced in equity only, except where a statute provides otherwise. ^^'^ ' The principal contract may in some cases be affected by the rights and relations of the several parties who join in it. For instance, in contracts of guaranty or suretyship, the creditor is bound, upon princi- ples of equity, to abstain from any dealing with the debtor which may prejudice the surety. If he binds himself to give further time to the debtor, without the consent of the surety, the latter is discharged.^' 138 134 Post, p. 634, note 21. isB Post, p. 533. The quasi contract for contribution is several and not joint. A surety tlierefor may enforce contribution against tbe estate of a deceased cosurety. Bactielder v. Fislie, 17 Mass. 4G4; Handley v. Heflin, 84 Ala. 600. 4 South. 725. i3cDoremus v. Selden, 19 Johns. (N. Y.) 213; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547; Fletcher v. Grover, 11 N. H. 3GS, 35 Am. Dec. 497; Jeffries V. Ferguson, 87 Mo. 244; Foster v. Burton, 62 Vt 239, 20 Atl. 326; Logan v. Trayser, 77 Wis. 579, 46 N. W. 877. 13T Longley v. Griggs, 10 Pick. (Mass.) 121; McDonald v. Magruder, 3 Pet. 470, 7 I/. Ed. 744. 138 Kees V. Berrington, 2 Ves. Jr. .540; Pooley v. Harradine. 7 El. & Bl. 431; Gordon v. Bank, 144 U. S. 97, 12 Sup. Ct. 657, 36 L. Ed. 360. Chemical Co. V. Pegraoi, 112 N. C. 614, 17 S. E. 298; Durbin v. Kuney, 19 Or. 71, 23 Pac. 661. Clark Cont. (2d Ed.) — 25 A>- 386 INTERPRETATIOIS OF CONTllACT. (Gil. 10 CHAPTER X. INTERPRETATION OF CONTRACT. 209-213. Rules Relating to Evidence — In General — Parol Evidence. 214-215. Proof of Document. 216. Evidence as to Fact of Agreement 217. Evidence as to Terms of Contract 218-219. Rules of Construction — General Rules. 220. Rules as to Time. 221-222. Rules as to Penalties and Liquidated Damages. 223. Joint and Several Contracts. We have next to consider the mode in which the courts deal with a contract when it comes before them in Htigation, or the interpretation of contracts. In considering this question we have to learn how the existence and the terms of a contract are proved ; how far, when proved to exist in writing, they can be modified by evidence extrinsic to that which is written; and what rules have been adopted for con- struing the meaning of the terms when fully before the court. The subject, therefore, divides itself into (i) rules relating to evidence, and (2) rules relating to construction. Under the first head we have to consider the sources to which we may go for the purpose of ascer- taining the expression by the parties of their common intention. Un- der the second we have to consider the rules which exist for constru- ing that intention from expressions ascertained to have been used.^ RULES RELATING TO EVIDENCE— IN GENERAL— PAROL EVI- DENGE.2 209. Tlie circnmstances under Tirhicli an alleged contract by -word of mouth xtras made, tvhat xras said and done by tbe parties, and their intention to contract, are questions of fact for the jury. Whether ivhat teas said and done amounts to a contract, and its effect, are questions of laiv for the court. 210. Where a man is proved to have made a contract by Tirord of mouth upon certain terms, he cannot say he did not mean what he said. 211. A contract, or portion thereof, reduced to \rriting, cannot be al- tered by parol evidence. 212. If a contract is under seal, the instrument itself is the coutract«^ and its proof proves the contract. 1 Anson, Cont. (4tli Ed.) 237. 2 Following subbUiulially Anson, Cont (4tli Ed.) 238-240. y- §§ 209-213) RULES RELATING TO EVIDENCE. 387 213. A writing not under seal, whether required by the statute of frauds or not, is not itself the contract, but only evidence of the contract, so that a simple contract may have to be proved by w^riting, or by proof of w^ords or acts, or partly by one and partly by the other. If a dispute arises as to the terms of a contract made by word of month or by acts, or partly by both, it is necessary, in the first instance, to ascertain what was said or done, and the circumstances under which the supposed contract was formed. These are questions of fact to be determined by the jury from the evidence adduced before them. \ When a jury^ has found, as a matter of fact, what the parties said and did, and that they intended to enter into a contract, it is for the court to say whether what they have said or done amounts to a contract, and what is its effect. When a person is proved to have made a contract by word of mouth upon certain terms, he cannot be heard to say that he did not mean what he said. The law imputes to a person a state of mind or inten-V tion corresponding to the rational and honest meaning of his words;! and not only of his words, but of his actions as well ; and where the conduct of a person towards another, judged by a reasonable standard, manifests an intention to agree in regard to some matter, that agree- ment is esjablished in law as^a fact by proof of tha^conductj whatever may be the real but uneScpfessedT sfafe^oTRis mind on the matter. The principle above stated applies also to contracts made in writing. Where parties have put into writing any portion of the terms of their agreement, they cannot alter by parol evidence that which is written ; ■ and, where the writing purports to be the whole of the agreement, it can neither be added to nor varied by parol evidence of their unex- pressed intention. It is not necessary for us to discuss the rules of evidence as regards purely oral contracts, for proof of a contract made by word of mouth is a part of the general law of evidence. Our consideration of the rules of evidence will therefore be confined to their effect upon written contracts and contracts under seal. I Admissible evidence extrinsic to such contracts falls under three /lieads : (i) Evidence as to the fact that there is a document purport- ing to be a contract, or part of a contract. (2) Evidence that the pro- fe^sed-contract is in fact what it professes to be. It may lack some element necessary to the formation of coiitraci, or be subject to some parol condition upon which its existence as a contract depends. (3) Evidence as to the ierm^ of the contract. These may require illustra- tion which necessitates some extrinsic evidence ; or they may be ambig- uous, and then may be in like manner explained ; or they may comprise, unexpressed, a custom or usage the nature and effect of which have to be proved. 388 INTERPRETATION OF CONTRACT. (Cb. 10 Difference between formal and Simple Contracts. Before taking up these questions as to the admissibility of evidence it will be well to note the difference between contracts under seal and simple contracts in writing, as illustrated by the rules of evidence re- specting them. A contract under seal, as we have seen, derives its vjJidity from the form irLJwblchJt finds expression ; therefore, if the instrument is proved, the contract is proved, unless it can be shown to have been executed under such circumstances as preclude the forma- tion of contract, or to have been delivered to a third person under conditions which have remained unfulfilled, so that the deed is no more than an es crow . A written contract not under seal, however, is not the contract itself, but only evidence of the contract, — a record of the contract.^ Even where statutory requirements for writing exist, as under the statute of frauds, the writing is nothing more than evidence of the agreement. A written offer containing all the terms of the contract, signed by the proposer, and accepted by the other party by performance on his part, is enoug iL.tQ..en-a.bie.-tlie latter to sue under the statute of frauds. And where there is no such necessity for writ- ing, it is optional with the parties to express their agreement by word of mouth, by action, or by writing, or partly by one and partly by another of these processes. It is always possible, therefore, that a simple contract may have to be sought for in the words and acts, as well as in the writing, of the contracting parties. But in so far as thev Jiaye reduced their meaning to writing they cannot adduce evi- dence in contradiction or alteration of it. They put on paper what is to bind them, and so mal<:e the written document conclusiy£^vidence against them.* SAME— PROOF OF DOCUMENT. 214. A contract under seal is proven by evidence of the sealing and delivery. 215. In proving a simple contract evidenced by a document, parol evidence is admissible for the folloiving purposes: (a) To sboTO- tbat the defendant is the person ^vho made the contract. ; Bush V. Merriman, 87 Mich. 200, 49 N. W. 86(5 ; Kyle v. Fehley, 81 Wis. 67, 51 N. W. 257, 29 Am. St. Rep. 866: Suell v. Insurance Co., 98 U. S. 85, 91, 25 L. Ed. 52 ; Kleinsorge v. Rohse, 25 Or. 51, 34 Pac. 874. 61 Garrard v. Frankel, 30 Beav. 445; Harris v. Pepperell, L. R. 5 Eq. 1; Moffett, H. & C. Co. y. City of Rochester, 178 U. S. 373, 20 Sup. Ct. 957, 44 L. Ed. 1108. Cf. Trenton Terra Cotta Co. v. Shingle Co. (C. C.) 80 Fed. 46. Claek Cont. (2d Ed.)— 26 •" r' 402 INTERPRETATION OF CONTRACT. (Cb. 10 RULES OF CONSTRUCTION. Thus far we have dealt with the admissibility of evidence in relation to contracts in writing. We now come to deal with the rules of con- struction which govern the interpretation of the contract as it is proven to have been made between the parties. SAME— GENERAL RULES. 218. The three general rules of constniction are that: I (a) 'Words are to be understood in their plain and literal meaning, but— EXCEPTIONS— (1) Evidence of usage may vary the usual mean- ing of Avords. (2) Technical words are to be given their technical meaning. (.3) The rule is subject to the following rules as to giving efEect to the intention of the parties. I Cb) An agreement should receive that construction ^rhich ■will best effectuate the intention of the parties. flic) The intention of the parties is to be collected from the whole agreement. 219. Subsidiary to these rules are the follow^ing, tending to the same end — that is, the effecting of the intention of the parties: (a) Obvious mistakes of \irriting or grammar, including punctuation, w^ill be corrected. (b) The meaning of general w^ords xirill be restricted by more specific and particular descriptions of the subject-matter to w^hich they apply. (c) A contract susceptible of t^vo meanings will be given the mean- ing w^hich will render it valid. (d) A contract Tvill, if possible, be construed so as to render it rea- sonable rather than unreasonable. (e) Words will generally be construed most strongly against the pai^y Tvho used them. (f) In case of doubt, Aveight w^ill be given the construction placed upon the contract by the parties. (g) Where there is a conflict bet^eeen printed and w^ritten -words, the latter xirill control. (i) The first general rule is that words are to be understood in their plain and literal meaning; and this rule is followed, though the con- sequences may not have been in the contemplation of the parties.'^ C2 Hawes v. Smith, 12 Me. 429; Bullock v. Lumber Co. (Cal.) 31 Pac. 367; Mansfield & S. City U. Co. v. Veeder. 17 Ohio, 385; Hall v. Bank, 53 Md. 120; Taylor v. Turley, 33 Md. 500; Pillsbury v. Ix)cke, 33 N. H. 90, 66 Am. Dec. 711; Holn)os v. Hall, 8 Mich. 66, 77 Am. Dec. 444; Stettauer v. Hamlin, 97 111. 312; Brudshaw v. Bradbury, 64 Mo. 334; Willmering v. McGaughey, 30 Iowa. 205, 6 Am. Rep. 073; Smith v. Bank, 171 Mass. 178, 50 N. E. 545; Fitzgerald v. Bank, 114 Fed. 474, 52 C. C. A. 270. While paities to a contract §§ 218-219) RULES OF COXSTRUCTION. 403 The rule, however, is subject to the qualification that a particular custom or usage, which, as we have seen, may Ijc proven, may vaiy the usual meaning- of words ; °^ and that technical words are to be given their technical meaning."' It is also subject to the rules, which we will now explain, as to giving effect to the intention of the parties. (2, 3) The second and third rules may be mentioned together, namely, that an agreement ought to receive that construction which will best effectuate the intention of the parties ; and this intention must be collected, not from detached parts of the agreement, but from the whole agreement.®'^ "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." ^^ Where the intention clearly ap- are entitled to its literal performance, when practicable, that does not mean that courts and juries shall give to the ternis of a couti-act, however clear and unmistakable the ordinary significance of the words employed, a meaning which, when applied to the subject-matter of the contract, will render per- formance impossible. Columbus Const. Co. v. Crane Co., 98 Fed. 946, 40 C. C. A. 35. C3 Ante, p. 396. 64 Ante, p. 396. Findley's Ex'rs v. Findley, 11 Grat. (Va.) 434; Ellmaker V. Ellmaker, 4 Watts (Pa.) 89; Maiyland Coal Co. v. Railroad Co., 41 Md. 343; Eaton v. Smith, 20 Pick. (Mass.) 150; McAvoy v. Long, 13 111. 147; Kindskoff v. Barrett, 14 Iowa, 101. 6 5 Mallan v. May, 13 Mees. & W. 511, 517; Jackson v. Stackhouse. 1 Cow\ (N. Y.) 122, 13 Am. Dec. 514 ; Gray v. Clark, 11 Vt. 583 ; Hey wood v. Perrin, 10 Pick. (Mass.) 228, 20 Am. Dec. 518; Field v. Leiter, 118 lU. 17, 6 N. E. 877; Lindley v. Groff, 37 Minn. 338, 34 N. W. 26; Walsh v. Trevanion, 15 Q. B. 733* Bell V. Bnien, 1 How. 169, 11 L. Ed. 89; Armstrong v. Granite Co., 147 N. Y. 495, 42 N. E. ISO, 49 Am. St. Rep. 683; German Fire Ins. Co. v. Roost, 55 Ohio St 5S1, 45 N. E. 1097, 36 L. R. A. 236, 60 Am. St. Rep. 711; Sattler v. Hallock, 160 N. Y. 291, 54 N. B. 667, 46 L. R. A. 679, 73 Am. St. Rop. 686. Where sev- eral instruments are made as part of one transaction, they will be read together, and each will be construed with reference to the other; and the.different parts of one instrument will be read together. Wood v. College, 114 Ind. 320, 16 N. E. 619; Morss v. SalisbmT, 48 N. Y. 636; Thomson v. Beal (C. C.) 48 Fed, 614 ; Lindley v. Groff, 37 Minn. 338, 34 N. W. 26 ; Pensacola Gas Co. v. Lotze, 23 Fla. 368, 2 South. 609; Hageity v. White, 69 Wis. 317, 34 N. W. 92; Sutton V. Beckwith, 68 Mich. 303, 36 N. W. 79, 13 Am. St. Rep. 344; Bailey v. Rail- road Co., 17 Wall. 96, 21 L. Ed. 611; Joy v. City of St. Louis, 138 U. S. 1, 11 Sup. Ct 243, 34 L. Ed. 843; HUNT v. LIVERMORE, 5 Pick. (Mass.) 395; Pierce v. Tidwell, 81 Ala. 299, 2 South. 15; Freer v. Lake, 115 111. 662, 4 N. E. 512; Palmer v. Palmer, 150 N. Y. 139, 44 N. E. i)m, 55 Am. St. Rep. 653; American Gas & Oil Min. Co. v. Wood, 90 Me. 516, 38 AU. 548, 43 L. R. A. 449. 66 FORD v. BEACH, 11 Q. B. 852, 866; Chesapeake & O. Canal Co. v. Hill, 15 Wall. 94, 9 L. Ed. 222; Hoffman v. Insurance Co., 32 N. Y. 405, 88 Am. Dec. 337; Walker v. Douglas, 70 111. 445; Collins v. Lavelle, 44 Vt. 230; First Nat Bank v. Gerke, 68 INId. 449, 13 Atl. 358, 6 Am. St. Rep. 453; Hunter's Adm'rs v. Miller's Ex'rs, 6 B. Mon. (Ky.) 612; Gage v. Tirrell, 9 Allen (Mass.) 299; Ullmann v. Railway Co., 112 Wis. 150, 88 N. W. 41, 88 Am. St Rep. 949. 11 it clearly appears that a word was used inadvertently, 404 INTERPRETATION OF CONTRACT. (Ch. 10 pears from the words used, there is no need to go further, for in such a case the words must govern ; or, as it is sometimes said, where there is no doubt, there is no room for construction.®'^ But, if the meaning is not clear, the court will consider the circumstances under which the con- tract was made, the subject-matter, the relation of the parties, and the object of the agreement, in order to ascertain their intention, and for ! this purpose, as we have seen, parol evidence is admissible."^ These rules seem to be in conflict with the rule first stated. Taking them together they come substantially to this : that men will be taken to have meant precisely what they have said, unless, from the whole tenor of the instrument, a definite meaning can be collected which gives a broader interpretation to specific words than their literal mean- ing would bear. The courts will not make an agreement for the par- ties, but will ascertain what their agreement was, if, not by its general purport, then by the literal meaning of its words. Suhsidia/ry Rules. (i) Courts will correct obvious mistakes in writing and grammar.^^ This rule includes another, namely, that the punctuation of a document, or is inconsistent with tlie real intention, it will be rejected. Wells t. Tregiisau, 2 Salk. 463; Dollman v. King, 4 Bing. (N. C.) 105; Buck v. Burk, 18 N. Y. 337; Stockton v. Turner, 7 J. J. Marsh. (Ky.) 192; Hibbard v. McKindley, 28 III. 240; Iredell v. Barbee, 31 N. C. 250. 6 7 Dwight V. Insurance Co., 103 N. Y. 341, 8 N. E. G54, 57 Am. Rep. 729; Canterberry v. Miller, 76 111. 355; Noyes v. Nichols, 28 Vt. 159; Williamson V. McClure, 37 Pa. 402; Araistrong v. Granite Co., 47 N. Y. 495, 42 N. B. 186, 49 Am. St. Rep. G83; Clark v. MalloiT, 185 111. 227, 56 N. E. 1099; Abra- ham V. Railroad, 37 Or. 495, 60 Pac. 899, 82 Am. St. Rep. 779. 6 8 Roberts v. Bonapai-te, 73 Md. 191, 20 Atl. 918. 10 Ij. R. A. 689, and author- ities there cited. And see Nash v. Towne, 5 Wall. 689, 18 L. Ed. 527; Caper- ton's Adm'rs v. Caperton, 36 W. Va. 479, 15 S. E. 257; Penfold v. Insurance Co., 85 N. Y. 317, 39 Am. Rep. 660; Wilson v. Roots, 119 111. 379, 10 N. E. 204; Kuecken v. Voltz, 110 111. 264; Lacy v. Green, 84 Pa. 514; Excelsior Needle Co. v. Smith, 61 Conn. 56, 23 Atl. 693; Mobile & M. R. Co. v. Jurey. Ill U. S. 584, 4 Sup. Ct. 566, 28 L. Ed. 527; Gillett v. Bank, 160 N. Y. 549, 55 N. E. 292; Hull Coal & Coke Co. v. Coke Co., 113 Fed. 256, 51 C. C. A. 213. Thus, where a policy of marine insurance excepted the time "while the vessel is at Baker's Island loading," and the vessel was lost while there, but before it had begun to load, it was held, after evidence of the dangerous character of tbe place, that the intention of the parties was to except the time while the vessel was tliere for the purpose of loading, and not merely while it was actually loading. Reed v. Insurance Co., 95 U. S. 23, 24 L. Ed. 348. «» Wilson V. Wilson, 5 H. L. Cas. 40, 66; Watson v. Blaine, 12 Serg. & R. (Pa.) 131, 14 Am. Doc. 609; Monmouth Park Ass'n v. Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; Atwood v. Cobb, 16 Pick. (Mass.) 227, 26 Am. Dec. 657; Harinan v. Howe, 27 Grat. (Va.) 676; Caldwell v. Layton, 44 Mo. 220; Knisely v. Shenberger, 7 Watts (Pa.) 193; Fowler v. Woodward, 26 Minn. 347. 4 N. W. 231; Cowles Electric Smelting & Aluminum Co. v. Lowrey, 79 Fed. 331, 24 C. Q A. 616; City of Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060. t §§ 218-219) RULES OF CONSTRUCTION. iOu though it may aid in determining the meaning, will not control or change a meaning which is plain from a consideration of the whole document and the circumstances. '''' (2) The court will restrict the meaning of general words by more specific and particular descriptions of the subject-matter to which they are to apply J ^ (3) \A^hcre a particular word, or the contract as a whole, is suscep- tible of two meanings, one of which will render the contract valid, and the other of which will render it invalid, the former will be adopted so as to uphold the contract. Thus, where a document was expressed to be given "in consideration of your being in advance" to a person, and it was argued that this showed a past consideration which would not support the promise, the court held that the words "being in ad- vance" might mean a prospective advance, and be equivalent to "in con- sideration of your becoming in advance," or "on condition of your be- ing in advance." ^^ So, also, where a contract is susceptible of two constructions, one of which will render it unlawful as being in viola- tion of law or contrary to public policy, that construction which will render it lawful will be adopted. '^^ (4) If possible without going contrary to the manifest intention of the parties, a contract will be so construed as to render it reasonable rather than unreasonable.'^* 7 White V. Smith, 33 Pa. 186, 75 Am. Dec. 589; Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. G24; English's Ex'r v. McNair's Adm'rs, 34 Ala. 40; Osbom V. Farwell. S7 111. 89, 29 Am. Eep. 47; Holmes v. Insurance Co., 98 Fed. 240, 39 C. C. A. 45, 47 L. R. A. 308. See Joy v. City of St Louis, 138 U. S. 1, 11 Sup. Ct. 243, 251, 34 L. Ed. 843. 71 Phillips V. Barber, 5 Barn. & Aid. 101; Cullen v. Butler, 5 Maule &. S. 4G1; Stettauer v. Hamlin, 97 111. 312; Dawes v. Prentice, 16 Pick. (Mass.) 435; Emery v. Fowler, 38 Me. 99; Vaughan v. Porter, 16 Vt. 2GG; Bock v. Perkins, 139 U. S. 628, 11 Sup. Ct. 677, 35 L. Ed. 314; Richmond Ice Co. v. Ice Co., 99 Va. 239, 37 S. E. 851. 7 2 HAIGH V. BROOKS, 10 Adol. & E. 326. And see Atwood v. Cobb, Ki Pick. (Mass.) 227, 26 Am. Dec. (>57; Anderson v. Baughman, 7 Mich. 69, 74 Am. Dec. 699; ThraU v. Newell, 19 Vt. 202, 47 Am. Dec. 682; Field v. Leiter, 118 111. 17, 6 N. E. 877; Gano v. Aldridge, 27 Ind, 294; Rellly v. Chouquette, 18 Mo. 220; Hunter v. Anthony, 53 N. C. 385, 80 Am. Dec. 333: Saunders v. Clark, 29 Cal. 299; Wells v. Atkinson, 24 Minm 161. 73 Archibald v. Thomas, 3 Cow. (N. Y.) 2t^; Ormes v. Dauchy, 82 N. Y. 443, 37 Am. Rep. 583; Hobbs v. McLean, 117 U. S. 567, 6 Sup. Ct 870, 29 L. Ed. 940; United Stiites v. Railroad Co., 118 U. S. 235, 6 Sup. Ct 1038, 30 L. Ed. 173; Lorillard v. Clyde, 86 N. Y. SM; Horton v. Rohlff (Neb.) 95 N. W. 36. 74 Atwood V. Emery, 1 C. B. (N. S.) 110; Russell v. AUerton, 108 N. Y. 2SS, 15 N. E. 391; Wilson v. Mario w, 66 111. 385; Town of Royalton v. Tura- pike Co., 14 Vt 311; Bickford v. Cooper, 41 Pa. 142; Gillft v. Bank, 160 N. Y. 549, 55 N. E. 292; Pressed Steel Car Co. y. Railway Co., 121 Fed. 609, 57 C. C. A. (J35. 406 INTERPRETATION OF CONTRACT. (Ch. 10 (5) The courts will construe words most strongly against the party who used them. Words in an offer, for instance, will be construed most strongly against the proposer, and words in an acceptance most strongly against the acceptor ; words in a promissory note most strong- ly against the maker; words in a policy of insurance most strongly against the insurer; and words in a conveyance, particularly of ex- ception or reservation, most strongly against the grantor.'^ ^ The prin- ciple on which this rule is based has been said to be that a man is j;e- sponsible for ambiguities in his own expressions and has no right to induce another to contract with him on the supposition that his words mean one thing, while he hopes the court will adopt a construction by which they would mean another thing more to his advantage.'^" The liabi lity of a guarantor or surety is said to be stricti juris, and is to be determined by the strict interpretation of the words used, and cannot be extended by implication.'^^ Such contracts are nevertheless 7 8 Barney v. Newcomb, 9 Gush. 46; Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Jackson v. Gardner, 8 Johns. (N. Y.) 308; Duryea v. Mayor, etc., 62 N. Y. 592, Varnuin v. Thruston, 17 Md. 471; Richardson v. People, 85 111. 495; Shai-p v. Thompson, 100 lU. 447, 39 Am. Rep. 61; Waterman v. Andrews, 14 R. I. 589; Hill v. Manufacturing Co., 79 Ga. 105, 3 S. E. 445: Phoenix Ins. Co. v. Slaughter, 12 Wall. 404, 20 L. Ed. 444; American Surety Co. V. Pauly, 170 U. S. 160, 18 Sup. Ct. 552, 42 L. Ed. 987; Snyder v. Insur- ance Co., 59 N. J. Law, 544, 37 Atl. 1022, 59 Am. St. Rep. 625; Wilson v. Cooper (C. C.) 95 Fed. 625; Bowser v. Patrick (Ky.) 65 S. W. 824. The rule does not apply where it would cause a penalty or forfeiture. A condition in a bond, for instance, is construed most strongly against the obligee. Butler V. Wigge, 1 Saund. 65; Hoffman v. Insurance Co., 32 N. Y. 405, 88 Am. Dec. 337; Bennehan v. W^ebb, 28 N. C. 57; Chicago, B. & Q. R. Co. v. City of Aurora, 99 111. 205. But a grant from the government is construed most strongly against the grantee. Canal Com'rs v. People, 5 W^end. (N. Y.) 423, 459; 2 Bl. Comm. 347; Raleigh & G. R. Co. v. Reid, 64 N. C. 155; Mayor, etc., of Allegheny v. Railroad Co., 26 Pa. 355; Hartford Bridge Co. v. Ferry Co., 29 Conn. 210; Northwestern Fertilizing Co. v. Village of Hyde Park, 70 111. 634; Mayor, etc., of City of New York v. P^ailroad Co., 97 N. Y. 275, 281. It is said, however, that this "rule of construction has been applied to gratuitous grants made by the sovereign of property, franchises, and privi- leges, upon the solicitation of the grantee," but that it does not apply, "cer- tainly not in its full extent, to grants made for the benefit of the sovereign upon adequate valuable consideration paid to the sovereign for the thing granted." Langdon v. Mayor, etc., 93 N. Y. 132. And see Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. (Mass.) 344, 485; Garrison v. U. S., 7 Wall. 688, 19 L. Ed. 277. 70 Fowkes V. Association, 3 B. & S. 929; Gillet v. Bank, 160 N. Y. 594, 55 N. E. 292. A party must be deemed to have assented to a contract in the sense in which he knew the other intended it to signify, if the language is capable of that meaning. Cowles Electric Smelting & Aluminum Co. v. Ivowrey, 79 Fed. 331, 24 C. C. A. 616. See, also, Leete v. Mining Co. (C. C.) 88 Fed. y."j7; Wood v. Allen, 111 Iowa, 97, 82 N. W^ 451; People's Bldg. Ass'n V. Klauber (Iowa) 95 N. W. 1072. 77 Douglass V. Reynolds, 7 Pet 125, 8 L. Ed. 626; People v. Backus, 117 §§ 218-219) RULES OF CONSTllLXTION. 407 to be interpreted reasonably and according to the intention of the par- ties.'^ ^ And if the contract is fairly susceptible of two interpretations, and the other party has acted upon the interpretation most favorable to his rights, it seems that such interpretation will prevail.''® (6) Where the meaning of the terms used is clear, the fact that the parties have themselves, by their subsequent conduct or otherwise, placed an erroneous construction upon them, will not prevent the court from giving the true construction ; ^^ but, where the meaning is doubtful, such construction by the parties is of great weight in deter- mining the true meaning, and in some cases may be controlling.^^ (7) Where, as in the use of printed forms, a contract is partly printed and partly written, and there is a conflict between the printing and the writing, the latter will control.^ ^ Terms Implied — Unexpressed Intention. Certain terms, though unexpressed, are imported into the__contract bj_law without proof that they were intended by the parties. Unless a contrary intention was expressed, the law conclusively presumes N. Y. 196, 22 N. E. 759; Marklaud IMin. & Mfg. Co. v. Kimmel, 87 Ind. 5U0; Weir Plow Co. v. Walmsley, 110 Ind. 242, U N. E. 232; Hopewell v. Mc- Grew, 50 Neb, 789, 70 N. W. 397; Sherman v. Mulloy, 174 Mass. 41, 54 N. E. 345, 75 Am. St. Rep. 286. T8 People V. Lee, 104 N. Y. 441, 10 N. Ew 884; Powers v. Clarke, 127 N. Y. 417, 28 N. E. 402; Hooper v. Hooper, 81 Md. 155, 31 Atl. 508, 48 Am. St. Rep. 496; Northern Light Lodge v, Kennedy, 7 N. D. 146, 73 N. W. 524. ■7 9 LawTence v. McCalmont, 2 How. 426, 11 L. Ed. 326; Smith v. Molleson, 148 N. Y. 241, 42 N. E. 669; London & S. F. Bank v. Parrott, 125 Cal. 472, 58 Pac. 164, 73 Am. St. Rep. 64:. 80 Puiilroad Co. v. Trimble, 10 Wall, 367, 19 L. Ed. 948; Holston Salt & Plaster Co. v. Campbell, 89 Va. 396, 16 S. E. 274; Hershey v. Luce, 56 Ark. 320, 19 S. ^Y. 963, 20 S. W. 6; St. Paul & D. R. Co. v. Blackmar, 44 Minn. 514, 47 N. W. 172; Citizens' Fire Ins., Security & Land Co. v. Doll, 35 Md. 89, 6 Am. Rep. 360; Russell v. Young, 94 Fed. 45, 36 C. C. A. 71; Menage V. Rosenthal, 175 Mass. 358, 56 N. E. 579. 81 French v. Pearce, 8 Comi. 439, 21 Am. Dec. 680; Topliff v. TopliEf, 122 U. S. 121, 7 Sup. Ct. 1057, 30 L. Ed. 1110; Mitchell v. Wedderbura, 68 Md. 139, 11 Atl. 760; Hosmcr v. McDonald, SO Wis. 54, 49 N. W. 112; Leavltt V. Investment Co., 4 C. C, A. 425, 54 Fed. 439; People's Natural Gas Co. V. Wire Co., 155 Pa. 22, 25 Atl. 749; Hill v. City of Duluth, 57 Minn. 231, 58 N. W. 992; People v. Murphy, 119 111. 159, 6 N. E. 488; District of Co- lumbia V. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585, 31 L. Ed. 526: City of Cincinnati v. Coke Co.. 53 Ohio St. 278, 41 N. E. 239 ; Childers v. Rank. 147 Ind. 430, 46 N. E. 825; Hale v. Sheehan, 52 Neb. 184, 71 N. W. 1019; Long-Bell Lumber Co. v. Stump, 86 Fed. 574, 30 C. C A. 260. 82 Clark V. Woodruff, 83 N. Y. 518; Chadsey v. Guion, 97 N. Y. 333; Thornton v. Railroad Co., 84 Ala. 109, 4 South. 197, 5 Am. St. Rep. 337; Hernandez v. Insurance Co., 6 Blatchf. 317, Fed. Cas. No. 6,415; Murray v. Pillsbury, 59 Minn. 85, 60 N. W. 844; Breyman v. Railroad Co. (C. C.) 85 Fed. 579; City of Chicago v. Weir, 165 111. 582. 46 N. E. 725; Commonwealtb Title Ins. & Trust Co. y. Ellis, 192 Pa. 321, 43 AU. 1034, 73 Am. St. Rep. 816; 408 INTERPRETATION OF CONTRACT. (Ch. 10 that they intended to make them a part of their contract. "The unex- pressed obligations in these instances, which are imphed by law, are those which are inherent in the transaction according to its true nature, and may be regarded as the unexpressed intention of the parties. * * * It is generally said that contracts will be construed according to the intention of the parties. But this means, not only what they did actually intend, but also what, according to the essential nature of - the particular transaction, the law considers that they should have in- ^ tended. No intention can, however, be read into a contract unless it ^T. is thus a necessary legal implication. * * * When a particular ^ kind of contract is made, it is presumed that the parties intended to \ embody all the legal consequences of the act, whether they knew of ^^^^^^jj, them or not, unlc"-; it can be seen from the language they used that • *i3" tjigy intended to e:..lude some of them." ^^ 3; This principle is illustrated by an ordinary contract of sale. In all 'f* such contracts, in the absence of expression to the contrary, it is con- clusively presumed that the seller intended to stipulate that he had the title to the property and the right to sell it. These implied stipula- ^ „ tions are called "implied warranties." Though unexpressed, they are 5 ^i imported into the contract by implication of law. .r ^ 4 J' SAME— RULES AS TO TIME. 220. At common laxtr, time is alxirays of the essence of a contract; Tint in equity it is otiierivise, unless it iiras intended by the par- ties to make time of the essence, and their intention is ex- pressed or to be implied. In the absence of such intention, the rule is that a reasonable time tvas meant. In some jiirisdic- tions, by statute, the rule at law is the same as in equity. When the contract fixes no time for performance, the contract is to be construed as allowing a reasonable time.** What is a reasonable time is a question to be determined in view of all the circumstances which may have been supposed reasonably to have been in contempla- tion of the parties.*"* Sprague Electric Co. v. Board of Com'rs, 83 Minn. 2G2, 86 N. W. 332 (writing and typewriting). See, also, Sturm v. Boker, loO U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093. ssBrantly, Cont. 178, 179; Genet v. Canal Co., 136 N. Y. 593, 32 N. E. 1078, 19 L. R. A. 127; Rioux v. Brick Co., 72 Vt. 148, 47 Atl. 400. S4 Ellis V. Thompson, 3 Mees. & W. 445; Pope v. Mauufactiiring Co., 107 N. Y. Gl, 13 N. E. 592; Boyd v. Gunnison, 14 W. Va. 11; Griffin v. Ogletree, 114 Ala. 343, 21 South. 488; Rogers v. Burr, 97 Ga. 10, 25 S. E. 339; Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y. 187, 58 N. E. 19, 52 L. R. A. s5 Ellis V. Thompson, 3 Mees. & W. 445; Finney v. Railroad Co., 19 Minn. 251 (Gil. 211); Staiige y. Wilson, 17 Mich. 342; Coon v. Spaukling, 47 Mich. § 220) RULES OF CONSTItUCTION. 401) Where the contract fixes a time for performance, the time, at com- mon law, is always of the essence of the contract; that is to say, if a person promises another to do a certain tiling by a certain day, in con- sideration that the latter will do something for him, the thing must t>e done by the date named, or the latter is discharged from his promise. Courts of equity, however, look further into the intention of the par- ties, so as to ascertain whether, in fact, the performance of the con- tract by one party was meant to depend upon the other party's promise being fulfilled by the day named therefor, or_whet^her a day was named merely in order to secure performance within a reasonable time. If the latter was found to be the intention of the parties, equity would not refuse to enforce the contract if the promise required to be so per- formed was perfonned within a reasonable time.^' It is always open to the parties, however, even in equity, to make time of the essence of the contract.^ ^ In some of the states, even where time is expressly declared to be of the essence of the contract, courts of equity will dis- regard the stipulation if its enforcement would be unconscionable.** In England, and in some of our states, the distinction in this respect 162, 10 N. W. 183; Stewart v. Marvel, 101 N. Y. 357, 4 N. E. 743; McFaddeu V. Henderson, 128 Ala. 221, 29 South. 640. 8 8 Maltby v. Austin, 05 Wis. 527, 27 N. W. 162; Bellas v. Hays, 5 Serg. & R. (Pa.) 427, 9 Am. Dec. 385: Moote v. Scriven, 33 Mich. 500; Andrews V. Sullivan, 2 Gilnian (111.) 327, 43 Am. Dec. 53; Garietson v. Vanloon, 3 G. Greene (Iowa) 128, 54 Am. Dec. 492; Taylor v. Baldwin, 27 Ga. 438, 73 Am. Dec. 736; THURSTON v. ARNOLD, 43 Iowa, 43; Austin v. Wacks, 30 Minn. 335, 15 N. W. 409. See Anson, Cont. (8th Ed.) 269. 87 Eennon v. Napper, 2 Schrales & L. 682; Barnard v. Lee, 97 Mass. 92; Carter v. Phillips, 144 Mass. 100, 10 N. E. 500; Kemp v. Humphreys, 13 111. 573; Potter v. Tuttle, 22 Conn. 512; Cheney v. Libby, 134 U. S. (J8, 10 Sup. Ct. 498, 33 L. Ed. 818; Wells v. Smith, 7 Paige (N. Y.) 22. 31 Am. Dec. 274; Grigg v. Landis, 21 N. J. Eq. 494; Scott v. Fields, 7 Ohio, 90, pt 2; Reed v. Breeden, 61 Pa. 460; Grey v. Tubbs, 43 Cal. 359; Kirlirj- v. Har- rison, 2 Ohio St. 326, 59 Am. Dec. 677; Young v. Daniels, 2 Iowa, 126, 63 Am. Dec. 477; Bullock v. Adams' Ex'rs, 20 N. J. Eq. 367; Jewett v. Black, 60 Neb. 173, 82 N. W. 375. Even where time is expressly dechirod to be of the essence, it may be waived by the conduct of the party for whose benefit the stipulation is made; as where he recognizes the contract as in force after the time for performance has passed, or directs changes making a longer time necessaiy. Brown v. Safe-Deposit Co., 128 U. S. 414, 9 Sup. Ct. 127, 32 L. Ed. 468; PHILLIPS & COIJBY CONST. CO. v. SEYMOUR, 91 U. S. 646, 23 L. Ed. 341; Amoskeag Mfg. Co. v. U. S., 17 Wall. 592, 21 L. Ed. 715; Paddock v. Stout, 121 111. 571, 13 N. E. 182; Pinckney v. Damb- mnnn, 72 Md. 173, 19 Atl. 450. If the party prevents performance by the other, he camiot insist on the stipulation. Dannat v. Fuller, 120 N. Y. 554. 24 N. E. 815; King Iron Bridge & Mfg. Co. v. City of St. Louis (C. C.) 43 Fed. 768, 10 L. R. A. 826; liees v. Logsdon, 68 Md. 93, 11 Atl. 708; Ward V. Matthews, 73 Gal. 13, 14 Pac. 604; post, p. 404. 88 Richmond v. Robinson, 12 Mich. 193; Volz v. Grummett, 49 Mich. 453, 13 N. W. 814; Austin v. Wacks, 30 Minn. 335, 15 N. W. 409; Quinn v. Roath, 37 Conn. 16; Ballard v, Cheney, 19 Nob. 58, 26 N. W. 587. 410 INTERPRETATION OF CONTRACT. (Cll. 10 between the rules of law and equity has been swept away by statutes declaring, substantially, that stipulations in contracts as to time or oth- erwise, which would not theretofore have been deemed as of the es- sence of such contracts in a court of equity, should receive in all courts the same construction and effect as they would have received in equity. Where time is not made of the essence of the contract by express 'stipulation, it may nevertheless be held to have been intended from the nature of the contract. ^^ In mercantile contracts, such as contracts for the manufacture and sale of goods, it is generally held that^ime.isof the essence; and, where a term of the contract provides for the time of shipment or delivery, shipment or delivery at the time fixed will usually be regarded as a condition precedent, on the failure of which the other party may repudiate the whole contract.®" In contracts for the sale of land, or for the performance of services, or the construction of buildings, and the like, time will be held of the essence if, from the nature of the property and the circumstances, it seems that the parties must have so intended, but generally, in such contracts, time is not of the essence.®^ 89 NEW YORK LIFE INS. CO. v. STATHAM, 93 U. S. 24, 23 L. Ed. 789; COLEMAN V. APPLEGARTH. G8 Md. 21, 11 Atl. 284, 6 Am. St. Rep. 417; Cabot V. Kent, 20 R. I. 197, 37 Atl. 945; Savannah Ice Delivery Co. v. Transit Co., 110 Ga. 142, 35 S. E. 280; Rioux v. Brick Co., 72 Vt. 148, 47 Atl. 406. 9 Bowes V. Shand, 2 App. Cas. 455; Jones v. U. S., 96 U. S. 24, 24 L. Ed. 644; NORRINGTON v. WRIGHT, 115 U. S. 188, 6 Sup. Ct 12, 29 L. Ed. 366; Cleveland Rolling-Mill Co. v. Rhodes, 121 U. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; Cromwell v. Wilkinson, 18 Ind. 365; Camden Iron-Works V. Fox (C. C.) 34 Fed. 200; Scarlett v. Stein, 40 Md. 512; Lefferts v. Weld, 167 Mass. 531, 46 N. E. 107; Hull Coal & Coke Co. v. Coke Co., 113 Fed. 256, 51 C. C. A. 213. Cf. Coyne v. Avery, 189 111. 378, 59 N. E. 788. But it seems that, unless a contrary intention appears, stipulations as to the time of payment are not usually to be deemed of the essence. Martindale v. Smith, 1 Q. B. 389, 395; MERSEY STEELE & IRON CO. v. NAYLOR, 9 App. Cas. 434, 444; Monarch Cycle Mfg. Co. v. Wheel Co., 105 Fed. 324, 44 C. C. A. 523; West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791. See NORRINGTON v. WRIGHT, supra, per Gray, J. 91 Brown v. Safe-Deposit Co., 128 U. S. 403, 9 Sup. Ct. 127. 32 L. Ed. 468; Goldsmith v. Guild, 10 Allen (Mass.) 239; Green v. Covillaud, 10 Cal. 317, 70 Am. Dec. 725; Waterman v. Banks. 144 U. S. 394, 12 Sup. Ct. 646, 36 L. Ed. 479; Young v. Daniels, 2 Iowa, 126, 63 Am. Dec. 477; Derrett v. Bow- man, 61 Md." 520; Beck & Fauli Lithographing Co. v. Elevator Co., 3 C. C. A. 248, 52 Fed. 700; Tayloe v. Sandiford, 7 Wheat. 13, 5 L. Ed. 384; Uambly V. Railroad Co. (C. G.) 21 Fed. 541. ' "§§ 221-222) ^^ ^^^EULES ^OF coxsTrXG-ffON. ' r C^ Ot^. \iil SAME— RULES AS TO PENAIiTIES AND UQUIDATED DAMAGES. 221. If the parties fix upon a certain, sum to be paid on breach of the contract, (a) It may be recovered if it was really fixed upon as liquidated dam- ages for nonperformance. This is subject to the rules of con- struction stated below. (b) But, if it ivas intended in the nature of a penalty in excess of any loss likely to be sustained, the recovery will be limited to the loss actually sustained. 222. In determining xp-hether the sum named is a penalty or liqui- dated damages, these rules may be stated: (a) The courts will not be guided by the name given to it by the parties. (b) If the matter of the contract is of certain value, a sum in excess of that value is a penalty. (c) If the matter is of uncertain value, the sum fixed is liquidated damages. (d) If a debt is to be paid by installments, it is no penalty to make the whole debt due on nonpayment of an installment. (e) If some terms of the contract are of certain value, and some are not, and the penalty is applied to a breach of any one of them, it is not recoverable as liquidated damages. ^ 2 Where the parties to a contract affix a sum certain to be paid on the nonperformance of his promise by one or each of them, they may have intended (i) to assess the damages at which they rated the non- performance of the promise, or (2) to secure its performance by impos- ing a penalty in excess of the actual loss likely to be sustained. If the former can, according to the rules to be presently mentioned, rea- sonably be construed to have been their intention, the sum named is recoverable as "liquidated damages," on breach of the promise. If the latter was their actual or presumed intention, the amount recover- able is limited to the loss actually sustained. Formerly, this rule ex- isted only in equity, but for a long time it has been also applied in the courts of law.**^ Rides of Construction. In construing contracts in which such a term is introduced, the courts will not be guided by the name given to the sum to be paid. If it is liquidated damages, they will enforce it, though erroneously called a "penalty," and, on the other hand, if it is in the nature of a penalty, they will not allow it to be enforced, although designated "liquidated damages." ^* 92 Anson, Cont. (4th Ed.) 256. 83 Watts V. Camors, 115 U. S. 353, 6 Sup. Ct. 91. 29 L. Ed. 40G: Tayloe V. Sandiford, 7 Wheat 13, 5 L. Ed. 3S4. »* Ward V. Building Co., 125 N. Y. 230, 26^ N. E. 256; Bagley v. Peddle, .,-V^ t'-^'>-^^ >, !_/ ( , f *! 412 INTERPRETATION OF CONTRACT. (Cll. 10 (i) If the contract is for a matter of certain value, or value easily ascertainable, and a sum in excess of that value is fixed to be paid on breach of it, the sum so fixed is a penalty, and not liquidated damages.®^ (2) If the contract is for a matter of uncertain value, and a sum is fixed to be paid on breach of it, and is not, on tlie face of the contract, so greatly in excess of the probable damage as to show that the parties could not have fixed upon it otherwise than as a penalty, the sum is recoverable as liquidated damages. There is "nothing illegal or un- reasonable in the parties, by their mutual agreement, settUng the amount of damages, uncertain in their nature, at any sum upon which they may agree." ^^ If the stipulation is so construed, the plaintiff is limited to the amount named, though his actual damages may be greater.^^ Courts lean against forfeiture, and towards construing stipulations 16 N. Y. 469, 69 Am. Dec. 713; Condon v. Kemper, 47 Kan. 126, 27 Pac. 829, 13 L. R. A. 671 ; Wallis v." Carpenter, 13 Allen (Mass.) 19 ; Cheddick's Ex'r V. Marsh, 21 N. J. Law, 463 ; BIGNALL v. GOULD, 119 U. S. 495, 7 Sup. Ct. 294, 30 L. Ed. 491 ; Sanford v. Bank, 94 Iowa, 680, 63 N. W. 459 ; J. G. Wagner Co. v. Cawker, 112 Wis. 532, 88 N. W. 599. 95 Clements v. Railroad Co., 132 Pa. 445, 19 Atl. 274; Brennan v. Clark, 29 Neb. 385, 45 N. W. 472; Willson v. City of Baltimore, 83 Md. 203, 34 Atl. 774, 55 Am. St. Rep. 339. 88 KEMBLE V. FARREN, 6 Bing. 147; Poppers v. Meagher, 148 lU. 192, 35 N. B. 805; Maxwell v. Allen, 78 Me. 32, 2 Atl. 386, 57 Am. Rep. 783; Keeble v. Keeble, 85 Ala. 552, 5 South. 149; Gushing v. Drew, 97 Mass. 445; Tennessee Mfg. Co. v. James, 91 Tenn. 154, 18 S. W. 262, 15 L. R, A. 211, 30 Am. St. Rep. SU5; Easier v. Beard, 39 Minn. 32, 38 N. W. 755; Lansing V. Dodd, 45 N. J. Law, 525; Trower v. Elder, 77 111. 452; Morse v. Rathburn, 42 Mo. 598, 97 Am. Dec. 359; Pennypacker v. Jones. 106 Pa. 237; May v. Crawford, 142 Mo. 390, 44 S. W. 260; City of New Britain v. Telephone Co., 74 Conn. 326, 50 Atl. 881; Pressed Steel Car Co. v. Railroad Co., 121 Fed. 609, 57 C. C. A. 635. Stipulation in building contract for payment by contractor of certain sum for each day that work remains uncompleted after certain day construed as liquidated damages. Legge v. Harlock, 12 Q. B. 1015; Fletch v. Dyche, 2 Term R. 32; Hall v, Crowley, 5 Allen (Mass.) 304, 81 Am. Dec. 745; Ward v. Building Co., 125 N. Y. 230, 26 N. E. 256; Mon- mouth Park Ass'n v. Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; Lincoln v. Granite Co., 56 Ark. 405, 19 S. W. 1056; De Graff v. Wickham, 89 Iowa, 720, 52 N. W. 503; Fniin v. Railway Co., 89 Mo. 397, 14 S. W. 557; Texas & St. L. Ry. Co. v. Rust (C. C.) 19 Fed. 239; Hennessy v. Metzger, 152 III. 505, 38 N. E. 1058, 43 Am. St. Rep. 207; Curtis V. Van Bergh, 161 N. Y. 47, .55 N, E. 398; Kunkel v. Wherry, 189 Pa. 198, 42 AtJ. 112, 69 Am. St. Rep. 802; Illinois Cent R. Co. v. Cabinet Co., 104 Tenu. 568, 58 S. W. 303, 50 L. R. A. 729, 78 Am. St. Rep. 933: Drum- heller V. Surety Co., 30 Wash. 530, 71 Pac. 25; Malone v. City of Phila- delphia, 147 Pa. 416, 23 Atl. 628. But see, contra, where the stipulation "was greatly in excess of any possible damage from the delay. Cochran v. Railway Co., 113 Mo. 359, 21 S. W. 6; Clements v. Railroad Co., 132 Pa. 445, 19 Atl. 27G; Seaman v. Biemann, 108 Wis. 365, 84 N. W. 490. 87 Winch V. Ice Co., 80 N, Y. 618; Welch v. McDonald, 85 Yn. 500, 8 S. E. 711. §§ 221-2:22) rules of construction. 413 for liquidated damages as penalties, when the amount on the face of the contract is out of all proportion to the possible loss ; and many courts declare that the parties, even if they intended to fix upon the amount stipulated as liquidated damages, will nevertheless be limited to the recovery of actual damages if the amount stipulated for is so greatly in excess of the actual damages that it is in effect a penalty. In other words, the real question is "not what the parties intended, but whether the sum is, in fact, in the nature of a penalty ; and this is to be determined by the mag nitude of the sum, in connection with tlie subject-matter, and not at all 1)}- the words or the understanding of ttie^ parties"; The intention of the parties cannot alter it." " Other courts, on the other hand, maintain that in such cases the intention of the parties must govern, and that whether a stipulation to pay a sum of money is to be treated as a penalty or as an agreed ascertain- ment of damages is to be determined by the contract, fairly construed ; it being the duty of the court always, where the damages are uncer- tain and have been liquidated by agreement, to enforce the contract.®* "It may, we think, fairly be stated," it was said in a late case in the su- preme court of the United States, ^°° "that when a claimed dispropor- tion has been asserted in actions at law it has usually been an excessive disproportion between the stipulated sum and the possible damages resulting from a trivial breach apparent on the face of the contract, and the question of disproportion has been simply an element entering into the consideration of the question of what was the intent of the parties, whether bona fide to fix the damages, or to stipulate the payment of an arbitrary sum as a penalty, by way of security." (3) If a debt is to be paid by installments, it is not imposing a pen- alty to provide that on default in any one payment the entire balance of unpaid installments shall fall due.^°* 98 Jaquith v. Hudson, 5 Mich. 123. See, also, Myer v. Hart, 40 Mich. 517, 2.9 Am. Rep. 553; Jaqua v. Headington, 114 Ind. 300, 16 N. E. 527; Brewster v. Edgerly, 13 N. H. 275; Condon v. Kemper, 47 Kan. 126, 27 Pae. 829, 13 U R. A. 6*71; Cotheal v. Talmage, 9 N. Y. 551, Gl Am. Dec. 716; Colwell V. Lawrence, 38 N. Y. 71. "The intention is not all conti'oUing, for in some cases the subject-matter and sm-roundings of the contract will control the intention where equity absolutely demands it." Streeper v. Wil- liams, 48 Pa. 450. 9 9 Sun Printing & Publishing Ass'n v. Moore, 183 U. S. 642. 22 Sup. Ct 240, 46 L. Ed. 366. See, also, BroolvS v. City of Wichita, 114 Fed. 297, 52 C. C. A. 209; Wood v. Paper Co., 121 Fed. 818, 58 C. C. A. 256; Taylor v. Newspaper Co., 83 Minn. 523, 86 N. AV. 760, 85 Am. St. Rep. 473; Knox Rock Blasting Co. v. Stone Co., 64 Ohio St. 361, 60 N. E. 563; I-:mery v. Boyle. 200 Pa. 249, 49 Atl. 779; GARST v. HARRIS, 177 Mass. 72, 58 N. E. 174; Guerin v. Stacy, 175 Mass. 595, 56 N. E. 892. 100 Sun Printing & Publishing Ass'n v. Moore, 183 U. S. 642, 672, 22 Sup. Ct. 240, 46 L. Ed. 366. ^01 Protector Loan Co. v. Grice (Ct. App.) 5 Q. B. Div. 592; Dean v. Nelson, 414 INTERPRETATION QF CONTRACT. (Ch. 10 (4) If the contract contains a number of terms, some of which arc of a certain value, or if it contains a number of terms of widely dif- ferent value, and the penalty is applied to a breach of any one of them, it is not recoverable as Hquidated damages, however strongly the par- ties may have expressed their intention that it shall be so.^°^ In a leading case on this point the defendant had agreed to act, and con- form to all the regulations, at plaintifif's theater for several seasons, the plaintiff to pay him £3. 6s. 8d. for every night that the theater should be open for performance, and it was agreed that, for a breach of any term of the agreement by either party, the one in default should pay the other i 1,000, which sum was thereby declared to be "liquidated and ascertained damages, and not a penalty." The court held that, in spite of the explicit statement of the parties that the sum was not to be regarded as a penalty, it must be so regarded. If the penal clause had been limited to breaches uncertain in their nature and amount, it might, as was thought, have had the efifect of ascertaining the dam- ages ; "but," it was said, "in the present case the clause is not so con- fined ; it extends to the breach of any stipulation by either party. If, therefore, on the one hand, the plaintiff had neglected to make a single payment of £3. 6s. 8d. per day, or, on the other hand, the defendant had refused to conform to any usual regulation of the theater, how- ever minute or unimportant, it must have been contended that the clause in question, in either case, would have given the stipulated damages of ii,ooo. But that a very large sum should become im- mediately payable in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavored to relieve, by directing juries to assess the real damages sustained by the breach of the agree- ment." "-^^ 10 Wall. 158, 19 L. Ed. 926. So of a stipulation that, if interest Is not paid, the principal shall become due. Schooley v. Romain, 31 Md. 574, 100 Am. Dec. 87; Mobray v. Leckie, 42 Md. 474. 102 KEMBDE V. FARREN, 6 Bing. 141; Carter v. Strom, 41 Minn. 522, 43 N. W. 394; Watts v. Camors, 115 U. S. 353, G Sup. Ct. 91, 29 L. Ed. 406; McPherson v. Robertson, 82 Ala. 459, 2 South. 333; Lampman v. Cochran, 16 N. Y. 275; Wilhelm v. Eaves, 21 Or. 194, 27 Pac. 1053, 14 L. R. A. 297; Hough V. Kugler, 36 Md. 180; Daily v. Litchfield, 10 Mich. 29; Trustees of First Orthodox Congregational Church v. Walrath, 27 Mich. 232; Ti'ower V. Elder, 77 111. 452; Lyman v. Babcock, 40 Wis. 503; Monmouth Park Ass'n V. Warren, 55 N. J. Law, 598. 27 Atl. 932. 103 KEMBLB V. FARREN, (3 Bing. 141. § 223) RULES OF CONSTRUCTION. 415 SAME— JOINT AND SEVERAL CONTRACTS. 223. 'Whether or not a contract xtrith several persons on either or both sides is to be construed as joint or several depends upon the intention of the parties as manifested in the evidence of their agreenient.104 The following rules may be stated: UABIIilTIES — (a) A promise by two or more in the plural number is prima facie joint, while a promise in the singular is prima facie several; but this presumption w^ill yield if, from the whole agreement, a contrary intention appears. (b) Subscriptions by a number of persons to promote some common enterprise, though joint in form, are several promises. RIGHTS — If the w^ords will admit of it, the contract, as regards the promisees, w^ill be joint or several, according as their interest is joint or several. Joint and Several Liabilities. In all written contracts, the language used is the primary guide to the meaning; but it is not always conclusive. The language is some- times ambiguous, and often not exclusive of an intention to contract either way. In such cases the sense must be derived from the interests and relations of the parties as appearing in the contract.^ °° The same is true of oral contracts where there is no direct evidence of the in- tention. Wherever the promise is by two or more persons, as where the words "we promise," etc., are used, the liability is prima facie joint ; but the use of such expressions will not make the promise joint if, from the whole instrument, a contrary intention appears. ^"^ Where the promise is in the singular, the liabiHty is prima facie several ; but, as in other cases, the whole instrument may show a contrary inten- tion, and this intention must govern.^"'' In the case of subscriptions by a number of persons to promote some common enterprise, the promises, though joint in form, are held to be several. Each subscriber is held to promise severally to pay the amount 104 1 Pars. Cont 10; Hall v. Leigh, 8 Cranch, 50, 3 L. Ed. 4S4; Olmstead v. Bailer, 35 Conn. 584; Eastman v. Wright, 6 Pick. (Mass.) 31G; WIL- LOUGHBY V. WILLOUGHBY, 5 N. H. 244; BOGGS v. CURTIN, 10 Serg. & R. (Pa.) 211; Elliott v. Bell, 37 W. Va. 834, IT S. E. 3U!). 108KEIGHTLEY v. WATSON, 3 Exch. 716; Streichen v. Fehleisen, 112 Iowa, 612, 84 N. W. 715, 51 L. R. A. 412. 106 KING V. HOARE, 13 Mees. & W. 494; Bartiett v. Bobbins, 5 Mete. (Mass.) 184; Bhle v. Purdy, 6 Wend. (N. Y.) 029; New Haven & N. Co. v. Hayden, 119 Mass. 361; Trenton Potteries Co. v. Olipbant, o8 N. J. Eq. oO.. 43 Atl. 723, 46 L. R. A. 255, 78 Am. St Rep. 612; McArthur v. Board, 119 Iowa, 5()2. '93 N. W. oSO. ... ,^ ^t w 107 MARCH V. WARD, Peake, 130; Dill v. Wliite, 52 Wis. 456, 9 N. W. 404- Fond du Lac Harrow Co. v. Haskins, 51 Wis. 135, 8 N. W. 15; \an Alstyne v. Van Slyck, 10 Barb. (N. Y.) 387; Hemmenway v. Stone, 7 Mass. 58, 5 Am. Dec. 27; Slater v. Magraw, 12 Gill & J. (Md.) 265. 416 INTEllPRETATION OF CONTRACT. (Cb. 10 of his subscription, and an action against all the subscribers jointly will not lie. It clearly appears from the character of such a contract that each subscriber only intends to bind himself for his own sub- scription, and this intention must prevail, notwithstanding the joint form of the promise.*"* As we have seen, these rules are to a great extent modified by statute in most of the states, *°* Joint and Several Rights. With respect to the rights of several persons under such contracts, the rule of construction has been thus stated: ^^'^ "A contract will be construed to be joint or several, according to the jriterests of the par- ties, if the words are capable of that construction, or even if not incon- sistent with it. If the words are ambiguous, or will admit of it, the contract will be joint if the interest be joint, and it will be several if the interest be several.*** But a contract entered into with several persons, in respect of the same matter or interest, cannot by any words be made so as to entitle them both jointly and severally." **^ 108 Davis V. Belford, 70 Mich. 120, 37 N. W. 919; Hall v. Thayer, 12 Mete. (Mass.) 130: Davis & Rankin Bldg. & Mfg. Co. v. Barber (C. C.) 51 Fed. 148; Chicago Bldg. & Mfg. Co. v. Graham, 78 Fed. 83, 23 C. C. A. 657; Davis & Ranliin Bldg. & Mfg. Co. v. Booth, 10 Ind. App. 364, 37 N. E. 818; Cornish V. West 82 Minn. 107, 84 N. W. 750, 52 L. R. A. 355. And see Waddy Bluegi-ass Creamery Co. v. Manufacturing Co., 103 Ky. 579, 45 S. W. 895. Contra, Davis v. Shafer (C. C.) 50 Fed. 764. 109 Ante, p. 379. 110 Leake, Cont. 218. 111 Eccleston v. Clipsham, 1 W. Saund. 1.53; SORSBIE v. PARK, 12 Mees. & W. 146; Pickering v. De Rochemont, 45 N. H. 67; Gould v. Gould, 6 Wend, (N. Y.) 263; Appleton v. Bascom, 3 Mete. (Mass.) 169; Capen v. Bar- roAVS, 1 Gray (Mass.) 376; Lombard v. Cobb, 14 Me. 222; Dimcan v. Willis, 51 Ohio St. 433, 38 N. E. 13; Pennville Natural Gas & Oil Co. v. Thomas 21 Ind. App. 1, 51 N. E. 351; Montana Min. Co. v. Milling Co., 19 Mont. 313, 48 Pac. 305; Curry v. Railway Co., 58 Kan. 6, 48 Pac. 579. Where two persons are accepted as depositors by a savings bank, and botli sign the depositors' book, and the moneys are made payable to either, the contract is "With both jointly, and has the incident of surviYorship, Dunn v. Hough- ton (N. J, Ch.) 51 Atl. 71. 112 Ante, p. 384, note 133. r) 2-21) DISCUAIIGE OF CONTUACT. m CHAPTER XI. DISCHARGE OF CONTRACT. 224. In General. 225-220. By Agreement— In General. 227-228. Waiver, Cancellation, or Rescission. 229-230. Substituted Contract. 231. Form of Discbarge by New Agreement. 232. Conditions Subsequent. 233. By Performance — In GeneraL 234. Payment. 235. Tender. 236-237. By Breacb— In General. 23S. Forms of Discbarge by Breach. 239-240. Renunciation of Contract. 241. Impossibility Created by Party. 242. Breach by Failure of Performance. 243-244. Independent Promises. 245-249. Conditional Promises. 250. By Impossibility of Performance. 251. By Operation of Law. 252. Merger. 253. Alteration of Written Instrument 254. Proceedings in Banliruptcy. 255. Remedies on Breach of Contract. 256-259. Damages. 200. Specific Performance. 261. Discbarge of Right of Action. 262. By the Consent of the Parties. 263. By Judgment. 264-265. By Lapse of Time. IN GENERAL. 224. The modes in Trhicli a contract may be discharged are as folloxra; (a) By agreement. (b) By performance. (c) By breach. (d) By impossibility of performance. (e) By operation of law. It remains to consider the modes in which the contractual tie may be loosed, and the parties wholly freed from their rights and liabilities under the contract. In dealing- with this part of the subject we shall consider, not only the mode in which the original contract may be dis- charged, but, in case of its being discharged by breach, the mode in which the right of action arising thereupon may be extinguished.^ 1 Anson, Cont. (4th Ed.) 257. Clark Cont. (2d Ed.)— 27 il8 DISCHARGE OP CONTRACT. (Ch. 11 DISCHARGE OF CONTRACT BY AGREEMENT. 1^25k A contract may be discharged by an agreement to tbat effect betiveen tbe parties. This may be— (a) By waiver, cancellation, or rescission. (b) By a substituted contract. (c) By the happening of conditions subsequent, expressed or im- plied in the contract. 226. Such an agreement must possess all the elements requisite to the formation of any other valid agreement. There are soiae ex- ceptions as to the necessity for consideration, ivhich will be hereafter noticed. As it is their agreement which binds the parties, so by their agree- ment they may be loosed from the contractual tie. It is scarcely neces- sary to say that to render an agreement effective as a discharge it must be a valid agreement ; and, to be so, it must be accompanied by all the elements, such as communication of mutual intention, real consent, parties having capacity, etc.* SAME— -WAIVER, CANCELI^ATION, OR RESCISSION. 227. A contract may be discharged by an express agreement that it shall no longer bind either party. This process is called a ^^aiver, cancellation, or rescission of the contract. 3 228. A consideration is necessary to support such an agreement, ex cept: EXCEPTIONS— (a) Where the agreement is under seaL (b) A negotiable instrument may be discharged by its mere surrender w^ith an intent to discharge it. In the absence of a consideration, a promise to forego the right to demand performance of a contract would be nudum pactum and void. It has often been said that "a simple contract may, before breach, be waived or discharged without a deed and without consideration;" but this is inaccurate. A consideration, or a deed dispensing with the necessity for a consideration, is always essential. Where the contract is wholly executory, a mere agreement between the parties, that it shall no longer bind them, is valid, for the discharge of each by the other from his liabilities under the contract is a sufficient consideration for 2 Murray v. Harway. 56 N. Y. 387; Wheeler v. Railroad Co., 115 U. S. 29, 5 Sup. Ct. 1001, 1160, 29 L. Ed. 341; Stix v. Koiilston, 88 Ga. 743, 15 S. E. 826; O'Donnell v. Brand, 85 Wis. 97. 55 N. W. 154; WOOD v. MORIARTY, 16 R. I. 201, 14 Atl. 855; Lauer v. Lee, 42 Pa. 165; Smith v. Watson, 82 Va. 712, 1 S. E. 96. 8 Anson, Cent. (4th Ed.) 25J^260. ^ §§ 227-228) BT AGREEMENT. 419 the promise of the other to forego his riglits.* If the agreement is not mutual, — that is, if it is a waiver of his rights by one party only, — there is no consideration, and the agreement is void."* If a contract has been executed on one side, an agreement that it shall no longer be binding, without more, is void for want of consideration." To illus- trate these distinctions : If a person agrees to buy goods from another, or to perform services for him, and the other agrees to pay therefor, the contract may be discharged by a simple agreement to that effect, so long as the goods or services have not been delivered or performed, and the money has not been paid. After performance on either side, however, a promise by the party so performing not to require perform- ance by the other would not be binding milgss under seal or supported by a consideration. "^Tn England there is an exception to this rule in the case of bills of exchange and promissory notes. The rights of the holder of such in- struments may there be waived and discharged without any considera- tion for their waiver.'' In this country the exception is not recog- nized. Such instruments, in this respect, stand on the same footing as any other simple contract,® with this exception, namely, that, if the instrument itself is destroyed or surrendered for the purpose of dis- charging the debt, it will so operate without any consideration," The reason for the exception is that there is a valid executed gift of the instrument.^ ° 4 ROLLINS V. MARSH, 128 Mass. IIG; Cutter v. Cochrane. 116 Mass. 408; Blood v. Enos, 12 Vt. G25, 36 Am. Dec. 363; Kelly v. Bliss, 54 Wis. 187, 11 N. W. 488; Blagborne v. Hunger, 101 Mich. ,S75, fiG N. W. 657; Perkins V. Hoyt, 35 Mich. 506; Flegal v. Hoover, 156 Pa. 276, 27 Atl. 162; Farrar V. Toliver, 88 111. 40S; Hobbs v. Brick Co., 157 Mass. 109, 31 N. E. 756; Windham v. Doles, 59 Ga. 265; Brown v. Lumber Co., 117 N. C. 287, 23 S. E. 253; ante, p. 127. 6 King V. Gillett, 7 Mees. & W. 55. COLLYER V. MOULTON, 9 R. I. 90, 98 Am. Dec. 370; Crawford v. Millspaugh, 13 Johns. (N. Y.) 87; KIDDER v. KIDDER, 33 Pa. 268; Moore V. Locomotive Works, 14 Mich. 266; Maness v. Henry, 96 Ala. 454, 11 South. 410; Landon v. Hutton, 50 N. J. Eq. 500, 25 Atl. 953; Davidson v. Burke, 143 111. 139, 32 N. E. 514, 36 Am. St. Rep. 367; ante, p. 129. 1 Foster v. Dawber, 6 Exch. 839. 8 Crawford v. Millspaugh, 13 .Johns. (N. Y.) 87; Seymour v. Mintura, 17 Johns (N. Y.) 169, 8 Am. Dec. 380; Bragg v. Danielson. 141 ISIass. 195, 4 N. E. 622; Smith v. Bartholomew, 1 Mete. (Mass.) 276, 25 Am. Dec. 365; Campbell's Estate, In re, 7 Pa. 100, 47 Am. Dec. 503. Larkin v. Hardenbrook, 90 N. Y. 333, 43 Am. Rep. 176; Slade v. Mutrie, 156 Mass. 19, 30 N, E. 1()8; Vanderbeck v. Vanderbeck, 30 N. J. Eq. 265; Paxton V. Wood, 77 N. C. 11; Campbell's Estate, In re. 7 Pa. 100, 47 Am. Dec. .503; Albert's Ex'rs v. Ziegler's Ex'rs. 29 Pa. 50; Stewart v. Hidden, 13 Minn. 43 (Gil. 20); Ellsworth v. Fogg, 35 Vt. 355. io Slade v. Mutrie, 156 Mass. 19, 30 N. E. 168. 420 DISCHAIIGE OF CONTRACT. (Cli. 11 SAME— SUBSTITUTED CONTRACT. 229. A contract may be discharged by the substitution of a new contract,! 1 and tliis results — (a) 'Where a new contract is expressly substituted for the old one. (b) Where a ne^tr contract is inconsistent vtrith the old one. (c) W^here ncTV terms are agreed upon. (d) WTiere a new party is substituted for one of the original parties by agreement of all three. 230. As in the case of contracts generally, the agreement of the par- ties may be evidenced by their conduct. The difference between this mode and a discharg-e by waiver is that a discharge by waiver is a total obHteration of the contract, while by this mode a new bond between the parties is substituted in the place of the old one. A contract may be thus discharged either by the making of an entirely new and independent contract relating to the same sub- ject, or merely by the introduction of new terms. In the latter case the new contract consists of the new terms and so much of the original contract as remains unchanged. If, for instance, parties who have contracted for the construction of a building according to specifica- tions, and at a price, to be paid partly in cash and partly in some other way, should afterwards agree upon a change in the specifications and an increase in the cash payment, there would be substituted for the original contract a new contract, consisting of the new terms and the unchanged terms of the original. ^^ A new contract inconsistent with the original impliedly ..discharges the latter without an express provision to that effect ; ^^ and, if new terms are agreed upon, they will by implication waive those terms of the original which are inconsistent with them, and a new contract will result, consisting, as we have seen, of the new terms and the unchanged 11 McCREERY v. DAT, 119 N. Y. 1, 23 N. E. 198; MUNROE v. PERKINS, 9 Pick. (Mass.) 298, 20 Am. Dec. 475; Hurlock v. Smith, 39 Md. 436; King T. Faist, IGl Mass. 449, 37 N. E. 456; ROLLINS v. MARSH, 128 Mass. 116; Cutter V. Coclirane, 116 Mass. 408; Farrar v. Toliver, 88 111. 408; Windham V. Doles, 59 Ga. 265; Brown v. Everhard, 52 Wis. 205, 8 N. W. 725; Tingley V. Land Co., 9 Wash. 34, 36 Pac. 1098; Sioux City Stock- Yards Co. v. Packing Co., 110 Iowa, 396, 81 N. W. 712; Andre v. Graebner, 126 Mich. 116, 85 N. W. Dreifus v. Exposition r04. As to payment by negotiable insti'ument, see post, p. 435. 12 Green v. Paul, 155 Pa. 126, 25 Atl. 867; Hannibal H. Chandler & Co. V. Knott. 86 Iowa, 113, 53 N. W. 88; McNish v. Reynolds, 95 Pa. 483. 1? Patmore v. Colbin-n, 1 Cromp. M. & R. 65; Renard v. Sampson, 12 N. Y. 561; Stow V. Russell, 36 111. 18; Howard v. Railroad Co., 1 Gill (Md.) 311; Chrisman v. Hodges, 75 Mo. 413; Paul v. Meservey, 58 Me. 419; HaiTison v. I>odge, 116 111. 279, 5 N. E. 543; Domenico v. Association (D. C.) 112 Fed. 554, 557. 464; Brown v. Lumber Co., 117 N. C. 287, 23 S. E. 253; Salvage Co., 194 Pa. 475, 45 Atl."" S70. 75 Am. St. Rep. 7C §§ 229-230) BY AGREEMENT. 421 or consistent terms of the original contract.^* An illustration is fur- nished by cases in which a contractor undertakes building operations for another which are to be completed by a certain time, in default of which a sum is to be paid as compensation for the delay. If, while the building- is in progress, an agreement is made for additional work, by which it becomes impossible to complete the building within the time stipulated, it is universally held that the subsequent agreement is so far inconsistent with the first as to amount to a waiver of the orig- inal stipulation as to time; and, since an agreement may be made by conduct as well as by words, this principle would apply where perform- ance within the specified time is prevented by the conduct of the other party. ^^ Where it is claimed that a contract has been discharged by a new contract, or by the introduction of new terms, the intention to dis- charge must distinctly appear, to give rise to such an implication, from the inconsistency of the new terms with the old ones.^° A mere post- ponement of performance for the convenience of one of the parties, or an agreement to accept performance at a different place than that stipulated, does not operate as a discharge.^ ^ This question sometimes arises in contracts for the sale and delivery of goods, where the de- livery is to extend over some time. The purchaser requests a post- ponement of delivery, and then refuses to accept the goods at all, al- leging that the contract was discharged by the alteration of the time of performance; that a new contract was thereby substituted, which is void for noncompliance with the statute of frauds. The courts, however, have always recognized "the distinction between a substitu- tion of one agreement for another, and a voluntary forbearance to de- liver at the request of another," ^'* and will not regard the latter as af- fecting the rights of the parties further than this : that, if a m an_asks to have performance of his contract postponed, he does so at his own 1* THORNHILL v. NEATS, 8 C. B. (N. S.) 831; Teal v. Bilby, 123 U. S. 572. 8 Sup. Ct. 239, 31 L. Ed. 2C3; Cornish v. Suydam, 'JO Ala. G20, 13 South. 118; Farrar v. Toliver, 88 111. 408; ROLLINS v. MARSH, 128 Mass. IIG; ROGERS V. ROGERS, 139 Mass. 440, 1 N. E. 122; Housekeeper Pub. Co. v. Swift, 97 Fed. 290, 38 C. C. A. 187. 15 THORNHILL v. NEATS. 8 C B. (N. S.) 831. And see Cornish v. Suy- dam, 99 Ala. 620, 13 South. 118; Stewart v. Keteltas, 36 N. Y. 388; Under- wood V. Wolf, 131 111. 425, 23 N. E. 5I>8, 19 Am. St. Rep. 40; Howard v. Kail- road Co., 1 GUI (Md.) 311; Tluckostein v. Kelly, 152 Pa. 631, 25 Atl. 747. 16 Mlllsaps V. Bank, 71 I\Iiss. 361, 13 South. 903; Uhlig v. Barnum, 43 Neb.- 581, 61 N. W. 749. 17 HICKMAN V. HAYNES, L. R. 10 C. P. 606; I-awson v. Hogan, 93 N. Y. 39; Watldns v. Hod?es, 6 Har. & J. (Md.) 38; Franklin Fire Ins. Co. v. Hamill, 5 Md. 170; Bticon v. Cobb, 45 111. 47; McCombs v. McKennan, 2 "Watts & S. (Pa.) 216, 37 Am. Dec. 505; Thomson v. Poor, 147 N. Y. 402, 42 N. E. 13. 18 HICKMAN V. HAYNES, L. R. 10 C. P. 606. 422 DISCHARGE OF CONTRACT. (Ch. 11 j;islt; for, if the market value of the goods which he should have ac- cepted at the earlier date has altered at the latter date, the rate of dam- ages may be assessed, as against him, either at the time when the per- formance should have taken place, or when, by nonperformance, the contract was broken, or when he ultimately exhausted the patience of the vendor, and definitely refused to perform the contract.^® Again, a contract may be discharged by the introduction of new par- ties into the original agreement, whereby a new contract is create.d^.in which the terms remain the same, but the parties are differerrtr- This is termed a "novation." We have already spoken of it as an apparent exception to the rule that the rights and liabilities under a contract cannot be assigned at law.^" Such a substitution may be made (i) by /express agreement, or (2) by conduct of the parties indicating acquies- 'cence in a change of liability. If, for instance, A, owes B. $100, and B, owes C. $100, it may be agreed between all three that A. shall pay C. instead of paying B., so that B. thereby terminates his legal rela- tions with both A. and C.^^ The consideration for A.'s promise to pay C. is the discharge of B. by C. ; the consideration of B.'s discharge of A. is the extinguishment of his debt to C. ; and the consideration of C.'s discharge of B. is the promise of A. It would not be enough for A. to say to C, "I will pay you instead of B.," and to afterwards sug- gest the arrangement to B. and receive his assent; ^^ nor would it be enough for B. to authorize A. in writing to pay to C, and for A. to acknowledge the paper. -^ All three must enter into the agreement, and the original liability must be extinguished. This is essential, be- cause it is the promise of each that is the consideration for the promise of the others.^* 18 Anson, Cont. (4th Ed.) 261; Ogle v. Earl Vane, L. R. 2 Q. B. 275, L. R. 3 Q. B. 272. 20 Ante, p. 362. 21 Tatlock V. Harris, 3 Term R. 174; HEATON v. ANGIER, 7 N. H. 397, 28 Am. Dec. 353; Sterling v. Ryan, 72 Wis. 3G, 37 N. W. 572, 7 Am. St. Rep. 818; McKINNEY v. ALVIS, 14 111. 33; Litchfield v. Garratt, 10 Mich. 4215; MeClellan v. Robe, 93.1nd. 298; Mulgrew v. Cocharen, 9G Mich. 422, 56 N. W. 70; Id., 98 Mich. 532, 57 N. W. 739; Atwood v. Town of Mt. Holly, 65 Vt. 121, 20 Atl. 491; Byrd v. Bertrand, 7 Ark. 321; Foster v. Paine, 63 Iowa, 85. IS N. AV. 699; Gardner v. Caylor, 24 Ind. App. 521, 56 N. E. 134. 22 Cuxon V. Chadley, 3 Bam. & C. 591; BARNES v. INSURANCE CO., 56 Minn. 38, 57 N. W. 314, 45 Am. St. Rep. 438. 2 3 LIVERSIDGE v. BROADBENT, 4 Hurl. & N. 603. Ante, p. 363. 24 LIVERSIDGE v. BROADBENT, 4 Hurl. & N. G03; Cuxon v. Chadley, 3 Barn. & C. 591; Wood v. Moriarty, 16 R. I. 201, 14 Atl. 855; First Nat. Bank v. Hall, 101 U. S. 50, 25 li. Ed. 822; Hard v. Burton, 62 Vt. 314, 20 Atl. 269; SPYCHER v. WERNER, 74 Wis. 456, 43 N. W. 161, 5 L. R. A. 414; McKINNEY V. ALVIS, 14 111. 33; Smith v. Watson, 82 Va, 712, 1 S. E. 96; Black V. De Camp, 78 Iowa, 718, 43 N. W. 625; Bowcn v. Railroad Co., 34 S. C. 217, 13 S. E. 421; Haubert v. Mausshardt SO Cal. 433, 26 Pac. 899; iNIorrison v. Kendall, 6 Ind. App. 212, 33 N. E. 370; Linneman v. Moross' §§ 229-230) BY AGREEMENT. 423 As we have said, such a substitution and discharge may arise other- wise than by express agreement ; it may arise from the conduct of the parties indicating acquiescence in a cliange of HabiHty. If a person, for instance, enters into a contract with two others, and the latter agree between themselves that one of them shall retire from the contract and cease to be liable upon it, the first-mentioned party may either insist upon the continued liability of the party remaining, or may treat the contract as broken and discharged by such renunciation of his lia- bilities by the party so attempting to withdraw. If, however, under some circumstances, the first-mentioned party, after he becomes aware of the retirement of one of the other parties, continues to deal with the remaining party as though no change lias taken place, he acquiesces, and may be considered to have entered into a new contract to accept the sole liability of the party so remaining, and cannot hold the other to his original contract. Cases of this sort arise where a member re- tires from a partnership, after the firm has entered into a contract, and it is subsequently sought to hold him liable thereon. "I apprehend the law to be now settled," said Parke, B., "that if one partner goes out of a firm, and another comes in, the debts of the old firm may, by the consent of all the three parties, — the creditor, the old firm, and the new firm, — be transferred to the new firm." ^^ Moreover, a retired partner may be discharged by the creditor's adoption of the other part- ners as his sole debtors, although no new partner has been introduced into the firm.^^ An agreement to discharge a retired partner, and look only to a continuing partner, is not inoperative for want of con- sideration.-^ And when the new firm agrees to assume the liabilities of the old, slight circumstances will support an inference of assent on Estate, 98 Mich. 178, 57 N. W. 103. 39 Am. St. Rep. 528; Campbell v. Clay, 4 Colo. App. 551, 36 Pac. 909; Butterfield v. Hartshorn, 7 N. H. 345, 26 Am. Dec. 741; Cornwell v. Megins, 39 Minn. 407, 40 N. W. 610; Levy v. Ford, 41 La. Ann. 873, 6 South. 671. Cf. Clough v. Giles, M N. H. 73, 5 Atl. 885; Wolters V. Thomas (Cal.) 32 Pac. 565; Casey v. Miller, 3 Idaho (Hasb.) 567, 32 Pac. 195. 25 Hart V. Alexander, 2 Mees. & W. 484. And see Ludington v. Bell, 77 N. Y. 138. 33 Am. Rep. 601; Filipini v. Stead, 4 Misc. Rep. 405, 23 N. Y. Supp. 1061; Cf. Ayer v. Kiluer, 148 Mass. 408, 20 N. E. 1(». But see Wadhams t. Page, 1 Wash. St 420, 23 Pac. 462; Id., 6 Wash. 103, 32 Pac. 1068; Campbell V. Floyd, 153 Pa. 84, 25 Atl. 1033. Where a creditor of a partnership, after dissolution, accepts the note of some of the partners in payment of the firm debt, intending that it shall satisfy the original obligation, the other partner is discharged. Waydell v. Luer, 3 Denio (N. Y.) 410; Millerd v. Thorn, 56 N. Y. 402; Ludington v. Bell, supra; Powell v. Blow. 34 Mo. 480; Stone v. Chamberlin, 20 Ga. 259; Maxwell v. Day, 45 Ind. 509. But not if there Is no such intention. Post, p. 43G, note 82. 2 6 York V. Orton, 65 Wis. 6, 26 N. W. 166. 27 Thompson v. Percival, 5 Barn. & Ad. 925; Backus v. Fobes, 20 N. Y 204; COLLYER v. MOULTON, 9 R. 1. 90, 98 Am. Dec. 370. T 424 DISCHARGE OF CONTRACT. (Ch. 11 the part of a creditor who had notice of the dissolution to a novation.^" In the case of discharge by substituted agreement, the change of rights and Habilities, and consequent extinction of those which before existed, form the consideration on each side for the new contract."® On principle, it would seem that, if a person should refuse to perform a contract simply because he would suffer a loss by performing, a promise by the other party to pay him more, or to accept less, than originally agreed upon, to induce him to go on with the contract, would be without consideration. We have already seen that on this ques- tion the authorities are not in accord.^" y^ ^ SA3VIE-FORM OF DISCHARGE BY NEW AGREEMENT. 231. T3ie general rule is that a contract must be discliarged in the same form as that in Ttrhich it •was made. Therefore. (a) A contract under seal can only be discharged by agreement, ■wrhere the agreement is under seal; but by the iveight of au- thority, in this country, at least, the rule does not apply where a parol contract rescinding or modifying a contract under seal has been acted upon, so that it xjrould be inequitable to hold the parties to their original contract- (b) A parol contract may be discharged by xp^riting or by wrord of mouth, TO^hether or not the original contract is in -writing, ex- cept that— EXCEPTION — WTiere the original w^ritten contract was w^ithin the statute of frauds, though an absolute discharge by rescission may take place by w^ord of mouth, a discharge by substituted agreement must, by the -weight of authority, be in writing. The general rule of the common law being that a contract can only be discharged in the same form as that in which it was made, it fol- lows that an agreement, to operate as a discharge or modification of a previous contract under seal, must also be under seal. The parties to a deed cannot, at common law, discharge their obligation by a parol agreement.^ ^ This rule is, however, subject to some qualifications or exceptions. In the first place, it is possible for them to make a parol contract which creates obligations separate from, and yet substantially at vari- ance witli, the deed, so that it in effect contravenes the terms of the 28 Regester v. Dodge (C. C.) G Fed. 6; Shaw v. McCregory, 105 Mass. yC; Tysen v. SomerviUe, 35 Fla. 219, 17 South. 5G7. 2 9 Note 11, supra. so Ante, p. 127. 81 SPENCE T. HBALEY, 8 Ex. 6G8; WEST V. BLAKEWAY, 2 Man. & G. 729; Allen v. Jaquish, 21 \Tend. (N. Y.) G28; Thompson v. Brown, 7 Taunt. e.r>0; SPENCE V. HEALEY, 8 Esch. 608; Cordwert v. Hunt, 8 Taunt. 59<>; Woodruff V. Dobbins, 7 Blackf. (Ind.) 582; Hogencamp v. Ackerman. 24 N. J. Law, 133; McMurphy v. Garland, 47 N. H. 316; Leavitt v. Stem, 159 111. 526, 42 N. E. 869. § 231) BY AQKEEMENT. 425 deed, and gives a right of action to which the deed furnishes no an- swer. In a case illustrative of this point a person had let rooms to another, by contract under seal, for a certain time, at a rent to be ascertained in a certain way, and after his death his administrator en- tered into a parol agreement with the lessee by which, in considera- tion of a certain sum to be paid by the lessee, to be taken as a reason- able rent, neither party should be called upon to perform his part un- der the deed. The lessee failed to make the payment so agreed upon, and the administrator sued him upon the parol contract. The lessee contended that the parol contract was an attempt to vary the deed by an instrument not under seal, and that a performance of this contract, being no discharge of the deed, would leave him liable to his obligation under the deed. The court held, however, that the parol contract created a new obligation ; and that a performance of this new con- tract would furnish an equitable answer to an action on the contract under seal ; and that the administrator was entitled to sue on the parol contract.^* Again, where the obligee does something to prevent performance by the obligor, as where he orally consents to an extension of the time for perfomiance, and the oral waiver is acted upon, when he sues the ob- ligor for nonperformance, he cannot object to parol evidence of his conduct.""' There is an exception very generally recognized in this country, though not in England, it seems. ^* The cases are not very clear as to the limits of this exception, but they seem to establish the nde that where a contract under seal has been rescinded or modified by a subse- quent parol agreement, and this agreement has been acted upon by the parties, and they have changed their situation so that it would be inequitable to hold them to the original contract, the parol agreement may be shown ; and this rule is recognized at law as well as in equity,"* Though the language of most of the opinions iti these cases is as broad 82 NASH V. ARMSTKONG, 10 C. B. (N. S.) 2.59. 33 Fleming v. Gilbert, 3 Johus. (N. Y.) 528; Nicholas T. Austin, 82 Va. 817, 1 S. E. 132; Franklin Fire lus. Co. v. Hamill, 5 Md. 170; Baltimore Fire Ins. Co. v. McGowan, IG Md. 47; Lawrence v. Miller, 86 N. Y. 131. 34 The rule is recogmized in equity. STEEDS v. STEEDS, 22 Q. B. Div. 537. 3B Chesapeake & O. Canal Co. v. Ray, 101 U. S. 522, 25 L. Ed. 792; Mc- CREEllY V. DAY, 119 N. Y. 1, 23 N. E. 198, G L. R. A. 503, 10 Am. St. Rep. 793; Le Fevre v. Le Fevre. 4 Serg. & R. (Pa.) 241, 8 Am. Dec. G96; Phelps v. Seely, 22 Grat. (Va.) 573; MUNROE v. PERKINS, 9 Pick. (Mass.) 298, 20 Am. Dec. 475; Van Syckel v. O'Hearn, 50 N. J. Eq. 173, 24 Atl. 1024; White V. Walker, 31 lU. 422; Lawrence t. Dole, 11 Vt. 549; Hydeville Co. v. Slate Co., 44 Vt. 395; Green v. Wells, 2 Cal. 584; HASTINGS v. LOVEJOY, 140 INIass. 261, 2 N. E. 776; Herzog v. Sawyer, Gl Md. 344; Dickerson v. Com- missioners, 6 Ind. 128, 63 Am. Dec. 373; TPIOMSON v. POOR, 147 N. Y. 402, 42 N. E. 13. See, also, Palmer v. Britania Co., 188 111. 508, 59 N. E. 247. 42G DISCHARGE OP CONTRACT. (Cll. 11 as the rule stated, it will be found that some of them will fall within one or the other of the qualifications of the rule mentioned above. A parol or simple contract may be discharged by writing or by word of mouth. It is immaterial that the original contract is in writ- ing, for, as we have seen, the writing is not the agreement, but the evi- dence of the agreement only.^® There is an exception in cases where the original agreement was required by the statute of frauds to be in writing. In such a case an absolute discharge might probably take place by word of mouth. ^'' If, however, the discharge is not a simple rescission, but is by substitution of a new contract, either by express provision, or by implication because of inconsistency between it and the original, the better opinion requires a writing. The new contract, resting in parol, would be unenforceable for noncompliance with the statute, and could not discharge the original contract.^^ There are some cases in conflict with this statement.^® Parol evidence is ad- missible, however, to prove substantial performance when the per- 3 8 Goss v. Nugent, 5 Barn. & Adol. 65; Brown v. Everhard, 52 Wis. 205, 8 N. W. 725; Swain v. Seamens, 9 Wall. 254, 19 L. Ed, 554; Blagbome v. Hunger, 101 Mich. 375, 59 N. W. 657; McNish v. Reynolds, 95 Pa. 483; Allen V. Sowerby, 37 Md. 410; WIggin v. Goodwin, 63 Me. 389; Aldrich v. Price, 57 Iowa, 151, 9 N. W. 376, 10 N. W. 339 ; Utley v. Donaldson, 94 U. S. 29, 24 L. Ed. 54; Teal v. Bilby, 123 U. S. 572, 8 Sup. Ct. 239, 31 L. Ed. 263; Flanders v. Fay, 40 Vt. 316; Robinson v. Batchelder, 4 N. H. 40; Thurston V. Ludwig, 6 Ohio St. 1, 67 Am. Dec. 338; Deshazo t. Lewis, 5 Stew. & P. (Ala.) 91, 24 Am. Dec. 769; Low v. Forbes, 18 111. 568; Jones v. Grantham, 80 Ga. 472, 5 S. E. 764. Conti-a: Herreshoff v. Misch, 21 R. I. 524, 45 All. 145 (cannot be varied). Contra, by statute, in some states, where the oral agreement is unexecuted. Benson v. Shotwell, 103 Gal. 163, 37 Pac. 147; Mettel V. Gales, 12 S. D. 632, 82 N. W. 181. See, also, ante, pp. 392, 394. Even a provision that no modifications shall be made except in writing, may be changed, by parol. A. J, Anderson Electric Co. v. Lighting Co. (Tex. Civ. App.) 27' S. W. 501. 3 7 Gorman v. Salisbury, 1 Vern. 240; Wulschner v. Ward, 115 Ind. 219, 17 N. B. 273; Hurley v. Schring, 62 Hun, 621, 17 N. Y. Supp. 7; Buel v. Miller, 4 N. H. 196. As to novation, see ante, p. 68. 3 8 NOBLE V. WARD, L. R. 2 Exch. 135; Goss v. Lord Nugent, 5 Barn. & Adol. 58; Burns v. Real-Estate Co., 52 Minn. 31, 53 N. W. 1017; Hill v. Blake, 97 N. Y. 216; HICKMAN v. HAYNES, L. R. 10 C. P. 598; Blood v. Goodrich, 9 Wend. (N. Y.) 68, 24 Am. Dec. 121; Dana v. Hancock, 30 Vt. 616; Abell v. Munson, 18 Mich. 30(>, 100 Am. Dec. 165; Musselman v. Stoner, 31 Pa. 265; Wilson's Assignee v. Beam (Ky.) 14 S. W. 362; Carpenter v. Galloway, 73 Ind. 418; Rucker v. Harrington, 52 Mo. App. 481; Augusta Southern R. Co. v. Smith & Kilby Co., 106 Ga. 864, 33 S. B. 28. so Stearns v. Hall, 9 Cush. (Mass.) 31; CUMMINGS v. ARNOLD, 3 Mete. (Mass.) 486, 37 Am. Dec. 155; Negley v. Jeffers, 28 Ohio St. 90; Lee v. Hawks, 08 Miss. 669, 9 South. 828; McClelland v. Rush, 150 Pa. 57, 24 Atl. 354. And see Houston v. Sledge, 101 N. C. <>40, 8 S. E. 145, 2 L. R. A. 4S7; Johnston v. Trask, 116 N. Y. 136, 22 N. E. 377, 5 L. R. A. 630. 15 Am. St. Rep. 394; Blaucliard v. Trim, 38 N. Y. 21i5; Browne, St. Frauds, § 411; 2 Reed, St. Frauds, § 458. § 232) BY AGREEMENT. 427 fonnance is completed and accepted, and such performance is a de- fense by way of accord and satisfaction.*" SAME— PROVISIONS FOR DISCHARGE CONTAINED IN THE CON- TRACT—CONDITIONS SUBSEQUENT. 232. A contract may contain ivithin itself express or implied provi- sions for its determination under certain circumstances. These provisions are conditions subsequent. Such a discharge may take place by reason of— (a) The nonfulfillment of a specified term of the contract. (b) The occurrence of a particular event. (c) The exercise by one of the parties of an option to determine the contract, the option being given either— (1) By express provision in the contract, or (2) By a custom or usage forming part of the contract.*! Discharge on NonfiilfiUment of Term. In the first of these three cases — that in which the nonfulfiUment of a specified term of the contract gives to one of the parties the option of treating the contract as discharged — we seem to be approaching very near to the subject of the discharge of contract by breach, for this, too, may arise from the nonfulfiHment of a term which the parties consider to be vital to the contract. There is, however, this difference between a nonfulfillment contemplated by the parties, the occurrence of which shall, it is agreed, make the contract determinable at the option of one, and a breach, or nonfulfillment not contemplated or provided for by the parties. In the former case the parties have, while in the latter they have not, looked beyond the immediate objects of the contract. In the former case the default which is to constitute a discharge is specified by the agreement of the parties, while in the latter it must al- ways be a question of fact or of construction whether or not the de- fault was in a matter vital to the contract, so as to operate as a dis- charge by breach. An illustration of this mode of discharge is afford- ed where a chattel is sold with the understanding that it may be re- turned if it is not satisfactory, or does not answer the description given by the seller. In a leading case on this point, a horse had been sold under a contract by which it was stipulated that, if it did not comply with a certain warranty, the buyer might return it by a specified time. It did not comply with the warranty, and was returned within the time, but the seller refused to accept it, because it had been injured, though *o Moore v. Campbell, 10 Esch. 323, per Parke, B.; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; Long v. HartAvell, 34 N. J. Law, IIG, 127; Ladd V. King. 1 R. I. 224, 231, 51 Am. Dec G24; Swain v. Seamens, 9 Wall. 254, 19 L. Ed. 554. 41 .Anson, Cont. (4th Ed.) 203-2G7. 428 DISCHARGE OF CONTRACT. (CL 11 by no fault of the buyer. It was held that the buyer was entitled to return it. "The effect of the contract," it was said, "was to vest the property in the buyer subject to a right of rescission in a particular event, when it would revest in the seller." *^ So, where a servant is employed for a specified time to work to the master's satisfaction, the master may have the right to discharge him when he becomes, in good faith, dissatisfied with him.'*^ Occurrence of Specified Event. The parties may introduce into the terms of their contract a provi- sion that the fulfillment of a condition, or the occurrence of an event, shall discharge them both from further liabilities under the contract. Such a condition subsequent is well illustrated by the case of a bond, which is a promise subject to, or defeasible upon, a condition expressed in the bond. Another illustration is in case of the excepted risks in a charter party. In a contract of that nature the shipowner agrees with the charterer to make the voyage on the terms expressed in the con- tract, the act of God, public enemies, fire, collision, and other dangers of the seas, etc., excepted. The occurrence of such an excepted risk releases the shipowner from the strict performance of the contract; and if it should take place while the contract is wholly executory, and frustrate the entire enterprise, the parties are altogether discharged.** Another illustration of such conditions is found in contracts with com- mon carriers. Bills of lading generally contain exceptions by which the liability of the carrier to deliver the goods is to cease if their lo?- or destruction is caused by certain perils." A common carrier is said to warrant or insure the safe delivery of goods intrusted to him, but 42 Head v. Tattersall, L. R. 7 Exch. 7, 14. And see RAY v. THOINIPSON, 12 Cush. (Mass.) 281, 59 Am. Dec. 187; Kimball & Austin Mfg. Co. v. Vroman, 35 Mich 310, 24 Am. Rep. 558; Buswell v. Bicknell, 17 Me. 344, 35 Am. Dec. 2G2; Schlosinger v. Stratton, 9 R. I. 578; McKinney v. Bradlee, 117 Mass. 321; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552. Cf. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 33 L. Ed. 1093. It is otherwise where the injury is caused by the fault of the purchaser. RAY v. THOMPSON, 12 Cush. (Mass.) 281, 59 Am. Dec. 187. If no time is specified within which the option to rescind must be exercised, a reasonable time is implied. Quinn v. Stout, 31 Mo. 160; Hickman v. Shimp, 109 Pa. 16; Washington v. Johnson, 7 Humph. (Tenn.) 4G8. 4 3 Frary v. Ruhber Co., 52 Minn. 264, 53 N. W. 1156, 18 L. R. A. 644 Koehler v. Buhl, 94 Mich. 496, 54 N. W. 157; Allen v. Compress Co., 101 Ala. 574, 14 South. 362; Magee v. Lumber Co., 78 Minn. 11, 80 N. W. 781 Gwynne v. Hitchner, 66 N. J. Law. 97, 48 Atl. 571; Id., 67 N. J. Law, 654, 52 Atl. 997; Kendall v. West, 196 111. 221, 63 N. E. 683, 89 Am. St. Rep. 317 Ajid see Crawford v. Publishing Co., 163 N. Y. 404, 57 N. E. 616. Post, p 432. 4* Geipel v. Smith, L. R. 7 Q. B. 404; Graves v. The Calvin S. Edwards, 1 C. C. A. 533, 50 Fed. 477. 4B STORER V. GORDON, 3 Maule & S. 308; Southern Exp. Co. v. Glenn, 16 Lea (Tenn.) 472, 1 S. W. 102; Haas v. Railroad Co., 81 Ga. 792, 7 S. E. § 232) BY AGUEEMENT. • 429 his promise, even without express stipulation, is defeasible upon the occurrence of certain excepted risks, such as the act of God *" and in- juries arising- from defects inherent in the thing carried.*^ This limi- tation of liability is implied in every contract with a common car- rier, and the occurrence of the risks exonerates him from liability for loss incurred through their agency.** Discharge Optional with Notice. Again, a continuing contract may contain a provision making it determinable at the option of one of the parties, upon certain terms. *° Where, for instance, a contract of employment provides that it may be terminated by either party on giving a month's notice, and the servant or agent is dismissed on a month's notice, the contract is dis- charged and not broken.'^'' Such terms may be incorporated in con- G29; Slater v. Railroad Co., 29 S. C. 96, 6 S. E. 93G; Norris v. SaUway Co., 23 Fla. 182, 1 South. 475, 11 Am. St. Kep. 355. *8 "By the act of God, is meant any accident produced by physical causes which are irresistible; such as lightning, storms, perils of the sea, eaiiJi- quakes, Inundations, sudden death, or illness. The act of Grod excludes all idea of hmuan agency." Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; McArthur v. Sears, 21 Wend. (N. Y.) 190. Some courts, however, have used the term as synonymous with "inevitable accident." Neal v. Saunderson, 2 Smedes & M. (Miss.) 572, 41 Am. Dec. 609; Blythe v. Railroad Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Kep. 403; Crosby v. Fitch, 12 Conn, 410, 419, 31 Am. Dec. 745; Walpole v. Bridges, 5 Blackf. (Ind.) 222. In an English case the court of common pleas held that, to constitute the "act of God," a loss must arise from "such a direct and violent and sudden and irresistible act of nature" as could not be foreseen, or, if foreseen, pre- vented. Nugent V. Smith, 1 C. P. Div. 19. And see The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41. The court of appeal reversed the decision, and held that "it is not necessary to prove that it was absolu^ly impossible for the carrier to prevent it; but that it is sufficient to prove that by no reasonable precaution under the circumstances could it have been prevented." Nugent V. Smith, 1 C. P. Div. 441. See, also, Memphis & C. R. Co. v. Reeves. 10 Wall. 176, 19 L. Ed. 909; Nashville & C. R. Co. v. David, 6 Heisk, (Tenn.) 261, 19 Am. Rep. 594; Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. 630; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695. ■47 Clarke v. Railroad Co., 14 N. Y. 570, 67 Am. Dec. 205; Penn v. Rail- road Co., 49 N. Y. 204, 10 Am. Rep. 355; Cragin v. Railroad Co., 51 N. Y. 61, 10 Am. Rep. 559; Smith v. Railroad Co., 12 Allen (Mass.) 531, 90 Am. Dec. 166; Michigan S. & N. I. R. Co. v. McDonough, 21 Mich. 165, 4 Am. Rep. 466; Evans v. Railroad Co., Ill Mass. 142, 15 Am. Rep. 19; Lindsley v. Railroad Co., 36 Minn. 539, 33 N. W. 7, 1 Am. St. Rep. 692 48 Nugent V. Smith, 1 C. P. Div. 423. 49 Morrissey v. Broomal, 37 Neb. 766, 56 N. W. 383; Bour v. KimbaU, 46 III. App. 327. BO Jenkins v. Long, 8 Md. 132. And so it is with any other kind of contract which contains an exi:»ress provision that it may be terminated at any time on giving notice. Geiger v. Railroad Co., 41 Md. 4; Oregon & W. Mortg. Sav. Bank v. Mortgage Co. (C, C.) 35 Fed. 22; Adriance v. Rutheford, 57 Mich. 170, 23 N. W. 718. 430 DISCHARGE OF CONTRACT. (Ch. 11 tracts by usage."^ If a continuous contract fixes no time during which it is to last, and no time is fixed by law or by usage, it may be determined at the will of either party by notice.'^ A contract of hir- ing, for instance, if no time is specified, is generally construed as a hiring at will ,* and the fact that wages are payable at specified periods does not necessarily show that the hiring was for a specified period.'^ In every contract of hiring, certain provisions for discharge are im- plied. If the servant proves incompetent, for instance, or if he acts in such a way as to injure the employer's business, or is otherwise guilty of breach of duty, the latter may rightfully discharge him."** This, however, is a breach of contract by the servant or agent, and the master or principal is discharged by the breach. DISCHARGE OF CONTRACT BY PERFORMANCE. 233. A contract is discharged by performance— (a) 'Where a promise has been given upon an execnted consideration^ and is performed by the promisor. (b) 'Where one promise has been given in consideration of another, and both are performed, bb Performance of a contract which amounts to an extinction of the obligation must be distinguished from performance which discharges one, only, of the parties from further liabilities under it. Where a promise has been given upon an executed consideration, the promisee has performed his part in the formation of the contract, and perform- ance of his promise by the promisor discharges the contract. All has been done on both ^ides that could be required to be done under the contract. Where the contract is wholly executory, — that is, where one promise has been given in 'consideration of another, — performance by one party does not discharge the contract, though it discharges him 61 Parker v. Ibbetson, 4 C. B. (N. S.) 347. 52 Coffin V. Landis, 46 Pa. 426; Peacock v. Cummings, Id. 434; Greenburg V. Early, 4 Misc. Rep. 99, 23 N. Y. Supp. 1009; Atti-ill v. Patterson, 58 Md. 226; Walker v. Deuison, 86 111. 142. ^•3 Babcock & Wilcox Co. v. Moore, 62 Md. 161; McCullough Iron Co. v. Cai-penter, 67 Md. 554, 11 Atl. 176; Beach v. Mullin, 34 N. J. Law, 343; Tat- terson v. Manufactiu-ing Co., 106 Mass. 56; Franklin Min. Co. v. Harris, 24 :Mich. 115; Prentiss v. Ledyard, 28 Wis. 131; Haney v. CaldweU, 35 Ark. 156. 54 Keedy v. Long, 71 Md. 385, 18 Atl. 704; Adams Exp. Co. v. Trego, 35 Md. 47; iTeatherberry v. Odell (C. C.) 7 Fed. 641; Callo v. Brouncker, 4 Car. & P. 518; Beeston v. Caller, 2 Car. & P. 607; Newman v. Reagan, 63 Ga. 755; Drayton v. Reid, 5 Daly (N. Y.) 442; FILLIEUL v. ARMSTRONG. 7 Adol. & E. 557. 66 Alison, Cont. (4tli Ed.) 270. § 233) BY PERFORMANCE. 431 from further liability under it. Each must have done his part, in or- der that performance may be a discharge of the contract. Whether or not a contract has been performed, so far as the person performing the contract is concerned, must be answered by reference to the operation of contract, while, in so far as the performance is con- cerned, it must be answered by reference to the construction of con- tract. Substantial Performance. At common law, a strict and literal performance in accordance with the terms of the contract is, as a rule, required.'^" In equity, on the other hand, contracts not capable of literal performance will be de- creed with compensation for deficiencies where there is a variance, pro- vided the contract can be performed in substance. '''' Even at law the rule generally prevails that where one of the parties has endeavored in good faith to perform and has substantially performed his contract, and thereby conferred on the other party a substantial benefit, although he has failed to perform in some particulars, he may recover the contract price, less the amount of the damages sustained by the other party by reason of the failure of strict performance.^^ To justify a recovery on the contract so substantially performed, the omissions or deviations must not be willful ; and "they must be slight or susceptible of remedy, so that an allowance out of the contract price will give the other party substantially what he contracted for," ^® This rule has its most frequent application in building contracts, where the con- 56 Dauchey v. Drake, 85 N. Y. 407; Glacius v. Black, 50 N. Y. 145, 10 Am. Kep. 449; Smith v. Brady. 17 N. Y. 173, 72 Am. Dec. 442; Harris v. Sharpies, 202 Pa. 243, 51 Atl. 965, 58 L. R. A. 214. But there may be performance, within the fair intent and meaning of the contract, if the departure from the letter of the contract is trifling. Drew v. Goodhue, 74 Vt 436, 62 Atl. 971. 5 7 East on, Eq. 558. 58 HAYWAKD V. LEONARD, 7 Pick. (Mass.) 181, 19 Am. Dec. 2G9; NO- LAN V. WHITNEY, 88 N. Y. 648; Blood v. Wilson, 141 Mass. 25, 6 N. E. 302; Pinches v. Lutheran Church, 55 Conn. 183, 10 Atl. 204; Todd v. Hunting- ton, 13 Or. 9, 4 Pac. 295; Katz v. Bedford, 77 Cal. 319, 19 Pac. 523. 1 L. R. A. 826; Leeds v. Little, 42 Minn. 414, 44 N. W. 309; Gallagher v. Sharpless. 134 Pa. 134, 19 Atl. 491; Keeler v. Herr, 157 111. 57, 41 N. E. 750; Ashley v. Henahan, 56 Ohio St. 559, 47 N. E. 573; Desmond-Dunne Co. v. Friedman- Doscher Co., 1(52 N. Y. 480, 56 N. E. 995; Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238; Palmer v. Meriden Britannia Co., 188 111. 508, 59 N. E. 247; Philip Hiss Co. v. Pitcairn (C, C.) 107 Fed. 425: Jones & Hotch- Idss Co. V. Davenport, 74 Conn. 418, 50 Atl. 1028. Cf. ^tna Iron & Steel Works V. Kossuth County, 79 Iowa, 40, 44 N. W. 215. 5 9 Elliott V. Caldwell 43 Minn. 357. 45 N. W. 845, 9 L. R. A. 52. See, also, Gillespie Tool Co. v. Wilson, 123 Pa. 19, 16 Atl. 36; Van Clief v. Van Vech- teu, 130 N. Y. 571, 29 N. E. 1017; Marchant v. Hayes, 117 Cal. GG9, 49 Pac. 840; Anderson v. Todd. 8 N. D. 1.58, 77 N. W. 599; Cornish, Curtis & Greene Co. V. Association, 82 Minn. 215, 84 N. W. 724; Harris v. Sharpies, 202 Pa 432 DISCHARGE OF CONTRACT. (Ch. 11 tractor's labor and materials have added value to the owner's land, which the owner must necessarily retain and have the benefit of. It seems that in such cases, where there is a material breach, the liability is quasi contractual, the plaintiff being allowed to recover because of the unjust enrichment of the other party, and consequently that the amount of recovery should be, not necessarily the contract price less the damages resulting from failure of strict performance, but, as has recently been held in Massachusetts, the additional value to the land of the defendant by reason of the plaintiff's labor and materials, and that the burden is on the plaintiff to show a benefit, and its amount.®*^ In many cases, however, this value can be ascertained by deducting from the contract price the cost of completing the building or article ac- cording to the specifications.®^ Performance to Satisfaction of Promisor. Where it is a term of the contract that the performance shall be satisfactory to the other party, it is a question of interpretation whether his obligation is conditional upon actual satisfaction or reasonable satisfaction. In contracts in which the subject-matter involves the per- sonal taste or judgment of the promisor,®^ for example, a suit of clothes,®^ a picture,*^* a play, or other literary production,®^ the courts construe the contract as making the promisor the sole judge; and al- though the compensation of the promisee may thus be dependent on the promisor, who unreasonably withholds his satisfaction, the prom- isee cannot be relieved from the contract into which he has voluntarily entered. The tendency of the courts is perhaps to construe all con- tracts providing for the satisfaction of the promisor in the same man- ner.®" The promisor must, however, act in good faith.®^ On the 243, 51 Atl. 965, 58 L, R. A, 214. But see Danforth v. Freeman, 69 N. H. 4GG, 43 Atl. 621. 60 Gillis V. Cobe, 177 Mass. 584, 59 N. E. 455. 61 See Kelly v. Town of Bradford, 33 Vt. 35; Pinches v. Lutheran Church, 55 Conn. 185, 10 Atl. 264; Norwood v. Lathrop, 178 Mass. 208, 59 N. E. 650. 6 2 Andrews v. Belfield, 2 C. B. (N. S.) 779; McGarren v. McNulty, 7 Gray (Mass.) 139; McClure v. Briggs, 58 Vt. 82, 2 Atl. 583, 56 Am. Rep. 557; HAWKINS v. GRAHAIM. 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422; Housding v. Solomon, 127 Mich. 654, 87 N. W. 57. 63 BROWN V. FOSTER, 113 Mass. 136, 18 Am. Rep. 463. 6 4 Gibson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351; Zaleski v. Clark, 44 Conn. 218, 26 Am. Rep. 446; Pennington v. Howland, 21 R. I. 65, 41 Atl. 891, 79 Am. St. Rep. 774. 65 Haven v. Russell (Sup.) 34 N. Y. Supp. 292; Walker v. Edward Thomp- son Co., 37 App. Div. 536, 56 N. Y. Supp. 326. 06 Seeley v. Welles, 120 Pa. 69, 13 Atl. 736; ADAMS RADIATOR & BOILER WORKS v. SCHNADER, 155 Pa. .S94, 26 Atl. 745, 35 Am. St. Rep. 7 Silsby Mfg. Co. v. Town of Chieo (C. C.) 24 Fed. 893: SINGERLY v. THAYER, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207; Electric Lighting Co. of Mobile v. Elder, 115 Ala. 138, 21 South. 983. § 233) BY PERFORMANCE. 433 Other hand, the parties may agree that the satisfactoriness may be de- teimined by the mind of a reasonable man, and not by the mere taste or Hking- of the promisor; "^ and where the subject-matter of the con- tract involves such considerations as salability, operative fitness, and mechanical utility, rather than personal feeling or taste, many courts construe the satisfaction contemplated as that of a reasonable man.®" And some cases even lay down the broad rule that where a contract is to be performed to the satisfaction of one of the parties, the meaning necessarily is that it must be done to the satisfaction of the mind of a reasonable man.'^° It seems, however, that the question in each case should be the determination of the intention of the parties as evinced by the particular contract, and that no invariable rules of interpreta- tion can be laid down.'^^ Time of Performance. Where no time for performance is fixed by the contract, a reason- able time is implied.''^ Where a time is specified, the question arises whether it is of the essence of the contract or not. This question must be answered by the rules of construction which we have already considered.''^ If time is of the essence, a performance after the time fixed does not bind the other party unless he waives the breach, and thereby, in efifect, makes a new contract taking the place of the old one. Where a particular day is fixed upon for performance, or per- 893; Silsby Mfg. Co. v. Town of Chico (C. C.) 24 Fed. 893; Campbell Printing- Press Co. v. Thorp (C. C.) 36 Fed, 414, 1 L.. R. A. 645; Wood Reaping & Mowing Mach. Co. v. Smith, 50 Mich. 5G5, 15 N. W. 906, 45 Am. Rep. 57; McCormick Harvesting Mach. Co. v. Chesrown, 33 Minn. 32, 21 N. W. 846; Exhaust Ventilator Co. v. Railroad Co., 66 Wis. 218, 28 N. W. 343, 57 Am. Rep. 257; Blaine v. Publishers George Knapp & Co., 140 Mo. 241, 41 S. W. 787; Williams Mfg. Co. v. Brass Co., 173 Mass. 356, 53 N. E. 862. 6 8 HAWKINS V. GRAHAM, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422. 6 9 Wood Reaping & Mowing Mach. Co. v. Smith, 50 Mich. 565, 15 N. W. 906, 908, 45 Am. Rep. 57: Schliess v. City of Grand Rapids (Mich.) 90 N. W. 700. And see DUPLEX SAFETY BOILER CO. v. GARDEN, 101 N. Y. 387, 4 N. E. 749, 54 Am. Rep. 709. TO Keeler v. Clifford, 105 111. 544, 46 N. B. 248; Richison v. Mead, 11 S. D. 639, SO N. W. 13] . And see DOLL v. NOBLE, 116 N. Y. 230, 22 N. E. 406, 5 L. R. A. 554, 15 Am. St. Rep. 398. 71 Wood Reaping & Mowing INIach. Co. v. Smith, 50 Mich. 565, 15 N. W. 906, 45 Am. Rep. 57; HAWKINS v. GRAHAM, 149 Mass. 284, 21 N. EL 312, 14 Am. St. Rep. 422; Magee v. Lumber Co., 78 IMinn. 11, SO N. W. 781; Electric Lighting Co. of IMobile v. Elder, 115 Ala. 138. 21 South. 983; McNeil V. Armstrong, 81 Fed. 943, 27 C. C. A. 16; City of Elizabeth v. Fitzgerald, 114 Fed. 547, 52 C. C. A. 321. 7 2 Ante, p. 408. Where the act to be done is the payment of money, the presumption is that it is to be paid on demand. Warren v. Wheeler, 8 Mete QIass.) 07. 7 3 Ante, p. 408. Clark Cont. (2d Ed.) — 28 434 DISCHARGE OF CONTRACT. (Ch. 11 formance is required within a certain time, the contract may be per- formed at any time during the day or during the last day.''* Bifect of Failure of Performance. If there is a failure of performance, partial or total, then the con- tract is broken. Whether the breach amounts to a discharge is a ques- tion which we shall hereafter discuss. SAME— PAYMENT. 234. Payment consists in the performance of a contract— (a) By the delivery of money, or (b) By the delivery of negotiable instruments conferring the right to receive money, in \irhich latter case the payee may take the instrument— (1) In discharge of his right absolutely, or (2) Subject to a condition (Tirhich, in most jurisdictions, ivill be presumed, in the absence of expressions to the contrary) that, if not paid when due, the payee reverts to his original rights, either to performance of the contract or satisfac- tion for its breach.^ 6 If the liability of a party to a contract consists in the payment of a sum of money in a certain way or at a certain time, such a payment discharges him by the performance of his agreement. If, again, a person who is liable to perform certain acts under his contract wishes instead to pay a sum of money, or, having to pay a sum of money, wishes to pay it in a manner at variance with the terms of the con- tract, he must agree with the other party to accept the proposed pay- ment in lieu of such performance as he is entitled to under the con- tract® In such a case the payment is a performance of the substi- tuted agreement, and a discharge of the contract. Again, where one of two parties has made default in the performance of his part of the contract, so that a right of action has accrued to the other, the obliga- tion formed by this right of action may be discharged by an accord and satisfaction; that is, an agreement, the consideration for which is usually a money payment, made by the party against whom the right exists, and accepted in discharge of his right by the other. '^^ Payment, then, is the performance of a contract, whether it be a performance of an original or of a substituted contract, or of a contract in which pay- ment is the consideration for a forbearance to exercise a right of ac- tion which may have arisen from the breach of an agreement. If counterfeit coins, bank notes, or other moneys are given in per- formance of a promise to pay money, even though they are believed 1* Leake, Cont. 441 ; Startup v. Macdonald, 6 Man. & G. 593. 7 5 Anson, Cont (4tb Ed.) 272-274. ^e Ante, p. 420. " Post, p. 491. § 234) BY PERFOUMAXCE. 435 to be good, there is no payment. The promisee may treat it as a nullity.'® Where, for the purpose of making a payment, money is sent by the debtor to the creditor by mail, and is lost before it reaches him, it will discharge the debt, and the loss will fall on the creditor, if the remittance was in the manner authorized by him, but not other- wise.'^* Payment by Negotiable or Nonnegotiable Instrument. A negotiable instrument may be given for a sum due, either h'quidated or unliquidated. It is in effect a substitution of a new agreement for the old one, but it does not necessarily discharge the old agreement. Where such a payment is made, either in performance of an existing contract or in satisfaction of a broken contract, it may discharge the party mak- ing it, either absolutely or conditionally. Whether it has the one or the other of these effects depends upon the intention of the parties.®" If the instrument is accepted by the party entitled to payment, and in consideration thereof he promises, either expressly or impliedly, to dis- charge the other party altogether from his existing liabilities, the dis- charge of the original contract is absolute. The payee reUes then up- on the rights conferred by the instrument, and, if it is not paid, he must sue on it. He cannot sue on the original contract.®^ On the oth- 78 Markle v. Hatfield, 2 Johns. (N. Y.) 455, 3 Am. Dee. 446; Young v. Adams, 6 Mass. 182; Gilman v. Peck, 11 Vt. 516, 34 Am. Dec. 702; Blalock v. Pbillips. 38 Ga. 216; U. S. v. Morgan, 11 How. 154, 13 L. Ed. 043; First Nat. Bank V. Buchanan, 87 Tenn. 32, 9 S. W. 202, 1 L. R. A. 199, 10 Am. St. Rep. 617. He may be estopped, however, if he was guilty of negligence in receiving the counterfeit, or if, after discovery, he delays for an unreasonable time to re- tm-n it or notify the debtor. Thomas v. Todd, 6 Hill (N. Y.) 340; Pindall's Ex'rs V. Bank, 7 Leigh (Va.) 617; Rick v. Kelly, 30 Pa. 527; Wingate v. Neidlinger, 50 Ind. 520 ; Union Nat. Bank v. Baldenwick, 45 111. 375 ; Atwood V, Cornwall, 28 Mich. 336, 15 Am. Rep. 219. 78 Palmer v. Insurance Co., 84 N. Y. 63; Gurney v. Howe, 9 Gray (Mass.) 404, 69 Am. Dec. 299; Buell v. Chapin, 99 Mass. 594, 97 Am. Dec. 58; Kenyon v. Association, 122 N. Y. 247, 25 N. E. 299; Burr v. Sickles, 17 Ark. 428, 65 Am. Dec. 437; Williams v. Carpenter, 36 Ala. 9, 76 Am. Dec. 316; Gross v. Criss, 3 Grat (Va.) 262. so Cheltenham Stone & Gravel Co. v. Iron Works, 124 111. 623, 16 N. B. 923; Flanagin v. Hambleton, 54 Md. 222; Combination Steel & Iron Co. v. [Railway Co., 47 Minn. 207, 49 N. W. 744; Kirkpatrick v. Puryear, 93 Tenn. 409, 24 S. W. 1130, 22 L. R. A, 785; National Park Bank v. Levy, 17 R. I. 740, 24 Atl. 777, 19 L. R. A. 475; Case Mfg. Co. v. Soxman, 138 U. S. 431, 11 Sup. Ct. 360, 34 L. Ed. 1019; Craddock v. Dwight, 85 Mich. 587, 48 N. W. 644; Bank of Monroe v. Gifford, 79 Iowa, 300, 44 N. W. 558;' note 82, Infra. 81 Sard V. Rhodes, 1 Mees. & W. 153; Wolf v. Fink, 1 Pa. 4.35, 44 Am. Dec. 141; Ralston v. Wood, i5 111. 159, 58 Am. Dec. 604; Bausman v. Guarantee Co., 47 Minn. 377, 50 N. W. 490; Kirkpatrick v. Puryear, 93 Tenn. 409, 24 S. W. 1130, 22 L. R. A. 7S5; Susquehanna Fertilizer Co. v. White, 66 Md. 444, 7 Atl. 802, 59 Am. Rep. 186; Costar v. Davies, 8 Ark. 213, 46 Am. Dec. 311. 436 DISCHARGE OF CONTRACT. (Oil. 11 er hand, the instrument may be taken as a conditional discharge only ; and in England and in most of our states it is presumed to have been so taken unless there is something to show a contrary intention.^^ In such a case the position of the parties is that the payee, having certain rights against the other party under a contract, has agreed to take the instrument from him instead of immediate payment of what is due him, or immediate enforcement of his right of action, and the other party, in giving the instrument, has thus far satisfied the payee's claim ; but, if the instrument is not paid at maturity, the consideration for the payee's promise fails, and his original rights are restored to him. The eft'ect of receiving a negotiable instrument conditionally is merely to suspend the right to sue on the original contract until the instru- ment matures, and when it matures, and is not paid, to give the right to sue either on it or on the original contract.^ ^ The agreement is de- feasible upon condition subsequent; that is, upon nonpayment of the instrument when due. Payment, then, consists in the performance either of an original or substituted contract by the delivery of money, or of negotiable instru- ments conferring the right to receive money; and in this last event the payee may have taken the instrument in discharge of his right ab- solutely, or subject to a condition (which will be presumed, in the ab- sence of expressions to the contrary) that, if payment be not made 62 Sayer v. Wagstaff, 5 Beav. 423; Robinson v. Read, 9 Bam. & C. 449; Feldman v. Beier, 78 N. Y. 293-; Tbe Kimball, 3 Wall. 37, 18 L. Ed. 50; Bill V. Porter, 9 Conn. 23; Stewart Paper Mfg. Co. v. Ran, 92 Ga. 511, 17 S. E. 748; Morriss v. Han^eys, 75 Va. 726; Say re v. King, 17 W. Va. 562; Shep- herd V. Busch, 154 Pa. 149, 26 Atl. 363, 35 Am. St. Rep. 815; Sebastian May Co. V. Codd, 77 Md. 293. 26 Atl. 316; Akin T. Peters, 45 Ark. 313; Belleville Sav. Bank v. Boruman, 124 111. 200, 16 N. E. 210; Case v. Seass, 44 Mich. 195, 6 N. W. 227 ; Fii-st Nat. Bank v. Case, 63 Wis. 504, 22 N. W. 833. But the presumption is reversed where the note of a third person is given with- out guaranty or indorsement, on account of a contemporaneous debt. Whit- beck V. Van Ness, 11 Johns, (N. Y.) 409, 6 Am. Dec. 383 ; Noel v. Murray, 13 N. Y. 167; Deford v, Dryden. 46 Md. 248; Bicknall v. Waterman, 5 R. I. 43. And see FORD v. MITCHELL^ 15 Wis. 304. But see Devlin v. Chamblin, 6 Minn. 468 (Gil. 325) ; Mclntyre v. Kennedy, 29 Pa. 448. In Massachusetts and several other states the presumption is that the instrument was intended to be accepted as an absolute discharge. Dodge v. Emerson, 131 Mass. 467; Melian v. Thompson, 71 Me. 492; Mason v. Douglas, 6 Ind. App. 558, 33 N. E. 1009; Smith v. Bettger, 68 Ind. 254, 34 Am. Rep. 256; Teal v. Spangler, 72 Ind. 380; Nixon v. Beard, 111 Ind. 137, 12 N. E. 131; Hadley v. Bordo, 02 Vt. 285, 19 Atl. 476. These various presumptions may be rebutted by evi- dence of a different intention. Norton, Bills & N. (3d Ed.) 19. 8 3 Sayer v. Wagstaff, 5 Beav. 423; Happy v. Mosher, 48 N. Y. 313; HaU V. Richardson, 16 JNId. 396, 77 Am. Dec. 303; Lupton v. Freeman, 82 Mich. 638, 40 N. W. 1042; ^Morrison v. Smith, 81 111. 221; Fry v. Patterson, 49 N. .7. Law, 6, 12, 10 Atl. 390; Hays v. McClurg, 4 Watts (Pa.) 452; Barnet v. Smith, 30 N. H. 256, 64 Am. Dec. 200. See, also, the cases cited in note 82, supra. § 234) BY PEKFOKMAXCE. 437 when the instrument falls dvie, the parties revert to their original rights, whether those rights are, so far as the payee is concerned, rights to the performance of a contract, or rights to satisfaction for the breach of one.^* Application of Payments. Where a person owes several debts to another, or owes on an ac- count consisting of several different items, and makes a part payment, the question arises as to which debt is discharged. As a rule, the debtor has a right to say which debt he will pay, and he may show his intention in this respect by his conduct, or it may otherwise be in- ferred from the circumstances.^^ If the creditor receives the payment, he is bound to apply it as expressly or impliedly directed.®' If the debtor does not direct the application, at the time of the pay- ment,^ ^ the creditor, as a rule, may apply it as he may see fit.®* He may apply it, for instance, to a debt which is barred by the statute of limita- 84 Robinson v. Read, 9 Barn. & C. 449; Saj^er v. Wagstaff, 5 Beav. 41.5. 85 stone V. Seymour, 15 Wend. (N. Y.) 19; Seymour v. Van Slyck, 8 Wend. (N. Y.) 403; Tayloe v. Sandiford, 7 Wheat. 13, 5 L. Ed. 3S4; Fowke v. Bowie, 4 Har. & J. (Md.) 566; Hansen v, Rounsavell, 74 111. 238; Stewart v. Keith, 12 Pa. 238; Sawyer v. Tappan, 14 N. H. 352. 8 6 Patty V. Milne, 16 Wend. (N. Y.) 557; Miln v. Patty, 22 Wend. (N. Y.) 558; Ellis v. Mason, 32 S. C. 277, 10 S. E. 1069; Washington Natural Gas Co. V. Johnson. 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553; Atkinson v. Cox, 54 Ark. 444, 16 S. W^ 124 ; Stewart v. Hopkins, 30 Ohio St. 502 ; Wetherell V. Jay, 40 Me. 325; Champenois v. Fort, 45 Miss. 355; Runyan v. Latham, 27 N. C. 551. Cf. Flarsheim v. Brestup, 43 Minn. 298, 45 N. W. 438. 87 Pearce v. Walker, 103 Ala. 250, 15 South. 568. 88 Mayor, etc., of Alexandria v. Patten, 4 Cranch, 317, 2 L, Ed. 033; Hard- ing V. Tiff t, 75 N. Y. 461 ; First Nat. Bank v. Johnson, 65 Vt. 382, 26 Atl. 634 ; Whitaker v. Groover, 54 Ga. 174 ; Jones v. Williams, 39 Wis. 300 ; Case v. Fant, 3 C. C. A. 418, 53 Fed. 41 ; Henry Bill Pub. Co. v. Utley, 155 Mass. 360, 29 N, E. 635; Lee v. Early, 44 Md. SO; Senter r. Williams (Ark.) 17 S. W. 1029; Beck v. Haas, 111 Mo. 2l>±, 20 S. W. 19, 33 Am. St. Rep. 516; Howard v. McCall, 21 Grat. (Va.) 205; Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 Am. St. Rep. 258; Jefferson v. Church of St. Matthew, 41 Minn. 392, 43 N. W. 74; Byi'nes V. Claffey, 69 Cal. 120, 10 Pac. 321; Koch v. Roth, 150 111. 212, 37 N. E. 317. The creditor cannot, without the debtor's consent, apply the payment to an illegal claim. Phillips v. Moses, 65 Me. 70; Pickett v. Bank, 32 Ark. 346; McCausland v. Ralston. 12 Nev. 195, 28 Am. Rep. 781; Caldwell v. Went- worth, 14 N. H. 431; Bancroft v. Dumas, 21 Vt. 456; Rohan v. Hanson, 11 Cush. (Mass.) 44; Kidder v. Norris, 18 N. H. 532; unless the debtor consents. Brown v. Burns, 67 Me. 535; Feldman t. Gamble, 26 N. J. Eq. 494. But he may apply it to a debt which is merely unenforceable, and not illegal. Haynes V. Nice, 100 Mass. 327, 1 Am. Rep. 109; Ayer v. Hawkins, 19 Vt. 26; Murphy V. Webber, 61 Me. 478. He cannot apply it to a debt not yet due. Heard v. Pulaski, 80 Ala. 502, 2 South. 343; Bobe's Heirs v. Stickney, 36 Ala. 482. The application must be made Avithin a reasonable time, or it will be ap- plied by law. Harker v. Conrad, 12 Serg. ^V:; R. (i'a.) 301, 14 Am. Dec. 691. 438 DISCHARGE OP CONTRACT. (Cb. 11 tions, in preference to another which is not barred.'® Having once made the appHcation, he cannot change it without the debtor's con- sent."" If neither party makes an appropriation of the payment, the law will apply it. According to the civil law, the presumable intention of the debtor was resorted to as the rule to determine the application, and, in the absence of express declaration by either party, the payment was applied in the way that would be most beneficial to the debtor. "The payment was consequently applied to the most burdensome debt, — to one that carried interest, rather than to that which carried none ; to one secured by a penalty, rather than to that which rested on a sim- ple stipulation; and, if the debts were equal, then to that which had been first contracted." "^ This rule has been adopted in a number of cases both in England and in this country. In a well-considered New- York case the rule was approved after a full review of the authorities, and a payment was applied to a mortgage and a judgment debt in preference to an account, because the former would bear most heavily on the debtor.^ 2 Many of the courts, on the other hand, have adopted a rule to some extent directly opposed to the civil-law rule. "If the application is made by neither party," it has been said by the supreme court of the United States, "it becomes the duty of the court, and in its exercise a sound discretion is to be exercised. It cannot be conced- ed that this application is to be made in a manner most advantageous to the debtor. * * * j^ would seem reasonable that an equitable application should be made ; and, it being equitable that the whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious." In this case the payment was applied to other demands rather than to a judgment debt, on the ground that the former were not so well secured.^^ Probably 88 Jackson v. Burke, 1 Dill. 311, Fed. Cas. No. 7,133; Ayer v. Hawkins, 19 Vt. 26; Williams v. Griffith, 5 Mees. & W. 300; Waugli v. Cope, 6 Mees. & W. 824; Murphy v. Webber, 61 Me. 478; Pond v. AVilliams, 1 Gray (Mass.) 630; Ramsay v. Warner, 97 Mass. 8; Beck v. Haas, 31 Mo. App. 180. But see Id., Ill Mo. 264, 20 S. W. 19, 33 Am. St. Rep. 516. 80 Offutt V. King, 1 McArthnr (D. C.) 312; Pearce v. Walker, 103 Ala. 250. 15 South. 568; Cremer v. Higginson, 1 Mason, 337, Fed. Cas. No. 3,383; Mc- Master v. Merrick, 41 Mich. 505, 2 N. W. 895. Nor can the creditor be com- pelled to change the application. JelTerson v. Chm-ch of St. Matthew, 41 Minn. 392, 43 N. W. 74 ; Seymour v. Marvin, 11 Barb. (N. Y.) 80. 91 Devaynes v. Noble (Clayton's Case), 1 Mer. 572, 606. 92 Pattison v. Hull, 9 Cow. 747; Bacon v. Brown, 1 Bibb (Ky.) 334, 4 Am. Dec. 623; Jones v. Benedict, 83 N. Y. 79; Hey ward v. Lomax, 1 Vem. 24; Prowse V. Worthinge, 2 Brown & G. 107; Neal v. Allison, 50 Miss. 175; Gwinn v. Whitaker's Adm'x, 1 Har. & J. (Md.) 754; Dorsey v. Gassaway. 2 Har. & J. (Md.) 402; Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 Am. St. Rep. 2.58; Robinson v. Doolittle, 12 Vt. 246; Moore v. Kiff, 78 Pa. 96. 93 Field V. Holland, Cranch, 27, 3 L. Ed.. 136. And see Bm-ks v. Albei-t, § 234) BY PERFORMANCE. 439 most of the courts in tliis country follow the rule just stated, though with some qualification. It is very generally said that an equitable ap- plication will be made ; that is, that the payment will be applied accord- ing to the justice of the particular case, in view of all the circumstan- ces.®* Such a rule is not very dcfmite. Is it more equitable to give effect to the civil-law rule, and apply the payment as would be most beneficial to the debtor, or to follow the opposite rule, and consider the creditor's interests? The Minnesota court, in stating the rule, has thus qualified it: "It is true that, where the parties have not made any specific application of payments, courts will make it according to the justice and equity of the case; but in doing so they are governed by certain general and established rules, and are not at liberty to adopt their own notions of what may be just and equitable in each particular case." ®' One of these rules is that, where there is but one continuous account of several items, "the payments will be applied on the account according to the priority of time, — that is, the first item on the debit side is discharged or reduced by the first item on the credit side;" and so, where there are several debts of equal dignity, a payment will gen- erally be applied to the oldest.®^ As we have seen, when we get be- yond this, there is a conflict of opinion.®^ 4 J. J. Marsh. (Ky.) 97, 20 Am. Dec. 209; Gardner v. Leek, 52 Minn. 522. 54 N. W. 746; Leeds v. Gifford, 41 N. J. Eq. 464, 5 Atl. 795; The D. B. Steel- man (D. C.) 48 Fed. 580; Stamford Bank v. Benedict, 15 Conn. 437; Hilton V. Burley, 2 N. H. 193. In a latei* case, under the same rule (the rule of equitable application), the payments were so applied as to operate bene- licially to the sureties of the debtor, and against the creditor. United States V. Kirkpatrick, 9 Wheat. 737, 6 L. Ed. 199. 94 Smith V. Loyd, 11 Leigh (Va.) 512, 37 Am. Dec. 621; Stone v. Seymour, 15 Wend. (N. Y.) 19; White v. Trumbull, 15 N. J. Law, 314, 29 Am. Dec. 687; Allen v. Culver, 3 Denio (N. Y.) 284; Pierce v. Knight, 31 Vt Tol ; Crompton v. Pratt, 105 Mass. 255. 05 Hersey v. Bennett, 28 Minn. 86, 9 N. W. 590. 41 Am. Rep. 271. And see Miller v. Miller, 23 Me. 22, 39 Am. Dec. 597; Bobe's Heu-s v. Stickney, 36 Ala. 482. 8 6 Devaynes v. Noble (Clayton's Case), 1 Mer. 572; Hersey v. Bennett, 28 Minn. 8nce Co., 130 111. 660. 22 N. E. 518. Cf. Davis v. Bronson, 2 N. D. 300, 50 N. W. 836, 16 L. K. A. 655. 33 Am. St. Rep. 783. But a plaintiff may not after repudiation by the defendant go on with performance, and thereby increase his damages by a useless performance. CLARK V. MAKSIGLIA, 1 Denio (N. Y.) 317, 43 Am. Dec. 670; LORD v. THOMAS, 64 N. Y. 107; GIBBONS v. BENTE, 51 Minn. 499, 53 N. W. 756. 22 L. R. A. 80; COLLYER v. MOULTON, 9 R. I. 90. 98 Am. Dec. 370; Heaver v. Lanahan, 74 Md. 493. 22 Atl. 263: Chicago Bldg. & ]\Ifg. Oo. V. Barry (Tenn. Ch. App.) 52 S. W. 451; Peck & Co. v. Coriiigating Co., 96 Mo. App. 212, 70 S. W. 169. 124 Avery v. Bowden, 5 El. & Bl. 714. §§ 239-240) BY BREACH. 447 when, and under conditions such that, he is or might be entitled to require performance." ^^'* In the Course of Performance. It may also happen that, in the course of performance of a contract, one of the parties may, by word or act, deliberately and avowedly refuse performance on his part. In such a case the other party is exonerated from a continued performance of his promise, and is at once entitled to bring action.^-" Illustrations of such a discharge are furnished by those cases in which a person contracts for the manufac- ture and supply of goods to be delivered in certain quantities at speci- fied dates, and, after delivery of a part, the buyer notifies the seller not to deliver any more. In such a case, in an action by the sellers, in which they averred readiness and willingness to deliver the rest of the goods, and that they had been prevented from doing so by the buyer, it was contended by the buyer that they should show, not merely readiness and willingness to deliver, but actual delivery. The court, however, held the contrary, and stated the principle thus: "When there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more as he has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, with- out manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract; and * * * he is entitled to a verdict on pleas traversing allegations that he was ready and willing to perform the contract, that the defendant refused to accept the residue of the goods, and that he prevented and dis- charged the plaintiff from manufacturing and delivering them." ^^^ 128 DANIELS V. NEWTON, 114 Mass. 530, 19 Am. Rep. 384. And see Stan- ford V. McGill, 6 N. D. 530, 72 N. W. 93S, 38 L. R. A. 7G0. Cf. Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. 12 6CORT V. RAILWAY CO., 17 Q. B. 127; Textor v. Hutchings, 62 Md. 150; Hosmer v. Wilson, 7 Mich. 293, 74 Am. Dec. 710; DERBY v, JOHNSON, 21 Vt. 17; James v. Adams, 16 W. Va. 245; Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 302; PARKER v. RUSSELL, 133 Mass. 74; Haines v. Tucker, 50 N. H. 311 ; McCormick v. Basal, 40 Iowa, 235 ; Smith v. Lewis, 24 Conn. 624, 03 Am. Dec. 180 ; Amsden v. Atwood, 68 Vt 322, 35 Atl. 311 ; North V. Mallory, 94 Md. 305, 51 Atl. 89. 127 CORT V. RAILWAY CO., 17 Q. B. 127. 448 DISCUARGE OF CONTRACT. (Ch. 11 SAME— IMPOSSIBILITY CHEATED BY PARTY. 241. If a party to a contract, eitier before the time for performance or in tlie course of performance, makes performance, or fur- ther performance, by him impossible, the other party is dis- charged, and may sue at once for breach of contract. If before the time for performance has arrived one of the parties, by his own act, makes it impossible to perform, the other is discharged, and may sue at once for a breach, as in case of renunciation.^-^ Where a lessee, for instance, had promised to assign to another, at any time within seven years from the date of the promise, all his interest in the lease, but before expiration of the seven years assigned his whole interest to another person, it was held that he could be sued at once for breach of contract. "The plaintiff," it was said in that case, "has a right to say to the defendant: 'You have placed yourself in a situation in which you cannot perform what you have promised. You promised to be ready during the period of seven years, and during that period I may at any time tender you the money and call for an assignment, and expect that you should keep yourself ready; but, if I now were to tender you the money, you would not be ready.' That is a breach of the contract." ^^® The rule applies where a person promises to execute a lease for a certain term, or a conveyance, and, before the time for executing arrives, executes a conveyance, or a lease covering that term, to another; ^^° or where a person promises to sell specific goods on a certain day, and, before that day, sells them to another; ^^^ or where a person promises to marry, and, before the time for performance arrives, marries another than the promisee.^^^ The rule is the same where a party to a contract, by his voluntary act, in the course of performance, makes performance by him impos- 128 Lovelock V. Franklyn, 8 Q. B. 371; Ford v. Tiley, 6 Barn. & C. 325; BowcTell V. Parsons, 10 East, 359; Crabtree v. Messersmith, 19 Iowa, 179; WOLF V. MARSH, 54 Cal. 228; Loveriug v. Lovering, 13 N. H. 513; New- comb V. Brackett, 16 Mass. 161; DELAMATER v. MILLER, 1 Cow, (N. T.) 75, 13 Am. Dec. 512; Bolles v. Sacbs, 37 Minn. 315, 33 N. W. 862. 120 Lovelock v. Franklyn, 8 Q. B. 371. 130 Ford V. Tiley, 6 Barn. & O. 325; Synge v. Synge (1894) 1 Q. B. 466; Nowcomb V. Brackett, 16 Mass. 161; Bassett v. Bassett, 55 Me. 127. Contra, Webb V. Stephenson, 11 Wash. 342, 39 Pac, 952; Garberino v. Roberts, 109 Cal. 125, 41 Pac. 857. 181 Bowdell V. Parsons, 10 East, 359; Hawley v. Keeler, 53 N. Y. 114; Smith V. Jordan. 13 Minn. 264 (Gil. 246), 97 Am. Dec. 232; Crist v. Armour, 34 Barb. (N. Y.) 378; Easlon v. .Tones, 193 Pa. 147, 44 Atl. 264. 132 SHORT V. STONE, 8 Q. B. 358; King v. Kersey, 2 Ind. 402; Sheahan v. Barr?', 27 ^Nlich. 217; Brown v. Odill, 104 Tenn. 250, 56 S. W. SiO, 52 L. R. A. 660, 78 Am. St. Rep. 914. § 242) Br BREACH. 449 sible."^ An illustration is afforded in a case in which the plaintiff had been engaged by the defendants, for a certain sum, to write a treatise for a serial published by them. The plaintiff incurred ex- pense in preparing his work, and actually completed a part of it, but before it was delivered to the defendants they abandoned the publi- cation of the serial. The plaintiff sued them on the special contract, and also on the quantum meruit for the work and labor expended b> him on the treatise. It was argued that he could not recover upon the quantum meruit because, his part of the original contract being unperformed, the contract was not wholly at an end ; but the court held that the abandonment of the publication put an end to the con- tract, and constituted a discharge.^^* BREACH BY FAILURE OF PERFORMANCE. 242. Whether or not failure of one party to perform the contract in •whole or in part operates as a discharge of the other, or mere- ly gives him a right of action for the breach, depends upon the nature of the respective promises, or, in other ivords, on the question •whether they are^ (a) Independent of each other, in xirhich case, as a rule, there is no discharge. (b) Conditional upon each other, in ivhich case, as a rule, there is a discharge. In the cases of discharge by breach v/ith which we have thus far dealt, the party at fault so deals with the contract, by word or act. as to intimate to the other party that performance, or further per- formance, as the case may be, on his part, is needless. In such cases, as we have seen, the courts hold that the party not in default is not bound to tender performance, but may consider the contractual tie broken, and sue at once for the other's breach. These cases are verv clear and simple ; but where the breach by one party does not make the contract wholly incapable of performance, and is not accom- 133 O'Neill V. Armstrong [1895] 2 Q. B. 70; Woolner v. Hill, 93 N. Y. 576; Ix)VGll V. Insurance Co., Ill U. S. 2G4, 4 Sup. Gt. 39€, 28 K Ed. 423; Chicago V. Tilley, 103 U. S. 146, 26 L. Ed. 371; HINCKLEY v. STEEL CO., 121 U. S. 264, 7 Sup. Ct 875, 30 L. Ed. 967 ; Western Union Telegi-aph Co. v. Semmes, 73 Md. 9, 20 Atl. 127. 13 4 PL.iNCn£ V. COLBURN, 8 Bing. 14. So, also, where a person had lieen employed by a corporation for a number of years, and the company was Toluntarily wound up before tbe time had expired, so tiiat further performance by it was rendered impossible, the employ^ was permitted to sue at once for the breach of contract. Ex parte Maohire, L. R. 5 Ch. App. 737. And see Seipel V. Trust Co., 84 Pa. 47; UNITED STATES v. BEHAN, 110 U. S. 338, 4 Sup. Ct. 28, 28 L. Ed. 168; Newhall Engineering Co. v. Daly, 116 Wis. 256, 93 N. W. 12. Clark Cont. (2d Ed.)— 29 450 DISCHARGE OF CONTRACT. (Ch. 11 panied by any overt expression of intention to abandon his rights, it is not always easy to determine whether the other party is thereby discharged, or whether he merely acquires a right of action for the breach. It is necessary in these cases to look to the terms of the con- tract, and ascertain the intention of the parties as to the nature of their respective promises. The difficulties resolve themselves into the question whether the promises of the parties are independent of, or conditional upon, one another,^^'^ This question must be discussed at some length; but it may be well to state at the outset that, as a general rule, failure of a party to perform his promise does not dis- charge the other from liability to perform his, if the promises are inde- pendent of each other ; but that it is, as a rule, otherwise, if the prom- ises are conditional upon one another. SAME— INDEPENDENT PROMISES. 243. Failure of one of the parties to a contract to perform an in- dependent promise does not discharge the other party from lia- bility to perform, bnt merely gives him a right of action for the breach. 244. A promise may be independent in the following ways: (a) It may be absolute, — that is, Ttrholly unconditional upon perform- ance by the other party; but promises, each of Tvhich forms the Tehole consideration for the other, -will not be held in- dependent of one another, unless the intention of the parties to make them independent is clear. (b) It may be divisible, — that is, the promise may be susceptible of more or less complete performance, and the damage sus- tained by an incomplete performance or partial breach may be apportioned according to the extent of the failure. (c) It may be subsidiary, — that is, the promise broken may be a term of the contract tvhich the parties have not regarded as vital to its existence. Absolute Promises. If a person makes a promise to another in consideration of a promise by the latter to him, and has not in express terms, or upon a reason- able construction of the contract, made the performance of his promise depend upon performance by the other party, he is not discharged by the latter's breach of his promise.^^^ He has given his promise in 135 Anson, Cont. (4th Ed.) 286. 136 THOKPE V. THORPE, 12 Mod. 45-5; THOMAS v. CADWALLADER, Willes, 496; WARE v. CHAPPELL, Style, 186; Dey v. Dox, 9 Wend. (N. Y.) 129, 24 Am. Dec. 137; Long v. Caffrey. 93 Pa. 526; Hard v. Seeley, 47 Barb. (N. Y.) 428; Barnett v. Franklin College, 10 Ind. App. 103. 37 N. E. 427; Kauffmaii v. Kaeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; and cases hereafter cited. §§ 243-244) BY BREACH. 451 consideration of the promise of the other party, and not in consider- ation of performance by the latter of his promise. In other words, he has accepted the latter's HabiHty in return for his own promise. When it has once been determined that mutual promises are abso- lute and independent of each other, there can be little difficulty in applying the law ; but it is often very difficult to decide as to the char- acter of a promise in this respect, and this difficulty has resulted in much conflict between the cases. The old cases turned upon a very technical construction of terms, ^^'^ but the modern cases show that the tendency of the courts is not to construe promises to be absolute and independent of one another, where they form the whole consid- eration for one another, unless there is some very definite expression of an intention of the parties to that effect.^^^ "Whether covenants be or be not independent of each other must depend on the good sense of the case, and on the order in which the several things are to be done." ^^® The order in which the things are to be done is a very sure test for determining whether promises are absolute or not.^*° "When it appears that one of two covenants or promises is to be performed 137 Rolle, Abr. p. 518; WAKE v. CHAPFELL, Style, 186, and see GLAZE- BROOK V. WOODROW, 8 Term R. 366. In 15 Hen. VII. p. 10, pi. 17, for in- stance, it was held that if A. covenant with B. to serve him for a year, and B. covenant with A. to give him a certain sum of money, and does not say "for the cause aforesaid," A. shall have an action for the money, though he never serves B., hut that it is otherwise if B. says that A. shall have the money "for the cause aforesaid." See 2 Pars. Cont. note r, in which the old and modern cases are collected, and the law reviewed at length. 138 Anson, Cont. (4th Ed.) 289; MORTON v. LAMB, 7 Term R. 125; GRAVES V. LEGG, 9 Exch. 709; Dakin v. Williams, 11 Wend. (N. Y.) 67; Dey V. Dox, 9 Wend. (N. Y.) 129, 24 Am. Dec. 137; Bank v. Hagner, 1 Pet. 455, 7 L. Ed. 219 ; Quigley v. De Haas, 82 Pa. 267 ; Lutz v. Thompson, 87 N. C. 334; Hamilton v. Thrall, 7 Neb. 210; Davis v. Jeffris, 5 S. D. 352, 58 N. W. 815; post, p. 461. 130 MORTON V. LAMB, 7 Term R. 125; STAVERS v. CURLING, 3 Bing. N. C. 355; Proprietors of Mill-Dam Foundry v. Hovey. 21 Pick. (Mass.) 417; Lowber v. Bangs, 2 Wall. 728, 17 L. Ed. 768; Philadelphia, W. & B. R. Co. V. Howard, 13 How. 307, 14 L. Ed. 157; City of New Orleans v. Texas & P. Ry. Co., 171 U. S. 312, 18 Sup. Ct 875, 883, 43 D. Ed. 178. 140 MATTOCK V. KINGLAKE, 10 Adol. & E. 50; Couch v. Ingersol, 2 Pick. (Mass.) 292; Robson v. Bohn, 27 Minn. 333, 7 N. W. 333; State v. Rail- road Co., 21 Minn. 472; McCoy's Adm'rs v. Bixbee's Adm'r, Ohio, 310, 27 Am. Dec. 258; Slater v. Emerson, 19 How. 224, 15 L. Ed. 626; Front St. M. & O. R. Co. V. Butler, 50 Cal. 574; PHILLIPS & COLBY CONST. CO. v. SEYMOUR, 91 U. S. 646, 23 L. Ed. 341; Americal Emigrant Co. v. Adams County, 100 U. S. 61, 25 L. Ed. 563; Standard Gaslight Co. v. Wood, 61 Fed. 74, 9 C. C. A. 362; LOUD v. WATER CO., 153 U. S. 564, 14 Sup. Ct. 928, 38 L. Ed. 822 ; Reindl v. Heath, 115 Wis. 219, 91 N. W. 734. "Where the act of one party must necessai'ily precede any act of the other, as where one stipulates to manufacture an article from materials to be furnished By the other, and the other stipulates to furnish the materials, the act of furnishing the materials necessarily precedes the act of manufacturing, aud will con- 4.52 DISCHARGE OF CONTRACT. (Cb. 11 at an earlier date than the other, * * * the rule is simple and uniform, namely, that the covenant or promise that is to be per- formed first is independent and absolute, while the one that is to be performed last is dependent, the performance of the former being a condition precedent to the performance of the latter." ^*^ Where a person makes a promise to another to convey land, for instance, the date of performance not being fixed, and the other party, in consid- eration thereof, promises to pay a sum of money at a fixed date, it has been held that the payment is independent of the promise, and that, "a time being fixed for payment, and none for doing that which was the consideration for the payment, an action lies for the pur- chase money, without averring performance of the consideration." ^*^ Where, on the other hand, mutual promises are to be performed at the same time, as where a person promises to convey land or deliver goods to another on a certain day, and the latter, in consideration thereof, promises to pay a sum of money on that day, neither can maintain an action on the other's promise without performing, or offering to perform, his part; and it makes no difference that it does not appear which promise was to be first performed.^ *^ Neither this nor any other test, however, can be relied upon in all cases, for often it does not appear when or in what order promises stltute a condition precedent witliout express words." Proprietors of Mill- Dam Foundry v. Hovey, 21 Tick. (Mass.) 417. 141 Langd. Sum. Cont. § 122; Dey v. Dox, 9 Wend. (N. Y.) 129, 24 Am. Dec. 137. 142 MATTOCK V. KINGLAKE, 10 Adol. & B. 50. And see Goldsborough V. Orr, 8 Wheat. 217, 5 L. Ed. 600; Bean v. Atwater, 4 Conn. 3, 10 Am. Dec. 91; Edgar v. Boies, 11 Serg. & R. (Pa.) 445; Lowry v. Mehaffy, 10 Watts (Pa.) 387; KANE v. HOOD, 13 Pick. (Mass.) 281; Headley v. Shaw, 39 111. 354; Tronson t. University, 9 N. D. 559, 84 N. W. 474. "Where a con- tract for the sale of land provides for partial payments of the purchase money prior to delivery of the deed, the vendor may sue for such install- ments when due without tendering a conveyance. Paine v. Brown, 37 N. Y. 228; Harrington v. Higgins. 17 Wend. (N. Y.) 376. But when, after the installments are all due, the vendor brings an action for the purchase money, he is not entitled to recover without proving an offer before suit to convey. * * * When the last installment falls due, the payment of the whole of the unpaid purchase money and the conveyance of the land become de- pendent acts. BEECHER v. CONRADT, 13 N. Y. 108, 64 Am. Dec. 53.5. And the same rule applies when an action is brought for any installment pay- able at or after the term fixed for the delivery by the deed. EDDY v. DAVIS, 116 N. Y. 247, 22 N. E. 362, 363. See, also, GRANT v. JOHNSON, 5 N. Y. 247; McCroskey v. Ladd, 96 Cal. 455. 31 Pac. 558; First Nat. Bank v. Spear, 12 S. D. 108, 80 N. W. 106; Shelley r. Mikkelson, 5 N. D. 22, 63 N. W. 210. Contra, SHEEREN v. MOSES, 84 111. 448. See Harriman, Cont. §§ 321, 322. 143 See the cases above cited; Williams v. Hcaley, 3 Denio (N. Y.) 303l Gazley v. Price, 16 Johns. (N. Y.) 267 ; post, p. 459. §§ 243-244) BY BREACH. 453 are to be performed. The question in each case is what intent is dis- closed by the language employed.^*'* Promises the Perfoniiance of Which is Divisible. Contracts frequently occur in which the promise of one or both parties admits of a more or less complete performance, and the dam- age sustained by an incomplete performance or partial breach of which may be apportioned according to the extent of failure. The per- formance of the promise in such cases is said to be divisible. The promise is in fact regarded as a number of promises to do a number of similar acts, and a breach of one or some of them does not discharge the other party. ^*^ On the other hand, the promise may be indi- visible or entire, and if it is so, and is not independent of the promise of the other party as heretofore explained, its entire performance is, as a rule, a condition concurrent or precedent to the liability of the other party to perform. ^^" The question of divisibility is difficult, and this difficulty has re- sulted in a direct conflict in the decisions. The question is one of construction. "The contract may be entire or severable, according to the circumstances of each particular case," it has been said in speaking of contracts of sale, "and the criterion is to be found in the question whether the whole quantity — all of the things as a whole — is of the essence of the contract. If it appear that the purpose was to take 144 Loud V. Water Co., 153 U. S. HfH, 14 Sup. Ct. 928, 38 L. Ed. 822; Phil- adelphia, W. & B. R. Co. V. Howard, 13 How. 307, 14 L. Ed. 157; Foley v. Dwyer, 122 Mich. 587, 81 N. W, 5G9; Griggs v. Moors, 1G8 Mass. 354, 47 N. E. 128. 145 RITCHIE V. ATKINSON, 10 East, 295; Norris v. Harris, 15 Cal. 22G; McGrath v. Cannon, 55 Minn. 457, 57 N. W. 150 ; Potsdamer v. Kruse, 57 Minn. 193, 58 N. W. 983 ; Fullmer v. Proust, 155 Pa. 275, 26 Atl. 543. 35 Am. St. Rep. 881 ; Gill V. Lumber Co., 151 Pa. 534, 25 Atl. 120 ; Ming v. Corbin, 142 N. Y. 334, 37 N. E. 105. Even where there is an entire contract for the sale of goods, although if the seller delivers a quantity less than he contracted to sell the buyer may reject them, it is generally held that if the buyer accepts them he must pay for them at the contract price, although the seller fails to de- liver the rest. OXENDALE v. WETHERELL, 4 Man. & R. 429; Bowker v. Hoyt, 18 Pick. (Mass.) 555; Booth v. Tyson, 15 Vt. 515; Clark v. Moore, 3 Mich. 55; Richards v. Shaw, 67 111. 222; Polhemus v. Heiman, 45 Cal. 5(3; :McDonough v. Marble Co., 112 Fed. 634, 50 C. C. A. 403. Contra, Champlin v. Rowley, 18 Wend. (N. Y.) 187, 13 Wend. (N. Y.) 258 ; CATLIN v. TOBIAS, 26 N. Y. 217, 84 Am. Dec. 183; Nightingale v. Eisenian, 121 N. Y. 288, 24 N. E. 475; Haslack v. Mayers, 26 N. J. Law. 284; Witherow v. Witherow, 16 Ohio, 238. Even in New York the seller can recover, if the acceptance of part is made under such circumstances as to be a -waiver of full perform- ance, as where he is informed by the seller that he will not deliver the rest. Avery v. Wilson, 81 N. Y. 341, 37 Am. Rep. 503; Silberman v. Fretz, 16 Misc. Rep. 449. 38 N. Y. Supp. 151. iisHartupee v. Crawford (C. C.) 56 Fed. 61; Widman v. Gay, 104 Wis. 277, SO N. W. 450. 454 DISCHARGE OF CONTRACT. (Cb. 11 the whole or none, then the contract would be entire ; otherwise, it would be severable. * * * 'Qn the whole, the weight of opinion and the more reasonable rule would seem to be that, where there is a purchase of different articles, at different prices, at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject- matter or by the act of the parties.' This rule makes the interpretation of the contract depend on the intention of the parties as manifested by their acts, and by the circumstances of each particular case." ^^"^ Though this was said in reference to contracts of sale, the reason applies to other contracts as well.^*^ In a leading case the plaintiff had promised to take his ship to a port, and there load a complete cargo, and to deliver the same on being paid freight. He came away with an incomplete cargo, and the defendant refused to pay any freight on the ground that the com- pleteness of the cargo was a condition precedent to any payment being due. Lord Ellenborough said that whether it was so or not depended, "not on any formal arrangement of words, but on the rea- son and sense of the thing, as it is to be collected from the whole contract; * * * here the delivery of the cargo is in its nature divisible, and therefore I think it is not a condition precedent; but the plaintiff is entitled to recover freight in proportion to the extent of such delivery, leaving the defendant to his remedy in damages for the short delivery." ^*® Same — Delivery by Installments. / Where there is a contract for the sale of goods deliverable in / installments, which are to be paid for on delivery, and the seller I makes defective delivery in respect to one installment, or the buyer fails to take delivery or to pay for an installment, the question arises whether the breach gives rise merely to a claim for compensation, or to a right to treat the whole contract as repudiated. It is difficult to reconcile the English decisions, some of which have held that a refusal to deliver or accept a particular installment is a breach going to the root of the contract, ^''^ and others have held the contrary.^ ^^ The leading case in the affirmative is HOARE v. RENNIE."'*" In that case the defendant agreed to buy from the plaintiff 667 tons of iron, to be shipped from Sweden in about equal portions in each of the V 147 Wooten V. Walters, 110 N. C. 251, 14 S. E. 734. 148 Broumel v. Rayner, 68 Md. 47, 11 Atl. 833. 1*0 lUTClilE V. ATKINSON, 10 East, 295. 180 HOARE V. RENNIE, 5 Hurl. & N. 19; HONCK v. MULLER, 7 Q. B Oiv. 92. 151 .TONASSOHN v. YOUNG, 4 Best & S. 290; SIMPSON v. GRIPPIN, L. R. 8 Q. B. 14; FREIuTH v. BURR, L. R. 9 C. P. 20ii. 1025 Hurl. & N. 19. §§ 243-2tW:) BY BUEAcn. 455 months of June, July, August, and September, and the plauitiff shipped only 20 tons in June, which the defendant refused to accept. It was held that delivery at the time specified was a condition precedent, and that the plaintiff could not maintain an action against the de- fendant for not accepting. The leading case in the negative is SIMP- SON V. CRIPPIN.'" In that case the defendant had agreed to supply the plaintiff with 6,000 or 8,000 tons of coal, to be delivered in the plaintiff's wagons at the defendant's colliery in equal monthly quanti- ties during the period of 12 months from July ist. During July the plaintiff sent wagons for 158 tons only, and on August ist the de- fendant wrote that the contract was canceled on account of the plaintiff's failure to send for the full monthly quantity in the preceding month. It was held, in an action on the defendant's refusal to go on with the contract, that the breach in failing to send wagons in suffi- cient numbers in the first month, though a ground for compensation, did not justifv the defendant in rescinding the contract. Finallv, in MERSEY STEEL & IRON CO. v. NAYLOR,^=* it was decided that failure of the buyer to pay for the first installment upon delivery, unless the circumstances evince an intention on his part to be bound no longer by the contract, does not entitle the seller to rescind. The rule in England appears to be established by this decision that it is a ques- tion depending on the terms of the contract and the circumstances in the case whether the breach of contract is a repudiation of the whole contract, giving a right to put an end to it, or whether it merely gives rise to a claim for compensation. In this countrv the same conflict has existed, some cases following HOARE V. RENNIE ^" and some SIMPSON v. CRIPPIN.^" In/'' 168 L. R. 8 Q. B. 14. 164 9 App. Cas. 434, affirming 9 Q. B. DIv. 648. 166 NORRINGTON v. WRIGHT, 115 U. S. 188, 6 Sup. Ct 12, 29 L. Ed. 366; Cleveland Rolling-MiU Co. v. Rhodes, 121 U. S. 255. 7 Sup. Ct. 882. 30 L. Ed. 920; Pope v. Porter, 102 N. Y. 366, 7 N. E. 304; Clark v. Steel Works, 3 C. C. A. 600, 53 Fed. 494; Peace River Phosphate Co. v. Graffiin (C. C.) 58 Fed. 550; King Philip Mills v. Slater, 12 R. I. 82, 34 Am. Rep. 603; RUGG V. MOORE, 110 Pa. 236, 1 Atl. 320; Reybold v. Voorhees, 30 Pa. 116; Rob- son V. Bohn, 27 Minn. 333, 7 N. AV. 357; Providence Coal Co. v. Coxe, 19 R. I. 380, 582, 35 Atl. 210; Cresswell Ranch & Cattle Co. v. Martindale, 63 Fed. 84, 11 C. C. A. 33. See, also, Dwinel v. Howard, 30 Me. 258 ; Walton v. Black, 5 Houst (Del.) 149; Bradley v. King, 44 III. 339; Stokes v. Baars, 18 Fla. 656; Higgins v. Railroad Co., 60 N. Y. 553. 168 Bollman v. Burt, 61 Md. 415: Blaekbm-n v. Reilly, 47 N. J. Law, 290, 1 Atl. 27. 54 Am. Rep. 159 ; Trotter v. Heekscher, 40 N. J. Eq. 612, 4 Atl. 83 ; Mver V. Wheeler. 65 Iowa, 390, 21 N. W. 692; Hansen v. Steam Heating Co., 73 Iowa, 77, 34 N. W. 495; GERLI v. MANUFACTURING CO., 57 N. J. Law, 432, 31 Atl. 401, 30 L. R. A. 61. 51 Am. St Rep. 611; Mayor v. Scliaub Bros., 96 Md. 534, 54 Atl. IOC And see West v. Bechtel, 125 Mich. 144, iyi N, W. 69, 51 L. R. A. 791. 456 DISCHARGE OF CONTRACT. (Cll. 11 the Supreme Court of the United States in NORRINGTON v. WRIGHT/ ^^ the rule laid down in the first of these cases was ap- proved. In NORRINGTON v. WRIGHT the contract was for the sale of "5,000 tons of iron rails, for shipment from European port or ports, at the rate of about i,ooo tons per month, beginning Feb- ruary, 1880, but whole contract to be shipped before August, 1880, at $45 per ton, ex ship Philadelphia, settlement cash on presentation of bills," etc. It was held that the seller was bound to ship 1,000 tons in each mouth, and that only 400 tons having been shipped in February, and 885 tons in March, the buyer, although he had paid for the February shipment in ignorance of the defective shipments in that month and in March, had the right to rescind the whole contract for the defective deliveries in respect to the first installment. The decis ion rests on the ground that in contracts of merchants time is £f_the_..essejice, and that the shipment at the time specified in the contract was a condition precedent, on failure of which the buyer mJght rescind the whole contract. It is to be noted that Gray, J., in commenting on MERSEY STEEL & IRON CO. v. NAYLOR, dis- tinguishes that case, pointing out that the grounds of the decision, as stated by the lord chancellor, are applicable only to the case of failure by the buyer to pay for, and not to failure of the seller to deliver, the first installment; that is, that since delivery must pre- cede payment no particular payment can be a condition precedent to the entire contract, and hence the payment cannot be a condition precedent to the subsequent fulfillment of the unfulfilled part, by delivery of subsequent installments. ^^^ Same — Repudiation of Contract. The courts are agreed that if a default in one item of a continuous contract of this nature is accompanied with an announcement of inten- tion not to perform the contract upon the agreed terms, the other party may treat the contract as being at an end.^^* Same — Express Provision for Discharge. It is always permissible for the parties to agree that the entire per- formance of a consideration, in its nature divisible, shall be a_£ondi- 157 115 u. S. 188, 6 Slip. Ct. 12, 29 L. Ed. BCG. 108 iMere failure to pay, not evincing a purpose to renounce, beld not to justify the seller in treating the coutract as abandoned. Monarch Cycle Mfg. Co. V. Wheel Co., 105 i'ed. 324, 44 C. C. A. 523; West v. Bechtel, 125" Mich. 144, 84 N. W. m, 51 L. K. A. 791. But see Eobson v. Bohn, 27 Minn. 333, 7 N. W. 357; RUGG v. MOORE, 110 Pa. 23(5, 1 Atl. 320; Hull Coal & Coke Co. V. Coke Co., 51 C. C. A. 213, 113 Fed. 25G. Cf. Beatty v. Lumber Co., 77 Minn. 272, 79 N. W. 1013. 150 WITHERS V. REYNOLDS, 2 Barn. & Adol. 882; CATLIN v. TOBIAS, 26 N. Y. 217, 84 Am. Dec. 183; Stephenson v. Cady, 117 Mass. 6; ante, pp. 444, 447. And see Bloomer y. Bernstein, L. R. 9 C. P. 5SS . §§ 243-244) BY BREACH. 457 tion_4ire€«4eftt-t€^-th€--right to a fulfillment by -th€ other party of Uis j Trnmis e-^"" This point is illustrated by a case in which the master of a ship gave a sailor a note promising to pay him 30 guineas, which was more than the ordinary wages, "provided he proceeds, continues, and docs his duty as second mate in the said ship from hence to the port of Liverpool." The sailor died after having performed the agreement for about seven weeks, but about three weeks before the ship reached Liverpool. The court held that the sailor's representa- tives could not recover upon the express contract, for its terms were unfulfilled ; nor could they recover upon a quantum meruit for such services as he had rendered, because the terms of the express contract excluded the arising of any such implied contract as would form the basis of a claim upon a quantum meruit. "It may fairly be con- sidered," it was said, "that the parties themselves understood that, if the whole duty were performed, the mate was to receive the whole sum, and that he was not to receive anything unless he did continue on board during the whole voyage." ^'^ Subsidiary Promises. The breach committed by one of the parties may be a breach of a term of the contract only, and_of a term whicli the parties have not, upon a reasonable construction of the contract, regarded as vital to it$ existence. The injured party is then bound to continue his per- formance of the contract, but may bring an action to recover such damages as he has sustained by the default of the other. ^°^ In a leading case, the plaintiff, a professional singer, had entered into a contract with the defendant, director of an opera, for his services as a singer for a considerable time, and upon a number of terms, one of which was that the plaintiff should be in London without fail at least six days before the commencement of his engagement, for the purpose of rehearsals. The plaintiff broke this term by arriving only two days before the commencement of the engagement, and the de- fendant treated this breach as a discharge of the contract. The court held that, in the absence of any express declaration that the term was vital to the contract, it must "look to the whole contract, and see whether the particular stipulation goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different, in substance, from 1 60 CUTTER V. POWELL, 6 Term. R. 320; 2 Smith, Lead. Cas. 1, and notes; Leonard v. Dyer, 2G Conn. 172, G8 Am. Dec. 382; Martin v, Sboen- berger, S Watts & S. (l»a.) 367; Hartley v. Decker, 89 Pa. 470. 161 CUTTER V. POWELL, 6 Term R. 320. 162TARRABOCHIA v. HICKIE, 1 Hurl. & N. 183; Weintz v. Hafner, 78 III. 27; BOONE v. EYRE, 1 II. Bl. 273, note. It is under this principle that a party is not discharged by failure of the other to perform within the time stipulated, where the time is not of the essence. Ante, pp. 408, 450. •V 458 DISCHARGE OF CONTRACT. (Oil. 11 what the defendant has stipulated for, or whether it merely partially affects it, and may be compensated for in damages;" and the court held that the term did not go to the root of the matter, so as to con- stitute a condition precedent/''^ Where a promise is to be performed in the course of the performance of the contract, and after some of the consideration, of which it forms a part, has been given, it will be regarded as subsidiary, and its breach will not effect a discharge unless there be words expressing that it is a condition precedent, or unless the performance of the thing promised be plainly essential to the contract/*" L64 \ ; CONDITIONAL PROMISES. \ 245. r^VTiere a promise is subject to a condition, that condition mnst, as regards its relation to the promise in time, be either — (a) Subsequent, 'X, (b) Concurrent, or (c) Precedent. 246. In the case of a condition subsequent, the rights of the promisee are determinable upon a specified event. The condition does not aflcect their commencement, but its occurrence brings them to a conclusion. 247. In the case of a condition concurrent, the promisee's rights are dependent upon his doing, or being ready to do, something simultaneously -with the performance by the promisor. 248. In the case of a condition precedent, the promisee's rights do not arise until something has been done or has happened, or some period of time has elapsed. 249. Where the promise in a contract is conditional, the promisor may be discharged — I (a) By the promisee's failure to perform a concurrent condition. (b) By the fact that there has been a total or substantial failure on the promisee's part to do that which he -wa-s bound to do under the contract,— a state of things sometimes described as virtual failure of consideration. (c) By the untruth of some one statement, or the breach of some one term, which the parties considered to be vital to the contract. Conditions Subsequent. We have already dealt with conditions subsequent in treating of discharge of contract by agreement, and it is unnecessary to speak further of them here.^""* 163 BETTINI V. GYE. 1 Q. B. Div. 183. 104 Anson, Cont. (4tli Ed.) 294. citing GRAVES v. LEGG. 9 Exch. 71G; per Parke, B. See, also, CAMPBELL v. JONES, 6 Term 11. 570. 100 Ante, p. 427. §§ 245-249) BY BREACH. 4:59 Breach of Concurrent Condition. Concurrent conditions seem, in point of fact, to be conditions pre- cedent, for the simultaneous performance of his promise by each party must needs be impossible except in contemplation of law. What is meant by the phrase is that there must be a concurrent readiness and willingness to perform, and that, if one is not able or willing to do bis part, the other is discharged. This form of condition is more particularly applicable to contracts of sale, where payment and delivery are assumed, in the absence of express stipulation, to be intended to be contemporaneous.^*^® Where goods are sold, and nothing is said as to the time of the delivery or the time of payment, the seller cannot demand payment of the price unless he is ready at the same time to deliver the goods, and the buyer cannot demand possession of the goods unless he is ready to pay the price.^®^ In an action for breach of a contract by which the plaintiff had agreed to buy a certain quantity of corn of the defendant at a certain price, and the defendant had promised to deliver the corn within one month, the plaintiff merely alleged that he had always been ready and willing to receive the corn. The court held that as the plaintiff did not allege that he had been ready to pay the price, there was nothing, as he had shaped his case, to show that he had not himself broken the contract and dis- charged the defendant by nonreadiness to pay. Conditions Precedent — Suspensory Conditions'^ We are here dealing with the subject of discharge of contract, and are therefore concerned with those conditions precedent the nonful- fillment of which is a cause of discharge. To make the subject clear, however, we must mention and explain a class of conditions precedent which do not operate as a discharge, but merely suspend the operation of a promise until they are fulfilled. These are called by Anson float- ing or suspensory conditions. A promise, for instance, may be con- ditional upon the happening of an uncertain event, as in the case of a contract of fire or marine insurance, where the insurer's liability 166 Ansson, Cont. (4tli Ed.) 298. 187 MOR.TON V. LAMB, 7 Term R. 125; Bloxam v. Sanders. 4 Barn. & C. 941: SteplKuson v. Cady, 117 Mass. G; HAFGOOD v. SHAW, 105 Mass. 270; Porter v. Rose, 12 Johns. (N. Y.) 209, 7 Am. Dec. 306; Cook v. Ferral's Adm'rs, 13 Wend. (N. Y.) 285; Phelps v. Hubbard, 51 Vt. 489; Hough v. Rawson, 17 111. 588; Posey v. Scales, 55 Ind. 282; Simmons v. Green. 35 Ohio St. 104 ; Campbell v. Moran Bros. Co., 97 Fed. 477, 38 C. C. A. 293 ; Allen V. Hartfield, 76 111. 358. So, also, in case of a sale of real estate. Smith v. Lewis, 26 Conn. 110 ; Swan v. Drury, 22 Pick. (Mass.) 485 ; Clark v. Weiss, 87 111. 438, 29 Am. Rep. 60 ; Gazley v. Price, 16 Johns. (N. Y.) 267 ; Columbia Bank V. Hagnei-, 1 Pet. 455, 7 L. Ed. 219. Ante, p. 452. i«3 Morton v. Lamb, 7 Term R. 125. 189 Anson, Cont. (4th Ed.) 296, 297. 168 leo 460 DISCHARGE OF CONTRACT. (Cll. 11 on his promise does not accrue until the loss of the property insured. The condition suspends the operation of the promise. Again, a promise may depend upon the act of the promisor or of some third person. For instance, it may be made a condition pre- cedent to one party's liability under the contract that he shall be satisfied with the other party's performance ; and in such a case, by the weight of authority, he cannot be compelled to perform his part, unless he is satisfied.^ '° Other examples are in the case of promises to pay for the construction of a building or other construction work, conditional upon the approval and certificate of the architect or other third person. In such cases payment cannot be enforced without such approval unless there is fraud, or such gross mistake as to neces- sarily imply bad faith. ^'^^ Again, a promise may be conditional in the sense that its operation is postponed until the lapse of a certain time, as in case of a debt for which a fixed period of credit is given, or until the happening of an event that is certain to happen, as in the case of a contract of life insurance. Or, again, a promise may be conditional in the sense that its opera- tion awaits the performance of some act to be done by the promisee. If no time is specified in which the act is to be done, the nonfulfillment of the condition merely suspends, and does not discharge, the rights of the promisee. Illustrations of such conditions are furnished by cases of promises conditional upon demand or notice. If a person promises another to do something upon demand, he cannot be sued until demand has been made;^'^ or if he promises to do something 170 Ante, p. 432. 171 MORGAN V. BIENIE, 9 Bing. 672; Martinsbnrg & P. R. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255; Kihlberg v. United States, 97 U. S. 398, 24 L. Ed. 1106; Sweeney v. United States, 109 U. S. CIS, 3 Sup. Ct. 344, 27 L. Ed. 1053; Claicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. Ed. 917; Kennedy v. Poor, 151 Pa. 472, 25 Atl. 119; Lewis V. Railroad Co. (C. C.) 49 Fed. 708; Bradner v. Roffsell, 57 N. J. Law, 412, 31 Atl. 3S7; Gilmore v. Courtney, 158 111. 432, 41 N. E. 1023; Ashley v. Henehan, 56 Ohio St. 559, 47 N. E. 573; King v. City of DuJuth. 78 Minn. 155, 80 N. W. 874 ; John Pritzlaff Hardware Co. v. Berghoefer, 103 Wis. 359, 79 N, W. 504. Where the recovery of sick benefits depended on certificate of a physician, his refusal to make it did not excuse failure to produce It. Audette v. L'Union St. Joseph, 178 Mass. 113, 59 N. E. 0G8. W^here there is fraud or bad faith, the action of the third person is not conclusive. Balti- more & O. R. Co. V. Brj^don, 65 Md. 611, 9 Atl. 120, 57 Am. Rep. 318; Whelen V. Boyd, 114 Pa. 228, 6 Atl. 384; Teal v. Bilby, 123 U. S. 572. 8 Sup. Ct. 2G9, 31 L. Ed. 263. In New York it is held that failure to obtain the certificate will not defeat a recovery if it is refused unreasonably. Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 034; MacKnight Flintic Stone Co. v. City of New York, 160 N. Y. 72, 54 N. E. 661. See, also, Bird v. St. Johns Episcopal Church, 154 Ind. 138, 56 N. E. 129. Cf. Andette V. L'Union St. Joseph, supra. 1T2 Allen V. Allen, 116 Iowa, 697, 88 N. W. 1091. §§ 245-249) BY BitEACH. 4G1 upon the happening of an event, and stipulates that notice shall be given him of the event having happened, he cannot be sued until such notice has been given. Even if there is no such stipulation for notice, yet, if the happening of the event is peculiarly within the knowledge of the promisee, an implied condition will be imported into the contract that notice must be given before a suit can be rraintained.^'"* Same — Vital Conditions. In the cases last considered, neither the nonfulfillment of the con- dition nor an action brought before fulfillment will discharge the jiromisor. The condition merely suspends the right to performance of the promise.^''* The conditions with which we are now concerned effect a discharge of contract by their breach. Where the promise of one party is conditional upon the promise of the other, the performance of the latter promise is either a condition precedent or a condition concurrent, as the case may be, and in either case the nonperformance of the condition not only gives ground for an action for breach of the contract, but discharges the contract. Where the promise of each party is the whole consideration for the promise of the other, and there is nothing to indicate that either was to perform first, or that the promises are independent, the case is one of concurrent conditions.^^^ It may appeal*, however, either expressly, or impliedly from the nature of the contract, that one promise is to be performed before the other. In such a case, as we have seen, the promiise which is to be first performed is independent, and the promisee may enforce it, or sue for its breach, without having performed, or ofifered to perform, on his part. The promise of the latter, on the other hand, is condi- tional ; that is, performance by the other is a condition precedent to any liability to perform it.^''^ If a person promises to work for an- other, or to build or repair a house for him, and the latter agrees to pay him certain compensation therefor, the promise to work or to build the house is impliedly, from the nature of the contract, to be first performed, and is independent. The promise to pay, on the 173 MAKIN V. WATKINSON, L. R. Exch. 25. 174 Palmer v. Temple, 9 Adol. & E. 508. 17 s MORTON V. LAMB, 7 Term R. 125; GRAVES v. LEGG, 9 Exch. 709; Dakin v. Williama, 11 Wend. (N. Y.) 07; Bey v. Dox, 9 Wend. (N. Y.) 129, 24 Am. Dec. 137; People v. Glann, 70 111. 232 ; Columbia Bank v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Qiiiglej' v. De Haas, 82 Pa. 207; Lutz v. Thompson, 87 N. C. 334 ; Clark v. Collier, 100 Cal. 250, 34 Pac. 077 ; Leslie v. Casey, 59 N. J. Law, 6, 35 Atl. 6 ; GRAY v. SMITH (C. C.) 76 Fed. 525. Ante, p. 459.' 17 6 Ante, p. 450. 462 DISCHARGE OF CONTRACT. (Ch. ll Other hand, is conditional. The servant^'''' or contractor ^'^' cannot recover unless he shows a performance on his part, or unless he was pi evented from fully performing by the other party, or by such an impossibility as excuses him. If a time is fixed for his performance, and it is of the essence of the contract, a failure to perform within that time will discharge the other party.^'^" "^ Same — Executory Contract of Sale. \ In every executory contract of sale, where the goods are sold by description, there is an implied condition, often miscalled an implied warranty, ^'*° that the goods shall conform to the description. In such cases the tender of goods answering the description is a condition precedent to the buyer's liability, and if the condition is not per- 177 If the servant without legal excuse abandons the employment before full performance, he can recover nothing for his services, neither upon the contract, because under an entire contract full performance is a condition precedent to the right of recovery thereon, nor upon an implied contract, because the special contract conti'ols the rights of the parties in respect to what has been done under it, and excludes any implied contract. STAKK V. PARKER, 2 Pick. (Mass.) 267, 13 Am. Dec. 425; Olmstead v. Beale, 19 Pick. (Mass.) 528 ; Miller v. Goddard, 34 Me. 104, 5G Am. Dec. 638 ; Lawrence V. INIiller, 86 N. Y. 131; Goldstein v. White (Com. PI.) 16 N. Y. Supp. 860; Hansen v. Erickson, 28 111. 257; Thrift v. Payne, 71 111. 408; Peterson v. Mayer, 46 Minn. 468, 49 N. W. 245, 13 L. R. A. 72; Diefenback v. Stark, 56 Wis. 462, 14 N. W. 621. 43 Am. Rep. 719. But see Hilderbrand v. American Fine Arts Co. (Wis.) 85 N. W. 268, holding that a servant discharged for cause may recover for services rendered subject to the employer's right to recoup damages by reason of facts justifying discharge. In some states, however, a recovery upon a quantum meruit, to tlie extent of benefits received, is per- mitted, the recovery, if any, being estimated at the contract price, with de- duction for what it would cost to procure a completion and of any dam- ages sustained by reason of the breach. BRITTON v. TURNER, 6 X. H. 481, 26 Am. Dec. 713; McClay v. Hedge. 18 Iowa, 66; Duncan v. Baker, 21 Kan. 99; Parcel! v. McComber, 11 Neb. 209, 11 N. W. 529, 38 Am. Rep. 366; West V. Van Pelt, 34 Neb, 63, 51 N. W. 313. 178 Homer v. Shaw, 177 Mass. 1, 58 N. E. 160. As to substantial perform- ance, ante, p. iSl. 170 Carter v. Phillips, 144 Mass. 100. 30 N. E. 500; Goldsmith v. Guild, 10 Allen (Mass.) 239; Taylor v. Longworth, 14 Pet. 172, 10 L. Ed. 405; Hicks v. Aylsworth, 13 R. I. 562; Wilson v. Roots, 119 111. 379. 10 N. E. 204; Chrisman V. Miller, 2] 111. 227; WJ^lkoop v. Cowing, 21 111. 570; Grigg v. Landis, 21 N. J. Eq. 494. In the case of a contract for sale of goods, failure to deliver at the time specified discharges the buyer, and he is not bound to accept a sub- sequent tender. Welsh v. Gossler, 89 N. Y. 540; Jones v. U. S., 96 U. S. 24, 24 L. Ed. 644: ante, p. 408. 180 "Two things are often confounded. * • • If a man offers to buy peas of another, and he sends him beans, he does not perform his con- tract. But that is not a warranty." Per Lord Abinger in Chanter v Hop- kins, 4 Mees. & W. 399. See. also. Bowes v. Shand, 2 App. Cas. 455, 480; POPE v. ALLIS, 115 U. S. 371, 6 Sup. Ct. 69, 29 L. Ed. 393. §§ 245-249) BY BREACH. 4G3 formed he is entitled to reject the goods.^** Moreover, in a sale of goods by description, where the buyer has not an opportunity to ex- amine the goods, there is also an implied condition that the goods shall be salable or merchantable, ^^^ and under some circumstances a condition that goods ordered for a particular purpose are reasonably fit for that purpose is implied. ^^^ These implied conditions are fre- quently spoken of as warranties, but inasmuch as they go to the essence of the contract the latter term is misleading. The courts in different jurisdictions differ as to whether such a condition survives acceptance.^"* But all cases agree that where the property has not passed, the buyer is discharged by a failure of such an implied condi- tion ; and that he may reject the goods, and may also bring an action for such damages as he has sustained.^" ^ For the same reason, the buyer may reject the goods if they fail to conform to the quality which the seller warranted they should possess;^®' for an under- taking that goods shall possess a certain quality, whether in the form of a description or a warranty, is "a condition, the performance of which is precedent to any obligation upon the vendee under the con- tract, because the existence of these qualities, being part of the de- scription of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted." ^*^ 181 Josling V. Kingsford, 32 L. J. C. P. 904; Allan v. Lake. 18 Q. B. 5G0; POPE V. ALLIS, 115 U. S. 363, 371, 6 Sup. Ct. 09, 29 L. Ed. 393; Bagley v. Rolling-Mill Co. (C. C.) 21 Fed. 159, 162. Se'e, also, NORRINGTON v. WRIGHT, 115 U. S. 188, 203, 6 Sup. Ct 12, 29 L. Ed. 366. per Gray, J.; Filley V. Pope, 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372; Jones v. George, 61 Tex. 345, 349, 48 Am. Rep. 280; Avery v. Miller, 118 Mass. 500; Haase v. Nonne- macher, 21 Miun. 486, 490; Dailey v. Green, 15 Pa. 118; Woodle v. Whitney, 23 Wis. 55, 99 Am. Dec. 102; WOLCOTT v. MOUNT, 36 N. J. Law, 202, 13 Am. Rep. 438; Morse t. Moore, 83 Me. 473, 479, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St Rep. 783. Although the sale is by sample, it Is not enough that the bulk corresponds with the sample if it does not correspond witJi the description. Michals v. Godts, 10 Exch. 191. 182 Jones V. Just L. R. 3 Q. B. 197; Murchie v. Cornell, 155 Mass. 60, 29 N. E. 207. 14 L. R. A. 492, 31 Am. St Rep. 526; English v. Commission Co., 57 Fed. 451, 6 C. C. A. 416. 183 Jones V. Just L. R. 3 Q. B. 197; Kellogg Bridge Co. v. flamilton, 110 U. S. 108, 3 Sup. Ct 537, 28 L. Ed. 86 ; Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163. 184 Post p. 467. 185 POPE V. ALLIS, 115 U. S. 363, 371, 6 Sup. Ct 09, 29 L. Ed. 393; Anson, Cent. (8th Ed.) 302. 186 Street v. Blay, 2 Barn. & Adol. 456; Syers v. Jonas, 2 Exch. Ill, 117; Hellbutt v. Hickson. L. R. 7 C. P. 438, 451; Dailey v. Green, 15 Pa. 126; Doane v. Dmiham, 65 111. 512, 79 111. 131; Cox v. Long. 69 N. C. 7, 9; Lewis V. Rouutree, 78 N. C. 323; Byers v. Chapin. 28 Ohio St 300; Bigger r. Bovard, 20 Kan. 204; Polhemus v. Heiman, 45 Cal. 573. 187 2 Smith. Lead. Cas. (8th Am. Ed.) 31 : POPE v. ALLIS, 115 U. S. 363, 6 Sup. Ct 69, 29 L. Ed. 393; Benj. Sales, § 895. 4G4 DISCHARGE OF CONTRACT. (Cli. 11 Same — Bxeciited Contract of Sale. Where the buyer has accepted the g-Qods, it is held in England and in many jurisdictions in this country that he cannot afterwards reject them.^^^ By accepting he waives his right to reject them, and must seek his remedy by action on the warranty or by setting up the breach in diminution of the price. And this applies whether the sale is of specific goods unconditionally — that is, goods ascertained and agreed upon at the time of the contract — or whether the sale is of unascer- tained goods, which are subsequently accepted. In some states, how- ever, where there is an express warranty, it is held that the buyer may rescind the contract for breach of the warranty, notwithstanding acceptance, and may return the goods.^*^ Same — Conditions Precedent in Narrower Sense. In the cases with which we have just been dealing, one of the par- ties to a contract has been excused from performance of his promise by reason of the entire failure of the other party to perform his promise. We now come to what Sir William Anson calls conditions precedent in the narrower and more frequent use of the term as meaning a single term in the contract, but a term possessing a particular char- acter. In this sense a condition precedent is a statement or promise, the untruth or nonperformance of which discharges the contract.^ "° The chief difficulty with regard to conditions precedent consists in 188 Street v. Blay, 2 Bam. & Adol. 456; Gompertz v. Denton, 1 Cromp. & M. 207; Poultou v. Lattimore, 9 Barn. «& C. 259; Thornton v. Wynn, 12 Wheat. 183. 6 L. Ed. 595; Matteson v. Holt, 45 Vt. 336; FREYMAIS y. KNECIIT, 78 Pa. 141; Muller v. Eno, 14 N. Y. 597; Fairbank Canning Co. V. Metzger, 118 x\. Y. 260, 269, 23 N. E. 372, 16 Am. St. Rep. 753; Hoover v. Sidener, 98 Ind. 290; Merrick v. Wiltse, 37 Minn. 41, 33 N. W. 3; Wright v. Davenport, 44 Tex. 164. 189 BRYANT V. ISBURGH, 13 Gray (Mass.) G07; Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485; Marshall v. Perry, 07 Me. 78; Frank- lin V. Long, 7 Gill & J. (Md.) 407; Sparling v. Marks, 86 111. 125; Branson v. Turner, 77 Mo. 489; Upton Mfg. Co. v. Huiske, 69 Iowa, 557, 29 N. W. 621; Boothhy v. Scales, 27 Wis. 626. 190 Anson, Cont. (4th Ed.) 303. See BEHN v. BURNESS, 3 Best «& S. 751; GLANIIOLM v. HAYS, 2 Man. & G. 257; Bowes v. Shaud, 2 App. Cas. 455; LoAvber v. Bangs, 2 Wall. 728, 17 L. Ed. 768; Cleveland Rolling- ]Mill V. Rhodes, 121 U. S. 255, 7 Sup. Ct. 882. 30 L. Ed. 920; Filley v. Pope, 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372; DAVISON v. YON LINGEN, 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885; People v. Glann, 70 111. 232; Tobias V. Lissberger, 105 N. Y. 404, 12 N. E. 13, 59 Am. Rep. 509; Newhall v. Clark, 3 Cush. (Mass.) 376, 50 Am. Dec. 741; Husted v. Craig, 36 N, Y. 221; Ogden V. Kirby, 79 111. 555; Harder v. Commissioners, 97 Ind. 455; Bell v. Hoffman, 92 N. C. 273; Salmon v. Boykin, m Md. 541, 7 Atl. 701. "A state- ment 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 warranty, in the sense in wliich the term is used hi insurance and maritime law; that is to say, a condition precedent upon the failure or nonperformance of which §§ 245-249) BY BREACH. 465 determining whether or not the parties to a contract regarded a par- ticular term as essential. If they did, the term is a condition, and its failure discharges the contract ; if they did not, the term is a warranty, and its failure can only give rise to an action for such damages as have been sustained by the failure of that particular term. Conditions are to be distinguished from warranties, although both terms are often loosely, and even interchangeably, used. The word "war- ranty," says Sir William Anson, is used in a most confusing manner and in a great variety of senses, but in its primary sense it is a more or less unqualified promise of indemnity against a failure in the per- formance of a term in the contract. It is "an express or implied state- ment J)_f sottiethino- which the party undertakes shall be a part of a contract, and though part of the contract, yet collateral to the express object of it." ^^^ If the statement of a party in a contract that a cer- tain thing is true is a condition, the other party is discharged if it is false; but if the statement is a warranty, only, the other party is not discharged, but merely has a right of action for breach of the war- ranty. A,_^aiTaniy_is_ajnere promise to indemnify.^** The question whether a particular term in a contract is a condition precedent or a warranty depends upon the construction of each partic- ular contract. The question is to be determined by the intention of the parties, and by the application of common sense to each particular case; and, when the intention is once discovered, it will control tech- nical forms of expression.^®^ As said in a leading case : "Parties may think some matter, apparently of very little importance, essential, and, if they sufficiently express an intention to make the literal ful- fillment of such a tiling a condition precedent, it will be one ; or they may think that the performance of some matter, apparently of essen- tial importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and, if they sufficiently express such an intention, it will not be a condition precedent." ^®* In other words, the question in each case, where it is to be determined whether a breach of a particular term operates as a discharge, is whether or not the breach goes to the essence of the contract.^®" the party aggrieved may repudiate the whole contract." NORRINGTON v. WRIGHT, 115 U. S. 188, 203, G Sup. Ct. 12, 29 L. Ed. 3GG. lai Chanter v. Hopkins, 4 Mees. & W. 399. See, also, Dorr v. Fisher, 1 Gush. (Mass.) 271. 19 2 Ante, p. 209. 183 STAYERS V. CURLING, 3 Bing. N. C. 355. 194 BETTINI T. GYE, 1 Q. B. Div. 183. And see GRAVES T. LEGG, 9 Exch. 709; BEHN v. BURNESS, 3 Best & S. 75G; Watchman v. Crook, 5 (iill. & J. (ild.) 239; MaiTlaud Fertilizing & Mfg. Co. v. Ivorentz, 44 Md. 218; GRANT v. JOHNSON, 5 N. Y. 247; Knight v. Worsted Co., 2 Gush. 19 5 See note 195 on following page. Clark Cont. (2d Ed.)— 30 466 DISCHARGE OP CONTRACT. (Ch. 11 A condition precedent may assume the form either of a statement or of a promise. Waiver and Acquiescence in Breach of Condition. A condition precedent may, in the course of the performance of the contract, change its character, and in effect cease to be a condition. Acquiescence in its breach may in effect turn it into a mere warranty. In other words, a breach of condition, which would discharge a party if at once treated by him as a discharge, will not have this effect if he goes on with the contract instead of repudiating it, and takes a benefit under it; but in such a case he can only recover his damages.^®^ "Although conditions precedent must be performed, and a partial performance is not sufiicient, yet when a contract has been performed in a substantial part, and the other party has voluntarily received and accepted the benefit of the part performance, knowing that the con- tract was not being fully performed, the latter may be thereby pre- cluded from relying upon the performance of the residue as a condition precedent to his liability to pay for what he has received, and may be compelled to rely upon his claim for damages in respect to the defective performance." ^^" An illustration of such a change in the effect of a condition is afforded by a leading English case, in which it appeared that the defendant had chartered the plaintiff's vessel for a certain voyage, and promised to pay a certain sum in full for her use on condition of her taking a cargo of not less than i,ooo tons. The defendant had the use of the vessel as agreed upon, but it appeared that she was not capable of holding so large a cargo as had been made a condition of the contract. To an action brought for nonpayment of the freight, the defendant pleaded a breach of this condition. The term in the (Mass.) 271, 287; Mill-Dam Foundry v. Hovey, 21 Pick. (Mass.) 417, per Shaw, C. J. Ante. p. 451. 19 5 FREEMAN v. TAYLOR, 8 Bing. 124; FRANKLIN v. MILLER, 4 Adol. & E. 599; TARRABOCHIA v. HICKIB, 1 Hurl. & N. ISS; McAN- DREW V. CHAPPLE, L. R. 1 C. P. 70G; BRADFORD v. WILLIAMS, L. R. 7 Exch. 259; Jackson v. Insurance Co., L. R. 10 G. P. 125; POUSSARD v. SPIERS, 1 Q. B. Div. 410 ; Rioux v. Brick Co., 72 Vt. 148. 47 Atl. 40G ; West T. Beclitel, 125 Mich. 144, 84 N. W. 60, 51 L. R. A. 79 L As to waiver of full performance. District of Columbia v. Iron Works, 181 U. S. 453, 21 Sup. Ct. 680, 45 L. Ed. 948. 196 BEHN V. BURNESS, 3 Best & S. 756; GRAVES v. LEGG, 9 Exch. 709; PUST V. DOWIE, Law J. 32 Q. B. 179; PHILLIPS & COLBY CONST. CO. V. SEYMOUR, 91 U. S. 646, 23 L. Ed. 341; Wiley v. Inhabitants of Athol, 150 INLiss. 426. 23 N. E. 311, 6 L. R. A. 342; Sykes v. City of St. Cloud, 60 Minn. 442, 62 N. W. 613; Yoxmg Bros. Mach. Co. v. Young, 111 Mich. 118, 69 N. W. 152; Charley v. Potthoflf. (Wis.) 95 N. W. 124; Carter v. Scargill, K R. 10 Q. B. .564; Bechtol v. Cone. .52 Md. 698; Foley t. Crow. 37 Md. 51. 187 Wiley V. Inhabitants of Athol, 150 Mass. 426, 23 N. E. 311, 6 L. R. A. 342, per Field, J. §§ 245-249) BY BitEACH. 4G7 contract which has been described was held to have amounted, in its inception, to a condition, and it was said that the defendant, while the contract was still executory, might have rescinded, and refused to put any goods on board, but as the contract had been executed, and the defendant had received a substantial part of the consideration, he could not rescind the contract, but must be left to his cross action for damages.^®*- A further illustration is found in the case of an executed sale. We have already seen that in an executory sale an undertaking that goods shall possess a certain quality is in efifect a condition, and that where goods are sold by description it is an implied condition that they shall conform to the description, and that under some circum- stances other conditions, such as that the goods shall be merchantable, will be implied. ^^^ In such cases, where the goods tendered do not fulfill the conditions, it is very generally held that the buyer may nevertheless accept them, and in effect treat the breach of condition as a breach of warranty.^"" Some cases, however, draw a distinction between conditions and warranties, and hold that, while an express warranty survives acceptance, a condition that the goods shall be of a certain description does not survive, so far as concerns visible de- fects, when the buyer had an opportunity to inspect, but that if, after opportunity for inspection, the buyer accepts the goods, he is pre- cluded from recovering damages for any variation between the goods as delivered and as described. ^"^ It seems that the performance must be of a substantial part of the contract,^"^ and that the acceptance must be under such circumstances 198 PUST V. DOWIE, Law J. 32 Q. B. 179. 189 Ante, p. 462. 200 Bagley v. Rolling-Mill Co. (C. C.) 21 Fed. 159; English v, Commlpslon Co. (C. C.) 48 Fed. 197; Id., 6 C. C. A. 41G, 57 Fed. 451; Reynolds v. Palmer (C. C.) 21 Fed. 433; Wolcott v. iMount, 3() N. J. Law, 202, 13 Am. Rep. 438; Holloway v. Jacoby, 120 Pa. 583, 15 Atl. 487, 6 Am. St. Rep. 737; I^wis v. Rountree, 78 N. C. 323; Eagan Co. v. Johnson, 82 Ala. 233. 2 South. 302; Dayton v. Hooglund, 39 Ohio St. G71 ; Morse v. Moore, S3 Me. 473. 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783; Tacoma Coal Co. v. Bradley, 2 Wash. St. 600, 27 Pac. 454. See. also, Marsh v. ISIcPherson, 105 U. S. 709, 26 L. Ed. 1139. 201 Haase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511, 27 N. W. 196; Thompson v. Libby, 35 Minn. 443. 29 N. W. 150 (implied condi- tion of merchantableuess does not survive acceptjinee In respect to visible de- fects); Comstock Y. Sanger, 51 Mich. 497, 16 N. W. 872; McClure v. Jef- ferson, 85 Wis. 208. .54 N. W. 777. This rule prevails in New York, Coplay Iron Co. v. Fope, 108 N. Y. 232, 15 N. E. 335; except as to a warranty that goods shall conform to sample, Zabriskie v. Railroad Co., 131 N. Y. 72, 29 N. E. 1006. 20i Anson, Gout (4th Ed.) 308, citing ELLEN v. TOPP, 6 Exch. 424. 468 DISCHARGE OF CONTRACT. (CL. 1 1 as to show that the party accepting knew, or onght to have known, that the contract was not being fully per formed. ^'^^ Breach Caused by the Other Party. Though performance by one party of a part or the whole of his promise may be a condition precedent to the liability of the other party t-o perform, still his failure to perform will not discharge the latter, if the latter prevented performance. In such a case the party so pre- vented is discharged from further performance, and may recover damages for the breach or recover on the quantum meruit for his part performance. '^"^ Failure of Consideration. "Strictly speaking, there can be no such thing as a failure of con- sideration. Either the promisor receives the consideration he bar- gained for, or he does not. If he does not receive the consideration, there is no contract; if he does receive the consideration, there can be no failure of consideration thereafter." ^os The term is, however, frequently used to express the situation which arises where the prom- isee fails wholly or partly to perform a promise which was the con- sideration of the promise of the promisor. Some cases usually con- sidered under the head of failure of consideration may be mentioned here. As we have seen, where there is a contract for the sale of goods by description it is an implied condition of the contract that the goods shall correspond to the description. By accepting the goods tendered, indeed, the buyer is ordinarily held to have waived his right to rely on the condition, and the condition, in effect, becomes a warranty.^"' Where, however, a thing is sold as being an article of a specific descrip- tion, and from latent defect, unknown to the buyer, it is in substance not an article of that description, but an article of no value, the buyer may rescind the sale notwithstanding acceptance, and may defend an action for the price or may recover the price if he has paid it. In such cases it is commonly said that there has been a total failure of consideration. Such a state of facts occurs where the thing sold is 208 Wiley v. Inhabitants of Athol, 150 Mass. 42G, 23 N. E. 311, 6 Lt R. A. 342, per Field, J. 204 Ante, p. 444; UNITED STATES v. BEHAN, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; HINCKLEY v. STEEL CO.. 121 U. S. 2G4, 7 Sup. Ot. 875. 30 L. Ed. 967 ; Hood v. Exploration Co. (C. C.) 100 Fed. 408 ; Mooney v. Iron Co., 82 Mich. 263, 46 N. W. 376; Caldwell v. Myers, 2 S. D. 506, 51 N. W. 210; Thompson v. Gaffey, 52 Neb. 317, 72 N. W. 314; Wellston Coal Co. v. Paper Co., 57 Ohio St. 182, 48 N. E. 888; Southern Pac. Co. v. Well Works. 172 111. 9, 49 N. E. 575; San Francisco Bridge Co. v. Improvement Ca, 119 Gal. 272. 51 Pac. 335. 20 c iTarriman, Cont. § 524. See 9 Cyc. Law & Proc. 369. 2oa Ante, p. 467. §§ 24:0-2-^9) BY BREACH. 4G9 a bill or note or other security, and it turns out to be invalid because of forgery -°^ or for other causes;^"® the instrument thus being not what it purports to be, but a mere worthless piece of paper. So in the sale of a patent, if the patent is void.^"*" But though the thing sold thus proves to be worthless, if the buyer assumed the risk of its validity, and consequently obtained the identical thing which he in- tended to buy, there is no failure of consideration.^^" Where on the sale of personal property the buyer accepts the goods, he may still bring an action for damages if the goods are inferior in quality to that warranted ; or, instead of bringing an action for dam- ages, he may wait till he is sued for the price, and then set up the breach of warranty in diminution of the price pro tanto as a defense."^ And to-day in most states such damages may be set up by way of defense in an action on a note given for the price. ^^^ In such cases, where the article sold by reason of failure to conform to the warranty 207 JONES V. RYDE, 5 Taimt. 488; GURNEY v. WOMEKSI.EY, 4 El. & Bl. 133; Terry v. Bissell, 26 Conn. 23; Aldrich v. Jackson, 5 R. I. 218; Merriam v. Wolcott, 3 Allen (Mass.) 258, 80 Am. Dec. 69. See, also, Whitney V. Bank. 45 N. Y. 303; Bell v. Dags, 60 N. Y. 528. 208 Burchfield v. Moore, 2 El. & Bl. 683 (material alteration) ; Gompertz v. Bartlett, 2 El. & Bl. 849, 23 Law J. Q. B. 05 (a bill of exchange purporting to be a foreign bill, which tm-ued out to be a domestic bill, and invalid because unstamped); WOOD v. SHELDON, 42 N. J. L. 421, 36 Am. Rep. 523 (scrip illegally and fraudulently issued); Paul v. City of Kenosha, 22 Wis. 266, 94 Am. Dec. 598; Meyer v. Richards, 103 U. S. 385, 16 Sup. Ct. 1148, 41 L. Ed. 199 (bond stricken with nullity by constitutional provision adopted after act authorizing issue). 200 Nash v. Lull, 102 Mass. 60, 3 Am. Rep. 435; Harlow v. Putnam, 124 Mass. 553; Shepherd v. Jenkins, 73 Mo. 510; Green v. Stuart, 7 Baxt. (Tenn.) 418; Herzog v. Heyman, 151 N. Y. 587, 45 N. E. 1127, 56 Am. St. Rep. 646. Cf. Chemical Electric Light & Power Co. v. Howard, 148 Mass. 352, 20 N. E. 92, 2 L. R. A. 168; Gloucester Isin-Glass & Glue Co. v. Cement Co., 154 Mass. 92, 27 N. E. 1005, 2 L. R. A. 563, 26 Am. St. Rep. 214.- 210 Lambert v. Heath, 15 Mees. & W. 487; Bryant v. Pember, 45 Vt 487; Blattenberger v. Holman, 103 Pa. 555; Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198; WHEAT v. CROSS, 31 Md. 99, 1 Am. Rep. 28; Hunting v. Downer, 151 Mass. 275, 23 N. E. 832. On this principle, it has been held that where bonds are sold which are invalid because the consideration has not power to issue them, or failed to comply with the law in their issuance, the purchaser is liable on his promise to pay. Otis v. CulUun, 92 U. S. 447. 23 L. Ed. 496; Harvey v. Dale. 96 Cal. 160, 31 Pac. 14; Sutro v. Rhodes, 92 Cal. 117, 28 Pac. 98. But see Hurd v. Hall, 12 Wis. 136. 211 Mondel v. Steel, 8 Mees. & W. 858; Lyon v. Bertram, 20 How. 149, 154, 15 L. Ed. 847; Bradley v. Rea, 14 Allen (Mass.) 20; Dailey v. Green, 15 Pa. 118, 126; Dayton v. Hooglund, 39 Ohio St. 671; Underwood v. Wolf, 131 111. 425, 23 N. E. 598^ 19 Am. St. Rep. 40; Morehouse v. Comstock. 42 Wis. 620 ; Polhemus v. Heiraan, 45 Cal. 573 ; Breen v. INIoran, 51 Minn. 525, 53 N. W. 755; Central Trust Co. v. Manufacturing Co., 77 Md. 202, 26 Atl. 493. 212 Withers v. Greene. 9 How. 213, 13 L. Ed. 109; Ruff v. Jan-ett, 04 111. 475; Wentworth v. Dows, 117 Mass. 14, per Colt, J.; Wright v. Davenport, 470 DISCHARGE OF CONTRACT. (Ch. 11 .i,s wholly worthless, so that the breach of warranty is a complete defense, it is often said that there is an entire failure of considera- tion ;^^^ and if the damages recoverable for the breach of warranty would simply reduce the amount of the recovery, it is often said that there has been a partial failure of consideration.^^* Again, upon a sale of personal property, the seller impliedly war- rants his title to the goods sold, unless the circumstances are such as to show that the seller is transferring only such property as he had in the goods.^^^ Where the circumstances are such that a warranty of title is to be implied, if it turns out that the seller was not in fact the owner, it is said that the consideration fails, and in such case the buyer can defend an action for the price, or recover it if he has paid it.^^^ Where the subject-matter of the sale is land, and it turns out that the vendor had no title, the purchaser may interpose the failure of title as a defense in an action for the price or upon notes given there- for.-^ ^ In the case of the sale of land with covenants by the vendor, questions have arisen as to whether the failure of the title amounts to a total failure of consideration. In a Massachusetts case a note had been given in consideration of a conveyance of land by deed, with the usual covenants of seisin and warranty, and the title to the land failed entirely. The question raised was whether that want of title was an entire want of consideration for the note, so as to render it nudum pactum, or whether the covenants in the deed were of them- selves a sufficient consideration. It was held, contrary to a decision in Maine, ^^^ that the total failure of title was a total failure of consid- eration, and that the note was therefore void. "The promise is not made for a promise," it was said, "but for the land. The moving cause 44 Tex. 164; Bayview Brewing Co. v, Techlenberg, 19 Wash. 4G9, 53 Pac. 724. 213 Thompson v. Manufacturing Co., 29 Kan. 476; Toledo Sav. Bank v. Kathmann, 78 Iowa, 75G, 43 N. W. 193; Aultman, & Taylor Co. v. Trainer, 80 Iowa, 451, 45 N. W. 757; Brown v. Weldou, 99 ]Mo. 564, 13 S. W. 342. 214 Stevens v. Johnson, 28 Minn. 172, 9 N. W. 077; Nichols & Shepard Co. V. Soderquist, 77 Minn. 509; Euss Lumber & Mill Co. v. Water Co., 120 Cal. 521, 52 Pac. 995, 65 Am. St. Rep. 186. 215 Benj. Sales (6th Am. Ed.) § 639; Tiffany, Sales, 165. 216EICHHOLZ V. BANNISTER, 17 C. B. (N. S.) 708; Chenault v. Bush, 84 Ky. 528, 2 S. W. 160; Flandrow v. Hammond, 148 N. Y. 129, 42 N. E. 511. And see Gould v. Bourgeois, 51 N. J. Law, 361, 18 Atl. 64. 217 Mui^hy V. .Tones, 7 Ind. 529; Anderson v. Armstead, 69 111. 4.52; Fer- guson V. Teei, 82 Va. 690 ; Curtis v. Clark, 133 Mass. 509 ; Baird v. Laevison, 91 Ky. 204, 15 S. W. 252 ; Redding v. Lamb, 81 Mich. 318, 45 N. W. 997 ; Hall V. McArthur, 82 Ga. 572, 9 S. E. 534. 2i8.Tenness v. Parker, 24 Me. 280; Lloyd v. .Tewell, 1 Greenl. (:Me.) 360, 10 Am. Dec. 73. And see Black v. Walker, 98 Ga. 31, 20 S. E. 477; Bennett V. Pierce, 45 W. Va. 654, 31 S. E. 972. §§ 245-249) BY BKKACH. 471 is the estate, and, if that fails to pass, the promise is a mere nudum pactum." '^^ Same — Subsequent Failure of Executed Consideration. If the promisor receives a consideration for his promise, the fact that it subsequently diminishes in value, or becomes worthless, does not release him from liability on his promise.^^** The transfer and delivery of a note, for instance, by the payee to the maker of another note, in exchange therefor, is a valuable consideration for the latter note, and the fact that the former note subsequently becomes worthless does not constitute a failure of consideration.-^^ So, if a patent is sold, the fact that it afterwards becomes valueless because of improve- ments does not release the purchaser from liability for the purchase money.^-* Recovery of Money Paid, Ordinarily, if a person voluntarily pays another money, he cannot maintain an action to recover it back. This rule, however, does not apply where money is paid under a contract, and the consideration fails. The money may be recovered back in such a case.^^^ 210 Kice V. Goddai'd, 14 Pick. (Mass.) 293. And see Frisbee v. Hoffnagle, 11 Johns. (N. Y.) 50; McAllister v. Keab, 4 Wend. (N. Y.) 483; Durment v. Tuttle, 50 Minn. 426, 52 N. W. 909 ; Steinhauer v. Witman, 1 Serg. & R. (Pa.) 447; Gray v. Handkinson's Heirs, 1 Bay (S. C.) 278; Bell's Adm'r v. Hug- gins' Adm'rs, Id. 327; Trask v. Vinson, 20 Pick. (Mass.) 110; Chandler v. Marsh, 3 Vt. 1G2; Cook v. Mix, 11 Conn. 432; Tillotson v. Grapes, 4 N. H. 448 ; Tyler v. Young, 2 Scam. (111.) 447, 35 Am. Dec. 116 ; Davis v. McVickers, 11 111. 327. But see Sunderland v. Bell, 39 Kan. 21, 17 Pac. 600; McLeod v. Barnum, 131 Cal. 605, 63 Pac. 924. 220 Rice V. Grange, 131 N. Y. 149, 30 N. E. 46; Harmon v. Bird, 22 Wend. (N. Y.) 113; Perry v. Buckman, 33 Vt. 7; Potter v. Earnest, 45 Ind. 416 ; Smock v. Pierson, 68 Ind. 405, 34 Am. Rep. 269 ; Blackman v. Dowling, 63 Ala. 304 ; Byrne v. Cummings, 41 Miss. 192 ; Daniel v. Tarver, 70 Ga. 203 ; Dowdy V. McLellan, 52 Ga. 408; Bean v. Proseus (Cal.) 31 Pac. 49; Topp v. Wliite, 12 Heisk. (Tenn.) 165. 221 Rice V. Grange, 131 N. Y. 149, 30 N. E. 46. 2 22 Harmon v. Bird, 22 Wend. (N. Y.) 113. 223 GILES V. EDWARDS, 7 T. R. 181; CLAFLIN v. GODFREY, 21 Pick. (Mass.) 1; Steele v. Hobbs, 16 111. 59; Darst v. Brockway, 11 Ohio, 462; Foss T. Richardson, 15 Gray. (Mass.) 303 ; Chapman v. City of Brooklyn, 40 N. Y. 372; Leach v. Tilton. 40 N. H. 473; Richter v. Stock Co., 129 Cal. 367, 62 Pac. 39. And see cases cited supra, notes 207-209. The obligation to repay is quasi contractual. 472 DISCHARGE OF CONTRACT. (Ch. 11 DISCHARGE BY IMPOSSIBILITY OF PERFORMANCE. 250. Impossibility of performance arising subsequent to the forma- tion of a contract does not discharge the promisor, even though he xvBS not in fault, except — EXCEPTIONS— (a) 'Where the impossibility is created by law. (b) Where the subject-matter is destroyed, the rule being that, \(rhere the continued existence of a speci^c thing is essential to the performance of a contract, its destruction, from no de- fault of either party, operates as a discharge. ■ (c) In case of incapacity for personal services, the rule being that a contract -which has for its object the rendering of personal services is discharged by the death or incapacitating illness of the promisor.-24 Obvious physical impossibility, or legal impossibility, which is ap- parent upon the face of the promise, avoids the contract. There is no question of discharge, for there has in fact never been a contract. The reason for this is, as we have seen, that the promise is an unreal consideration for any promise given in return. ^^'^ Again, impossibihty which arises from the nonexistence of the subject-matter of the contract avoids it.-^'' Here, also, there is no question of discharge from a contract. The question is one of avoid- ance of the contract, and relates to its formation. We are here to deal with those cases in which a valid contract has been made, but has become impossible of performance because of facts and circumstances arising subsequent to its formation. The general rule is that such impossibility, even though it arises without any fault on the part of the promisor, does not discharge him from his liability under the contract. Of course he cannot perform his promise, as that has become impossible; but this is no excuse, and he may be held liable as for failure to perform. As we have seen in speaking of conditions subsequent, the promisor may, by the terms of the contract, make the performance of his promise conditional upon its continued possibility, and if he does so the promisee takes the risk, and must bear the loss if performance becomes impossible. If, how- ever, the promisor makes his promise unconditionally, it is his own lookout, and he takes the risk of being held liable, even though per- formance becomes impossible by reason of circumstances beyond his control. ^^^ "Where the contract is to do a thing which is possible 224 Anson, Cont. (4th Ed.) 320-325. 220 Ante, p. 134. 22fi Ante, p. 201. 227 Faradiue v. Jane. Aleyn, 2(5; Ford v. Cotesworth, L. R. 4 Q. B. 127; Kearon v. Pearson, 7 Hurl. & N. 35(5; The Harriman, 9 Wall. IGl, 19 L. Ed. 029; Jones v. U. S., 90 U. S. 24, 24 L. Ed. 044; JACKSONVILLE, M., P. P.Y. & NAV. CO. V. HOOPER, 100 U. S. 514, 10 Snp. Ct. 379, 40 L. Ed. 515; BEEBE V. JOHNSON, 19 Wend. (N. Y.) 500, 32 Am. Dec. 51S; Harmony v. § 250) BY IMPOSSIBILITY OF PEKl'OUMANCE. 473 in itself, the performance is not excused by the occurrence of an inev- itable accident or other contingency, although it was not foreseen by the party, nor was within his control." ^^^ In an old case, in which the plaintiff sued for rent due upon a lease, the defendant pleaded that a foreign prince had invaded the realm with a hostile army, and expelled defendant from the premises demised, whereby he could not take the profits out of. which the rent should have come. The court held that this was no excuse, "and this differ- ence was taken : that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused. * * * But when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Booth v. Mill Co., 60 N. Y. 487; STEES V. LEONARD, 20 Minn. 494 (Gil. 448); Harrison v. Railway Co., 74 Mo. 364, 41 Am. Rep. 318; School Dist. No. 1 v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Adams v. Nichols, 19 Pick. (Mass.) 275; Eugster v. West, 30 La. Ann. 119, 48 Am. Rep. 232; School Trustees v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373; SUMMERS v. HIBBARD, SPENCER, BARTLETT & CO., 153 111. 102, 38 N. E. 899, 46 Am, St. Rep. 872; Middlesex Water Co. V. Knappmann Whiting Co., 64 N. J. Law, 240, 45 Atl. 093, 49 L. R. A. 572, 81 Am. St. Rep. 467; Reichenbach v. Sage, 13 Wash. 364, 43 Pac. 354, 52 Am. St. Rep. 51. Where a person has contracted to build a house, he is neither excused from performance, nor entitled to recover for what he has done, by the fact that the house is destroyed by lire or other cause beyond his control, before its completion and acceptance by the owner. School Trustees v. Bennett, 27 N. .T. Law, 513, 72 Am. Dec. 373; Lawing v. Rintles, 97 N. C. 350, 2 S. E. 252 ; DERMOTT v. JONES, 2 Wall. 1, 17 L. Ed. 762 ; Fildew v. Besley, 42 Mich. 100, 3 N. W. 278, 36 Am. Rep. 433; Vogt v. Hecker (Wis.) 95 N. W. 90. Most courts hold that, where a person has agreed to make re- pairs or do other work on a specific building or chattel, its destruction before the work is finished will discharge the contract, and the workman may re- cover for what he has done, and it is immaterial that the work was only to be paid for on completion. See Whelan v. Clock Co., 97 N. Y. 293; Hin- drey v. Williams, 9 Colo. 371, 12 Pac. 436; BUTTERFIELD v. BYRON, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654; CLEARY v. SOIIIER, 120 Mass. 210; Cook v. McCabe, 53 Wis. 250. 10 N. W. 507, 40 Am. Rep. 765; Lord v. Wheeler, 1 Gray (Mass.) 282; WELLS v. CALNAN, 107 Mass. 514, 9 Am. Rep. 65; Haynes \. Baptist Church. 88 Mo. 2S5, 57 Am. Rep. 413; Weis v. Devlin, 67 Tex. 507, 3 S. W. 726, 60 Am. Rep. 38; Hysell V. Manufacturing Co., 46 W. Va. 158, 33 S. E. 95; ANGUS v. SCULLY, 176 Mass. 357, 57 N. E. 674; 49 L. R. A. 562, 79 Am. St. Rep. 318; Hayes v. Gross, 9 App. Div. 12, 40 N. Y. Supp. 1098, allirmed, 162 N. Y. 610, 57 N. E. 1112. But see APPLEBY v. MYERS, L. R. 2 C. P. 651; BRUMBY v. SMITH, 3 Ala. 123; SIEGEL, COOPER & CO. v. EATON & PRINCE CO., 105 111. 550, 46 N. E. 449 ; Huyett & Smith Mfg. Co. v. Chicago Edison Co., 167 111. 233, 47 N. E. 384, 59 Am. St. Rep. 272. 228 Jones V. U. S., 96 U. S. 24, 24 L. Ed. 644. •474 DISCHARGE OF CONTRACT. (Ch. 11 have provided against it by his contract. And therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it." -^^ Exceptions to the Rule. The exceptions to the rule must be distinguished from the cases in which the act of God is said to excuse from nonperformance of a con- tract. There are, as we have seen, certain contracts into which the act of God is introduced as an express, or, by custom, an implied, con- dition subsequent absolving the promisor; but there are forms of im- possibility which are said to excuse from performance because "they are not within the contract," — that is to say, that neither party can reasonably be supposed to have contemplated their occurrence, so that the promisor neither accepts them specifically nor promises uncon- ditionally in respect of them.^'** Same — Legal Impossibility. Legal impossibility arising from a change in the law ^^^ exonerates the promisor."- It was so held in an action on a covenant in a lease from the defendant to the plaintiff, by which the defendant agreed that neither he "nor his assigns" would, during the term, erect any but ornamental buildings on adjoining land, which had been retained by the defendant, but which was afterwards taken by a railroad com- pany under legislative authority, and used for the erection of a station. "The legislature," it was said, "by compelling him to part w^ith his land to a railway company, whom he could not bind by any stipula- tion, as he could an assignee chosen by himself, has created a new kind 220 Paradine v. Jane, Aleyn, 26. 230 BAILY V. DE CRESPIGNY, L. E. 4 Q. B., at page 185. If the im- possibility is caused by the act of the promisor, it does not excuse failure to perform. Ante, p. 448. The exceptions do not apply where a person has an option to perform his contract in either of two ways, and it becomes impos- sible of performance in one of the ways only'. In such a case he must per- form in the other way. State v. Worthiugton's Es'rs, 7 Ohio, 171, pt. 1; DRAKE V. WHITE, 117 Mass. 10; Jacquinet v. Boutron. 19 La. Ann. 30; Board of Education v. Townsend, 63 Ohio St. 514, 59 N. E. 223, 52 L R A. 868. 231 Otherwise if impossibility is created by foreign law. Bunker v. Hodg- son, 3 Maule & S. 267; Tweedie Trading Co. v. James P. McDonald Co. (D. C.) 114 Fed. 985. Cf. O'Neil v. Armsti-oug (1895) 2 Q. B. 70. 232 BAILY V. DE CRESPIGNY, L. R. 4 Q. B. 180; CORDES V. MILLER. 39 Mich. 581, 33 Am. Rep. 430; SEMMES v. INSURANCE CO., 13 AVall. 158, 20 L. Ed. 490; Brick Presbyterian Church v. City of New York, 5 Cow. (N. Y.) 538; JONES v. JUDD, 4 N. Y. 411; Mississippi & T. R. Co. v. Green, 9 Heisk. (Tenn.) 588. And see Buffalo E. S. R. Co. v. Railroad Co., Ill N. Y. 132, 19 N. E. 63, 2 L. R. A. 284. But there is no discharge when the law merely makes performance more bm-densome, though not impossible. Baker v. Johnson, 42 N. Y. 126; Newport News & M. V. Co. v. McDonald Brick Co.'s Assignee, 109 Ky. 408, 59 S. W. 332. § 250) BY IMPOSSIBILITY OF PERFORMANCE. 475 of assign, such as was not in the contemplation of the parties when the contract was entered into. To hold the defendant responsible for the acts of such an assignee is to make an entirely new contract for the parties." -^^ This exception does not apply to the full extent where the impossibility created by a change in the law is only temporary. In such a case liability to perform is only suspended, and the promise must be performed when the impossibility ceases.^^* Legal impossibility may arise as well by action of the courts or by the executive as of the legislature, and in all such cases the contract is discharged. Thus, where an agent was under employment by an insurance company, and before expiration of the term the company was enjoined from doing business, and a receiver was appointed, at the instance of the state, the contract was discharged. ^^'^ So, where a servant agreed with his master that if he left without giving two weeks' notice he should receive nothing for wages due, and was arrested and imprisoned for crime, it was held that he could never- theless recover.^^® And where performance of a charter party for loading a cargo at a foreign port was prevented by a declaration of war rendering performance impossible without illegal trading with the enemy, the contract was discharged.^ ^^ Same — Destruction of the Subject-Matter. Where the continued existence of a specific thing is essential to the performance of the contract, its destruction from no fault of either party operates as a discharge.^^* A leading case on this subject was one in which the defendant had agreed to let the plaintifif have the use of a music hall for the purpose of giving concerts upon certain days. Before the days of performance arrived the hall was destroyed by fire, and the plaintiff sued the defendant for losses arising from the consequent breach of contract. The court held that, in the absence of any express stipulation on the matter, the parties must be taken "to have contemplated the continuing existence as the foundation of what was to be done," and that, therefore, "in the absence of any 23 3 BAILY V. DE CRESPIGNY, L. R. 4 Q. B. 180. 234 Hadley v. Clarke, 8 Term. R. 259; Baylies v. Fettyplaee, 7 Mass. 325. 235rEOPLE V. INSURANCE CO., 91 N. Y. 174. To the same effect, where performance is prevented by appointment of receiver and injunction. Malcomson v. Wappoo Mills (C. C.) 88 Fed. 680; Burkhardt v. School Tp.. 9 S. D. 315, 69 N. W. 16. Contra, Spader v. Manufacturing Co., 47 N. J. Eq. 18, 20 Atl. 378; State v. Railroad Co., 61 Neb. 545, 85 N. W. 556, 236 HUGHES V. WAMSUTTA MILLS, 11 Alien (Mass.) 201. But seo Leopold V. Salkey, 89 111. 412, 31 Am. Rep. 93. 237 Esposits V. Bowden, 7 El. «& Bl. 703. 238 TAYLOR V. CALDWELL. 3 Best «S: S. 826; LORD v. WHEELER, 1 Gray (Mass.) 282; Walker v. Tucker, 70 111. 527; The Tornado, 108 U. S. 342. 2 Sup. Ct. 746. 27 L. Ed. 747; Ward v. Vance. 93 Pa. 499. Cf. Nicol v. Fitch, 115 Mich. 15, 72 N. W. 988, 69 Am. St Rep. 542. 476 DISCHARGE OP CONTRACT. (Cb li expressed or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an imphed condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor," ^^® Accordingly, where the contract is for the sale of specific goods, which perish without the seller's fault before the day appointed for delivery, the seller is ex- cused from his obligation to deliver, and the buyer from his obli- gation to pay.^*** Same — Incapacity for Personal Services. A contract which has for its object the rendering of personal serv- ices is discharged by the death or incapacitating illness of the prom- isor.^*^ In an action for damage sustained by a breach of contract on the part of a musician, who, having promised to perform at a concert, was prevented from doing so by a dangerous illness, the law governing the case was thus stated : "This is a contract to perform 239 TAYLOR V. CALDWELL, 3 Best & S. 826. 240 Eugg V. Minett, 11 East, 210; HOWELI- v. COUPLAND, 1 Q. B. Div. 258; DEXTEIl v. NORTON, 47 N. Y. 62, 7 Am. Rep. 415; Thompson v. Gould, 20 Pick. (Mass.) 134, 139; WELLS v. CALNAN, 107 Mass. 514, 9 Am. Rep. 65; Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325; McMillan v. Fox, 90 Wis, 173, 62 N. W. 1052. So where goods are to be manufactured in particular factory, which is destroyed. STEWART v. STONE, 127 N. Y. 500, 28 N. E, 595, 14 L. R. A. 215. Or a crop is to be grown on a particular piece of land, and the crop fails. HOWELL v. COUPLAND, 1 Q. B. Div. 258. Otherwise where no particular land is specified. ANDERSON v. MAY, 50 Minn, 280, 52 N. W, 530, 17 L. R. A. 555, 30 Am. St. Rep. 642. 241 Boast V. Firth, L. R. 4 C. P. 1 ; Underwood v. Lewis [1894] 2 Q. B. 306; SPALDING V. ROSA, 71 N. Y. 40, 27 Am. Rep. 7; Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57: LAKEMAN v. POLLARD, 43 Me. 463, 09 Am. Dec. 77 ; Shultz v. Johnson's Adm'r, 5 B. Mon. (Ky.) 497 ; Harrington v. Iron- Works Co., 119 Mass. 82; Fuller v. Brown, 11 Mete. (Mass.) 440; SCULLY v. KIRK- PATRICK, 79 Pa. 324, 21 Am. Rep. 62; Allen v. Baker, 80 N. C. 91, 40 Am, Rep, 444; Hubbard v. Belden, 27 Vt. 645; Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370; Smith v. Preston's Estate, 170 111. 179, 48 N. E. 688 ; Blakely v. Sousa, 197 Pa. 305, 47 Atl. 280, 80 Am. St, Rep. 821; Walsh v, Fisher, 102 Wis. 172, 78 N, W^ 437, 43 L, R. A, 810, 72 Am. St. Rep. 865 (violence of strikers); Dow v. Bank, 88 Minn. 355, 93 N. W. 121. So the death of the employer discharges the employe from perform- ance, Farrow v. Wilson, L. R. 4 C. P. 589 ; YERRINGTON v. GREENE, 7 R. I, 589, 84 Am. Dec. 578, but not necessarily the death of one of two joint employ- ers. Martin v. Hunt, 1 Allen (Mass.) 419 ; Hughes v. Gross, 166 Mass. 61, 43 N. E. 1031, 32 L. R. A. 620, 55 Am. St. Rep. 375. But the death of one member of a law firm which has contracted to conduct a case terminates the contract, the employment being personal. Wright v. McCampboll, 75 Tex. 644, 13 S. W. 293 ; Landa v. Shook, 87 Tex. 608, 30 S. W. 536 ; Baxter v. Billings, 83 Fed. 790, 28 C. C. A. 85. See, also, Hartford Fire Ins. Co. v. Wilcox, 57 111. 180 ; Salisbury v. Brisbane, 61 N. Y. 617; Martine v. Insurance Soc, 53 N. Y. 339, 13 Am. Rep. 529. § 250) BY I3IP0SSIBILITY OF PEIiFOKMANCE. 477 a service which no deputy could perform, and which, in case of death, could not be performed by the executors of the deceased; and I am of opinion that by virtue of the terms of the original bargain incapacity of body or mind in the performer, without default on his or her part, is an excuse for nonperformance. Of course the parties might ex- pressly contract that incapacity should not excuse, and thus preclude the condition of health from being annexed to their agreement. Here they have not done so, and, as they have been silent on that point, the contract must, in my judgment, be taken to have been conditional, and not absolute." ^^ On the same principle it has been held that where, from the preva- lence of a contagious and fatal disease in the vicinity of the place where one has contracted to labor for a specified time, the danger is such as to render it unsafe and unreasonable for men of ordinary care and common prudence to remaiii there, it is a sufficient cause for not fulfilling the contract.^*' The rule that the death of a person dis- charges his contract to render personal services has been held not to apply where the services are of such a character that they may be just as well performed by his personal representative.^** Where per- formance is thus rendered impossible by death or incapacity, the con- tractor or his personal representative may recover upon a quantum meruit, subject to the right of the defendant to have the recovery re- duced by the amount of any loss which he may have suffered from nonperformance of the contract.^*^ Same — Performance Prevented by the Promisee. If perfom]ance of a promise is prevented by the promisee, there is no breach of contract by the promisor.^** 242 Robinson v. Davison, L. R. 6 Exch. 209. 24 3 LAKEMAN V. POLLARD, 43 Me. 4G3, 09 Am. Dee. 77. But see DEWEY /. SCHOOL DIST., 43 Mich. 480, 5 N. W. 040, 38 Am. Rep. 200. 244 Hawl£ins v. Ball's Adm'r, 18 B. Mon. (Ky.) 810, 08 Am. Dec. 755; Siler V. Gray, 86 N. C. 506; Janin v. Browne, 59 Cal. 37; Blllinjr's Appeal. 106 Pa. 558: Howe Sewin^-Macb. Co. v. Rosensteel (C. C.) 24 Fed. 583; Shultz V. Johnson's Adm'r, 5 B. Mon. (Ky.) 497; Volk v. Stowell, 98 Wis. 385, 74 N. W. 118. 24 5 Patrick v. Putnam, 27 Vt. 759; Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388: LAKEMAN v. POLLARD, 43 Me. 463, 09 Am. Dec. 77; Green v, Gilbert, 21 Wis. 395; Parker v. Macomber. 17 R. I. 074, 24 Atl. 404, 10 L. R. A. 858. The right to recover except on full performance may be excluded by the express terms of the contract. CUTTER v. POW^ELL, 6 Term R. 320. 246 Black V. Woodrow, 39 Md. 194; Smith v. Alker, 102 N. Y. 87, 5 N. E. 791; ante, p. 408. 478 DISCHARGE OF CONTRACT. (Ch. H DISCHARGE BY OPERATION OF EAW. 251. There are rules of lavr -wliich, operating npon certain sets of cir- cumstances, trill bring about the discharge of a contract; as in case of (a) Merger. (b) Alteration of a ■written instrument. (c) Proceedings in bankruptcy. SAME— MERGER. 252. Acceptance of a higher security in the place of a lower merges or extinguishes the low^er, but (a) The t-wo securities must be different in their legal operation, the one of a higher efficacy than the other. (b) The subject-matter of the txiro securities must be identical. (c) The parties must be the same. The merger of a lower in a higher security does not depend on the intention of the parties. The mere acceptance of the higher security ipso facto extinguishes the lower.-*'' We shall presently see an in- stance of this form of discharge in the case of a judgment recovered in an action for breach of contract. The judgment extinguishes by merger the right of action arising from the breach. In like manner, if the parties to a simple contract embody its contents in a deed which they both execute, the simple contract is discharged.^*® In order to effect a merger, the two securities must be different in their legal operation, the one of a higher efficacy than the other. A second secu- rity, taken in addition to one similar in character, will not affect its validity unless there be a discharge by substituted agreement.^*® It is also necessary that the subject-matter of the two securities shall be identical,^^° and that the parties shall be the same.^''^ Even a security 247 Price V. Moulton. 10 C. B. 561; Jonea v. Johnson, 3 Watts & S. (Pa.) 276, 38 Am. Dec. 760; Moale v. Hollius. 11 Gill & J. (Md.) 11, 33 Am. Dec. 684; Keefer v. Zimmerman, 22 Md. 274; Wann v. McNulty, 2 Gilman, 355, 43 Am. Dec. 58; ante, p. 58. 248 Martin v. Hamlin, 18 Mich. 354, 100 Am. Dec. 181; Howes v. Barker, 3 Johns. (N. Y.) 506. 3 Am. Dec. 526; CLIFTON v. IRON CO., 74 Mich. 183. 41 N. W. 891, 16 Am. St. Rep. 621; Williamson v. Cline, 40 W. Va. 194, 20 S. E. 917. 249 HIGGEN'S CASE, 6 Coke, 45b; Andrews v. Smith, 9 Wend. (N. Y.) 53; Gregory v. Thomas, 20 Wend. (N. Y.) 17; Bill v. Porter, 9 Conn. 23; ante, pp. 58, 435. 250 Holmes v. Bell. 3 Man. c falo Eurb-Wire Co. v. Phillips, 64 Wia 338, 25 N. W. 20S. 488 DISCHARGE OF CONTRACT. (Ch. 11 promise was broken abruptly, and under humiliating circumstances, or if the defendant acted maliciously and in a way to injure the plain- tiff's character, exemplary damages may be recovered.^^* Assessment by the Parties. The parties to a contract frequently assess the damages at which they rate a breach of the contract by one or both of them, and intro- duce their assessment into the terms of the contract. They have the right to do this, but, as we have already seen, they cannot provide for a penalty to be paid by the one who shall break the contract.^ ^"^ Diificulties in Assessment — Speculative Damages. The mere fact that the ascertainment of the damages is difficult cannot deprive him of his right to whatever damages he has suffered as the natural consequence of the breach; the difficulty, when it arises, must be met by the jury. Thus, where a manufacturer, who was in the habit of sending his goods for exhibition to agricultural shows, and made a profit by the practice, intrusted goods to a carrier to be sent to a show, under circumstances which should have brought his object to its notice, and they delayed the goods so that they were too late for exhibition, it was held that, though the ascertainment of damages was difficult and speculative, this was no reason for not giv- ing damages.^®^ It is generally held, however, that while profits which would have been realized but for the breach of contract may be allowed as a proper element of damages, they must be proved with reasonable certainty, and not be merely conjectural, and that speculative or con- tingent profits cannot be recovered.^®^ 289 Southard v. Rexford, 6 Cow. (N. Y.) 254; Thorn v. Knapp, 42 N. Y. 474, 1 Am. Rep. 561; Johnson v. T-ravis, 33 Minn. 231, 22 N. W. 624; Mcrherson v. Ryan, 59 Mich. 33, 26 N. W. 321; Hughes v. Nolte, 7 Ind. App. 526, 34 N. E. 745. Cf. Clement v. Brown, 57 Minn. 314, 59 N. W. 198. 290 Ante, p. 411. 2P1 Simpson v. Railway Co., 1 Q. B. Div. 274. And see WAKEMAN v. MANUFACTURING CO., 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676 ; Swain V. Sehieffelin, 134 N. Y. 471, 31 N. E. 1025, 18 L. R. A. 385. 292 Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. 718; Dennis v. Maxfleld, 10 Allen (Mass.) 138 ; U. S. v. BEHAN, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168 ; Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147; Brigham v. Carlisle, 78 Ala. 243, 50 Am. Rep. 28; Fairchild v. Rogers, 32 I\Iinn. 209, 20 N. W. 191; Martin v. Deetz, 102 Cal. 55, 36 Pac. 368, 41 Am. St. Rep. 151; Mtaa Life Ins. Co. v. Nexsen, 84 Ind. 347, 43 Am. Rep. 91; Allis V. McLean, 48 Mich. 428, 12 N. W. 640; Howe Mach. Co. v. Bryson, 44 Iowa, 159, 24 Am. Rep. 735; Hubbard v. Rowell, 51 Conn. 423; Rice v. Caudle, 71 Ga. 605 ; Lewis v. Insurance Co., 61 Mo. 534 ; Danforth v. Railroad Co., 99 Ala. 331, 13 South. 5L 260) REMEDIES ON BREACH OF CONTUAGT. 481) SAME-SPECIFIC PERFORMANCE. 260. A suit in equity will, as a rule, lie for specific performance of a contract, except — EXCEPTIONS— (a) W^liere there is an adequate remedy at law. (b) 'Where the matter of the contract is such that the court can- not supervise performance. (o) 'Where the enforcement of specific performance would be in- equitable and unjust. The courts of common law have no power to compel specific per- formance, and specific performance is often the only adequate remedy. This remedy, however, is given by courts of equity. They can enforce a promise to do a thing by a decree for specific performance, and a promise to forbear from doing a thing by an injunction. The exercise of this jurisdiction by courts of equity is limited by certain rules, some of which we have already noticed in other connec- tions. ^^^ The subject being one relating more peculiarly to the juris- diction of courts of equity, we can only deal with it in a very general way. Adequate Remedy at Law. A suit for specific performance will not lie if there is an adequate remedy at law. It will only lie where the loss cannot be compensated in damages. ^^* This rule is well illustrated by the dififerent attitudes which the court has assumed in this matter towards contracts for the sale of land and contracts for the sale of goods. One who has con- tracted to purchase a particular piece of land may be unable to get its exact counterpart elsewhere, with the same surroundings and con- veniences. Courts of equity will therefore generally grant specific per- formance of contracts for the sale of land.^"'^ On the other hand, goods of the kind and quality contracted for are generally to be pur- chased elsewhere. Hence specific performance of a contract for the sale of goods will not be decreed,^®® except in the case of specific chat- 203 Ante, pp. 60, 163, 235. 294 Campbell v. Potter, 147 111. 576, 35 N. E. 364; American Box Mach. Co. V. Crossman, 61 Fed. 888, 10 C. C. A. 146 ; Gove v. City of Biddleford, 85 Me. 393, 27 Atl. 264; Porter v. Water Co., 84 Me. iur>. 24 Atl. 814. 20B Eastern C. R. Co. v. Hawkes, 5 H. L.. 331, 359; Johnston v. "Wadswortb, 24 Or. 494, 34 Pac. 13. But courts of equity will not even compel siwcifio performance of a contract to buy land simply to enforce payment of the purchase money. Holley v. Anness, 41 S. C. 349, 19 S. E. 646. 296 Cuddee^■. Rutter, 1 P. Wuis. 569, 5 Vin. Abr. p. 538, § 21, 1 White & T. Lead. Cas. Eq. [4th Am. Ed.] 1063; Lining v. Geddes, 1 McCord, Eq. (S. C.) 304. 16 Am. Dec. 006; Cowles v. Whitman, 10 Conn. 121, 25 Am. Dec. 60: K'imball v. Morton, 5 N. J. Eq. 26, 53 Am. Dec. 621; Rollins Inv. Co. v. George (C. C.) 48 Fed. 776. 490 DISCHARGE OF CONTRACT. (Cll. 11 tels, the value of which, either from their beauty, the interest attaching to them, or some other cause, cannot be represented by damages. ^®^ Inability of Court to Supervise and Insure Performance. A court of equity will not decree specific performance where the matter of the contract is such that it cannot supervise or insure its execution.^ ^^ This rule is illustrated by the refusal of courts of equity to decree specific performance of contracts involving personal serv- ices.-^® An injunction may be used to enforce a promise or covenant to forbear. It has been held that where an executory contract con- tains both positive and negative promises, and the court is unable to enforce the former, it may nevertheless enforce the latter by an injunc- tion. Thus where a professional singer was sued by the proprietor of a theater for specific performance of a contract to sing at his theater upon certain terms, and during a certain period to sing nowhere else, the court refused to enforce so much of the contract as related to the promise to sing, but enforced the promise not to sing elsewhere by granting an injunction. ^"^ Specific Performance Discretionary. The enforcement of specific performance is discretionary with the court, and the court must be satisfied not only that there was a valid contract, but that its enforcement would be equitable and just.^"'^ "It must appear that the enforcement will work no hardship and injustice, for, if that result would follow, the court will leave the parties to their 297 De Mattos v. Gibson, 4 De Gex & J. 276; Buxton v. Lester, 3 Atk. 384; Hapgood V. Rosenstock (C. C.) 20 Fed. 86; Adams v. Messinger, 147 Mass. 185, 17 N. E. 491, 9 Am. St. Rep. 679; Hull v. Pitrat (C. G.) 45 Fed. 94; Eaton, Eq. 527. 298 Wilson V. Railway Co., L. R. 9 Ch. App. 279; Grape Creek Coal Co. v. Spellman, 39 111. App. 6.30. 290 Lumley v. Wagner, 1 De Gex, M. & G. 616; Webb v. England, 29 Beav. 44; Clark's Case, 1 Blackf. (Ind.) 122, 12 Am. Dec. 213; Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955; Wm. Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 20 Atl. 467, 7 L. R. A. 779, 18 Am. St. Rep. 27S. 300 Lumley t. Wagner, 1 De Gex, M. & G. 616. And see McCaull v. Bra- ham (C. C.) 16 Fed. 37; Duff v. Russell, 133 N. Y. 678, 31 N. E. 622; CORT v. LASSARD. IS Or. 221, 22 Pac. 10.54, 6 L. R. A. 653, 17 Am. St. Rep. 726; Port Clinton R. Co. v. Railroad Co., 13 Ohio St. 544; Daly v. Smith, 38 N. Y. Super. Ct. 158, 49 How. Prac. 150; Richardson v. Peacock, 26 N. J. Eq. 40. Cf. Davis v. Foreman [1894] 3 Ch. 6.54; Rice v. D'Arville, 162 Mass. 559, 39 N. E. ISO; Welty v. .Jacobs, 171 111. 624, 49 N. E. 723, 40 L. R. A. 98. The principal case has been declared an anomaly to be followed in cases like it, but which it would be dangerous to extend. Anson, Cont. (8th Ed.) 314. 301 Webster v. Cecil, 30 Beav. 62; Hennessey v. Wool worth, 128 U. S. 438. 9 Sup. Ct. 109, 32 L. Ed. .500; Conger v. Railroad Co., 120 N. Y. 29. 23 N. E. 983 ; Mansflold v. Sherman, 81 Me. 365, 17 Atl. 300 ; Combs v. Scott, 76 Wis. 662, 45 N. W. 532. §§ 261-262) REMEDIES ON BREACH OF CONTRACT. 401 remedy at law, unless the granting of the specific relief can be ac- complished v/ith conditions which will obviate that result." *°* SAME— DISCHARGE OF RIGHT OF ACTION. 261. The right of action arising from a breach of contract can only be discharged in one of three i;7ays: (a) By the consent of the parties. (b) By the judgment of a court of competent jurisdiction. (c) By lapse of time. SAME— DISCHARGE BY THE CONSENT OF THE PARTIES. 262. Discharge by the consent of the parties may take place either — (a) By release, -which is a gratuitous xeaiver of the right of action, and must therefore be under seal. (b) By accord and satisfaction, xrhich is an agreement to discharge the right of action based on a consideration vrhich is exe- cuted.303 Release. A release is a gratuitous waiver by a person of a right of action ac- cruing to him from a breach of a promise made to him. There is no consideration for the waiver, and therefore, to be binding, it is neces- sary that it shall be under seal.^°* As we have seen, a gratuitous promise to forbear from the exercise of a right, if it is not under seal, is not enforceable. ^°' Accord and Satisfaction. An accorj l_ and aatisJaction is an agreement, wliich need nnt be under seal^the effect of which is to discharge the right of action i^ ,^, c:^scd by one of the parties against the other. In order to have this effect, there must be a consideration for the promise of the party entitled to sue. It is further necessary that the accord shall be executed ; otherwise the agreement is an accord without a satisfaction.^"® The promisor 802 Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501. 303 Anson, Cont. (4tb Ed.) 314. 304 MITCHELL v. HAWLBY, 4 Denio (N. Y.) 414, 47 Am. Dec. 2G0; Jack- sou V. Stackhouse, 1 Cow. (N. Y.) 122, 13 Am. Dec. 514; Shaw v. Pratt. 22 Pick. (Mass.) 308; HUNT v. BROWN, 146 Mass. 253, 15 N. E. 587; lugersoll T. Martin, 58 Md. 67, 42 Am. Rep. 322; KIDDER v. KIDDER, 33 Pa. 26S. 305 Ante, pp. 126-133. 308 Bayley v. Homan, 3 Bing. N. C. 915; LYNN v. BRUCE. 2 H. Bl. 317; Kromer v. Heim, 75 N. Y. 574, 31 Am. Rep. 491; Hosier v. Hursh, 151 Pa. 415, 25 Atl. 52; Costello v. Cady, 102 Mass. 140; Petty v. Allen, 134 Mass. 265; Flack v. Garland. 8 Md. 188; Simmons v. Clark, 56 111. 96; Pettis V. Ray, 12 R. I. 344; Hoxsie v. Limibcr Co., 41 Minn. 548, 43 492 DISCHARGE OF CONTRACT. (Ch. 11 must have obtained what he bargained for in lieu of his right of ac- tion, and he must have obtained something more than a mere fresh arrangement as to the payment or discharge of the existing liabiUty.^**'' It is not meant by this that a promise can never be received as a satis- faction. If the promise and not its performance is accepted in satisfac- tion, it is a good accord and satisfaction without performance. In other words, a jiew contract agreed upon, and accepted, as a satisfac- tion, operates as an accord and satisfaction.^"^ The satisfaction may consist in the acquisition of a new right against the debtor, as the re- ceipt from him of a negotiable instrument in Heu of payment; ^°^ or of new rights against the debtor and third persons, as in the case of a composition with creditors; ^^'^ or of something different in kind from that which the debtor was bound by the original contract to per- form ;^^^ but it must have been taken by the creditor as satisfaction for his claim in order to operate as a valid discharge. There can be no satisfaction without accord or agreement to that effect.^ ^^ N. W. 476: Schlitz v. Meyer, 61 Wis. 41S, 21 N. W. 243: Ck)bb v. Malone, 86 Ala. 571, 6 South. 6; Ogilvie v. Hallam, 58 Iowa, 714, 12 N. W. 730; Browning v. Grouse, 43 Mich. 489, 5 N. W. 604; Troutman v. Lucas, 63 Ga. 466; Frost v. Jolmson, 8 Ohio, 393; Simmons v. Hamilton, 56 Cal. 493; Johnson's Adm'r v. Hunt. 81 Ky. 321; Hemingway v. Stansell, 106 U. S. 399, 1 Sup. Ct. 473, 27 L. Ed. 245; Yazoo & M. V. R. Co. v. Fulton, 71 Miss. 385, 14 South. 271; Welch v. Miller, 70 Vt. 108, 39 Atl. 749. 3 07 McManus v. Bank, L. R. 5 Exch. 65. 308BABCOCK V. HAWKINS, 23 Vt. 561; MOREHOUSE v. BANK, 98 N. Y. 503; Whitney v. Cook. 53 Miss. 551; Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 136; Heiru v. Carron, 11 Smedes & M. (Miss.) 361, 49 Am. Dec. 65: Christie v. Craige, 20 Pa. 430; Bradshaw v. Davis, 12 Tex. 336; Bennett V. Hill, 14 R. I. 322; SCHWEIDER v. LANG, 29 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202; Sioux City Stock-Yards Co. v. Packing Co., 110 Iowa, 396, 81 N. W. 712. 309 Goddard v. O'Brien, 9 Q. B. Div. 37; Witherby v. Mann, 11 Johns. (N. Y.) 518; Guild v. Butler, 127 Mass. 386; Varney v. Conery. 77 Me. 527, 1 Atl. 683; Yates v. Valentine, 71 111. 643; Mason v. Campbell, 27 Minn. 54, 6 N. W. 405. 310 Ante, p. 133. 3" Ante, p. 131. 312 Preston v. Grant, 34 Vt. 201; Boston Rubber Co. v. Wringer Co., 58 Vt. 551, 5 Atl. 407. Thus it is held in England that if money or a check is ten- dered in full satisfaction of an unliquidated demand, and is kept by the cred- itor, it is a question of fact whether or not he accepts the payment as on the terms offered, 1. e., whether he assents to an accord and satisfaction. DAY V. McLEA, 22 Q. B. Div. 610. To the same effect, Tompkins v. Hill, 145 Mass. 379. 14 N. E. 177. The American cases, however, generally hold, anomalously, that in such case an accord and satisfaction results, even though the creditor insists that the payment is accepted merely on account. Fuller v. Kemp. 138 N. Y. 231, 33 N. E. 1034, 20 L, R. A. 785; NASSOIY v. TOMLIN- SON, 148 N. Y. 326. 42 N. E. 715, 51 Am. St. Rep. 695; Laroe v. Dairy Co.. 87 App. Div. 585, 84 N. Y. Supp. 609 (cf. Mack v. Miller. 87 App. Div. 359, 84 N. Y. Supp. 440) ; Anderson v. Granite Co., 92 Me. 429, 43 Atl. 21, 69 Am. St. Rep. 522; Rosema v. Porter, 112 Mich. 13, 70 N. W. 316; Lapp v, Smith, § 263) REMEDIES ON liKEACII OF CONTUACT. 493 We have already fully considered the question of the sufficiency of the consideration.^ ^^ SAME— DISCHARGE BY JUDGMENT. 263. Tlie right of a party to sue for breach of contract is discharged by the final judgment of a court of competent jurisdiction either in his favor or against him. In the former case the cause of action merges in the judgment, \irhile in the latter the judg- ment estops him.^i^ When the party entitled to sue for the breach of a contract made with him brings an action in a court of competent jurisdiction, and recovers a judgment, his right of action is thereby discharged. It merges in the judgment.^^"^ The result of legal proceedings taken upon a broken contract may be thus sunmiarized : 'i he bringmg of an action has not of itself any effect in discharging the right of action. Another action may be brought for the same cause in another court, and, though proceedings in such an action would be stayed, if they are merely vexatious, yet if action for the same cause is brought in a home court and in a foreign court, the fact that the defendant is being sued in the latter would not in any way affect his position in the former.^ ^® When the action is pursued to judgment, a judgment adverse to the plaintiff discharges the obligation by estoppel. The plaintiff cannot bring another action for the same cause so long as the judgment stands.^ ^^ The matter is res judicata. The judgment may be reversed 183 111. 179, 55 N. E. 717; HULL v. JOHNSON, 22 R. I. 66, 46 Atl. 182; Tal- bott V. Englisli, 156 Ind. 2U9, 59 N. E. 857. Aud see Prestou v. Grant, o4 \t. 201. 313 Ante, pp. 129-132. 3i4 Anson, Cont. (-Ith Ed.) 315, 316. 315 iiason V. Eldred, 6 Wall. 231, 18 L. Ed. 783; Smith v. Black, 9 Serg. & K. (Pa.) 142, 11 Am. Dec. 6S6; Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683; jNIILLER v. COVERT, 1 Wend. (N. Y.) 487; Bender- nagle v. Cocks, 19 Wend. (N. Y.) 207, 32 Am. Dec. 448; Turner v. Plowden, 5 Gill & J. (Md.) 52, 23 Am. Dec. 590; Oliver v. Holt, 11 Ala. 574, 46 Am. Dec. 288; Boynton v. Ball, 105 111. 627; Piko v. McDonald, 32 Me. 418, 54 Am. Dec. 597; Barnes v. Gibbs, 31 N. J. Law, 317, 86 Am. Dec. 210. 316 Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782; Wood v. Gamble, 11 Cush. (Mass.) 8, 59 Am. Dec. 135; O'Reilly v. Railroad Co., 16 R. I. 388, 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364, 6 L. R. A. 719 ; Sandwich Mfg. Co. V. Earl, 56 Minn. 390, 57 N. W. 938; McJilton v. Love, 13 111. 486, 54 Am. Dec. 449; Smith v. Lathrop, 44 Pa. 326, 84 Am. Dec. 448; Davis v. Morton, 4 Bush (Ky.) 442, 96 Am. Dec. 309. This docs not apply to actions in rem. 31T Patrick v. Shaffer, 94 N. Y. 423; Norton v. Doherty, 3 Gray (Mass.) 372, 63 Am. Dec. 758; Winslow v. Stokes, 48 N. C. 2So, 67 Am. Dec. 242; Russell V. Place, 94 U. S. 606, 'M L. Ed. 214; Cromwell v. Sac Co., 94 U. S. 351, 24 L. Ed. 195; Nispel v. Laparle, 74 111. 300. 494 DISCHARGE OF CONTRACT. (Ch. 11 by a higher court, or a new trial granted, and the parties may be re- mitted to their original positions.^ ^* An adverse judgment, in order to discharge the obligation by es- topping the plaintiff from reasserting his claim, must have proceeded upon the merits of t he ca s e and mus t be final. Where the litigation \has ended in a discontinuance or a nonsuit, or on demurrer for defect \n pleading, so that an actual decision on the merits has not been reach- Ad; or the finding of a judge or referee has not passed into a judg- ijnent, and so become absolutely fixed and final, — the proceedings have ijio conclusive character, and cannot operate as a bar.^^^ So, if a plain- tiff fails in his action because he has sued in a wrong character, or because he sued at a wrong time, as in case of an action brought be- fore fulfillment of a condition in the contract, such as the expiration of a period of credit on the sale of goods, — a judgment proceeding on these grounds will not prevent him from succeeding in a second ac- tion. ^2*> It is also necessary that the judgment shall have been ren- dered by a court of competent jurisdiction and shall be otherwise valid.^2^ As has been said, if the plaintiff succeeds, and obtains judg- ment in his favor, the right of action merges in the judgment, and is discharged. A new obligation arises in the judgment, a form of the so-called "contract of record, — a quasi contractual obligation." The obligation arising from the judgment may be discharged by payment of the judgment debt, or by satisfaction obtained by the creditor from the^ jDroperty of the debtor by the process of execution, or an action quasi_ex_contractu may be brought upon it. 318 Clark V. Bowen, 22 How. 270, 16 L. Ed. 337; Mattingly v. Lewisohn, 13 Mont. 508, 35 Pac. 111. 310 Webb V. Buckelew, 82 N. Y. 555; Audubon v. Insurance Co., 27 N. Y. 216; Leonard v. Barker, 5 Denio (N. Y.) 220; Atkins v. Anderson, 63 Iowa, 7.39, 19 N. W. 323; Taylor v. Larkin, 12 Mo. 103, 49 Am. Dec. 119; Gould v. Railroad Co., 91 U. S. 520. 23 L. Ed. 416; Linington v. Strong, 111 111. 152; Gage V. Ewing, 114 111. 15, 28 N. E. 379; Scbm-meier v. Johnson, 10 Minn. 319 (Gil. 2.50); Haws v. Tiernan, 53 Ta. 192; Gallup v. Lichter, 4 Colo. App. 296, 35 Pac. 985; Baugh v. Baugh, 4 Bibb (Ky.) 550; Pierce v. Hilton, 102 Cal. 276, 36 Pac. 595; Si vers v. Si vers, 97 Cal. 518, 32 Pac. 571. 320 Bull V. Hopkins, 7 Johns. (N. Y.) 22; McFarlane v. Cushman, 21 Wis. 406; Brackett v. People. 115 111. 29, 3 N. E. 723; Rodgers v. Levy, 36 Neb, 601, 54 N. W. 1080; Baxter v. Aubrey, 41 Mich. 13, 1 N. W. 897; Wood v. Faut, 55 IMich. 185, 20 N. W. 897. 321 Hickey v. Stewart, 3 How. 750, 11 L. Ed. 814; Stowell v. Chamberlain, 60 N. Y. 272; Reading v. Price, 3 J. J. Marsh. (Ky.) 62, 19 Am. Dec. 162; Mount v. Scholes, 120 111. 394. 11 N. E. 401; Richardson v. Aiken, 84 111. 221; Oleson v. Merrihew, 45 Wis. 397. §§ 204-205) REMEDIES ON BREACH OF CONTRACT. 495 SAME— LAPSE OF TIME. 264. Lapse of time may affect tlie remedy of the parties to a contract, but, in tlie absence of statutory provision, it cannot affect their rights. 265. In all the states there are statutes of limitation barring actions on contracts unless they are brought veithin a prescribed time. Laches may bar the right to rehef in equity,'^^ and at law a cred- itor's delay in asserting his claim may raise a rebuttable presumption that the debt is paid;^-^ but, aside from this, lapse of time, m the absence of statutory provision, does not affect the rights of the parties to a contract. The rights arising from a contract are of a permanent and indestructible character, unless either from the nature of the con- tract or from its terms it is limited in point of duration. ^^* In all states, however, there are "statutes of limitations," which pro- vide that actions on contracts must be brought within a certain number of years, or be barred. The time limited varies in the different states. In some states no distinction with respect to the time limited is made between the different kinds of contracts, while in others such a distinc- tion is made. These statutes vary in other respects, and only brief mention of some of their more general provisions can be made. Disabilities and Exceptions. Though, as a rule, the statute begins to run as soon as the cause of action accrues, and continues to run until the bar is complete, there are certain circumstances which suspend its operation. It is generally provided that infancy, coverture, insanity, or imprisonment shall, where the person entitled to sue is aft"ected by any of these disabilities when the cause of action accrues, suspend the operation of the statute until the disability is removed. A disability arising after the period of limi- tation has commenced to run will not affect the operation of the stat- ute. As a rule, ignorance that a right of action exists will not suspend the operation of the statute. Where, however, that ignorance was pro- 322 Eads V. Williams, 4 De Gex, M. & G. 674; Southcombe v. Bishop, G Hare, 213; Seculovich v. Morton, 101 Cal. G73, 3G Pac. 387. 40 Am. St. Rep. 106; Rogers v. Van Nortwick, 87 Wis. 414, 58 N. W. 757; Hogan v. Kyle, 7 Wash. 595, 35 Pac. 399, 38 Am. St. Rep. 910 ; Cocanougher v. Green, 93 Ky. 519, 20 S. W. 542; Rogers v. Saunders. 16 Me. 92, 33 Am. Dec. 635; Patterson v. Martz, S Watts (Pa.) 374, 34 Am. Dec. 474. 323 Williams v. Mitchell, 112 Mo. 300, 20 S. W. 647; Knight v. McKin- ney, 84 ISIe. 107, 24 Atl. 744; Wanmaker v. Van Buskirk, 1 N. J. Eq. 685, 23 Am. Dec. 748; Atkinson v. Dance, 9 Yerg. (Tenn.) 424, 30 Am. Dec. 422; Stover V. Duren, 3 Strob. (S. C.) 448, 51 Am. Dec. 634; Walker v. Emerson, 20 Tex. 706. 73 Am. Dec. 207. 324 Anson, Cont. (4th Ed.) 316; Llanelly Ry. & Dock Co. v. Railway Co.. L. R. 7 H. L. 550, 567. 496 DISCHARGE OF CONTRACT. (Ch. 11 duced by the fraud of the defendant, and no reasonable diligence would have enabled the plaintiff to discover that he had a cause of action, the statutory period commences vi^ith the discovery of the fraud. Acknowledgment and New Promise. Ordinarily the statute of limitations is held merely to bar the remedy, but not to extinguish the right, and therefore the right of action, after it has become barred, may be revived, ^^^ Where a simple contract, for instance, has resulted in a money debt, the right of action may be revived by subsequent acknowledgment or promise. In some juris- dictions there are statutory provisions requiring that the acknowledg- ment or promise, to be effectual, must be in writing, signed by the party to be charged or his duly-authorized agent. The sort of ac- knowledgment or promise which has been held to be requisite in order that a simple contract debt may be revived so as to start the running of the statute anew has been thus described : "There must be one of these three things to take the case out of the statute: Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied ; or, secondly, there must be an unconditional promise to pay the debt ; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed." ^^^ Same — Part Payment. A debt barred by the statute may also be revived by a part payment. A payment_XjrLaccount-of--the-prijicipal, or a payment o f inte rest on the debt, will take the contract out of the statute. It is provided by most, if not all, of the statutes requiring a new promise or acknowledgment to be in writing, and signed by the promisor or his agent, that nothing therein contained shall take away or lessen the effect of such part pay- ments. The payment, to have the effect of reviving the debt, must be made with reference to the original debt, and in such a manner as to amount to an acknowledgment of it.^^'^ 32 5 Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. Contra, Pierce v. Seymour, 52 Wis. 272, 9 N. W. 71, 38 Am. Rep. 737. 326 In re River Steamer Co., 6 Ch. App. 822, 828. Some courts have held that a mere acknowledgment of the debt as existing is sufHcient to re- move the bar, even though there be an express declaration of intention not to pay it ; but most courts hold that this is not enough (regarding the statute as one of repose rather than one of presumption), but that the acknowledg- ment must be of such a nature as to show that the debtor intended to promise to pay. Biddel v. Brizzolara, 64 Cal. 354. 30 Pac. 609; Phelan v; Fitzpatrick, 84 Wis. 240, 54 N. W. G14; Heany v. Schwartz, 155 Pa. 154, 25 Atl. 1078; Perry V. Chesley, 77 Me. 393; Hussey v. Kirkman, 95 N. C. 63. As to conditional promises, see Boyntou v. Moulton, 159 Mass. 248, 34 N. E. 361. 327 Waters v. Tompkins, 2 Cromp., M. & R. 722; Miner v. Lorman, 56 Mich. 212, 22 N. W. 205; State v. Corlies, 47 N. J. Law, 108; Sears v. Hicklin, 3 Colo. App. 331, 33 Pac. 137; Benton v. Holland, 58 Vt. 533, 3 Atl. 322: Blaskower v. Steel, 23 Or. 100, 31 Pac. 253. § 2GG) AGENCY. iUT CHAPTER Xn. AGENCY. 266. Creation of the Relation — Capacity of Parties. 267. How tlie Relation may Arise. 268-269. Form of Authority. 270. Agency by Estoppel. 271. Ratification. 272-273. Effect of Relation— Rights and Liabilities of Principal and Agent inter Se. 274. Rights and Liabilities as to Third Persons — Named Principal. 275. Name of Principal Undisclosed. 27G. Existence of Principal Undisclosed. 277. Fraud of Agent. 278. Determination of the Relation- In dealing with the operation of contract we noted that though one person cannot, by contract with another, confer rights or impose lia- bilities upon a third, yet that one person may represent another as being employed by him for the purpose of bringing him into legal re- lations with a third. Employment for this purpose is called "agency." The employer is called the "principal," and the employed his "agent." In dealing with the subject we shall consider (i) the mode in which the relation of principal and agent is formed; (2) the effects of the relation when formed; and (3) the mode in which the relation is brought to an end. CREATION OF THE RELATION— CAPACITY OF PARTIES. 266. Any one may be an agent, but no one can appoint an agent unless he is otbernrise capable of contracting. The contract between principal and agent by which the relation is formed is like any other contract, in so far as the principal is concerned, in requiring capacity to contract. A ; , .■ n who is incapable of enter- ing into a valid contract is incapable of employing an agent to enter into contracts for him. Any one, however, may be an agent, whether he has capacity to contract or not.^ 1 Mechem, Ag. §§ 44-68; Governor v. Daily, 14 Ala. 409; Lyon v. Kent, 45 Ala. 656; Talbot v. Bowen. 1 A. K. Marsh. (Ky.) 436, 10 Am. Dec. 747; Chas- tain V. Bowman, 1 Hill (S. C.) 270; Gray v. Otis, 11 Yt. 628; Hopkins v. Mol- linieux, 4 Wend. (N. Y.) 465 ; Butler v. Price, 110 Mass. 97. As to capacity of principal, Tiffany, Ag. 94; capacity of agent. Id. 105. Clabk Cont. (2d Ed.)— S2 498 AGENCY. (Ch. 12 SAME— HOW THE RELATION MAY ARISE. 267. Tlie relation of principal and agent arises by agreement of tlie parties, evidenced by \(rords or by conduct; and this may be: (1) By tbe offer of a promise for an act and performance of the act; or from consideration executed upon request. Cases of gratuitous agency are xpithin this class. (2) By the ofPer of an act for a promise, or by the acceptance of an executed consideration. Such are cases of ratification. (3) By the offer of a promise for a promise, resulting in mutual promises. As regards the mode in which the assent of the parties may be signified, we may accept the processes described in treating of offer and acceptance. It may arise by the ofifer of a promise for an act, and acceptance by performance of the act, or, in other words, from consideration executed upon request, as where services are asked for in such a manner as to import a promise of indemnity for any loss, risk, or expense incurred in rendering them. Such are all cases of gratuitous agency, in which the parties do not create, and possibly do not contemplate, as between themselves, any legal relation at the time the request is made. The obligation springs up when the service is rendered. The agent then becomes liable for misperformance of his undertaking, and the prin- cipal upon his implied promise of indemnity. It is said that a man who undertakes to do a service for another gratuitously is liable only for misfeasance, and not for nonfeasance. By this is meant that, where a man undertakes to act as agent or to do any other service for another gratuitously, the contractual liability does not arise until he has entered upon the work, and so affected the position of his employer, and that up to that moment there is nothing but a request to him to do the work importing a promise to indemnify him for losses which he may incur in doing it. He is not bound to perform the services, but, if he undertakes or enters upon the performance of them, he must perform. Where a person, for instance, voluntarily promises another to effect insurance on the latter's property, he is not liable if he neglects to insure at all; but if he does attempt to insure, and negligently, by omitting necessary formalities, takes out a policy upon which there can be no recovery, he is liable for the loss.^ Again, the relation may be created by the offer of an act for a prom- ise, or by the acceptance of an executed consideration. Such is the case where a person without authority makes a contract on behalf of 2 Wilkinson v. Coverdale, 1 Bsp. 74. And see THORNE v. DEAS, 4 Jotins. (N. Y.) 84; Nixon v. Bogin, 26 S. C. 611, 2 S. E. 302. § 267) CREATION OF THE RELATION. 49^ another, and the latter subsequently accepts the bargain or ratifies the contract.' This we shall presently consider more at length. Again, the relation may be created by mutual promises to employ and remunerate on one side, and to do the work required on the other. Quasi ex Contractu — Necessity. Circumstances operating upon the conduct of the parties may in cer- tain cases create a so-called agency from necessity. A husband is bound to support his wife, and, if he wrongfully leaves her without means of subsistence, she becomes "an agent of jiecessity to supply her wants^ upon his credit." * A carrier of goods or a master of a ship may under certain circum- stances, in the interest of his employer, pledge his credit, and will be considered to have his authority to do so. So, also, where goods are shipped to a person unordered, or not in correspondence with samples, it has been held that the consignee may, in the interest of the consignor, effect a sale of them.** In none of these cases does the relation of principal and agent arise from agreement It is imposed by law. It is an agency quasi ex con- tractu. Partnership. The contract of partnership confers on each partner an authority to act for the others in the ordinary course of the partnership business, and each partner accepts a corresponding liability for the acts of his copartners.' » Anson, Cont. (4th Ed.) 333. It may be doubted whether the analogy of offer and acceptance is not misleading. The proposed principal has an elec- tion to treat the conti'act as his own or not. Tiffany, Ag. 47. 4 Eastland v. Burchell, 3 Q. B. Div. 436; Seybold v. Morgan, 43 111. App. 39; Pierpont v. Wilson, 49 Conn. 450; Benjamin v. Dockham, 134 Mass. 418; Watkins v. De Armond, 89 Ind. 553; Eiler v. Cnill, 99 Ind. 375; Ferren v. Moore, 59 N. H. 106. 6 Kemp V. Pryor, 7 Ves. 246. 6 Hawken v. Bourne, 8 Mees. & W. 710; Tillier v. Whitehead, 1 Dall. (Pa.) 269, 1 L. Ed. 131 ; Lucas v. Bank, 2 Stew. (Ala.) 280. 500 AGENCY. (Ch. 12 SAME— FORM OF AUTKOHITY— ESTOPPEI.. 268. Authority to make a contract under seal must be under seal; but an agent may, under parol authority, attach a seal for his prin> cipal in his presence and by his direction. 269. Authority to make a parol contract, Asrhether the contract is re- quired by the statute of frauds to be in vpriting or not, may, unless other\irise provided by statute, be either in writing, or by word of mouth, or by conduct. 270. ESTOPPEL. A person may by his wrords or conduct be estopped to deny that another person has authority to make a contract. In order that an agent may make a binding contract under seal, he must receive authority under sealJ Such a formal authority is called a "power of attorney." There is an exception to this rule, and it is said to t)e the only exception, — where the agent affixes the seal of the principal in his presence and by his direction.^ In some states the authority of an agent to make a contract for the sale of land is required by the statute of frauds to be in writing.® And in Kentucky authority to bind another as surety is required by statute to be in writing.^ ° Aside from this and possibly other statutory re- quirements, authority, even to enter into a contract required by the statute of frauds to be in writing, need not be given in any special form. Writing or words may indicate the intention of the parties.^^ T Hanford v. SIcNair, 9 Wend. (N. Y.) 54; Mackay v. Bloodgood, 9 Johns. (N. Y.) 285; Heath v. Nutter, 50 Me. 378; Kime v. Brooks, 31 N. C. 218; Rowe V. Ware, 30 Ga. 278; Perry v. Smith, 29 N. J. Law, 74; Won-all v. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Shuetze v. Bailey, 40 Mo. 69; Elliott v. Stocks, 67 Ala. 336; Gordon v. Bulkeley, 14 Serg. & R. (Pa.) 331; Wheeler v. Nevius, 34 Me. 54; Baker v. Freeman, 35 Me. 485; Cummins v. Gassily, o B. Mon. (Ky.) 74; Cain v. Heard, 1 Cold. (Tenn.) 163; Graham v. Holt, 25 N. C. 300, 40 Am. Dee. 408; Maus v. Worthing, 4 111. 26. Parol authority is sufficient to enable an agent to make a binding parol contract for a convey- ance under seal by the principal, though the agent himself could not so convey without authority under seal. Ledbetter v. Walker, 31 Ala. 175; Baum v. Dubois, 43 Pa. 2G0; Force v. Dutcher, 18 N. J. Eq. 401. A contract under seal, made by an agent under parol authority, may be binding as a parol contract where the seal may be rejected as sm-plusage. Worrall v. Mimn, 5 N. Y. 229, 55 Am. Dec. 330; Tapley v. Butterfield, 1 Mete. (Mass.) 515, 35 Am, Dec. 374; DiCkerman v. Ashton, 21 Minn. 538; Nichols v. Haines, 98 Fed. 692, 39 C. C. A. 235. Contra, Wheeler v. Nevins, 34 Me. 54. 8 Hanford v. INIcNair, 9 Wend. (N. Y.) 54; Mackay v. Bloodgood, 9 Johus. (N. Y.) 285; Ball v. Dunsterville, 4 Term R. 313; Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Doc. 740. Ante, p. 90. 10 First Nat. Bank v. Gaines, 87 Ky. 597, 9 S. W. 396. 11 Ante, p. 90; Shaw v. Nudd, 8 Pick. (Mass.) 9; Merritt v. Clason, 12 Johns. fN. Y.) 102, 7 Am. Dec. 286; Moreland v. Houghton, 94 Mich. 548, 54 N. W. 285; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345; Kennedy v. Ehlen, 31 W. Va. 540, 8 S. E. 308; Watson v. Sherman, 84 111. 267; Blacknall v. §§ 2GS-270) CREATION OF THE RELATION. 501 Same — Implied AiUJwrity — Conduct. Not only is this true, but authority may be impHed from conduct. If a master allows his servant or child to habitually purchase goods for him from a tradesman on credit, the latter becomes entitled to look to the master for payment for such things as are supplied to the servant or child in the ordinary course of dealing. So, also, with hus- band and wife. Marriage and cohabitation do not of themselves imply authority in the wife to pledge her husband's credit; but, if the wife is allowed to deal with a tradesman, the husband will be considered to have held her out as his agent, and will be liable for her purchases. ^^ "If a tradesman has had dealings with the wife upon the credit of the husband, and the husband has paid him without demurrer in respect of such dealings, the tradesman has the right to assume, in the absence of notice to the contrary, that the authority of the wife which the hus- band has recognized continues. The husband's quiescence is in such cases tantamount to acquiescence, and forbids his denying an authority which his own conduct has invited the tradesman to assume." ^^ There is notliijig,Jiowever,jn the relation of master and servant, paren t and _ child, or husband and wife to give an inherent authority to the servants- child, or wife.^* The authority can only_jpring from, the words-er-' conduct of the master, parents ox husband. So, also, a wife may, by her conduct, hold out and constitute her husband as her agent. He has no inherent authority to act for her,^^ but if, by her conduct, she holds him out as her agent, she will be bound by his acts - within-the— scope of his apparent authority.^" TTies'e relations enable an authority to be the more readily inferred Parish. 59 N. C. 70, 78 Am. Dec. 239; Curtis v. Blair, 26 Miss. 309, 59 Am. Dec. 257; Worrall v. Munn. 5 N. Y. 229, 55 Am. Dec. 330; Talbot v. Bowen, 1 A. K. Marsh. (Ky.) 436, 10 Am. Dec. 747. But see Simpson v. Commou- wealth, 89 Ky. 412. 12 S. W. 630. 12 Debenham v. Mellon, 5 Q. B. Div. 403; Fenner v. Lewis, 10 Johns. (N. Y.) 38; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Gates v. Brower, 9 N. Y. 205, 59 Am. Dec. 530; Snell v. Stone, 23 Or. 327, 31 Pac. 663. So where a husband allows his wife to manage his farm and attend to the business of it. Benjamin v. Benjamin, supra. 13 Debenham v. Mellon. 5 Q. B. Div. 403. 14 Sawyer v. Cutting, 23 Vt. 48(5; Johnson v. Stone, 40 N. H. 197, 75 Am. Dec. 706; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Owen v. White, 5 Port. (xVla.) 435, 30 Am. Dec. 572; Savage v. Davis, 18 Wis. 008; Gavin v. Bishoff, 80 Iowa, 605, 45 N. W. 306; Lane v. Ironmonger, 13 Mees. & W. 368: Gulick v. Grover, 31 N. J. Law, 182. 15 Mead v. Spalding, 94 Mo. 43. 6 S. W. 384; Gilbert v. Deshon, 107 N. Y. 324, 14 N. E. 318; McLaren v. Hall, 26 Iowa, 297; Price v. Seydel, 46 Iowa, 696; Trimble v. Thorson, 80 Iowa, 246. 45 N. W. 742; Runyon v, Snell, 116 Ind. 164, 18 N. E. 522. 9 Am. St. Rep. 839. 16 Arnold v. Spm-r, 130 Mass. .347; Rankin v. West, 25 Mich. 195; Lavassar v. Washburne, 50 Wis. 200, 6 N. W. 516. 502 AGENCY. (Ch. 12 from conduct; but, apart from them, conduct alone may crea te so strong an appearance of authority as to estop the_paxty-i«uiL_d£iiying. ^ts existence. ^'^ Thus, where the plaintrff^Ead allowed a broker to pur- chase hemp for him, and by plaintiff's desire it was entered in the place of deposit in the broker's name. The broker sold the hemp, and it was held that plaintiff's conduct gave him authority to do so. "Stran- gers," it was said, "can only look to the acts of the parties and to the external indicia of property, and not to the private communications which may pass between a principal and his broker; and, if a person authorize another to assume the apparent right of disposing of prop- erty in the ordinary course of trade, it must be presumed that the ap- parent authority is the real authority." ^* This is called by Sir Wil- liam Anson "agency by estoppel." SAME— RATIFICATION. 271. Ratification is Tirliere a person adopts a contract made on bis behalf by another inritliont authority; and it is governed by the follovcing rules: ^a) The agent must have contracted as agent, and not on his o^vn account. (b) The principal must have been in contemplation, or at least ascer- tainable, at the time. (c) It follovrs that the principal must have been in existence at the time. mraercial Bank v. Norton, 1 Hill (N. Y.) 501. CO Hall V. Huntoon. 17 Vt, 244. 44 Am. Dec. 332; Rathbon v. Budlong, 15 Johns. (N. Y.) 1 ; Woodbridge Tp. v. Hall, 47 N. J. Law, 388, 1 Atl. 492 ; Ogden V. Raymond, 22 Conn. 379, 58 Am. Dec. 429; Seery v. Socks, 29 111. 313; Michael v. Jones, 84 Mo. 578 ; and cases hereafter cited. § 274) EFFECT OF THE RELATION. 513 the agent's authority ; and (2) the rights of the parties where an agent exceeds his authority. "Much trouble has been taken to distinguish general from special agents, as having two sorts of authority, different in kind from one another; but one may safely say that such a difference is one of de- gree only." ^^ Whether the authority was general or special can make no difference except in determining whether the agent exceeded his au- thority. If the contract into which he has entered was within or with- out his authority, the effect is the same in either case.®^ If a person employs another specially to buy a horse for him, or to do any other single piece of business, the latter has authority to do whatever is necessary to accomplish that object; but he cannot bind his principal by a contract foreign to the particular object.®^ If a person employs another generally to manage and conduct his business, the latter may bind his principal by any contracts necessary or proper in the conduct of that business, but he cannot bind him by contracts foreign to the business.^* These cases differ in nothing but the extent of the au- thority given. The extent of the authority is determined in both cases according to the general rule that the scope of an agent's authority is to be measured by the nature and necessities of the thing to be ac- complished. There is no difference in kind between the cases. In neither of them does the agent incur any personal liability to any one with whom he contracts, so long as he contracts as agent, names his principal, and keeps within the limits of his authority. The acts of a general agent, known as such, govern his principal in 61 Anson. Cont. (4th Ed.) 344. 82 Butler V. Maples, 9 Wall. 766, 19 L. Ed. 822 ; Huntley v. Mathias, 90 N. C. 101, 47 Am. Kop. 516; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Hatch v. Taylor, 10 N. H. 538; Bryant v. Moore. 26 Me. 84, 45 Am. Dec. 96; Wheeler v. McGuire, 86 AJa. 398, 5 South. 190. 2 L. R. A. 808; Loudon' Sav. Fund Soc. v. Bank, 36 Pa. 498, 78 Am. Dec. 390; Piercy v. Hedrick, 2 W. Va. 45S, 98 Am. Dec. 774. 6 3 Rossiter v. Rossiter, 8 Wend. (N. Y.) 494. 24 Am. Dec. 62; Daw v. Stokes, 32 N. J. Law, 249, 90 Am. Dec. 655; INIoore v. Loekett, 2 Bibb. (Ky.) 67, 4 Am. Dec. 683; Loudon Sav. Fund Soc. v. Bank, 36 Pa. 498. 78 Am. Dec. 390: Huber v. Zimmerman, 21 Ala. 488. 56 Am. Dec. 255; Goodloe v. Godley, 13 Smedes & M. (Miss.) 233, 51 Am. Dee. 150; Reitz v. Martin, 12 Ind. 306, 74 Am. Dec. 215; Thompson v. Stewart, 3 Conn. 171, 8 Am. Dec. 168; Towle V. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; Paige v. Stone, 10 Mete. (Mass.) 100, 43 Am. Dec. 420; Baring v. Peirce, 5 Watts & S. (Pa.) 548, 40 Am. Dec. 534; Brown v. Johnson, 12 Smedes & M. (Miss.) 398, 51 Am. Dec. 118; Wood V. Goodridge, 6 Gush. (Mass.) 117. 52 Am. Dec. 771; Pursley v. Morrison, 7 Ind. 356, 63 Am. Dec. 424; Trudo v. Anderson, 10 :\Iich. 357, 81 Am. Dec. 795. 84 Notes 65, 67, 68, Infra; Wood v. McCain, 7 Ala. 800, 42 Am. Dec. 612; Trout V. Emmons, 29 111. 433, 81 Am. Dec. 326; Cooley v. Willard. 34 III. 68, 85 Am. Dec. 296; Brockway v. Mullin. 46 N. J. Law, 448, 50 Am. Rep. 442; Despatch Line v. Manufacturing Co., 12 N. H. 205, 37 Am. Dec. 203. Claek Cont. (2d Ed.)— 33 514 AGENCY. (Cb. 12 all matters coming- within the proper and legitimate scope of the busi- ness to be transacted, although he violates by these acts his private in- structions; Tor his authority cannot be limited by any private instruc- tions, unless known to the person dealing with him.'^^ If the agency is special, and is known, it is the duty of the person dealing with the agent to inquire into the nature and extent of the authority conferred, and to deal with the agent accordingly.^" Where the special character of the agency is not known, and the principal has clothed the agent with apparent powers, strangers, in dealing with the agent, may assume that such apparent powers are possessed. The principal cannot, by private communications with his agent, limit the authority which he allows the agent to assume.®'' "There are two cases in which a principal becomes liable for the acts of his agent, — one, where the agent acts within the limits of his authority ; the other, where he transgresses the actual limits, but acts within the apparent limits, of his authority, where those apparent limits have been sanc- tioned by the principal." '* 6B Wheeler v. McGuire, 86 Ala. 398, 5 South. 190, 2 L. R. A. 808; Whitehead V. Tuckett, 15 East, 400; Hatch v. Taylor, 10 N. H. 538; Hubbard v. Ten Brook, 124 Pa. 291, 16 Atl. 817, 2 L. R. A. 823. 10 Am. St, Rep. 585; Loudon Sav. Fund Soc. v. Bank, 36 Pa. 498, 78 Am. Dec. 390; Lightbody v. Insurance Co., 23 Wend. (N. Y.) 18; Munn v. Commission Co., 15 Johns. (N. Y.) 44, 8 Am. Dee. 219; Rossiter v. Rossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62; Lobdell V. Baker, 1 Mete. (Mass.) 193, 35 Am. Dec. 358; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Walker v. Skip with, Meigs (Teun.) 502. 33 Am. Dec. 161; Williams v. Getty, 31 Pa. 461, 72 Am. Dec. 757; Lister V. Allen, 31 Md. 543, 100 Am. Dee. 78 ; Sails v. Miller, 98 Mo. 478, 11 S. W. 970; Topham v. Roche, 2 Hill (S. C.) 307, 27 Am. Dec. 387; Hubbard v. Ten Brook, 124 Pa. 291, 16 Atl. 817, 2 L. R. A. 823, 10 Am. St. Rep. 585; Banks V. Everest, 35 Kan. 687, 12 Pac. 141. 86 Hatch V. Taylor, 10 N. H. 538; Snow v. Perry, 9 Pick. (Mass.) 539; Sand- ford V. Handy, 23 Wend. (N. Y.) 260; Rossiter v. Rossiter, 8 Wend. (N. Y.) 494, 24 Am. Dec. 62; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; Bryant V. Moore, 26 Me. 84, 45 Am. Dec. 96; Ruppe v. Edwards, 52 Mich. 411, IS N. W. 193; Dowden v. Cryder (N. J. Err. & App.) 26 Atl. 941; Bohart v. Oberne, 36 Kan. 284, 13 Pac. 388; Stovall v. Commonwealth, 84 Va. 246, 4 S. E. 379; Yates v. Yates, 24 Fla. 64, 3 South. 821. 67 Hamill v. Ashley, 11 Colo. 180, 17 Pac. 502; Jackson v. Emmens, 119 Pa. 356, 33 Atl. 210; Shaw v. Williams, 100 N. C. 272. 6 S. E. 196; Howell V. Graff, 25 Neb. 130, 41 N. W. 142; Hayner v. Churchill, 29 Mo. App. 676. And see cases in the following note, and in notes 64, 65, supra. 68 Miuldick V. Marshall, 16 C. B. (N. S.) 393; Law v. Stokes, 32 N. J. Law, 249; Lister v. Allen, 31 Md. 543, 100 Am. Dec. 78; Bryant v. Moore. 26 Me. 84, 45 Am. Dec. 96; Williams v. Mitchell, 17 Mass. 98; Breckenridge v. Lewis, 84 Me. 349, 24 Atl. 864, 30 Am. St. Rep. 353; Talmage v. Bierhouse, 103 Ind. 270, 2 N. E. 716; Hatch v. Taylor, 10 N. H. 538; Gallinger v. Traffic Co., 67 Wis. 529, 30 N. W. 790; Aldrich v. Wilmarth (S. D.) 54 N. W. 811; Palmer V. Roath, 80 Mich. 602, 49 N. W. 590; Williams v. Getty, 31 Pa. 461, 72 Am. Dec. 757; Wincholl v. Express Co., 64 Vt. 15, 23 Atl. 728; Barnett v. Glutting, 3 Ind. App. 415, 29 N, E. 927; Allis v. Voigt, 90 Mich. 125, 51 N. W. 190; § 274) EFFECT OF THE RELATION. 515 In like manner, as we have seen, an implied authority may be de- duced from the nature and circumstances of the particular act done by the principal. If a principal sends his commodity, for instance, to a place where it is the ordinary business of the person to whom it is con- fided to sell, it will be presumed that the article is sent for the purpose of sale ; and where an article is sent in such a way, and to such a place, as to exhibit an apparent purpose of sale, the principal will be bound by a sale by his agent, though the latter, unknown to the purchaser, may have exceeded his actual authority. "** It may be well for us to note shortly the amount of authority with which certain kinds of agents are invested in the ordinary course of their employment. An auctioneer is an agent to sell goods at a public auction. He is primarily an agent for the seller, but, upon the goods being knocked down, he becomes also the agent of the buyer; and he is so, as we have seen, for the purpose of the signatures of both parties, to satisfy the statute of frauds. He has not merely an authority to sell, but actual possession of, the goods, and a lien upon them for his charges. He may sue the purchaser in his own name,''*' and even where he con- tracts avowedly as agent, and for a known principal, he may introduce terms into the contract which he makes with the buyer, so as to render himself personally liable.''^ A factor, by the rules of common law and of mercantile usage, is an agent to whom goods are consigned for the purpose of sale, and he has possession of the goods, authority to sell them in his own name, and a general discretion as to their sale. He may sell on the usual terms of credit, may receive the price, and give a good discharge to the buyer.'' ^ He further has a lien upon the goods for the balance of account as between himself and his principal, provided he has pos- session of the goods, and the right of property in them is in his prin- Carmichael v. Buck. 10 Rich. (S. C.) 332, 70 Am. Dec. 226; Ayer v. Manufa(> turing Co., 147 Mass. 46, 16 N. E. 754; Mason v. Taylor, 38 Minn. 32, 35 N. W. 474. 6 9 Ante, p. 501 ; Towle v. Leavitt. 23 N. H. 373, 55 Am. Dec. 195; Piclvering V. Busk, 15 East, 38; Everett v. Saltus, 15 Wend. (N. Y.) 474; Sandford v. Handy, 23 Wend. (N. Y.) 260. TOHulse V. Young, 16 Johns. (N. Y.) 1; Mintum v. Main, 7 N. Y. 220; Beller v. Block, 19 Ark. 566; Walker v. Hen-ing, 21 Grat. (Va.) 678, 8 Am. Rep. 616; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659; Brent v. Green, 6 Leigh (Va.) 10. Ti Wolfe V. Home, 2 Q. B. Div. 355. 7 2 D^Yight V. Whitney, 15 Pick. (Mass.) 179; Slack v. Tucker, 23 Wall. 321, 23 L. Ed. 143; Hutchinson v. Boners, 6 Cal. 383; James v. McCredie, 1 Bay (S. O.) 294; Given v. Lemoine, 35 Mo. 110; Van Alen v. Vanderpool, 6 Johns. (N. Y.) 69, 5 Am. Dec. 192; Pinkham v. Crocker, 77 Me. 503, 1 Atl. 827; Leverick v. Meigs, 1 Cow. (N. Y.) 645; McConnico v. Curzen, 2 Call. (Va.) 358, 1 Am. Dec. 540. 51G AGENCY. (Ch. 12 cipal. If he voluntarily relinquishes possession, he loses his right to a lien.''^ He also has an insurable interest in the goods. Such is the authority of a factor at common law, — an authority which the prin- cipal cannot restrict, as against third parties, by instructions privately given to his agent. This authority has been extended by statute in some jurisdictions. A broker is an agent primarily to establish privity of contract be- tween two parties. Where he is a broker for sale, he has not posses- sion of the goods, and so he has not the authority thence arising which a factor enjoys. Nor has he authority to sue in his own name on con- tracts made by him. A del credere agent is an agent for the purpose of sale, but in addi- tion to this he gives an undertaking to his employer that the parties with whom he is brought into contractual relations will perform the engagements into which they enter. He does not guaranty the solv- ency of these parties, or promise to answer for their default, but he promises to indemnify his employer against his own inadvertence or ill fortune in making contracts for him with persons who cannot or will not perform them.''* Rights and Liabilities of Agent. As a rule, an agent cannot sue in his own name on a contract into which he has entered, as agent, for a named principal.''^ The party with whom he contracted has presumably looked to the named prin- cipal, and cannot, unless he so chooses, be made liable to one with whom he dealt merely as a means of communication. To this rule there are exceptions: (i) Where the agent is the real principal; and (2) where he has a special interest in the subject-matter of the con- tract. Where the agent is the real principal, and the party with whom he contracts knows of this fact, and deals with him as the real prin- cipal, he may sue on the contract in his own name, although he signed 73 Winter v. Coit, 7 N. Y. 2SS, 57 Am. Dec. 522; Elliot v. Bradley, 23 Vt. 217; Vail v. Diu-ant, 7 Allen (Mass.) 408, S3 Am. Dec. 695; Weed v. Adams, 37 Conn. 378; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; Gragg v. Brown, 44 Me. 157; Brown v. Combs, G3 N. Y. 598; Scliiffer v. Feagin, 51 Ala. 335; Brown v. Wiggin, 16 N. H. 312; Winne v. Hammond, 37 HI. 99; Eaton V. Truesdail, .52 111. 307. 74 Dalton V. Goddard, 104 Mass. 497; Bradley v. Richardson, 23 Vt. 720; Swan V. Nesmith, 7 Pick. (]Mass.) 220, 19 Am. Dec. 283; Holbrook v. Wriglit, 24 Wend. (N. Y.) 169; Smock v. Brush, 02 Ind. 156; Lewis v. Brehme, 33 Md. 412, 3 Am. Rep. 190 ; Coulurier v. Hastie, 8 Exch. 40 ; Grove v. Dubois, 1 Term R, 112. 75Gunn V. Cantine, 10 Johna (N. Y.) 387; Gilmore v. Pope, 5 Mass. 491; Jones V. Hart, 1 Hen. & M. (Va.) 470; Inhabitants of Garland v. Reynolds, 20 Me. 45; Kent v. Bernstein, 12 Allen (Mass.) 342. But it has been held otherwise where the contract was payable to the agent by name. Sharp v. Jones, 18 Ind. 314, 81 Am. Dec. 350; Doe v. Thompson, 22 N. H. 217. § 274) EFFECT OF THE RELATION. 517 the contract as agent of a named principal.''^ It has also been held that an agent, such as a factor or auctioneer, who has a special interest in the contract, as for commissions, may sue thereon in his own name.'^^ It is also a general rule that an agent who contracts, as agent, for a named principal, cannot be sued on the contract ; ''^ and there are very few exceptions to the rule. The first exception is in case of contracts under seal. An agent who makes himself a party to a con- tract under seal is bound thereby at common law, though he is de- scribed as agent.''® Another exception is where an agent contracts for a foreign prin- cipal. It has been held in England, and in some of our states, that an agent who contracts on behalf of a foreign principal is held, by the usage of merchants, to have no authority to pledge his principal's credit, and becomes personally liable on the contract.^" In New York the contrary has been held.^^ Probably in no state would a sister state be regarded as a foreign country within the rule.^^ When a person without authority makes a contract on behalf of another, the latter is not bound unless he ratifies the contract. If the professed agent contracts in his own name he is, of course, personally liable on the contract. If, however, he contracts in the name of the ostensible principal, the professed agent is not liable on the contract, because it does not purport to be his, and to hold him liable on it would be to make a contract, not to construe it** This rule is sustained by T8 Raynor v. Grote, 15 Mees. & W. 359. 7T Baltimore & P. Steamboat Co. v. Atkins, 22 Pa. 522; Graham v. Duck- wall, S Bush (Ky.) 12; Whitehead y. Potter, 2G N. C. 257; Toland v. Mur- ray, IS Johns. (N. Y.) 24. 7 8 Jefts V. York, 4 Cush. (Mass.) 371, 50 Am. Dee. 791; McCurdy v. Rogers, 21 AVis. 199, 91 Am. Dec. 4G8; Hal] y. Huntoou, 17 Vt. 244, 44 Am. Dec. 332; Lehman v. Feld (C. C.) 37 Fed. 852; Simonds v. Heard, 23 Pick. (Mass.) 120, 34 Am. Dec. 41; Ogden v. Raymond, 22 Conn, 379, 58 Am. Dec. 429; Bailey V. Cornell, GG Mich. 107, 33 N. W. 50. 7 BECKHAM v. DRAKE, 9 Mees. & W. 95; Lutz v. Linthicum, 8 Pet 1G5, 8 L. Ed. 904; Fullam v. Inhabitants of West Brookfield, 9 Allen (Mass.) 1; Deming v. Bullitt 1 Blackf. (Ind.) 241; White v. Skinner, 13 Johns. (N. Y.) 307; Hancock v. Yunker, 83 111. 208; Stone v. Wood, 7 Cow. (N. Y.) 453, 17 Am. Dec. 529; Taft v. Brewster, 9 Johns. (N. Y.) 334, 6 Am. Dec. 280. 80 Armstrong v. Stokes, L. R. 7 Q. B. G05; Rogers v. March, 33 Me. 106; McKenzie v. Nevius, 22 Me. 138, 38 Am. Dec. 291; New Castle Mfg. Co. v. Railroad Co., 1 Rob. (La.) 145, 3G Am. Dec. 680; Merrick's Estate, 5 Watts & S. (Pa.) 9. 81 Kirkpatrick v. Stainer, 22 Wend. 244; Oelricks v. Ford, 23 How. 49, IG L. Ed. 534; Bray v. Kettell, 1 Allen (Mass.) 80. 82 Vawter v. Baker, 23 Ind. G3; Barham v. Bell, 112 N. C. 131, IG S. E. 903. But see Barry v. Page, 10 Gray (Mass.) 398. 83 Jenkins v. Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, IS Q. B. 503; Ballon V. Talbot IG Mass. 4G1, 8 Am. Dec. 14G; Bartlett v. Tuck cm-. 104 Mass. 336, 6 Am. Rep. 240; Noyes v. Loring, 55 Me. 408; White v. Madison, 26 N. 518 AGENCY. (Ch. 12 principle and authority, though there are some decisions which hold him liable on the contract.^* The remedy of the third person who con- tracts with the professed agent in reliance upon the authority which he asserts, but does not possess, must, therefore, be sought in some other form of action than an action on the contract. If the agent fraudulently represents that he is authorized when he is not, he is, upon familiar principles, liable in an action of tort, for deceit; and this, whether the representation of authority is express or is merely im- plied from his assuming to act as one having authority.*^ On the other hand, if he honestly but mistakenly believes that he has authority, he is not liable in an action of deceit. The effect of the foregoing doc- trines being to leave a person who enters into a contract with another as agent without remedy where the professed agent has acted under a mistaken belief that he has authority, as in the case of a supposed agent acting under a forged power of attorney, which he believes to be genuine, has led the courts to resort to the fiction of an implied contract or warranty of authority.^® The implied undertaking or war- ranty of the agent extends as well to cases in which he exceeds his au- thority as to cases in which he has no authority at all. Contracts may be so framed as to leave it uncertain whether the agent meant to contract as agent or to make himself personally liable. In such a case the intention and understanding of the parties, as shown by the evidence of the contract, must govern. If an agent en- gages expressly in his own name to pay a sum of money or perform other obligations, he is personally responsible on such engagement, although he describes himself as agent, and was duly authorized to enter into such an engagement for his principal. If he uses his own name, and not the name of his principal, he is personally liable, and the y. 117; Dung v. Parker, 52 N. Y. 4 518. 28 Am, Dec. 476; Smith v. Tracy, 3G N. T. 79; Locke v. Stearns, 1 Mete. CNIass.) .5G0, 35 Am. Dec. 382; Wolfe v. Pugh, 101 Incl. 293; Du Souchet V. Dutcher, 113 Ind. 249, 15 N. E. 459; Ehoda v. Annis, 75 Me. 17, 46 Am. Rep. 354: McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178. lot Udell V. Atherton, 7 Hurl. <& N. 172; Nichols v. Bruns, 5 Dak. 28, 37 N. W. 752. 105 Udell V. Atherton, 7 Hurl. & N. 172. 106 Campbell v. Hillm.an, 15 B. Mon. (Ky.) 508, 61 Am. Dec. 195; Clark v. Tx>vering, 37 Minn. 120, 33 N. W. 776; Hedden v. Griffin. 136 Mass. 229, 49 Am. Rep. 25; Kroeger v. Pitcairn. 101 Pa. 311, 47 Am. Rep. 718. 107 Note 103, supra. los Notes 104, 105, supra. io» Ante, p. 234. § 278) DETERMINATION OF THE RELATION. 525 (c) By operation of law. This results from — (1) The destruction of the subject-matter of the agency. (2) The bankruptcy of either party. (3) The marriage of a feme sole principal. (4) The insanity of either party. (5) The death of either party. EXCEPTION — An authority coupled with an interest is not revoked by operation of law in such cases. By Agreement. Since the relation of principal and agent is that of employer and employed (a relation founded on mutual consent), it follows that the relation may be brought to a close by the same process which created it, — the agreement of the parties. This may be by an agreement ex- pressly entered into, after the creation of the agency, for the purpose of terminating it, or it may be by the fulfillment of terms expressed or implied in the contract of employment. Where, at the time the agency is created, its duration is fixed, then, in accordance with the agreement, it ceases on the efflux of the time specified. ^^° It also necessarily ceases, where no time is specified, when the object to which the agency was expressly limited is performed. ^^^ Again, the contract of employment may contain terms allowing the agency to be terminated by one or either party on certain conditions. A revocation or renunciation in ac- cordance with the terms of the contract is a determination of the agency by agreement.^^^ Such terms may be expressed or implied. Where the contract is silent as to the right to revoke or renounce the au- thority, and there is nothing in the nature of the contract or the cir- cumstances to show a contrary intention, the authority may be rightly revoked or renounced at any time on notice. ^^* By the Act of the Parties. We have just seen that an agency may be revoked or renounced in accordance with express or implied terms in the contract of employ- ment. Such a determination of the agency, though in a sense by the acts of the parties, is by agreement. The contract of employment is not broken. On the other hand, one of the parties may revoke or re- nounce the agency, not in accordance with the terms of the contract, but in violation of them. The agency in this case is determined by the act of the party, but it is determined contrary to agreement. The 110 Gundlach v. Fischer, 59 111. 172; Danby v. Coutts, 29 Ch, Div, 500. 111 Benoit v. Inhabitants of Conway, 10 Allen (Mass.) 528 ; Moore v. Stone, 40 Iowa, 259; Short v. Millard, GS 111. 292. 112 Oregon & W. Mortg. Sav. Bank v. Mortgage Co. (C. C.) 35 Fed. 22; Adriance v. Rutherford, 57 Mich. 170, 23 N. W. 718. 113 Barrows v. Cushway, 37 :Mich. 481; Kirk v. Hartman. 63 Pa. 97; Cham- bers V. Seay, 73 Ala. 372; North Carolina State Life Ins, Co. v. Williams, 91 N, C, 69, 49 Am. Rep. 637. 526 AGENCY. (Ch. 12 contract of employment is broken, and the other party may recover his damages for the breach, as in the case of any other breach of con- tract.^ ^* The authority, however, subject to certain exceptions, is ef- fectually determined."'* A principal, therefore, may revoke the au- thority of his agent, though in doing so he violates the contract of employment; and the acts of the agent after such revocation will not bind the principal. ^^^ This power of revocation, however, is subject to the limitation already explained, — that a principal cannot, by private communications with his agent, limit or revoke an authority which he has allowed his agent to assume before the public. He will be bound by the acts of the agent which he has given other persons reason to suppose are done by his authority. ^^"^ As we have already seen, a hus- band may, by his conduct in allowing his wife to deal on his credit, constitute her his agent to pledge his credit.^^^ If he has allowed her to so deal with a tradesman, and has acquiesced by paying her bills, this tradesman may assume that her authority continues until he re- ceives notice to the contrary. In the absence of such a notice, the tradesman's right to hold the husband cannot be affected by the hus- band's private revocation of her authority. In the absence of such au- thority arising from the conduct of the husband, he is entitled, as against persons dealing with the wife, to revoke any express or im- plied authority which he may have given her, and to do so without notice to persons so dealing. Where a wife, after being forbidden by her husband to pledge his credit, purchased goods on his credit from a tradesman who had never before so dealt with her, it was held that he could not hold the husband, though he had no notice of the latter's re- fusal to authorize her dealings. "The tradesman must be taken to know the law; he knows that the wife has no authority, in fact or im 114 Howard v. Daly, 61 N. Y. 3G2, 19 Am. Rep. 2S5; Weed v. Burt, 78 N. Y. 192; Lewis v. Insurance Co., 61 Mo. 534; James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821; Richardson v. Machine Works, 78 Ind. 422, 41 Am. Rep. 584. As to the measure of damages, see Mech. Ag. § 622. 115 Mech. Ag. § 204 (and cases there cited); Chambers v. Seay, 73 Ala. 372; Blaclcstone v. Buttermore, 53 Pa. 266; Allen v. Watson, 16 Johns. (N. Y.) 205; Wallcer v. Penisou, 86 III. 142; Attrill v. Patterson, 58 Md. 226; Jones V. Harris, 59 Miss. 214. 116 Tucker v. Lawrence, 56 Vt 467; Simpson v. Carson, 11 Or. 361, 8 Pae. 325 ; Darrow v. St. George, 8 Colo. 592, 9 Pac. 791 ; Providence Gas Burner Co. V. Barney, 14 R. I. 18; Johnson v. Youngs, 82 Wis. 107, 51 N. W. 1095. iiT Debenham v. Mellon, 5 Q. B. Div. 394, 6 App. Cas. 24; Claflin v. Len- heim, 66 N. Y. 301; Baudouine v. Grimes, 64 Iowa, 370, 20 N. W. 476; Diversy v. Kellogg. 44 111. 114, 92 Am. Dec. 154; Wright v. Hcrrick, 128 Masf5. 240; Southern Life Ins. Co. v. McCain, 96 U. S. 84, 24 L. Ed. 653; Tier v. Lampsion, 35 Vt. 179. 82 Am. Dec. 634; Capen v. Insurance Co., 25 N. J. Law, 67, 44 Am. Dee. 412; Howe Mach. Co. v. Simler, 59 Ind, 307; Van Duseu v. Star Quartz Min. Co., 36 Cal. 571, 95 Am. Dec. 209. ii« Ante, p. 501. § 278) DETERMINATION OF THE RELATION. 527 law, to pledge the husband's credit, even for necessaries, unless he expressly or impliedly gives it to her, and that what the husband gives he may take away." ^^® A further limitation, in favor of the agent, of the principal's power of revocation, is that "an authority coupled with an interest is irrevoca- ble." ^-° By "interest," as the term is here used, is meant something more than the advantage which the agent may derive from a continu- ance of the authority, or the inconvenience, or even the loss, which he may suffer by its revocation. These are not such interests as will prevent a revocation by the principal. "Where an agreement," it has been said, "is entered into on a sufficient consideration, whereby an authority is given for the purpose of conferring some benefit to the donee of the authority, such an authority is irrevocable. This is wha*: is usually meant by an authority coupled with an interest." ^^^ This, however, is too broad. "To impart an irrevocable quality to a power of attorney, in the absence of any express stipulation, and as a result of legal principles alone, there must coexist with the power an interest in the thing or estate to be disposed of or managed under the power." ^^^ Operation of Law. An agency may also be revoked by operation of law in certain cases. If the subject-matter of the agency is extinguished or ceases to exist, this will revoke the agency. It has been held, for instance, that where two persons jointly appoint an agent to take charge of some matter in which they are jointly interested, as to sell real estate owned by them jointly, a severance of the joint interest revokes the agency.^ ^^ And, where a landowner employed several different agents to act for him in the sale of the same tract of land, a sale by one of them was held a revocation of the authority of the others.^ ^* The bankruptcy of the principal determines an authority given while he was solvent.^ ^^ 118 Debeuham v. Mellon, 5 Q. B. Div. 394. 120 Hiitchins v. Hebbard, 34 N. Y. 24; Gutbrie v. Railway Co., 40 111. 109; Chambers v. Seay, 73 Ala. 372; Wheeler v. Knaggs, 8 Ohio, 169; Kindig v. March, 15 Ind. 248. 121 Smart v. Sanders, 5 C, B. 89.'), 917. 122 Hartley's Appeal, 53 Pa. 212, 91 Am. Dec. 207. And see Hunt v. Rous- manier, 8 Wheat. 174, 7 L. Ed. 27; Blackstone v. Buttermore, 53 Pa. 266; Chambers v. Seay, 73 Ala. 373; Ahvortb v. Seymour. 42 Minn. 526. 44 N. W. 1030; Gilbert v. Holmes, 64 III. 548; Oregon & W. Mortg. Sav. Bank v. Mortgage Co. (C. C.) 35 Fed. 22; Barr v. Schroeder, 32 Cal. 609; Darrow v. St. George, 8 Colo. .'592, 9 Pac. 791; Tiffany, Ag. 152 et seq. 125 Rowe V. Rand, 111 Ind. 206. 12 N. B. 377. 124 Ahern v. Baker, 34 Minn. 98, 24 N. W. 341. 126 Parker v. Smith, 16 East, 386; Minett v. Forrester, 4 Taunt. 541. 528 AGENCY. (Ch. 12 At common law, the marriage of a female principal determines an authority given while sole/^° The insanity of the principal annuls or suspends an authority given while sane/^^ but subject to this limitation, namely, that where a per- son, while sane, holds out another as having authority, and afterwards becomes insane, his insanity does not revoke the agent's authority as to persons to whom he has been so held out, and who have no notice of the principal's condition. ^^^ The death of the principal determines at once the authority of the agent, leaving the third party without a remedy upon contracts entered into by the agent when ignorant of the death of his principal.^^® The agent in such case is not personally liable as having contracted on be- half of a principal who did not exist ; nor is the estate of the deceased liable, for the authority was given for the purpose of representing the principal, and not his estate.^^" Necessarily, the death of the agent determines the agency/ ^^ And, where two persons are jointly ap- pointed agents to take charge of a particular business for a specified 126 Anon., 1 Salk. 399; Brown v. Miller, 46 Mo. App. 1; Charnley v. Win- stanley, 5 East, 2GU. 127 Davis V. Lane, 10 N. H. 156; Matthiessen & Welchers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536. "An agent always acts in the name of the principal. Agency presupposes the presence of the principal in the person of, and acting through, the agent. The power that binds is not that of the agent, but the power of the principal acting through the agent. When a person loses the power to bind himself by his own acts, it is true, as a general principle, that that loss works a like loss in ail those upon whom he has conferred the power to bind him." Motley v. Head, 43 Vt. 633. 128 DREW V. NUNN, 4 Q. B. Div. 689; Davis v. Lane, 10 N. H. 156. 129 Hunt V. Rousmanier, 8 Wheat 174, 5 L. Ed. 589; Davis v. Bank, 46 Vt 728; Webber v. Bridgman, 113 N. Y. 600, 21 N. E. 985; Gait v. Galloway, 4 Pet 331, 7 L. Ed. 876; Gale v. Tappan, 12 N. H. 145, 37 Am. Dec. 194; Home Nat Bank v. Waterman's Estate, 134 111. 4G1, 29 N. E. 503; Travers V. Crane, 15 Cal. 12; Clayton v. Merrett, 52 Miss. 353; Lewis v. Kerr, 17 Iowa, 73 ; Saltmarsh v. Smith, 32 Ala.-404; Rigs v. Cage, 2 Humph. (Tenn.) 350, 37 Am. Dec. 559; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Staples V. Bradbury, 8 Greenl. (Me.) 181, 23 Am. Dec. 494; Smith v. Smith, 46 N. C. 135; Jenkins v. Atkins, 1 Humph. (Tenn.) 293, 34 Am. Dec. 648. But see Dick v. Page, 17 Mo. 234, 57 Am. Dec. 267. Payment to an agent in ignorance of his principal's death, has been held valid. Cassiday v. Mc- Kenzie, 4 Watts & S. (Pa.) 282, 39 Am. Dec. 76. It has been held that where an agent sends an order by mail, on the day before the death of his principal, to a nonresident merchant, and the latter fills the order within a reasonable time in ignorance of the death of tlie principal, the contract is binding as of the day the order was deposited in the mail, Garrett v. Trabue, 82 Ala. 227, 3 South. 149. 180 Blades v. Free, 9 Barn. & C. 167. 131 In re Merrick's Estate, 8 Watts & S. (Pa.) 402; Jackson Ins. Co. v. Partee, 9 Heisk. (Tenn.) 296; Lehigh Coal & Nav. Co. T. Mohr, 83 Pa, 228, 24 Am. Rep. IGl. § 278) DETERMINATION OF THE RELATION. 529 ferm or purpose, the agency is revoked by the death or insanity of one of them.^" Determination of an agency by operation of law does not take place where the authority is coupled with an interest.^^* 132 Rowe V. Rand, 111 Ind. 206, 12 N. B. 377; Martlne v. Insurance Co., 53 N. Y. 339, 13 Am. Rep. 529. 183 Davis V. Lane, 10 N. H. 160; Hunt v. Rousmanier, 8 Wheat 174, 5 L. Ed. 589; I'Cnapp v. Alvord, 10 Paige (N. Y.) 205; Merry v. Lynch, 68 Me. 94; Travers v. Crane, 15 Cal. 12. And see cases above cited; Watson v. King, 4 Camp. 274. Clabk ObNT. (2d Ed.) — 34 ^ ■^ 530 QUASI CONTRACT. (Cli. 13 CHAPTER Xm. t 1 QUASI CONTRACT. ^ 279. In General. 280. Money Paid for the Use of Another. ' ,., 281. Money Received for the Use of Another. 282. Recovery for Benefits Conferred. IN GENERAL. 279. Ordinarily, a person can only maintain an action ex contractu against another by proving a contract in fact. There are cir- cumstances, howevei', under T^hich the la-w \vill create a ficti- tious promise for the purpose of allowing the remedy by action of assumpsit. The obligation is not a contract, but a quasi contract. It may be founded— (a) Upon the judgment of a court. (b) Upon a statutory, official, or customary duty. (c) Upon the principle that no one ought ujijustly to enrich him- self at the expense of another. As we have seen in treating of the nature of contract, every true contract involves, not only obligation, but agreement. If there is no agreement, there can be no true contract. There may be an obligation, but, unless this obligation is imposed by the free consent of the par- ties, the obligation is not a contractual obligation. There are, however, as has been stated, ce rtain o bligations which ^rise neither from tort nor from contract, but which are imposed or created by law without the assent of the party bound, and which are allowed to be enforced by an action ex contractu. These obligations are not contract obligations, for there is no agreement, but they are clothed with the semblance of contract for the purpose of remedy. They are described by the term quasi contracts.^ For example, obligation may arise from the judgment of a court of competent jurisdiction ordering something to be done or forborne by one party in respect to another. It may arise from entry of judgment by consent of the parties, in which case the element of agreement is present ; but, on the other hand, it may arise against the will of the party bound thereby, in which case there is no element of agreement, and therefore no true contract. Such an obligation is quasi con- 1 Anson, Cont. (8th Ed.) 361 et seq.; Keener, Quasi Cont. c. 1; Dusenbury V. Speir, 77 N. Y. InO. See, also, Lawson's Bx'rs v. LaAvson, 16 Grat. (Va.) 230; SCEVA v. TRUE, 5.3 N. H. 027; HERTZOG V. HERTZOG, 29 Pa. 465; Montgomei-y v. Waterworks Co., 77 Ala. 248. § 279) IN GENERAL 531 tractual.* As we liave seen, however, in the classification of contracts, it is usual to divide contracts into simple contracts, contracts under seal, and "contracts of record," under which are included judgments.^ Again, if A. has paid something which B. ought to pay, or if B. has received something which A. ought to receive, the law imposes on B. the duty to make good to A. the advantage to which A, is entitled. Or if A. has obtained money from B. through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass, such money may be recovered back, for the law imposes a duty on the wrongdoer to restore it to the rightful owner, although this was the very opposite of his intention.* It is obvious that the duty of B. in such cases is not contractual. Nevertheless, in the classification of contracts, it has been usual to di- vide simple contracts into (i) express contracts; (2) contracts implied in fact ; and (3) contracts implied in law. Under this classification the term "contracts impHed in fact" is applied to contracts in which the agreement of the parties is evidenced by their conduct, and which are true contracts, in distinction to contracts in which the agreement is evi- denced by words and which are said to be express ; and the term "contract implied in law" is applied to obligations created by law, or quasi contracts. "This treatment of quasi contract," says Professor Keener, "is, in the opinion of the writer, not only unscientific, and therefore theoretically wrong, but is also destructive of clear thinking, and therefore vicious in practice. It needs no argument to establish the proposition that it is not scientific to treat as one and the same thing an obligation that exists in every case because of the assent of the de- fendant, and an obligation that not only does not depend in any case upon his assent, but in many cases exists notwithstanding his dissent." " The explanation of this anomalous classification, which includes ob- ligations created by law among contracts, is to be found in the law of remedies.* The only forms of action at common law were actions of tort and actions of contract. Obligations created by law resemble true contracts, in that "the duty of the obligor is a positive one; that is. to act. In this respect they diflfer from obligations the breach of which constitutes a tort, where the duty is negative; that is, to for- 2 Keener, Quasi Cont. 16; State of Louisiana v. Mayor, etc., of City of New Orleans, 109 U. S. 285, 3 Sup. Ct 211, 27 L. Ed. 936; O'BRIEN v. YOUNG, 95 N. Y. 428, 47 Am. Rep. 64; Rae v. Hulbert, 17 111. .572; Morse v. Tappan, 3 Gray (Mass.) 411 ; Gutta-Percha & R. Mfg. Co. v. City of Houston, 108 N. Y. 27G, 15 N. E. 402, 2 Am. St. Rep. 412; Morley v. Lake Shore & M. S. Ry., 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925 ; ante, p. 47. 8 Ante, p. 8, * See Dusenbury v. Speir, 77 N. Y. 150. B Keener, Quasi Cont. 3. 6 See Keener, Quasi Cont. c. 1; Anson, Cont. (Sth Ed.) 3C0-364; The History of Assumpsit, by Prof. J. B. Ames, 2 Harv. L. R. 1-19, 53-69. 532 QUASI CONTRACT. (Ch. 13 bear.' This and other considerations suggested the analogy of con- tract, rather than of tort, and made it natural, when seeking to adapt the remedy to the right, to treat obligations created by law as contracts rather than torts. An action of debt was the remedy for breach of contract based on executed consideration, where such breach resulted in a liquidated or ascertained money claim, and also where a statute or the common law or custom laid a duty upon one to pay an ascertained sum to another. Assumpsit was primarily an action to recover an un- Hquidated sum, or such damages as the breach of a promise had oc- casioned to the promisee." Owing to certain inconveniences attach- ing to the action of debt, assumpsit was preferred to debt as a form of action, and by degrees the scope of the action was enlarged, until the action of assumpsit came to be used instead of debt, where the contract resulted in a liquidated claim, and a money debt was stated in the form of an assumpsit or undertaking to pay it. Thus it came about that an action might be maintained in assumpsit on a liquidated claim or debt; and when the breach of a contract resulted in such a claim, the plaintiff was allowed to declare in the form of a short state- ment of the debt, based upon a request by the defendant, as for goods sold, money lent, work and labor supplied, etc.® This enabled claims arising from contract to be variously stated in the same suit "as a special agreement which had been broken, and as a debt resulting from an agreement, and hence imparting a promise to pay. Such a mode of pleading was called an indebitatus count, or count indebitatus as- sumpsit." ^° The promise in such cases, resulting from the terms of the agreement, although only by an innovation in the form of remedy made the basis of an assumpsit, was actual, and not a mere fiction.^^ The form of action thus evolved, however, came to be applied to those kinds of legal liability which had previously given rise to an action of debt, though void of the element of agreement. In these cases the form of remedy could be adapted to the right only by means of a fic- tion, for to support assumpsit it was necessary to allege a promise, and consequently, to meet the difficulty, the courts adopted the fiction of a promise, and it was declared that a promise was "implied in law." ^* It was in this way that these obligations became clothed with the semblance of, and came to be classed as, contracts. "For the con- venience of the remedy," they "have been made to figure as though they sprung from contract, and have appropriated the form of agree- ment." " I 2 Hai-v. li. R. 63. 8 Anson. Cont. (8th Ed.) 361. « Id. 302; SLADE'S CASE, 4 Co. Rep. 92. 10 Anson. Cont. (8th Ed.) 3U2. 12 Keener, QnasI Cont. 4-5. II See 2 Harv. L. R. 56. is Anson, Cont. (Sth Ed.) 362. § 280) MONEY PAID FOR THE USE OF ANOTHER. 533 Quasi contracts fall under three classes: ^* (i) Obligations founded upon a record, as a judgment; ^"^ (2) obligations founded upon a statu- tory,^® or official, or customary duty;^^ and (3) obligations founded "upon the fundamental principle that no one ought unjustly to enrich himself at the expense of another," ^^ as the obligation to repay money paid under a mistake or under duress or compulsion, the obligation of an infant to pay for necessaries, the obligation to pay for benefits con- ferred under a contract unenforceable because within the statute of frauds which the party who has received the benefit refuses to carry out, the obligation to pay for benefits conferred under a contract where full performance is prevented. Within the third class are embraced the most important cases of quasi contractual obligation, and the brief discussion which follows will be confined to cases within that class. MONEY PAID FOR THE USE OE ANOTHER. 280. Wherever one person requests or alloxes another to assume sncli a position tliat tlie latter may be compelled by laAV to discbarge the former's legal liabilities, the law imports a reqnest and promise by the former to the latter, — a request to make the payment, and a promise to repay, — and the obligation thus created may be enforced by assumpsit. It is a rule of law that no man "can make himself the creditor of another by paying that other's debt against his will or without his consent," ^^ or at least without som.e act on his part which will prevent him from withholding consent. Assumpsit will not lie, therefore, for money officiously paid by the plaintifif for the defendant's use. The defendant must have requested such payment, or he must, by his con- 14 2 Harv. L. R. 64; Keener, Quasi Cont. c. 1. 1 B Ante, p. 49. 16 Keener, Quasi Cont. 16; State of Louisiana v. Mayor, etc., of City of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936; O'BRIEN v. lOUNG, 95 N. Y. 428, 47 Am. Rep. 64; Rae v. Hulbert, 17 111. 572; Morse v. Tappan, 3 Gray (Mass.) 411; Gutta-Percha & R. Manufg Co. v. City of Houston, 108 N. Y. 276. 15 N. E. 402, 2 Am. St. Rep. 412. Illustrations of such an obligation arise where a statute imposes a duty upon one county or parish to pay another for money expended in the support of a pauper; or under any other circumstances declares that one person may recover from anotlier money paid out by him for the benefit of the latter; or where a statute allows an action to recover usuiy paid, or money lost and paid on a waj?er. 17 See Keener, Quasi Cont 17, 18. 18 2 Harv. L. R. 64. 15 Johnson v. Packet Co., L. R. 3 C. P. 43; Durnford v. Messiter. 5 Maule & S. 440; Hearn v. Cullen, 54 Md. 533; Turner v. Egerton, 1 Gill & J. (Md.> 430; ante, p. 510. 534 QUASI CONTRACT. (Ch. 13 duct, have made it necessary for the plaintiff to pay. Where a person expressly requests another to pay money for him under such circum- stances as to import a promise to repay, and the money is paid in ac- cordance with the request, the transaction involves an actual agree- ment. Where no request in fact exists, and there is no agreement in fact respecting the payment, the law may imply a fictitious request. As a rule, wherever one person requests or allows another to assume such a position that the latter may be compelled by law to discharge the former's legal liabilities, the law imports a request and promise by the former to the latter, — a request to make the payment, and a promise to repay. It will not do to say that there was no agreement in fact, for the law creates the promise.^" A good illustration of such an obligation is where one of several sureties, or other joint debtors, pays the whole debt. In such a case he is allowed to recover from each of the others his proportionate share. A request to pay and a promise to repay are feigned in order to entitle him to the remedy of assumpsit.^^ So, where an executor 20 Anson, Cont. (8th Ed.) 3G3 ; EXALL v. PARTRIDGE, 8 Term R. 308; Sapsford v. Fletcher, 4 Term R. 511; Tuttle v. Armstead, 53 Conn, 175, 22 Atl. G77; Grissell v. Robinson, 3 Bing. N. C, 10; Wells v. Porter, 7 Wend. (N. Y.) 119; Houser v. McGinnas, 108 N. C. G31, 13 S. E. 139; Hawley v. Beverley, 6 Man. & G. 221; JOHNSON v. PACKET CO., L. R. 3 C. P. 38; HALES V. FREEMAN, 1 Brod. & B. 391; Hutzler v. Lord, &i Md. 534, 3 Atl. 891; Turner v. Egerton, 1 Gill & J. (Md.) 430; City of Baltimore v. Hughes, Id. 480, 19 Am. Dec. 243; Iron City Tool-Works v. Long (Pa.) 7 Atl. 82; Beard v. Horton, 86 Ala. 202, 5 South. 207; Perin v. Parker, 25 111. App. 465. 21 KEMP V. J'ENDER, 12 Mees. & W. 421; Holmes v. Williamson, 6 Maule & S. 158; DAVIES v. HUMPHREYS, 6 Mees. & W. 153; DEERING v. WINCHELSEA, 2 Bos. & P. 270; Norton v. Coons, 6 N. Y. 33; Doremus v. Selden, 19 Johns. (N. Y.) 213; Tobias v. Rogers, 13 N. Y. 59; Johnson v. Harv-ey, 84 N. Y. 363, 38 Am. Rep. 515; Aldrich v. Aldrich, 56 Vt. 324, 48 Am. Rep. 791; Jackson v. Murray, 77 Tex. 644, 14 S. W. 235; Nickerson v. Wheeler, 118 Mass. 295 ; Wilton v. Tazwell, 86 111. 29 ; Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547; Fletcher V. Grover, 11 N. H. 368, 35 Am. Dec. 497; Foster v. Burton, 62 Vt. 239, 20 Atl. 326 ; Logan v. Trayser, 77 Wis. 579, 46 N. W. 877 ; Bushnell v. Bushnell, 77 Wis. 435, 46 N. W. 442, 9 L. R. A. 411. In some jurisdictions, contribu- tion between co-sureties must be enforced in equity. Longley v. Griggs, 10 Pick. (Mass.) 121 ; McDonald v. Magi-uder, 3 Pet. 470, 7 L. Ed. 744. And, where a surety has been compelled to pay the debt, he may, on the same principle, where there is no express contract with the principal (TOUISSAINT V. MARTINNANT, 2 Term R. 100), recover the amount from his principal, as for money paid to his use. Alexander v. Vane, 1 Mees. & W. 511 ; Pownal V. Ferrand, Barn. & C. 439; Crisfield v. State, 55 Md. 192. As a rule, no right of contribution exists between joint wrongdoers. MERRYWEATHER v. NIXAJSf, 8 Term R. 186; Boyer v. Bolender, 129 Pa. 324, 18 Atl. 127, 15 Am. St. Rep. 723. But the rule does not apply where one of them is inno- cent of any intentional or actual wrong, and has been compelled to pay damages which the other, who was the actual wrongdoer, should have paid. § 280) MONEY PAID FOR THE USE OF ANOTHER. 535 was compelled to pay a legacy duty for which the legatee was ultimately liable, he was allowed to recover the amount from the legatee as mon- ey paid for his use.^^ Another class of cases falling under this head are cases in which a person is compelled by the wrong or fraud of another to pay money to a third person. He may recover the amount from the person so guilty of the wrong or fraud. ^' Where, for instance, a member of a firm gives a promissory note, signed in the partnership name, for a debt of his own, and his partner is compelled to pay it, the latter may recover from the former as for money paid to his use;** and where a carrier, by mistake, delivers goods to the wrong person, and he wrongfully detains them, so that tlie carrier is compelled to pay their value, he is liable to the carrier for the ranount so paid.^'^ It must be remembered, as already stated, that it is not every payment on another's account that will make the latter liable. No implied promise to repay is raised where a person makes a payment voluntarily, and without any legal liability or compulsion, in discharge of the debt or liability of another; ^^ nor where he has been com- pelled to make the payment by his own wrongful act;^^ nor where the payment is made in discharge of a liability which is a mere moral liability, and is not recognized in law ; *^ nor where a payment is made in discharge of another's liability by express agreement with the lat- ter.^® It has further been held that, to entitle a person to recover from another money paid for the latter's use, there must be some privity between them. Legal liability incurred by one person on behalf of an- In such a case, on eqiiitable principleg. contribution may be enforced. CHURCHILL V. HOLT, 127 Mass. 1G5. 34 Am. Rep. 355; Farweli v. Beclier, 129 111. 261, 21 N. E. 792, 6 L. R. A. 400, IG Am. St. Rep. 267; Village of Port Jervis v. Bank, 96 N. Y. o-oO; BAILEY v. BUSSING, 28 Conn. 455. 2 2 Foster v. Ley, 2 Bing. N. C. 269; Bate v. Payne, 13 Q. B. 900; HALES V. FREEMAN. 1 Brod. & B. 391. 2 3 BLEADEN v. CHARLES, 7 Bing. 246; SMITH v. CUFF, 6 Maule & S. 160; Horton v. Riely. 11 Mees. & W. 492; Van Santen v. Oil Co., 81 N. Y. 171. 2* Cross V. Cliesbire, 7 Excb. 43. 2 5 BROWN V. HODGSON, 4 Taunt. 188. And see Long Champs v. Kenny, 1 Doug. 137. 2 6 Bates V. Townley, 2 Excb. 152; Sleigb v. Sleigh, 5 Excb. 514. Payment of money by a person to procure the release of bis property from seizure for another's debt does not impose any liability on the latter if the seizure was unlawful, or, rather, unless it is shown that it was lawful. Myers v. Smith, 27 Md. 91. 2T Pitcher v. Bailey, 8 East, 171. Where an officer, for instance, having custody of a prisoner for debt, suffered him to go at large, and, in conse- quence, was compelled to pay the creditor himself, it was held that he could not recover the amount from the debtor. Pitcher v. Bailey, supra. 2s ATKINS r. BAN WELL, 2 East. 505. 2 Action must be brought on the express agreement. SPENCER v. PAR- RY, 3 Adol. & E. 331; Lubbock v. Tribe, 3 Mees. & W. 607. 536 QUASI CONTRACT. (Ch. 13 other, without any concurrence or privity on the part of the latter, will not entitle him to recover for money which, under such circum- stances, he may pay to the latter's use. The liability must have been in some way cast upon him by the latter. The mere fact that he has paid, under compulsion of law, what the latter might have been com- pelled to pay, will give him no right of action against the latter. In an English case, the plaintiff, being entitled under a bill of sale to seize the defendant's goods, did so, but left the goods on the defend- ant's premises until rent fell due to the defendant's landlord. The landlord distrained the goods, whereupon the plaintiff paid the rent, and sued the defendant for the amount, as having been paid to his use. It was held that the facts gave the plaintiff no right of action. "Having seized the goods under the bill of sale," it was said, "they were his absolute property. He had a right to take them away; in- deed, it was his duty to take them away. He probably left them on the premises for his own purposes. * * * ^t all events, they were not left there at the request, or for the benefit, of the defend- ant." «° In all cases, to entitle the plaintiff to recover there must have been a payment, not necessarily of money, but of property at least, accepted as payment and in extinguishment of the claim. The giving of a bond or note, for instance, is not sufficient, for "the mere extinguish- ment of the original liability by way of new security will not avail." *^ It is otherwise, however, if land or other property is transferred abso- lutely as payment, and in extinguishment of the claim.^* MONEY RECEIVED FOR THE USE OF ANOTHER. 281. Wherever one person has money to ivliicli, in equity and good conscience, another is entitled, the law creates a promise by the former to pay it to the latter, and the obligation may be enforced by assumpsit. Contracts arising from agreement frequently result in the receipt and holding of money by one of the parties for the use of the other; as, where a person is employed by another as agent to receive money, and to account for and pay over the amount received, and receives money by virtue of his employment. In such a case his obligation 80 ENGLAND v. MABSDEN, L. R. 1 C. P. 529. And see Bay City Bank V. Lindsay, 94 Mich. 176, 54 N. W. 42. But see EDMUNDS v. WALLING- FORD, 14 Q. B. Div. 811; Keener, Quasi Cont. 390. 81 Ainslie v. Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; Taylor v. Higgins, 3 East, 170; Gumming v. Hackley, 8 Johns. (N. Y.) 202. 8 2 Ainslie v. Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; Randall v. Rich, 11 Mass. 494. § 281) MONEY RECEIVED FOR TUE USE OF ANOTHER. 537 results from agreement. ^^ In some cases a similar obligation is cre- ated by law. The receipt by one person of money to which another person is entitled, under some circumstances, creates a debt without agreement, and even against dissent. The law creates the debt and a promise to pay it. The debt is technically described as a debt "for money received by the defendant for the use of the plaintiff," or "for money had and received." It has been said that such an action will lie whenever the defendant has money to which, in equity and good conscience, the plaintiff is entitled;^* that the action is equitable in its nature, and will lie, generally, wherever a bill in equity would lie.^'* The obligation thus created from the receipt of money can arise only in respect of money or what is equivalent to money. ^' Goods re- ceived by the defendant, for instance, cannot be treated as money, so as to support such an action, so long as they are undisposed of and re- main in the defendant's hands ; ''' but it is otherwise where they have been sold and converted into money by him.^^ In such a case the 88 Ante, p. 508. 34 Lawson v. Lawson, 16 Grat. (Va.) 230, 80 Am. Dec. 702 ; Barnett v. War- ren. 82 Ala. 557, 2 South. 457 ; INIerchants' Bank v. Rawls, 7 Ga. 191, 50 Am. Dec. 394; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; O'Fallon v. Bois- menu, 3 Mo. 405, 2G Am. Dec. 678; Boyett v. Potter, 80 Ala. 476, 2 South. 534; Vrooman v. McKaig, 4 Md. 450, 59 Am. Dec. 85; Teegarden v. Lewis (Ind. Sup.) 35 N. E. 24; O'Conley v. City of Natchez, 1 Smedes & M. (Miss.) 31, 40 Am. Dec. 87; Jackson v. Hough, 38 W. Va. 236, 18 S. E. 575. Money paid on judgment before or pending appeal may be recovered after the judg- ment is reversed. Chapman v. Sutton, 68 Wis. G.j7. 32 N. W. 6S;3; CLARK v. PINNEY, 6 Cow. (N. Y.) 297; Kalmbach v. Foote, 79 Mich. 236, 44 N. W. 603 ; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589 ; SCHOLEY v. HALSEY, 72 N. Y. 578. See, also, Isom v. Johns, 2 Munf. (Va.) 272. 3 5 CULBREATH v. CULBREATH, 7 Ga. 64. 50 Am. Dec. 375; McCrea v. Purmort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103 ; Kennedy v. Insurance Co., 3 Har. & J. (Md.) 367, 6 Am. Dee. 499. 8 6 Leake, Cont. 67; Keener, Quasi Cont. 139, 170; Foster v. Dupre. 5 INIart. (La.) 6, 12 Am. Dec. 466 ; Brundage v. Village of Port Chester, 102 N. Y. 494, 7 N. B. 398 ; Lee v. Merritt, 8 Q. B. 820 ; Nightingale v. Devisme. 5 Burrows, 2589 ; Scott v. INIiller, 3 Bing. N. C. 811 ; Atkins v. Owen, 4 Adol. & E. 819 ; Balch V. Patten, 45 Me. 41, 71 Am. Dec. 526; Libby v. Robinson. 79 Me. 168, 9 Atl. 24. 3T Thurston v. Mills, 16 East, 254; Heudricks v. Goodrich. 15 Wis. 079; Moses V. Arnold, 43 Iowa, 187, 22 Am. Rep. 239; Stearns v. Dillingham, 22 Vt. 624, 54 Am. Dec. 88; Smith v. Jernigan, S3 Ala. 2-56. 3 South. 515; Tuttle V. Campbell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. Rep. 652; ISIoody v. Walker, 89 Ala. 619, 7 South. 246. 38 Leake, Cont. 50; Keener, Quasi Cont. 170; Lamine v. Dorrell, 2 Ld. Raym. 1216; Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410; Parker v. Crole, 5 Bing. 03; OUGHTON v. SEPPINGS, 1 Barn. & Adol. 241; Staat v. Evans, 35 111. 455; Notley v. Buck, 8 Barn. & C. 160; Olive v. Olive, 95 N. C. 485; POWELL v. REES, 7 Adol. & E. 426; Comstock v. Hier, 73 N. Y. 269, 29 Am. Rep. 142 ; Barnett v. Warren, 82 Ala. 557, 2 South. 457 ; Thornton v. Strauss, 79 Ala. 104. 538 QUASI CONTRACT. (Ch. 13 right to recover is based on the receipt by the defendant of money belonging to the plaintiff, and the amount of money received, and not the value of the goods, is the measure of recovery. It follows from this that if the money, or an equivalent, is not received for the goods, even though they may have been sold; ^^ or if they have been merely exchanged for other goods ; *° or if the amount cannot be ascer- tained,*^ — the action will not lie. The plaintiff must seek some other remedy. It has been said that an action for money had and received will not lie unless there is some privity between the plaintiff and the defend- ant; *^ but there need be no privity other than such as arises out of the fact that the defendant has received the plaintiff's money, which in equity and good conscience he ought not to retain.*' Same — Debts Arising from Tort — Waiver of Tort. A frequent illustration of a quasi contractual obligation of this kind arises where a person obtains another's money by wrongful or fraudu- lent means. Where one person has wrongfully taken another's money, or has taken his property and converted it into money, the latter has a right of action ex delicto for the wrong done to him, as by an action of trespass or trover, or by an action on the case for the fraud. He is not always restricted, however, to an action ex delicto for the specific wrong, but may in general waive the tort,** and sue in assumpsit for the money as for money received for his use.*^ 3 9 Budd y. Hiler, 27 N. J. Law, 43; Rosenbfirg v. Block. 54 N. Y. Super. Ot. 537. Receipt of equivalent Miller v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 264; Aiuslie v. Wilson, 7 Cow. (N. Y.) GG2, 17 Am. Dec. 532; Doon v. Ravey, 49 Vt. 293. 4 Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Kidney v. Persons, 41 Vt 380, 98 Am. Dec. 595. 41 Saville, Somes & Co. v. Welch, 58 Vt 683, 5 Atl. 491; Glasscock v. Hazell, 109 N. C. 14,5, 13 S. E. 7S9. 4 2 Sergeant v. Stryker, 16 N. J. Law, 464, 32 Am. Dec. 404. 43 Walker v. Conant, 65 Mich. 194, 31 N. W. 786 ; Pugh v. Powell (Pa.) 11 Atl. 570 ; Drake v. Whaley, 35 S. C. 187, 14 S. E. 397. 4 4 This expression is generally used. As pointed out by Prof. Keener, the doctrine of waiver of tort and suit in assumpsit is simply a question of the election of remedies. "The remedies in tort and assumpsit not being con- current, a plaintiff is compelled to elect which remedy he will pursue; and, 4o NEATE V. HARDING, 6 P^xch. 349; Cory v. Freeholders, 47 N. J. Law, 181; Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299; Loomis v. O'Neal, 73 Mich. 582, 41 N. W. 701; People v. Wood, 121 N. Y. 522, 24 N. E. 952; Kidney V. Persons, 41 Vt 386, 98 Am. Dec. 595; Lubert v. Chauviteau, 3 Cal. 458, 58 Am. Dec. 415; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163. 32 Am. Rep. 731 ; Western A.ssur. Co. r. Towle, 65 Wia 247. 26 N. W. 104; Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410; Dashaway Ass'n v. Rogers, 79 Cal. 211, 21 Pac. 742; O'Conley v. City of Natchez, 1 Smedes & M. (Miss.) 31, 40 Am. Dec. 87. § 281) MONEY RECEIVED FOR THE USE OP ANOTHER. 539 The fundamental fact upon which this right of action depends is that the defendant has received money belonging to the plaintiff, or to which the plaintiff is entitled. It is not sufficient to show that the defendant has by fraud or wrong caused the plaintiff to pay money to others than the defendant, or to otherwise sustain loss or damage.*" "Assuming a defendant to be a tort feasor, in order that the doctrine of waiver of tort may apply, the defendant must have unjustly en- riched himself thereby. That the plaintiff has been impoverished by the tort is not sufficient. If the plaintiff's claim, then, is in reality to recover damages for an injurv done, his sole remedy is to sue in tort." *^ It is impossible for us to go at much length into the different cir- cumstances under which the law will create this obligation. It must suffice to mention the most important. Where a person steals another's money or property, or obtains it by false pretenses, the fact that a crime has been committed will not pre- vent a civil action by the person injured. He may sue the thief in tort, or he may elect to sue in assumpsit as for money received for his use.*^ The same is true in any case in which one person, by means of tres- pass, fraud, or other tortious means, obtains another's money.** if he elect to sue ia assumpsit, he is said to waive the tort." Keener, Quasi Cont. 159 ; COOPER v. COOPER, 147 Mass. 370, 17 N. E. S92, 9 Am. St. Rep. 721. If the plaintiff waives the wrongful character of the taking, or makes his election, by recovering the money as a debt, or otherwise, he thereby pre- cludes himself from taking advantage of it as a tort. Brewer v. Sparrow, 7 Barn. & C. 310; Lithgoe v. Vernon, 5 Hm-1. & N. 180; THOMPSON v. HOWARD, 31 Mich. 309; Huffman v. Hughlett, 11 Lea (Teun.) 549. He cannot accept the proceeds of his goods which have been wi'ongfully taken and sold, as a debt, and likewise claim damages for the injury done in the wrongful taking and sale. Brewer v. Sparrow, 7 Barn. & C. 310. Moreover, he cannot Avaive the wrong, or make his election in part only. Therefore, if he accepts part of the proceeds or price of the goods, he is bound to treat the balance as a debt. Lythgoe v. Vernon, 5 Hurl. & N. 180. A mere claim to a debt in respect of the value of goods wrongfully obtained, if not acquiesced in by the other party, does not constitute an election so as to waive the tort. Valpy V. Sanders, 5 C. B. 88G. 46 NATIONAL TRUST CO. v. GLEASON, 77 N. Y. 400, 33 Am. Rep. G32. 4T Keener, Quasi Cont. 160, citing, among other cases, Patterson v. Prior, 18 Ind. 440, 81 Am. Dec. 367; NATIONAL TRUST CO. v. GLEASON. 77 N. Y. 400, 33 Am. Rep. 632; New York Guaranty & Indemnity Co. v. Gleason, 78 N. Y. 503 ; Tightmeyer v. Mougold, 20 Kan. 90 ; Fanson v. Linsley, Id. 235. And see Stockett v. Vi\atkins' Adm'rs, 2 Gill & J. (Md.) 320, 20 Am. Dec. 438. 4s Holt V. Ely, 1 El. & Bl. 795; Chowue v. Baylis, 31 Law J. Ch. 757; Stone V. Marsh, 6 Barn. & C. 551; Hindmarch v. Hoffman, 127 Pa. 284, 18 Atl. 14, 4 L. R. A. 3G8, 14 Am. St. Rep. 842; Litt v. Martiudale, 18 C. B. 314. 4 9 CATTS V. PHALEN, 2 How. 370, 11 L. Ed. 306; Western Assur. Co. v. Towle, 65 Wis. 247, 26 N. W. 104; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163, 32 Am. Rep. 731; MARSH v. KEATING, 1 Biug. N. C. 198; 540 QUASI CONTRACT. (Cll. IS Same — Money Obtained by Fraud or Duress. Where a person has obtained money from another under an agree- ment which the latter has the right to avoid on the ground of fraud, duress, or undue influence, the latter, on avoiding the contract, may recover the amount as money received for his use.^" Money obtained by means of duress or compulsion may in like man- ner be recovered in assumpsit.''^ Duress may consist, as we have seen, in violence or unlawful imprisonment,^^ or threats of violence ^^ or unlawful imprisonment,^* in which cases it is duress of the person; or it may be duress of goods, as where property is wrongfully taken or withheld under oppressive circumstances. ^"^ Further than this, "where money has been obtained * * * by any kind of compul- sion or oppression sufficient to render the payment involuntary," it may be recovered as a debt for money received for the use of the plaintifif.°« Cory V. Freeholders, 47 N, J. Law, 181; Burton v. Driggs, 20 Wall. 125, 22 Im Ed. 299. 00 Thornett v. Haines, 15 Mees. & W. 367; Street v. Blay, 2 Barn. & Adol. 456; Dashaway Ass'n v. Rogers, 79 Cal. 211, 21 Pac. 742; Gompertz v. Denton, 1 Oromp. & M. 207; I'oster v. Bartlett, 62 N. H. 617; ante, p. 235. 01 Shaw V. Woodcock, 7 Barn. & 0. 73; Atlee v. Backhouse, 3 Mees. & W. 633 ; CHANDLER v. SANGER, 114 Mass. 364, 19 Am. Rep. 367 ; PRESTON V. CITY OP BOSTON, 12 Pick. (Mass.) 7. On this subject generally, see ante, p. 240, and cases there collected. 82 De Mesnil v. Dakin, L. R. 3 Q B. 18. As we have seen in another con- nection, even a legal arrest and imprisonment may be duress if there is abuse of process. Ante, p. 242 ; Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473. 58 Ante, p. 241. 54 Ante, p. 242. It must be remembered that it is unlawful to compound a felony, and that money paid to stifle a criminal prosecution cannot be recov- ered, ante, p. 293; Haynes v. Rudd, 102 N. Y. 372, 7 N. E. 287, 55 Am. Rep. 815; Gotwalt v. Neal, 25 Md. 434; Dixon v. Olmstead, 9 Vt. 310, 31 Am. Dec. 629; unless the circumstances were such that the parties cannot be regarded as being in pari delicto, DUVAL v. WELLMAN, 124 N. Y. 156, 26 N. E. 343; ante, p. 840. 56 Ante, p. 243; HILLS v. STREET, 5 Bing. 37; ASTLEY v. REYNOLDS. 2 Strange, 915; CHANDLER v. SANGER, 114 Mass. 364, 19 Am. Rep. 367; Cobb V. Charter, 32 Conn. 358, 87 Am. Dec. 178; PRESTON v. CITY OF BOSTON, 12 Pick. (Mass.) 7; PARCHER v. MARATHON CO., 52 Wis. 388, 9 N. W. 23, 38 Am. Rep. 745; Robertson v. Frank Br<»s. Co., 132 U. S. 17, 10 Sup. Ct. 5, 33 L. Ed. 236; Briggs v. Boyd, 56 N. Y. 289; .Toannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 16 L. R. A. 376, 32 Am. St. Rep. 581. Recovery of money exacted by carrier. Baldwin v. Steamship Co., 74 N. Y. 125, 30 Am. Rep. 277; Peters v. Railroad Co., 42 Ohio St 275, 51 Am, Rep. 814; McGregor v. Railway Co., 35 N. J. Law, 89. 59 Leake, Cont. 52, and authorities there collected; CAREW v. RUTHER- FORD, 106 Mass. 1, 8 Am. Rep. 287; Bulow v. Goddard, 1 Nott & McC. (S. C.) 45, 9 Am. Dec. 663; Westlake & Button v. City of St. Louis, 77 Mo. 47, 40 Am. Rep. 4; Lehigh Coal & Nav. Co. v. Brown, 100 Pa. .'^38: SWIFT CO. v. U. S., Ill U. S. 22, 4 Sup. Ct. 244, 28 L. Ed. 341 ; Regan v. Baldwin, 126 Mass. § 281) MONEY RECEIVED FOR THE USE OF ANOTHER. 541 Same — Voluntary Payment. If a mere claim is made upon a person without any legal proceed- ing, and he pays it with full knowledge of all the circumstances of the claim, and without any compulsion or necessit}', the payment is regarded as voluntary, and cannot be recovered back, though the claim was unfounded, and might have been successfully resisted."^ It seems that it was at one time held that money voluntarily paid could be re- covered back if the party receiving it was not entitled to it; ^^ but it is now virtually settled "that a party may in equity and good conscience continue to hold money voluntarily paid to him under no mistake of fact, and without fraud upon his part." ^" Same — Liability of Third Persons. If money wrongfully obtained has passed into the hands of a third person, the law will create a similar promise by him, unless he was a bona fide purchaser or recipient for value ; that is, unless he gave a valuable consideration for the money, and had no notice of the fraud or other wrong by which it was obtained.®** If he was a bona fide purchaser or recipient, he is not liable.*^ The same is true where goods wrongfully obtained or converted have passed into the hands of a third person, and been converted into money.®* Same — Money Received without Fraud or Wrong. The right to recover money as having been received by the defend- ant for the use of the plaintiff is not limited to cases in which the money has been obtained by a tortious act, but extends to many cases in which it has been rightfully obtained, but cannot be rightfully 485, 30 Am. Rep. 689. Mere threat af suit is not compulsion so as to render a payment to prevent suit involuntary. Emmons v. Scudder, 115 Mass. 367; Await V. Association, 34 Md. 435. 7 Lea'be, Cont. 56; Spragg v. Hammond, 2 Brod. & B. 59; Denby v. Moore, 1 Barn. «& Aid. 123; Mon-is v. Tarin, 1 Dall. 147, 1 L. Ed. 76, 1 Am. Dec. 233; Hall v. Shultz, 4 Johns. (N. Y.) 240, 4 Am. Dec. 270; Await v. Association, 34 Md. 435. 68 MOSES V. MACFERDAN, 1 W. Bl. 219. 68 BRISBANE V. DACRES, 5 Taunt. 144; Regan v. Baldwin, 126 Mass. 485, 30 Am. Rep. 689; Benson v. Monroe, 7 Cush. (Mass.) 125, 54 Am. Dec. 716. 60 Calland v. Loyd, 6 Mees. & W. 26; Bayne v. U. S., 93 U. S. 642, 23 L. Ed. 997 ; Mason v. Prendergast, 120 N. Y. 536, 24 N. E. 806 ; Atlantic Cotton Mills v. Orchard Mills, 147 Mass. 268, 17 N. E. 496, 9 Am. St 698 ; Hindmarch v. Hoffman, 127 Pa. 284, 18 Atl. 14, 4 L. R. A. 368, 14 Am. St. Rep. &42; Harrison Mach. Works v. Coquillard, 26 111. App. 513; ante, p. 234. «i Foster v. Green, 7 Hiu-1. & N. 881. And see Tliacher v. Pray, 113 Mass. 291, 18 Am. Rep. 480; Newhall v. Wyatt, 139 N. Y. 452, 34 N. E. 1045, 36 Am. St Rep. 712; Stephens v. Board, 79 N. Y. 187, 35 Am. Rep. 511; State Nat Bank v. U. S., 114 U. S. 401, 5 Sup. Ct 888, 29 L. Ed. 149. 8 2 Glyn V. Baker, 13 Eiist. 509; Graham v. Dyster, 6 Maule & S. 1; Down V. Hailing, 4 Barn. & C. 330. 542 QUASI CONTRACT. (Cb. IS kept.°^ Where a person, for instance, has obtained money from an- other under an agreement which the latter is entitled to avoid, and does avoid, because of want or faihire of consideration,®* or because of mistake,®"* or because of want of capacity by reason of infancy or insanity,®* or because of the other party's failure to perform his part of the agreement,®'^ the money may be recovered. The money, though obtained without wrong, cannot be rightfully and justly Ayithheld after the contract has been avoided, and the law therefore creates an obli- gation to repay it. Same — Money Paid under a Mistake. An important class of cases in which an action will lie as for money received by the defendant for the use of the plaintiff is where money is paid under a mistake of fact. As a rule, whenever a person makes a payment to another under such a mistake as to material facts as to create a belief in the existence of a liability to pay which does not really exist, the money may be recovered back as having been received by the person to whom it was paid for the use of the person paying it.®* If the mistake is caused by the fraud of the person receiving the money, or if he knows of the mistake when he receives the money, the case will fall within the class which we have already considered.®^ We are speaking here of cases in which the_ mistake is not induced by fraud, and in which both parties may act in perfect good faith. Such an obligation arises where money is paid as due upon the basis of er- roneous accounts, and upon a true statement of account is found not to have been due. It may be recovered as money received for the plaintiff's use.''" The money must have been paid under the belief that it was due. If the plaintiff knew that it was not due, and voluntarily paid it because he thought he could not show that it was not due, or 6 3 Johnson's Ex'x v. Jennings' Adm'r, 10 Grat (Va.) 1, 60 Am. Dec. 323. 84 Post, p. 544. 6 5 Post, p. 542; ante, p. 196. ee Ante. pp. 175, 184. 67 Pbilipson V. Bates' Ex'r, 2 Mo. 116, 22 Am. Dee. 444; post, p. 514. «8 BIZE V. DICKASON, 1 Term R. 285; Citizens' Bank v. Grafflin, 31 Md. 507, 1 Am. Rep. 66 ; Barber v. Brown, 1 C. B. (N. S.) 121 ; MILNES v. DUNCAN, 6 Bam. & C. 671; Mills v. Guardians of the Poor, 3 Exch. 590; Mayer v. City of New York, 63 N. Y. 455; Rheel v. Hicks, 25 N. Y. 289; Hazard v. In- surance Co., 7 R. I. 429; Holtz v. Schmidt, 59 N. Y. 253; Clark v. Sylvester (Me.) 13 Atl. 404; McDonald v. Lynch, 59 Mo. 350; Glenn v. Shannon, 12 S. C. 570. 69 SHARKEY V. MANSFIELD, 90 N. Y. 227. 43 Am. Rep. 161. This dis- tinction, for several reasons, may become important. Where there is na fraud, for instance, a demand before suit is necessary ; but where there is fraud (and it amoamts to fraud if the other party knew of the mistake), demand Is not necessary. SHARKEY v. MANSFIELD, supra; Taylor v. Spears, 6 Ark. 381, 44 Am. Dec. 519. 7 Dails V. Lloyd, 12 Q. B. .531; TOWNSEND v. CROWDY, 8 C. B. (N. S.) 477; STUART v. SEARS, 119 Mass. 143; Keenholts v. Church, 57 Hun, 589, 10 N- Y. Supp. 615. § 281) MONET RECEIVED FOR THE USE OF ANOTHER. 543 for any other reason, it cannot be recovered back. This is not ig- norance of fact, but ignorance of the means of proving a fact."'^ The mere fact that the party paying the money suspects that it is not due does not bring the case within this rule. He must beheve it is not due.'^* It is essential that there shall have been a mistake of a ma- terial fact. A voluntary payment with knowledge of all facts cannot be recovered, even though there may have been no obligation to pay.''^ By the weight of authority, if the mistake occurs and causes the pay- ment, it is immaterial that it arose from negligence or want of diligent inquiry on the part of the plaintiff, or from forgetfulness, or the fact that he had the means of knowledge;^* provided, however, the de- fendant has not so changed his position that he cannot be placed in statu quo.'^° If the money is intentionally paid "without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false," it cannot be recovered. '^^ A person cannot recover money paid under a mistake of fact if he has received the equivalent for which he bargained, so that there is no failure of consideration ; and it is immaterial that he need not. and would not, have made the payment if he had known the true state of facts. Where a bank, for instance, pays the check of a depositor un- der the erroneous belief ths*^ it has sufficient funds, it may recover from the payee the excess paid him over the amount to the depositor's Ti Keener, Quasi Cont. 26; Windbiel v. Carroll, 16 Hun (N. Y.) 101. 7 2 Keener, Quasi Cont. 28. T8 Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627. T4 KELLY V. SOLARI. 9 Mees. & W. 54; APPLETON BANK v. McGILV- RAY, 4 Gray (Mass.) 518. 64 Am. Dec. 92; Devine v. Edwards, 101 111. 138; Lawrence v. Bank, 54 N. Y. 432; Bell v. Gardiner, 4 Man. & G. 11; TOWNS- END V. CROWDY, 8 C. B. (N. S.) 477; Waite v. Leggett, 8 Cow. (N. Y.) 195, 18 Am. Dec. 441; KINGSTON BANK v. ELTINGE, 40 N. Y. 391, 100 Am. Dec. 516; Brown v. Road Co., 56 Ind. 110; Rutherford v. Mclvor. 21 Ala. 750; Baltimore & S. R. Co. v. Faunce, 6 Gill (Md.) 68, 46 Am. Dec. 655; Koontz V. BaMv, 51 :Nro. 275; Walker v. Conant, 65 Mich. 194, 31 N. W. 786. Contra, Brummitt v. McGuire, 107 N. C. 351, 12 S. E. 191; Wilson v. Barker, 50 Me. 447. 7 5 Keener, Quasi Cont. 71; Walker v. Conant, 65 Mich. 194, 31 N. W. 786. 7 6 KELLY Y. SOLARI, 9 Mees. & W. 54; McARTHUR v. LUCE, 43 Mich. 435, 5 N. W. 451, 38 Am. Rep. 204; Mowatt v. Wright, 1 Wend. (N. Y.) 355, 19 Am. Dec. 508; Buffalo v. O'Malley, 61 Wis. 255, 20 N. W. 913, 50 Am. Rep. 137; Bergenthal v. Fiebrantz, 48 Wis. 435, 4 N. W. 89; Troy v. Bland, 58 Ala. 197. A compromise, therefore, cannot be repudiated, and money paid recovered, on the ground of mistake, where it was made without reference to the truth or falsity of facts. See cases above cited. But it is otherwise if there was mistake as to a fact which was believed to be true, and on the belief in the truth of which the compromise was made. Rheel v. Hicks. 25 N. Y. 289; WHEADON v. OLDS, 20 Wend. (N. Y.) 174; STUART v. SEARS, 119 Mass. 143. 544 QUASI CONTRACT. (Ch. 13 credit, but it cannot recover the full amount paid. And it makes no difference that because of the overdraft it had a right to refuse to pay anything on the check.''''' It is almost universally held that a payment under a mistake of law cannot be recovered, for no man can plead ignorance of the law. If a person, therefore, voluntarily pays a claim made upon him with full knowledge of all the circumstances, but under a mistake of law, he cannot recover the money paid on the ground that he was not legally liable, and could have successfully resisted the claim if he had under- stood his legal rights. ''* Mistake, therefore, of a fact, the truth or falsity of which is immaterial, does not entitle one to recover money paid. "A plaintiff paying a claim, supposing himself to be under an obligation to pay the same because of mistake as to a fact which, if true, would not have imposed an obligation upon him, cannot recover the money so paid in jurisdictions where a recovery is not allowed of mon- ed paid under mistake of law, since, had the plaintiff known the law, the fact about which he was mistaken would not have induced him to make the payment." ''* We have, in treating of the formation of con- tract, shown the general exceptions to the rule that ignorance of law cannot be shown, and it will suffice to refer to what is there said. Same — Want or Failure of Consideration — Failure of Other Party to Perform. We may class with payments made under mistake payments which are allowed to be recovered because of want or failure of consideration, for in all cases where a recovery is allowed on this ground there has been a misapprehension. The party who has paid the money has not 7T Keener, Quasi Ck)nt. 34, where the question is considered at length. And see MERCHANTS' NAT. BANK v. BANK, 139 Mass. 513, 2 N. E. 89; Badeau V. U. S., 130 U. S. 439, 9 Sup. Ct 579, 32 L. Ed. 997; Lemans v. Wiley, 92 Ind. 436. 7 8 BILBIE V. LUMLEY, 2 East, 469; Vanderbeck v. City of Rochester, 122 N. Y. 285, 25 N. E. 408; CLARKE v. DUTGHER, 9 Cow. (N. Y.) 674; Denby V. Moore, 1 Barn. & Aid. 123; BRISBANE v. DACRES, 5 Taunt. 143; Wayne Co. V. Randall, 43 Mich. 137, 5 N. W. 75 ; Birkhauser v. Schmitt, 45 Wis. 316, 30 Am. Rep. 740; Carson v. Cochran, 52 Minn. 67, 53 N. W. 1130; Valley Ry. Co. V. Iron Co., 46 Ohio St. 44, 18 N. E. 486, 1 L. R. A. 412; Beard v. Beard, 25 W. Va. 486, 52 Am. Rep. 219 ; Porter v. Jefiferies, 40 S. C. 92, 18 S. E. 229 ; Mutual Sav. Inst. v. Enslin, 46 Mo. 200; Tri^g v. Read, 5 Humph. (Tenn.) 529, 42 Am. Dec. 447; Snelson v. State, 16 Ind. 29; Hubbard v. Martin, 8 Yerg. (Tenn.) 498; Real Estate Sav. Inst. v. Linder, 74 Pa. 371; Townsend V. Cowles, 31 Ala. 428; Newell v. March, 30 N. C. 441; Christy v. Sullivan. 50 Cal. 337; Osburn v. Throckmorton, 90 Va. 311, 18 S. E. 285; ante, p. 206. Contra, Mansfield v. Lynch, 59 Conn. 320, 22 Atl. 313, 12 L. R. A. 285 ; ante, p. 206. 7 8 Keener, Quasi Cont. 32; citing Needles v. Burk, 81 Mo. 569, 51 Am. Rep. 251; Langevin v. City of St Paul, 49 Mina 189, 51 N. W. 817, 15 L. R, A. 766; ante, p. 206. § 281) MONET RECEIVED FOR THE USE OF ANOTHER. 545 gotten what he supposed, or had a right to suppose, he was getting, or would get, in return for his money. Thus, where a person bought a bar of silver by weight, and, by an error in assaying it, paid for a greater weight than it contained, he was allowed to recover the ex- cess from the seller as money received for his use.^" It needs no argument to show that this is a case of mistake. In like manner, if the purchaser of goods has paid the price, and the seller fails to de- liver the goods, the purchaser may recover the money paid as money received for his use.®^ And in any case where a person has paid money under an agreement which he is entitled to rescind, and does rescind, for want or failure of consideration, he may recover what he has paid.*^ The action will lie, for instance, against a person who sells goods as his own, but which are not his own, where the real owner subsequently claims them from the purchaser ;^^ or against a person who sells bills, notes, bonds, stock, or other securities, which turn out to be forgeries, or for some other reason to be worthless ; ®* or against a person who contracts to transfer the title to land, where because of his want of title, or for other reasons, no title passes.®^ As a rule, the failure of consideration must be total in order to en- title a person to recover money paid under a contract. If he has in fact received a part of the consideration, so that the failure of con- sideration is only partial, his remedy, if he has any, is for breach of the contract under which the money was paid,** This is in accord with the rule which we have heretofore stated, — that money paid un- der a mistake cannot be recovered if an equivalent has been received. Where a specific article is sold with a warranty of its quality, and is 80 Cox V. Prentice, 3 Maule & S. 344. And see Devine v. Edwards, 101 111. 138; Noyes v. Parker, 64 Vt. 379, 24 Atl. 12. 81 GILES V. EDWARDS, 7 Term R. 181; Devaux v. Conolly, 8 C. B. 640. 82 OLAFLIN V. GODFREY, 21 Pick. (Mass.) 1; Newsome v. Graham, 10 Barn. & C. 234 ; GILES v. EDWARDS, 7 Term R. 181 ; Joliuson's Ex'x v. Jennings' Adm'r, 10 Grat. (Va.) 1, 60 Am. Dec. 323; Earle v. Bickford, 6 Allen (Mass.) 549, 83 Am. Dec. 651. 83 EICHOLZ V. BANNISTER, 34 Law J. C. P. 105; ante, p. 468. 84 OLAFLIN V. GODFREY, 21 Pidk. (Mass.) 1; Ripley v. Case, 86 Mich. 261, 49 N. W. 46; Westropp v. Solomon, 8 C. B. 345; JONES v. RYDE, 5 Taunt. 488; GURNEY v. WOMERSLEY, 4 El. & Bl. 133; Watson v. Cresap, 1 B. Mon. (Ky.) 195, 36 Am. Dec. 572; YOUNG v. COLE, 3 Bing. N. C. 724; Burchfleld v. Moore, 3 El. & Bl. 683; Moore v. Garwood, 4 Exch. GSl; WOOD V, SHELDON, 42 N. J. Law, 421, 36 Am. Rep. 523 ; ante, p. 468. 85 CRIPPS V. RBADE, 6 Term R. 606; Schwinger v. Hickok, 53 N. Y. 280; Earle v. Bickford, 6 Allen (Mass.) 549, 83 Am. Dec. 651; Wright v. Dickinson, 67 Mich. 580, 35 N. W. 164. 11 Am. St. Rep. 602. And see McGoren v. Avery, 37 Mich. 120; Merryfleld v. Willson, 14 Tex. 224, 65 Am. Dec. 117; ante, p. 470. See Keener, Quasi Cont. 125. 86 HUNT V. SILK, 5 East, 783; Rand v. Webber, 64 Me. 191; Blackburn v. Smith, 2 Exch. 783; Harnor v. Groves, 15 C. B. 667; Smart v. Gale, 62 N. H. 62. Clakk Cont. (2d Ed.)— 35 546 QUASI CONTRACT. (Ch. 13 not altogether worthless, a mere breach of the warranty does not en- title the purchaser to recover the price paid. His remedy is by ac- tion for damages for breach of warranty.*'^ Where the consideration is severable, however, so that the money paid for a portion of it may be ascertained, a partial failure may entitle the plaintiff to recover the part of the money paid in respect of that part of the consideration which has failed.^* A person can never recover money paid on the ground that the con- sideration has failed, if he has obtained the specific consideration which he bargained for, though it may turn out to be of no value ; ^® as, for instance, where he has bought land or goods, intending to take his chances as to the seller's title, or where he has bought stock, bonds, or other property, and taken the chance of their being of value,^" There must, as we have said, have been a misapprehension. Where the failure of consideration was caused by the default of the plaintiff, he cannot recover the money paid for it.®^ Same — Money Paid under Illegal Contract. Though, as we have seen, no action will lie to enforce an illegal con- tract, an action will be allowed, under some circumstances, in disaf- firmance of it. Ordinarily, where one of the parties has paid money under an illegal contract, he cannot sue to recover it back. The law will leave him where he has placed himself.®^ To this rule, as we have seen, there are some exceptions. Where the contract is still executory, except for a payment of money made by one of the parties to the other, and is not of such a character that the illegal object is effected by the mere payment, and is malum prohibitum, and not malum in se, there is a locus poenitentiae, and the party who has paid the money may withdraw from the contract, and recover what he has paid as money received for his use.^^ The law creates a quasi contractual obligation, on the part of the party who has received the money, to repay it. Another exception is where the parties are not in pari delicto. Where the party who has paid money under an illegal contract entered into the contract under the influence of fraud or strong pressure, or where the law which makes the contract unlawful was intended for his 8T Gompertz v. Denton, 1 Cromp. & M. 207. 8 8 Devaux v. Conolly, 8 C. B. 640; Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572; Laflin v. Howe, 112 111. 253. 89 Westlake v. Adams, 5 C. B. (N. S.) 266; TAYLOR v. HARE, 1 Bos. & P. (N. R.) 260; Lambert v. Heath, 15 Mees. »& W. 486; ante, p. 460. 80MORLEY V. ATTENBOROUGH, 3 Exch. 500; Lambert v. Heath, 15 Mees. & W. 486; Westlake v. Adams, 5 C. B. (N. S.) 266. 81 Stray v. Russell, 1 El. & El. 888, 916. 82 HOLM AN V. JOHNSON, 1 Cowp. 341; Tuoro. v. Cassin, 1 Nott & McC. (S. C.) 173; Waite v. Merrill, 4 Greenl. (Me.) 102, 16 Am. Dec. 238; ante, p. 33a 88 Ante, p. 338. § 282) RECOVERY FOR BENEFITS CONFERRED. 547 protection, he is not regarded as being in pari delicto with the other party, and may recover what he has paid.'* RECOVERY FOR BENEFITS CONFERRED. 282. Under certain circumstances, xeh.eTe one person has conferred upon auotlier benefits in the way of property, services, etc., and cannot show a promise in fact by the latter to pay for them, the law will create an obligation, because of the receipt of the benefits, to pay what they are reasonably wortb. As we have seen, if a man deHvers goods to another, or performs services for him, not under such circumstances as to lead the latter to believe them a gift, and the latter accepts them or acquiesces, a promise to pay for them will be implied as a fact. Here there is a true contract shown by the conduct of the parties. Goods may be delivered, how- ever, or services rendered, under circumstances showing that there is no agreement in fact, or that, though there was an agreement, a con- dition has not been performed by one of the parties so as to entitle him to sue the other on it, or for some reason it is unenforceable, or is illegal. Under these circumstances the law will sometimes create an obligation to pay for the goods delivered or services rendered."^ There has, in these cases, been an agreement in fact, which for some reason will not support an action, and the goods have been deUvered, or the services rendered, under this agreement. It needs no argument to show that you cannot imply as a fact any other promise to pay than the unen- forceable promise proven to have been made. The question is one of evidence, and the promise shown to have been made in fact prevents the implication of any other promise in fact. Any implied promise to pay must be implied as a matter of law, or created by the law, and must therefore be quasi contractual, and not contractual. We cannot go at much length into the various circumstances under which such a promise will be created, but will mention some of the most important. Same — Liability for Necessaries. We have seen that, though an infant or an insane or drunken person is ordinarily incapable- of making a contract which will bind him, he is liable for necessaries furnished him. He is not liable for what he may have agreed to pay for them, but only for what they are worth. It would seem from this that the promise is one created by law, and therefore quasi contractual.'^ To so regard it would make the law »4 Ante, p. 340. »o VAN DEUSEN V. BLUM, IS Pick. (Mass.) 229, 29 Am. Dec. 582; TURNER V, WEBSTER, 24 Kan. 38. 3G Am. Rep. 251. » 6 Keener, Quasi Cont. 20; ante, p. 159; Rhodes v. Rhodes, 44 Ch. Div. 94; SCEVA v. TRUE, 53 N. H. U27; TRAINER v. TRUMBULLs 141 Mass 548 QUASI CONTRACT. (Ch. 13 more consistent. It does not seem consistent to say that because of the immature judgment of an infant, or because of the diseased mind of a lunatic, he cannot consent, and therefore cannot enter into a bind- ing agreement, and to say in the next breath that he may bind himself for necessaries. It is better to say that the law makes him liable for necessaries. As we have seen, however, many of the courts regard the liability as based upon the express promise. They allow an action, for instance, on a note, or other express promise, given for necessaries, provided it is such that the consideration may be inquired into, so that the recovery may be limited to what the necessaries are reasonably worth. ®^ We have also seen that, where a husband leaves his wife without means of support, the law gives her authority to pledge his credit to ob- tain necessaries. Not only is this true, but the law will hold a hus- band liable in assumpsit for necessaries furnished his abandoned wife while she is unconscious, and will hold an insane or infant husband liable for necessaries furnished his wife. The liability thus imposed upon the husband is imposed by law without his consent, and is clearly quasi contractual.®^ Under like circumstances a man may be liable for necessaries furnished his children.®* Same — Forcing Benefit upon Another. Neither a liability ex contractu nor a liability quasi ex contractu can be imposed upon a person otherwise than by his act or consent. One man cannot force a benefit upon another without his knowledge or consent, and then compel him to pay for it.^"" If a person intentionally and knowingly performs services for another, or otherwise confers a benefit upon him, without his knowledge, so that he has no opportunity to refuse the benefit, the law will not create a liability to pay for it.^°^ So, where a person supplies another with goods, the latter supposing that he is being supplied by another person with whom he has con- 527, 6 N. E. 761 ; Gay v. Ballou, 4 Wend. (N. Y.) 403, 21 Am. Dec. 158; Earle V. Reed, 10 IMetc. (Mass.) 3S7. 97 Ante, p. 159. 88 Ante, p. 158; Cunningham v. Reardon, 98 Mass. 538. 96 Am. Dec. 670; Chappie V. Cooper, 13 Mees. & W. 252 ; Turner v. Frisby, 1 Strange, 168. 99 Gilley v. Gilley, 79 Me. 292, 9 Atl. 623, 1 Am. St. Rep. 307; Van Valkin- burgh V. Watson. 13 Johns. (N. Y.) 480, 7 Am. Dec. 395; People v. Moores, 4 Denio (N. Y.) 518, 47 Am. Dec. 272; In re Ryder, 11 Paige (N, Y.) 185, 42 Am. Dec. 109. But see Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499. 100 Ante, pp. 349, 350. 101 BARTHOLOMEW v. JACKSON, 20 Johns. (N. Y.) 28, 11 Am. Dec. 237; Dunbar v. Williams, 10 Johns. (N. Y.) 249; Glenn v. Savage, 14 Or. 567, 13 Pac. 442; EARLE v. COBURN, 130 Mass. 596; Shaw v. Graves, 79 Me. 166, 8 Atl. 884. § 282) RECOVERY FOR BENEFITS CONFERRED. 549 tracted for the goods, the law not only will not imply a promise in fact to pay for the goods, but it will not even create a promise.^"^ Same — Benefits Rendered Gratuitously. If benefits are conferred gratuitously, the law will not create a promise to pay for them, even though they may have been requested.^"^ A person, for instance, who has rendered services for another in the ab- sence of any intention of charging for them on the one side, or of pay- ing for them on the other, cannot afterwards recover for them. Where necessaries are furnished to an infant, or an unconscious person, with the intention of charging for them, the law, as we have seen, will create a promise to pay their reasonable value. Where, however, there is no intention at the time to charge for the necessaries furnished, the law will not create a Hability. Same — Goods Wrongfully Obtained — Waiver of Tort. We have seen that, where goods are wrongfully obtained and con- verted into money, an action will lie by the owner to recover the money received as money received for his use. Such an action does not lie where the goods are retained by the wrongdoer, and not sold. As to whether, in such a case, the owner must sue in tort, as he may do, of course, or whether he may waive the tort, and sue in assumpsit for the value of the goods as upon a fictitious sale, the authorities are con- flicting. Some courts allow such an action,^"* while others do not.^°^ Same — Part Performance of Contract. As we have seen in treating of discharge of contract by breach, a party to a contract is not discharged from liability to perform by the 102 BOSTON ICE CO. v. POTTER, 123 Mass. 28, 25 Am. Rep. 9; Sclimaling V. Thomlinson, G Taunt. 147. 108 Disbrow v. Durand, 54 N. J. Law, 343, 24 Atl. 545, 33 Am. St. Rep. 678; Brown v. Tuttle, 80 Me. 162, 13 Atl. 583; COOPER v. COOPER, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721; Doyle v. Trinity Cliurcli, 133 N. Y. 372, 31 N. E. 221; Patterson v. Collar, 31 111. App. 340; Collar v. Patterson, 137 111. 403, 27 N. E. 604; ante, p. 41. 104 RUSSELL V. BELL. 10 Mees. & W. 340; Willson v. Foree, 6 Johns. (X. Y.) 110, 5 Am. Dec. 195; Toledo, W. & W. Ry. Co. v. Chew, 67 111. 378; Aldine Mfg. Co. v. Barnard, 84 Mich. 632, 48 N. W. 280; Goodwin v. Griffis, 88 N. Y. 629; Walker v. Duncan, 68 Wis. 624, 32 N. W. 689; Lehmann v. Schmidt, 87 Cal. 15, 25 Pac. 161; Blalock v. Phillips, 38 Ga. 216; DIETZ'S ASSIGNEE V. SUTCLIFFE, 80 Ky. 650; Morford v. White, 53 Ind. 547; Newton Mfg. Co. v. White, 53 Ga. 395; Evans v. Miller, 58 Miss. 120, 38 Am. Rep. 313; Logan v. Wallis, 76 N. C. 416. 10 5 Jones V. Hoar, 5 Pick. (Mass.) 285; Allen v. Ford, 19 Pick. (Mass.) 217; Androscoggin Water Power Co. v. Metcalf, 65 Me. 40; Bethlehem Borough V. Fire Co., 81 Pa. 445; Sandeen v. Railroad Co., 79 Mo. 278; Galloway v. Holmes. 1 Doug. (Mich.) 330 (but see Aldine Mfg. Co. v. Barnard, supra); Winchell v. Noyes, 23 Vt. 303; Strother's Adm'r v. Butler, 17 Ala. 733; FERGUSON V. CARRIXGTON, 9 Barn. &, C. 59. But see RUSSELL v. FALL, 10 Mees. & W. 340. 550 QUASI CONTRACT. (Ch. 13 failure of the other party to perform a part of his promise which is merely subsidiary, and does not go to the essence of the contract ; nor, where a contract consists of several promises based on several con- siderations, so that the promises are divisible, does a failure to perform one or more discharge the other party from liability to pay for those that have been performed. In these cases the party thus partially in default may recover for what he has done, leaving the other party to recover damages from him for his partial breach. The recovery is on the contract itself. Where, however, the breach is not merely of a subsidiary promise, or of one or more of several promises, but of a term which the parties regarded as of the essence of the contract, or there is a failure to fully perform an indivisible promise, the question arises whether the other party is liable for the benefits he has received from the partial performance. That he is not liable on the contract itself is clear, for he can only recover on it by showing that he has substantially performed what he has agreed to perform as a condition precedent to the other's liability. The other party has not agreed to pay him for a partial performance, and any liability must be created by the law without agreement, or quasi ex contractu. Under certain circumstances such a liability is created. The right to recover is based, not on principles of the law of contract, but on equita- ble principles; and it would be beyond the scope of our work to go into the subject at any length. It must suffice to call attention to a few of the most important cases in which such a recovery has been allowed. Where a person has willfully refused or failed to fully perform a con- tract which he was bound to perform, it is clear that he should not, and cannot, recover, for what he has performed under it.^°® If his de- fault was not willful, but because of sickness, death, prevention by the other party, or any other cause, not arising from his own fault, and excusing the breach, then he can recover from the other party on a promise created by the law to pay for the benefits he has received from the part performance.^"^ And, by the weight of authority, where one 106 Ante, pp. 431, 461, 462, and cases cited in notes 177, 178. 107 Wolfe V. Howes, 20 N. Y. 197, 75 Am. Dec. 388; Robinson v. Davison, L. R. 6 Excli. 269; Boast v. Firth, L. R. 4 C. P. 1 ; SPALDING v. ROSA, 71 N. Y. 40, 27 Am. Rep. 7; JONES v. JUDD, 4 N. Y. 412; LAKEMAN v. POLTvARD, 43 Me. 463, 69 Am. Dec. 77; Green v. Gilbert, 21 Wis. 395; Clark V. Gilbert, 26 N. Y. 279, 84 Am. Dec. 189; Martus v. Houck, 39 Mich. 431, 33 Am. Rep. 409; Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57; Pinches V. Lutheran Church, .55 Conn. 183, 10 Atl. 264; ShiUtz v. Johnson, 5 B. Mon. (Ky.) 497; Adams v. Crosby, 48 Ind. 1.53; Harrington v. Iron-Works Co., 119 Mas8. 82; Stewart v. Lorlng, 5 Allen (Mass.) 306, 81 Am. Dec. 747; Fuller v. Brown, 11 Mete. (Mass.) 440; HAYWARD v. LEONARD, 7 Pick. (Mass.) 181, 19 Am. Dec. 269; SCULLY v. KIRKPATRICK, 79 Pa. 324, 21 Am. Rep. 62; Allen v. Baker, 86 N. C. 91, 40 Am. Rnp. 444; Oilman v. Hall, 11 Vt. 510, 34 Am. Dec. 700 ; Feuton v. Clark, 11 Vt 557 ; Hubbard v. Belden, 27 Vt 045 ; § 282) RECOVERY FOR BENEFITS CONFERRED. 5ol of the parties to a contract has endeavored in good faith to perform it, and has substantially done so, and thereby conferred a substantial bene- fit on the other party, though he has failed to perform the contract in some particulars, he may recover what the partial performance is rea- sonably worth, having regard, however, to the contract price.^°* If, by the express terms of the contract, there is no liability except upon a full performance, there can be no recovery for a part perform- ance, even where the contract is divisible, and a full performance is prevented by death or other cause beyond the control of the parties. The terms of the express contract exclude the arising of any such im- plied contract as could form the basis of a claim upon a quantum meruit.^"" Same — Retaining Benefits. Where benefits are conferred by one person on another under such circumstances as to raise no promise in fact or in law to pay for them, he may nevertheless become liable by retaining them. If a person, for instance, were to receive goods from another, reasonably but mistakenly believing them to be intended as a gift, and, after learning of his mis- take, should retain them, when he might return them, or, by the weight of authority, if he should receive part of the goods purchased from another, and retain them after failure of the latter to supply the rest of the goods, the law would compel him to pay for them."** And the same rule would apply where benefits are in any other way received under such circumstances as to create no contractual obligation, and are retained when they should in justice be returned. If, however, the benefits thus received are incapable of being returned, as where they consist of services, or of material which has been used in repairing a house,"^ it would seem that no liability should be created. If a man engages a servant for a specified time, and agrees to pay him if he works for that time, his rendition of the services is a condition pre- cedent to his right to recover for them on the contract. If he leaves his employer's service, without excuse, before the time has expired, he certainly cannot recover on the contract without a violation of the plainest principles of the law of contract. The master cannot return the benefit he has received from the part performance, and he should not be held liable to pay for it. Some courts allow the servant to re- YERRINGTON v. GREEN, 7 R. I. 5S9, 84 Am. Dec. 578; Norris v. School Dist., 12 Me. 293, 28 Am. Dec. 182; Wadleigh v. Town of Sutton. G N. H. 15, 23 Am. Dec. 704; Mooney v. Iron Co., 82 Mich. 2G3, 46 N. W. 37G; ante, p. 468. 108 Ante, p. 431. io» Cutter v. Powell, 6 Term R. 320. 110 OXENDALE V. WETHERP^LL, 9 B. & C. 286, and cases cited, ante, p. 453, note 145. But see, contra, CHAMPLIN V. ROWLEY, 18 Wend. 187, and cases cited, ante, p. 468, note 453. 111 Ante, p. 431. 552 QUASI CONTRACT. . (Ch. 13 cover on the quantum meruit, though he has broken his contract with- out excuse. The weight of authority, however, is to the contrary.^^^ Same — Part Performance of Illegal Contract. Difficult questions have arisen where it has been sought to recover for benefits conferred under an illegal contract. We have already seen that an action for money had and received will lie to recover money paid under an illegal contract which has not been carried out, provided the illegal object has not been effected by the mere payment of the money, and provided the object is malum prohibitum, and not malum in se. We have also seen that in certain cases the parties to an illegal contract are not regarded as being in pari delicto, and that the person who is the less guilty is allowed to recover what he has paid under the contract. So, also, where a person has performed services under an illegal contract, and he is not in pari delicto with the other party, he may be allowed to recover what the services are worth. Where an illegal contract has been performed, and the illegal object effected, neither party, if he knew of the illegality, can recover for the benefits conferred upon the other. Same — Part Performance of Unenforceable or Void Agreement. Where an agreement is not illegal, but merely void, or unenforce- able, and one of the parties refuses to perform his promise after per- formance or part performance by the other, the law will create a prom- ise to pay for the benefits received. If a man delivers goods, or con- veys land, or renders services for another under a contract which is void or unenforceable, but not illegal, he may recover on the quantum valebat or quantum meruit.^ ^^ Such is the case with contracts which are unenforceable because of noncompliance with the statute of frauds.^ ^* A party, however, who has partly performed a contract which is merely unenforceable and not illegal, cannot, by the weight of au- thority, abandon it, and recover for the part performance, if the other party is willing to carry out the contract.^ ^"^ 112 Ante, p. 462. 113 Nugent V. Teachout, 67 Mich. 571, 35 N. W. 254; Patten v. Hicks, 43 Cal. 509 ; Rebman v. Water Co., 95 Cal. 390, 30 Pac. 564 ; Ellis v. Cory, 74 Wis. 176, 42 N. W. 252, 4 L. R. A. 55, 17 Am. St. Rep. 125 ; Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881 ; Smith v. Wooding, 20 Ala. 324 ; Little v. Martin, 3 Wend. (N. Y.) 219, 20 Am. Dec. 688; Montague v. Garnett, 3 Bush (Ky.) 297; ante, p. 95. 114 See cases above cited. iiB Philbrook v. Belknap, 6 Vt. 383; Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351 ; Ketchum v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384 ; Collier V. Coates, 17 Barb. (N. Y.) 473; Greton v. Smith, 33 N. Y. 245; Nelson v. Shelby Manuf g & Imp. Co., 96 Ala. 515, 11 South. 695, 38 Am. St. Rep. 116 ; McKinney v. Harvie, 38 Minn. 18, 35 N. W. 668, 8 Am. St Rep. 640; Sennett § 282) RECOVERY FOR BENEFITS CONFERRED. 553 Same — On Rescission of Contract. As we have seen, if a person has obtained money from another un- der an agreement which the latter has the right to rescind on the ground of fraud, duress, or undue influence, or on the ground of want or fail- ure of consideration, or want of capacity to contract, or because of a breach of his contract by the other operating as a discharge, he may, on rescinding the contract, recover the amount paid as money received for his use.^^* So, by the weight of authority, where a person, for like reasons, rescinds a contract which he has partly performed by the rendition of services, he may recover for the services on a promise created by law because of their receipt and the benefit conferred.^ ^^ The existence of the special contract in these cases which has been rescinded precludes the implication of any other contract in fact. The obligation, therefore, is necessarily imposed by law. V. Shehan, 27 Minn. 328, 7 N. W. 266 ; Kriger v. Leppel, 42 Minn. 6, 43 N. W. 484; Sims v. Hutchins, 8 Smedes & M. (Miss.) 331, 47 Am. Dec. 90; Abbott V. Inskip, 29 Ohio St 59 ; Shaw v. Shaw, 6 Vt 69 ; Plummer v. Bucknam, 55 Me. 105; Clark v. Terry, 25 Conn. 395; HAWLEY v. MOODY, 24 Vt 605; ante, p. 129. Contra, KING v, WELCOME, 5 Gray (Mass.) 41 (but see Riley v. Williams, 123 Mass. 506) ; Koch v. Williams, 82 Wis. 186, 52 N. W. 257. 116 Ante, p. 536. iiT Palanch6 v. Colburn, 8 Bing. 14; Ex parte Maclure, L. R. 5 Ch. App. 737 ; Seipel v. Insurance Co., 84 Pa. 47 ; Gaffney v. Hayden, 110 Mass. 137, 14 Am. Rep. 580; Medbury v. Watrous, 7 Hill (N. Y.) 110; WILLIAMS v. BEMIS, 108 Mass. 91, 11 Am. Rep. 318 ; Brown v. Railway Co., 36 Minn. 236, 31 N. W. 941 ; Shane v. Smith, 37 Kan. 55, 14 Pac. 477 ; ante, p. 549. TABLE OF CASES CITED. [the figures refer to pages.] Aaron v. Harley, IGO. Abbott V. Creal, 183. V. Doane, 129. V. Hapgood, 504. V. Inskip, 553. V. Rose, 198, 483. V. Sliepard, 26. Abell V. Munson, 65, 426. Abraham v. Railroad, 404. Abrams v. Railway Co., 319. Abshire v. Corey, 369, 441. Acbeson v. Chase, 274. Ackert v. Barker, 296, 298. Ackley v. Parmenter, 69. Acme Electric, etc., Co. v. beck, 269. Acme Mfg. Co. v. Reed, 24. Adair v. Winchester, 364. Adams v. Adams, 73, 304. V. Bank, 243, 245. V. Beall, 1&4, 165, 174. V. Coulliard, 329. V. Crosby, 550. V. Frye, 481, 483. V. Gay, 266, 269, 343. V. Jones, 24. V. Kuehn, 354. V. Leavens, 3G9. V. Lindsell, 25, 31. V. Messinger, 490. V. Nichols, 473. T. Otterback, 397, 398. V. Reeves, 543. V. Rodarmel, 369. V. Ryan, 54. V. Schiffer. 244. y. Shirk, 354. V. Stewart, 264. Clabk Cont.(2d Ed.) Adams County v. Hunter, 283. Adams Express Co. v. Reno, 338. V. Trego, 430. Adams Radiator & Boiler Works v. Schnader, 432. Addyston Pipe & Steel Co. v. U. S., 313. Adkins v. Watson, 87. Adler v. Railroad Co., 366. Adriance v. Rutherford, 429, 525. Aetna Ins. Co. v. Reed, 226. Aetna Iron & Steel Works v. Kossuth County, 431. Aetna Life Ins. Co. v. France, 215. V. Nexsen, 488. V. Sellers, 182. Van Der- Aetna Nat. Bank v. Winchester, 479. Agnew V. Dumas, 103. Ahern v. Baker, 527. Aiken v. Blaisdell, 260-262, 265, 329, 345. V. Nogle, 82. Aiman v. Stout, 180. Ainslie v. Martin, 146. V. Wilson, 536, 538. Aitkin v. Lang's Adm'r, 37. A. J. Anderson Electric Co. v. Light- ing Co., 426. Akin V. Peters, 436. Alabama G. S. R. Co. v. Railroad Co., 76. Alabama Mineral Land Oo. v. Jackson, 86. Alaska Packers' Ass'n v. Domenico, 128. Albatross, Steamboat, v. Wayne, 396. Albert's Ex'rs v. Ziegler's Ex'rs, 419. Alcott V. Barber, 264. Alden v. Wright, 233. Alderson v. Langdale, 480, 483. (555) 556 CASES CITED. [The figures refer to pages.] Aldine Mfg. Co. v. Barnard, 549. Aldous V. Cornwell, 481. Aldrich v. Aldrich, 534. V. Ames, 70. V. Blackstone, 267. V. Funk, 166. V. Grimes, 168. V. Jackson, 469. V. Jewell, 68. V. Price, 426. V. Wilmartb, 514. Alexander v. Barker, 344. V. Brogley, 229. V. Gish, 359. V. Jones, 505. V. Pierce, 240-242. V. Swackhamer, 200. V. Vane, 534. Alfred Shrimpton & Sons v. Dworsky, 100. V. Philbrick, 229. AJger V. Scoville, 70. V. Thacber, 59, 306, 308. Alker v. Alker, 218. Allan V. Lake, 463. Allard v. Greasert, 103. V. Lamirande, 300. Allcord V. Skinner, 250. Allegre's Adm'rs v. Insurance Co., 219, 295. Allen V. Alien, 17, 58, 460. V. Baker, 476, 550. V. Bank, 399. V. Berryhlll, 182. 185. V. Bryson, 138, 139. V. Chouteau, 29, 43. V. Compress Co., 428. V. Culver, 439. V. Deming, 269. V. Duffie, 118, 268. V. Ford, 549. V. Gardner, 267. V. Hammond, 201. V. Hart, 218, 224, 229. V. Hartfleld, 222, 459. V. Hawks. 390. V. Jaquish, 424. V. Kennedy, 375. V. Kirwan, 42. V. Lardner, 155. V. Pearce, 323. V. Plasmeyere, 126. V. Rescous, 256, 257. V. Sowerby, 426. Allen V. Watson, 526. V. Witbrow, 355. V. Woodward, 138. Aller V. Aller, 60. Allgeyer v. Louisiana, 260. Alliance Bank v. Broom, 123. Allin V. Sbadburne's Ex'r, 5, 380, 381. Allis V. Billings, 182, 184, 185. V. McLean, 488. V. Voigt, 514. Allore V. Jewell, 251. Allred V. Bray, 503. Allshouse V. Ramsey, 97. Almond v. Hart, 72. Alston V. Boyd, 180. Alsworth V. Cordtz, 162. Alt V. Graff, 175. Alton V. Bank, 206. Alvarez v. Brannan, 230. Alves V. Hodgson, 345. Alvord V. Collin, 282. v. Smitb, 38, 277. Alwortb V. Seymour, 527. Ambler v. Phillips, 397. American Emigrant Co. v. Adams County, 451. American Bonding & Trust Co. v. Takabashi, 519. American Box Macb. Co. v. Grossman, 489. American Cotton Oil Co. v. Kirk, 119. American Exeb. Nat. Bank v. Railroad Co., 356. American Gas & Oil Min. Co. v. Wood, 403. American Mortgage Co. v. Wright, 167, 169, American Pencil Co. v. Wolfe, 70. American Surety Co. v, Pauly, 406. Ames V. Booming Co., 510. V. Gilman, 264. V. Railroad Co., 350, 522. Amestoy v. Transit Co., 293. Amey v. Cockey, 166. Amis V. Kyle, 267. Ammerman v. Ross, 274. Ammondson v. Ryan, 273. Amory v. Gilman, 276, 277. Amoskeag Mfg. Co. v. U. S., 409. Amsden v. Atwood, 447. Anchor Electric Co. v. Hawkes, 309. Anderson v. Anderson, 241. Y. Armstead, 201, 470. V. Baugbman, 405. CASES CITED. [The figures refer to pages.] 551 Anderson v. Brewing Co., 94. V. Farns, 327. V. Granite Co., 492. V. Harold, 89. V. Insurance Co., 219. V. Jett, 289. V. Martindale, 382, 384. V. May, 476. V. Reardon, 367. V. Smith, 151. V. Soward, 167, V. Spence, 70. V. Todd, 431. V. U. S., 314. V. Van Alen, 368. V. Walter, 390. V. Wbitaker, 400. Anderson Electric Co. v. Lighting Co., 426. Anderson School Tp. v. Milroy Lodge, 65. Andiug V. Levy, 346. Andre v. Bodman, 69, 72. V. Graebner, 420. Andrew v. Babcock, 88, 95. Andrews v. Ass'n, 337. V. Belfield, 432. V. Calloway, 482. V. Herriot, 343. V. Pond, 346. V. Smith, 478. V. Sullivan, 409. Androscoggin Water-Power Co. v. Met- calf, 549. Angier v. Webber, 309. Angle V. Insurance Co., 479. V. Railroad Co., 350. Anglo-California Bank v. Ames, 186. Angus V. Robinson, 382. V. Scully, 473. Anheuser-Busch Brewing Ass'n v. Hutmacher, 204. V. Mason, 330. Ann Berta Lodge v. Leverton, 95. Anon., 00, 78, 192. Anthony v. Machine Co., 194. Aplin V. Board, 145. Appleby v. Johnson, 28. V. Myers, 473. Applegarth v. Robertson, 235. Appleman v. Fisher, 280, 396 Appleton V. Bascom, 416. Appleton Bank v. McGilvray, 511, 543. Arbuckle v. Reaume, 343, Archer v. Bogue, 382. V. Freeman, 299. V. Helm, 74. V. Hudson, 248, 250. Archibald v. Thomas, 405. Arend v. Smith, 126. Argo V. Coffin, 179. Argus Oo. V. Albany, 83. Arkansas M. R. Co. v. Whitley, 78. Arkansas Val. Smelting Oo. v. Belden Min. Co., 360, 365. Arkwright v. Newbold, 232. Armfield v. Tate, 168, 330. Armitage v. Widoe, 154, 165, 504, 505. Armour v. Insurance Co., 214. Armstrong v. Bank, 331. V. Best, 345. V. Express Co., 319. V. Granite Co., 403, 404. V. Lewis, 238. V. McGhee, 41. V. Prentice, 127. V. Stokes, 517, 523. V. Toler, 331, 345. Arnheiter v. State, 268. Arnold v. Clifford, 259. V. Garst, 64. V. Iron Works, 182, 184, 185. V. Kreutzer, 307. V. Sprague, 520. V. Spurr, 501. Amot V. Coal Co., 313, 329. Arthur v. Gordon, 36. Arundel v. Trevillian, 303. Ashbrook v. Dale, 328. Ashbury Carriage Co. v. Riche, 325. Ashcroft V. Butterworth, 105. V, Morrison, 105. Ashfleld V. Ashfield, 168. Ashley v. Dixon, 350, 460. v. Henaban, 431. V. Henehan, 460. Ashmead v. Reynolds, 185. Ashton V. Thompson, 249, 250. Asiatic Banking Corp., Ex parte, 38, 370. Askey v. Williams, 156, 160. Askin V. Lebus, 272. Aspell V. Hosbein, 270. Astley T. Reynolds, 540. Atcheson v. Mallon, 258. Atchison v. Pease, 74. 558 CASES CITED. [The figures refer to pages.] Atchison R. Co. v. Dill, 244. V. Lawler, 319. Atchison, T. & S. F. R. Co. v. English, 78. Atherford v. Beard, 276. Atkins V. Anderson, 494. V. Banwell, 140, 535. V. Johnson, 259. V. Owen, 537. Atkinson v. Allen, 244, V. Cox, 437. V. Dance, 495. V. Denby, 341. V. Truesdell, 397. Atkyns v. Kinnier, 310. Atlanta Min. Oo. v. Gwyer, 273. Atlantic Cotton Mills v. Orchard Mills, 541. Atlantic Phosphate Co. v. Ely, 343. Atlantic & P. Tel. Co. v. Barnes, 217. Atlas Bank v. Bank, 341. V. Rif^wnell, 217. Atlas Nat. Bank v. Holm, 258. Atlee V. Backhouse, 243, 540. V. Bartholomew, 392. V. Fink, 302, 509. Attaway v. Bank, 302. Attrill V. Patterson, 430, 52G. Atwater v. Hough, 100. V. Manville, 278, 337. Atwell V. Milton, 381. Atwood V. Cobb, 83, 86, 404, 405. V. Cornwall, 435. V. Emery, 405. V. Marshall, 55. V. Mt. Holly, 422. V. Norton, 81. Aubert v. Maze, 261. Audenreid's Appeal, 249. Audette V. L' Union St. Joseph, 460. Auditor v. Ballard, 40. Audrieu, Succession of, 141, 142. Audubon v. Insurance Co., 494. Augusta Ins. & Banking Co. v. Ab- bott, 214. Augusta Southern R. Co. v. Smith & Kilby Co., 426. Aulger V. Clay, 440. Aultman v. Waddle, 296. AuJtman & Taylor Co. v. Ti'ainer, 470. Austin V. Bacon, 273. V. Seligman, 356. V. Wacks, 409. Austrian v. Springer, 399. Averill v. Hedge, 26, 31, 35. Avery v. Bowden, 444, 446. V. Dougherty, 519. V. Halsey, 327. V. Miller, 463. V. Willsou, 212. V. Wilson, 453. Await V. Ass'n, 541. Ayer v. Hawkins, 437, 438. V. Kilner, 423. V. Mfg. Co., 394, 515. V. Telegraph Co., 204. Ayerst v. Jenkins, 300, 334. Aylesford v. Morris, 252. Ayres v. French, 222. V. Railroad Co., 12& B Babbitt v. Bennett, 54. Babcock v. Case, 237, 238, V. Hawkins, 492. V. Lawson, 238. V. Orbison, 509. Babcock & Wilcox Co. v. Moore, 430; Bach V. Smith, 265. V. Tuch, 236, 237. V. Tuck, 231. Bachelder v. Fiske, 381, 385 Backus V. Fobes, 423. V. Spaulding, 369. Bacon v. Bonham, 252. V. Brown, 438. V. Cobb, 421. V. Eccles, 102. V. Lee, 261. V. Rupert, 521. V. Sondley, 521. Badeau v. U. S., 544. Badger v. Phinney, 171, 172, 178» V. Williams, 293. Badische, etc., v. Schott, 309. Baehr v. Wolf, 340. Baer v. Christian, 110. Bagley v. Peddle, 411. V. Rolling-Mill Co., 463, 467. Bailey v. Ass'n, 318. V. Austrian, 120. V. Bamberger, 174. V. Bensley, 399. V. Bussing, 535. V. Cornell, 517. V. Day, 129. V. Fox, 236. CASES CITED. [The figures refer to pages.] 659 Bailey v, Mogg, 264, 346. V. Ogden, 84, 88. V. Kailroad Co., 403. V. Richardson, 374. V. Walker, 110. Bally V. De Crespigny, 474, 475. Bain v. Brown, 510. Bainbridge v. Firmstone, 107, 113. V. Pickering, 157. Balrd v. Laevison, 470. V, Mayor, 284. V, Millwood, 273. V. Sheelian, 290. V. U. S., 132. Baker v. Baker, 95, V. Burton, 264. V. Codding, 80, 81. V. Dening, 89. V. Freeman, 500. V. Gregory, 190. V. Haskell, 55. V. Holt, 29. V. Humphrey, 217. V. Jewell, 382. V. Johnson, 474. V. Kennett, 164, 168. V. Lauterbach, 79, 91, 96. V. Lever, 238. V. Lovett, 152, 154. V. Maxwell, 237. V. Morton, 240, 241. V. Railroad Co., 117. V. Rockabrand, 223. V. Stackpole. 439. V. Stone, 178. V. Wainwright, 74. Balch V. Patten, 537. Baldey v. Parker, 99. Baldock v. Atwood, 65. Baldwin v. Barrows, 198. V. Bricker, 198. V. Dunton, 180. V. Emery, 358. V. Hiers, 67, 68. V. Hutchison, 241. V. Leonard, 521. V. Rosier, 162. V. Steamship Co., 540. V. Timber Co., 244. V. Walker, 374. V. Williams, 100. Baldy v. Stratton, 300. Balfour v. Davis, 271. Ball V. Dunsterville, 53, 500. V. Mannin, 179. Ballard v. Cheney, 409. V. Insurance Co., 483. Ballinger v. Bourland, 274. Ballou V. March, 135. V. Talbot, 517. Baltimore Baseball C. & E. Co. v. Pickett, 400. Baltimore Fire Ins. Co. v. McGowan, 425. Baltimore & O. R. Co. v. Brydon, 460. Baltimore & O. S. W. R. Co. v. Voight, 320. Baltimore & P. S. Co. v. Atkins, 517. Baltimore & S. R. Co. v. Faunce, 543. Balue v. Taylor, 58. 225, 237. Banchor v. Mansel, 329, 345, 346. Bancroft v. Dumas, 437. Bane v. Detrick, 240-242. Bane's Case, 123. Bangs V. Dunn, 284. V. Hornick, 279. Bankhead v. Alloway, 218. Bank of Australia v. Breillat, 324. Bank of British America v. Cooper, 393. Bank of Chillicothe v. Dodge, 207. Bank of Columbia v. Hagner, 28, 451. v. Patterson, 192. Bank of Commerce v. Bank, 481. V. Bogy, 367, Bank of Genesee v. Bank, 481. Bank of Ireland v. Evans Charities, 192. Bank of Limestone v. Penick, 481. Bank of Monroe v. Gifford, 435. Bank of New Hanover v. Bridgers, 122. Bank of New Orleans v. Matthews, 148. Bank of North America v. Wheeler, 493. Bank of U. S. v. Dandridge, 192. V. Daniel, 206, 226. V. Owens, 261, 262. Banks v. Everest, 514. V. Flint, 274. V. Werts, 269. Bannerman v. White, 213. Bannon v. Aultman, 393. Banorgee v. Hovey. 58, 478. Banton v. Shorey, 76. 560 CASES CITED. [The figures refer to pages.] Bantz V. Bantz, 17. Barbee v. Barbee, 390. Barber v. Brown, 542. Barbour v. Barbour, 93, 304. Barclay v. Pearson, 280, 337, 338. Bardwell v. Purringtou, 150. Barham v. Bell, 517. Barbite's Appeal, 17. Baring v. Peirce, 513. Barker v. Barker, 298, 300. V. Critzer, 119. V. Dinsmore, 200, 235. V. Hibbard, 156. V. Insurance Co., 519. Barkley v. Tarrant, 394. Barlow v. Lambert, 397. V. Robinson, 168. Barnaby v. Barnaby, 154. Barnard v. Campbell, 239. V. Coffin, 511. V. Iron Co., 236. V. Kellogg, 400. V. Lee, 409. V. Simons, 123. Barnes v. Barnes, 54, 155. V. Brown, 340, 486. V. Gidds, 493. V. Hedley, 137, 142. V. Insurance Co., 357, 422. V. Morrison, 259. V. Scott, 300. V. Shoemaker, 199. V. Smith, 279, 280, 343. V. Strong, 298. V. Toye, 157, 159. Barnet v. Smith, 436. Barnett v. Barnett, 180, 231, 393. V. College, 119, 450. V. Glutting, 514. V. Warren, 537. Barney v. Forbes, 389. V. Grover, 369. V. Newcomb, 406. Barons v. Brown, 204. Ban- V. Gibson, 202. V. Kimball, 235. V. Schroeder, 527. Barrett v. Buxton, 186. V. Dodge, 346. V. Forney, 94. V. McAllister, 83, 97. Barrle v. Earle, 237. Barringer v. Ryder, 126. Barron v. Porter, 368. V. Tucker, 286. V. Vandvert, 129, 130. Barrows v. Cushway, 525. Barr's Adm'x v. Church, 274. Barry v. Capen, 287. V. Crosky, 231. V. Page, 517. V. Ransom, 392. Bartholomew v. Dighton, 154. V. Jackson, 18, 137, 138, 548. Bartle v. Coleman, 337. Bartlett v. Bailey, 174. V. Blanchard, 487. V. Collins, 342, 345, 346. V. Cowles, 172. V. Insurance Co., 71. V. Mystic River Corp., 78. V. Remington, 394. V. Robbins, 415. V. Telegraph Co., 320. V. Tucker, 517. V. Wyman, 127. Barton v. Benson, 258. Barwick v. Bank, 523. Basket v. Moss, 283. Bass V. Patterson, 272. Bassett v. Bassett, 448. V. Brown, 238. V. Camp, 103. V. Hughes, 356-358. Batavian Bank v. North, 240. Bate V. Payne, 535. Bateman v. Butler, 70. Bates V. Babcock, 75. V. Ball, 186. V. Childers, 45. V. Lumber Co., 365. V. Railroad Co., 53. V. Sandy, 125. V. Townley, 535. Batlzen v. Nicolay, 518. Batsford v. Every, 267. Batterman v. Pierce, 393. Battle V. McArthur, 132. Battles V. Fobes, 55. Baudouine v. Grimes, 526. Baugh V. Baugh, 494. Baughman v. Gould, 216. Baum V. Baum, 303. V. Du Bois, 500. Bausman v. Guarantee Co., 435. Bavington v. Clarke, 152. V. Techlenberg, Baxter v. Aubrey, 494. V. Billings, 476. V. Burtield, 378. V. Camp, 354. V. Portsmontli, 181. Bay V. Williams, 35(>-358. Bayard v. McLane, 297. Bay City Bank v. Lindsay, 536, Bayler v. Com., GO. Bayley v. Homan, 491. V.' Taber, 335. Baylies v. Fettj^olace, 475. Baylis v. Dinely, 153. Bayne v. U. S., 541. V. Wiggins, 88. Bayview Brewing Co. 470. Beach v. Churcb, 37. V. Hotcbkiss, 382. V. Mulliu, 430. Beadles v. Bless, 276. V. McElratb, 279, 390. Beal V. Cbase, 309. V. Polhemus, 287. Beals V. See, 183. Beaman v. Buck, 95. Beaman's Adm'r v. Russel, 70. Bean v. Atwater, 452. V. Burbank, 35, 119. V. Clark, 42. V. Mining Co., 519. V. Proseus, 471. V. Simpson, 368. Bearce v. Barstow, 274. Beard v. Beard, 544. V. Bliley, 224, 234. V. Campbell, 223. V. Horton, 534. Beardsley v. Hotcbkiss, 161, 162. V. Knigbt, 52, 208. V. Morgner, 366. Beasley v. Beasley, 185. Beattie v. Hilliard, 389. Beatty v. Lumber Co., 456. Beatty's Estate v. College, 119. Beauchamp v. Winn, 401. Beaumont v. Brengeri, 101, 103. V. Greatbead, 486. V. Reeve, 109, 301, 334. Beaupre v. Telegraph Co., 42. Beaver v. Fulp, 130. Becbtel v. Cone, 94, 466. Beck V. Haas, 437, 438. Clakk Cont.(2d Ed.)— 36 CASES CITED. 50J [The figures refer to pages.] Becker v. Boon, 440. V. Mason, 177. v. AA^iterworks, 352. Beckham v. Drake, 517. Beckwith v. Butler, i80. v. Cheever, 22. V. Frisbie, 244. v. Talbot, 88. Beck & Pauli Lithographing Co. v. Elevator Co., 410. Beddoe's Ex'r v. Wadsworth, 375. Bedier v. Reaume, 23V. Bedinger v. Whittamore, 92. Beebe v. Johnson, 135, 472. Beecham v. Smith, 384. Beecher v. Buckingham, 378. V. Conradt, 452. Beekman v. Fletcher, 86. Beeler v. Young, 156, 158-160. Beer v. Aultman-i'aylor Co., 389. Beeston v. Caller, 430. Begbie v. Sewage Co., 257, 337. Behaly v. Hatch, 441. Behl V. Schuett, 242. Behn v. Burness, 210, 464-466. Behrensmeyer v. Kreitz, 147. Beidman v. Goodell, 503. Beiler v. Devall, 81. Beitenman's Appeal, 268. Beith V. Beith, 247. Belden v. Hann, 481. Belding v. Smythe, 340. Belding Bros. & Co. v. Frankland, 222. Belfast & M. L. R. Co. v. Unity, 21. Belknap v. Bank, 480. V. Bender, 69. Bell V. Bank, 55. V. Bruen, 403. V. Campbell, 340. V. Cunningham, 509. V. Dagg, 469. V. Eaton, 223. V. Ellis, 222. V. Gardiner, 543. V. Hewitt's iix'rs, 78. V. Hoffman, 464. V. Keepers, 236, 237. V. McConnell, 302. V. Mahin, 269, 484. V. Teague, 520. Bellas V. Hays, 409. Beiler v. Block, 515. Belleville Sav. Bank v. Bornman, 436. 562 CASES CITED. [The figures refer to pages.] Belleville Sav. Bank v. Winslow, 380. Bellows V. Sowles, 66, 125. Bell's Adm'r v. Huggins' Adm'rs, 471. Bell's Gap R. Co. v. Christy, 504. Belote V. Henderson, 246. Belz V. Keller, 225. Beman v. Wessels, 269. Bender v. Been, 129. V. Sampson, 130. Bendemagle v. Cocks, 493. Benecke v. Haebler, 445. Benedict v. Bachelder, 270. V. Cowden, 4S0. V. Miner, 480, 481. Benescli v. Weil, 235. 239. Benge v, Hiatt's Adm'r, 355. Benicia Agricultural Works v. Estes, 390. Beninger v. Corwin, 224. Benjamin v, Benjamin, 501, 513. V. Dockbam, 499. Benneban v. Webb, 406. Benneson v. Aiken, 54. Bennett v. Ass'n, 346. V. Brumfitt, 89. V, Davis. 154. V. Ford, 244. V. Hibbert, 147. V. Hill, 492. V. Huil, 98. V. Judson, 229. V. Morse, 134. V. Pierce, 470. Bennitt v. The Guiding Star, 511. Benoit v. Inhabitants, 525. Bensley v. Bignold, 261, 265. Benson v. Markoe, 207. V. Monroe, 541. V. Shotwell, 426. Bent V. Cobb, 90. V. Manning, 159. Bentall v. Burn, 103. Bentinck v. Franklin, 297. Bentley v. Robson. 242. Benton v, Ass'n, 32. V. Holland, 496. V. Pratt, 231, 350. Benyon v. Cook, 252. Berdell v. Bissell, 132. Bergen v. Frisbie, 286. Bergenthal v. Fiebrantz, 543. Bergin v. Williams, 389. Bergson v. Insurance Co., 365. Berkeley v. Hardy, 521. Berkmeyer v. Kellerman, 248. Berkshire Woolen Co. v. Proctor, 398. Bernard v. Taylor, 276. 339. Bernhardt v. Walls, 100. Bernshouse v. Abbott, 522. Berry v. Bacon, 58. V. Bakeman, 223. V. Brown, 520. V. Carter. 295. V. Doremus, 80. V. Hall, 116. V. Nail, 440. V. Whitney, 226. Bersch v. Insurance Co., 277. Berti-and v. Byrd, 52. Besant v. Wood, 304. Besse v. Dyer, 38. Best V. Davis, 96. V. Strong, 298. Bestor v. Hickey, 167. V. Hickie, 244. V. Wathen, 288. Bethlehem v. Annis, 360, 364. Bethlehem Borough v. Fire Co., 549. Betterbee v. Davis, 441. Bettini v. Gye, 458, 465. Beveridge v. Rawson, 503. Beverley's Case, 179, 185. Bevier v. Covell, 274. Bevin v. Insurance Co., 277. Beymer v. Bonsall, 522. Bibb V. Allen, 65, 84, 118, 279, 280, 342, 508. Bice V. Building Co., 72. Bickel V. Sheets, 330. Bickford v. Bank, 519. V. Cooper, 405. Bicknall v. Waterman, 436. Bicknell v. Bicknell, 158. Bidault V. Wales, 222. Biddel v. Brizzolara, 496. Bieme v. Ray, 116. Biest V. Shoe Co., 78. Bigelow V. Bigelow, 1 12. V. Burnham. 346. V. Denison, 505. V. Grannls, 167. V. Kinney, 153, 166, 171, 172. V. Stilphen, 482. Bigger v. Bovard, 463, Biggers v. Owen, 39. Biggs v. Barry, 222. Bignall v. Gould. 412. Bilbie v. Lumley, 544. CASES CITED. [The figures refer to pages.] 563 Bill V. Bament, 82. V. Porter, 430, 478. Billings V. Morrow, 505. Billings' Appeal, 477. Billingsley v. Harris, 57. Billington v. Cabill, 82. Billiot V. Robinson, 441. Billmeyer v. Wagner, 487. Binford v. Bruso, 229. Bingham v. Bingham, 201, 207. V. Madison, 204. Birchcll v. Neaster, 96. Bird V. Church, 460. V. Mnnroe, 82, 91, 105. V. Randall, 380. V. Swain, 1G7. Birdsall v. Clark, 511. V. Russell, 480. Birkbeck v. Kelly, 94. Birkett v. Chatterton, 264. Birkhauser v. Schmitt, 206, 207, 544. Birkmyr v. Darnell, 68. Birks V. French, 266. Birmingham Warehouse, etc., Co. v. Land Co., 225. Bisbee v. McAllen, 261, 263. Bishop V. Eaton, 24. V. Holcomb, 367. V. Palmer, 136, 308, S23, 334. V. Small, 227. Bissell V. Heyward, 441. V. Spring Valley Tp., 192. Bixby V. Dunlap, 850. V. Moor, 17, 322, 323. Bi>!e V. Dickason, 542. Black V. Black, 233. Y. Cord, 60. V. De Camp, 422. V. Foljambre, 247. V. Walker, 470. V. Woodrow, 477. Blackburn v. Hayes, 271. V. Mann, 72. V. Mason, 400. V. Reilly, 4.55. V. Smith, 545. Blackett v. Assurance Co., 400. Blackie v. Clark, 249. Blackman v. Dowling. 471. Blacknall v. Parish, 500. V. Rowland. 228. Blackstone v. Buttermore, 526, 527. Blackwell v. Hamilton, 52. V. Willard, 147. Blades v. Free, 37, 528. Blagborne v. Hunger, 419, 426. Blagen v. Thompson, 487. Blaine v. Publishers George Knapp A: Co., 433. Blaisdell v. Ahem, 299. Blake v. Cole, 78. V. Coleman, 389. V. Elizabeth, 149. V. Insurance Co., 27. V. Peck, 121. V. Stump, 399. V. Voight, 78. Blakely v. Sousa, 257, 476. V. Susa, 378. Blakeney v. Goode, 101. Blakstone v. Buttermore, 527. Blalock V. Phillips, 435, 549. Blanchard v. Russell, 344. V. Trim, 426. Blanding v. Sargent, 80. Blank v. Dreher, 68. V. Nohl, 304. Blaskower v. Steel, 496. Blatchford v. Preston, 282. Blattenberger v. Holman, 460. Bleaden v. Charles, 535. Bledsoe v. Irvln, 380. Blewitt V. Boorum, 56, 392. Bliss V. Lawrence, 284, 285. V. Perryman, 141. V. Railroad Co., 179. Bllven V. Lydecker, 274. V. Screw Co., 398. Blood V. Enos, 419. V. Goodrich, 426, 506. V. Wilson, 431. Bloom V. Hazzard, 284. V. Richards, 260. Bloomer v. Bernstein, 456. V. Henderson, 370. V. Nolan, 158, 1U9. Bloss V. Bloomer, 257. Blossom V. Railroad Co., 22. Blount V. Harvey, 376. Blczram v. Sanders, 459. Bloxsome v. Williams, 326. Bluestone Coal Co. v. Bell, 201. Blymer v. Bonsall, 522. Blythe v. Railroad Co., 429. Boardman v. Cutter, 100. V. Hayne, 369. V. Spooner,'89, 400. V. Taylor, 273, 274. 564 CASES CITED. [The figures refer to pages.] Board, 145. V. Greenbaum, Boardman v. Thompson, 298. Board of Com'rs of Bartholomew County T. Jameson, 208. Board of Com'rs of Delaware County V. Lock Co., 3G5. Board of Education v, Board of Education 192. Board of Education v. Townsend, 474. Boast V. Firth, 476, 550. Bobbitt V. Insurance Co., 214. Bobe's Heirs v. Stickney, 437, 439, 440. Bock V. Perkins, 40o. Bocock V. Pavey, 511. Bodine v. Insurance Co., 511. Bofinger t. Tuyes, 392. Boggs V. Curtin, 415. V. Wann, 112. Bogie V. Bogie, 53. Bohanan v. Pope, 356. Bohart v. Oberne, 514. Bohn Mfg. Co. v. Hollis, 314, 315. Boit V. :Maybin, 23. Boland V. O'Neil, 303. BoUes V. Carli. 349. V. Sachs, 390, 448. Bollin V. Hooper, 270. Bellman v. Burt, 455. Bolton V. Lambert, 29. Bomar v. Rosser, 233. Bommer v. Mfg. Co., 504. Bond V. Bond, 180. Bonelli v. Blakemore, 76. Bonnewell v. Jenkins, 29. Bonney v. Morrill, 394. Bonsfield v. Wilson, 337. Bontelle v. Melendy. 270, Bonwell v. Howes, 302. Boody V. McKenney, 168, 172, 173. Book V. Mining Co., 96. Bool v. Mix, 150, 154, 164, 165, 170. Boone, In re, 302. V. Chiles, 300. V. Eyre, 457. Booske V. Ice Co., 45. Booth V. Bank, 262. V. Mill Co., 473, 487. V. Powers, 480, 483. V. Tyson, 453. Boothbay v. Giles, 52. Boothby v. Scales, 464. Boothe V. Fitzpatrick, 138, 139. Boozer v. Teague, 94. Borchsenius v. Canutson, 71. Borden v. Railroad Co., 205. Bordentown Tp. v. Wallace, 151. Borland v. Guffy, 28. Bosdeu V. Sir .John Thenne, 138. Bosley v. Shanner, 241. Bostick V. Blades, 303. V. McClaren, 293. Boston V. Farr, 68. Boston Ice Co. v. Potter, 199, 349, 549. Boston Rubber Co. v. Wringer Co., 492. Boston Safe-Deposit & Ti-ust Co. v. Water Co., 352. Boston & M. R. R. Co. v. Bartlett, 31, 35. Boston & S. Glass Co. v. Boston, 244. Bostwick V. Bryant, 367. V. Insurance Co., 197, 236. V. Leach, 76. Bothwell V. Brown, 294. Bouchell V. Clary, 156, 160. Boucher v. Lawson, 345. Boulder Valley D. M. & M. Co. v. Farnham, 93. Boulton V. Jones, 199. Bour V. Kimball, 429. Bourlier v. Macauley, 350. Bourne v. Mason, 352. Boutelle v. Smith, 307. Bowdell V. Parsons, 448. Bowditch V. Insurance Co., 2G0, 341. Bowdoin v. Hammond, 271. Bowdoin College v. Merrett, 247. Bowe V. Bowe, 249. V. U. S., 145. Bowen v. Hall. 350, 512. T. Railroad Co., 422. V. Tipton, 22, 123. Bower v. Blessing, 21. V. Fenn, 230. V. Stone Co., 366, 367. Bowerman y. Rogers, 509. Bowers v. Thomas, 198. Bowery Nat. Bank v. Wilson, 284. Bowes V. Shaud, 410, 462, 464. Bowker v. Hoyt, 453. V. Lowell, 242. Bowling V. Blum, 292. V. Taylor, 316. Bowman v. Coffroth, 286. V. Neely, 273. V. Patrick, 116, 236. CASES CITED. [The figures refer to pages.] 565 Bowman v. Taylor, 58. Bowser v. Bliss, o09, olO. v. Patrick, 406. Boyce v. Tabb, 346. Boyce's Adm'r v. Smith, 180. Boyd V. De La Montagnie, 249. V. Dobsou, 506. V. Eaton, 324. V. Gunnison, 408. V. Hanson. 342. V. Hind, 133. V. Hitchcock, 131. V. Lee, 149. V. State, 146. Boydell v. Drummond, 88. Boyden v. Boyden, 161, 168, 175. Boyer v. Berryman, 182, 1S3. V. Bolender, 534. Boyett V. Potter, 537. Boylan v. Railroad Co., 20. Boyle v. Adams, 290. Boylston v. Bain, 274. Boynton v. Ball, 493. V. Hubbard, 252. V. Moulton, 496. V. Page, 266, 267. V. Veazie, 103. Boy son v. Thorn, 350. Bozeman v. Browning, 151. Brackett v. Blake, 284, 365. V. Griswold, 232. V. Mountfort, 481. V. People, 494. Bradbume v. Botfleld, 384. Bradbury v. Place, 182. Bradford v. Chicago, 244. V. Foster, 33. V, Greenway, 190. V. Koulston, 139. V. Williams, 466. Bradlaugh t. Xewdegate, 297. Bradley v. Ballard, 194. V. Irish, 245. V. King. 455. V. Owsley, 94. V. Pratt, 160. V. Rea, 270, 398, 469. V. Richardson, 516. Bradner v. Roffsell. 460. Bradshaw v. Bradbury, 402. V. Davis. 492. V. Van "Winkle. 177. Bradstreet v. Baker, 519. Brady v. Evans, 233. V. Finn, 228. V. Horvath, 337. Bragg V. Danielson, 419. V. Wetzel, 380. Braitch v. Guelick, 323. Brakefield v. Anderson, 91, 96. Braley v. Kelly, 89. v. Powers, 230. Braman v. Bingham, 56. Brandon v. Brown, 173. Brands v. De Witt, 74. Brandt v. Railroad Co., 441. V. Turner, 464. Branson v. Kitchenman, 110. Brant v. Johnson, 69. Brantley v. Wolf, 178. Brauer v. Shaw, 26, 27, 34. Braun v. Keally, 264, 343. Brawley v. U. S., 120. Brawner v. Franklin, 172. Bray v. Kettell, 517. Brayshaw v. Eaton, 159. Brazee v. Bryant, 266. Bream v. Dickerson, 374. Breckenridge v. Lewis, 514. Breckem'idge's Heirs v. Ormsby, 163, 1S2. Breckinridge v. Crocker, 86. Bredin's Appeal, 323. Breed v. Judd, 156, 157. Breen v. Moran, 396, 469. Breese v. Telegraph Co., 320. Breitling v. Marx, 53. Brengle v. Bushey, 59. Brennan v. Chapin, 19. v. Clark, 412. Brent v. Cook, 398. V. Green, 515. Bresee v. Stanly, 167. Bressey's Adm'r v. Gross, 179. Bret v. J. S. & Wife, 108. Bretto v. Levine, 393. Brewer v. Horst & Lackmund Co., 88. V. Marshall, 375, 376. V. Mauerer, 357. V. Sparrow, 539. Brewster v. Banta, 270. V. Edgerly, 413. V. Hatch, 216. V. Leith, 103. Breyfogle v. Walsh, 237. Breyman v. Railroad Co., 407. 566 CASES CITED. [The figures refer to pages.] Brice v. Bannister, 3G8. V. King, 35G. Brick Pi-esbyterian Churcti v. City of New Yorlj, 474. Bridges v. Sticliney, 487. Briggs V. Boyd, 540. V. Latliam, 110. V. McCabe, 153. V. Sizer, 15, 28. V. Tillotson, 117. V. U. S., 96. Brigham v. Carlisle, 488. V. Fayerweattier, 183. V. Herriclf, 394. V. Palmer, 389, 507. Brill V. Rack, 237. V. Tuttle, 368. Brinker v. Scheunemann, 343. Brinkley v. Swicegood, 485. Brinton v. Van Cott, 93. Brisbane v. Dacres, 541, 544. Briscoe v. Reynolds, 480, 483. Bristol V. Braidwood, 229. Bristol Aerated Bread Co. v. Maggs, 28. Bristol Sav. Bank v. Stiger, 391. Bristow V. Lane, 356. V. Sequeville, 345. British Columbia & Vancouver's Is- land Spar, Lumber & Saw-Mill Co. V. Nettleship, 487. British Wagon Co. v. Lea, 360, 364. British & Am. Tel. Co. v. Colson, 26, 27. Britt V. Hays, 485. Brittain v. Aingier, 87. V. Daniels, 58. V. Lloyd, 137. V. Rossiter, 92. Britton v. Dierker, 480. V. Phillips, 30. V. Turner, 462. Broadwater v. Darne, 186. Broadwell v. Getman, 80. Brockway v. Allen, 520. V. Express Co., 344. V. Frost, 86. V. Harrington, 116. V. Mulliu, 513. Brogden v. Marriott, 276. V. Railroad Co., 22, 23, 25. Bronson v. Herbert, 21. Bronson Agricultural & B. Ass'n v. Ramsdell, 277. Brooke v. Filer, 147. V. Logan, 305. Brooker v. Scott, 155. Brooklyn Bank v. De Grauw, 442. Brooks V. Avery, 272. V. Ball, 112, 115. V. Berryhill, 245. V. Hamilton, 216, 218. , V. Martin, 217, 337. V. Stuart, 381. V. Wage, 121. V. White, 131. V. Wichita, 413. Brosnan v. McKee, 75. Brothers v. Bank, 179. Broumel v. Rayner, 454. Brower v. Callender, 240. v. Fisher, 179. V. Goodyer, 222. Brown V. Adams, 111. V. Bank, 89, 122, 273, 274, 293. V. Benight, 381. V. Bennett, 141. V. Eigne, 297. V. Brown, 54^-56, 180, 274, 283, 285, 303. V. Browning, 266, 343. V. Burbank, 248, 249. V. Burns, 437. V. Byi-ne, 397. V. Caldwell, 154. V. Combs, 516. V. Duncan, 261. V. Dysinger, 441. V. Everett-Ridley-Ryan Co., 341. V. Everhard, 420, 426. V. Farnham, 133. V. Finance Co., 343. V. Foster, 400, 432. V. Fowler, 87. v. Gardner, 272. V. Hoag, 94. V. Hodgson, 535. V. Johnson, 513. V. Jordhal, 53. V. Kinsey, 301. V. Latham, 108. V. Leach, 228. V. Levy, 205. V. Lumber Co., 419, 420. v. McCreight, 294. V. McCune, 177. V. McKee, 383. V. Markland, 395. Brown v. Miles, 182. V. Miller, 528. V. Neally, 257. V. Norman. 23G, 237. V. Odill, 304, 448. V. Peck, 246. V. Piukham, 48L V. Pitcairn, 236. V. Pollard, 92, 93. V. Railway Co., 29, 553. V. Keiman, 522. V. Rice, 21. V. Road Co., 543. V. Safe-Deposit Co., 409, 410. V. Savings Union, 33. V. Speyers, 289. V. Stillmau, 357. V. Sutton, 94. V. Telegraph Co., 320. V. Trust Co., 65. V. Tuttle, 549. V. Vandyke, 273. V. Weldon, 470. V. AVheeler, 218. V. Wheelock, 152. V. Wiggin, 516. Brown Chemical Co. v. Atkinson, 396. BroAvnell v. Harsh, 121. V. Winnie, 481. Browning v. Beriy, 83. V. Crouse, 492. V. Insurance Co., 215, V. Morris, 341. V. Parker, 91. Brownlee v. Lowe, 129. Brown University v. College, 145. Brown & Haywood Co. v. Wunder, 100. Brua's Appeal, 278. Bruce v. Bishop, 21, 29, 41. V. Lumber Co., 393. V. Pearson, 29. Bruecher v. Port Chester, 244. Bruen v. Marquard, 382. Brumby v. Smith, 473. Brummitt v. McGuire, 543. Brun V. Brun, 303. Brundage v. Port Chester, 537. Brunnell v. Sawmill Co., 399. Brush V. Sweet, 299. Brunswick-Balke-Collender Co. v. Boutell, 520. Bryan v. Brazil, 130. V. Foy, 130. CASES CITED. 567 [The figures refer to pages.] Bryan v. Reynolds, 285, 286. V. Wash, 54. V. Watson, 268. Bryant v. Booze, 26, 268. V. Insurance Co., 219. V. Isburgh, 4G4. V. Moore, 513, 514. V. Peck, 243, 245. V. Pember, 469. V. Richardson, 157. Bryson v. Haley, 330. Buchanan v. Bank, 343. V. Hubbard, 168, 171. V. Insurance Co., 276, 277. V. Moran, 72. V. Tilden, 355, 357. Buck V. Bank, 292. V. Biddeford, 268. V. Burk, 404. V. Coward, 309. Buckey v. Buckey, 179. Buckingham v. Ludlum, 117, 118. Buckley v. Beardslee, 87. V. Humason, 264. Buckner v. Anderson, 74. V. Smith, 369. Budd V. Hiler, 538. V. Rutherford, 293. Buel V. Miller, 426. Buell V. Chapin, 435. Buffalo V. O'Malley, 543. Buffalo Barbwire Co. v. Phillips, 487. Buffalo E. S, R. Co. v. Railroad Co., 474. Buffendeau v. Brooks, 333, 390. Buffington v. Gerrish. 239. Buford V. Tucker, 398. Bugbee v. Kendricken, 68. Bughman v. Bank, 222. Buhl V. Steph«ns, 97. Building & Loan Ass'n of Dakota v. Logan, 346. Bulkley v. Devine, 395. V. Fishing Co., 193. V. Landon, 137. Bull V. Bull, 494. V. Hopkins, 494. V. Rice, 271, 272. Bullion & Exch. Bank v. Otto, 96. Bullitt V. Farrar, 230. Bullock V. Adams' Es'rs, 409. V. Lumber Co., 402, V. Sprowls, 174. V. Tschergi, 103. 568 CASES CITED. [The figures refer to pages.] Bullock V. Turnpike Co., 77. Bulow V. Goddard, 540. Bundy v. Newton, 297. Bunge V. Koop, 444. Bunker v. Hodgson, 474. Bunn V. Guy, 311. V. Riker, 276. V. Winthrop, 301. Bunneman v. Wagner, 71. Bui-bridge y. Fackler, 285, 287. Burch V. Breckenridge, 190, 191. BurcMeld v. Moore, 469, 479, 545. Burck V. Taylor, 365. Burden Bank v. Phelps, 291. Burdett v. Williams, 167, 177. Burger v. Rice, 360. V. Roelsch, 265. Burges v. Wickham, 395. Burgess v. Carpenter, 350. V. Pollock, 180. Burgess Sulphite Fibre Co. v. Broom- field, 120. Burghart v. Angerstein, 156, 157. V. Hall, 157. Burke v. Adams, 54. V. Allen, 185. V. Miller, 389. V. Railway Co., 20, 505. V. Taylor, 116, 249. Burkett v. Moses, 364. Burkhardt v. School Tp., 475. Burkholder v. Casad, 54. Burkle v. Levy, 236. Burks V. Albert, 438. Burlen v. Shannon, 50. Burley v. Russell, 177. Burlingame v. Brewster, 480. Burlington Lumber Co. v. Lumber Co., 197. Bum V. Carvalho, 367. Burnard v. Haggis, 177. Burnes v. Allen, 58. V. Scott, 300, 392. Burnet v. Bisco, 110, 111, 119. Burnett v. Burnett, 54. V. Orandall, 366. V. McCluey, 53. V. Telegraph Co., 268. Bumey's Heirs v. Ludeling, 288. Burnham v. Kidwell, 179, 182, 183. V. Mitchell, 180. Bums V. Dockray, 235. V. Lane, 229. V. Mahannah, 227. Burns v. Moore, 266, 267. V. Real-Estate Co., 65, 426. V. Smith, 154. Burns & Smith Lumber Co, v. Doyle, 392, 393. Burr V. Beers, 357. V. Sickles, 435. V. Willson, 233. Burrell v. Highleyman, 99. Burrell's Case, 225. Burrill v. Stevens, 222. Burritt v. Insurance Co., 214, 215. Burroughs v. Guano Co., 229. Burrows v. Ward, 19. V. Wene, 236. Burt v. Meyer, 278. V. Place, 338. V. Quisenberiy, 252. Burtis V. Thompson, 444, 445. Burton v. Driggs, 538, 540. V. Henry, 383. V. Larkin, 356. V. Leroy, 53. V. Marshall, 188. V. Shotwell, 32. Burwell v. Burgwyn, 50. Busby V. Bush, 395. Busch V. Wilcox, 223. Buschman v. Codd, 224, 230, 232. Bush V. Breinig, 186. V. Brown, 246. V. Holmes, 102. V. Linthicum, 162, 165. V. Merriman, 401. V. Rawlins, 126. Bushnell v. Bushnell, 534. Bussing V. Rice, 239. Buswell V. Bicknell, 428. Butcher v. Krauth, 510. Butler V. Barnes, 375. v. Breck, 151. V. Burleson, 311. V. Dinan, 92. V. Duncan, 252. V. Eschelman, 223. V. Lee, 268. V. Maples, 513. V. Miller, 479. V. Price, 497. V. Wigge, 406. Butler's Appeal, 221. Butler & Baker's Case, 32, 55. Butterfleld v. Byron. 473. V. Hartshorn, 423. CASES CITED. [The figures refer to pages.] 569 Butters V. Haughwout, 239. Buxton V. Lester, 41)0. Byers v. Chapin, 463. Byrd v. Bertrand, 422. V. Hughes, 301. Byrne v. Cummings, 107, 471. V. Tienhoven, 34. Byrnes v. Claffey, 437. Byxbie v. Wood, 365. Cable V. Foley, 244. V. Insurance Co., 215. Cabot V. Cbrlstie, 229, 230. V. Kent, 410. Cadman v. Markle, 95. Cadwallader v. West, 179, 249, 250. Cagney v. Cuson, 225. Cabin V. Bigelow, 68. Cain V. Heard, 500. V. McGuire, 76. V. Warford, 179. Cairnes v. Bleecker, 505. Caldwell v. Lay ton, 404. V. Myers, 468. V. Scbool Dist, 44. V. Walters, 188. V. Wentworth, 437. Calhoun v. Atchison, etc., 26. V. Millard, 504. V. Phillips, 266. California Nat. Bank v. Kennedy, iy3. Calkins v. Chandler, 121-123. Callahan v. Stanley, 397. Callan v. McDaniel, 373. Oallanan v. Chapin, 91. V. Edwards, 369. Calland v. Loyd, 541. Callis V. Day, 153, 168, 171. Callisber v. BiscbofEsheim, 122, 125. Callo V. Brouncker, 430. Camden Iron Works v. Fox, 410. Cameron v. Durkbeim, 289. Caminada v. Hulton, 280. Cammerer v. Muller, 304. Camp V. Camp, 74. V. Telegraph Co., 320. Campanari v. Woodburn, 37. Campbell v. Clay, 423. V. Com'rs, 364. V. Floyd, 423. V. Hillman, 524. V. Holt, 496. Campbell v. Insurance Co., 215. V. Jones, 56, 458. V. Kubn, 185. V. Moran Bros. Co., 459. V. Perkins, 176, V. Potter, 489. V. Kichardson, 276. V. Segars, 264. V. Stakes, 176, 177. v. Thomas, 56. V. Van Houten, 197. V. Young, 269. Campbell Printing Press Co. v. Thorp, 433. Campbell's Estate, In re, 419. Canadian Pac. R. Co. v. Telegraph Co., 289. Canajoharie Bank v. Diefendorf, 335. Canal Com'rs v. People, 406. Candee v. Telegraph Co., 320. Canedy v. Marcy, 207. Oannam v. Farmer, 189. Cannan v. Bryce, 330. Cannon v. Alsbury, 154. V. Handley, 91. V. Lindsey, 197. V. Ryan, 266. Canon v. Grigsby, 483. Canterberry v. Miller, 404. Canton Co. v. Railroad Co., 29. Canty v. Latterner, 366. Capehart v. Carradine, 223. V. Rankin, 289. Capen v. Barrows, 416. V. Insurance Co., 526. Caperton's Adm'r v. Caperton, 404. Card V. Hope, 282. Cardell v. McNiel, 71. Cardwell v. McClelland, 224. Carew v. Rutherford, 317, 540. Carey v. Hess, 141, 142. V. Mackey, 303. V. Woods, 324. Carlill V, Smoke-Ball Co., 23, 30. Carlisle v. Campbell, 69, 90. Carlton v. Hulett, 237. V. Railroad Co., 130. Carman v. Pultz, 441. Carmichael v. Buck, 515. Carnahan v. Bailey, 222. Carnegie v. Holt, 487. V. Morrison, 355. Carney v. Carney, 94. Carnig v. Carr, 79. 570 CASES CITED. [The figures refer to pages.] Carolina Interstate Building & Loan Ass'n V. Black, 177. Carpenter v. Carpenter, 164, 180. V. Comings, 73. V. Galloway, 426. V. Medford, 45. V. Rodgers, 186. V. Wriglit, 228. Carr v. Clougli, 164, 172. V. Duval, 30, 31, 36. V. McCarthy, 78. Carrell v. Potter, 162, 167. Carrier v. Sears, 182, 185. Carrl v. Snyder, 310. Carrol v. Bleucow, 189. Carroll v. People, 23-6. V. Tyler, 284. Carroll Co. Sav. Bank v. Strother, 272. Carson v. Cochran, 57, 544. V. Lucas. 40. Carter v. Ailing, 309. V. Carter, 384. V. Coal Co., 399. v. Harden, 231. V. Insurance Co., 364. V. Nichols, 366. V. Phillips, 409, 462. V. Scargill, 466. V. Strom, 414. V. West, 249. Carthrae v. Brown, 383. Cartwright v. Cartwright, 303. Carver v. Jackson, 57. Case V. Ayers, 229. v. Fant, 437. V. Seass, 436. V. Seger, 75. Case Mfg. Co. v. Soxman, 435. Casey v. Casey, 217, 248. v. Miller, 423. Cason v. Cheely, 98. Caspari v. Church, 250. Cass County Bank v. Bricker, 294. Casserleigh v. Wood, 112, 298. Cassiday v. McKenzie, 528. Cassidy, Succession of, 375. Castle v. Kemp, 286. Oastner v. Richardson, 90. Catawissa R. Co. v. Titus, 383. Cates V. Bales, 113. Catlett V. Trustees, 268. Catlin v. Tobias, 453, 456. Catling V. King, 84. Caton V. Caton, 72, 89, 94. V. Stewart, 287. Catts V, Phalen, 539. Caulkins v. Hellman, 101, 102. Cavanaugh v. Jackson, 74. Cavendish v. Greaves, 369. Caylor v. Roe, 72, 95. Cayzer v. Taylor, 399. Cecil v. Spurger, 224. Central Lith. & E. Co. v. Moore, 100 Central Ohio Salt Co. v. Guthrie, 313. Central R. Co. v. Anderson, 400. Central Shade Roller Co. v. Cushman, 315. Central Transp. Co. v. Pullman's Pal- ace-Car Co., 193, 288. Central Trust Co. v. Bank, 372. Central Trust Co. v. Burton, 343. Central Trust Co. v. Mfg. Co.. 469. Cesar v. Karutz, 224. Chace v. Chapin, 354. Chadsey v. Condley, 33. v. Guion, 407. Chadwick v. Knox, 286, 287. Chaffee v. Thomas, 137, 138. Chalfant v. Payton, 303. Challenge Wind & Feed Mill Co. v. Kerr, 32. Chamberlain v. Beller, 508. V. Grimes, 300. V. Railroad Co., 295. V. Williamson, 378. Chamberlin v. Fuller, 228. V. Gilman, 367. Chambers v. Baldwin, 350. V. Ker, 162. v. Lancaster, 366. V. Seay, 525-527. Chambliss v. Matthews, 369. Cliampenois v. Fort, 437. Champlin v. Parrish, 89. V. Rowley, 453, 551. Chancely v. Bailey, 333. Chandler v. Johnson, 293, 323. V. Marsh, 471. V. Sanger, 244, 540. V. Simmons, 163, 173. Chanter v. Hopkins, 462, 465. V. Leese, 382, 383. Chapin v. Brown, 306. V. Chapin, 442. V. Dobson, 394. V. Longworth, 360, 364. CASES CITED. [The figures refer to pages.] 571 Chapln V. Shafer, 1G4. 170. Chaplin v. Rogers, 102. Cbapman v. Brooklyn, 471. V. Dease, 16. V. Hughes, 158. V. J. W. Beltz & Sons Co.. 444. V. Persinger, 57. V. Rose, 198. V. Sutton, 537. Chappel V. Brockway, 308. V. Spencer, 482. Chappie V. Cooper, 156, 158, 548. Charles v. Hastedt, 178. V. Scott, 59. Charles Green's Son v. Salas, 146. Charley v. Potthoff, 4G6. Charlton v. Reed, 480. Charnley v. Wlnstanley, 528. Chase v. Day, 68. V. Fltz, 72, 378. V. Henry, 382. Chase Nat. Bank v. Faurot, 271. Chase's Ex'rs v. Burkholder, 324. Chastain v. Bowman, 497. Chateau v. Singla, 328. Chateaugay Ore & Iron Co. v. Blake, 398, 399. Chatham Furnace Co. v. Moffatt, 230. Cheddick's Ex'r v. Marsh, 412. Cheek v. Bellows, 190. Cheesman v. Wiggins, 70. Cheltenham Stone & Gravel Co. V. Iron Works, 435. Chemical Co. v. Pegram, 385. Chemical Electric Light & Power Co. V. Howard, 469. Chenault v. Bush, 470. Cheney v. Cook, 35. V. Duke, 330. V. Eastern Transp. Line, 29. V. Libby, 409. Cherbonnier v. Evitts, 250. Chesapeake & O. Canal Co. v. Hill, 403. V. Ray, 425. Chesapeake & P. Tel. Co. v. Tele- graph Co., 289. Chesebrough v. Conover, 286. Cheshire v. Bai-rett, 168. Chestei-field v. Jansen, 251. Cheveront v. Textor, 133, 258. Chicago V. Tilley, 449. Chicago Attachment Co. v. Sewing Mach. Co., 74, 92. Chicago Bldg. & Mfg. Co. v. Barry, 446. V. Graham, 416. Chicago, B. & Q. R. Co. v. Aurora, 406. Chicago Dock Co. v. Kinzie, 91, 96. Chicago Gaslight & Coke Co. v. Coke Co., 288. Chicago, M. & St. P. Ry. v. Clark, 130, 132. Chicago, S. F. ot C. R. Co. v. Price, 460. Chicago, St. P., M. & O. Ry. v. Belli- with, 197. Chicago & G. E. R. Co. v. Dane, 31, 33, 119. Chick V. Trevett, 113. Chicora Fertilizer Co. v. Dunan, 131. Childers v. Bank, 407. Childs V. Merrill, 225, 237. Chilton V. People, 52. Chipley v. Atkinson, 350. Chippewa V. R. Co. v. Railroad Co., 285. Chowne v. Baylis, 539. Chrisman v. Hodges, 420. V. Miller, 462. Christian College v. Hendley, 118. Christie v. Bridgman, 141. V. Craige, 492. Christy v. Sullivan, 207, 544. Chrysler v. Canaday, 224, 227. Chubbuck v. Cleveland, 231. Chung Kee v. Davidson, 356. Church V. Fowle, 482. V. Gas Co., 192. V. Proctor, 332. Churchill v. Bradley, 11*. V. Holt, 535. V. Scott, 251. V. Suter, 272. Chute V. Quincy, 236. Chytraus v. Smith, 26. Cicotte V. Church of St. Anne, 41. Citizens' Bank v. Grafflin, 542. Citizens' Building Ass'n v. Cummings, 53. Citizens' Fire Ins. Security & Land Co. V. Doll, 407. Citizens' Nat. Bank v. Richmond, 479. V. Smith, 199. Citizens' Sav. Bank & Trust Co. v. Babbitts' Estate, 123. Citty V. Mfg. Co., 97. I 572 CASES CITED. [The figures refer to pages.] City Nat. Bank v. Kusworm, 245, 252. City of Aurora v. West, 335. City of Baltimore v. Huglies, 534. City of Chicago v. Weir, 407. City of Cincinnati y. Coke Co., 407. City of Elgin v. Joslyn, 397. City of Elizabeth v. Fitzgerald, 433. V. Force, 480. City of Garden City v. Heller, 404. City of Memphis v. Bethel, 272. City of Minneapolis v. Renm, 146. City of New Britain v. Telephone, 412. City of New Orleans v. Railroad Co., 451. City of Newport News v. Potter, 359. City of Ottawa v. First Nat. Bank, 57. Claflin V. Boorum, 271, 272. V. Godfrey, 471, 545. v. Lenheim, 526. V. Meyer, 343. V. Torlina, 333. Clanton v. Scruggs, 76. Clapp V. Banking Co., 393. Clara A. Mclntyre, The, 300 Clark V. Bank, 509. V. Bowen, 494. V. Clark, 94. V. Coffin Co., 395. V. Collier, 461. V. Crosby, 307. V. Fisk, 357. V. Fosdick, 303. V. Gilbert, 550. V. Goddard, 153. V. Herring, 106. V. Insurance Co., 215. V. Jones, 68, 70. 71, 123. V. Kirkpati'ick, 179. V. Lovering, 524. V. Mallory, 392, 404. V. Marsiglia, 446. V. Martin, 376, V. Moody, 508. V. Moore, 453, 487. V. Needham, 308. V. Parish, 381. V. Pease, 246. V. Pendleton, 72. 78. 81. V. Pinney, 537. V. Railroad Co., 382. V. Ralls, 228. V. Russell, 123. V. Steel Works, 455. V. Sylvester, 542. Clark V. Tate, 170. V. Terry, 553. V. Thayer, 239. V. Turnbull, 242, 243. V. Van Court, 167. V. Weiss, 459. V, Woodruff, 407. Clarke v. Brown, 338. V. Dickson, 235. V. Dutcher, 544. V. Foss, 280. V. Lumber Co., 341. V. McAnlifCe, 75. V. Morey, 148. V, Railroad Co., 429. V. White, 257. Clark's Case, 490. Clason V. Bailey, 8o, 89. Clawson v. Doe, 170. Clay V. Field, 395. V. Ricketts, 36. V. Yates, 259, 332. Clayton v. Clark, 130. V. Kynaston, 381. V. Meri'ett, 528. Clayton's Case, 438, 439. Clealand v. Walker, 503, 523. Cleary v. Sohier, 473. Cleaveland v. Richardson, 221. Cleaver v. Lenhart, 306. Clem V. Railroad Co., 226. Clement v. Brown, 4o6. V. Gunhouse, 52. Clements v. Railroad Co., 412. Clement's Appeal, 70, 257. Clement & Hawkes Mfg. Co. v. Meser- ole, 447. Cleudining v. Church, 276, 277. Clerihew v. Bank. 393. Cleveland v. Williams, 528. Cleveland Rolling Mill v. Rhodes, 410, 455, 464. Clews v. Jamieson, 278. Clifford V. Watts, 134. 135. Clifton V. Iron Co., 478. Clinch Valley Coal & Iron Co. v. Wil- ling, 393. Cline V. Guthrie, 198. V. Templeton, 125. Clinton Nat. Bank v. Studemann, 70. Clodfelter v. Cox, 370. Cloud v. Greasley, 88. I Clough V. Giles. 423. 1 V. Railroad Co., 235, 236. CASES CITED. 573 Clute r. Robison, 309. Clutter V. Clutter, 248. Coad V. Rogers, 28. Coapstick v. Bosworth, 393. Coates V. Sangston, 393. V. Wilson, 156. Cobb V. Billings, 265. V. Charter, 540. V. Cowdery, 109, 113, 128, 323. V. Duke, 189. V. Foree, 26, S'L V. Hatfield, 235-237. V. Knapp, 522, 523. V. Ma lone, 492. V. Wright, 233. Cobett V. Norcross, 55. Cobleigh v. Pierce, 257. Coburn v. Goodall, 373. V. Webb, 481, 482. Cocanougher v. Green. 495. Cochran v. Nebeker, 480. V. Railway Co., 412. V. Stewart, 238. V. Ward, 93, 97. V. Willis, 201. Cochrane v. Halsey, 221. Cockle V. Flack, 273. Cocks V. Barker, 56. V. Simmons, 152. V. Varney, 358. Coddlngton v. Goddard, 83, 89, 221. Coe V. Hinkley, 367. V. Hobby, 393. V. Tough, 84. Cofer V. Moore, 116. Coffin V. Landis, 430. V. Mcintosh, 75. V. Talman, 374. Cogel V. Kniseley, 222, 224. Coggs V. Bernard, ill. Cogley V. Cushman, 165, 171. Cohen v. Envelope Co., 315. V. Insurance Co., 148. Coit V. Telegraph Co., 320. Colbert v. Shepherd, 510. Colby V. Dearborn, 389. Cold Blast Transp. Co. v. Bolt & Nut Co., 120. Colderwood v. McCrea, 342. Cole V. Cassidy, 229. V. Cole, 179. V. Edwards, 311. V. Hughes, 375. V. Milmine, 280. [The figures refer to pages.] Cole V. O'Brien, 518. V. Pennoyer, 151, 153, 154. V. Seeley, 151. V. Singerly, 77, 78. V. Smith, 227. Coleman v. Applegarth, 33, 34. V. Bank, 522. V. Billings, 298. V. Eyre, 99, 117. V. Frazer, 179. V. Whitney, 356, 357. Coleman's Estate, In re, 247. Coles V. Kennedy, 222. V. Railroad Co., 320. V. Trecothick, 115. V. Vanneman, 236. Colgate V. Pennsylvania Co., 399. Collamer v. Day, 276. Collar V. Patterson, 17, 549. College Mill Co. v. Fidler, 27, 42. Collen V. Wright, 518. Collier v. Coates, 92, 552. V. White, 441. Collins V. Blantern, 59, 293. V. Collins, 483. V. Insurance Co., 520. V. Lavelle, 403. V. Locke, 296, 317. V. Rainey, 510. V. Tillou's Adm'r, 508. V. Westbury, 244. Collyer v. Collyer, 41. V. Moulton, 419, 423, 446. Colton V. Gorham, 374. Columbia Bank v. Hagner, 459, 461. Columbian Bldg. Ass'n v. Crump, 440. Columbus Const. Co. v. Crane Co., 403. Colusa County v. Welch, 285. Colwell V. Lawrence, 413. Colyer v. Hyden, 54. Combination Steel &. Iron Co. v. Rail- way Co., 435. Combs V. Hawes, 172. v. McQuinn, 299. V. Scott, 490, 505, 506. Comer v. Baldwin, 55. Comitis V. Parkerson, 146. Comley v. Dazian, 357. Commercial Bank v. Norton, 511, 512. V. Warren, 483. Commercial Fire Ins. Co. v. Allen, 441, 442. Commercial Nat. Bank v. Smith, 87. V. Wheelock, 246. 574: CASES CITED. [The figures refer to pages.] Commercial Tel. Co. v. Smith, 29, 42, 43. Commercial Union Assur. Co, v. Hock- ing, 295. Com. V. Dupuy, 297. V. Eastman, 222. V. Gillespie, 267. V. Hunt, 317. V. Insurance Co., 215. V. Lane, 344. V. Matthews, 268. V. Moltz, 218. V. Murray, 151. V. Rees, 267. V. Richards, 303. Commonwealth Title Ins. & Trust Co. V. Ellis, 407. Compton V. Bank, 243, 245. V. Jones, 363. Comstock V, Adams, 304. V. Hier, 537. V. Sanger, 467. V. Smith, 138. T. Ward, 81. Conaut V. Bank, 392. V. Canal Co., 505. V. Jackson, 179. Conaway v. Sweeny, 115. Condict V. Flower, 482. Condit V. Baldwin, 505. Condon v. Kemper, 412, 413, Conduitt V. Ross, 375. Cone V. Cross, 17. Conflaus Quarry Co. v. Parker, 484. Conger v. Railroad Co., 490. Conkey v. Bond, 510. Con Ian v. Roemer, 236. Conley v. Nailor, 187, 301. V. Sims, 264. Conn V. Coburn, 158, 160. Connecticut Ins. Co. v. Luchs, 219. Connecticut Mut. Life Ins. Co. v. Wes- terhoff, 272. Connelly v. Devoe, 128. Conner v. Henderson, 238. Connolly v. Giddings, 80. Connor v. Black, 342. V. Renneker, 33. V. Stanley, 249. Conover v. Stillwell, 126. Conrad v. Gibbon, 272. V. Lane, 177. V. Schwamb, 115. V. Trustees of Grand Grove, 441. Conroe v. Birdsall, 177. Conrow v. Little, 237. Constable v. Steamship Co., 320. Constant v. University, 122. Consumer's Oil Co. v. Nunnemaker,. 309, 325. Contiue v. Phillips, 158. Converse v. Blumrich, 218. Conway v. Post Co., 290. Cooch V. Goodman, 52, 59. Cook v. Bradley, 109, 111. V. Brown, 53, 55. V. Ferral's Adm'rs, 459. v. Forker, 269. V. Johnson, 310, 311. V. McCabe, 473. v. Mix, 471. V. liedman, 81. V, Shipman, 285. V, Tullis, 503. V. Wright, 122, 125. Cooke V, Davis, 289. V. Millard, 100, 101. V. Murphy, 128. v. Oxley, 33, 35, 110. Cookingham v. Dusa, 237. Cooley V. Osborne, 298. V. Wlllard, 513. Coolidge V. Brigham, 235. V. Ruggles, 362. Coombs V. Wilkes, 84, 88. Coon V. Anderson, 380. V. Spaulding, 408. Cooper V. Berry, 398. V. Bill, 103. V. Cooper, 17, 539, 549. V. Finke, 390. V. Kane, 396. V, Lovering, 227, V. Phibbs, 201, 206. V. Schlesinger, 229. V. Schwartz, 505. V. Wheel Co., 120. Cope V. Rowlands, 260-262, 264. Coplay Iron Co. v. Pope, 467. Coquillard's Adm'r v. Bearss, 285,. Corbett v. Spencer, 170. Corbin v. Laswell, 52. Corbitt V. Gaslight Co., 89. Corby v. Weddle, 198. Corcoran v. White, 28. Cordes v. Miller, 474. Cordwert v. Hunt, 424. Cornell v. Green, 441. CASES CITED. [The figures refer to pages.] 575 Cornlg V. Carr, 45. Corning v. Abbott, 261. Cornish v. Suydam, 421. V. Wesf; 416. Cornish, Curtis & Greene Co. v. Ass'n, 431. Corn well v. Megins, 423. Cornwells v. Krengel, 36. Corpe V. Overton, 176. Corrigan v. Pironi, 249. Corser v. Hale, 28. Cort V. Lassard, 490. v. Railway Co., 447. Cory V. Freeholders, 538, 540. V. Ship Bldg. Co., 487. Cosand v. Bunker, 96. Cossitt V. Hobbs, 86. Costar V. Davies, 435. Costello V. Cady, 491. Coster V. Albany, .358. Costigan v. Lunt, 383. V. Railroad Co., 375. Coston V. Morris, 15. Cote V. Mui'phy, 318. Cotheal v. Talmage, 413. Cothran v. Ellis, 276. V. Scanlan, 442. Cottage St. M. E. Church v. Kendall, 118. Cotten V. McKenzie, 323. Cottom V. Holliday, 510. Cotton V. Graham, 108. Cottrell V. Southwick, 274, 275. Cottrill V. Krum, 228. Cotzhausen v. Simon, 229. Couch V. Ingersol, 451. V. Meeker, 56. v. Mills, 381. Couder v. Hall, 200. Coudert v. Sayre. 375. Coughlin V. Knowles, 91. V. Railroad Co., 297, 298. Coulkins v. Fry, 186. Coulter V. Robertson, 333. Coulurier v. Hastie, 516. Counselman v. Reichart, 278. Countess of Dunmore v. Alexander, 31. County of Des Moines r. Hinkley, 366. Coursolle v. Weyerhauser, 154. Courtney v. Blackwell, 250 Courtright v. Burnes, 300. Couturier v. Hastie, 71, 201. Covel V. Turner, 41. Coventry v. Barton, 508. Coverdale v. Eastwood, 218. Cowan V. Milboiu-n, 332. V. Musgrave, 17. Cowee V. Cornell, 247. Cowles V. Bacon, 218. V. Whitman, 489. Cowles Electric Smelting & Aluminum Co. V. Lowrey, 404, 406. Cowley V. Smyth, 218. Cox V. Brewing Co., 82. V. Brookshire, 273. V. Davis, 389. V. Highley, 230. V. Long, 463. V. Montgomery, 236. V. Prentice, 545. V. Smith, 273, 289. Coykendall v. Constable, 505. Coyle V. Campbell, 264. Coyne v. Avery, 410. Coyner v. Lynde, 128. Cozart V. Herndon, 23. V. Land Co., 96. Crabill v. Marsh, 93. Crabti-ee v. May, 162. V. Messersmith, 444, 448. V. Opera House Co., 28. Craddock v. Dwight, 435. Craft V. Kendrick, 72. v. McConoughy, 313, 337. Crafts v. Carr, 156. Cragin v. Railroad Co., 429. Craig V. Hamilton, 232. V. Seitz, 141, 142. V. Van Bebber. 169, 170, 173. Craighead v. Peterson, 506. V. Wells, 172. Cram v. Hendricks, 271. Cramer v. Redman, 117. Crandall v. Payne, 356. Crane v. C. Crane & Co., 120. V. Gough, 72, 91, 367. V. Gruenewald, 502. V. Powell, 96. v. '^'S'heeler, 67. Crans v. Hunter, 125. Cranson v. Goss. 269. Crawford v. Bank, 480. V. Cato, 244. V. Edison, 72, V. King, 71. V. Millspaugh, 419. T. Morrell, 322. 576 CASES CITED. [The figures refer to pages.] Crawford v. Publishing Co., 428. V. Russell, 303. V. Spencer, 278, 335. Crawshaw v. Roxbury, 40. Crayton v. Clark, 369. Cream City Glass Co. v. Friedlander, 394. Crears v. Hunter, 122. Crehore v. Crehore, 232. Cremer v. Higginson, 438. Cresinger v. Welch's Lessee, 170. Cresswell Ranch & Cattle Co. v. Mar- tiudale, 455. Cribbins v. Markwood, 252. Cribbs v. Sowle, 241. Crichfield v. Paving Co., 337. Cripps V. Roade. 545. Crisfleld v. State, 534. Crist V. Armour, 448. Crisup V. Grosslight, 292. Critcher v. Holloway, 331. Critchfield v. Paving Co., 285, 287. Crittenden v. Fiske, 24. Crocker v. Railroad Co., 31, 34. V. Whitney. 363. Crockett v. Scribner, 100. Crompton v. Pratt, 439. Cromwell v. Grunsden, 52. V. Sac Co.. 493. V. Tate's Ex'r, 53. V. Wilkinson, 410. Cronin v. Watkins, 374. Croninger v. Crocker, 442. Cronk v. Trumble, 93. Crook V. Cowan, 15. Crooks V. Nippolt, 236. Cropp V. Hambleton, 441. Crosby v. Fitch, 429. V. Wadsworth, 76. Cross v. Cheshire, 535. V. O'Donnell, 101, 103. V. People, 281. Crossley v. Maycock, 28, 43. V. Moore, 333, 341. Crouch v. Credit Foncier, 369. Croucher v, Oakraan, 486. Crowder v. Keys, 68. Crowe V. Peters, 179. Crowell V. Hopkinton, 38. V. Hospital, 358. V. Jackson, 221. Crowfoot V. Giirnciy, 367. Crowther v. Farrer, 122. Crowther v. Rowlandson, 180. Croyle v. Moses, 222. Crura V. Sawyer, 112. Cuddee v, Rutter, 489. Cul breath v. Cul breath, 537. Cullen V. Butler, 405. Gulp V. Love, 308. Culver V. Banning, 110, 118. V. Bigelow, 272. Cumber v. Wane, 129. Gumming v. Hackley, 536. Cummings v. Arnold, 65, 426. V. Gann, 38, 39. V. Henry, 186. Y. Lake Realty Co., 30. V. Stone Co., 315. Cummins v. Cassily, 500. V. Heald, 511. Cimdell v. Dawson, 261. Gundy v. Lindsay, 199, 239. Cunningham v. Bank, 279, 335, 342. V. Reardon, 548. V. Williams, 83, 89. Curliffe v. Harrison, 442. Curran v. Galen, 317. , Currie v. Misa, 107. Curry v. Curry, 17. V. Insurance Co., 214. V. Railway Co., 416. Curson v. Monteiro, 58. Curtin v. Patton, 167. Curtis V. Aspinwall, 258. v. Blair, 501. V. Brown, 71. V. Brownell, 180. V. Clark, 470. V. Leavitt, 340. V. Sage, 80, 81. y. Van Bergh, 412. Curtiss V. Howell, 226. 237. Cusack V. Robinson, 101. Gushing V. Drew, 412. V. Wyman, 439. Cutler V. Dickinson, 57. V. Hamlen, 224. V. Howe, 399. V. Welsh, 331. Cutsinger v. Ballard, 94. Cutter V. Cochrane, 419, 420. V. Powell, 457, 477, 551. Cutting V. Railway Co., 486, 487, Cutts V. Guild, 202, 207. Cuxon V. Chadley, 363, 422. Dade Coal Co. v. Haslett, 148. Dady v. Oondit, 233. Dailey v. Caiu, 78. V. Greeu, 4(J3, 4C9. V. Kinsler, 96. Dails V. Lloyd, 542. Daily v. Litchlield, 414. V. Minuinck, 107, 139. Dakin v. Pomeroy, 371. V. Williams, 451, 46L Dale V. Kimpton, 368. V. Kuepp, 2GS. V. Robinson, 191. Daley v. Investment Co., 273, 274. Dallas V. Hollingsworth, 170, 175. Dalpay, In re, 345. Dalton V. Goddard, 516. V. Thurston, 222. Daly V. Smith, 490. Dambmann v. Lorentz, 35, 45. V. Schulting, 221. Dame v. Flint, 343. Damon v. Osborn, 102. Dana v. Coombs, 168. V. Fielder, 397. V. Hancock, 426. Danby v. Coutts, 525. Danforth v. Freeman, 432. V. Railroad Co., 488. Daniel v. Swearengen, 350. V. Tarver, 471. Daniels v. Barney, 337. T. Brodie, 507. V. Meinhard, 366. V. Newton, 447. Dannat v. Fuller, 409. Danolds v. State, 145. Dant V. Head, 80. Darby v. Kroell, 233. D'Arcy v. Lyle, 508. Darling v. Stanwood, 511. Darlington Iron Co. v. Foote, 26. Darlington's Appeal, 250. Darraugh v. Blackford, 168 Darrow v. Produce Co., 394. V. St. George, 526, 527. Darst V. Bates, 71. V. Brockway, 471. Darwin v. Rippey, 481. Dashaway Ass'n v. Rogers, 538, 540. Dashiel v. Harshman, 233. Clakk Cont.(2d Ed.)— 37 CASES CITED. [The figures refer to pages.] Dauchey v. Drake, 431. Dausch V. Crane, 240. Davenport v. Newton, 28. V. Ottawa, 280. v. Society, 129. Davidson v. Bohlman, 264. V. Burke, 419. 577 V. Carter, 340. V. Cooper, 480, 482. V. Little, 252. V. Nichols, 232. V. Young, 178. Davie V. Mining Co., 44, 119. Da vies V. Burns, 284. V. Davis, 226. V. Humphreys, 534. V. Lowen, 324. V. Stowell, 298. Davis V. Arledge, 257. V. Bank, 528. V. Bauer, 484. V. Belford, 383, 416. V. Bronson, 329, 344r446 V. Burton, 53. V. Caldwell, 157, 159. V. Chase, 298. y. Com., 286. V. Davis, 226. V. England, 519, 520. V. Foreman, 490. V. Gallagher, 18. V. Gay, 160. V. Hamlin, 510. ■ V. Henry, 480, 481. V. Higgins, 389. V. Jeffris, 451. V. Lane, 504, 528, 529. V. McFarlane, 76. V. McVickers, 471. V. Morton, 493. V. Parish, 36. V. Patrick, 71. V. Phillips, 179. V. Railroad Co., 20, 194 V. Robert, 120. V. Sanderlin, 384. V. Settle, 300. V. Shafer, 416. V. Shields, 89. V. Sloman, 273. V. Smith, 245, 293. V. Tihbats, 327. V, Van Buren, 381. 578 Davis V. Webber, 298. V. Williams, 54. V. Wills, 24. Davison v. Vou Lingen, 210, 464. Davis Sewing Macli. Co. v. Ricliards, 24. Davisson v. P'ord, 124, 125. Davis & Rankin Bldg. & Mfg. Co. v. Barber, 416. V. Bootli, 416. Dawe V. Morris, 225, 226. Dawes v. Prentice, 405. Dawklns v. Gill, 292. V. Sappingtou, 40. Dawson V. Ewiug, 441. V. Godfrey, 146. V. Hall, 55, 56. V. Helmes, 170, 173. V. Kittle, 398. Day V. Buggy Co., 194. V. Caton, 15. V. Davis, 59. V. Gardner, 107, 131. V. Griffith, 55. V. Laeasse, 91. V. Leal, 58, 479. V. McAllister, 269. V. McLea, 492. V. Railroad Co., 79. Dayton v. Fargo, 364. V. Hooglund, 467, 469. V. Moore, 273. D. B. Steelman, The, 439. Deal V. Maxwell, 100. Dean v. Dicker, 277. V. Emerson, 308, 324. V. James, 367. v. Nelson, 413. V. Richmond, 189. V. St. Paul & D. R., 366. Dearborn v. Bowman, 138. Dearden v. Adams, 175. Deason v. Boyd, 168. De Baun v. Brand, 258. Debenham v. Mellon, 501, 526, 527. De Bussche v. Alt, 511. De Camp v. Hamma, 198. Decell V. Lewenthal, 157, 158. Decker v. Saltsman, 290. Decosta v. Davis, 97. De Creraer v. Anderson, 24. Deering v. Chapman, 323. V. Thorn, 519. V. Winchelsea, 534. CASES CITED. [The figures refer to pages.] Deering & Co V. Cunningham, 286*. Deford v. Dryden, 436. De Forest v. Strong, 273. De Graff v. Wickham, 412. De Gray v. Clubhouse Co., 375, 376. De Jamett v. De Giverville, 147. Delamater v. Miller, 448. Delano v. Blake, 166, 169. V. Montague, 81. Delaplane v. Crenshaw, 399. Delashmutt v. Thomas, 44. Delavina v. Hill, 330. Delier v. Society, 277. De Long v. Lee, 392. Delp V. Brewing Co., 70. Demarest v. Willard, 365, 373. Demars v. Mfg. Co., 124. De Mattos v. Gibson, 490. De Mesnil v. Da kin, 540. Deming v. Bullitt, 517. V. Darling, 227. Denby v. Moore, 541, 544. Denison v. Crawford Co., 285. Denlar v. Hile, 94. Dennehy v. McXulta, 321. Dennett v. Dennett, 179, 180. Denning v. Yount, 346. Dennis v. Jones, 236. V. Maxfield, 488. V. Slyfield, 119. Dennison v. Insux'ance Co., 219. Denny v. Williams, 97. Dent V. Bennett, 247, 249. V. Ferguson, 116. V. Long. 253. V. Steamship Co., 15. Dentler v. O'Brien, 162. Denton v. Railroad Co., 38. Denver Fire Ins. Co. v. McClelland, 193. Denver & N. 0. Const. Co. v. Stout, 295. Denver & N. O. R. Co. v. Railroad Co., 289. Deputy V. Stapleford, 246. Derby v. Johnson, 447, 485. V. Phelps, 81. V. Thrall, 483. Dermott v. Jones. 16, 473. Derocher v. Continental Mills, 175, 176. Derrett v. Bowman, 410. Derrick v. Monette. 36. Derringer v. Moynihau. 72. CASES CITED. [The figures refer to pages.] 579 Dprry v. Peak, 218. V. Peek, 230. Des Farges v. Pugh, 222. Desha v. Holland, 398. Deshazo v. Lewis, 426. Deshon v. Wood, 72. Desilver's Estate, In re, 181. Des Moines Nat. Bank v. Chisholm, 179. Desmond-Dunne Co. v. Friedman-Dos- cher Co., 431. De Sobry v. De Laistre, 300. Despatch Line v. Mfg. Co., 503, 513. Detwiler v. Bish, 198. Devall V. Burbridge, 509. Devaux v. Conolly, 545, 546. Devaynes v. Noble, 438, 439. Devecmon v. Shaw, 107, 114. Devine v. Edwards, 543, 545. Devlin v. Brady, 287. V. Chamblin, 436. V. New York, 364, 365. Devoe v. Brandt, 222. Dewees v. Miller, 276. Dewey v. Allgire, 179, 183. V. School Dist, 477. De Witt V. Root, 67. De Witt Wire-Cloth Co. v. Wire-Cloth Co., 313. De Wolf V. Chicago, 15. Dexter v. Hall, 154, 181. V. Norton, 476. V. Ohlander, 393, 394. Dey V. Dox, 450-452, 461. Deyo V. Ferris, 76, 283. Deyoe v. Woodworth, 283. Dial V. Wood, 151. Diamond Match Co. v. Roeber, 308, 309. Dick V. Page. 528. Dicken v. Johnson, 180. Dickerman v. Ashton, 500. T. Day, 271. Dickerson v. Colgrove, 219. V. Com'rs, 425. Dickinson v. Burr ell, 299. V. Calahan's Adm'rs, 378. V. Dodds, 33, 34. V. Gay, 399. V. Richmond, 268. Dickson v. Kittson, 302. Diefenback v. Stark, 462. Dietz's Assignee v. Sutcliffe, 549. Diffenderfer v. Scott, 107. Di lorio v. Di Braslo, 125. Dilk V. Keighley, 158. V. White, 415. Dillaby v. Wilcox, 69. Dillman v. NadlehofCer, 226, 227. Dillon V. Allen, 260, 265. V. Burnham, 177. Diman v. Railroad Co., 208. Dimmock v. Hallett, 219. Dingley v. Oler, 444. Dinsmore v. Tidball, 223. Directors, etc., of Ashbury Railway Carriage & Iron Co. v. Riche, 193. Disbrow v. Durand, 17, 549. Disbrow's Estate, In re, 247. District T. Gallaher, 407. District of Columbia v. Iron Works, 466. Ditchburn v. Goldsmith. 276. Ditson V. Ditson, 7. Divan v. Loomis, 375. Diversy v. Kellogg, 526. Dixon V. Bank, 56. V. Clarke, 440. V. Dunham, 398. V. Fletcher, 442. V. Merritt, 153. V. Olmstead, .540. D. M. Osborne & Co. v. Baker, 87. Doan V. Dow, 121. Doane v. Dunham, 463. V. Railroad Co., 288, 291. Dob V. Halsey, 382. Dobbins v. Cruger, 57. V. Hubbard, 188, 190, 191. Dobson V. Collis, 78, 79. Dodge V. Emerson, 436. V. Favor, 398. V. Insurance Co., 207, 208. Dodge's Adm'r v. Moss, 357. Dodson V. McAdams, 17. Doe v. Burnham, 261. V. Roberts, 154. v. Thompson, 516. Doebler v. Waters, 110. Doering v. Kenamore, 371. Doherty v. Doe, 65, SO. V. Hill, SO. Dohoney v. Dohoney, 269, Doles v. Hilton, 152. Doll V. Noble. 433. Dollraan v. King, 404. Dolph V. Hand, 166, 169. V. Machinery Co., 315. 580 CASES CITED. [The figures refer to pages.] Domenico v, Ass'n, 420. Dominick v. Randolph, 180. Donaldson v. Farwell, 222, 239. Donelioe's Appeal, 187. Donehoo, Appeal of, 272. Donellau v. Read, 80. Donelson v. Polk, 360, 373. Donovan v. Daiber, 279. V. Oil Co., 396. V. Richmond, 80. Dooiin V. Ward, 258. Doolittle V. Dininny, 65. Doon V. Ravey, 538. Doran v. Eaton, 225. V. McConlogue. 250. Doremiis v. Henne.'^sy. .350. V. Lott, 18. V. Selden, 385, 534. Doringh, In re, 367. Dorr V. Fisher, 465. V. Munsell, 59. V. School Dist., 389. Dorrill v. Eaton, 252. Don-is V. Sullivan, 76. Dorsey v. Gassaway, 438. V. Kyle, 148. V. Railroad Co., 374, 376. V. Thompson, 148. V. Wolff, 273. Dorwin v. Smith, 107, 112. Doty V. Crawford, 442. V. Martin, 311, 478. V. Wilson, 139, 140. Dougan v. Blocher, 94. Dougherty v. Catlett, 74. V. Chesnutt, 86. V. Seymour, 328. Doughten v. Ass'n, 237. Doughty V. Brass Co., 88. V. Miller, 60. Douglas V. Matting, 198. V. West, 54. Douglass V. Howland, 24. V. Reynolds, 406. Dovale v. Ackermann, 123. Dow V. Bank, 476. V. Haley, 264. V. Sanborn, 222. Dowagiac Mfg. Co. v. Schroeder, 229. Dowdall V. Canndy, 219. Dowden v. Cryder, 514. Dowdy V. McLellan, 471. Dowling V. Lawrence, 224. Down V. Hailing, 541. Downer v. Chesebrough, 97. Downing v. Stone, 175. V. Wherrin, 236. Dows V. Swett, 71. Doyle V. Church, 244, 549. V. Dixon, 79, 113. Drake v. Seaman, 85, 87, V. Wells, 76. V. Whaley, 538. V. White, 474. V. Wise, 168. Drake's Appeal, 249. Drake's Lessees v. Ramsay, 166. Draper v. Fletcher, 367. V. Hitt, 442. V. Wood, 479. Drayton v. Reid, 430. Dreifus v. Salvage Co., 420. Drennan v. Douglas, 300. Dresser v. Dresser, 78. Drew V. Goodhue, 431. V. Nunn, 37, 528. Driver v. Broad, 75. Drude v. Curtis, 172, 173. Drum V. Drum, 482. Drumheller v. Surety Co., 412. Drummond v. Humphreys, 508. Drumright v. Philpot, 506. Drury v. Briscoe, 108. V. Wolfe, 271, 273. V. Young, 89, 90, 91. Dryfus v. Burnes, 274. Dubose V. Wheddon, 160. Ducett V. W^olf, 91. Ducie V. Ford, 94. Dudley v. Briggs, 350. Duer V. James, 53, 54, 55. Duff V. Hopkins, 88. V. Russell, 490. Duffy V. Shockey, 115. Dugan V. Gittings, 108, 114 V. Thomas, 2t>5. Duke V. Asbee, 291. V. Harper, 297, 298. Duker v. Franz, 483. Dunbar v. Dunbar, 132. V. Railway Co., 320. V. Williams, 548. Duncan v. Baker, 462. V. Niles, 518. V. Topham, 26. V. Willis, 416. Dung V. Parker, 518. Dungan v. Insurance Co., 441. Dunham v. Gould, 309. V. Griswold, 123, 2i3. V. Pitkin, 54. Dunlap V. Thorne, 71. Dunlop V. Higgins, 26, 31. Dunmore v. Alexander, 34. Dunn V. Bell, 278. V. Houghton, 416. V. Moore, 95. Dunne v. Herrick, 298. Dunton v. Brown, 150, 153, 165. Duplex Safety Boiler Oo. v. Garden, 433. Durant v. Rhener, 266. Durbin v. Kuney, 385. Durfee v. Abbott, 169. V. O'Brien, 80. Durgln V. Express Co., 20. V. Dyer, 261. Durham v. Hiatt, 77. Durkee v. Railroad Co., 204. Durkin v. Cobleigh, 394. Durment v. Tuttle, 471. Durnford v. Messiter, 349, 533. Durnherr v. Rau, 356, 357. Durr V. Chase, 395. Duryea v. Mayor, etc., 406. Dusenberry v. Hoyt, 140. Dusenbury v. Speir, 530, 531. Du Souchet v. Dutcher, 524. Dutton V. Poole, 352. Duval V. Neal, 272. V. Wellman, 303, 340, 540. Duvall V. Craig, 519. V. Graves, 154. Dwight V. Blackmar, 510. V. Hamilton, 307. V. Insurance Co., 404. V. Whitney, 515. Dwiuel V. Howard, 455. Dyett V. Coal Co., 191. Dykers v. Townsend, 84, 85. Dykes v. Bottoms, 272. Dynan v. McColloch, 120. Eadie v. Slimmon, 240, 241, 242 V. Williams, 495. Eagan V. Scully, 166. Eagan Co. v. Johnson, 467. Eagle V. Smith, 40. Eakin v. Shultz, 357. CASES CITED. 581 [The figures refer to pages.] I Eames v. Preston, 53. Earl V. Peck, 112. Earle v. Angell, 4, 107, 117. V. Bickford, 545. V. Coburn, 548. Y. Oliver, 140. V. Peale, 158. V. Reed, 153, 160, 548. Earl of Aylesford v. Morris, 247. East V. Worthington, 225. East Anglin Rys. Co. v. Railway Co., 193. Easter v. White, 70. Eastern Advertising Co. v. McGow, 364. Eastern 0. R. Co. v. Hawkes, 489. x^astland v. Burchell, 499. East Line & R. R. R. Co. v. Scott, 78, Eastman v. Wright, 5, 415. Easton v. Jones, 448. East Tennessee, V. & G. R. Co. v. Staub, 78. Eastwood V. Kenyon, 69, 109. Eaton V. Eaton, 182, 183. V. Hill, 176. V. Kegan, 263. Eaton, Cole & Burnham Co. v. Avery, 231. Eaton's Adm'r v. Perry, 187. V. Smith, 403. V. Truesdail, 516. Eberstein v. Willets, 236, 246. El>erts V. Selover, 507. Eblin v. Miller's Ex'rs, 124, 126. Eccleston v. Clipsham, 382, 416. Echols V. Phillips, 53. Eckenrode v. Chemical Co., 444. Eeker v. McAllister, 124. Eckhert v. Pickel, 483. Eckman v. Railroad Co., 319. Eckstein v. Frank, 177. Edan v. Dudfield, 103. Eddy V. Capron, 283. V. Davis, 452. V. Herrin, 243. v. Roberts, 111. Eddy's Ex'r v. Northup, 272. Edelin v. Gough, 87. V. Sanders, 59. Edelmuth v. McGarren, 328. Eden v. Chaffee, 69. Edgar v. Boies, 452. Edge V. Bumford, 372. 582 CASES CITED. [The figures refer to pages.] Edgell V. McLaughlin, 276. Edge Moore Bridge Works v. Bristol County, 43. Edgerly v. Hale, 261, 284. V. Shaw, 160. Edgerton v. Hodge, 104u V. Mathews, 105. Edison v. Balka, 3G4. Edmond's Case, 141, 142. Edmondston v. Drake, 24. Edmunds v. Illinois Cent. Ry., 365. V. Transportation Co., 200, 239. V. Wallingford, 536. Mson V. Gates, 369. V. Hudson, 222. Edwards v. Clement, 353. V. Davenport, 182. V. Estell, 301. V. Hoeffinghofif, 342. V. Insurance Soc, 389. V. Peterson, 366. V. Railroad Co., 98, 100. V. Handle, 283. V. Scott, 368. Edwards Co. v. Jennings, 323. Egan V. In.surance Co., 71. E. G. Dailey Co. v. Can Co., 120. Eggleston v. Mason, 505. V. Wagner, 28. Ehle V. Judson, 109. V. Purdy, 382, 415. Ehrmanntraut v. Robinson, 84, 505. Eichelberger v. McCauley. 100. Eicholz V. Bannister, 470, 545. Eikenberry v. Edwards, 505. Eiler v. Crull, 499. Eisel V. Hayes, 310. Elder v. Schumacher, 182. V. Thompson, 380. Elderkin v. Fellows, 442. Eldred v. Malloy, 276. Eldridge v. Holway, 512. Edectric Appliance Co. v. Guaranty Co., 356. Electric Lighting Co. of Mobile v. El- der, 432, 433. Eley V. Assurance Co., 353. Eliason v. Henshaw, 27, 30. Elkhart County Lodge v. Crary, 287. Elkin V. Timlin, 70. Elkins V. Railroad Co., 522. Ellen V. Topp, 467. EUenbogen v. Griffey, 272. Eller V. Lacy, 380. Ellerman v. Stock Yards Co., 307. Ellicott V. Turner, 79, 138. Elliot V. Barrett, 85. V. Bradley, 516. Elliott V. Bell, 415. V. Caldwell, 431, V. Dycke, 3S9. V. Horn, 152. V. Sackett, 208. V. Stocks, 500. V. Swartwout, 244. Ellis V. Alford, 161, 168. V. Andrews, 224. V. Bray, 85. V. Cary, 18. V. Cory, 552. V. Harrison, 35S. V. Insurance Co., 63. V. Mason, 437. V, Murray, 68. V. Smith, 300. V. Thompson, 408. Ellison V. Water Co., 87. Ellmaker v. Ellmaker, 403. Ellsworth V. Cordrey, 510, V. Fogg, 419. Elmbank, The, 366. Elmer v. Loper, 356. Elmore v. Kiugscote, 105. V. Stone, 103. Elrod V. Myers, 157. Elsass V. Harrington, 222. Eltham y. Kingsman, 276. Elting V. Vanderlyn, 123. Elves V. Crafts, 310. Elwell V. Shaw, 521. Ely V. Hallett, 214. Emancipation of Pocheleu, 152. Embrey v. Jemisou, 334, .342. Emerson v. C. Aultman & Co., 87. V. Mfg. Co., 511. V. Miller, 502. V. Slater, 107. V. Townsend, 277, 331, 335. Emery v. Boyle, 413. V. Candle Co., 315, 337. V. Fowler, 405. V. Kemplon, 326. V. Lawrence, 365. V. Tichout, 439. Emmel v. Hayes, 93. Emmeluth v. Ass'n, 383. Emmittsburgh R. Co. v. Donoghue, 125, 130. CASES CITED. [The figures refer to pages.] 583 Emmons v. Murray, 168. V. Scudder, 541. Empire Steam Pump Co. v. Iiiman, IG. Empress Engineering Co., In re, 353. Enders v. Enders, 305. Engelhorn v. Reitliuger, 393. England v. Davidson, 127, 137. V. Marsden, 53(3. Engle V. Cliipman, 282, 283. Englebert v. Troxell, 173. English V. Commission Co., 463, 467. V. Smock, 273. English's Ex'r v. McNair's Adm'rs, 405. Enuis V. Ennis, 73. Enos V. Sanger, 356, 357, Ensor v. Bolgiauo, 350. Enys V. Donnithorne, 383. Eppens, Smith & Wiemann Co. v. Lit- tlejohu, 408. Epperson v. Nugent, 158. Equitable Co-op. Foundry Co. v. Her- see, 237. Equitable Elndowment Ass'n v. Fish- er, 22. Equitable Gaslight Co, v. Mfg. Co., 95. Erb V. Brown, 128. Erickson v. Fisher, 228. Erie Co. Sav. Bank v. Coit, 122. Ernst Y. Crosby, 328. Erskine v. Adeane, 394. Erwin v. Erwin, 40, 44. Esch V. White. 70. Eskvidge v. Glover, 32, 33, 35. Esmay v. Gorton, 28. Espalla V. Wilson, 96. Esposits V. Bowden, 475. Estabrook v. Swett, 237. Esterly v. Eppelsheimer. 198. Esterly Harvesting Mach. Co. v. Frol- key, 507. Etheredge v. Barkley, 21. Ether idge v. Vernoy, 366. Etscheid v. Baker, 357. Eugster v. West, 473. Evans, In re, 298, 299. V. Bell, 298. V. Evans, 304. v. Gale, 238. V. Ho a re, 89. V. Horan, 182. V. Jones, 276. V. Kneeland, 217 V. Mfg. Co., 397. Evans v. Miller, 549. V. Morgan, 178. V. Railroad Co., 429. V. Roberts, 76. V. Trenton, 284. Eveleth v. Sawyer, 384. Everdell v. Hill, 355. Everett v. Dilley, 43. V. Saltus, 515. Bverhart v. Searle, 302. Everingham v. Meighan, 124, 278, 333, 342. Everitt v. Walker, 41. Everman v. Herndon, 83. v. Hyman, 40. Everson v. Carpenter, 167. V. Granite Co., 205. Ewell V. Daggs, 346. Ewing V. Burnet, 405. V. Wilson, 390. Ewins V. Gordon, 119. Exall V, Partridge, 534. Excelsior Needle Co. v. Smith, 40i. 486. Excelsior Wrapper Co. v. Messinger, 120. Exchange Bank v. Rice, 353-355. Exchange Nat. Bank v. Bank, 479, 511. Exhaust Ventilation Co. v. Railroad Co., 433. Exhaust Ventilator Co. v. Railroad Co., 433. Exley V. Berryhill, 274. Eyre v. Potter, 112. Fairbank Canning Co. v. Metzger, 464. Fairbanks v. Metcalf, 56. V. Snow, 154, 245, 246. Fairchild v. Holly, 439. V. Railroad Co., 343. V. Rogers, 488. Fair Haven Marble & Mnrbleized Slate Co. V. Owens, 54. Fairplay School Tp. v. O'Neal, 44. Faithorne v. Blaquire, 189. Falconbury v. Kendall, 133. Fall v. Hazelregg, 81. Fallowes v. Taylor, 59. Falls of Neuse Mfg. Co. v. Hendricks, 86. Fanning v. Dunham. 274. Fausou V. Liinsley, 539. 584 CASES CITED. [The figures refer to pages.] Fant V. Miller, 345. Farebrotber v. Simuions, 90. Fareira v. Gabell, 342. Fargo Gas & Coke Co. v. Electric Co., 228. Fariua v. Home, 103. Faris v. King, 335. Farley v. Cleveland, 69. V. Parker, 182. Farmer v. Kussell, 337. Farmers' Ass'n y. Scott, 230. Farmers' Co-op. Trust Co. v. Floyd, 518. Farmers' & Mechanics' Bank v. Ker- cbeval, 24. Farnam v. Brooks, 179. Farnbam v. Cbapmau, 71. V. Davis, 72. V. O'Brien, 109. Farnswortb v. Telegraph Co., 76. Farrar v. Bessey, 188. v. Cburcbill, 232. v. Toliver, 419-421. Farrer v. Close, 317. Farrington v. Meek, 508. V. Ware, 238. Farrow v. Wilson, 476. Farwell v. Becker, 535. V. Hancbett, 222. V. Lowtber, 84. V. Mather, 86. V. Webster, 269. Fasler v. Beard, 412. Faulkner v. Adams, 55. V. Drug Co., 43. V. Hebard, 34. V. Lowe, 5. Faulknor v. Swart, 369. Fauntleroy v. Wilcox, 219. Favor v. Fbilbrick, 325. Fawcett v. Freshwater, 12tj. Fawcett & Holmes, In re, 216. Fawkner v. Wall-Paper Co., 395. Fay v. Guynon, 362. V. Smith, 481. Fayette Co. Sav. Bank v. Steffes, 198. Featberston v. Hutchinson, 323. Feckheimer v. Baum, 222. Feeney v. Howard, 95. Feblinger v. Wood, 66, 69. Feiertag v. Feiertag, 17. Feldman v. Beier, 436. V. Gamble, 437. V. McGuire, 357. Feller v. Green, 241. Fellows V. Stevens, 133. Feltbouse v. Bindley, 22, 23. Felton V. Dickinson, 355. V. Gregory, 242. Fenner v. Lewis, 501, V. Mears, 363. Fenton v. Clark, 550. V. White, ICO. Ferguson v. Bell's Adm'r, 163, 169. V. Bobo, 178. V. Carringtou, 235, 549. V. Coleman, 275. V. Crick, 74. V. Davidson, 368. V. Sutpben, 270. V. Teel, 470. V. Wilson, 192. V. Yunt, 339. Ferguson's Appeal, 113. Fergussou v. Norman, 265. Ferren v. ^Joore, 499. Fen-ier v. Storer, 26, 31. Ferris v. Brewing Co., 307, 356. V. Land Co., 145. Ferry v. Moore, 523. Ferst V. Bank, 69, 71. Fessenden v. Mussey, 84. V. Taft, 343. Fetrow v. Wiseman, 151, 153, 154. Fidelity Ins. & Safe-Deposit Co. v. Railway Co., 259. Fidelity & Casualty Co. of New York V. Grays, 294. Fidelity & Casualty Co. of New York V. Eickboff, 294. Field V. Cbipley, 2M. V. Dale. 138. V. Herrick, 163. V. Holland, 438. V. Leiter, 403, 405. V. Mayor, 366. V. New York. 366. Figbtmaster t. Levi, 245. Fildew V. Besley, 473. Filipini v. Stead, 423. Filley v. Pope, 463, 464. Fillieul V. Armstrong, 430.) Finch V. Barclay, 263. V. Finch, 72. V. Mansfleld, 23. Findley's Ex'rs v. Findley, 403. Findon v. Parker. 297. 298. Finegan v. Tbeisen, 249. Finger v. Hahn, 307. I Fiuk ^ V. Cox, 108. V. Smith, 125. Finlay v. Chirney, 378. Finn v. U. S., 145. Finney v. Apgar, 100. Firestone v. Werner, 222, 223. First Baptist Church v. Insurance Co., 63, 78. First Nat. Bank v. Bryan, 245. V. Buchanan, 435. V. Bynum, 369. V. Cauatsey, 273. V. Carriage Co., 238. V. Carson, 483. V. Case. 436. V. Chalmers, 70, 71. V. Clark, 29, 37. V. Dunn, 393. V. Gaines, 500. V. Gay, 503. V. Gerke, 403. V. Hall, 21, 29, 36, 346, 422. V. Hamor, 380. V. Hart, 38. V. Hendrie, 288. V. Johns, 199. V. Johnson, 437. V. Kimberlands, 366. V. Kingsley, 266. V. North, 394. V. Spear, 452, V. State, 284. V. Taliaferro, 399. V. Watkins, 23. V. Wolff, 481. First Universalist Church v. Pungs, lis. Fish V . Chapman, 429. V. Cleland, 206, 223, 226. Fishack v. Ball, 401. Fishburne v. Ferguson's Heirs, 180, 251. Fishel V. Bennett, 326, 329. Fishel 1 V. Gray, 323. Fisher V. Anderson, 272. V. Bartlett, 113. V. Bishop, 247, 250. V. Bridges, 333. V. Hall, .53. V. Hildreth, 339. V. Hoover, 212. V. Hopkins, 381. V. Insurance Co., 295. CASES CITED. 585 [The figures refer to pages.] Fisher v. Lighthall, 221. V. May's Heirs, 122. V. Mellen, 229. V. Mowbray, 153. V. Shattuck, 240, 242, 245. Fisher P]lectric Co. v. Iron Works, 289. Fisheries Co. v. Lennen, 307. Fitch V. Johnson, 373. V. Jones, 334. V. Snedaker, 40. V. Sutton, 133. V, Water Co., 352. Fitts V. Hall, 176, 177. Fitz V. Bynum, 238. Fitzgerald v. Bank, 402. V. Dressier, 71. V. Peck, 226. V. Reed, 183. Fitzhugh V. Wilcox, 182. Fitzsimmons v. Allen's Adm'r, 94. Fivey v. Railroad Co., 197. Flach V. Gottschalk Co., 184. Flack V. Garland, 491. Flagg V. Gilpin, 278. V. Inhabitants, 267. Flagler v. Lipman, 71. Flanagin v. Hambleton, 435. Flanders v. J"'ay, 426. Flandrow v. Hammond, 470. Flanigan v. Minneapolis, 241. V. Seelye, 441. Flaniken v. Neal, 375. Flarsheim v. Brestup, 437. Fleekenstein Bros. Co. v. Fleeken- stein, 364. Fleetwood v. Bro^^Ti, 201. Flegal V. Hoover, 419. Fleit V. Murton, 520. Fleming v. Beck, 487. V. Gilbert, 425. V. Hanley, 236. Flenner v. Flenner, 72, 73. Flersheim v. Cary, 323. Fletch V. Dyche, 412. Fletcher v. G rover, 385, 534. V. Livingston, 76. V. Peck, 7. Flexner v. Dickerson, 154. Flight V. Bolland, 163. v. Booth, 216. V. Reed, 142. Flinn v. Mowry, 445. V. St. John. 269. Flint V. Cadenasso, 356, 357. 586 CASES CITED, [The figures refer to pagea.] Florance v. Adams, 510. Florida v. Morrison, 218. Florida, 0. & P. li. Co. v. State, 288. Flower v. Baruekoff, 75. V. Sadler, 2S4. Floyd Acceptance, The, 145. Flynn v. Allen, 238. V. Columbus Club, 270. V. Dougherty, 99. V. Hurlock, 130. Foalces v. Beer, 130. Foard v. Grinter's Ex'rs, 123. V. McComb, 218. Foley V. Cowgill, 56. V. Crow, 216, 236, 466. V. Dwyer, 453. V. Greene, 242, 293, 340. V. Mason, 398. V. Piatt, 283. V. Storrie, 128. Follansbee v. Johnson, 357. Follett V. Buyer, 369. Fonda v. Burton, 393. V. Van Home, 150, 154, 505. Fond du Lac Harrow Co. v. Haskins, 415. Fonseca v. Steamship Co., 20, 343, 345. Fontaine v. Bush, 103. Foote V. Hambrick, 483. V. Nickerson, 303, 322. Forbes v. Hagman, 503. V. McDonald, 283. Force V. Dutcher, 500. Ford V. Beach, 403. V. Cotesworth, 472. V. Harrington, 340. V. Hennessy, 249. V. Mitchell, 436. T. Phillips, 167. V. Tiley, 448. V. Tirrell, 399. Fordyce v. Nelson, 366. Foreman v. Bigelow, 235. Forest Oil Co., Appeal of, 442. Formby v. Pryor, 286, 287. Forrester v. Flores, 93. Forsyth v. Day, .504. V. Ryan, 367. V. Woods, 301. Forsyth Mfg. Co. v. Castlen, 280. Forsythe v. State, 300. Fort V. Allen, 74, 75. Fortunato v. Patten, 370. Ft. Worth City Co. v. Bridge Co., 193. Fosdick V. Insurance Co., 219. V. Van Arsdale, 294. Foshay v. Ferguson, 240-243. Foss V. Cummings, 342. V. Hildreth, 186. V. Richardson, 471. Foster v. Bartlett, 540. V. Bates, 503, 504. V. Burton, 385, 534. V. Dawber, 419. V. Dupre, 537. V. Green, 541. V. Hooper, 381. V. Ley, 535. V. McKinnon, 198. V. Maginnis, ^. V. Paine, 422. V. Peyser, 221. V. Smith, 522. V. Thurston, 329. V. Wooten, 269. Fountain v. Menard, 75. Fountain Coal Co. v. Phelps, 510. Fouutaine v. Bush, 97, 103. Fowke V. Bowie, 437. Fowkes V. Ass'n, 406. Fowle V. Freeman, 43. V. Park, 309, 312. Fowler, Appeal of, 343. V. Brooks, 126. V. Callan, 297. T. Fowler, 401. v. Insurance Co., 214, 277 V. McCann, 233. V. Trust Co., 273. V. Woodward, 208, 404. Fox V. Ass'n, 296. V. Davis, 303. V. Kitton, 444. V. Rogers, 326. V. Tabel, 199. Fox Solid Pressed Steel Co. v. Schoen, 308. Fradley v. Hyland, 523. Fraley v. Bentley, 45. Fraley's Appeal, 367. Frame v. August, 69. France v. Smith, 275. Francis v. Barry, 86. Francisco v. Smith, 364. Franco-Texan Land Co. v. Chaptlve, 147. Franklin v. Long, 98, 464. CASES CITED. [Tho figures refer to pages.] 587 Franklin v. Miller, 466. Franklin Min. Co. v. Harris, 430. Frank v. Eltringbam, 84. Franklin v. Ivong, 98. Franklin Ins. Co. v. Hamill, 421, 425. Frank's Appeal, 114. Frary v. Rubber Co., 428. V. Sterling, 80. Fraser v. Backus, 122. Frazer v. Gates, 78. V. Howe, 8G. V. Miller, 439. Frazier v. Massey, 153. V. Warfield, 346, 399. Frear v. Evertson, 362. V. Hardenbergb, 75. Freed v. Mills, 44. Freeman v. Boston, 39. V. Bridger, 157, 158. V. Kieffer, 237. V. Roland, 176. V. Taylor, 466. Freer v. Lake, 403. Freetb v. Burr, 454. French v. McAndrew, 153, 175. V. Parker, 310, 311. V. Pearce, 407. V. Shoemaker, 240. V. Vining, 224. French Lumbering Co. v. Theriault, 182. French's Heirs v. French, 186. Frenzel v. Miller, 218. Frerking v. Thomas, 357. Frevall v. Fitch, 53. Freyman v. Knecht, 464. Fridge v. State, 441. Frieberg v. Treitschke, 257. Pried v. Insurance Co., 22. Friend v. Lamb, 235. V. Miller, 293, 390. Friend Bros. Clothing Co. v. Hulbert, 237. Friend & T. Lumber Co. v. Miller, 487. Frisbee v. Hoffnagle, 471. Frisby v. Ballance, 208. Frith V. Lawrence, 37. Fritzler v. Robinson, 201. Front St. R. Co. v. Butler, 451. Frost V. Belmont, 285. r. Gage, 257, 337. V. Johnson, 492. V. Knight, 444, 445. Fruin v. Railway Co., 397, 412. Fruitt V. Anderson, 181. Fry V. Patterson, 436. V. Piatt, 85. Fullam V. Inhabitants, .")17, 521. Fuller V. Brown, 476, 550. V. Dame, 288. V. Duren, 538. V. Green, 335, 480, 482. V. Kemp, 132, 492. V. Roberts, 244. Fuller ton v. Sturges, 482. Fullmer v. Poust, 453. Fulton V. Loughlin, 122. Funk V. Hough, 107, 117. Furenes v. Mickleson, 147. Furry v. O'Connor, 231. G Gaar, Scott & Co. v. Green, 128. Gabbey v. Forgeus, 240. Gaffney v. Hayden, 104, 175, 553. Gage V. Ewing, 494. V. Fisher, 301, 323. V. Tirrell, 403. Gaines, Succession of, 152. Gainesville Nat. Bank v. Bramberger, 231. Gaither v. C"larke, 271. Galbes v. Girard, 145. Galbreath v. Galbreath, 95. Gale V. Leckie, 256. V. Nixon, 82. V. Tappan, 528. Galey v. Mellon, 365. Gallagher v. Gallagher, 93. V. Sharpless, 431. Gallinger v. Traffic Co., 514. Galloway v. Holmes, 549. Gallup V. Lichter, 494. Gait V. Galloway, 528. Galusha v. Sherman, 125, 241. Galveston, H. & S. A. R. Co. v. Short. 320. Galvin v. Mackenzie, 102. Galway v. Shields, 91, 552. Gambril v. Doe, 272. Gambs v. Sutherland's Estate, 330. Gamewell Fire-Alarm Tel. Co. v. Crane, 308. Gammill v. Johnson, 223. Gangwere's Estate, 183. Gano V. Aldridge, 40"). Garberino v. Roberts, 448. 588 CASES CITED. [The figures Gardels v. Kloke, 88. Gardiner v. Harbeck, 484. V. Morse, 258. Gardner v. Caylor, 422. V. Gardner, 500. V. Lane, 202. V. Leek, 439. V. Ogden, 510. V. Peaslee, 523. V. Randell, 75. V. Smith, 366. V. Walsh, 481, 482. Garfield v. Paris, 101, 102. Garland v. Harrington, 366. Garner v. Cook, 162. Garnett v. Kirkman, 123. Garrard v. Frankel, 401. Garretson v. Vanloon, 409. Garrett v. Moss, 258. V. Trabue, 528. Garrey v. Stadler, 149. Garrison v. Electrical Works, 233. T. U. S., 406. Garst V. Harris, 316, 413. Gartner v. Hand, 22. Gartrell v. Stafford, 89. Garvin's Adm'r v. Williams, 240. Gasper v. Heimbach, 392. Gates V. Brower, 501. V. Dundon, 244. V. Nelles, 42. V. Raymond, 238. V. Steele, 132. Gatling v. Newell, 238. Gatzow V. Buening, 317. Gauch V. Insurance Go., 397. Gault V. Brown, 102. V. Stormount, 85. Gavagan v. Bryant, 193. Gavin v. Bishoff, 501. V. Burton, 151, 152. Gaw V. Bennett, 280. Gay V. Ballou, 159, 548. V. Botts, 109. Gaylord v. Soragen, 329, 330. Gazlcy v. Price, 452, 459. (Jcddos" Appeal, 225, 226. Geelan v. Reid, 68. Geer v. Frank, 298, 323. V. School Dist., 383. Geib T. Reynolds, 201. Geiger v. Railroad Co., 429. Geipel v. Smith. 428. Geisse v. Franklin, 509. refer to pages.] Gelpcke v. Dubuque, 324. Gelston v. Sigmund, 44. Genereux v. Sibley, 150, 158, 174. Genet v. Canal Co., 408. Geox'ge v. Conhaim, 43. V. Johnson, 223. Georgia Pac. R. Co. v. Brooks, 236. Gere v. Clark, 381. Gerhart v. Peck, 90. Gerlach v. Skinner, 323. Gerli v. Mfg. Co., 455. German American Ins. Co. v. Insur- ance Co., 398. German Fire Ins. Co. v. Roost, 403. German Sav. Bank v. Roofing Oo., 24. German State Bank v. Light Co., 356, 357. Gerrard v. Frankel, 205. Gerrish v. Glines, 480. Gerry v. Stimson, 57. Gerz V. Weber, 17. Getchell v. Maney, 366. Gettysburg Nat. Bank v. Chisholm, 479. Ghegan v. Young, 374. Gibbins v. Asylum District, 43. Gibbons v. Bente, 446. V. Ellis, 392. v. Gouverneur, 277. Gibbs V. Gas Co., 288, 309, 342. V. Linabury, 198. V. Smith, 258. Gibbs & Sterrett Mfg. Co. v. Bruck- er, 269. Gibson v. Carruthers, 365. V. Cooke, 366. V. Cranage, 432. V. Hardware Co., 502. V. Holdeu, 375. V. Holland, 83. V. Partee, 56. V. Pelkie, 201. V. Porter, 375. v. Soper, 182-185. V. Stearns, 274. V. Stevens, 516. V. Trust Co., 359. Giddings v. Bank, 245. Gieske v. Anderson, 359. GifEord v. Corrigan, 54, 356-358. v. Thorn, 116. Gilbert v. Baxter, 29. V. Deshon, 501. V. Holmes, 298, 527. CASES CITED. [The figures refer to pages.] 589 Gilbert v. McGinnis, 400. V. Plow Co., 392. V. Sanderson, 357. V. Sykes, 276. Gilclirist v. Manning, 237. Giles V. Edwards, 471, 545. Gill V. Biclvnell, 90. V. Ferris, 307. V. Lumber Co., 453. V. Weller, 367. Gillaspie v. Kelly, 483. Gilleland v. Failing, 298. Gillespie, In re, 370. V. Edmonston, 35. Gillespie Tool Co. v. Wilson, 431. Gillet V. Bank, 405, 406. Gillett V. Bank, 404. V. Logan Co., 292. Gilley v. Gilley, 548. Gilliglian v. Boardman, 87. Gilliland v. Phillips, 346. Gillis V. Cobe, 432. V. Goodwin, 174, 175. Gilman v. Hall, 550. T. Kibler, 22. V. Peck, 435. V. Rives, 380. Gilmore v. Bissell, 273. V. Courtney, 460, V. Ferguson, 272. V. Lewis, 288. V. Pope, 516. V. Wilbur, 537, 538. Gilpin V. Howell, 522. Gilson«v. Spear, 176. Ginn v. Security Co., 273. Given v. Lemoine, 515. Glacius V. Black, 431. Glabolm v. Hays, 211. Glaubolm v. Hays, 464. Glascock V. Lyons, 537. Glasgow v. Hobbs, 113. Glass V. Beach, 108. V. Hulbert, 93-95. Glasscock v. Glasscock, 53. V. Hazell, 538. Glaze V. Insurance Co., 54. Glazebrook v. Woodrow, 451. Gleason v. Dyke, 140. V. Railroad Co., 257, 301. Glencoe Land & Gravel Co. v. Com- mission Co., 350. Glenn v. Bank, 335. V. Cauby, 375. Glenn v. Marbury, 362. v. Savage, 548. V. Shannon, 542. Glidden v. Chamberlin, 141. Globe Milling Co. v. Elevator Co., 399. Gloucester Isin-Glass & Glue Co. v. Cement Co., 316, 469. Glover v. Ott's Adm'r, 159. Glover & Co. v. Ott's Adm'r, 155, 156. Glyn V. Baker, 541. Godcharles v. Wigeman, 260, 399. Goddard v. Binney, 100. V. Donaha, 93. V. O'Brien, 492. Goebel v. Linn, 128. Goldbeck v. Bank, 381. Goldberg v. Lavinski, 81. Golding V. Golding, 249. Goldman t. Oppenheim, 258. Goldsborough v. Cradie, 38, 369. V. Orr, 452. Goldsby v. Robertson, 138. Goldsmith v. Guild, 410, 4©. Goldstein v. White, 462. Goltra V. Sanasack, 207. Gompertz v. Bartlett, 200, 469. V. Denton, 404. 540, 546. Gooch V. Faucett, 345. V. Holmes, 100. Good V. Cheesman, 133. V. Daland, 316. V. Elliott, 276, V, Herr, 207. Goodal V. Thurman, 223, 300. Goodall V. Brewing Co., 330, V. Stewart, 237. Goode V. Harrison, 161. Goodlet V. Kelly, 54. Goodloe V. Godley, 513. Goodman v, Alexander, 157. V. Chase, 68. V. Eastman, 481. V. Henderson, 308. Goodnow V. Lumber Co., 106. Goodrich v. Lathrop, 238. V. Reynolds, 273. V. Tenney, 292. Goodsell V. Myers. 153, 167. Goodspeed v. Fuller, 390, 546. V. Plow Co., 37. Goodwin v. Bishop, 274. V. Cunningham, 369. V. Follett, 129. V. Gilbert, 64. 590 Goodwin v. Griffis, 549. V. Merrill, 16. V. Screw Co., 192. V. Trust Co., 230. Goodyear v. Adams, 182. Gorden v. Robertson, 483. Gordon v. Avery, 86. V. Bank, 385. V. Bulkeley, 500. V. Butler, 224, 225. V. Casey, 291. V. Gordon, 129. V. Parmelee, 224. Gore V. Gibson, 18G, 187. V. Lewis, 399. Gorham v. Keyes, 293. Gorman v. Salisbury, 426. Gormely v. Ass'n, 226. Gormley, Appeal of, 125. Gorrell v. Water Supply Co., 352, 356. Gorringe v. Reed, 340. Goshen Nat. Bank v. Bingham, 372. Goss V. Ellison, 132. V. Nugent, 426. V. Stevens, 502, 506 V. Whitney, 266. Gotwalt V. Neal, 240, 337, 540. Goucher v. Ass'n, 215. Goudy V. Gebhart, 60. Gould V. Banking Co., 94. V. Bourgeois, 470. V. Gould, 382, 416. V. Kendall, 290. V. Mansfield, 74. V. Murch, 472, 476. V. Railroad Co., 494. V. Wise, 53. Goulding v. Davidson, 141. Gove V. Biddleford, 489. Governor v. Daily, 497. Gowan's Adm'r v. Gowan, 338. Gower v. Capper, 117. V. Emery, 508. V. Stuart, 69. Grabenhorst v. Nicodemus, 33. Grace v. Hale, 159. V. Lynch, 80. v. Mitchell, 508. Gradle v. Warner, 84, 105, 441. Grady v. Insurance Co., 511. Graeme v. Adams, 272. (rraff V. Buchanan, 21. V. Fitch, 76. Graft V. Loucks, 95. CASES CITED. [The figures refer to pages.] Grafton v. Cummlngs, 84, 85. Gragg V. Brown, 516. Graham v. Burch, 249, 253. V. Duckwall, 517. V. Dyster, 54L V. Holt, 500. V. Johnson, 370. V. McReynolds, 298. V. Marks, 245. V. Stiles, 224. V. Tilford, 369. Graham Paper Co. v. Pembroke, 370. Grain v. Aldrich, 366. Grandin v. Grandiu, 112, 123, 125. Grand Lodge I. O. G. T. v. Farnham, 119. Grand Tower & C. G. R. Go. v. Wal- ton, 390. Grant v. Grant, 17, 74, 226. V. Johnson, 452, 465. V. Ludlow, 364. V. McGrath, 269. V. McLachlin, 343. V. Railway Co., 129. V. U. S., 120. V. Wolf, 68. Grape Creek Coal Co. v. Spellman, 490. Grasselli v. Lowden, 115. Graves v. The Calvin S. Edwards, 428. V. Johnson, 329, 345. V. Legg, 451, 458, 461, 465, 466. V. Tucker, 56. Gray v. Cary, 103. V. Clark, 403. V. Handkinson's Heirs, 471. V. Herman, 69. V. Hook, 283. V. McReynolds, 257. V. Mathias, 301. V. Otis, 497. V. Pearson, 359. V. Smith, 461. Graybill v. Brugh, 33, 119. Great Britain Steamboat Co., In re, 340. Great Northern R. Oo. v. Witham. 35, 120, Great Western Turnpike Co. v. Sha- fer, 78. Grebert-Borgnis v. Nugent, 486. Green v. Armstrong, 76. V. Brooking, 99. CASES CITED. [The figures refer to pages.] 591 Green v. Cole, 43. V. Corrigan, 340. V. Uovillaud, 410. V. Gilbert, 477. .'mO. V. Greeu, 1G6, 173. V. Greenbank, 177. V. Groves, 94. T. iDSurauce Co., 215. V. Langdon. 130. V. Lewis, 105. V. Merriani, 103. V. Moffett, 399. y. Paul, 420. V. Kowortb, 247, 249. V. Solomon, 69. V. State, 145. V. Stone, 401. V. Stuart, 469. V. Wells, 425. V. Wilding, 150. V. Wilkie, 198. Greenburg v. Early, 430. Greenby v. Wilcocks, 362. Greene v. Bartholomew, 365. V. Bateman, 204. V. Burton, 68. V. J'irst Parish in Maiden, 137. V. Greene, 249. V. Hatch, 369. V. Latcham, 69, 72. V. Tyler, 399. Greentield Sav. Bank v. Simons, 510. Greenfield's Estate, 248. Greenleaf v. Allen, 374. Greenough v. Eichholtz, 72. Greenstine v. Borchard, 400. Greenville v. Waterworks Co., 83. Greenwood v. Curtis, 343, 344. V. Law, 100. V. Sheldon, 356. V. Strother, 81. V. Sutclitte, 442. Greer, Hawes & Co. v. Severson, 291. Gregg V. Garrett, 83. Gregory v. King. 291. v. Lee, 160. V. Littlejohn, 391. V. Logan, 87. V. Pierce, 190. V. Thomas, 478. V. Walker, 54. v. Wattowa, 280. V. Wendell, 199, 278, 332, 342. Greig v. Kiordnn, 3(17. Greton v. Smith, rir)2. Grey v. Tubbs, 409. Ciribben v. :Maxwell, 183. Gridley v. Bane, 239. Griel v. Lomax, 223. V. Solomon, 141. Grierson v. Mason, 393. Grieser v. Hall, 274. Griffin v. Colver, 486, 488. v. Ogletree, 408. V. O'Neil, 205. Griffith V, Godey, 251. V. Publishing Co., 365. V. Schwenderman, 153. V. Wells, 260, 261, 265. Griffiths V. Owen, 104. Grigg V. Landis, 409, 462. Griggs V. Moors, 453. Grigsby v. Combs, (4. V. Stapleton, 224. Grim v. Iron Co., 355. Grime v. Borden, 303. Grindrod v. Wolf, 116. Grinnell v. Telegraph Co., 320. Grissell v. Robinson, 534. Griswold v. Butler, 182. v. Eastman, 58. V. Hazard, 207. V. Kailroad Co., 360. V. Waddington, 148. Grizewood v. Binne, 279. Groff v. Hansel, 238. V. Kohrer, 218. Groner v. Smith, 53. Gross V. Cadwell, 41. V. Criss, 435. Groton v. Inhabitants, 282. Grove v. Dubois, 516. V. Rentch, 393. Grubb V. Suit, 378. Grumley v. Webb, 510. Grundies v. Kelso, 96. Grymes v. Sanders, 208, 236. Guardian Fire & Life Assur. Co. v. Thompson, 217, 223. Guckenheimer v. Angevine, 238. Guerand v. Bandelet, 115. Guerln v. Stacy, 413. Guernsey v. Cook, 302. Guild V. Butler, 131, 492. V. Hull, 179. Guilford School Tp. v. Roberts, 232. 592 CASES CITED. [The figures refer to pages.] Guilleaume v. Rowe, 240, 242. Gulf, C. & S. F. II. Co. V. Eddins, 319. V. MoiTis, 28'J. V. Settegast, 8S. V. Wilbanks, 320. Gulick V. Grover, 501, 505. Gump V. Halberstadt, 69. Gunby v. Sluter, 216. Guiidlach v. Fischer, 525. Gunn V. Cantine, 51G. Gunnings v. Iloj^al, 125. Guntber v. Guntber, 107. Gurney v. Howe, 435. V. Womersley, 469, 545. Guthing V. Lynn, 44. Guthman v. Keam, 441. Gutbrie v. Anderson, 88. V. Basbline, 368. V. Morris, 160. V. Murpby, 157. V. Railroad Co., 527. Gutta-Percba & R. Mfg. Co. v. Hous- ton, 531, 533. Guyman v. Burlingame, 291. Guyon v. Lewis, 521. Gwinn v. Simes, 269. V. Wbitaker's Adm'x, 438. Gwynne v. Hitcbner, 428. H Haacke v. Knights of Liberty, 270, 337. Haas V. Myers, 27. V. Railroad Co., 428. Haase v. Jsonnemacber, 463, 467. Habricht v. Alexander, 147. Hackenberry v. Shaw, 272. Hacker's Appeal, 52. Hackley v. Headley, 244. Hadcock v. Osmer, 230. Hadley v. Baxendale, 486. V. Bordo, 436. V. Clarke, 475. V. Improvement Co., 221, 222. V. Reed, 108. Hadlock v. Brooks, 299. Haebler v. Myers, 537. Haeuni v. Blcisch, 54, 225. Hagadorn v. Lumber Co., 68. Hager v. Catlin, 2S2. Hagorty v. Lee, 375. V. Lock Co., 175. V. White, 403. Haigh V. Brooks, 114, 405. Haines v. Lewis, 280. V. Tucker, 447. Haines' Adm'r v. Tarrant, 158, 236. Haldeman v. Insurance Co., 273. Hale V. Brown, 179. V. Cole, 247. V. Cravener, 120. V. Gerrish, 167, 168. V. Hale, 74, 88, 273. V. Rice, 138. V. Sheehan, 407. V. Bpaulding, 381. Hales V. Freeman, 534, 535. Hall V. Alford, 72. y. Bank, 402. V. Bishop, 264. V. Bryan, 141. V. Butterfleld, 174. V. Corcoran, 269. V. Crowley, 412. V. Daggett, 273. V. Dyson, 258. V. Gavitt, 282, 333. V. Haggart, 271. V. Hall, 54. V. Hinks, 238. V. Huntoon, 512, 517. V. Insurance Co., 368, 441, V. Leigh, 383, 415. V. McArtbur, 470. V. Mayor of Swansea, 192. V. Railroad Co., 509. V. Richardson, 436. V. Sbultz, 541. V. Solomon, 75, 391. V. Storrs, 397. V. Thayer, 416. V. Wallace, 90. V. Warren, 180. V. White, ~M'5. Halladay v. Hess, 395. llallam v. Huffman, 258. Halle V. Newbold, 376. Hallen v. Ruuder, 75. Hallenbeck v. Kindred, 375. Hallett V. Gordon, 382. V. Novion, 261. Halley v. Troester, 184. Hall Mfg. Co. V, Supply Co., 113. Hallock V. Insurance Co., 34. Halloran v. Whitcomb, 362. Hal luck V. Bush, 55. Halpiu v. Insurance Co., 442. CASES CITED. [The figures refer to pages.] 693 Halpin V. Stone, 391. Halsa V. Halsa, 87. Ham V. Smith, 2D1. Hambly v. Railroad Co., 410. Hamer v. Sidway, 107, 114. Hamet v. Litcher, 200. Hamill v. Ashley, 514. V. Hall, 96. Hamilton v. Austin, 268. V. Gray, 298. V. Hamilton, 304. V. Insurance Co., 22, 26, 34, 35, 295. V. McPherson, 487. V. Park & McKay Co., 201. V. Railroad Co., 319. V. Rogers, 365. V. Thrall, 451. V. Watson, 217. V. Wood, 480. Hamlin v. Abell, 230. V. Drummond, 69. V. Sears, 503. V. Stevenson, 150. Hammer v. Schoenfelder, 487. Hammond v. Hopping, 141. V. Hussey, 111. V. Peunock, 238. V. Winchester, 28. Hammons v. State, 267. Hampden v. Walsh, 275, 276, 339. Hanauer v. Doane, 330. Hanchett v. Ives, 125. V. Jordan, 269. V. Yunker, 517. Hand v. Marble Co., 361. V. Slaney, 156. Handforth v. Jackson, 237, 307. Handley v. Heflin, 385. Handrahan v. O'Regan, 107. Handy v. Publishing Co., 268, 322, 346. Haney v. Caldwell, 430. Hanford v. McNair, 500, 506. Hankins v. Ottinger, 277. Hanks v. Barron, 129. V. Brown, 275. V. Naglee, 300, Hanna v. Wilcox, 250. Hannibal H. Chandler & Co. v. Knott, 420. Hannon v. Hounihan, 73. Hanover Nat Bank v. Bank, 341. V. Blake, 258. Clark Cont.(2d Ed.)— 38 Hansard v. Robinson, 484. Hanscom v. Drullard, 228, 230. Hansen v. Erickson, 462. Hansen v. Berthelsen, 250. V. Gaar, Scott & Co., 125. V. Myer, 374. V. Rounsavell, 437. V. Steam Heating Co., 455. Hanson v. Armitage, 103. V. Crawley, 483. V. Marsh, 98, 105. V. Nelson, 69. Hapgood V. Rosenstock, 490. V. Shaw, 459. Happy V. Mosher, 436. Harbart's Case, 381. Harbinger, The, 398. Harbord v. Cooper, 364. Hard v. Burton, 422. V. Seeley, 450. Harder v. Com'rs, 464. Hardesty v. Graham, 131. Harding v. Glucose Co., 308. V. Tifft, 437. Hardmau v. Booth, 200. Hardwick v. Insurance Co., 63. Hardy v. Jones, 337. v. Waters, 154. Hardy Implement Co. v. Iron Works, 364. Hargan v. Purdy, 264. Harger v. Worrail, 335. Hargrove v. Adcock, 85. Hargroves v. Cooke, 87. Harker v. Oonrad, 437. Harkreader v. Clayton, 55. Harlan v. Berry, 383. Harland v. Lilienthal, 264. Harlow v. Curtis, 28. V. Putnam, 469. Harman v. Howe, 404. Harmon v. Bird, 471. V. Harmon, 182, 240. Harmony v. Bingham, 243, 244, 472. Harms v. McCormick, 358. Hamer v. Dipple, 153. V. Killing, 167. Harney v. Owen, 153. Harnor v. Groves, 545. Harper v. Graham, 131. v. Harper, 78. V. Young, 335. Harralson v. Stein, 511, llarran v. Foley, 205. 594 Harrell v. Miller, 76. Harriman, The, 472. V. Bmerick, 134. V. Harriman, 126, 129. Harrington v. Doclj Co., 302, 509. V. Harrington, 50. V. Higgins, 452. V. Iron- Works Co., 476, 550. Harrington's Adm'r v. Crawford, 283. Harris, Ex parte, 25. V. Alcock, 222. V. Carmody, 245. V. Carter, 127. V. Cassaday, 124, 12b. V. Ctiamberlain, 283. V. Frank, 68. V. Harper, 65. V. Harris' Ex'r, 59. V. Heackman, 374. V. Nickerson, 42. V. Pepperell, 401. V. Railroad Co., 20. V. Regester, 53. V. Rickett, 389. V. Roberts, 288. V. Roofs EX'r, 2^. V. Ross, 162. V. Runnels, 260. V. Scott, 28. V. Sharpies, 431. T. Smith, 17. V. Taylor, 188. V. Tyson, 221. V. White, 277. y. Wicks, 274. Harrisburg Bank v. Tyler, 355. Harris' Case, 22, 26, 27, 34. Harris Co. v. Campbell, 366. Harrison v. Adcock, 170. V. Baldwin, 343. V. Cage, 117. V. Close, 129. V. Colton, 270. V. Fane, 156. V. Lodge, 420. V. McHenry, 504, 510. V. Morrison, 398. V. Otiey, 184. V. Railway Co., 473. V. Refining Co., 307. Harrison Mach. Works v. Coquillard, 541. Harrow Spring Co. v. Harrow Co., 392, CASES CITED. [The figures refer to pages.] Harson v. Pike, 38, 39. Hart V. Alexander, 423. V. Deamer, 182. V. Mills, 16, 137, 442. V. Prater, 156. V. Strong, 130, 244. Hartford Bridge Co. v. Ferry Co., 406. Hartford Fire Ins. Co. v. Horr, 295. V, Railroad Co., 320, 346. V. Wilcox, 476. Hartford Protection Ins. Co. v. Har- mer, 210, 214. Hartley v. Decker, 457. V. Rice, 136, 276, 303.- V. Vamer, 68. Hartley's Appeal, 527. Hartman v. Kendall, 169. Hartness v. Thompson, 162. Hartranft v. Uhlinger, 271. Hartung v. Witte, 374, 376. Hartupee v. Crawford, 453. V. Pittsburg, 16, 453. Hartwell v. Hartwell, 283. V. Young, 80, 92, 95. Hartzell v. Crumb, 394. Harvey v. Briggs, 163, 173. V. Dale, 469. V. Doty, 279. V. Duffey, 23, 32. V. P"'acey, 42. V. Gibbons, 134. V. Harris, 202. V. Johnston, 15. V. Merrill, 276, 278, 279, 334, 342. V. Mount, 249. Harwood v. Jones, 70. Haseltine v. Smith, 299. Haskell v. Tukesbury, 394. V. Wright, 376. Haskins v. Royster, 350. v. Warren, 400, Haslack v. Mayers, 453. Hassie v. Congregation, 365. Hasted v. Dodge, 131. Hastelow v. Jackson, 339. Hastings v. Dollarhide. 153, 154, 163, 164. V. Lovejoy, 425. V. Vaughn, 52. Hatch V. Douglass, 278. V. Hatch's Estate, 168. V. McBrien, 99. v. Mann, 127, 136, 257. V. Taylor, 513, 514. CASES CITED. [The figures refer to pages.] 595 Hatchett v, Bnddeley, 189. HatLaway v. Hagau, 211. V. Moran, 346. Hatsall V. Griffith, 382. Hatzfield v. Gulden, 286. Haubert v. Mausshardt, 422. Hauser v. Harding, 45. Hausmann v. Burnbam, 80. Havanna Press-Drill Co. v. Asburst; 129. Haven v. Foster, 207. V. Neal, 235. T. Russell, 432. Havens v. Havens, 18. Haviland v. Halstead, 304. V. Sammis, 74. V. Willets, 226. Hauk V. Brownell, 227. Hawes v. Smitb, 107, 401. Hawken v. Bourne, 499. Hawkes v. Saunders, 180. Hawkeye Ins. Co. v. Brainard, 284. Hawkins v. Ball's Adm'r, 477. V. Grabam, 432, 433. V. Lange, 505. V. McGroarty, 506. Hawkinson v. Harmon, 22. Hawks V. Weaver, 273. Hawley v. Beverley, 534. V. Bristol, 365. V. Keeler, 448. V. Moody, 92, 553. Hawortb v. Montgomery, 264. V. Norris, 391. Haws V. Tiernan, 494. Hay V. Green, 362. Hayden v. Souger, 38, 39. Haydock v. Haydock's Ex'rs, 250. Hayes v. Crane, 519. V. Fine, 76. v. Gross, 473. V. Insurance Co., 129. V. Jackson, 87. V. O'Brien, 33. Hayner v. Cburcbill, 514. Haynes v. Baptist Cburch, 473. v. Bennett, 170. V. Dorman, 324. V. Mason, 79. V. Nice, 437. V. Ruud. 323, 337, 540. Hayney v, Coyne, 298. Hays V. McCIurg, 436. Hayward v. Andrews, 364. V. Barker, 141, 188. V. Leonard, 431, 550. V. Mfg. Co., 285. Hazard v. Day, 267. V. Insurance Co., 202, 542, V. Irwin, 60. V. Loring, 441. Hazelrigg v. Donaldson, 343. Hazlett V. Sinclair, 376. Head v. i/iggon, 33. V. Insurance Co., 192.' V. Tattersall, 428. Headley v. Sbaw, 452. Heady v. Boden, 141. Heany v. Scbwartz, 496. Heaps V. Dunbam, 242, Heard v. Pulaski, 437, 440. Hearn, In re, 152. V. Cullen, 349, 533. Heath v. Blake, 483. V. Hall, 36 <. V. Heath, 78. V. Nutter, 500, 506. V. Stevens, 174. V. West, 171. Heaton v. Angler, 422. V. Dennis, 297, 300. v. Eldridge, 97. V. Norman Co.'s Bank, 245. V. Norton Co., 243. Heaver v. Lanaban, 446. Hebb's Case, 22. Hecbt V. Batcbeller, 208. V. Caugbron, 356. Heckman v. Swartz, 540. Hedden v. Griffin, 524. V. Roberts, 379. Hedges v. Wallace, 330. Hedin v. Institute, 227. Heermans v. Ellsworth, 368. Heffelflnger v. Hummel, 122. Heffron v. Armsby, 90. Hefner v. Vandolab, 504. Hefter v. Cahn, 257. Hegler v. Faulkner, 166. Heilbutt V. Hickson, 463. Heirn v. Carrou, 492. Heist V. Blaisdell, 272. Hellams v. Abercrombie, 267. Helms V. Crane, 126. V. Franciscus, 303. Helt v. Smitb, 71. 596 CASES CITED. [The figures refer to pages.] Hemingway t. Stansell, 492. Hemmenway v. Stone, 3S4, 415. Hemmer v. Cooper, 227. Hendee v. Pinkerton, 52, 53. Henderson v. Cass Co., 442. V. Coke Co., 24, 45. V. Fox, mo. V. Gibbs, 239. V. Hammond, 380. V. Henshall, 378. V. McGregor, 179, 180. V. Palmer, 293. V. Perkins, 86. V. Railway Co., 367. V. Stevenson, 20. Henderson Bridge Co. v. McGratli, 40, 44. Hendrick v. Lindsay, 356. Hendricks v. Goodrich, 537. V. Rasson, 54. Hendy v. Ivier, 110. Henequin v. Naylor, 222. Henkel v. Pape, 204. Hennersdorf v. State, 268. Hennessey v. Woohvorth, 490. Hennessy v. Bacon, 122. V. Metzger, 412. Henninger v. Heald, 238. Hennington v. State, 266. Henricus v. Englert, 521. Henry v. Bisbop, 389. V. Coats, 481. V. Flagg, 273. V. Heeb, 505. V. Heni-y, 72. V. Root, 150, 153, 168. V. Sausom, 274. V. Wells, 92. Henry Bill Pub. Co. v. Utley, 437. Hensel v. Ass'n, 271. Henthom v. Praser, 26. V. Frazer, 34, 35. Hentz V. Jewell, 280. V. Miller, 200. Heuzler's Estate v. Bossard, 18. Herbert v. Tnrball, 150. Herostreit v. Beckwith, 367. Herendeen Mfg. Co. v. Moore, 68. Herman v. Jencbner, 339. Hernandez v. Insurance Co., 407. HerresboEE v. Boutineau, 307, 309. V. Misch, 426. Herrick v. Newell, 95. Herriman v. Menzies, 317. Herring v. Dorell, 124. V. Scaggs, 505. Hersey v. Bennett, 439. Hershey v. Luce, 407. Hertzler v. Geigley, 337. Hertzog v. Hertzog, 530. Herzog v. Heyman, 469. V. Sawyer, 425. Hess V. Griggs, 389. Hess' Estate, In re, 53, 111. Hessick v. Hessick, 250. Hewes v. Bayley, 382. Hewett V. Currier, 125. V. Dement, 274. V. Jones, 198. Hewitt V. Anderson, 40. V. Lumber Co., 396. Heyman v. Dooley, 110. Heysham v. Dettre, 75. Heyward v. Lomax, 438. Heywood v. Perrin, 75, 403. V. Tillson, 350. Heywoi-th v. Knight, 43. Hibbard v. McKindley, 404. V. Peek, 398. Hibbert v. Aylotfs Heu-s, 94. Hibbette v. Baines, 305. Hickey v. O'Brien, 45, 120. V. Stewart, 494. Hickman v. Hall's Adm'rs, 158. V. Haynes, 421, 426. V. Shimp, 428. Hicks v. Aylesworth, 462. V. Burhans, 138. V. Cram, 380. V. Stevens, 227, 233, 390. Hieronymus v. Ass'n, 346. Higert v. Asbury University, 118. Higgen's Case, 478. Higgins, In re, 152. V. Dale, 141. V. Hallock, 68. V. Hill, 117. Y. Lessig, 40, 41. V. Murray, 100. V. Pitt, 258. v. Railroad Co., 455. V. Senior, 85, 90, 394. Highberger v. Stiffler, 248. Highstone v. Burdette, 393. Hilborn v. Buckuam, 243. Hilderbrand v. Fine Arts Co., 462. CASES CTTED. [The flsuros refer to pages.] 697 Hill r. Anderson, 175. V. Baker, 147. V. Blake, 65, 426. V. Buckley, 204. V. Duluth, 407. V. Dunham, 2tJ9. V. Evans, 397. V. Freeman, 337. V. Hill, 18. V. Hooper, 79. V. Jamieson, 79. V. Kidd, 276. V. McMchol, 54. V. McPherson, 369. V. Mfg. Co., 406. V. Miller, 249. V. Morse, 50. V. Nelms, 169. V. Robblns, 439. V. Spear, 330. V. Whidden, 391. Hills V, Ludwig, 74. V. Street, 540. V. Sughrue, 202. Hilton V. Burley, 439. V. Eckersley, 318. V. Houghton, 269. V. Shepherd, 168. V. Woods, 300. Himrod Furnace Co. v. Railroad Co., 84. Hinchman v. Lincoln, 102. V. Weeks, 100, 231, 237. Hinckley v. Steel Co., 449, 468. Hind V. Holdship, 113. Hindmarch v. Hoffman, 539, 541. Hindrey v. Williams, 473. Hines v. Board, 241. Hingston v. L. P. & J. A. Smith Co., 228. Hinkley v. Fowler, 358. Hinton v. Locke, 397. Hirth V, Graham, 76. Hissong V. Railroad Co., 319. Hitchcock V. Coker, 310. Hittson V. Brown, 264. Hoadley v. McLain, 105. V. McLaine, 105, 137. Hoag V. Graves, 511. Hoagland v. State, 145. Hoare v. Rennie, 454, 455. Hobbs V. Brick Co., 419. V. McLean, 405. V. Wliip Co., 16. Hobough V. Murphy, 141, 142. Hochmark v. Richler, 273. Hochster v. De la Tour, 444, 445. Hodge V. Sloan, 307, 376. Hodges V. Kowing, 89. V. Nalty, 119, 268. V. .Sublett, 21, 43. V. Temple, 330. Hodson V. Terrill, 339. Hoe V. Sanborn, 224, 463. Hofflin V. Moss, 302. Hoffman v. Coombs, 126. V. Insurance Co., 403, 406. V. Noble, 238. V. Vallejo, 297. Hogan V. Curtin, 303. V. Kyle, 495. V. Moore, 246. V. Stophlet, 127. Hogencamp v. Ackerman, 424. Hogg V. Laster, 18. Holbrook v. Burt, 369, 370. V. Connor, 227. V. Wright, 516. Holcomb V. Weaver, 302. Holden v. Cosgrove, 333. Y. Curry, 154. V. Hardy, 260. V. O'Brien, 266. V. Pike, 174. Holfenstein's Estate, 37. Holladay v. Patterson, 288. Holler V. Richards, 83. Holley V. Anness, 489. Hollins V. Fowler, 130, 200. Hollis V. Burgess, 83, 86, 88. V. Edwards, 81. V. Francois, 188, 190. V. Pond, 53. Hollister v. Abbott, 50. V. Stewart, 493. Holloway v. Jacoby, 407. V. Lowe, 298. V. McNear, 400. Holloway's Assignee v. Rudy, 141. Holman v. Johnson, 337, 345, 546. Holmden v. Janes, 94. Holmes v. Bank, 271. V. Bell, 478. V. Blogg, 174, 257. V. Boyd, 126. V. Gregg, 442. V. Halde. 2G4. Y. Hall, 402. 698 Metal Holmes v. Hill, 242. V. Insui-ance Co., 405. V. McDonald, 54. T. Rice, 150, 162. V. Richet, 295. V. Ti-umper, 479, 481. V. Williamson, 534. Holmes & Griggs Mfg. Co. v Co., 193. Hoist V. Stewart, 227, 228, 229. Holston Salt & Piaster Go. v. Camp- bell, 407. Holt V. Ely, 539. V. Kirby, 274. V. O'Brien, 324. V. Pie, 393. V. Ross, 521. V. Ward Clarencieux, 117, 154, 162, 163. V. Ward Clemencieux, 118. Holton V. Noble, 225. Holtz V. Schmidt, 542. Home Nat. Bank v. Waterman, 528. Homer v. Perkins, 225. V. Shaw, 462. V. Thwing, 177. V. Wallis, 482. Honck V. Muller, 454. Honeyman v. Jarvis, 123. V. Marryat, 28. Hood V. Exploration Co., 468. V. Hartshorn, 295. V. Todd, 203. Hooker v. Knab, 342. Hooper v. Hooper, 70, 99, 407. V. Brundage, 369. V. Edwards, 267. V. Payne, 162. Hooper's Case, 478. Hoover v. Sidener, 464. Hopewell v. McGrew, 407. Hopkins v. Mollinieux, 497., V. Stefan, 270. V. U. S., 313. Hopper V. Ludlum, 149. Hopson V. Boyd, 182. Horn V, Bank, 479. V. Luddington, 93. V. Miller, 375. Hornby v. Close, 317. Home V. Niver, 30. V. Railway, 487. Horner v. Frazier, 74, 80. V. Graves, 307. CASES CITED. [Th« figures refer to pages.] Horner v. Horner, 393. Horsfall v. Thomas, 233. Horst V. Wagner, 482. Horton v. Bauer, 486. V. Bloedom, 240, 241. V. Lee, 227. V. McCarty, 90. V. Riely, 535. V. Rohlff, 405. Hosford V. Kanouse, 355. Hoshor V. Kautz, 114. Hoskinson v. Elliott, 381. Hosier v. Hursh, 491. Hosmer v. McDonald, 407. V. Wilson, 444, 447. Hostetter v. Hoi linger, 355. V. Park, 399. Hotchkln v. Bank, 222. Hough V. Brown, 28. V. Kugler, 414. V. Rawson, 459. Hough's Adm'r v. Hunt, 252. Houghtaling v. Ball, 97, 105. Houghton V. Francis, 481. V. Houghton, 248. Houghwout T. Boisaubin, 15, 31, 35. Houldsworth v. Glasgow Bank, 235. Houlton V. Dunn, 285. V. Nichol, 286. Housding v. Solomon, 432. House V. Alexander, 156, 158, 168. V. McKenney, 339. V. Waterworks Co., 352. Household Ins. Co. v. Grant, 26, 27. Housekeeper Pub. Co. v. Swift, 421. Houser v. Lament, 96. V. McGinnas, 534. Houston V. Sledge, 426. Houston & T. C. R. Co. v. McCarty, 203. Hovey V. Brown, 505. V. Chase, 180. V. Hobson, 180, 182, 183, 185, 186. V. Page, 378. V. Storer, 286. How V. Kemball, 87. Howard v. Daly, 26, 30, 444, 485, 526. V. Gould, 223. V. Independent Church, 291. V. Industrial School, 42. V. McCall, 437. V. Mfg. Co., 488. V. Railroad Co., 420, 421. V. SimpUius, luG. V. V. V. V. Howard v. Walker, 399. V. Whitt, (J5. Howard Ins. Co. v. Owen's Adm'r, G3. Howe V. Batcbelder, 7G. V. Hayward, 104. V. Litchfield, 333. Norm, 17. O'Malley, 117. V. Railroad Co., 508. V. Smith, 104. Taggart, 123. Wildes, 188. Howell V. Ooupland, 476. V. Graff, 514. V. Kelly, 75. T. Stewart, 330, 331. Howe Mach. Co. v. Bryson, 488. V. Simler. 52 U. Howes V. Barker, 478. Howe Sewing Mach. Co. v. Rosen- steel, 477, Howland v. Coffin, 374. V. Lounds, 40. Howley v. Whipple, 204. Howson V. Hancock, 338. Hoxsie V. Lumber Co., 491. Hoyle, In re, 83. Hoyt V. Byrnes, 441. V. Casey, 155, 157, V. Wilkinson, 164, 165, 175 Hoyt Mfg. Co. V. Turner, 237. Hubbard v. Bank, 441. Y. Belden, 476, 550. V, Coolidge, 111. V. Oummings, 168, 171. V. Freiburger, 275. V. Greeley, 56. V. Martin, 207, 544. V. Miller, 115, 307, 324. V. Moore, 329. V. Rowell, 488, V. Ten Brook, 514, 521. V. Weare, 231, 232. Hubbell V. Flint, 329. V. Palmer, 28. Huber v. Guggenheim, 225. V. Johnson, 298, 299. V. Zimmerman, 513. Huck V. Flentye, 15. Huckestein v. Kelly, 421. Huckins v. Hunt, 257. Hudson V, Hudson, 17. V. McCai'tney, 295. T. Revett, 56. CASES CITED. [The figures refer to pagea.] Hudson V. Weir, 100. Huff V. Logan, 132. V. Watkins, 350. Huffman v, Hughlett, 539. V. Wyrlck, 18. Huggins V. People, 246. Hughes V. Boone, 346. T. Fisher, 69. 699 V, Griswold, 273. V. Gross, 476. V. Mfg, Co., 227. V. Nolte, 488. V. Wamsuita Mills, 475. V. Watson, 170. Hugo, The, 319. Huguennin v. Baseley, 249. Hull V. Johnson, 493. V. Louth, 185, 186. V. Pitrat, 490. Hull's Assignees v. Connolly, 157. Hull Coal & Coke Co. v. Coke Co., 404, 410, 456. » Hulme V. Tenant, 190. Hulse V. Machine Co., 312. V. Young, 515. Humbert v. Brisbane, 86, 93. Humble v. Hunter, 199, 360, 522. V. Mitchell, 100. Hume V. U. S., 206. Humphrey v. Merriam, 229, 230, 232. Humphreys v. Railroad Co., 392. Hunkins v. Hunkins, 94. Hunt V. Bate, 137. V. Brown, 491. V. Douglass, 511. V. Gray, 482, 483. V, Hecht, 103. V. Higman, 26. V. Hunt, 303. V. Jones, 97. V, Knickerbacker, 261. V, Lipp, 93. V. Livermore, 403. V, Mann, 362. V. Peake, 151, 154, 163, V. Rabitoay, 185, V. Rousmanier, 206, 527-529. V, Shackleford, 369, V. Silk, 545. Hunter v. Anthony, 405. V. Giddings, 522. V. Mills, 94. V. Nolf, 283. V. Parker, 506. 600 CASES CITED. [The figures refer to pages.] Hunter v. Tolbard, 186. V. Walters, 197. V. Warner, 442. V. Wetsell, 104. Hunter's Adm'rs v. Miller's Ex'rs, 403.^ Hunting v. Downer, 469. V. Emmart, 367. Huntington v. Knox, 200. Huntley v. Mathias, 513. Hurd V. Bovee, 395. V. Dunsmore, 487. V. Hall, 469. Hurley v. Scbring, 426. Hurlock V. Smith, 420. Hurst V. Litchfield, 295. Hurt V. Ford, 70, 97. Huscombe v. Standing, 245. Hussey v. Horne-Payae, 28. V. Jewett, 163. V. Kirkman, 496. Husted V. Craig, 464. Hustis V. Pickards, 264. Hutchen v. Gibson, 286. Hutchins v. Hehbard, 58, 527. Hutchinson v. Bouers, 515. V. Heyworth, 367. V. Hutchinson, 78. Hutley V. Hutley, 292, 297-299. Hutton V. Warren, 396. Hutton Bros. v. Gordon, 72. Hutzler v. Lord, 534. Huyett & Smith Mfg. Co. v. Chicago Edison Co., 473. Hyatt V. Clark, 505, 506. Hyde v. Wrench, 28, 29, 36, 37 Hydeville Co. v. Slate Co., 425. Hyer v. Hyatt, 160, 290. v. Traction Co., 290. Hynds v. Hays, 322. Hypes V. Griffin, 85, 520. Hysell V. Mfg. Co., 473. ! Ide V. Stanton, 85. Ihley V. Padgett, 166. Ilderton v. Ilderton, 344. Illinois V. Railroad Co., 440. Illinois Cent. R. Co. v. Cabinet Co., 412. V. Cobb, 487. Illinois Land & Loan Co. v. Bonner, 163. Illinois Land & Loan Co. v. Speyer, 299. Illinois Masons' Benevolent Soc. v. Baldwin, 398. Ilsley V. Jewett, 141. Imperial Land Co. of Marseilles, In re, 25. Imperial Loan Co. v. Stone, 37, 184. Indiana Mfg. Co. v. Hayes, 16. Indianapolis Cabinet Co. v. Herr- mann, 45. Indianapolis, D. & S. R. Co. v. Er- vin, 289. IndianapoUs, D. & W. R. Co. v. For- sythe, 319. Indianapolis, P. & C. R. Co. v. Tyng, 229. Indianapolis W^ater Co. v. Nulte, 375. Ingersoll v. Martin, 130, 491. Inglebright v. Hammond, 399. Ingraham v. Baldwin, 181, 183. Ingram v. Ingram, 356. Inhabitants of Bernards Tp. v. Steb- bens, 52. Inhabitants of Garland v. Reynolds, 516. Inhabitants of Industry v. Starks, 297. Inhabitants of Middlefield v. Knitting Co., 375. Inhabitants of Town of Montville v. Haughton, 52. Inhabitants of Township of Borden- town V. Wallace, 245. Inhabitants of West Cambridge v. In- habitants of Lexington, 344. International Bldg. & Loan Ass'n v. Abbott, 271. International G. N. R. Co. v. Daw- son, 288. Inter-Ocean Pub. Co. v. Associated Press, 315. lonides v. Insurance Co., 202. V. Pender, 214. Iowa Savings & Loan Ass'n v. Heidt, 271, 274. Iredell v. Barbee, 404. Ireland v. Geraghty, 54. Iron City Tool Works v. Long, 534. Iron Works v. Douglas, 36. Irvine v. Irvine, 153, 164, 169. V. McKeon, 58. V. Watson, 521, 523. Irvine's Heirs v. Crockett, 163. CASES CITED. [The figures refer to pages.] 601 Irwin V. Lombard University, 118, iiy. V. University, 118. V. Willlar, 276, 278-280, 342, 396. V. Wilson, 203. Isham V. Post, 111. Isherwood v. Whitmore, 442. Isom V. Johns, 537. Iverson v. Oirkel. 97. Ives V. Bosley, li.'6. V. Carter, 227. V. Hazard, 89. V. Jones, 259, 327. V. Tregent, 22. Ivory V. Michael, 481. J Jack y. Davis, 369. Jackson v. Badger, 505. V. Bank, 331. V. Burke, 438. V. Cassidy, 271. V. Collins, 227, 228. V. Duchaire, 257. V. Emmens, 514. V. Gager, 389. V. Gardner, 406. V. Hodges, 236. V. Hough, 537. V. Insurance Co., 466. V. Jackson, 344. V. Johnson, 483. V. McLean, 337. V. May, 274. V. Murray, 534. V. Myers, 95. V. Parkhurst, 57. V. Sheldon, 389. V. Stackhouse, 403, 491. V. Travis, 271. y. Tupper, 104. V. Vanderheyden, 188. Jackson Ins. Co. v. Partee, 528. Jackson Iron Co. v. Concentrating Co., 80. Jackson Steei Nail Co. v. Marks, 280. Jacksonville M. P. Ry. & Nav. Co. v. Hooper, 53, 472. Jacobs, In re 260. V. Moseley, 74. V. Railroad Co., 94. V. Tobiason, 291. Jacquinet v. Boutron, 474. Jaeger's Sanitary Woolen Supply Co V. Walker, 364. Jaffray v. Davis, 129, 13L Jaffrey v. Brown, 222. James v. Adams, 444, 447. V. Allen Co., 526. V. Darby, 28. V. Jellison, 303, 323. V. M'Credie, 515. V. Mayrant, 191. V. Morey, 65. V. Morgan, 134. V. Newton, 366. V. Patten, 89. T. Roberts, 241. V. Steere, 217. James' Estate, In re, 110. Jameson v. Carpenter, 337. Jamieson v. Wallace, 278, 342. Jamison v. Culligan, 184. V. Dimock, 94. Janin v. Brown, 477. Janis V. Roentgen, 293. Janney v. Boyd, 398. Jansen v. Williams, 508, 510. Janvrin v. Exeter, 38. Jaqua v. Headington, 413. Jaques v. Methodist Church, 190. Jaquith v. Hudson, 413. Jarvis v. Peck, 312. Jeane v. Grand Lodge, 296. Jefferson v. Asch, 357. V. Church of St. Matthew, 437, 438. Jefferson Co. Bldg. Ass'n v. Heil, 54. Jeffery v. Undenvood, 52. V. W^alker, 95. Jefferys v. Gurr, 92. Jefford v. Ringgold, 163. Jeffrey v. Bigelow, 224, 514, 523. Jeffries v. Fei-guson, 385. Jefts V. York, 517. Jell V. Douglas, 382. Jellett V. Rhode, 81. Jenkins v. Atkins, 528. V. Bradford, 298. V. Frink, 259. V. Hall, 303. v. Hutchinson, 517. V. Long, 429. V. Pye, 248, 251, 253. V. Trager, 74. 602 Jenks V. Fritz, 208. Jenners v. Howard, 180. Jenness v. Irou Co., 36. V. Lane, 126, 131. V. Parker, 470. Jennings v. Chase, 126. V. Lyons, 476, 550. V. McConnel, 248, 249. V. Randall, 176, 177. Jerome v. Bigelow, 257. Jervis v. Berridge, 3^3. Jessel V. Insurance Co., 363. Jett V. Hempstead, 508. Jewett V. Black, 409. V. Smith, 378. Jewett Pub. Co. v. Butler, 259. J. G. Wagner Co. v. Cawker, 412. J. I. Case Threshing Mach. Co. v. Smith, 89. Jilson V. Gilbert, 77. Joannin v. Ogilvie, 540. Joest V. Williams, 187. Jolm V. John, 114. John PritzlafE Hardware Co. v. Berg- hoefer, 460. Johns V. Fritchey, 186. V. Wilson, 354. Johnson v. Chadwell, 179. V. Cummins, 190, 191. V. Cunningham, 511. V. Dodgson, 83. V. Fall, 276. V. Farley, 53. V. Gallagher, 190. V. Harvey, 534. V. Heagan, 480. V. Hubbell, 218. V. Hulings, 264. V. Hurley, 502. T. Insurance Co V. Jacobs, 23. V. Lines, 156, 157, 159. V. McLane, 236. V. Moore, 479. V. Packet Co., 533, 534, V. People, 267. V. Pie, 177. V. Seymour, 225, 234. V. Smock, 441. V. Stoddard, 398. V. Stone, 501. V. Storie, 166. V. Travis, 488. V. Wallower, 224. CASES CITED. [The figures refer to pages.] Johnson v. Wilkinson, 76. V. Youngs, 526. Johnson's Adm'r v. Hunt, 303, 492. V. Railroad Co., 20, 34, 319. V. Seller's Adm'r, 129. Johnson's Ex'x v. Jennings' Adm'r, 542, 545. Johnston v. Bowersock, 78. V. Dahlgren, 264. V. Dickson, 335. V. Insurance Co., 369. V. Jones, 91. V. McConnell, 264. V. Miller, 278. V. OUver, 58. V. Patterson, 199. V. Russell, 276. V. Trask, 99, 426. V. Trippe, 120. v. Wadsworth, 87, 489. Johnstone v. Mappin, 73. V. Milling, 446. Johnston Harvester Co. v. McLean, 480, 483. John V. Farwell Co. v. Hilton, 238. Joice V. Taylor, 218. Jonassohn v. Young, 454. Jones V. Anderson, 397. V. Bacon, 70. V. Bank, 154, 331. V. Benedict, 438. V. Blocker, 350. V. Brewer, 152. V. Brown, 295. V. Christian, 238. V. Colvin, 157. V. Daniel, 28. V. Daunenberg Co., 294. V. Davis, 89. V. Degge, 116. V. Dow, 84, V. Edney, 216. V. Flint, 76. V. George, 463. V. Grantham, 42G. V. Hake, 272. V. Harris, 526. V. Hart, 516. V. Hoar, 549. V. Johnson, 478. Y. Judd, 474, 550. V. Just, 4G3. V. Llo,yd, 248, 249. V. Perkins, 131, 191, 266, 492, 704. 172, 174. Jones V. Pouch, 77. V. Randall, 345. V. Reynolds, 101. V. Risley, 128. V. Rittenhouse, 122. V. Ryde, 4(>9, 545. V. Shale, 279. V. Stanly, 350. V. Thomas, 356. V. Turner, 244, 245. V. Tye, 86. V. U. S., 217, 410, 439, 462, 472, 473. V. Williams, 50, 437. V. Wilson, 130. Jones Adm'r v. Perkins, 180. Jones & Hotchkiss Co. v. Davenport, 431. Jordan v. Coffield, 156. V. Davis, 54. V. Dayton, 264. V. Miller, 78. V. Norton, 28. V. Osgood, 222. V. Parker, 239. V. Thornton, 371. Josling V. Kingsford, 463. Joslyn V. Parlin, 364. Joy V. St. Louis, 403, 405. Judd V. Harrington, 313. V. Weber, 232. Judkins v. Walker, 175. Judson V. Corcoran, 370. Judy V. Louderman, 114. Juilliard v. Chaffee, 392. Jump V. Johnson, 346. Junkans v. Bergin, 50. Justice V. Lang, 89, 105. Juzan V. Toulmin, 221. K Kadish V. Young, 444, 446. Kafes V. McPherson, 367. Kagel V. Totten, 198. Kahn v. Walton, 280, 342. Kalmbach v. Poote, 537. Kamena v. Huelbig, 369, 370. Kane v. Hood, 452. Kansas City, M. & B. R. v. Robertson, 366. Kant V. Rice, 295. Kantrowitz v. Prather, 190. Katz y. Bedford, 431. CASES CITED. 608 [The figures refer to pages.] Katz V. Moessinger, 141. Kauffman v. Raeder, 450. Kaufman v. Bank, 356. v. Mfg. Co., 45. Kayton v. Barnett, 519. Keadle v. Siddeus, 69. Kean v. Davis, 520. Keane v. Boycott, 150, 162. Kearley v. Thomson, 338. Kearney v. Taylor, 259. Kearon v. Pearson, 472. Keasley v. Thomson, 339. Keates v. Lord Cadogan, 221. Keating v. Price, 216, 218. Keeble v. Cummins, 179. V. Keeble, 412. Keedy v. Long, 430. V. Moats, 55. Keefer v. Zimmerman, 478. Keeler v. Clifford, 433. V. Herr, 431. V. Taylor, 307. Keen v. Beckman, 59, 394. Keene v. Sage, 355. V. Weeks, 483. Keener v. Crull, 141. Keenholts v. Church, 542. Keep V. Goodrich, 118, 119. Keesling v. Frazier, 70. Keffer v. Grayson, 60, 126. Kehoe v. Patton, 357. Keidan v. Winegar, 520. Keighler v. Mfg. Co., 510. Keighley v. Watson, 415. Keightley v. Watson, 383. Kein v. Tupper, 16. Keir v. Leeman, 293. Keiser v. Decker, 273. Keith V. Goodwin, 481. v. Miles, 128. V. Optical Co., 307. Keller v. Ashford, 354, 358. v. Holderman, 41. V. Orr, 229. y. Ybarru, 42, 45. Kelley v. Caplice, 252. V. Davis, 159, 548. V. Insurance Co., 134. V. Railroad Co., 505, 508. Kellogg V. Krauser, 368. V. Olmstead, 126. V. Richards, 131. V. Robinson, 375. Kellogg Bridge Co. v. Hamilton, 463. 604 Kelly, In re, 39. V. Bliss, 419. V. Bradford, 432. T. Roberts, 357. V. Solari, 208, 543. Kelner v. Baxter, 504. Kelsea v. Mfg. Co., 23. Kelsey v. Hobby, 242. Kemble v. Farren, 412, 414. Kemmitt v. Adamson, 274. Kemp V. Fender, 534. V. Hurophrey, 409. V. Pryor, 499. V. Walker, 54. Kempuer v. Cohn, 26, 31, 34. Kemp's Ex'r v. McPherson, 369. Kendall v. Hamilton, 380. V. May, 181. V. West, 428. V. Wilson, 228. Kendrick v. Niesz, 141, 151, 167-169. Kennebec Co. v. Augusta Ins. & B. Co., 893. Kennedy v. Baker, 109. V. Brown, 139. V. Ehlen, 90, 500. V. Insurance Co., 537. V. Owen, 376. V. Panama, etc., Co., 218. V. Poor, 460. V. Roberts, 241. Kennemore v. Kennemore, 95. Kenner v. Harding, 222. Kennerty v. Etiwan Co., 197. Kensington, The, 345. Kent V. Bornstein, 516. V. Carcaud, 218. V. Kent, 77, 78. V. Rand, 141. Kentucky v. Bassford, 344. Kenyon v. Ass'n, 435. Kepner y. Keefer, 266. Keppell V. Bailey, 376. Kerfoot v. Hyman, 510. Kerkhof v. Paper Co., 104. Kerns v. Hagenbuchle, 304. Kerr v. Brunton, 297. V. Hill, 76. Kershaw v. Kelsey, 147. Kerwin v. Doran, 343. Kessler v. Smith, 105. Kessler's Estate, In re, 74. Ketchum v. Catlin, 201. r. Evertson, 552. CASES CITED. [The figures refer to pages.] Kettle R. R Co. V. Railway Co., 373, 377, 540. Keuka College v. Ray, 118, 119. Keyes v. Allen, 69. Kidder v. Blake, 323. V. Kidder, 419, 491. V. NoiTis, 437. Kidney v. Persons, 538. V. Stoddard, 222. Kiersted v. Railroad Co., 521. Kiewert v. Rindskopf, 538, 539. Kihlberg v. U. S., 460. Kilcrease v. Johnson, 345. Kilgore v. Rich, 156, 158. Kilkelly v. Martin, 479, 481. Killmore v. Hewlett, 76. Kilmer v. Smith, 208. Kimball, The, 43G. V. Bangs, 227. V. Cuddy, 179. V. Morton, 489. V. Noyes, 358. Kimball & Austin Mfg. Co. v. Vroman. 428. Kimbrough v. Lukins, 273. Kirae v. Brooks, 500. Kimmell v. Skelly, 229. Kincaid v. School Dist, 441. Kindig v. March, 527. Kine v. Turner, 290. King V. Bushnell, 96. V. Oummings, 179. V. Doolittle, 200. V. Duluth, 460. V. Faist, 420. V. Finch, 441. V. Fleming, 269. V. Gillett, 419. V. Hoare, 3S0, 415. V. Holbrook, 401. V. Kaiser, 74. V. Kersey, 448. V. King, 303, 323, 324. V. Mackellar, 505. V. Railway Co., 128. V. Warfield, 21. V. Welcome, 96, 553. V. Wight, 375. V. Wood, 86. V. Woodbridge, 487. V. Woodruff, 16. Kinghorne v. Telegraph Co., 42. King Iron Bridge & Mfg. Co. ▼. Louis, 409. St CASES CITED. [The figures refer to pages.] !695 Kingman v. Relnemer, 229. Kingmau & Co. v. Stoddard, 235. King of Prussia v. Kueppor, 146. King Phillip Mills v. Slater, 455. Kingsbury v. Burrill, 366. V. Kirwan, 278. V. Sargent, 244. Kingsley v. Davis, 522, 523. V. White, 103. Kingston Bank v. Eltinge, 543. Kinney v. Ass'n, 295. V. McDermott, 269. V. RaUroad Co., 16. Kinsley v. Norris, 503. Kintzing v. McElrath, 224. Kirby v. Harrison, 409. Kirk V. Hartman, 525. Kirkham v. Marter, 67. Kirkland v. Benjamin, 293. V. Randon, 276. Kirkpatrick v. Adams, 342. V. Gallagher, 18. V. Puryear, 435. V. Reeves, 230. V. Stainer, 517. V. Taylor, 108. Kirksey v. Kirksey, 40. Kitchen v. Lee, 172. Kitzinger v. Beck, 368. Klapp V. Kleckner, 384. Kleckley v. Leyden, 261. Klee V. Grant, 33. Kleeman v. Frisbie, 369. Kleinsorge v. Rohse, 401. Kline v. Bank, 520. V. Beebe, 166. V. L'Amoreux, 157, 159. V. Ragland, 440. Knapp V. Alvord, 529. V. Hoyt, 141. V. Insurance Co., 358. Knappen v. Freeman, 230. Knevals v. Blauvelt, 366. Knight V. Abbott, 441. V. Cooley, 41. V. Lee, 343, 346. V. McKinney, 495. V. Mann, 101. V. Sawin, 29T. V. Worsted Co., 465. Knisely v. Shenberger, 404. Knott V. Tidyman, 250. Knowlton v. Keenan, 225. V. Spring Co., 338. Knox V. Flack, 154. V. Hang, 1S2. V. Martin, 297. Knox Rock Blasting Co. v. Stone Co., 413. V. White, 335. Koch V. Roth, 437. v. Williams, 96, 55S. Koehler v. Buhl, 428. Kohl V. Lindly, 222. Kohn V. Melcher, 328. Koontz V. Bank, 543, Kopp V. Reiter, 91. Korne v. Korne, 123. Kountz V. Price, 269, 270. Kowalke v. Light Co., 203. Kozel V. Dearlove, 90. Kraker v. Byram, 157. Kramer v. Old, 309. Kranich v. Sherwood, 390. Krause v. Busacker, 230, Krebs v. O'Grady, 190. Kreitz v, Behrensmeyer, 147. Kribben v. Haycraft, 286. Kriete v. Myer, 85. Kriger v. Leppel, 96, 553. Kroeger v. Pitcaim, 518, 524. Krohn v. Bantz, 89. Kromer v. Heim, 491. Kronschnabel-Smith Co. v. Kronscbua- bel, 307. Kruschke v. Stefan, 241. Kuecken v. Voltz, 404, Kuhns V. Gates, 269. Kulen Kemp v. Vigne, 277. Kullman v. Greenebaum, 257, 258, Kunkel v. Wherry, 412, Kyger v. Sipe, 162. Kyle V. Fehley, 401. V. Kavanagh, 202, 203. Kyner v. Boll, 207. Laclede Bank v. Schuler, 370. Lacy V. Getman, 378. V. Green, 404. V. Plxler, 106, 109, 173, 177. Ladd V. Dillingham, 324. V. Hildebrant, 505. V, King, 427. V. Rogers, 269. La Du-King Mfg. Co. v. La Du, 91. 606 CASES CITED. [The figures refer to page*.] Lafferty v. Jelley, 208. Laflin v. Howe, 54G. Laflin & Rand Powder Co. v. Sin- sheimer, 520. Lagerfelt v. McKie, 65. Lagoada Nat. Bank v. Portner, 335. Laidlaw v. Organ, 205, 221, 223, 224. Lakeman v. Pollard, 476, 477, 550. Lake Shore & M. S. R. Co. v. Spang- ler, 319. Lakeside Land Co. v. Dromgoole, 40. Lamare v. Dixon, 218. Lamb v. Crafts, 98, 100. V. Henderson, 398. V. Lathrop, 440. Lambert v. Heath, 4G9, 546. Lamberton v. Dunham, 230. Lamine v. Dorrell, 537. Lamkin v. Mfg. Co., 83. L'Amoreux v. Gould, 119, 129. Lampleigh v. Braithwait, 138, 139. Lampman v. Cochran, 414. Lamprey v. Lamprey, 130. Lancaster v. Elliott, 23. Lancaster Nat. Bank v. Taylor, 372. Lancy v. Havender, 298. Landa v. Obert, 241. V. Shook, 476. Landers v. Bolton, 389. Landon v. Hutton, 419. Lane v. Corr, 518. V. Insurance Co., 274. V. Iron Co., 173. V. Ironmonger, 501. V. Shackford, 80, 92. V. Smith, 369. Langan v. Iverson, 80. Langdon v. Clayson, 169. V. Conlin, 292. V. Mayor, etc., 406. V. Richardson, 68. Langellier v. Schaefer, 30. liangenberger v. Kroeger, 482. Langevin v. St. Paul, 544. Langi-idge v. Levy, 231. Langton v. Hughes, 330. Lankton v. Stewart, 130. Lansden y. McCarthy, 360. Lansing v. Dodd, 412. V. Railroad Co., 165. Lanzit v. Mfg. Co., 308. Lapham v. Osborne, 552. Lapp V. Smith, 492. V.arkin v. Hardeubrook, 419. Larkin v. Lumber Co., 16. Larmon v. Jordan, 31, 33, 35. Larned v. Andrews, 261. Laroe v. Dairy Co., 492. Larsen v. Breene, 441. V. Johnson, 73. La Rue v. Gilkyson, 181. V. Groezinger, 364. Lash V. Parlin, 303. Latchford, Succession of, 271. Latham v. Hartford, 442. V. Udell, 247. Lathrop v. Bank, 505. V. Knapp, 118. V. President, etc., 296. Lattimore v. Harsen, 128. V. Simmons, 378. Lauer v. Lee, 418. V. Mercantile Inst, 83. Lavassar v. Washburne, 501^ Laverty v. Snethen, 509. Law V. Law, 283. V. Long, 170. V. Stokes, 513, 514. Lawing v. Rintles, 473. Lawrence v. Bank, 543. V. Cooke, 81. V. Davey, 128. V. Dole, 425. V. Fox, 356. V. Gayetty, 225. V. Kidder, 115. V. McCalmont, 113, 407. V. IMiller, 425, 462. V. Oglesby, 108. V. Railway Co., 22, 29. V. Willis, 179. Lawrence's Lessee v. McArter, 154. Lawson v. Hogan, 421. V. Lawson, 537. V. Lovejoy, 168. Lawson's Ex'rs v. Lawson, 530. Lawton v. Blitch, 278. Layman v. Conroy, 247. Leach v. Nichols, 198. V. Tilton, 471. Leacox v. Griffith, 166. Leake v. Ball, 69. Leatherberry v. Odell, 430. Leather Cloth Co. v. Hieronimus, 427. Leavitt V. Investment Co., 407. V. Palmer. 322. V. Sizer, 230. V. Stern, 424. CASES CITED. 607 Lebby v. Ahrens, 233. Lecomte v. Toudouze, 74. Ledbetter v. Davis, 228. V. McGhees, (>9. V. Walker, 500. Lee V. Adkins, 52, 53. V. Burnham, 235, 237. V. Butler, 88. y. Cberry, 45, 83, 88. V. Early, 437. V. Gaskell, 75. V. Griffin, 37, 99. V. Hawks, 426. V. Merritt, 537. V. Muggeridge, 108, 137, 141. V. Murdock, 4S0. V. Starbird, 481. V. Yandell, 185. Leeds V. Gifford, 439. y. Little, 431. Lee's Adm'r v. Hill, 79, 81. Leeson v. Anderson, 130. Leete v. Mining Co., 406. Le Fevre v. Le Fevre, 425. Lefferts v. Weld, 410. Legge V. Harlock, 412. Le Grand v. Bank. 222, 238. Le Grange's Lessee v. Ward, 50. Legro V. Staples, 362. Lehigh Coal & Nav. Co. v. Brown, 540. V. Mohr, 528. Lehigh Valley Coal Co. v. Curtis, 31. Lehigh Valley R. Co. v. Woodring, 365. Lehman v. Feld, 342, 343. 517. Lehmann v. Schmidt, 549. Leighton v. On-, 250. Leman v. Randall, 96. Lemans v. Wiley, 544. Lemmon v. Beeman, 150, 172, 173. Lenhart v. State, 150. Lennon v. Napper, 409. Lennox v. Murphy, 23. 24. Lente v. Clarke, 86. Lenz V. Brown, 45. Leonard v. Barker, 494. V. Davis, 103. V. Dyer, 457. V. Hughlett, 58. Y. Leonard, 182. V. Medford, 76. V. Patton, 273 V. Phillips, 480. V. Poole, 313. Leopold V. Salkey, 475. [The figures refer to pages.] Leppla V. Mackey, 373. Leppoe V. Bank, 55. Lerch v. Gallop, 70. Lerned v. Johns, 84. V. Wanemacher, 82. Leroux v. Brown, 91, 97. Leskie v. Haselstine, 42., Leslie V. Casey, 461. V. Lorillard, 289. Lester v. Bank, 260. v. Buel, 278. V. Heidt, 85. Lesure Lumber Co. v 295. Leverenz v. Haines, 121. Leverick v. Meigs, 515. Levering v. Heighe, 163. Levey v. Allien, 274, 275. T, Railroad Co., 45. Levi V. Marsha, 190. Levy V. Cohen, 25. V. Ford, 423. v. Spencer, 302. Lewis v. Alexander. 331. V. Arbuckle, 180. V. Bannister, 245. Insurance Co., V. Brass, 43. V. Brehme, 516. V. Bright, 263. V. Broun, 298. V. Browning, 27. V. Bruton, 339. V. Insurance Co.. 214, 488, 526. V. Kerr, 528. V. Kramer, 480. V. Lee, 189. V. Littlefield, 276. V. Nicholson, 517. V. Payn, 482. V. Prather, 91. V. Railroad Co.. 460. V. Rountree, 463, 467. v. Sawyer, 355. V. Tapman, 72, 447. v. Tappan, 81. V. Welch, 261, 265. V. Wllloughby, 390. V. Wood, 84. Lewis' Ex'rs v. Overby's Adm'rs, 53. Lexington Fire, Life & Ins. Co. T. Paver, 214. i Libby v. Robinson, 587. j Lieberman v. Brothers, 380. 1 Liening v. Gould, 130. 608 CASES CITED. [The figures refer to pages.] Lightbody v. Insurance Co., 514. Lightfoot V. Tenant, 330. Lighthall v. Moore, 243. Lillie V. Doinbar, 76. V. Hoyt, 508. Lilly V. Tobbein, 850. v. Waggoner, 180. Lillywhite v. Devereux, 103. Lincoln v. Buckmaster, 183, 184. V. Granite Co., 412. V. Preserving Co., 41. Lindell v. Rokes, 114. Lindley v. Groff, 403. V. Hofman, 198. V. Lacy, 394. Lindsay v. Mattliews, 442, V. Smith, 324. Undsay Pet. Co. v. Hurd, 225. Lindsey's Appeal, 18. Lindsley v. Railroad Co., 429. Liness v. Hesing, 291. Lining v. Geddes, 489. Liniuger & Metcalf Co. v. Wheat, 24. Linington v. Strong, 228, 494. Link V. Clemmens, 266. Linn v. Sigsbee, 115, 307, 311. Linneman v. Moross' Estate, 353, 355, 422. Linton v. Insurance Co., 272. Lipp V. Hunt, 94. Lipscomb v. Lipscomb, 392. Lipsmeier v. Vehslage, 122. Liska V. Lodge, 197. Lisle V. Rogers, 480. Lister v. Allen, 514. Litchfield v. Garrett, 422. V. Hutchison, 230. Llthgoe V. Vernon, 539. Litt V. Maitindale, 539. Little V. Bank, 362. V. Blunt, 141. V. Dougherty, 83. V. Edwards, 71. V. Little, 197. V. Martin, 552. , V. Mills, 335. Littlefleld v. Bank, 309. Little Rock & Ft. S. R. Co. v. Cra- vens, 244. Litton V. Baldwin, 190. Ljtz V. Goosling, 33. Liverpool Adelphi Loan Ass'n v. Fair- hurst, 189. Liverpool & G. W. Steam Co. v. In- surance Co., 346. Liversidge v. Broadbent, 363, 422. Livingston v. Insurance Co., 219. V. Iron Co., 215. V. Page, 291. v. Railli, 295. Lla nelly Ry. & Dock Co. v. Railroad Co., 495. Lloyd V. Fulton, 72. V. Jewell, 470. V. Keach, 271. Y. Scott, 272, 274. Lobdell V. Baker, 514. Lobenstein v. U. S., 120; Locke V. Smith, 160. V. Stearns, 524. Lockhart v. Hullinger, 291. Lockwood V. Coley, 520. V. Fitts, 225, 227, 236. V. Bobbins, 16. Lodge V. Dicas, 380. V. Hulings, 122. Loeb V. Drakeford, 511. Loeffel V. Pohlman, 239. Loewer v. Harris, 232. Logan V. Gardner, 153. V. Plummer, 59. V. Trayser, 385, 534. V. Wallis, 549. Logan County Nat. Bank v. Town- send, 194, 505. Lombard v. Cobb, 416. Lomerson v. Johnston, 223, 245. London Assm*ance v. Mansel, 215. London & N. Bank, In re, 27. London & N. W. R. Co. v. Price, 193. London & S. F. Bank v. Parrott, 407. Lonergan v. Buford, 243. Long V. Caft'rey, 450. V. Davidson, 397. V. Fox, 186. V. Hartwell, 427. v. Miller, 88. V. Mulford, 250. v. State, 280. V. Towl, 124, 308. V. Warren, 228. Long-Bell Lumber Co. v. Stump, 407. Long Champs v. Kenny, 535. Longley v. Griggs. 385, 534. Longridge v. Dorville, 122. Lougworth V. Mitchell, 30. CASES CITED. G09 Phos- Lonsdale v. Brown, 138, 140. Loomis V. Insurance Co., 277, 278. V. Newhall, 322. V. O'Neal, 538. V. Simpson, 511, Lord V. Goddard, 230. V. Thomas, 446. V. Wheeler, 473, 475. Lord Bolton v. Tomlin, 65. Lorenzen v. Investment Co., 233. Lorillard v. Clyde, 356, 405. Loring v. Boston, 31, 36, 38, 30. V. Cooke, 442. Loser v. Board, 285. Loud V. Water Co., 451, 453. Loudenback Fertilizer Co. v. phate Co., 120. London Sav. Fund Soe. v. Bank, 513, 514. Loughborough v. McNevin, 442. Louisville Asphalt Varnish Co. v. Lor- ick, 83. Louisville, N. A. & C. R. Co. v. Good- bar, 364. V. Sumner, 288. Louisville, St. L. & T. R. Co. v. Nea- fus, 391. Louisville & N. R. Oo. v. Cooper, 229. V. Dies, 319. V. Grant, 319. V. Orr, 319. V. Philyaw, 92. Love v. Buckner, 282. V. Harvey, 276. V. Moynehan, 188. V. State, 242. V. Welch, 80. V. Wells, 268, Lovejoy v. Hovre, 357. V. Isbell, 228. V. Whipple. 269. Lovell V, Insurance Co., 449. V. Wall, 206. Lovelock V. Franklyn, 448. Lovering v. Lovering, 448. Low V. Andrews, 97, V. Forbes, 426, V. Hutchinson, 297. V. Low, 94. Lowber v. Bangs, 210, 451, 464, Lowe v. Bryant, 110. V, Hamilton, 70. V, Harris, 86. V, Peers, 303. Clakk Cont.(2d Ed.)— 39 [The figures refer to pages.] Lowe v. Sinklear, 175. Lower v. Schumacher, 183. Lowndes v. Chisholm, 207, 226, Lowrey v. Drake's Heirs, 171. Lowry v. Mehatfy, 452, V. Thompson, 145. Lozear v. Shields, 180. Lubbock V. Tribe, 535. Lubert v, Chauviteau, 538. Lucas V, Allen, 127. V, Bank, 490. V. Coulter, 221. V, Dixon, 82. V. Harper, 276, V, Tiu-npike Co,, 375. V. Waul, 335. Lucke V. Clothing Cutters, 350. I^uckens v. Hazlett, 275. Luddington v. Bell, 423. Ludlow V. Hardy, 138, 142. V. Simond, 53. V. Van Rensselaer, 345. Lufkin V. Mayall, 175. Lufkin. Rule Co. v. Fringeli, 308. Lukens v. Hazlett, 271. Lum V. McEwen, 302. Lumley v. Wagner, 490. Lumsden's Case, 161. Lundberg v. Elevator Co., 122, Lungstrass v. Insurance Co., 34. Lunt V. Stevens, 381. Lupton V. Freeman, 436. Luiton V. Gilliam, 383. Lusk V. Throop, 68. Lutz V. Linthicum, 517, V. Thompson. 451, 461. Luzader v. Richmond, 93. Lyford v. Railroad Co., 373, 375. Lyman v. Babcock, 414. V, Railroad Co., 288. V, Robinson, 42. Lynch v. Doran, 179. y. Mui'phy, 225. v. Rosenthal, 280. Lynn v. Bruce, 133, 491. Lyon V. Bertram, 469. V, Jerome, 511. Kent, 497. V, V. V. V. V. V. V, King, 79, Lenon, 393. Mitchell, 287. Respass, 331. Strong, 266. W^aldo, 333. 610 Lyons v. Hodgen, 279. Lytbgoe v. Vernon, 539. M McAdams' Ex'rs v. Stilwell, 389. McAleer v. Horsey, 226. McAllister v. Hoffman, 291, 339. V. Reab, 471. McAndrew v. Chappie, 466. McAnnulty v. McAnnulty, 72, 83. McAithur V. Board, 415. V. Luce, 543. V. Printing Co., 504. V. Sears, 429. McAvoy V. Long, 403. McBlair v. Gibbes, 337. McBratney v. Chandler, 285. McBrayer r. Cohen, 90. McBride v. Publishing Co., 229. McCabe v. Caner, 122. V. Gray, 369. McCall V. Nave, 132. V. Parker, 151. V. Price, 380. McCalla v. Mortgage Co., 506. McCall Co. V. Icks, 45, 120. McCall's Adm'r v. Capehart, 257, 297 McCaudless v. Steel Co., 127, 2&4. McOann v. Eddy, 320. McCants v. Bee, 249, 251. V. Wells, 511. McCarthy v. Ass'n, 128. V. Nash, 102. McCartney v. Shepard, 327. McCarty v. Iron Co., 170, 173, 17a McCaughey v. Smith, 481. McCaul V. Braham, 490. McCausland v. Ralston, 437. McClam v. Davis, 184, 186. McClair v. Wilson, 240, 244. McClanahan v. Williams, 170. McClatchie v. Haslam, 245. McClay v. Hedge, 462. McClellan v. Filson, 191. V. Kennedy, 122. V. Reynolds, 520. V. Robe, 422. Clelland v. Bank, 258. V. Rush, 426. Clun V. McClun, 181. Clung's Appeal, 115. r;iure V. Briggs. 4.32, 507. .V. Jefferson, 467. CASES CITED. £The figures refer to pages.] McClure v. Lewis. 250. V. McClure, 122. V. Otrich, 96. V. Railroad Co., 20. McClurg V. Terry, 41. McClurg's Appeal, 307, 311. McCollum V. Edmonds, 114. McComb V. Ass'n, 272. V. Wright, 515. McCombs V. McKennan, 42L McConahey v. Griffey, 78. McConihe v. McMann, 330. McConkey v. Barnes, 154. V. Oockey, 217. McCounell v. Brillhart, 84, 85. V. Kitchens, 261, 264. McConnico v. Curzen, 515. McCormick v. Basal, 444, 447, V. Dalton, 244. V. Holbrook, 191. T. Leggett, 164. V. Littler, 180, 181, 183. V. McCormick, 18. V. Malin, 250. McCormick Harvester Co. v. Miller, 242. McCormick Harvesting Mach. Co. v. Chesrown, 433. V. Richardson, 21. v. Wilson, 393. McCotter v. New York, 34. McCoy's Adm'rs v. Bixbee's Adm'r, 451. McCracken v. Harned, 31. V. San Francisco, 503, 504. McCrary v. McFarland, 399. McOrea v. Purmort, 58, 390, 537. McCreery v. Allender, 147. V. Day, 420, 425. McCrillis v. Allen, 200. V. Bartlett, 181, 187. V. How, IGO. McCroskoy v. Ladd, 452. I McCroy v. Torey, 81. McCulloch v. Insurance Co., 26. McCuIlough v. Ashbridge, 397. V. Day, 54. v. Hellwig, 396. McCuIlough Iron Co. v. Carpenter. 430. McCurdy v. Rogers, 517, 518. McOurry v. Gibson, 311. McCusker v. Spier. 400. McDonald v. Auideugarten, 274, 335. I I McDonald v. Dana, 395. V. r'lemiug, 301. V. Haughton, 302 V. Kneeland, 370, V. Longbottom, 395. v. Lund, 337. V. Lynch, 542. V. Magruder, 3S5, 534. V. Sargent, 151. V. Youngbluth, 95. McDonougli V. Marble Co., 453. V. Webster, 339. McDougal V. Dougherty, 441, McDowell V. Laev, 358. McEacheran v. Railroad Co., 320. McElfati'ick v. Hicks, 274. MacElree v. Wolfersberger, 77. McElroy v. Buck, 83. V, Ludlum, 80, 92. V. Seery, 84, 88. V. Sw'ope, 75. McElven v. Sloan, 109. McFadden v. Henderson, 409. McFarlaud v. Bank, 274. V. Sikes, 392. McFarlane v. Cushman, 494. McGan v. Marshall, 170. McGarren v. McNulty, 432. McGarvey v. Roods, 17. McGati-ick v. Wason, 267. McGee v. Craven, 74. McGibbons v. Wilder, 228. McGinn v. Tobey, 197, 198, 229, 249. McGinnis v. Fernaudes, 96. McGlynn v. Scott, 124. McGoren v. Avery, 545. McGovern v. Hern, 84. McGrath v. Cannon, 453. V. Clark, 479, 481. V. Gregner, 441. V, Merwin, 2G8. McGraw v. Solomon, 239. MacGreal v. Taylor, 173. McGregor v. Balch, 380. V. McGregor, 78. V. Railway Co., 540. McGrew v. Produce Exchange, 279. Machesney v. Brown, 521. Mclniffe v. Wheelock, 441. Mcintosh V. Johnson, 130. Mcintosh V. Zaring, 382. Mclntyre v. Kennedy, 436. V. Park, 506. V. Parks, 329. CASES CITED. 611 [The figures refer to pages.] McJiltou V. Love, 493. Mack V. Miller, VJ2. McKamy v. Cooper, 152, 168, 177. McKanna v. Merry, 156, 157, 159. Mackay v, Bloodgood, 500. McKee v. Jones, 343. McKeever v. Beacom, 260. McKenna, Ex parte, 280. V, Kii-kwood, 369. MacKensie v. Coulson, 401. V. Culbreth, 130, 131. V, Donuell, 184. V. Flannery, 273. V. Harrison, 130. V. Nevins, 508, 517. Mackerell v. Batchelor, 156, McKewan v. Sanderson, 258. Mackey v. Peterson, 198. V. Smith, 68. McKinley v. Irvine, 510. V. McGregor, 188. V. Watkins, 21, 119, 122, 124. McKlnnell v. Robinson, 330. McKinney v. Alvis, 422. V. Andrews, 330. V. Bradlee, 428. V. Harvie, 92, 552. McKinnis v. Estes, 268. McKinnou v. McEwan, 487. V. McKinnon, 75. V. Vollmar, 216, 524. Macklem v. Fales, 227. McKnight v. Dunlop, 102. MacKnight Flintic Stone Co. v. New- York, 460. McLanahan v. Insurance Co., 214, McLaren v. Hall, 501. Maclay v. Harvey, 27, 28, 31. McLean v. McBean, 110. McLellan v. Bank, 381. V. McLennan, 344. McLeod V. Barnum, 471. Maclure, Ex parte, 449, 553. McMahan v. Smith, 293. McManus v. Bank, 492. V. Boston, 83. V. Cooke, 93. McMaster v. Merrick, 438. McMasters v. Railroad Co., 398. McMichael v. Carlyle, 55, McMicken v. Safford. 123, McMillan v. Ames, 33, 59. V. Fox, 476. V. Harris, 258. 612 CASES CITED. [The figures refer to pages.] McMillan v. Page, 18. McMinn v. Ricbmouds, 160. McMullen v. Hoffman, 290, 322, 337. McMui-phy V. Garland, 424. McNair v. Toler, 148. McNairy v. Bell, 272. McNaughton v. Partridge, 58. McNeil V. Armstrong, 433. McNish V. Reynolds, 420, 426. Macomb v. Wilkinson, 31)1. McPherson v. Cox, 78, 244, 299. V. Robertson, 414. V. Ryan, 488. V. Watt, 510. McQuade v. Roseeranz, 323. McRaven v. Crisler, 483. McSliane v. Hazelhurst, 235. McSparran v. Neeley, 188. Mactier's Adm'rs v. Frith, 22, 26, 27, 30, 37. McVeigh v. U. S., 148. McWhinne v. Martin, 94. McW'illiam v. Webb, 362. Maddick v. Marshall, 514. Maddison v. Alderson, 93. Maddox v. Simmons, 179. Maddux t. Bevan, 131. Magee v. Lumber Co., 428, 433. V. Scott, 269. V. Welsh, 158. Magill V. Stoddard, 393. Magoon v. Reber, 241. Maguire v. ESchmeier, 483. V. Smock, 291. Mahana v. Blunt, 94. Mahler v. Newbauer, 441. Maine v. Railroad Co., 319. Main St. & A. P. R. Co. v. Traction Co., 128. Maitland v. Martin, 508. Majestic, The, 19. Makin v. Watkinson, 461. Malcomson v. W^apjwo Mills, 475. Mallan v. May, 59, 403. Mallon V. May, 324. Mallory v. Gillett, 69-71. y. Leach, 222. Mallory's Adm'rs v. Mallory's Adm'r, 72. Malone v. Philadelphia, 412. V. Railroad Corp., 20. Maloney v. Nelson, 339. Maltby v. Austin, 409. Manby v. Scott, 188. Manchester Paper Co. v. Moore, 395. Manchester & L. R. Co. v. Railroad Co., 194. Mandeville v. Harman, 310, 311. v. Welch, 366, 367. Mandlebaum v. Gregovich, 26L Maness v. Henry, 419. Mangles v, Dixon, 369. Manhattan Oil Co. v. Lubricating Co., 120. Mann v. Farnum, 19. Manning v. Gasharie, 505. V. Johnson, 153, 173, 177, 178. V. Riley, 73. V. Sprague, 299. Manor v. Pyue, 16. Manry v. Waxelbaum Co., 24. Mansfield v. Gordon. 162. V. Hodgdon, 33. T. Inhabitants, 399. V. Lynch, 544. V. Sherman, 490. V. Watson, 186, 187, 237. Mansfield & S. O. R. Go. v. Veeder, 402. Manter v. Churchill, 122. Manuel v. Wulff, 147. Manufacturers' Bank v. Follett, 480. Maple V. Railroad Co., 522. Maples v. Wightman, 153. Marble v. Oil Co., 43. Marble Co. v. Ripley, 490. Marble Sav. Bank v. Mesarvey, 356, 357. March v. Ward, 415. Marchant v. Hayes, 431. Marcy v. Marcy, SO. Marden v. Champlin, 83. ^laricle v. Brooks, 241. Marie v. Garrison, 258. Markland Min. & Mfg. Co. v. Kimmel, 407. Markle v. Hatfield, 435. Marquis v. Lam-etson, 393. Marr v. Shaw, 37. Marriuer v. Denuison, 233, 393. Man"yat v. Marryat, 58. Marschall v. Vineyard Co., 83. Marsh v. Chown, 137. V. Falker, 229. V. Garuey, 367. V. Gold, 327. V. Grithn, 479. V. Hyde, 102, 104. CASES CITED. [The figures refer to pages.] 613 Marsh v. Keating, 539. V. McPbersou, 467. V. Raiusford, 138. V. House, 102. V. Russell, 314. V. \Aebber, 224. Marshall v. Ferguson, 76. V. Gougler, 481. V. Green, 76. V. Lynn, 65. V. Marshall, 179. V. Perry, 39S, 399, 464. V. Railroad Co., 2S5. V. Rice, 271. V. Rutton, 188. Marshalltown Stone Co. v. Mfg. Co., 107, 121. Marston v, Bigelow, 355. V. Insurance Co., 390. Martendale v. Follett, 481. Martin v. Amos, 297. V. Batchelder, 79. V. Black, 124. V. Crump, 382. V. Deetz, 488. V. Drinan, 376. V. Dwelly, 188, 190. V. Flaharty, 56. V. Fuel Co., 28. V. Hall, 398. V. Hamlin, 478. V. Hudson, 31. V. Hunt, 476. V. Insurance Co., 482. V. McCormick, 207. V. Maynard, 398. V. Nixon, 122. V. Richardson, 369. V. Royster, 282. V. Shoenberger, 457. V. Smith, 197, 394, 52a V. Thomas, 481, 482. V. Veeder, 298. V. Wade, 283. Martindale v. Smith, 410. Martine v. lusm-ance Co., 476, 529. Martinsburg & P. R. Co. v. March, 460. Martus v. Houck, 550. Marvel v. Phillips, 378, 470. Marvin v. Inglis, 181. V. Marvin, 243. V. Treat, 40. Marx V, McGlynn, 249. Maryland Coal Co. v. Railroad Co., 403. Maryland Fertilizing & Mfg. Co. v. Ivorentz, 466. Mascolo V. Montesanto, 123, 242. lilaslin V. Hiett, 381. Mason v. Caldwell, 503. V. Campbell, 131, 138. 492. V. Douglas, 436. V. Eldred, 380,. 493. V. Hall, 356. V. McLeod, 341. V. Prendergast, 541. V. Taylor, 515. V. Wright, 150, 158. Massachusetts Gen. Hospital v. Fair- banks, 16, 181. Massachusetts Loan & Trust Co. v. Welch, 369. Massey v. Wallace, 301, 323. Masson v. Bovet, 236, 238. Master v. Miller, 363, 479. Masterson v. Howard, 147. Master Stevedore's Ass'n v. Walsh, 317. Mastin v. Marlow, 252. Masury v. Southworth, 373-376. Materue v. HorAvitz, 257. Mathews v. Cowan, 176. v. Toogood. 273. Mathis V. Thomas, 441. Matson v. Blosson, 275. V. Wharam, 67. Matteson v. Ellsworth, 483. V. Holt, 464. Matthews v. Baxter, 186, 187. V. Bliss, 222. V. Coe, 273. V. Milton, 67, 68. v. Paine, 343, 344. Matthiessen & Weichers Refining Co. v. McMahon's Adm'r, 183, 528. Mattingly v. Lewisohn, 494. Mattock v. Kinglake, 451, 452, V. Reppy, 237. Maurer v. Midway, 380, Maurin v. Fogelberg, 68. Maury v. Iron Co., 399. Maxfield v. West, 93. Maxwell v. Allen, 412. V. Brown, 101. V. Day. 423. V. Griswold, 244. V. Lee, 467. 6U May V. Crawford, 412. V. Flint, 274. V. Telegraph Co., 518. V. Ward, 85. V. Williams, 70. Mayer v. New York, 542. Maynard v. Hill, 7. V. Maynard, 224. V. Polhemus, 376. V. Tabor, 30. Mayor v. Schaub Bros., 455. Mayor, etc., of Alexandria V. Patten. 437. Mayor, etc., of Allegheny v. Railroad Co., 400. Mayor, etc., of New York v. Railroad Co., 406. Mayo's Ex'r v. Qirrington's Ex'r, 252. Mays V. Williams, 346. Meacham v. Dow, 283. V. Meacham, 74. Mead v. Bunn, 228. V. Hughes, 190. V. Parker, 86. V. Spalding, 501. V. Watson, 67, 68. Meadow v. Bird, 335. Meadows v. Meadows, 90. Mechanical Boiler Cleaner Co. v. Kell- ner, 100. Mechanics' & Traders' Nat. Bank v. Crow, 335. Mecorny v. Stanley, 122. Medbury v. Watrous, 175, 553. V. Watson, 227. Medrano v. State, 243. Meech v. Lee, 293. Meehan v. Shai-p, 101, 102. Meek v. Atkinson, 242. Meekins v. Newberry, 393. Meguire v. Corwine, 283, 287.^ Mehan v. Thompson, 436. Mehlhop V. Rae, 162, 166. Meigs V. Dexter, 55. Melcher v. Flanders, 389. Melchers v. Springs, 21. Melcholr v. McCarty, 265, 270. Mellish V. Robertson, 207. Mellon V. Davison, 86. Memphis & C. R. Co. v. Reeves, 420. Menage v. Rosenthal, 400. 407. Menkius v. Lightner, 179. Mentz V. Insurance Co., 295. V. Newitter, 84. CASES CITED. [The figures refer to pages.] Merchant v O'Rourke, 22, 114, Merchants' Bank v. Rawls, 537. v. Weill, 369. Merchants' Ins. Co. v. Prince, 400. Merchants' Nat. Bank v. Bank, 544. Merchants' & Farmers' Nat. Bank v. McElwee, 392. Merck v. Mortgage Co., 273. Meredith v. Crawford, 176. Meriden Britannia Co. v. Zingsen, 69. Meriwether v. Smith, 268. Meroney v. Ass'n, 344. Merriam v. Cunningham, 156, 158, 159, 177. V. Lumber Co., 356. V. U. S., 395. v. Wolcott, 469. Merrick v. Giddings, 129. V. Wiltse, 464. Merrick's Estate, In re, 517, 528. ~ Merrick Thread Co. v. Mfg. Co., 505. Merrill v. Downs, 268. V. Kenyon, 519, 521. V. Packer, 275. V. Peaslee, 304. V. Wilson, 237, 505. Merritt v. Bucknam, 257. v. Clason, 500. V. Gumaer, 179. Merry v. Lynch, 529. Merryfield v. Willson, 545. Merryman v. David, 510. Merryweather v. Nixan, 534. Mers V. Insurance Co., 119. Mersereau v. Lewis, 70. Mersey Steel & Iron Co. v. Naylor, 410, 455, 456. Mersman v Werges, 479, 481, Merwin v. Arbuckle, 230. Messer v. The Fadettes, 257. Messmore v. Cunningham, 85, 94. Metcalf v. Kincaid, 305. V. Williams, 520. Methven v. Power Co., 370. Metropolitan Ins. Co. v. McCoy, 58. Mette V. Feltgen, 175. Mettel V. Gales, 426. Meux V. Bell, 368. Newbum's Heirs v. Bass, 96. Meyer v. Dremer, 399. V. Estes, 380. V. Hartman, 70. V. Hownrth, 141, 188. V. Huueke, 483. CASES CITED. [The figures refer to pagea.] 615 Meyer v. Muscatine, 273. V. liicliards, 4Gi). Meyers v. Hockenbury, 122. Michael v. Bacon, 330. V. Jones, 512, 519. Michals v. Godts, 4(i3. Micliigan Bolt & Nut Co. v. Steel, 29, 120. Michigan Cent. R. Co. v. Coleman, 398. Michigan Cent. R. Co. v. Mfg. Co., 20. Michigan S. &, N. I. R. Co. v. McDon- ough, 429. Middlebury College v. Chandler, 156. Middlesex Water Co. v. Knappmann Whiting Co., 473. Middleton v. Hoge, 168. Mighell V. Dougherty, 100. Mihills Mfg. Co. v. Day, 487. Milberry v. Storer, 483. Miles V. Ass'n, 299, 300. V. Iron Co., 116. V. Lingerman, 175. V. New Zealand, etc., Co., 125. V. Ogden, 505. V. Schmidt, 295. V. Stevens, 203. Milks V. Rich, 71. Millard v. Barton, 198. V. Hewlett, 176. Mill-Dam Foundry v. Hovey, 466. Miller v. Ammon, 260. V. Baker, 76. V. Ball, 94. V. Bryden, 243. V. Covert, 493. V. Craig, 204. V. Douville, 32. V. Edgerton, 390. V. Bldredge, 96. V. Elliott, 311. V. Finley, 186, 481. V. Fletcher, 56. V. Gilleland, 480. V. Goddard, 462. Y. Hirschberg, 326. V. Kendig, 44. V. Lynch, 69. V. Marckle, 337. V. Miller. 240, 243, 304, 439, 538. V. Minor, 246. V. Moore, 398. V. Post, 261, 263. V. Reed, 480. Miller v. Simonds, 250. V. Sims, 161, 102. V. Smith, 156, 173. V. Way, 520. V. Wilson, 97. Millerd v. Thorn, 423. Milliken v. Barrow, 147. Million v. Ohnsorg, 298. Mills V. Bank, 398. V. Guardians of the Poor, 542. V. Mills, 285. V. Williams, 267. V. Wyman, 109, 138, 140, 142. Millsaps V. Bank, 421. Mills Pub. Co. V. Larrabee, 145. Miln V. Patty, 437. Mllues V. Duncan, 542. Milroy v. Iron Co., 366. Milwaukee Masons' & Builders' Ass'n V. Niezerowski, 313, 318. Milwaukee & St. P. R. Co. v. Railroad Co., 299. Minard v. Mead, 841. Miner v. Lormau, 496. Minett v. Forrester, 527. Ming V. Corbin, 453, V. Wolfolk, 232. Minis V. Nelson, 398, 400. Minneapolis Land Co. v. McMillan, 112. Minneapolis & St. L. Ry. Co. v. Mill Co., 28, 29, 36. Minnesota Linseed Oil Co. v. Lead Co., 26, 27, 31. Minnesota Lumber Co. v. Coal Co., 45, 120. Minock v. Shortridge, 153, 160, 162. Minor v. Sharon, 224. Minshull v. Oakes, 374. Minturn v. Main, 515. Minzesheimer v. Doolittle, 337. Miskey's Appeal, 248. Misner v. Knapp, 277. Missisquoi Bank v. Sabin, 117. Mississippi & D. S. S. Co. v. Swift, 43. Mississippi & T. R. Co. v. Green, 474. Missouri Pac. R. Co. v. Railroad Co., 21. Mitchel V. Reynolds, 306. Mitchell V. Beck, 71. V. Dougherty, 295. V. Hawley, 491. V. Homfray, 250. V. Kingman, 179. G16 CASES CITED. [The figures refer to pages.] Mitchell V. McDougall, 216, 223. V. Merrill, 440. V. Railton, 200. V. Reynolds, 306. Mitcbell V. Scott, 265. V. Vance, 283. V. Wedderburn, 407. Mitcbell's Lessee v. Ryan, 54, 55. Mitcliinson v. Hewson, 151. Mitteuthal v. Mascagnl, 295. Mitts V. McMoran, 69. Mixer v. Howartb, 100. V. Sibley, 148. Moale V. Hollins, 478. Mobberly v. Mobberly, 394. Mobile Sav. Bank v. McDonnell, 390. Mobile & M. R. Co. v. Jurey, 393, 404, 575. Mobray v. Leckie, 414. Moffett Hodgkins & Clarke Co. v. Rochester, 206, 401. Mohler v. Carder, 216. Mohney v. Evans, 159. Mohr V. Miesen, 278, 280, 334, 342. V. Tulip, 182. Moley V. Brine, 154. Moline Milburn Co. v. Franklin, 233. Moloney v. Nelson, 339. Molton V. Camroux, 183. Monarch Cycle Mfg. Co, v. Wheel Co., 410, 456. Moncrieff v. Goldsborough, 258. Mondel v. Steel, 469. Monmouth Park Ass'n v. Iron Works, 412. V. Warren, 404, 414. Monroe v. The Iowa, 319. Montag V. Linn, 479. Montague v. Gamett, 80. 91, 552. Montana Min. Co. v. Milling Co., 416. Montclair Military Academy v. Rail- way Co., 291. Montgomery v. Downey, 139. V. Edwards, 91, 96. V. Lampton, 138. V. Rief, 357. V. Waterworks, 530. Montgomery County v. Robinson, 38. Montgomery R. Co. v. Hurst, 481. Montreal Lumber Co. v. Mihills, 224, 230. Monumental Bldg. As.s'n v. Herman, 159. Moody V. Blake, 200, 235. Moody V. Walker, 537. V. Wright, 365. Mooney v. Davis, 231. V. Iron Co., 468, 551. V. Miller, 224. Moore v. Appleton, 508. V. Ass'n, 237. V. Bevier, 382. V. Campbell, 427. V. Cross, 225. V. Earl, 57. V. Elmer, 139. V. Flynn, 55. V. Garwood, 545. V. Giles, 54. V. Hershey, 184. V. I vers, 482. V. Kiff, 438. V. Lockett, 513. V. Locomotive Works, 128, 419. V. McKenney, 123. V, Mandelbaum, 510. V. Moore, 238, 251, 510. V. Norman, 442. V. Pierson, 26, 35. V. Powell, 88. V. Redding, 126. V. Small, 95. V. Stone, 525. V. Tanning Co., 194. Moote V. Seriven, 409. Mordecai v. Dawkins, 331, 483, 490. V. Pearl, 173. More V. Bennett, 316. V. Bonnet, 308, 324. Morehouse v. Bank, 492. V. Comstock, 469. Moreland v. Atchison, 226. V. Hougton, 500. Morley v. Lake Shore & M. S. Ry., 531. Morford v. White, 549. Morgan v. Andrews, 350. V. Bii'nie, 460. V. Randolph & Clowes Co., 354. Morison v. Thompson, 509. Morley v. Attenborough, 546. Morrell v. Quarles, 38, 284. Morrill v. Aden, 169. V. Blackman, 221. V. Everson, 115. V. Nightingale, 243. Morris v. Brightman, 42. V. Gaines, 70. CASES CITED. [The figures refer to pages.] 617 Morris v. Henderson, 298. V. Mfg. Co., ;'.U7. V. Norfolk, ISS. V. Norton, 109. V. Osterbout, 67. V. Turin, 541. V. Telegraph Co., 278. V. Thompson, 22-1. Morrison v. Bennett, 337. V. Davis, 429. V. Faulkner, 241, 243. V. Garth, 479. V. Herrick, 94. V. Kendall, 422. V. Orr, 509. V. Rogers, 303. V. Smith, 436. Morris Run Coal Co. v. Coal Co., 313. Morriss v. Harveys, 436. Morrissey v, Broomal, 429. V. Perry, 152. Morrow v. Express Co., 120. Morse v. Bellows, 15, 38. V. Braekett, 238. V. Crate, 140. V. Ely. 174. V. Moore, 463, 467. V. Rathbun, 412. V. Ryan, 283. V. Tappan, 531, 533. V. Wheeler, 167. V. Woodworth, 241, 243. Morse Twist Drill. & Mach, Co. v. Morse, 316. Morss V. Salisbury, 403. Mortland v. Mortland, 60. Morton v. Bum, 363. V. Dean, 90. V. Lamb, 451, 459, 461. V. Nelson, 75. V. Scull, 230. V. Stewart, 160. V. Thurber, 273. Morton's Adm'r v. Morton, 251. Morville v. Society, 193. Mory V. Michael, 354. Moseley v. Boush, 364. V. Vanhooser, 268. Moseley's Adm'rs v. Buck, 510. Moses V. Arnold, 537. V. Bank, 87. V. McClain, 87, 120. V. Macferlan. 541. T. Stevens, 176. Moss V. Atkinson, 83. Motherway v. Wall, 206, 226. Motley V. Head, 528. Mott V. Mott, 182. V. Oppenheimer, 375. V. Rowland, 343. Motz V. Mitchell, 243. Moulton V. Han-is, 94. V. Kershaw, 41, 42. Mound V. Barker, 328. Moimt V. Scholes, 494. V. Waite, 340. Mountstephen v. Brooke, 380. V. Lakeman, 67, 68. Mowatt V. Wright, 543. Moyer v. Cantieny, 286, 287. Muckenburg v. Holler, 304. Mudgett V. Clay, &4. Mueller v. Northwestern University, 365. Muir V. Schenck, 367, 370. Mulford V. Bowen, 276. Mulgi-ew V. Cocharen, 422. Mulhall V. Quiun, 304, 365. Mulholland v. Bartlett, 125. Mullalieu v. Hodgson, 257. Muller V. Eno, 4G4. V. Kelly, 197. V. Pondir, 508. Mulvany v. Gross, 70. Mulvey v. King, 216. Mumford v. Whitney, 76. Munday v. Whissenhunt, 298. Mungan v. French, 381. Munn V. Commission Co., 271, 514. Munroe v. Perkms, 128, 420, 425. V. Pritchett, 216. Munson v. Steamship Co., 295. V. Washband, 156. Murchie v. Cornell, 463. Murdock v. Finney, 370. MiU'phy V. Crawford, 141, 142. V. English, 291. V. Helmrich, 520. V. Jones, 470. V. Webber, 437, 438. V. Weil. 381. Murray v. Brooks, 398. V. Flavell, 353. V. Harway, 418. V. Mayo, 505. V. Mumford, 382. V. Parker, 401. V. Pillsbury, 407. 618 Murray v. Snow, 133. V. Wakelield, 286. Murto V. McKniglit, 69. Musick V. Dodson, 141, 142, 188. Musselman v. Cravens, 180. V. Stoner, 426. Musser v. Ferguson Tp., 108. Mustard v. Woblford's Heirs, 151, 153, 170, 172, 173, 175, 178. Mutual Ben. Life Ins. Co. v. Hillyard, 147, 148. V. Wise, 215. Mutual Life Ins. Co. v. Hunt, 183 V. Watson, 367. Mutual Reserve Fund Life Ass'n v. Taylor, 444. V. Woolen Mills, 294. Mutual Sav. Inst. v. Bnslin, 544. Myer v. Grafflin, 68. V. Hart, 413. V. Wheeler, 455. Myers v. Jenkins, 296. v. Knabe, 183. V. Meinratli, 269, 337. V. Munson, 389. V. Nell, 484. V. Smith, 535. V. Tibbals, 397. Mygatt V. Coe, 375. V. Tarbell, 28, 74, 121. Myrick v. Dame, 382. N Nagle V. McMurray, 19, Nalle V. Paggi, 375. Nally V. Reading, 92. Napier v. McLeod, 382. Nash V. Armstrong, 122, 425. V. Jewett, 177. V. Lull, 112, 469. V. Skinner, 380. V. Tovi^ue, 404. V. Trust Co., 224, 232. Nashua & L. R. Corp. v. Railroad Corp., 194. Nashville & C. R. Co. v. David, 429. Nassoiy v. Tomlinson, 132, 492. National Bank v. Danforth, 273. v. Fink, 284. V. Rising. 483. v. Sognr, 370. National Ben. Co. v. Hospital Co., 809. CASES CITED. [The figures refer to pages.] National Contracting Co. r. Water Power Co., 295. National Enameling & Stamping Co. V. Haberman, 309. National Exeh. Bank v. McLoon, 366. National Harrow Co. v. Hench, 316. V. Quick, 316. National Park Bank v. Levy, 435. National Refining Co. v. Miller, 32. National Shoe & Leather Bank, Ap- peal of, 519. National Ti-ust Co. v. Gleason. 539. Nauman v. Oberle, 235. Neal V. Allison, 438. V. Reynolds, 237. V. Saunderson, 429. Nealey v. Greenough, 242. Neate v. Harding, 538. Neblett v. Macfarland, 238, Nebraska & I. Ins. Co. v. Seivers, 63. Needles v. Burk, 544. V. Needles, 365. V. Shaffer, 480. Neff V. Horner, 479, 481, 482. V. Landis, 178, 238. Negley v. Jeffers, 65, 426. Neibert v. Baghurst, 93. Neibles v. Railway Co., 123. Neidefer v. Chastain, 469. Neill V. Shamburg, 227. Neiswanger v. McClellan, 70. Nelson v. Beck, 264. V. Boynton, 68, 69, 71. v. Brush, 299. V. Improvement Co., 85, 92, 95, 552. v. Rogers, 357. V. State, 267. V. Suddarth, 244. Nelson's Will, 247. Nerac's Estate, In re, 148, 149. Nesbitt V. Helser, 502. Nester v. Brewing Co., 313. Neustadt v. Hall, 283. Newberry Land Co. v. Newberry, 356. Newbigging v. Adam, 218. New Brunswick & C. R. Ob. v. Mug- geridge, 216. Newburg Petroleum Co. v. Weare, 374. Newby v. Hill, 370. Newcastle Mfg. Co. v. Railroad Co., 517. CASKS CITED. [The figures refer to pages.] (il9 Newcomb v. Brackett, 448. V. Clark, 84, 118. V. Raynor, 381. Newcomer v. Kliue, 208. Newell V. Bank, 273. V. Fisher, 18G. V. March, 544. V. Meyendorff, 307. V, Radford, 84. V. Randall, 222. New England Dressed M. & W. Co. v. Standard W. Co., 395. New England Mortgage Security Co. V. Gay, 273, 390. V. Townes, 274. Newhall v. Appleton, 896. V. Clark, 404. V. Wyatt, 541. Newhall Engineering Co. v. Daly, 449. New Hampshire Ins. Co. v. Noyes, 158. New Haven & N. Co. v. Hayden, 415. Newman v. Freitas, 304. V. Reagan, 430. Newport News & M. V. Co. v. McDon- ald Brick Co.'s Assignee, 474. Newsom v. Luster, 389. Newsome v. Graham, 545. Newton v. Bronson, 91, 506. V. Tolles, 204. Newton Mfg. Co. v. White, 549. New York Bowery Fire Ins. Co. v. Insurance Co., 214. New York Building Loan Banking Co. V. Fisher, 177. New York Cent. R. Co. v. Lockwood, 319. New York Guaranty & Indemnity Co. V. Gleason. .539. V. Water Co., 364. New York Life Ins. Co. v. Aitkin, 357. V. Davis, 147. V. Fletcher, 215. V. Statham, 410. New York & N. H. R. Co. v. Pixley, 15. Niagara, The, v. Cordos, 429. Niagara Fire Ins. Co. v. Greene, 77, 93. Nibert v. Baghurst. 266. Nicol V. Fitch, 475. Nicholas v. Austin. 425. Nicholl V. U. S.. 14.3. Nichols V. Bruns, 524. Nichols V. Fearson, 271. V. Haines, 500. V. Johnson, 482. V. McCarthy, 249. V. McMichael, 222. V. Mudgett, 283, 291. V. Raynbred, 117, 118, V. Steel Co., 445. V. Weaver, 81. Nichols, Shepard & Co. v. Burch, 390. Nicholson v. Oombs, 479. 481. V. Spencer, 150, 157, 159. V. Wilborn, 151, 157. Nichols & Shepard Co. v. Snyder, 172. V. Soderquist, 470. Nickelson v. Wilson, 294. Xickerson v. Wheeler, 534. Nicrosi v. Phillipi, 147. Niebuhr v. Schreyer, 272. Niemeyer v. Wright, 264. Nightingale v. Devisme, 537. V. Eiseman, 453. v. Withington, 153, 162. Nilson V. Morse, 444. Nispel V. Laparle, 493. Nixon V. Beard, 436. V. Bogln, 498. Noble V. Ward, 426. Nobles V. Bates, 308. Noble's Adm'r v. Moses, 248, 250. Noel v. Karper, 180. v. Murray, 436. Noetling v. Wright, 225. Xoice v. Brown, 350. Nolan v. Whitney, 431. Nolte V. Hill, 400. Nonotuck Silk Co. v. Fair, 399. Noonan v. Bradley, 406. Nordenfelt v. Masim-Nordenfelt Co., 309. Nordholt v. Nordholt, 152. Nordon Steam Co. v. Dempsey, 397. Nordyke & Marmon Co. v. Kehlor, 201. Xorfleet v. Cromwell, 373. Norman v. Cole, 28G. V. Trust Co., 180. V. Wells, 373. Norrington v. Wright, 210, 410, 455, 456, 463, 465. Norrls v. Graham, 68. V. Harris, 453. V. Railway Co., 429. V. School Dist, 551. ^ 620 CASES CITED. [The figures refer to pages.] Norrls v. Tayloe, 217, 250. V. Vance, 167, 177. V. Vosburgh, 121. North V. Forest, 100. V. Mallory, 447. V. Mendel, 88. V. Wakefield, 381. North American Ins. Co. v. Throop, 215. North British Ins. Co. v. Lloyd, 217. North Carolina State Loan Ins. Co. v. Williams, 525. North Chicago St. R. Oo. v. Ackley, 298. Northern v. State, 76. Northern Cent. Ry. Co. v. Prentiss, 68. Northern Light Lodge v. Kennedy, 407. Northern Nat. Bank v. Lewis, 394. North Liberty Market Co. v. Kelly, 132. North Platte M. & E. Co. v. Price, 83. Northrop v. Hill, 233. Northrup v. Foot, 266. Northwestern Fertilizing Co. v. Vil- lage of Hyde Park, 406. Northwestern Ins. Co. v. Blankenship, 183. Northwestern Iron Co. v. Meade, 36. Northwestern R. Co. v. McMichael, 101. Norton v. Coons, 534. V. Doherty, 493. V. Norton, 251. V. Tuttle, 299. Norvell v. Walker, 53. Norwood V. Lathrop, 432. Notley V. Buck, 537. Nottingham, etc., Soe. v. Thurston, 172, 173. Nounnan v. Land Co., 226. Xourse v. Prime, 273. Nova Cesarea Harmony Lodge No. 2 V. White, 374. Nowack V. Berger, 114. Nowlan v. Cain, 228. Noyes v. Loring, 517, 518. V. Nichols, 404. V. Parker, 545. V. Wyckoff, 441, 442. Nugent V. Smith, 429. V. Teachout, 552. V. Wolfe, 70. Nunez v-^ Morgan, 96. Oakdale Mfg. Co. v. Garst, 309, 315. Oakes v. Merrifield, 323. V. Water Co., 308. Oakey v. Ritchey, 251. Oakland Bank of Savings v. Apple- garth, 441. Oatfield V. Waring, 138. Oatman v. Walker, 441. Obermyer v. Nichols, 446. O'Brien v. Bolond, 33. V. Bound, 3S0. T. Prietenbach, 332. V. Young, 531, 533. O'Bryan v. Fltzpatrick, 265. O'Gonley v. Natchez, 537, 538. O'Connor v. Arnold, 511. Odom V. Riddick, 180. O'Donnell v. Brand, 418. V. Leeman, 85, 88. O'Donohue v. Leggett, 4. 467. Putnam v. Field, 355. CASES CITED. ITho figures refer to pages.] 627 Putnam v. Grace, 28. V, Insurance Co., 63. V. Sullivan, 198. V. Tennyson, 141. v. Woodbury, 129. Pyke's Case, 331. Pyle V. Cravens, 154. Pym V. Campbell, 392. Pyne v. Wood, 156, 170. Q Quarles v. State, 267. Quick V. Wheeler, 31. Quigley v. De Haas, 393, 451, 461. Quimby v. Cook, 272. V. Shearer, 197. Quinn v. Champagne, 86. V. Roath, 409. V. Stout, 428. Quu-k V. Muller, 292. V. Thomas, 331. R Raabe v, Squier, 72. Rabberman v. Wiskamp, 70. Raby v. Reeves, 375. Radley v. Kenedy, 176. Rae V. Hulbert, 531, 533. Rafferty v. Lougee, 88. Raffles V. Wichelhaus, 202. Rafolovitz V. Tobacco Co., 119. Ragan v. Chenault, 506. Rahter v. Bank, 261. Railroad Co. v. Trimble, 407. Railsback v. Walke, 81. Rains v. Wheeler, 303. Raisin v. Clark, 399. Rakestraw v. Lanier, 310, 311. Raleigh & G. R. Co. v. Reid, 406. Ralston v. Boady, 328. V. Wood, 435. Ramloll V. Soojumnull, 276. Ramsay v. Warner, 438. Ramsdell v. Edgarton, 257. Ramsey v. Morrison, 272. Ramsgate Hotel Co. v. Monteflore, 31, 36. Rand v. Mather, 322. V. Webber, 545. Randall v. Morgan, 40, 41. V. Protective Union, 344. T. Randall, 303. Randall v. Rich, 536. V. Smith, 2G4. V. Svpeet, 158. V. Tuell, 261, 264. Randell v. Trimen, 518. Randolph v. Halden, 400. Randolph Iron Co. v. Elliott, 199. Randolph's Ex'r v. Ouidnick Co., 116. Rankin v. West, 501. Rann v. Hughes, 49, 110, 111. Raimels v. Gerner, 182. Ransdel v. Moore, 356. Raper v. Birkback, 482. Rapid Transit Land Co. v. Sanford, 169. Rapley v. Klugh, 395. Rappanier v. Bannon, 122. Rappleye v. Seeder Co., 360, 364. Rathbon v. Budlong, 512. Ratliff V. Vandikes, 235. Rau V. Boyle, 286. Raub V. Smith, 75. Ravilins v. Wickham, 235. Rawson v. Davidson, 480. Rawstorne v. Gandell, 382. Ray v. Haines, 164, 175. V. Mackin, 258. v. Thompson, 428. V. Tubbs, 152, 177. Raymond v. Insurance Co., 295. V. Leavitt, 315, 331. Rayner v. Wilson, 216. Raynor v. Drew, 77, 393. V. Grote, 517. Read v. Anderson, 343. V. Legard, 181. Reading v. Price, 494. Ready v. Pinkliam, 172. Real Estate Sav. Inst. v. Linder, 544. Reando v. Misplay, 181. Rebman v. Water Co., 552. Rector, etc., of St Mark's Church v. Teed, 121. Redding v. Lamb, 470. V. Wright, 228. Redfield v. Davis, 509. Redgrave v. Hurd, 218, 228, 233, 236. Redlich v. Doll, 483. Reed v. Batchelder, 141. V. Boshears, 167. V. Breeden, 409. V. Brewer, 328. T. Evans, 87. V. Insurance Co., 295, 395, 404. 628 CASES CITED. £Th8 figures refer to pages.] Reed v. Lane, 153. V. Petei-sou, 217, 250. V. Warehouse Co., 290. Rees V. Berrington, 385. V. Logsdon, 58, 409. Reese v. Medlock, 506. Reese River Min. Co. v. Smith, 229, 232. Reeve v. Ass'n, 271. V. Dennett, 232. Reeves v. Brayton, 58. V. Corning, 224. Reeves' Estate v. Moore, 17. Reg. v. Rowlands, 317. Regan v. Baldwin, 540, 541. llegents of University of Michigan v. Society, 192. Reger v. O'Neal, 272. Regester v. Dodge, 424. Reichenbach v. Sage, 473. Reichwald v. Hotel Co., 504. Reid V. Hibbard, 131. Reif V. Paige, 15. 39. Reilly v. Chouquette, 405. Reindl v. Heath, 451. Reinsliopf v. Rogge, 186, 187. Reitz V. Martin, 513. Relief Fire Ins. Co. v. Shaw, 63. Renard v. Sampson, 420. Rendell v. Harriman, 520. Renner v. Bank, 398. Rentch v. Long, 100. Repetti v. Maisak, 86. Reticker v. Katzenstein, 222. Reusens v. Staples, 52. Reuss V. Picksley, 84, 87, 89, 105. Reybold v. Voorhees, 455. Reynell v. Sprye, 340. lieynolds v. Hassam, 393. V. McCurry, 773. V. Nugent, 128. V. Palmer, 467. V. Reynolds, 130. V. Robinson, 392. V. Stevenson, 266. V, Waller's Heirs, 186. Rb.eel v. Hicks, 542, 543. Rliine v. Ellen, 390. Rlioads V. Jones, 58. Rboda V. Annis, 524. Rhodes v. Bates, 250. V. Neal, 286. V. Rhodes, 181, 547. Rhodes v. Sparks, 293. V. Wilson, 395. Rhone v. Powell, 519. Rice V. Boyer, 164, 165. 17.'i-177. V. Butler, 175. V. Caudle, 488. V. D'Arville, 490. V. Gist, 276. V. Goddard, 471. V. Grange, 471. V. Insurance Co., 219. V. Kahn, 440. V. Manley, 350. V. Mfg. Co., 207. V. Mortgage Co., 130. V. Shute, 380, 381. V. Williams, 301. V. Wood, 302, 509. Richard v. Griggs, 367. Richards v. Allen, 92. v. Day, 391. V. Heather, 380, 381. V. Seating Co., 309. V. Shaw, 16, 453. V. Skiff, 389. Richardson v. Aiken. 494. V. Buhl, 313. V. Campbell, 346. V. Crandall, 340. V. Dorman, 264. V. Draper, 381. V. Duncan, 242. V. Hardwick, 30. V. Laboratory, 442. V. L*>uhard, 36. V. Machine Works, 526. V. Mining Co., 53. V. Pate, 166. V. Peacock, 490. V. People, 406. V. Pierce, 79. V. Richardson, 72. V. Rountree, 19. V. Rowlind, 297. V. Scotts Bluff County, 285. V. Strong, 181. V. Williamson, 518. Richelieu Hotel Co. v. Encampment Co.. 119. Richison v. Mead, 433. Richmond v. Moore, 266. v. Morford, 53, 56. V. Robinson, 409. CASES CITED. [The figures refer to pages. J Q29 KichmoLd Ice Co. v. Ice Co., 405. Kicbmond Uuion Pass. li. v. Railroad Co., 77. Richmond & D. R. Co. v. Jones, 319. Richter v. Stock Co., 471. Ricli V. Kelly, 435. Ricketts v. Harvey, 293, 323. Riddle v. Keller, 269. Rideal v. Railway Co., 203. Rider v. Miller, 251. Ridgely v. Craudall, 151. Ridgeway v. Herbert, 167, 170, 173. Ridgway v. Wharton, 29, 42, 43. Ridley v. McNairy, 95. Riegel v. Insurance Co., 201. Riegelman v, Focht, 69. Rigby V. Connol, 317. Rigdon V. Walcott, 237. Riggan v. Green, 1S3. Riggs V. Bullingham. 138. V. Tract Soc, 180. Righter v. Warehouse Co., 272. Rigs V. Cage, 528. Riley v. Carter, 1S2. V, Jordan, 328. V. Kershaw, 132. V. Mallory, 164, 174. V. Taber, 368. V. Telegraph Co., 320. V. Williams, 553. Rimer v. Dugan, 216. Rindskoff v, Barrett, 396, 403. Ring V. Jamison, 167. Ringer v. Holtzclaw, 85. Rio Grande, The, v. Otis, 50. Riordan v. Church, 358. Rioux V. Brick Co., 408, 410, 466. Ripley v. Case, 545. V. Crooker, 380. V. Insurance Co., 215. Rippy V. Grant, 251. Risley v. Bank, 366. Rison V. Newberry, 221. Ritchie v. Atkinson, 453, 454. V. Smith, 202. Ritter v. Insurance Co., 300. Rivers v. A. & C. Wright & Co., 366. V. Gregg, 155, 157, 159. River Steamer Co., In re, 496. Rives V. Dudley, 442. Roach V. Quick, 151. Robbins v. Ayres, 58, 356, 358. V. Barton, 227. V. Eaton, 168. Robbins v. Kimball, 75. Robert v. Barnum, 133. Roberts v. Bonaparte, 394, 395, 404. V. Button, 518. V. Carter, 369. V. Cobb, 114. V. Donovan, 217, 223. V. Levy, 264. v. Rockbottom Co., 78. v. Rum ley, 505. V. Security Co., 32, 54. V. Smith, 44. V. Tennell, 81. V. White, 441. Robertson v. Frank Bros. Co., 540. V. Hunter, 68. V. Parks, 225. V. Robinson, 282. V. Tapley, 28. Robinson v. Bank, 520. V. Barrows, 346. V. Batchelder, 426. V. Bland, 344, 345. V Cook, 441, V. Coulter, 153. V. Davison, 477, 550. V. Doolittle, 438. V. Fairbanks, 428. V. Gould, 244. V. Green, 324. V. Harman, 486. V. Jewett, 127. V. Kalbfleish, 291. V. Marshall, 368. V. Read, 436, 437. V. Templar Lodge. 295. V. Weeks, 150, 172. v. Weller, 30. Robson V. Bohn, 451, 455, 456. v. Drummond, 360, 364. Roby V. Carter, 291. V. Cossitt, 503. Rochester v. Levering, 510. Rochester Lantern Co. v. Press Oa., 361. 487. Rockafellow v. Newcomb, 114, 250. Rockford, R. I. & St. L. R. Co. v. Shu- nick, 197. Rockford Watch Co. v. Manifold, 510. Rodecker v. Littauer, 27L Rodemeier v. Brown, 54. Rodgers v, Jones, 103. V. Levy, 494. V. Torrent, 365. G30 CASES CITED. [The figures refer to pages.] Rodliff V. Dolllnger, 200. Rodwell V. Phillips, 76. Roebling's Sons' Co. v. Fence Co., 446. Roehl V. Haumesser, 88, 90, 500. Roelim V. Horst, 444. Roesner v. Hermann, 319. Rogers v. Allen, 399. V. Blackwell, 181, 186. V. Bollinger, 58. V. Burr, 408. V. Carey, 54. V. Hardware Co., 71. V. Higgins, 247. V. March, 517. V. Marriott, 278, 342. V. Pattie, 204. V. Phillips, 190. V. Rogers, 421. V. Sample, 272. V. Saunders, 495. V. Stone Co., 353. V. Van Nortwick, 495. V. Ward, 190, 191. V. Wolfe, 93. Rohan v. Hanson, 437. Rohman v. Gaiser, 356. Rohrof V. Schulte, 228. Roll V. Raguet, 293. Roller V. Ott, 307. Rollins V. Marsh, 128, 419-421. Rollins Inv. Co. v. George, 4S9. Roman v. Mali, 337, 340. Rommel v. Wingate, 442. Rood V. Jones, 124. Root V. Merriam, 335. Roper V. Johnson, 444. Roquemore v. Alloway, 330. Rorabacher v. Lee, 383. Roscorla v. Thomas, 138. Rose V. Daniels, 130. V. Duncan, 442. V. Mitchell, 330. V. Munford, 273, 274. V. Truax, 285. Rosema v. Porter, 492. Roseman v. Conovan, 222. Rosenbaum v. Credit System Co., 207, 323-325. Rosenberg v. Block, 538. Rosenblatt v. Townsley, 269. Rosenfeld v. Swenson, 16. Rosenstock v. Tormey, 400. Ross V. Oonway, 249. V. Doland, 198. Ross V. Hard, 141. V. Miner, 222, V. Parks, 120. V. Welch, 76. Rosser v. Darden, 522, Rossiter v. Miller, 43. V, Rossiter, 513, 514. Rossman v, Townsend, 349. Rotheram Alum Co., In re, 353. Rothschild v. Mack, 230. Rottman v, Pohlmann, 68. Roughton V, RawUngs, 75, Rountree v. Smith, 342. Rousillon V. Rousillon, 307, 309. Routledge v. Grant, 33. Rovegno v, Defferari, 204. Row V, Dawson, 367. Rowe V. Barnes, 125. V. Moon, 356. V. Rand, 527, 529. V. Ware, 500. Rowell V. Oleson, 519. Rowland v. Bull, 274. Rowley v. Bigelow, 234, 238. V. Jewett, 480. V. Stoddard, 381. Royal Ins. Co. v. Beatty, 16. Roys V. Johnson, 326. Royston v. Miller, 197. Rucker v. Harrington, 426. Ruckman v. Bergholz, 260, 261. V. Bryan, 330. V. Ruckman, 54, Rudasill v. Falls, 507. Rudesill v. Jefferson County Court, 481, Rudisill V. Cross, 74. Rue V. Meirs, 125. Ruff V. Jarrett, 229, 233, 469. Ruffner v. Hewitt, 508. Rugan V. Sabin, 236. Rugg V. Minelt, 476. V, Moore, 455, 456. Ruiz V, Norton, 522. Rumbough v. Improvement Co., 394. Runde v. Runde, 69. V. Spencer, 166. Runge V. Brown, 232. Runt V. Herring, 318. Runyan v. Latham, 437. Runyon v. Snell, 501. Kupley V. Daggett, 204. Ruppe V. Edwards, 514. V. Peterson, 72. Kush V. Rush, 2G0. V. Wick, 154. Russell V. Allerton, 405. V. Bell, 549. V. Kirkbride, 309. V. Mfg. Co., 28. V. Murdock, 269. V. Place, 493. V. Post, 330. V. Russell, 250. V. Stewart, 40. V. Wriglit, 125. V. Youug, 407. Russ Lumber & Mill Oo. v. Water Co., 225, 470. Rust V. Gott, 276. Rutherford v. Mclvor, 543. Rj-all V. Rowles, 367. Ryan v. Asbton, 249. V. School Dist, 264. V. U. S., 86, 87. Ryder, Ex parte, 159. In re, 548. V. Wombwell, 155, 156, 159. Ryer v. Stockwell, 38, 39. Sable V. Maloney, 208. Safford v. Grout, 233. V. McDonough, 102. Sage V. WDcox, 64, 87. Sails V. Miller, 514. St. Andrew v. Mfg. Co., 369. St. Joseph & D. C. R. Co. y. Ryan, 288. St. Joseph & G. I. R. Co. v. Palmer, 319. St. Leger's Appeal, 249. St. Louis Agr. & Mech. Ass'n v. De- lano, 267. St. Louis Fair Ass'n v. Carmody, 328. St Louis, Ft. S. & AV. R. Oo. v. Davis, 130. St, Louis, I. M. & S. R. Co. v. O'Baugh, 375. V. Ruddell, 55. St. Louis, J. & C. R. Co. V. Mathers, 288. St. Louis, K. & N. W, R. Co. v. Clark, 96. St. Louis, V. & T. H. R. Co. v. Railroad Co., 337. St. Paul & D. R. Co. V. Blackmar, 407. Sale V. Lambert, 84. CASES CITED. 631 [The figures refer to pages.] Salem iadia-Hubber Co. v. Adams, 228. Salinas v. Bennett, 162. V. Stillman, 286. Salisbury v. Brisbane, 476. Salm V. Israel, 227. Salmon v. Boykin, 464. Salmon Falls Mfg. Co. v. Goddard, S4, 89. Saltmarsh v. Smith, 528. Sampson v. Barnard, 481. V. Gazzan, 396. V. Shaw, 315. V. Townsend, 329. Sams V. Stockton, 156. Samuel v. Marshall, 180. Samuels v. Oliver, 315, 342. Sanborn v. Flagler, 85, 89, 105. V. Insurance Co., 63. V. Little, 369. V. Sanborn, 88. Sandage v. Mfg. Co., 261. Sandeen v. Railroad Co., 549. Sanders v. Bank, 131, 191. V. Bennett, 166. V. Carter, 107. V. Fruit Co., 29, 43. V. Johnson, 267. V. Smith, 122. Sanderson v. Piper, 396. Sandford v. Handy, 227, 514, 515. Sanford v. Bank, 412. Sands v. Sands, 248. Sandwich Mfg. Co. v. Earl, 493. Sanford v. Abrams, 132. V. Howard, 31. v. Kane, 274. V. Sornborger, 243. San Francisco Bridge Co. v. Improve- ment Co., 468. Santa Clara Valley Mill & Lumber Co. v. Hayes, 313, 322. Sapsford v, Fletcher, 534. Saratoga County Bank v. King, 323. Sarbecker v. State, 23, 103. Sard v. Rhodes, 435. Sari V. Bourdillon, 105. Sarles v. Sharlow, 77. Sarwell v. Sowles, 96. Sasportas v. Jennings, 243. Sattler v. Hallcok, 403. Sault Ste. M., L. & I. Co. v. Simons, 33. Saunders v. Blytte, 55. V. Clark, 405. 632 CASES CITED. [The figures refer to pages.] Saunders v. McClintock, 225, 233. V. Utt's Adiii'r, 156. V. Wbitcomb, 131. Saunderson v. Marr, 154. Savage v. Davis, 501. V. Gregg, 368. V. Liclilyter, 162. V. Savage, 483. Savannah Ice Delivery Co. v. Transit Co., 410. Saveland v. Green, 204. Saville v. Chalmers, 58. Saville, Somes & Co. v. Welch. 505, 538. Savings Bank v. Bank, 345. V. Mortgage Co., 429. Sawtelle v. Drew, 398. Sawyer v. Brossart, 29. v. Cutting, 501. V. Lufkin, 181. V. Mayhew, 277, 509. v. Prickett, 224. V. Tappan, 437. V. Ware, 98. Sax V. Railway Co., 79. Saxon V Wood, 300. Sayer v. Wagstaff, 436, 437. Sayles v. Christie, 248. V. Smith, 266. Sayre v. King, 436. V Nichols, 511. Sayward v. Dexter, Horton & Co., 356. V. Gardner, 85. Scales V. State, 266. Scanlan v. Keith, 520. Scanlon v. Cobb, 183. V. Warren, 279, 331. Scarborough v. Watkins, 249. Scarlett v. Stein, 410. Sceva V. True, 181, 530, 547. Schack V. Anthony, 521. Schaefer v. Henkel, 521. Schaller v. Railway Co., 20. Schamp v. Schenck, 297. Schaper v. Schaper, 198. Schaps v. Lehner, 183. Schenectady Stove Co. v. Holbrook, 31, 42. Schepflin v. Dessar, 522. Scliermerhom v. Vanderheyden, 356. Scheuer v. Goetter, 238. Schiffer v. Dietz, 236. v. Feagin, 516. Schilling v. Black, 384. Schilling v. Mullen, 366, 368. Schlesinger v. Stratton, 428. Schliess v. Grand Rapids, 433. Schlitz V. Meyer, 492. Schloss V. Hewlett, 283, 284. Schmaling v. Thomlinsou, 349, 351, 549. Schmalz v. Avery, 521. Schmidt v. Thomas, 102, 269. Schmueckle v. Waters, 275. Schneider v. Norris, 89. V. Staihr, 164. Schnell v. Nell, 115. Schoener v. Lissauer, 242. Schoenfeld v. Brown, 68. Schofield V. Walker, 247. Scholey v. Halsey, 537. V. Mumford, 244. School Directors v. Trefethren, 35. School Dist. No. 1 v. Dauchy, 473. School Dist. of Beatrice v. Thomas, 349, 356. Schooley v. Remain, 414. School Trustees v. Bennett, 473. Schoonover v. Vachon, 96. Schorestene v. Iselin, 38. Schroeder v. Fink, 124, 125. v. Loeber, 95. Schubart v. Coke Co., 233. Schuff V. Ransom, 185. Schuler v. Myton, 126. Schultz V. Catlin, 243, 245. V. Culbertson, 293. V. Noble, 65. V. Waldons, 75. Schulze-Berge v. The Guildhall, 319. Schumaker v. Mather, 228. Schurmeier v. Johnson, 494. Schuylkill Co. v. Copley, 197. Schwab V. Rigby, 269. Schwalm v. Mclntyre, 481. Schwailz V. Schwartz. 241, 245. Schwarzbach v. Protective Union, 210, 215. Schweider v. Lang, 131, 492. Schwinger v. Hickok, 545. Scioto Fire Brick Co. v. Pond, 201. Scobey v. Ross, 298. Scofield V. Railroad Co., 289. Scoggin V. Slater, 75. Scotson V. Pegg, 129. Scott V. Avery, 295, 296. V. Brown, 257, 337. V. Buchanan, 166, 170. CASES CITED. [The figures refer to pages.] 633 Scott V. Davis, 28. V. Fields, 409. V. Glenn, 89. V. Littledale, 205. V. McMillan, 376. V. Miller, 537. V. Rogers, 509. V. Sadler, 3G9. V. Scott, luy. V. Stetler, 375. V. White, 71. V. Whitney, 398. Scottish-American Mortg. Co. v. Da- vis, 26. Scribner v. Hollis, 399. Scrimshire v. Scrimshire, 344. Scroggin v. W^ood, 225, 230, 390. Scudder v. Carter, 70, 218. Scully V. Kirkpatrick, 476, 550. Sea V. Carpenter, 508. Seagraves v. Alton, 192. Seaman v. Colley, 293. Seamans v. Temple Co.. 345. Searcy v. Hunter, 163, 175. Searle v. Galbraith, ISO. V. Hill, 95. Sears v. Brink, 87. V. Hicklin, 496. V. Railroad Co., 38. V. Shafer, 250. V. Starbird, 385, 534. Seaver v. Phelps, 183. Seavey v. Shurick, 400. Sebastian May Co. v. Codd, 486. Seccomb v. Insurance Co., 400. Second Nat. Bank v. Grand Lodge, 354, 355. V. Steel Co., 520. Secor V. Clark, 244. Seculovich v. Morton, 495. Seddon v. Rosenbaum, 80. Sedgwick v. Stanton, 287. Seeberger v. McCormick, 518. Seebold v. Tatlie, 480. Seebolt v. Tatlie, 479. Seeger v. Duthie, 211. Seeley v. Traction Co., 203, 205. V. Welles, 432. Seeman v. Biemann, 412. Seery v. Socks, 512. Segar v. Edwards, 510. Seiber v. Price, 242. Seidenbender v. Charles' Adm'rs, 261, 333. Seigman v. Hoffacker, 356, 358. Seipel V. Insurance Co., 553. V. Trust Co., 449. Selden v. Myers, 251. Semmes v. Insurance Co., 147, 148, 474. V. Worthington, 94. Semple v. Pink, 123. Sennett v. Shehan, 552. Sentance v. Pool, 18'i. Senter v. Monroe, 518. V. Williams, 437. Sergeant v. Dwyer, 45. V. Stryker, 538. Seward v. Mitchell, 117. Sewell V. Sewell, 178, Sext V, Geise, 72. Seybold v. Morgan, 499. Seymour v. Armstrong, 28, 38, 397. V. Bridges, 343. V. Marlboro, 139. V. Marvin, 438. V. Minturn, 380, 419. V. Society, 194. V. Van Slyck, 437. Shackell v. Rosier, 259. Shackelton v. Sebree, 186. Shadburne v. Daly, 122. Shade v. Creviston, 367, 369. Shadwell v. Shadwell, 114, 129. Shady Hill Nursery Co. v. Waterer, 128. Shaeffer v. Blair, 508. Shafer v. Senseman, 303. Shaffer v. Hahn, 74. V. Mining Co,, 365. Shahan v. Swan, 93. Shane v. Smith, 18, 553. Shanks v. Whitney, 225. Shannon v. Baumer, 339. V. Hoboken, 307. Sharkey v. Mansfield, 542. Sharp V. Carroll, 104. V. Jones, 516. V. Thompson, 406. Sharpe v. Rogers, 123. Sharpless' Appeal, 141. Shattock V. Shattock, 190. Shaw V. Andrews, 302. V. Ball, 179. V. Boyd, 173. V. Burney, 141. V. Carpenter, 323, 324. V. Clark, 279, 335. 63i CASES CITED. [Tbe figures refer to pages.] Shaw V. Glass Works, 42. V, Graves, 548. V. McCregory, 424. V. Nudd, 500. V. Pratt, 491. V. Shaw, 92, 553. V. Thompson, 181. V. Williams, 514. Sheahan v. Barry, 448. Shed V. Pierce, 381. V. W^oodcock, 540. Sheehy v. Adareoe, 80. V. Fulton, 82. Sheeren v. Moses, 452. Sheets v. Bray, 180. V. Sweeny, 74, Sheffield v. Ladue, 518. Sheffield Oanal Co. v. Railroad Co., 36, Sheffield Furnace Co. v. Coke Co.. 120. Shelby v. Railroad Co., 58. Sheldon v, Capron, 202, V. Davidson, 224, 225. V. Haxtun, 275. Sheldon Hat-Blocking Co. v. Machine Co., 503, 505. Shelley v. Mikkelson, 452. Shelton v. Aultman & Taylor Co., 273. V. Ellis, 206. V. Jackson, 130. Shenandoah Val. R. Co. v. Dunlop, 58, 119. Sheneberger v. Insvu-ance Co., 197. Shenk v. Mingle, 301. V. Phelps, 337. Shepard v. Carpenter, 42. V, Gaslight Co., 487. v. Rhodes, 109, 115, 138, 140. Shepherd v, Busch, 436. V, Jenkins, 469. V, Pressey, 102. Sherburne v, Shaw, 84. Sberley v, Peehl, 36. V. Riggs, 297, Sherman v. Brandt, 90. V, Kitsmiller, 44. V, Mulloy, 407, V. Sherman, 245. V. Wilder, 328. Sherwln v. Brigham, 126. V. Fletcher, 119. v, Sanders, 141. Sherv\'oocl v. Roundtree, 274. V. Stone, 71. V. Walker, 204. Shindler v. Houston, 102. Shipley v. Reasoner, 275. Shipman v. Horton, 164. V. INIiuing Co., 383. V. Seymour, 222, Shipp V. McKee, 166. Shippey v, Henderson, 141, Shippy V. Eastwood, 268. Shirk V, Shultz, 165, 173. Shirley v. Healds, 378. Shirts v, Overjohn, 199. Shively v. Black, 87, Shouinger v, Peabody, 505-507. Shook v, Vanmater, 71. Short v. Insurance Co., 215. V. Millard, 525, V, Mining Co., 264. V, Stone, 448, V. Stotts, 72. Shoulters v. Allen, 183. Shriner v, Lamboru, 308. Shropshire v. Burns, 168, Shubart's Estate, In re, 17. Shuder v. Newby, 123. Shuetze v, Bailey, 500. Shuey v. U, S., 36, 39. Shufeldt V. Pease, 239. Shultz V, Johnson, 476, 477, 550. Shumate v. Farlow, 80. Sibley v, Felton, 29, 43. V. Holcomb, 197. Sldenham v, Worlington, 138. Siebold v. Davis, 28. Siedenbender v, Charles' Adm'rs, 261. Siegel, Cooper & Co. v. Eaton & Prince Co., 473. Silberman v. Fretz, 453. Siler V, Gray, 477, Silsby V, Frost, 69, Silsby Mfg. Co. v. Chico, 432, 433. Silvers v. Potters, 391. Silverthorn v. Wylie, 139. Simar v. Canaday, 225. Simmons v, Clark, 491. V. Green, 459. V, Hamilton, 492. V. More, 518, Simmons Medicine Co. v. Simmons, 312. Simon v. Johnson, 398, V. Shoe Co., 230, 235. Simonds v. Heard, 517, 519. Simonton v. Bacon, 179. Simpson v. Carson, 526. CASES CITED. [The figures refer to pagea.] 635 Simpson V. Com., 90, 501. V. Crippin, 454, 455. V. Dix, 394. V. Evans, 126, 273. V. Garland, 519. V. Harris, 72. V. Hotel Co., 193. V. Krumdicli, 101. V. Nichols, 269. V. Railway Co., 488. Simpson Centenary College v. Tuttle, 119. Sims V. Clark, 383. V. Everhardt, 166, 177 V. Ferrill, 226. V. Hutcliins, 91, 553. SLmson v. Brown, 356. Sinclair v. Learned, 441. Singer v. Schilling, 239. Singerly v. Thayer, 432, Singer Mfg. Co. v. Draper, 337. V. Sammons, 238. Singleton v. Thomas, 131. Singstack's Ex'rs v. Harding, 90, 98. Sinsheimer v. Mfg. Co., 380. Sioux City Stock Yards Co. v. Packing Co., 420, 492. Sisson V. Baltimore, 122, 132. Sivers v. Sivers, 393, 494. Sizer v. Daniels, 291. Skeate v. Beale, 243. Skidmore v. Bradford, 114. Skiff V. Johnson, 329. Skinker v. Armstrong, 70. Skinner v. Henderson, 338. V. Maxwell, 171. V. Mining Co., 126. V. Somes, 363. Skipper v. Stokes. 365. Skobis V. Ferge, 366, 368. Skrainka v. Scharringhausen, 313, 315. Slack V. Tucker, 515. Slade V. Elevator Co., 132. V. Muti-ie, 419. V. Rhodes, 298. Slade's Case, 532. \ Slagle & Co. V. Goodnow, 222. Slater v. Emerson, 451. V. Jones, 133. V. Magraw, 415. V. Railroad Co., 429. Slaughter v. Davenport, 382. Slaughter's Adm'r v. Gerson, 219, 228. Slayton v. Barry, 177. Sleeper v. Davis, 239. Sleght V. Hartshorne, 399. Sleigh V. Sleigb, 535. Slingerland v. Slingerland, 93. Sliugsby's Case, 384. Sloan V. Davis, 294. V. Williams, 364. V. Wilson, 87. Slocum V. Wooley, 290. Sloman v. Cox, 483. Small V. Railroad Co., 300. V. Schaeffer, 356. Smalley v. Greene, 80, 311, Smart v. Gale, 545. v. Sanders, 527. Smeed v. Foord, 487. Smiley v. Bell, 364. Smith v. Algar, 113. V. Alker, 477. V. Applegate, 291, V, Arthur, 58. V. Atwood, 242. V. Bank, 71, 392, 402. V. Banking Co., 446. V. Bartholomew, 419. V. Bean, 269. V. Beatty, 221. V. Bettger, 436. V. Blachley, 293. V. Black, 493. V. Bouck, 101. V. Bradley, 65. V. Brady, 431, V. Bromley, 341. V. Brown, 310. V. Bryan, 76. V. Burnham, 57. V. Coker, 124. V. Countryman, 223. V. Cuff, 340, 535. V. Davis, 217. V. Delaney, 70. V. Dunham, 482. V. Edwards, 23. V. Fisher, 102. V. Gowdy, 42. V. Greenlee, 258. V. Hale, 464. V. Harrison, 374. V. Hess, 398, V. Hornback, 235. V. Hudson, 101. V. Hughes, 200, 205, 224. V. Humphreys, 257, 301. 636 Smith V. V. V. V. V. V. V. V. V. V. V, V. V. V. V. V. V. V. V. V. V, V. V. T. V. V. V. V. V. T. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. CASES CITED. [The figures refer to pages.] V. Ide, 105. Ingram, 15. Jernigan, 537. Jordan, 448. Kay, 250. Kidd, 505. Kittridge, 108. Latlii-op, 493. Leady, 307, Lewis, 447, 459. Lilley, 393. Livingston, 239. Loyd, 439. Mace, 483. Machine Co., 364. Mayo, 163, 167. Miller, 380. Molleson, 407. Monteith, 122. Morse, 120. Nichols, 50. Northrup, 87. Ocean Castle No. 11, 296. Phillips, 130. Pierce, 93. Plomer, 188. Porter, 55. Preston's Estate, 476. Price, 299. Property Co., 219. Railroad Co., 295, 429, 487. Railway Co., 266. Richards, 216, 218, SOL Robertson, 261, 264, Schiele, 74. Sherman, 378. Silvers, 273. Smith, 180, 222, 229, 276, 368, 528. Steely, 293. Surman, 76. Thompson, 190. Townsend, 302. Tracy, 524. Ulman, 258. U. S., 481. Ware, 117. Watson, 267, 418, 422. Weaver, 42, 119. Whildin, 127, 283. Wilcox, 267. Williamson, 187, 188. Wilson, 397. Wood, GO. Smith v. Wooding, 552. v. W^right, 398. Smith's Adm'r v. Smith, 23G. Smith's Appeal, 89, 307, 308. 324. Smith Premier Typewriter Co. v. May- hew, 293. Smitz v. Leopold, 509. Smock V. Brush, 516. V. Pierson, 471. Smout V. Ilbery, 518. Smoyer v. Roth, 43. Smull V. Jones, 258. Smyley v. Reese, 249. Smythe v. Allen, 274. Snell V. Bray, 114. V. Cottingham, 487. V. Insurance Co., 207, 401. V. Stone, 501. Snelson v. State, 544. Snider v. Thrall, 103. Snoddy v. Bank, 335. Snodgrass v, Oabiness, 378. Snook V. Watts, 183. Snow V. Judson, 231. V. Perry, 514. V. Wheeler, 317. Snyder v. Church, 299. v. Insurance Co., 406. V. Jones, 60. Sobey v. Brisbee, 81. Solenberger v. Gilbert's Adm'r, 392. Solinger v, Earle, 341. Solomon v. Dreschler, 265. V. Penoyar, 518. Somerby v. Buntin, 101. Somers v. Pumphrey, 180. Somes v. Skinner, 179. Sondheim v. Gilbert, 335, 343. Soper V. Peck, 198. Sornborger v. Sauford, 246, Sorsbie v. Park, 416. Souhegan Nat. Bank v. Wallace, 338. Soule V. Bouney, 242. Southard v. Boyd, 287. V. Rexford, 488. South Baltimore Co. v. Muhlbach, 75. South Chicago City R. Co. v. Railway Co., 288. Southcombe v. Bishop, 495. Southern Development Co. v. Sllva, 224, 227. Southern Exp. Co. v, Dnfifey, 245. V. Glenn, 428. Southern Life Ins. Co. v. Lanier, 193. CASES CITED. [The figures refer to pagea.] 637 Southern Life Ins. Co. v. McCain, 526. Soutbern Life Ins. & Trust Co. v. Cole, 101. Southern Pac. Co. v. Well Works, 468. South Milwaukee Boulevard Heights Oo. V. Harte, 228. Southwell V. Bowditch, 520. South wick V. Bank, 239. Soutier v. Kellerman, 397. Sowers v. Parker, 227. Spackman v. Board, 296. Spader v. Mfg. Co., 475. Spaids V. BaiTett, 244. Spain V. Brent, 370. Spalding v. Ewing, 285, 420. V. Rosa, 476, 550. Spangler v. Danforth, 83. Sparks v. Pittsburgh Co., 29. Sparling v. Marks, 464, Spauldiug V. Crawford, 245. Speake v. U. S., 483. Speed V. Hollingsworth, 228. Spence v. Ham, 431. V. Harvey, 287. V. Healey, 424. Spencer v. Brockway, 146. V. Field, 521. V. Harding, 38, 41. V. Parry, 535. V. Tilden, 272. 402. V. Towles, 111, 355. Spencer's Appeal, 249. Case, 373, 374. Speyer v. Desjardins, 75. Spiller V. Skating Rink, 353. Spinks V. Davis. 302. Spinney v. Hill, 96. Spinning v. Sullivan, 369. Spitze V. Railroad Co., 130. Spitzmiller v. Fislier, 18, Splane v. Com., 266. Spofford V. Hibbs, 506. Spragg V. Hammond, 541. Sprague v. Haines, 95, 96. V. Hazenwinklo, 430. Sprague Electric Co. v. Com'rs, 408. Sprankle v. Trulove, 360. Spring Co. v. Knowlton, 338. Springer v. Bien, 96. Sprye v. Porter, 298. Spurgeon v. McEIwaln, 26.5. SpuiT V. Insurance Co,, 401. Spycher v, Werner; 422. Squier v, Hydliff, 156, Staat V, Evan.s, 537. Stabler v. Cowman, 49, 52. Stacey v. Kemp, 269. Stackpole v, Symonds, 268, Stacy V. Cook, 131. v, Foss, 338, 339. Stafford v. Bacon, 138, 141. I V. Roof, 163-165, 176. ' Stagg V. Compton, 28, 40. I Staines v. Shore, 258. Stallings v. Gottschalk, 393. Stall's Estate, In re, 344. ^ Stamford Bank v. Benedict, 439. i Stamper v. Temple, 40, 41, 2&4. Standard Furniture Co. v. Van Alstine, 328. Standard Gaslight Co. v. Wood. 451. Standard Oil Co. v. Murray, 351. Stanford v. McGill, 447. Stange v. Wilson, 408, Stanley v. Dowdeswell, 29. V. Jones, 298. Stansfield v. Kunz, 338. Stanton v. Allen, 333. V. Embrey, 299. V. Hughes, 237. V. Willson, 159. Staples V, Bradbury, 528. V. Nott, 343. V. Wellington, 180. Starbird v. Cranston, 357, 358. Star Glass Co. v, Morey, 16, Stark V. Parker, 462. v, Sperry, 274. Starkie v. Perry, 17. Starks v. Sikes, 503. Starr v. Bennett, 206, 226. V. Wright, 152. Startup V. Macdonald, 434, 440. State V. Andriano, 146. V. Associated Press, 315, V. Baker, 107. V. Baldwin, 305, T, Board, 323-325. V. lioneil, 280. V. Boyd, 146, 147. V. Brantley, 24.5. V. Burkeholder, 145, V. Carver. 293, 294. V. Cass, 225, 230. V. Chandler, 380, 384. V. Clarke, 150. V. Corlles, 496. V. Dalton, 280. 638 CASES CITED. [The figures refer to pages.] State V. Findley, 322, 324. Y. Glidden, 317. V. Gott, 59. T. Grant, 145. T. Howard, 158. V. Investment Co., 280. V. Judge, 266. V. McBee, 267. V. Matthis, 504. V. Moren, 280. V. Obmer, 268. V. Oil Co., 313. V. O'Rourk, 266. V. Powell, 266. V. Railroad Co., 289, 337, 451, 475. V. Reigart, 108. V. Schuler, 268. V. Scougal, 260. V. Smith, 147. V. Sooy, 223. V. Sopher, 268. V. Stewart, 317. V. Such, 242. V. Temple, 145. V. Thompson, 52. V. Van Pelt, 484. V. Wallis, 391. V. Weatherwax, 151. V. Williamson, 284. V. Worthington's Ex'rs, 474. State Bank v. Hastings, 284. V. McCoy, 188. State Nat. Bank v. Bennett, 335. V. U. S., 541. State of Louisiana v. New Orleans, 531, 533. Stavers v. Curling, 451, 465. Stead V. Dawber, 65. Steadman v. Guthrie, 87. Steamboat Albatross v. Wayne, 396. Steams v. Dillingham, 537. V. Pelker, 298. V. Hall, 65, 426. V. Johnson, 132. Stebbins v. Bruce, 367. V. Dimcan, 389. V. Niles, 242. V. Palmer, 378. V. Smith, 66. Steeds v. Steeds, 425. Steele v. Hobbs, 471. V. Lowry, 54. V. Steele, 114. Steene v. Aylesworth, 350. Stees V. Leonard, 473. Ste£fes v. Lemke, 383. Stein V. Swensen, 274. Steinhauer v. Witman, 471. Steinman v. Magnus, 131. Stembridge v. Stembridge's Adm'r, 119. Stensgaard v. Smith, 21, 33. Stephens v. Board, 541. V. Davis, 480. V. Railway Co., 346. Stephenson v. Cady, 456, 459. V. Elliott, 357. V. Insurance Co., 295w Stepney v. Lloyd, 242. Sterling v. Ryan, 422. V. Sinnickson, 303. Stem V. Meikleham, 158. Stetson V. Patten, 506. Stettauer v. Hamlin, 402, 405* Stevens v. Beals, 189. V. Benning, 365. V. Brennan, 239. V. Catlin, 381. V. Coon, 134. V. Flannagan, 358. V. G our ley, 205. V. Gregg, 346. V. Johnson, 470. V. Lee, 95. V. Ludlum, 218, 231. V. Parish, 188. V. Pierce, 237. V. Warren, 277. Stevenson v. Crapnell, 56. V. Ewing, 264. V. McLean, 33, 35. V. Marble, 234. Stewart v. Cattle-Ranch, 223. V. Eddowes, 90. V. Emerson, 222. V. Hidden, 419. V. Hopkins, 437. V. Jerome, 72. V. Keith, 437. V. Keteltas, 421. V. Langston, 133. V. Loring, 550. V. Marvel, 409. V. Mather, 510. V. Petree, 272. V. Railroad Co., 360. V. Railway Co., 324. V. Redditt, 180. V. Schall, 342. CASES CITED. [The figures refer to pages.] 639 Stewart v. Stone, 47G. V. Thayer, 32G, 33S. V. Trustees, 356. Stewart Paper Mfg. Co. v. Rau, 436. Stewartson v. Lothrop, 205. Stickley v. Insurance Co., 03. Stiernberger v. Gowdy, 439. Stiles V. McOlellan, 89. V. Probst, 483. Stilk V. Meyrick, 127. Stillman v. Noithrup, 274. Stines v. Dorman, 370. Stinson v. Anderson, 55. Stitt V, Huidekopers, 22, 33. Stix V. Roulston, 418. Stock V. Stoltz, 18. Stockett V. Watkins' Adm'rs, 16, 539. Stockham v. Stockham, 26. Stocks V. Dobson, 368, 370. Stockton V. Turner, 404. Stoddard v. Ham, 200. V. Martin, 276. V. Mix, 297. V. Penniman, 483. Stokes V. Anderson, 304. V. Baars, 455. Stone V. Browning, 105. V. Chamberlain, 423. V. Covell, 229. V. Dennison, 65. V. Denny, 229. V. Graves, 268. V. Harmon, 31. V. Hooker, 327. V. Marsh, 539. V. Seymour, 437, 439. V. Weiller, 241, 357. V. White, 481. V. Wilbern, 179. V. Wood, 517, 519. Stoneburner v. Motley, 137. Stoney v. Insurance Co., 214. Stoney Creek Woolen Co. v. Smalley, 227. Storer v. Gordon, 428. Storrs V. Barker, 206. V. Hospital, 299. Story V. Elliott, 266. V. Gammell, 229. T. Solomon, 280. V. Story, 18. Stotts V. Leonhard, 170. Stoudenmire v. Harper, 15w V. McLaclin, 505. Stouffer V. Latshaw, 242. Stout V. Bnnis, 282, 291. Stoutenburg y. Lybrand, 304. Stovall V. Com., 514. Stover V. Duren, 495. V. Mitchell, 244. Stow V. Ilussell, 420. Stowell V. Chamberlain, 494. Stowers v. Hollis, 78, 151, 152. Strachan v. Stock Exchange, 339. Strait v. Harrow Co., 313, 316. Strand v. Griffith, 228. Strangborough and Warner's Case, 117. Strasburg R. R. Co. v. Echternacht, 22. Strasser v. Conklin, 503. Stray v. Russell, 546. Streator v. Paxton, 383. Streeper v. Williams, 413. Street v. Blay, 463, 4&4, 540. V. Goodale, 357. V. Rlgby, 295. Strehl V. D'Evers, 81. Streichen v. Fehleisen, 415. Strickland v. Graybill, 227. V. Turner, 201. Strobridge Lithographing Co. v. Ran- dall, 43. Strong V. Clem, 371. V. Foote, 156. V. Grannis, 245. V. Lane, 203. V. Lawrence, 50. V. Railroad Co., 398, 400. r. Sheffield, 122. V. Strong, 233, 236. Strother's Adm'r v. Butler, 549. Stroud V. Smith, 283. Struthers v. Drexel, 271. Stuart V. Railroad Co., 23. V. Sears, 542, 543. Stuber v. Schack, 126. Studley v. Ballard, 127. V. Barth, 68. Studwell V. Shapter, 177. Stuht V. Sweesy, 139. Sturdivant v. Hull, 520. Sturges v. Bobbins, 15. Sturm v. Boker, 408, 428. Sturtevant v. Sturtevant, 247. Styles V. F. R. Long Co., 358. Suber v. Chandler. 50. Suffell V. Bank, 47'.). 480. Sugart V. Mays, 398. 640 Sullivan v. Ass'n, 27L V. Flyno, 183. V. Horgan, 323, V. Latimer, 41, 52. V. O'Neal, 94. V. Railroad Co., 268. V. Kudisill, 481, 483. V. Sullivan, 102, 141, 343. Summers v. Hibbard, Spencer, Bartlett & Co., 473. Sumner v. Jones, 269. V. Summers, 323. Sunderland v. Bell, 471. Sun Printing & Publishing Ass'n v. Moore, 413. Supreme Lodge v. Portingall, 382. Surles V. Pipkin, 181. Susquebanua Fertilizer Co. v. White, 397, 435. Sussex Peerage Case, 262. Sutch's Estate, In re, 108. Sutro V. Rhodes, 469. Sutton V. Beckwith, 403. V. Grey, 70. V. Head, 307, 308. V. Morgan, 228. V. Warren, 344, Suydam v. Jones, 373, 375. V. Westfall, 273. Swain v. Burnette, 91, 93. V, Schieffelin, 487, 488. V. Seamens, 65, 426, 427. Swales V. Jackson, 93. Swan V. Drury, 459. V. Nesmith, 71, 516, Swann v. Swann, 266, 267, 343. Swanson v. Kirby, 310. Swanstrom v. Balstad, 273. Swauzey v. Moore, 65. Swartwout v. Railroad Co., 288, Swasey y. Vanderheyden's Adm'r, 160. Swayne v. Riddle, 272. Swayze v. Hull, 291. Sweatland v. Telegraph Co.. 321. Sweeney v. Insurance Co., 277. V, McLeod, 285. V. Thoniason, 397. V, U. S., 460. Sweet V. Lumber Co., 77. Sweigart v. Berk, 380. Sweney v. Davidson, 225. Swift V. Bennott, 158. Swift Co, V. U, S., 540. CASES CITED. [The flgiu-es refer to pages.] Swift Iron Works v. Dewey, 396. Swiney v. Swiney, 54. Swisshelm's Appeal, 249. Switzer v. Noffsinger, 367, 368. Syers v. Jonas, 463. Sykes V. Chadwick, 114. V. St. Cloud, 466. Sylvester v. Heurich, 230. Synge v. Synge, 448, Tacoma Coal Co, v. Bradley, 407. Taft V. Brewster, 517, V. Sergeant, 167. Taggart v. Tevanny, 96. Taintor v. Prendergast, 521, 522. Talbot V. Bowen, 497, 501, Talbott V. English, 493. V. Stemmons' Ex'r, 114, Talcott V. Henderson, 221, 222. Taliaferro v. Bank, 505. Tallman v. Coffin, 374. v, Franklin, 86. Talmage v. Bierhouse, 514. V. Pell, 328. Tamplin v. Jones, 205, Tanner v, Merrill, 132, Tansley v. Turner, 103. Tapley v. Butterfleld, 500. v. Tapley, 240. Tardeveau v. Smith's EJx'r, 271. Tarrabochia v. Hickie, 211, 457, 466, Tasker v. Bartlett, 52, Tatam v. Reeve, 343, Tatlock v. Harris, 422. Tatterson v. Mfg. Co., 430. Tatum V. Kelley, 330. Taussig V. Hart, 510. Tayler v. Waters, 76. Tayloe v. Insurance Co., 25, 26, 30, 34. v. Sandiford, 410, 411. 437. Taylor, Ex parte, 174, V. Allen, 83, 86. V. Atchison, 198, V. Baldwin, 409. V. Bemiss, 299. V. Best, 146. V. Blanchard, 308. V. Bowers, 338. V. Brewer, 44. V. Caldwell, 475, 476. V. Carpenter, 147. V. Conner, 505, 507. CASES CITED [The figures refer to pages.] 641 Taylor v. Cottrell, 242, 243. V. Deseve, 79. V. Fleckenstein, 229. V. Fleet, 203. V. Ford, 203. V. Gas Co., 264. V. Hall, 145. V. Hare, 546. V. Hiestand, 273. V. Higgins, 535. V. Laird, 18. V. Larkin, 4M. V. Lougworth, 462. V. Newspaper Co., 413. V. Nostrand, 518. V. Portiugton, 44. V. Pratt, 87. V. Railroad Co., 440. V. Rennie, 31. V. Ross, 87. V. Short, 236. V. Smetten, 280. V. Smith, 88, 102. V. Spears, 542. V. Taylor, 248, 355, 381. V. Turley, 402. V. Weeks, 124. V. Williams, 107. V. Young, 268. Taymon v. Mitchell, 218. Teachout v. Van Hoesen, 227, 237. Teal V. Bilby, 421, 426, 460. V. Spangler, 436. Teass V. St. Albans, 74. Tecktonius v. Scott, 307. Teegarden v. Lewis, 537. Teeters v. Lamborn, 68. Teipel v. Meyer, 119. Telford v. Garrels, 273. V. Railroad Co., 288. Temperton v. Russell, 350. Temple v. Johnson, 93. Templeton v. Wile, 42. Tenant v. Elliott, 337. V. Tenant, 346. Tennent-Stribling Shoe Co, v. Roper, 269. Tennessee Mfg. Co. v. James, 412. Ten-e Haute & I. R. Oo. v. Stockwell, 505. Territt v. Bartlett, 262, 265, 330, 344. Terry v. Bissell, 469. Ter^illiger v. Murphy, 518. Tewksbury v. Howard, 85. Clabk Cont.(2d Ed.) — 41 Tewksbury v. Spruance, 510. Texas & P. R. Co. v. Smith, 320. Texas & St. L. R. Co. v. Robards, 288. V. Rust, 412. Testor v. Hutchings, 447. Thacher v. Hardy, 343. V. Pray, 541. Thacker v. Hardy, 278, 279, 334. V. Howell, 395. Thackrah v. Haas, 187. Thallhimer r. BrinckerhofE, 297, 298, 300, 365. Thames v. Jones, 359. Thatcher v. St. Andrew's Church, 54. Thayer v. Brackett, 442. V. Burchard, 119, 120. V. Daniels, 367, 370. V. Elliott, 346. T. Kelley, 365. V. Ivnote, 205. V. Luce, 88. V. Rock, 322. V. Viles, 58. Thing V. Libbey, 167. Third Nat. Bank v. Harrison, 279. V. Railroad Co., 369. Thomas v. Armstrong, 78. V. Atkinson, 523. V. Bartow, 208. V. Bland, 375. V. Cadwallader, 450. V. Caulkett, 257, 292. V. Coal Co., 16, 25. V. Cook, 70. V. Cronise, 276. V. Dike, 176. V. Evans, 442. V. Greenwood, 27, 29. V. Haywood, 374. V. Hunter, 267. V. Miles' Adm'r, 308, 324. V. Miller, 273. V. Railroad Co., 193, 289. . V. Richmond, 341. V. Thomas, 107, 109. V. Todd, 435. Thomas B. & W. Mfg. v. Railway Co., 487. Thomas' Ex'x v. Trustees, 89, 124. Thomas Mfg. Co. v. Prather, 356, 857. Thomason v. Dayton, 58. Thompson v. Alger, 104. V. Blanchard, 65, 87. V. Brannin, 396. 642 [The CASES CITED, figures refer to pages.] Thompson v. Brown, 424. V. Davenport, 520. V. Gaffey, 468. V. Gould, 201, 476. V. Hamilton, 163, 398. V. Hawks, 249. T. Howard, 539. V. Hudgins, 141. V. Lay, 167. V. Leach, 182. V. Lee, 218. V. Libby, 467. V. Lockwood, 242, 245. V. McKee, 393. V. Mfg. Co., 470. V. Niggley, 246. V. Peck, 237. V. Percival, 423. V. Reynolds, 296, 298. V. Rose, 239. V. Smith, 57. V. Stevens, 44. V. Stewart, 394, 513. V. Taylor, 343, 345. V. Warren, IBS, 298. V. Whitman, 293. Thomson v. Beal, 403. V. Gortner, 43, 44. V. James, 26. V. Poor, 421, 425. Thormaehlen v. Kaeppel, 166, 178. Thorn v. Kuapp, 4SS. V. Plnkham, 243. V. Smith, 231. Thomborow v. Whiteacre, 134. Thorndike v. Stone, 272. Thorne v. Deas, 111, 498. V. Yontz, 286, 335. Thomell v. Brockton, 395. Thornett v. Haines, 540. Thornhill v. Neats, 421. Thomtpn v. Appleton, 482, 483. V. Kelly, 84. V. Kempster, 202. V. Railroad Co., 407. V. Strauss, 537. V. Sturgis, 19. V. Wynn, 464. Thoroughgood's Case, 197. Thoi-p V. Thorp, 344. Thorpe v. Thorpe, 450. Thrall v. Newell, 405. V. Thrall, 218. Thrift V. Payne, 462. Thruston v. Thornton, 13, 22, 38. 40. Thum Co. V. TloczjTiski, 312. Thurman v. Burt, 244. Thurston v. Arnold, 409. V. Blanchard, 235. v. Ludwig, 426. V. Mills, 537. V. Minke, 376. Thwing V. Lumber Co., 201. Tibbetts v. Gerrish, 141. Tibbits V. George, 368. Tice V. Freeman, 86. Tichnor v. Hart, 19. Tiddy v. Harris, 130. Tier v. Lampson, 502, 526. Tightmeyer v. Mongold, 539. Tilley v. Ass'n, 271. V. Damon, 242. Tillier v. Whitehead, 499. Tillinghast v. Boothby, 311. Tillock V, Webb, 268, 269. Tillon V. Britton, 441. Tillotson V. Grapes, 471. V. Prichard, 375. Timmerman v. Dever, 311. Timothy v. Wright, 286. Tingle v. Fisher, 367, 370. Tingley v. Boom Co., 89. v. Land Co., 420. Tinn v. Hoffman, 21, 31, 36. Tisdale v. Han-is, 100. Tisher v. Becliwith, 53. Titcomb v. Vantyle, 180. Tobey v. Robinson, 323. V. Wood, 162. Tobias v. Lissberger, 464. V. Rogers, 534. Tobin V, Bass, 54. Todd V. Clapp, 162. V. Grove, 250. V. Huntington, 431. V. Stewart, 50. V. Stokes, 375. V. Weber, 356. Tode V. Gross, 312. Toland v. Corey, 206. V. Murray, 517. Toledo Sav. Bank v. Rathmann, 470. Toledo W. & W. R. Co. v. Chew, 549. Tolhurst V. Powers, 124. Tolman Co. v. Reed, 344. Tolson's Adm'r v. Garner. ISO. Tomkinson v. Straight. 102. Tompkins v. Batie, 442. CASES CITED. [The figures refer to pages.] 643 Tompkins v. Hill, 132, 492. Tone V. Shuuklaml, iiGT. V. Wilson, 218. Tool Co. V. Xon-is, 28G, 287. Topeka Water Supply Oo. v. Root, 183. Topbam v. Roche, 514. Toplilf V. McKendree, 41. V. Topliff, 407. Topp V. White, 471. Topping V. Bickford, 192. V. Swords, 42. Tornado, The, 475. Torrence v. Shedd, 296. Torrey v. U. S., 145. Totten V. U. S., 390. Touche V. Warehousing Co., 353. Touissaint v. Martiunant, 534. Touro V. Cassin, 344. Towle V. Dresser, 154, 164. V. Larrabee, 266. V. Leavitt, 513-515. V. Wadsworth, 75. Towner v. Lucas' Ex'r, 393. Town of Brandon v. Jackson, 132. Town of Eagle v. Kohn, 335. Town of Grand Isle v. Kinney, 119. Town of Hamden v. Merwin, 45. Town of Meredith v. Ladd, 282. Town of Royalton v. Turnpike Co., 405. Town of Rutland v. Page, 52. Town of Sharon v. Gager, 242. Town of Thetford v. Hubbard, 282. Townsend v. Cowles, 207, 226, 544. V. CroM'dy, 542, 543. V. Hargraves, 91, 92, 101, 103, 105. V. Minford, 81. V. Rackham, 357. V. Vanderwerker, 93, 94. V. Wagon Co., 480. Tracey v. Sacket, 251. Tracy v. Keith, 188. V. Talmage, 329, 330, 340. Trader v. Jarvis, 152. V. Lowe, 167. Traders' Bank v. Alsop, 335. Traders' Nat. Bank v. Parker, 123, 175. Tradesman's Bank v. Green, 367. Traill v. Baring, 218. Train v. Gold, 15, 107, 111. Trainer v. Trumbull, 157, 159, 160, 547. Trambly v. Ricard. 198. Trammell v. Vaughan, 444. Trasher v. Everhart, 52, 53. Trask v. Vinson, 471. Traver v. , 107, 113. Travers v. Orane, 528, 529. Travis v. Insurance Co., 32. Treadwell v. Tobert, 293. Treat v. Hiles, 75, 78. Tredway v. Riley, 344. Trentman v. Wahrenburg, 307. Trenton Mut. Life & Fire Ins. Co. v. Johnson, 276, 277. Trenton Potteries Co. v. Oliphant, 309, 310, 313, 315, 415. Trenton Terra Cotta Co. v. Shingle Co., 401. Tretheway v. Hulett, 236. Trevor v. Wood, 26, 27, 30, 83. Trigg V. Read, 207, 208, 544. Trimble v. Thorson, 501. Trlmbo v. Trimbo, 179. Trine, Appeal of, 271. Tripp V. Brownell, 366. Trist V. Child, 285, 286, 323. Troeder v. Hyams, 389. Trouson v. University, 452. Trotter v. Heckscher, 455. Trounstine v. Sellers, 22, 30. Ti'oup v. Appleman, 236. Trout V. Emmons, 513. Troutman v. Lucas, 492. Trower v. Elder, 412, 414. Troy V. Bland, 543. Troy Fertilizer Oo. v. Logan, 45. Troy & G. R. Co. v. Com., 145. Truax v. Miller, 132. Truby v. Mosgrove, 271, 272. Trudo V. Anderson, 513. True V. Telegraph Co., 487. Trueblood v. Trueblood, 154, 505. Trueman v. Fenton, 140. V. Loder, 85. Truett V. Wainwright, 480. Trundle's Adm'r v. Riley, 283, 284. Truscott V. King, 439. Trustees of Christian Church of Wol- cott V. Johnson, 192. Trustees of Cincinnati Tp. v. Ogden, 192. Trustees of Columbia College v. Lynch, 376. Trustees of Columbia College v. Thacher, 376. Trustees of First Baptist Church v. Bigelow, 90. 644 GASES CITED. [The figures refer to pages.] Trustees of First Orthodox Congrega- tional Cburcli V. Walratli, 414. Trustees of Maine Cent. Inst. v. Has- kell, 119. Trustees of Troy Conference Academy V. Nelson, 118. Tuck V. Downing, 219, 227. Tucker t. Bartle, 126. V. Cocke, 188. V. Lawrence, 32, 526. V. Moreland, 150, 152, 154, 170, 173. V. Mowray, 269. V. Smith, 399. V. Woods, 21, 35, 118. Tuckerman v. Hinkey, 268 V. Newhall, 382. Tucker Mfg. Co. v. Fairbanks, 520. Tufts V. Mining Co., 83. Tulk V. Moxhay, 376, Tullett V. Armstrong, I'ji', Tuoro V. Cassin, 546. Tupper V. Cadwell, 158, 159. Turlington v. Slaughter, 140, 142. Turnbull v. Brock, 126, 130. Turner v. Egerton, 533, 534. V. Frisby, 158, 548. V. Gaither, 156. V. Hubbell, 67. V. Insurance Co., 504. V. Mason, 100. V. Owen, 127. V. Flowden, 493. V. Rusk, 184. V. Thompson, 339. V. Webster, 547. Tuscaloosa Ice Mfg. Co. V. Williams, 315. Tutt V. Brown, 522. V. Ide, 244. Tuttle V. Armstead, 70, 534. V. Campbell, 537. V. Love, 21. Tweddle v. Atkinson, 352, 353. Tweeddale v. Tweeddale, 358. Tweedie Trading Co. v. James P. Mc- Donald Co., 474. Twenty-Third St. Baptist Church v. Cornell, 119. Twitchell v. Bridge, 218. Tyler v. Ass'n, 130. V. Carlisle, 330, 331, 338, 339. V. Fleming, 150, 169. V. Telegraph Co., 320. Tyler v. Waddington, 268. V. Young, 471. Tyler Cotton Press Co. v. Chevalier, 130. Tynan v. Dullnig, 90. Tysen v. Somerville, 424. iS'Son V. Passmore, 216. V. Rickard, 270, 274. u Udell V. Atherton, 524. Ueberroth v. Riegel, 22. Uecker v, Koehn, 168, 171. Uhler V. Applegate, 268. Uhlig V. Barnum, 421. UUman v. Ass'n, 339. Ullmann v. Railway Co., 403. Ulmer v. Farnsworth, 397. UlrJch V. Arnold, 41. Underwood v. Barker, 309. V. Brockman, 226. V. DoUins, 52. V. Lewis, 476. V. Scott, 264. V. Wolf, 421, 469. Unger v. Boas, 335. Ungericht v. State, 268. Union Bank v. Coster's Ex'rs, 24. V. Jacobs, 193. Union Cent. Life Ins. Co. v. Berlin, 322. V. Hilliard, 151, 271. V. Schidler, 235, 237. Union Hardware Co. v. Mfg. Co., 194. Union Locomotive & Express Co. v. Railway Co., 324, Union Mut. Ins. Co. v. Kirchoff. 58. Union Mut. Life Ins. Co. v. Hanford, 354. Union Nat. Bank v. Baldenwick, 435. V. Miller, 30. V. Railroad Co., 262. V. Roberts, 480. Union Pac. R. Co. v. Anderson, 132. V. Durant, 354. V. McAlpine, 94. V. Rainey, 319. Union Railway Storage Co. v. McDer- mott, 357. Union Strawboard Co. v. Bonfield, 308. U. S. V. Ass'n, 313. V. Bainbridge, 151. V. Behan, 449, 468, 488. CASES CITED. [The figures refer to pages.] 645 D. S. V. Blakeney, 152. V. Biadley, 322, 324. V. Charles, 201. V. Clarke, 145. V. Cummiiig, 145. V. E. C. Kight Co., 313. V. Grossmaj'er, 147. V. Hodgsou, 324. V. Holmes, 146. V, Huckabee, 240, 241, 243. V. Ingate, 145. V. Kirkpatrick, 439. V. Lane, 145. V. Mora, 324. V. Morgan, 435. V. Nortbern Securities Co., 314. V. Price, 3&4. V. Railroad Co., 405. V. Ptodgers, 345. V. Spalding, 482. V. Tlngey, 145. United States Fire & Marine Ins. Co. V. Kimberly, 214. United States Mortgage Co. v. Hen- derson, 125, 177, 505, 722. Universal Fashion Co. v. Skinner, 390. Updike V. Ten Broeck, 78. Updyke v. Titus, 109. Up River Ice Co. v. Denier, 310, 364. Upson V. Holmes, 76. * Upton V. Tribilcock, 198, 207, 226. Upton Mfg. Co. V. Huiske, 464. Urmston v. Whitelegg, 306, 313. Urquhart v. Mortgage Co., 485. Usher v. McBratney, 290. Utley V. Donaldson, 28, 29, 426. V Vahlberg v. Keaton, 273. Vail V. Durant, 516. Vale V. Insurance Co., 214. Valentine v. Bell. 141. V. P'oster, 109. V. Piper, 389. Valentini v. Canali, 174. Vallandingham v. Johnson, 170. Vallett V. Parker, 335. Valley Ry. Co. v. Iron Co., 544. Valpy V. Sanders, 539. Van Alen v. Vanderpool, 515. Van Alstyne v. Van Slyck, 415. Van Atta v. McKinney's Ex'rs, 149. Van Bramer v. Cooper, 162. Van Brunt v. Eoll\ 482, 483. V. Singley, 198. Van Campen v. P'ord, 123. Vance v. Funk, 52. V. Lowther, 480. V. Word, 176. Van Clief v. Van Vechten, 431. Vanderbeck v. Rochester, 544. V. Vanderbeck, 419. Vanderbilt v. Schreyer, 127, 128. Van Deusen v. Blum, 547. V. Sweet, 181. Van Dusen v. Mining Co., 526. Van Gorder v. Bank, 122. Van Horn v. Hann, 181. V. Keenan, 187. V. Kittitas County, 292. V. Van Horn, 350. Van Houten v. Morse, 223. Van Hoven v. Irish, 209. Van Keuren v. Corkins, 368. Van Leyen v. Wreford, 380. Vannoy v. Patton, 265. Van Patton v. Beals, 184. Van Santen v. Oil Co., 535. Van Schaick v. Edwards, 344. V. Van Buren, 44. Van Syckel v. O'Hearn, 425. Van Trotha v. Bamberger, 75. Van Valkenburg v. Rogers, 22. Van Valkenburgh v. Smith, 59. Van Valkinburgh v. Watson, 159, 548. Van Vleet v. Sledge, 343. Van Vleit v. Jones, 58. Van Wyck v. Brasher, 187. Varney v. Conery, 131, 492. v. French, 266. Varnum v. Hygate, 201. V. Thruston, 406. Vassar v. Camp, 26, 27, 30. Vasse V. Smith, 178. Vaughan v. Godman, 54. V. Porter, 405. Vaught V. Rider, 275. Vawter v. Baker, 517. V. Griffin, 100. Veach v. Thompson, 246. Veal V. Fortson, 163. Veazey v. Allen, 285. Veazie v. Williams, 238. Vohue V. Pinkham, 164. 175. Venezuela R. Co. v. Kisch, 216. Veunum v. Gregory, 508. 046 CASES CITED. [The figures refer to pages.] Vent V. Osgood, 150, 153, 1G4, 170, 175. Wahl v. Barnum, Vermont Loan & Trust Co. v. Hoff- man, 261. Vickery v. Welch, 312. Vilas V, Downer, 149. Vilett V. Moler, 227. Village of Port Jervis v. Bank, 535. Viual V. Improvement Co., 207. Vincent v. Germond, 101. Viney v. Rignold, 295. Vinton v. Baldwin, 508. Vinz V. Beatty, 269. Violett V. Patton, 87. V. Powell's Adm'r, &4, 85. VioHette v. Rice, 392. Virginia Hot Springs Co. v. Harrison, 28. Vischer v. Yates, 276, 291. Viser v. Bertrand, 304, 331. Vittum V. Estey, 444. Vogle V. Ripper, 483. Vogt V. Hecker, 473. Volk V. Stowell, 477. Voluntary Relief Department v. Spen- cer, 295. Volz V. Grummett, 409. Von Brandenstein v. Ebensberger, 124. Vooght V. Winch, 50. Vos V. Robinson, 398. Vosburgh v. Diefendorf, 335. Vose V. Insurance C5o., 215. Vought V. Williams, 460. Vreeland v. Stone Co., 232. Vrooman v. McKaig, 537. V. Tui'ner, 357. w Un. V. James, 237. Creamery Co. v. Wabash Val. Prot. Waddy Bluegrass Mfg. Co., 416. Wade V. Kalbfleisch, 7, 378. V. Pulsifer, 249. V. Simeon, 124. Wadhams v. Page, 423. Wadleigh v. Sutton, 551. Wadsworth v. Sharpsteen, 187. V. Wendell, 52. Wager v. Wagoner, 183. Waggoner v. Gray's Adm'rs, 69. Wagner v. Breed, 343. V. Hildebrand, 278. V. Insurance Co., 233. V. J. &, G. Meakin. 119. 78. Wailing v. Toll, 155, 157. Wain V. Warlters, 87. Wainer v. Insurance Co., 105. Wainwright v. Wilkinson, 154. Wait V. Baker, 103. V. Maxwell, 182. V. Pomeroy, 479, 480. V. Wait's Ex'r, 69. Waite V. Leggett, 16, 543. V. Merrill, 546. Wake V. Harrop, 388, 394. Wakefield v. Brown, 394. Wakeman v. Mfg. Co., 488. Walden v. Insurance Co., 214. Waldron v. Murphy, 442. Wales V. Stout, 66. Walker v. Abt, 272. V. Bank, 380. V. Barron, 398 V. Brooks, 364. V. Brown, 16. V. Conant, 538, 543. V. Cronin, 350. V. Denison, 430, 526. V. Douglas, 403. V. Duncan, 549. V. Ebert, 198. V. Edward Thompson Co., 432, V. Emerson, 495. V. France, 394. V. Gregory, 300. V. Haggerty, 507. V. Henry, 141. V. Herring, 515. V. Jeffries, 330. V. Johnson, 80. V. Lovell, 324. V. McCulloch, 381. V. Nussey, 104. V. Perkins, 300, 345. V. Perrj'man, 298. V. Railroad Co., 78. V. Shackelford, 96. V. Skipwith, 514. V. Smith, 111. V. Supple, 101. V. Tucker, 475. V. Walker, 54, 303. Wall V. Railroad Co., 35. V. Schneider, 280. V. Wall, 54. 55. Wallace v. ILirris, 247. V. Jewell, 481. CASES CITED. [The figures refer to pages.] 647 Wallace v. Lawyer, 503. V. Morgan, 3138. V. Morss, 177. V. Railway Ck)., 229. V. Kappleye, 300, 301. V. Scoggin, 94. V. Tlce, 483. V. Townsend, 37. Wallace's Lessee v. Lewis, 169, 170. V. Miner, 58. Waller v. Cralle, 244. Wallis V. Bardwell, 158. V, Carpenter, 383, 412. Wall's Appeal, 44. Walls V. Bailey, 399. Walpole V. Bridges, 429. Walsh V. Ass'n, 39, 441. V. Featlierstone, 356. V. Fisher, 476. V. Morse, 229. V. Trevanion, 403. Walter v. Foutz, 274. V. Victor G. Bloede Co., 65. Walter A. Wood Mach. Co. v. Gaert- ner, 393. Walters v. Eaves, 230. Walton V. Black, 455. V. Burton, 54. V. Hastings, 480. Walton Plow Oo. v. Campbell, 483. Wambole v. Foote, 154. Wamsley v. Lindenberger, 153. Wanmaker v. Van Buskirk, 495. Wann v. McNulty, 478. Wanner v. Landis, 390. Waples V. Hastings, 154. Ward V. Anderson, 169. V. Armstrong, 217, 248, 249. V. Building Co., 411, 412. V. Hackett, 481. V. Hobbs, 224. V. Hollins, 134. V. Johnson, 380, 383. V. Laverty, 166. V. Matthews, 80, 409. V. Morrison, 370. V. Vance, 475. V. Vosburgh, 343. V. Ward, 267. Warden v. Fosdick, 235. V. Williams, 42. Warder, Bushnell & Glessner Co. v. Whitish, 228. V. Willyard, 483. Ware v. Allen, 70, 392. V. Cartledge, 154. V. Chappell, 450, 451. V. Curry, 324. V. Wisner, 146, 147. Warfield v. Booth, 308. Waring v. Mason, 85, 90. Warner v. Martin, 511. V. Railway Co., 77, 79. V. Willoughby, 72. Warnock v. Campbell, 186. V. Davis, 277. Warren v. Abbett, 70. V. Bank, 366. v. Costello, 119. V. Hodge, 126. V. Lynch, 52, 53. V. Wheeler, 433. Warren Chemical & Mfg. CJo. v. Hol- brook, 77. W^arring v. Williams, 484. Warrington v. Early, 481. Warwick v. Cooper, 154. Washaw v. Gimble, 305. Washbourn v. Burrows, 76. Washburn v. Dosch, 80, 307. V. Fletcher, 26. V. Investment Co., 356. Washington v. Johnson, 428. Washington, A. & G. Steam Packet Co. V. Sickles, 79. Washington Brewery Co. v. Carry, 93. Washington Cent. Imp. Co. v. New- lands, 228. Washington Mills Mfg. Co. v. Insur- ance Co., 215. Washington Nat. Building, Loan & In- vestment Ass'n V. Stanley, 271, 344. Washington Natural Gas Co. v. John- son, 437. Washington University v. Finch, 148. Wassermann v. Sloss, 338. Watchman v. Crook, 465. Waterbury v. Andrews, 231. V. Egan, 264. Waterman v. Andrews, 406. V. Banks, 410. V. Merrow, 367. Waters v. Bean, 141. V. Mattingley, 223, 224. V. Shafer, 68. V. Tompkins, 496. V. Trust Co., 118. G48 CASES CITED. [The figures refer to pages.] Waters t. White, 121, 122. Watkins v. Baird, 242. V. Brant, 249. V. De Armond, 499. V. Hodges, 421. V. Rymill, 20. V. "Watkins, 7. Watson V. Bagaley, 367. V. Baker, 216. V. Blaine, 404. V. Blossom, 135. V. Brown, 203. V. Cresap, 545. V. Oi'oss, 155, 158. V. Doyle, 115. V. Inhabitants, 487. V. King, 529. V. Mahan, 249. V. Randall, 69. V. Sherman, 90, 500. V. Turner, 140. Watson's Ex'rs v. McLaren, 87. Watt V. Cranberry Co., 84, 85. Watte V. Wickersham, 2S0. Watters v. McGuigan, 74. Watts v. Camors, 411, 414. V. Frenche, 126, 130. V. Van Ness, 266. V. Weston, 486. V. Witt, 94. Waugh V. Beck, 331. V. Cope, 438. V. Mon-is, 326. Way V. Langley, 257. V. Si)erry, 140. Waydell v. Luer, 423. Wayman v, Wayman, 18. Waymell v. Reed, 329. Wayne Co. v. Randall, 544. Wead V. Larkin, 375. Weare v. Gove, 518. Weatherby v. Smith, 273. Weaver v. Burr, 30, 33, 36. V. Harlan, 339. V. Jones, 151, 153. v. Whitney, 283, 284. Webb V. Buckelew, 494. v. England, 490. V. Railroad Co., 100. V. Steele, 362. V. Stephenson, 448. Webber v. Bridgman, 528. V. Donelly, 330. V. Howe, 346. Weber v. Barrett, 243, 294. V. Christen, 54. V. Shay, 293. V. Squier, 486. Webster v. Anderson, 103. V. Brown, 85. V, Cecil, 205, 208, 400, 490. V. Fleming, 357, 358. V. Gray, 93. V. Le Compte, 65, 141. V. Hunger, 329, 345. V. Woodford, 179. Weed V. Adams, 516. V. Black, 285. V. Burt, 526, V. Jewett, 365. Week V. Tibold, 40, 41. Weeks v. Hunt, 369. V. Lippencott, 291. V. Maillardet, 56. V. Martin, 74. Weems v. Jones, 273. Weiden v. Woodruff, 21, 31, 33, 34. Weidler v. Kauffman, 362. Weidner v. Phillips, 227. Weintz v. Hai'ner, 457. Weir V. Hudnut, 104. V. Marley, 305. W^eir Plow Co. v. Walmsley, 407, Weis V. Devlin, 473. Welch V. Bunce, 164. V. Darling, 95. V. Goodwin, 521. V. McDonald, 412. V. Mandeville, 362. V. Marvin, 68. V. Miller, 492. V. Welch, 154. V. Whelpley, 93. Weld V. Bank, 441. V. Nichols, 376. Weller's Appeal, 199. Welling V. Ass'n, 345. Wellington v. Kelly, 298. Wells V. Alexandre, 120. V. Atkinson, 405. V. Calnan, 473, 476. V. Foster, 284, 285. V. Monihan, 96. V. People, 262, 264. V. Porter, 534. V. SeLxas, 166. V. Smith, 409. V. Stout, 303. CASES CITED. [Tha figures refer to pages.] 649 Wells V. TregusaD, 404. V. Wells, 150. Wellstoa Coal Co. v. Paper C!o., 468. Welsh v. Gossler, 462. V. Huckestein, 397. Welty V. Jacobs, 490. Wendover v. Baker, 126. Wentworth v. Day, 38. V. Dows, 4G9. V. Woodside, 266. Werner v. Humphreys, 37. Werner's Appeal, 155. Wertz V. Telegraph Co., 320. Wessell V. Glenn, 480. Wesson v. Com., 145. West V. Anderson, 221, 224. V. Bechtel, 410, 455, 456, 466. V. Blakeway, 424. V. Camden, 301. V. Gregg, 158. V. Holmes, 276. V. Moore, 176. V. Russell, 180. V. Van Pelt, 462. Westcott V. Mitchell, 126, 128. Western Assur. Co. v. Towle, 538, 539. Western Union Tel. Co. v. Blanchard, 320. V. Carew, 320. V. Chamblee, 320. V. Cook, 320. V. Griffin, 268. V. Linn, 320. V. Railroad Co., 289. V. Semmes, 449. V. Shotter, 204. V. Telegraph Co., 289. V. Tyler, 320. V. Wilson, 268. V. Yopst, 268. Western Wooden-Ware Ass'n v. Star- key, 307. Western & A. R. Co. v. Bishop, 319. V. Cotton Mills, 343. Westfall V. Parsons, 96. Westlake v. Adams, 546. Westlake & Button v. St. Louis, 540. Westman v. Krumweide, 392. Westmeath v. Westmeath, 303. Weston V. Myers, 89. Weston Paper Co. v. Comstock, 293. Westropp V. Solomon, 545. West Virginia Trausp. Co. v. Pipe Lme Co., 281, 376. Wetherell v. Jay, 437. V. Langston, 382. Wetmore v. Mell, 15. Weyerhauser v. Dun, 481. Whaley v. Hinchman, 83. Wharton v. McKenzie, 155, 150. Wheadon v. Olds, 208, 543. Wheat V. Cross, 26, 31, 34, 469. V. Rice, 356. Wheaton v. East, 168, 169. V. Wheaton, 207, 226. Wheelden v. Lyford, 266. Wheeler v. Baars, 228. V. Dunn, 237. V. Frankenthal, 81, 9a. V. Glasgow, 7. V. Knaggs, 527. V. McGuire, 513, 514. V. Marchbanks, 272. V. Nevins, 500. V. Pounds, 297. V. Railroad Co., 22, 418. V. Reed, 520. V. Reynolds, 94. V. Russell, 265. V. Sleigh Co., 505. V. Spencer, 276, 339. V. Stewart, 353. Wheeler & Wilson Mfg. Co. v. Aughey, 507. Wheelock v. Freeman, 16, 480. Wheelwright v. Wheelwright, 55, Whelan v. Clock Co., 473. V. Cook, 148. V. Sullivan, 86. Wheleu v, Boyd, 460. Whelpdale's Case, 381. Whipple V. Foot, 76. V. Parker, 80, 95. Whitaker v. Burrows, 95. V. Groover, 437. V. Whitaker, 108. Whitbeck v. Van Ness, 436. Whitcomb v. Gilman, 267. V. Hardy, 185. V. Joslyn, 177. White V. Bank, 340, 341. V. Barber, 278. V. Baxter, 22. V. Bigelow, 73. V. Bluett, 135. V. Buss, 261, 330. V. Codies, 3, 22, 25. V. Cotton Waste Corp., 174. C50 CASES CITED. [The figures refer to pages.] White V. Drew, 104. V. Dwyer, 273. V. Farley, 179. V. Foster, 76. V. Fox, 480. V. Hass, 480. V. Hey 1 man, 243. V. Holland, 81. V. Kunts, 133. V. Kuntz, 258. V. Levy, 81. V. Madison, 517. V. Miller, 58. V. Pollock, 54. V. Railroad Co., 295. V. Rintoul, 69. V. Ross, 250. V. Skinner, 517. V. Smitli, 405. V. Trumbull, 439. V. Walker, 425. V. Wilson's Adm'rs, 331. White's Heirs v. Prentiss' Heirs, 370. Whitefield v. Longfellow, 241, 242. Whiteford v. Hitchcock, 42. Whitehead v. Burgess, 356. V. Greetham, 111. V. Potter, 517. V. Tuckett, 514. Whitehill v. Wilson, 49. White Sewing Mach. Co. v. Dakin, 482. Whiteside v. Brawley, 229. V. U. S., 145. Whitesides v. Bank, 480. V. Hunt, 278, 279, 332, 342. White Star Line Steamboat Co. v. Moragne, 56. Whiting V. Ohlert, 81. V. Price, 229. Whitman v. Arms Co., 368. Whitmarsh v. Hall, 164, 170, 176. V. Walker, 76. Whitney v. Bank, 469. V. Boardman, 224. V. Clary, 122. T. Cook, 492. V. Dutch, 154, 162, 167. V. Esson, 400. V. Express Co., 509. V. Gammon, 327. V. Hale, 54, 55. V. Kirtlaud, 300. V. Snyder, 198. V. Wyman, 504. Whitney Arms Co. v. Barlow, 193. Whittaker, Ex parte, 222. V. Improvement Co., 236, 244. Whittemore v. Gibbs, 100. V. Oil Co., 381. Whittier v. Collins, 252. V. Dana, 65. Whittin V. Fitzwater, 222. Whittingham's Case, 154. Whitty V. McCarthy, 296. Whulton V, Hardesty, 215. Wibaux V. Live Stock Co., 380, 383. Wicker v. Hoppock, 259. Wickes Bros. v. Electric Light Co., 395. Wickes' Lessee v. Caulk, 482. Wickiser v. Cook. 249. Wicks v. Smith, 236, 238. Widman v. Gay, 453. Widoe V. Webb, 323. Wieland v. Kobick, 177. Wier V. Batdorf, 91. Wiggin V. Cumings, 382. V. Goodwin, 426. Wiggins Ferry Co. v. Railroad Co., 280, 373. Wigglesworth v. Dollison, 396i. V. Steers, 187. Wight V. Riiidskopf, 286. Wilbur V. Flood, 236. V. Stoepel, 302. V. Warren, 108. V. Wilbur, 354, 355. Wilcox V. Arnold, 14L V. Cline, 22, 30. V. Daniels, 323. V. Draper, 24. V. Howland, 244, 273. V. University, 218, 230. V. Wood, 396. Wilcox Silver Plate Co. v. Green, 103. Wilde V. Wilde, 304. Wildey v. Collier, 286. v. Crane, 71, 297. Wiley V. Baumgardner, 59, 312. V. Inhabitants, 466, 468. V. Logan, 508. Wilhelm v. Eaves, 83, 414. v. Fagan, 83. V. Hardman, 156, 172, 174 V. Voss, 72. Wilkie V. Roosevelt, 272. Wilkin Mfg. Co. v. Lumber Co., 28. Wilkinson v. Byers, 132. CASES CITED. [The figures refer to pages.] 651 Wilkinson v. Coverdale, 111, 498. V. Heaveuncii, 89. V. Johnson, 482. V. Lindo, 382. V. Scott, 58. V. Slierman, 236. V. Stitt, 277. V. Towsley, 276. V. Williamson, 397. Willard v. Eastham, 190, 191. V. Tayloe, 33, 491. V. Wood, 354. Willcox V. Jackson, 187. William Butcher Steel Works v. At- kinson, 79. Wm. Rogers Mfg. Co. v. Rogers, 490. Williams v. Bank, 520. V. Barfield, 264. V. Bayley, 293. V. Bemis, 79, 553. V. Bradley, 381. V. Bryan, 274. V. Carpenter, 435. V. Carrington, 133. V. Carwardine, 40. V. Collins, 250. V. Flowers, 273. V. Forbes, 108. V. Fowle, 297. V. Getty, 514. V. Griffith, 438. V. Harrison, 153. V. Hathaway, 137. V. Healey, 452. V. Higgins, 56, 111. V. Inabet, 187. V. Kent, 392. V. Kerr, 225, 236. V. Lake, 84. V. Latham, 54. V. Mitchell, 495, 514. V. Moor, 141. V. Paine, 147. V. Pasquali, 174. V, Paul, 269, 270. V. Railway Co., 40. V. Robbins, 520. V. Robinson, 89, 105. V. Schatz, 54. V. Shackelford, 148. V. Sopieha, 181. V. Son-ell, 368. V. Spurr, 215, 221. V. Tiedemann, 331. Williams v. Wentworth. 181. V. Woods, 90, 512. Williams Mfg. Co. v. Brass Co., 433. Williamson v. Baley, 331, V. Brandenberg, 269. V. Cllne, 478. V. McClure, 404. V. Railroad Co., 288. William Wilcox Mfg. Co. v. Brazos, 261. Willing V. Peters, 130, 138. Willingham v. King, 148. Willis V. Gammill, 130. V. Terry, 58. T. Twambly, 153, 164, 165, 369. Willmering v. McGaughey, 402. Willoughby v. Willoughby, 415. Wills V. Brown, 71. V. Carpenter, 29. Willson V. Baltimore, 412. V. Foree, 549. Willwerth t. Leonard, 182. Willy V. Robert, 85. Wilmot V. Lyon, 222. Wilson V. Barker, 543. V. Bauman, 397. Bevans, 70. Carpenter's Adm'r, 22a Carson, 367. Cooper, 406. Darragh, 168. Doran, 441. Edmonds, 137, 138. Gerhardt, 374. V. Guyton, 38. V. Hundlej', 235. V. Insurance Co., 206. Kilburn, 272. McCormick, 380. Marlow, 405. Martin, 81. Milligan, 269. Morton, 74. Oldham, 179. Powers, 126, 392. V. Railway Co., 490. V. Roots, 404, 462. V. Strugnell, 339. V. Tumman, 503, 504. V. Wallace, 382. V. White, 222. V. Wilson, 404. V. Winter. 269. Wilson's Assignee v. Beam, 426. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. 652 CASES CITED. [The figures refer to pages.] Wilson S. M. Co. v. Curry, 244. Wilstach V. Heyd, 88. Wilton V. Tazwell, 534. Wimer v. Smitli, 233. Winans v. Mfg. Co., 110. Winberry v. Koonce, 367. Winch V. Ice Co., 412. Wincliell v. Cary, 270. V. Express Co., 514. V. Noyes, 549. Winchester v. Howard, 199, 200, 522. V. Nutter, 276. Winchester Electric Light Co. v. Veal, 337. Wind V. Her, 344. Windbiel v. Carroll, 543. Windell v. Hudson, 69. Windham v. Doles, 419, 420. Wiudhill Local Board v. Vint, 294. Windmuller v. Pope, 444. Wineland v. Insurance Co., 214. Winiield v. Dodge, 269, 270. Winlield Nat. Bank v. Croco, 241. Wing V. Chase, 53. V. Mill, 140. V. Peck, 59. Wingate v. Neid linger, 435. Winn V. Bull, 29, 43. Winne v. Hammond, 516. Winnebago MUls v. Travis, 439. Winpenny v. French, 287. Winslow V. Railway Co., 296. V. Stokes, 493. Winston v. Young, 226. Winter v. Coit, 516. Winters v. Chen-y, 80. Winward v. Lincoln, 345. Wirebach's Ei'r v. Bank, 186. Wisconsin, I. & N. R. Co. v. Braham, 120. Wise V. Foote, 247. V. Miller, 24. Wislizenus v. O'Fallon, 141, 1'^. AV' isuer v. Bardwell, 323. Witbeck v. Waine, 58, 478. Witherby v. Mann, 492. Witherow v. Witherow, 453. Withers v. Greene, 469. V. Reynolds, 456. V. Richardson, 72. Witte V. Fishing Co., 193. V. Williams, 483. Wittenberg v. Mollyncaux, 307. Wolcott V. Mount, 4G3, 4G7. Wolf V. Fink, 435. V. Marsh, 448. V. Wolf, 75. Wolfe V. Home, 515. V. Howes, 477, 550. V. Pugh, 524. Wolfe V. Campbell, 400. V. Koppel, 71. Wolffe V. Eberlein, 141. Wolford V. Powers, 107. Wollcott V. Heath, 280. Wolters V. Thomas, 423. Wolverton v. Davis, 71. Womack v. Womack, 174. Wonsettler v. Lee, 96. Wood V. Allen, 397, 406. V. Bank, 522. V. Boynton, 203. V. Chetwood, 27, 55. V. College, 403. V. Faut, 494. V. Gamble, 493. V. Goodridge, 513. V. Hitchcock, 442. V. Lock Co., 19a V. Losey, 158. V. McCain, 503, 513. V. McCann, 285. V. Moriarty, 70, 355, 356, 418, 422* V. New York, 369. V. Paper Co., 413. V. Partridge, 367. V. Roeder, 207. V. Sheldon, 469, 545. V. Steele, 479, 480, 483. V. Whelen, 504. V. Whitehead Bros. Co., 308. Woodbridge v. De W^itt, 229. Woodbridge Tp. v. Hall, 512, 519. Woodburn v. Woodbm-n, 121. Woodbury v. Woodbury, 247, 249. Wooddy V. Insurance Co., 63. Wooden v. Shotwell, 333. Woodham v. Allen, 293, 340, Woodland v. Newhall's Adm'r, 354. Woodle V. Whitney, 463. Woodman v. Davis, 510. V. Segar, 389. Wood Reaping & Mowing Mach. Co. V. Smith, 433. Woodruff V. Dobbins, 424. V. Hinman. 323. V. Railroad Co., 505, V. Scuiie, 69. CASES CITED. [The figures refer to pages.] 653 Woods V. Roberts, 249. Woodson V. BaiTett, 3G9. Woodstock Iron Ck). v. Extension Co., 257, 288. Woodward v. Washburn, 350. Woodworth v. Anderson, 481. V. Bank, 4S0. Wooldridge v. Hancock, 94. V. Stern, 79. Wooley V. Drew, 251. Woolner v. Hill, 449. Woo tan V. Hasket, 276. Wooten V. Hinkle, 258. V. Walters, 454. V. Wilcox, 71. Worden v. Sharp, 81. Work V. Cowhick, 88. Workman v. Campbell, 285. V. Wright, 503. Work's Appeal, 242. Worley v. Sipe, 77, 121. Wornock v. Loar, 158. Worrall v. Muun, 500, 501. Worrell v. Forsyth, 393. Worth V. Case, 112. V. Patton, 95. Worthington, In re, 284. V. Beeman, 45. V. Worthington, 180. Worthy v. Jones, 79. Wright V. Bank, 180. V. Brown, 222. V. Crabbs, 315, 331. V. Davenport, 464, 469. V. Dickinson, 545. V. Graham, 147. V. Herrick, 526. V. Hughes, 194. V. Leonard, 189. V. McCampbell, 476. V. Remington, 245. V. Rindskopf, 294. V. Ryder, 308. V. Terry, 356. V. Waller, 187. V. Wright, 114, 180. Wristen v. Bowles, 28. Wroth V. Johnson, 276, 291. Wulschner v. Ward, 426. Wunderle v. Wunderle, 147. WyaBt V. Lesher, 301. Wyckoff V. Mickle, 90. Wyeth V. W^alzl, 236- Wyley v. Bull, 17. Wyman v. Wiuslow, 442. Wynkoop v. Cowing, 462. W. & H. M. Gouldiug v. Hammond' 36, 37. Xeno3 V. Wickham, 32, 54. Yale V. Dederer, 191. V. Flanders, 53. Yates V. Been, 179. V. Donaldson, 381, 534. V. Foot, 383. V. Robertson, 264. V. Valentine, 492. V. Yates, 514. Yates' Adm'rs v. Hollingsworth, 141. Yazoo & M. V. R. Co. v. Fulton, 492. Yeager v. Musgrave, 482. V. Yeager, 393. Yeager Milling Co. v. Lawler, 222, 225. Yellow Poplar Lumber Co. v. Rule, 79. Yellowstone Kit v. State, 281. Yerring^on v. Green, 551. V. Greene, 378, 476. YoDoski V. State, 267. York V. EQnkle, 244. V. Orton, 423. York & M. Line R. Co. v. Winans, 288. Youn V. Lament, 187. Young V. Adams, 435. V. Arntze, 236, 237. V. Cole, 545. V. Dake, 81. V. Daniels, 409, 410. V. Herman, 17. V. Hill, 273. V. McKee, 171. V. Paul, 188. V. Stevens, 180, 183. V. Thomson, 293. V. Wheeler, 75. V. Young, 226. Young Bros. Mach. Co. v. Young, 466. Younge v. Guilbeau, 53. Young Men's Christian Ass'n v. Oi'oft, 357. Youngs V. Public Schools, .358, Young's Estate, In re, 17. 654 CASES CITED. [The figures refer to pages.] Zabrislde v. Railroad Co., 369, 467. V. Smith, 365. V. Woodruff, 149. Zacharie v. Franklin, 89. Zaleski v. Clark, 432. Zeigler v. Hughes. 217, 248, 249. Zell V. Insurance Co., 63. Zell Guano Co. v. Emry, 257. Zeltner v. Irwin, 42. Zetterlund v. Coal Co., 364. Ziegler v. McFarland, 393. Zimmerman v. Brown, 33. V. Zimmerman, 18. Zimmler v. Water Co., 58. Zoebisch v. Von Minden, 125. Zouch V. Parsons, 152-154, 16f. Zuck V. McClure, 444. Zucker v. Karpeles, 221. Zundel v. Gess, 147. INDEX. [the figures refer to pages.] A ABANDONMENT OF CONTRACT, by mutual consent, 418. by one party, breach, 444. contract created by law after, 549, 552. of wife by husband, authority of wife to bind husband, 499, 548. ABSOLUTE PROMISES, what are, 450. ABUSE OF PROCESS, see "Duress." ACCEPTANCE, see "Frauds, Statute of" ; "Offer.'* forms of, 14. communication by conduct, 15. necessity for, 21. contracts by correspondence, 25. necessity for communication of, 22-27. must be absolute, 27. and identical with terms of offer, 27. manner of, 30. place of, 30. time of, 30. after lapse of offer, 36. when complete, 22. loss or delay of letter or telegram, 25. effect of. 21. by one of several parties, revocation of offer, 31. of offer to the public generally, 39. of deed, 53. of goods sold, 101. ACCIDENT, see "Mistake." act of God, 428. alteration of instrument by, 4S2. inherent defects in property carried by carrier, 428. ACCORD AND SATISFACTION, discharge by, 491. consideration, 122, 124, 132, 491. Clabk Cont. (655) 656 INDEX. [The figures refer to pages.] ACQUIESCENCE, see "Ratification." acceptance by, IG. ratification of infant's contract by, 169. in breach of condition, 4GU. ACTION, who may sue and be sued, see "Operation of Contract" ; "Quasi Contract" remedies on breach of contract, 484. damages, 485. specific performance, 489. injunction, 490. discharge of right of action, 491. by consent of parties, 49L. I'elease, 491. accord and satisfaction, 491. by judgment, 493. lapse of time, statute of limitations, 495. champerty and maintenance, 296. by or against United States, 145. foreign states or sovereigns, 146. aliens, 147. convicts, 148. married women, 191. by attorney for services, 149. against agent on contract of named principal, 517. ACT OF GOD, effect, 428. ADMINISTRATOR, see "Executors and Administrators.' ADVERTISEMENT, offers by, 38, 41. acceptance and revocation of ofCer, 39. AFFECTION, as a consideration, 108. AFFIRMANCE, see "Ratification." AGENCY, in general, 497. distinguished from sale, 98. creation of the relation, 497. capacity of the parties, 154, 497. how the relation may arise, 498. gratuitous agency, 498. agency of necessity, 499. agency quasi ex contractu, 499. partnership, 499. ratification of unauthorized acts, 502. ratification of contract made by corporate agent, 192. form of authority, 500. necessity for seal, 500. necessity for writing, 84, 90, 500. Implied authority, estoppel by conduct, 501, 514, 526. INDEX. 657 [The figures refer to pages.] AGENCY— Continued. effect of the relation, 507. rights and liabilities of principal and agent inter se, 507. duties of principal, 508. duties of agent, 508. fraud and breach of trust, 508. delegation of authority by agent, 510. rights and liabilities as to third persons, 512. ~^v^^^ where principal is named, 512. general and special agents, 513. extent of agent's authority, 512. auctioneers, 515. factors, 515. brokers, 51C. del credere agent, 516. rights and liabilities of agent, 516. contracts under seal, 517. foreign principal, 517. contracts in excess of authority or without authority, 517. warranty of authority, 518. name of principal undisclosed, 519. existence of principal undisclosed, 521. fraud of agent, 523. husband as wife's agent, 501. wife as husband's agent, 501. to purchase necessaries, 499, 547. child as parent's agent, 501. servant as master's agent, 501. determination of the relation, 524. by agreement, 525. by act of parties, 525. by operation of law, 527. unlawful agreements by agent, 301. rights of factors, brokers, and other agents, 341. authority to bind government, 145. creation of contractual relations through agents, 348. AGREEMENT. see "Acceptance" ; "Mistake" ; "Offer" ; "Reality of Consent" ; ""Par- ties to Contracts." defined, 2. essentials, 2-4. concurrence of agreement and obligation, &-9. revocation of agency by, 525. ALIENS, who are, 146. power to contract, 146. alien enemies, 147, 290. actions by or against, 147. ALTERATION, of contract by substituted agreement, 420. consideration, 12, 419. statute of frauds, G5, 426. Clakk Cont.(2d Ed.) — 42 658 INDEX. [The figures refer to pages.] ALTERATION— Continued. of instrument as a discharge, 479. by whom, 482. intent, 482. consent, 483. of law, as a discharge, 474. as bearing on legality of agreement, 346. filling blanks in deed, 56. APPLICATION, of payments, 437. APPRENTICES, death of master, 378. ARBITRATION, provisions for, legality, 294. ARMY, enlistment by infant, 151. ASSAULT AND BATTERY, agreement to commit, 256. ASSIGNMENT OF CONTRACT, in general, 348, 359. of liabilities by act of party, 360. of rights by act of party, at law, 361. novation, 361. recognition of equitable assignment at law, 363. equitable assignment, 363. what is assignable, 364. partial assignment, 366. form of assignment, 366. notice of assignment, 367. title of assignee, equities and defenses, 368. priority between assignees, 370. under statutes, 370. customs of the law merchant, 371. bills of exchange and promissory notes, 371. by operation of law, 372. of obligations on transfer of interests in land, 372. by marriage, 377. by death, 377. by bankruptcy, 372. of patent or copyright, 64. of salary or pension by officer, 284. ASSIGNMENTS, voluntary assignments by Infant, 151. ATTORNEYS, power to contract, 149, 264. champerty and maintenance, 296. undue influence over client, 249. AUCTION SALES, advertisement, 41. auctioneer as agent of the parties, 515. for making memorandum to satisfy statute of fraud"?, 90 INDEX. 659 [The figures refer to pages.] AUCTION SALES— Continued as contracts within statute of frauds, 98. efifect of fraud, 258. AUTHORITY, see "Agency." AVOIDANCE, see "Discharge of Contract"; "Drunken Person"; "Duress"; "Fraud'"; "Infants" ; "Insane Persons" ; "Misrepresentation" ; "Mistake" ; "lie- scission" ; "Undue Influence." B BAILMENT, see "Carriers." gratuitous, 111. BANKRUPTCY, frauds on creditors, 257. assignment by, 372. as a discharge of contract, 484. as revocation of agency, 527. promise to pay debt after discharge in bankruptcy, 140. BASTARDS, bond for support by infant, 151. BENEFITS, see "Quasi Contract." acceptance of, as affecting right to rescind for fraud, 236. BETS, see "Unlawful Agreements." BIDDING, see "Auction Sales," BILLS AND NOTES, necessity for written form, 63. for acceptance of bill, 63. consideration, 111. execution on Sunday, 268. transfer, 371. bona fide purchasers, 335. of notes of drunken persons, 187. discharge by agreement, 419. waiver of discharge, 140. rescission for fraud, 239. alteration, 479. usury, 270. effect of illegality, 334. payment of check by mistake, 544. payment by, 435. BILLS OF LADING, implied conditions, 428. 660 INDEX. [The figures refer to pages.] BLANKS, see "Alteration." execution of deed in blank, 56. BOND, see "Contracts under Seal." defined, 51. delivery in escrow, 55. assignment, 371. alteration, 481. BOOKS, entries in, as memoranda required by statute of frauds, 83. BOYCOTTS, see "Unlawful Agreements." BREACH OF CONTRACT, see "Impossibility." as a discharge, 443. forms of breach, 443. renunciation of contract, 444. impossibility of performance created by act of party, 448. failure of performance, 449. whether promise is dependent or independent, 450 absolute promises, 450. divisible promises, 453. subsidiary promises, 457. condition and warranty distinguished, 209, 465. conditional promises, in general, 458. breach of concurrent condition, 459. breach of condition precedent, 459. caused by other party, 468. suspensory conditions, 459. failure of consideration, 468. executed consideration, 471. executory contracts of sale, 462. executed contracts of sale, 464. condition precedent in narrower sense, 464. waiver or acquiescence in breach of condition, 466. remedies on breach, 484. recovery of money paid, 471. damages, 485. specific performance, 489. injunction, 490. discharge of right of action, 491, by consent of parties, 491. release, 491. accord and satisfaction, 491. by judgment, 493. by lapse of time, statute of limitations, 495. liability of third person for inducing breach, 349. BREACH OF MARRIAGE PROMISE, death after breach, action by executor, 378. damages, 487. INDEX. fiUl [The figures refer to pages.] BRIBERY, see "Unlawful Agreements." BROKER, see "Agency." defined, 516. CANCELLATION, see "Discharge of Contract." CAPACITY OF PARTIES, • see "Parties to Contracts." CARRIERS, unlawful agreements by. In general, 288. limiting liability, 319. conditions implied in contract, 428. CAVEAT EMPTOR, see "Fraud." CERTAINTY, as to parties, 4. as to rights and liabilities, 5. discussed, 43. id certum est quod certum reddi potest, 44. sufficiency of memorandum, statute of frauds, 82, 104. vague promise, no consideration, 135. CHAMPERTY AND MAINTENANCE, validity of agreements, 296. CHANGE, see "Alteration." CHARITIES, legality of Sunday contract as work of charity, 267. CHOSES IN ACTION, see "Assignment of Contract." CLASSIFICATION, of contracts, 47-61. COMBINATIONS, see "Unlawful Agreements." COMMUNICATION, of intention, 3. of offer, necessity, 18. by conduct, 15. terms of offer partly uncommunicated. 19. of acceptance, 22-27. of revocation of offer, 33. COMPOSITION WITH CREDITORS, consideration, 133. effect of fraud, 257. COMPOUNDING CRIME, validity of agreements, 293. 662 INDEX. [The figures refer to pages.] COMPOUND INTEREST, usury, 272. COMPROMISES, see "Composition with Creditors." consideration, 122, 124, 132, 133. COMPULSION, see "Duress." CONCEALMENT, see "Fraud." CONCURRENT CONDITIONS, see "Conditions." CONDITIONS, see "Breacli of Contract" ; "Impossibility." as effecting mutuality, 117, 119. distinguislied from warranties, 209, 465. from misrepresentation, 209. whether promises are dependent or independent, 450. conditional promises, in general, 458. conditions subsequent, 427. concurrent conditions, 459. conditions precedent, 459. suspensory conditions, 459. vital conditions, 461. executory contracts of sale, 462. executed contracts of sale, 464. narrower sense of condition precedent, 464. waiver or acquiescence in breach of condition, 466. conditional acceptance, lapse of offer, 36. delivery of deed in escrow, 55. precedent to rescission of contract for fraud, 237. agreements for arbitration before action on contract, 295. conditional payment by negotiable or nonnegotiable instrument, 435. CONDUCT, see "Agency"; "Estoppel"; "Fraud." communication by, 15-18. ■ acceptance by, 22-27. CONFIDENTIAL RELATIONS, see "Agency" ; "Fraud" ; "Misrepresentation" ; "Undue Influence." CONFLICT OF LAWS, statute of frauds, 97. legality of contract, 342. CONSENT, see "Agreement." reality of, 195. to alteration of instrument, 483. discharge of right of action by, 491. CONSIDERATION, see "Unlawful Agreements" ; "Discharge of Contract." defined and explained, 47, 106. "valuable," distinguished from "good," 108. INDEX. C03 [The figures refer to pages.] CONSIDERATION— Continued. distinguished from motive, 107, 108. necessity for, in general, 110. negotiable instruments, 111. contracts under seal, 59. presumption of. 111, 112. adequacy, 112. in equity, 115. sufficiency or reality, 116. mutual promises, 117. voluntary subscriptions, 118. contingent and conditional promises, 119. forbearance to exercise a right, 121. compromises, 124. time of forbearance, 123. to do what one cannot legally do, 123. gratuitous bailment, 111. gratuitous employment, 111, gratuitous agency, 498. natural affection, 108. moral obligation, 108, 138. Impossible promises, 134. vague promises, 135. doing or promising what one is bound to do, 126. mutual discharge and substituted agreement, 2. promise to third person to perform existing contract, 129, part payment in satisfaction of debt, 129-133. gift of residue, 130. release of residue under seal, 130. consideration for release of residue, 131. accord and satisfaction, 132. compromise, 132. composition with creditors, 133. legality, 136. partial illegality, 321. in respect of time, 136. executory and executed, 14, 136. past consideration, 136. failure of, 468. executed, 471. recovery of money paid, 544. expression in memorandum, statute of frauds, 86, 104. not necessary for ratification of infant's contract, 107. return of, on avoidance of contract, by infant, 171. by insane person, 185. by drunken person, 187. for fraud, 237. for discharge of unliquidated claim, 132. for discharge of contract, 419. CONSPIRACY, unlawful agreements, 256. CONSTRUCTION. see "Interpretation of Contract." 664 INDEX. [The figures reler to pagoa.] CONTINGENT FEES, champertous agreements, 298. CONTRACT, see specific heads, defined, 1. executory and executed, 1. as a legal conception, 2-12. agreement, 2-4. obligation, 5, 6. concurrence of agreement and obligation, 5-9. promise, 9, 10. essentials, 12. classification, 47-61. void, voidable, and unenforceable, 10, 11, reduction to writing, 43. CONTRACTS OP RECORD, defined, 49. quasi contract, 8, 494, 530. CONTRACTS UNDER SEAL, in general, 51. terms, "deed," "bond," "specialty," and "covenant," 6L how made, 51. delivery and acceptance, 53. necessity for acceptance, 20. revocation of offer, 32. escrow, 51, 55. execution in blank, 56. deed poll and indenture, 57. characteristics, 57. estoppel, 57. merger of simple contract, 58, 478. limitation of actions, 59. as dispensing with necessity for consideration. 58. want of consideration, effect in equity, 60. when necessary, 61. use of seal by corporation, 192, communication of offer, 20. proof of, 387, 388. release under seal, 130. form of discharge by agreement, 424. action by third person, 358. by agent, necessity for authority under seal, 500. ratification of contract under seal, 500. liability of agent, 517. CONTRIBUTION, between joint debtors, 384, 534.- between co-sureties, 384, 534. between tort feasors, 535. CONVEYANCES, see "Contracts under Seal." necessity of deed, 61. INDEX. 665 [The figures refer to pages.] CONVEYANCES— Continued. necessity for written form, 64. not a contract, 7. CONVICTS, power to contract, 148. effect of conviction of husband on right of married woman to contract, 189. COPYRIGHT, assignment, 64. CORNERING THE MARKET, validity of combinations, 315. CORPORATIONS, capacity to contract, 191. what contracts are authorized, 193. ultra vires contracts, 193. mode of contracting, seal, 61, 192. implied contracts, 192. ratification of contracts, 192, 504. records of, as memorandum required by statute of frauds, 8S. misrepresentations in sale of shares, 216. unlawful agreements by officers of, 301. CORRESPONDENCE, revocation of offer by, 33. acceptance of contract by, 25. payment by mail, 435. COURTS, agreements ousting jurisdiction, 294. COVENANT, see "Contracts under Seal." defined, 51. running with the land, 372. COVERTURE, see "Married Women." CRIME, agreements to commit, 256. compounding, 293. CRIMINALS, see "Convicts." CROPS, sale of, statute of frauds, 75, 101. CUSTOM AND USAGE, evidence of, 396. to add a term, 396. to explain terms, 396. requisites of, 397. D DAMAGES, for breach of contract, 485. remote and proximate, 486. 666 INDEX. [The figures refer to pages.] DAMAGES— Continued. vindictive, punitive, or exemplary, 487. assessment by parties, 488. speculative profits, 488. penalty or liquidated damages, 411. DEATH, of party before acceptance of offer, lapse, 37. of parties after delivery of deed in escrow, 55. of infant, avoidance of contract by heirs, 162. of joint promisor, 381. of joint promisee, 382. assignment by, 377. as discharge of contract, 476. as revocation of agency, 528. DECEIT, see "Fraud." DEED, see "Contracts under Seal." contracts under seal, 51. deed poll and indenture, 57. execution in blank, 56. delivery, 53. escrow, 55. statute of frauds, 91. alteration, 479. revocation before acceptance, 32. for conveyance of land, 64. parol evidence, 391. estoppel by, 57. DEFAULT, see "Discharge of Contract." DEFINITENESS, see "Certainty." DELAY, see "Laches." DEL CREDERE AGENT, defined, 516. DELEGATION, of authority by agent, 510. DELICT, see "Tort." DELIVERY, of deed, 53. of written contract, 91. of Sunday contract, 268. of goods under statute of frauds, lOL assignment by delivery, 371. parol evidence, 301. INDEX. 6U7 [Tho figures refer to pages.] DELUSION, see "Insane Persons." DEMENTIA, see "Insane Persons." DEPENDENT PROMISES, see "Conditions." DETERMINATION OF CONTRACT, see "Agency" ; "Discharge of Contract." DISABILITIES, see "Limitation of Actions" ; "Parties to Contracts." DISAFFIRMANCE, see "Rescission." DISCHARGE OF CONTRACT, see "Accord and Satisfaction." in general, 417. by agreement,418. waiver, cancellation, or rescission, 418. substituted agreement, 127, 420. change of terms, 420. novation, 420. form of discharge by agreement, 424. provisions for discharge contained in contract, conditions subsequent, 427. nonfulfillment of term, 427. occurrence of specified event, 428. act of God, 428. perils of the sea, 428. discharge optional with notice, 429. by performance, 430. payment, 4.34. by negotiable or nonnegotiable paper, 435. application of payments, 437. tender. 440. by breach, 443. breach caused by other party, 468. forms of breach, 443. renunciation of contract, 444. impossibility of performance created by act of party, 448. failure of performance, 449. dependent or independent promises, 450. absolute promises, 450. divisible promises, 453. subsidiary promises, 457. condition and warranty distinguished, 209, 465.. conditional promises in general, 458. breach of concurrent condition, 459. breach of condition precedent, 459. suspensory conditions, 459. vital conditions. 461. failure of consideration, 408. 608 INDEX. [The figures refer to pages.] DISCHARGE OF CONTRACT— Continued. executory contracts of sale, 462. executed consideration, 471. executed contracts of sale, 464. conditions precedent in narrower sense, 464. waiver or acquiescence in breach of condition, 460* by impossibility of performance in general, 472. performance prevented by other party, 477. change in the law, 474. destruction of the subject-matter, 475. Incapacity for personal services, 476. by operation of law, 478. merger, 478. alteration of written instrument, 479. by whom, 482. intent. 482. consent, 483. loss of instrument, 484. bankruptcy, 484. * remedies on breach of contract, 484. recovery of money paid, 471. damages, 485. specific performance, 489. injunction, 490. discharge of right of action, 491. by consent of parties, release, 491. accord and satisfaction, 491. by judgment, 493. lapse of time, statute of limitations, 495. discharge of surety, 385. effect of war, 147. DIVISIBLE CONTRACTS, see "Indivisible Contracts." what are, 453. effect of illegality, 324. breach, 453. DIVORCE, agreements to facilitate, 304. DRUNKEN PERSONS, see "Insane Persons." , capacity to contract, 186. contracts created by law, 187. contracts for necessaries, 187, 547. effect of being under guardianship, 180. ratification and avoidance of contract, 186. return of consideration, 187. avoidance as against third persons, 187. DURESS, see "Undue Influence." in general, 240. effect, 240, 246. per minas, 241. INDEX. 6C9 [The figures refer to pages.] DURESS— Continued. of miprisonment, 242. of goods, 243. against wiiom, 244. by wliom, 245. refusal to perform contract, 2. recovery of money paid under duress, 540. EASEMENT, statute of frauds, 76. ELECTION OF REMEDIES, waiver of tort, 538, 549. ELECTIONS, agreements tending to impair Integrity of, 290. ENEMIES, see "Aliens." ENLISTMENT, by infant, 151. EQUITABLE ASSIGNMENT, see "Assignment of Contract." EQUITY, adequacy of consideration, 115. necessity for consideration, contract under seal, 60. part performance of contract, statute of frauds, 92. compelling execution of writing, 95. enjoining breach, 490. specific performance, 489. remedies for mistake, 207. effect of fraud of infant, 177. separate estate of married woman, 100. equitable estoppel by representation, 218. equitable assignments, 363-370, extrinsic evidence as to interpretation of contracts, 400. ESCROW, defined and discussed, 55. parol evidence, 391. delivery of deed, statute of frauds, 91. ESTOPPEL, see "Laches." by deed, 57. by judgment, 49, 493. by misrepresentations, 218. of infant, 177. of married woman, 189. agency by, 501, 514, 526. EVIDENCE, see "Interpretation of Contract." parol evidence, statute of frauds, 82-90. 670 INDEX. [The figures refer to pages.] EVIDENCE— Continued. presumption of consideration, 111, 112. Interpretation of contracts, 38G-401. agreements for suppression of, 292. EXECUTED CONTRACT, defined, 1. not within statute of frauds, 65. the term criticised, 7. of infant, 152. EXECUTORS AND ADMINISTRATORS, acceptance of offer on behalf of estate, 37. promise to answer for debts of estate, 6G. avoidance of contract of insane person by, 184. EXECUTORY CONTRACT, defined, 1. EXEMPTION, from liability for negligence, 318. F FACTOR, see "Agency." defined, 515. FAILURE OF CONSIDERATION, see "Consideration." FALSE REPRESENTATIONS, see "Fraud" ; "Misrepresentations." FIDUCIARY RELATIONS, see "Agency"; "Undue Influence"; "Unlawful Agreements." FOOD, regulations as to sales of food products, 264. FORBEARANCE, see "Consideration." FOREIGNERS, see "Aliens." FOREIGN STATES AND SOVEREIGNS, capacity to contract, 146. actions by and against, 146. FORM, see "Contracts of Record" ; "Contracts under Sell" ; "Frauds, Stat- ute of." defined, 47. necessity, 47. classification of contracts, 47. of discharge of contract by agreement, 424. FRAUD, see "Duress" ; "Misrepresentation" ; "Quasi Contract" ; "Undue In- fluence" ; "Unlawful Agreements." In general, 220. distinguished from misrepresentation, 209. INDEX. 671 [The figures refer to pages.] FRAUD— Continued. distinguished from illegality, 259. what constitutes, 220. necessity for representation of fact, 220. nondisclosure of facts, 220. intention not to fulfill promise, 221. concealment of facts, 222. silence, 223. character of representation, 224. statement of opinion or expectation, 224. statement of intention or promise, 225. misrepresentation of law, 226. materiality, 226. right to rely on statements, 226. caveat emptor, 223, 226. credulity and negligence of party defrauded, 228. knowledge of falsity, recklessness, 229. intention, 230. dishonesty of motive, 232. representation must deceive, 232. injury must result, 233. of officer of corporation, 301. of agent, 301, 523. in contracting without authority, 518. avoidance of contract, 523. of infant, 177. of married woman, 189. on creditors, 257. effect, 234. remedies of party defrauded, 234. on affirmance, 235. on rescission, 235. limitations to right to rescind, delay. 236. acting on contract after knowledge of fraud, 236. return of consideration, and placing in statu quo, 237. as against third persons, 238. recovery of money obtained by fraud, 540. waiver of tort, and suit in assumpsit, 540, 549. money received without fraud, 541. FRAUDS, STATUTE OF, the English statute, 64. quasi contracts, or contracts created by law, 64. Instruments created under, and deriving obligation from, special stat- utes, 65. executed contracts, 65. promise by executor or administrator, 66. promise to answer for debt, default, or miscarriage of another, 66. agreements in consideration of marriage, 72. agreements relating to land, 73. agreements not to be performed within a year, 77. part performance, 80. form required by section 4. memorandum, 82. showing as to agreement, 84. 672 INDEX. [The figures refer to pages.] FRAUDS, STATUTE OF— Continued, as to pai-ties, 8-4. as to terms, 85. as to subject-matter, 86. as to consideration, 86. separate papers, 87. signature, 88. by agent, 90, 500. parol ratification, 506. delivery, 91. effect of noncompliance with section 4, 91. part performance as taking contract out of statute, 73, 80, 92, 101, 552. recovery on Implied contract for part performance, 95. conflict of laws, 97. parol contract as a defense, 96. • who may plead the statute, 96. waiver of statute, 9G. sales of goods, etc., seventeenth section. 97. meaning of "goods, wares, and merchandises," IOC value, 99. work and labor, 99. acceptance and receipt, 101. earnest and part payment, 104. form required by section 17, 104. effect of noncompliance with section 17, 105. FUTURES, unlawful intent on one side, 331. G GAMING, validity of contracts, 275. insurance, 277. premiums oT purses, 277. futures, 278. loan to pay gambling debt, 330. GIFT, not a contract, 7. of residue on part payment of debt, 130. GOVERNMENT, see "States" ; "United States." validity of agreements affecting, 289. GRATUITOUS AGENCY, in general, 498. GRATUITOUS PROMISES, see "Consideration"; "Contracts under SeaL** necessity of seal, 61. effect of seal, 59. GUARANTY, acceptance of offer, 24. statute of frauds, 66. memorandum required by statute of frauds, 84. INDEX. 673 [The figures refer to pages.] GUARDIAN AND WARD, avoidance of contract of insane person by guardian, 184. contracts by drunl^en person under guardianship, 187. contracts between, undue influence, 249. H IIUSRAND AND WIFE, see "Marriage" ; "Married Women." assignment of contract by marriage, 377. antenuptial debts of wife, infant liusband's liability, 151. liability for necessaries furnisbod to wife or child of infant, 158. contracts of married women, 188. wife as husband's agent, 501. to purchase necessaries. 499, 547. revocation of agency, 52G. husband as wife's agent, 501. agreements in derogation of marriage relation, 302-304. IDIOTS, see "Insane Persons." IGNORANCE, see "Mistake." of offer or acceptance, 18-27. of public offer, performance of services, 39. of terms and conditions of offer, 19. of insanity of party to contract, 183. ILLEGALITY, see "Unlawful Agreements." IMMORAL AGREEMENTS, see "Unlawful Agreements." IMPLIED CONTRACTS, see "Quasi Contract." the term e.xplaiued, IG, 530. formation by conduct, 15-18. distinguished from quasi contract, 530. when conti-act implied in fact, 15-18. relationship of parties, 17. from part perfox*mance of contract within statute of frauds, 95, 552. of corporation, 192. discharge of contract by occurrence of implied conditions, 428. IMPOSSIBILITY, meaning of term, 134. impossible promise, no consideration, 134. created by act of party, as a breach, 448. as a discharge of contract, 472. change in the law, 474. destruction of subject-matter, 475. incapacity for personal services, 476. Clark Cont.(2d Ed.) — 43 674 INDEX. [The figures refer to pages.] IMPRISONMENT, see "Duress." IMPROVEMENTS, effect under statute of frauds, 93. INCOMPLETE NEGOTIATIONS, are not contract, 42. INDENTURE, defined, 57. INDEPENDENT PROMISES, see "Conditions." whether promises dependent or independent, 450. INDIVISIBLE CONTRACTS, see "Divisible Contracts." what are, 453. effect of illegality, 322. breach, 453. INFANTS, who are, 150. capacity to contract, 149. appointment of agent, 154- effect of emancipation, 150. removal of disabilities, 150. the old doctrine as to effect of conti'acts, 150. valid contracts, 151. liability for wife's antenuptial debts, 151. under authority or direction of statute, 151. doing what could have been compelled, 152. executed contracts, 152. contracts for necessaries, rules stated, 155. what are necessaries, 155. must concern his person, 157. money, 158. necessaries furnished wife and children, 158. persons supplying Infant act at their peril, 159. question of law or fact, 159. express contract and securities, 159. quasi contract, 548. void contracts, 153. voidable contracts, 153. ratification and avoidance of contract, 160. ratification, 140. cannot ratify act of agent, 505. when disaffirmance necessary, 160. when ratification necessary, 161. who may avoid contract, privilege personal, 102. time of avoidance, 164. delay in avoiding, 104. what amounts to ratification, 166. implied ratification, 1G6. necessity for writing, 63, KiO. what amounts to disaflirmance, 170. INDEX. 675 [The figures refer to pages.] INFANTS— Continued. implied disaffirmance, 170. extent of ratification or disaffirmance, 171. return of consideration, 171. effect of ratification, 175. effect of disaffirmance, 175. as against tliird persons, 175. torts In connection witti contracts, 176. emi)loyment in violation of statute, 264. INJUNCTION, against breach of contract, 490. INSANE PERSONS, capacity to contract, 178. contracts created by law, 181. effect of contracts, 180. contracts as void or voidable, 181. • contracts for necessaries, 181, 547. effect of Inquisition and adjudication of lunacy, 182. Ignorance and good faith of the other party, 183. ratification , and avoidance of contract, 184. personal privilege as to avoidance, 184. return of consideration, 185. avoidance as against third persons, 185. Insanity before acceptance of offer, lapse of offer, 37. mental weakness, undue influence, 251. revocation of agency by insanity, 528. INSOLVENCY, promise to pay debt after discharge in Insolvency, 140. frauds on creditors, 257. INSURANCE, form, writing, 63. misrepresentations, 213. Insurable interest, 277. wagering contracts, 275, 277. INTENTION, see "Acceptance"; "Alteration"; "Fraud"; "Mistake"; "Offer"; "Un- lawful Agreements." must be expressed, 3. must be distinct and common, 3. must be communicated, 3. legal relations must be contemplated, 40. Invitations to deal, 41. offers in jest, 41. fraudulent, 230. usurious, 274. sales for future delivery, 278. fraudulent representations as to matters of intention, 225. alteration of instrument, 482. INTEREST, usury, 270. alteration as to, 481. 076 INDEX. [The figures refer to pages.) INTEREST— Continued. insurable interest, 277. revocation of agency coupled with interest, 527, 529. INTERPRETATION OF CONTRACTS, in general, 386. rules relating to evidence, in general, 386. parol evidence, 386. province of court and jury, 387. difference between formal and simple contracts, 388. proof of document, 388. contracts under seal, 388. simple contracts, 389. evidence as to fact and validity of agreement, 390. as to terms of agreement, 392. proof of supplementary or collateral terms, 393. explanation of terms, 394. evidence of custom or usage, 396. to add a term, 396. to explain terms, 390, requisites of custom or usage, 397. evidence as to terms in equity, 400, rules of construction, in general, 402. terms implied, unexpressed intention, 407. rules as to time, 408. penalty or liquidated damages, 411. joint and several contracts, 415. liabilities, 415. subscriptions, 415. rights, 416. INTOXICATING LIQUORS, sales in violation of statute, 265. INTOXICATION. see "Drunken Persons." INVITATIONS TO DEAL, distinguished from offers, 41. J JEST, offer In jest, 41. JOINT AND SEVERAL CONTRACTS, see "Interpretation of Contract" ; "Operation of Contract' JOKE, offer in jest, 41. JUDGMENTS, as constituting contract, 8, 49, 530. estoppel by, 49. 493. merger of cause of action, 50, 493. remedies on, 50. INDEX. 677 IThe figures refer to pages.) K KNOWLEDGE, of revocation of offer, 33. of public offer, performance of services, 40. of falsity of representations, 229. L LACHES, in avoiding contract of infant, 164. of Insane person, 184. of drunken person, 186. on the ground of mistake, 20S. on the gi-ound of fraud, 236. on the gi'ound of duress, 246. on the ground of undue influence, 252. acquiescence in breach of contract, 466. discharging right of action, 495. LANDLORD AND TENANT, statute of frauds, 73, 81. lease in violation of statute, 265. covenants affecting leasehold iBterests, 873. LAPSE, of offer, 36-38. LEASE, see "Landlord and Tenant." LEGALITY, see "Unlawful Agreements." LEGAL RELATIONS, agreement must refer to, 4, 6, 40. offer must be capable of creating, 40. LETTERS, acceptance by posting letter, 25. as memoranda required by statute of frauds, 83. LEX LOCI AND LEX FORI, see "Conflict of Laws." LIBEL AND SLANDER, unlawful agreements, 256, 259. LICENSE, statute of frauds, 176. failure to procure, 264. LIMITATION OF ACTIONS, in general, 495. disabilities and exceptions, 495. acknowledgment and new promise, 141, 49S. writing, 63. part payment. 496. on contracts. 59. 678 INDEX. [The egures refer to pages.] LIMITING LIABILITY, for negligence, 318. LIQUIDATED DAMAGES, or penalty, 411. LOANS, usury, 270. for Illegal purposes, 330. LOBBYING CONTRACTS, validity, 285. LOCUS PCENITENTIiE, see "Unlawful Agreements." LOSS, of Instrument, 484. LOTTERIES, validity, 280. LOVE AND AFFECTION, as a consideration, 108. LUNATICS, see "Insane Persons." M MAIL, acceptance of contract by, 25. death of proposer after acceptance, 37. payment by mail, 435. MAINTENANCE, validity of contracts, 296, 297. MARRIAGE, see "Husband and Wife" ; "Married Women." not a contract, 7, 9. assignment by, 377. marriage brocage contracts, 302. agreements in consideration of, statute of frauds, 72. part performance, 73. promise to marry, statute of frauds, 72, 81. consideration, 117. by married person, 304, note. as a consideration, 116. agreements in restraint of, 302. as revocation of agency, 528. MARRIED WOMEN, see "Husband and Wife." capacity to contract, 188. at common law, 189. in equity, 190. torts in connection with contract, 189. equitable separate estate, 190. common law changed by statute, 191. promises during coverture, ratification, 141. INDEX. 679 [The figures refer to pages.] MASTER AND SERVANT, see "Agency." contract for services, statute of frauds, 81. specific performance, 490. discbarge of contract of employment, 428, 429. by breacb, 444. by deatb or illness, 476. enticing away servant, 349. servant as master's agent, 501. employment of infants, 264. limiting master's liability for negligence, 318. combinations between employes, 316. combinations between employers, 318. MAXIMS, id certum est quod certum reddi potest, 44. ex dolo malo non oritur actio, 336. MEASURE OF DAMAGES, see "Damages." MEMORANDUM, required by statute of frauds, 82, 104. MENTAL INCAPACITY, see "Drunlien Persons" ; "Infants" ; "Insane Persons." MERGER, of cause of action in judgment, 50, 493. of simple contract in contract under seal, 58, 478. MINORS, see "Infants." MISREPRESENTATION, see "Fraud." in general, 208. wbnt amounts to a representation, 219. distinguished from fraud, 209. from conditions and warranties, 209. effect. 209, 213. confidential relations, 216. contracts of suretyship, 217. effect in equity, 217. estoppel by, 218. contracts of insurance, 213. contracts for the sale of land, 215. contracts to purchase shares in companies, 216. by infants, 176. by married women, 189. MISTAKE, see "Fraud" ; "Misrepresentation." in general, 196. as to nature of transaction, 196. as to person with whom contract is made, 199. as to subject-matter of contract, 200. existence of subject-matter, 201. identity of subject-matter, 202. 680 INDEX. [The figures refer to pages.] MISTAKE— Continued. nature and essential qualities of subject-matter, 202. as to quantity, 204. as to price, 204. as to nature of promise known to the other party, 204. of law, 206. effect, 207. remedies, 207. unlawful agreements, mistake of fact, 326. mistake of law, 325. effect on ratification of agent's acts, o05. alteration of instrument, 482. payment under, 542. avoidance of contract as to third persons, 197. MODIFICATION, see "Alteration." MONEY PAID, recovery, 533. MONET RECEIVED, recovery, 530-547. MONOPOLIES, validity of combinations, 312-318. MORALITY, see "Unlawful Agreements." MORAL OBLIGATION, as consideration, 108, 138, 301. MOTIVE, distinguished from consideration, 107. in making fraudulent representations, 232. MUNICIPAL CORPORATIONS. resolution of city council as memorandum required by statute of frauds, 83. MUTUALITY, necessity, 117, 119. MUTUAL PROMISES, consideration, 117. N NECESSARIES, see "Agency"; "Drunken Persons"; "Infants"; "Insane Persons"; "Quasi Contract." NEGLIGENCE, see "Laches." limiting liability, 318. of party defrauded. 197. 228. in receiving counterfeit ivA9h as payment, 435, note, of agent, .508. NEGOTIABLE INSTRUMENTS, see "Bills and Notes." INDEX. 6S1 LThe figures refer to pages.] NON COMPOS MENTIS, see "Insane Persons." NOTICE. of offer, 18. of acceptance, 22-27. of revocation of offer, 33. of agent's authority, 526', of assignment. yUT, priority, 370. of happening of condition, 4^Hi. NOVATION, what constitutes, 362, 420. NUDUM PACTUM, see "Consideration" ; "Promise." OBLIGATION, see "Quasi Contract." defined, 5. essentials, 5, 6. sources of, 8, 9. concurrence of agreement and obligation, 5-9, OBSTRUCTING JUSTICE, validity of agreements, 292. OFFER, see "Acceptance." forms of, 13-15, communication by conduct, 15-18. necessity for communication, 18-20. terms partly uncommunicated, 19. revocation of, 31-3G. communication of revocation, 33. agreement to keep offer open, 33, 119. lapse of, 3&-38. to the public generally, 38. acceptance and revocation, 39. as referring to legal relations, 40. must be definite and certain, 43. made in jest, 41. distinguished from invitations to deal, 41 incomplete negotiations, 41. OFFICE AND OFFICER, traffic in public offices, 282. agreements affecting compensation of officers, 283 assignment of salary or pension of officer, 284. corruption of public officers, 286. lobbying contracts, 285. OPERATION OF CONTRACT, see "Agency" ; "Assignment of Contract'* In general, 347. 682 INDEX. [The figures refer to pages.] OPERATION OF CONTRACT— Continued, limits of contractual relation, 347. agency, 348. assignment, 348. imposing liability on third persons, 349. imposing duty on third persons not to interfere, 349. conferring rights on third persons, 351. promise for benefit of third person, 352. action by third party for many joint contractors, 358. Joint and several contracts, 379. joint contracts, 379. release, 381, 382. survivorship, 381, 382. several contracts, 383. survivorship, 383. contracts both joint and several, 384. survivorship, 384. contribution between joint debtors, 384. assignment of rights and liabilities, 359-378. OPINION, representations as to matters of opinion, 224. OPTIONS, revocation, 33. consideration, mutuality, 119. to terminate contract, 429. ORAL CONTRACTS, see "Acceptance"; "Frauds, Statute of"; "Interpretation of Con- tract"; "OfCer." classification, 47. P PAR DELICTUM, see "Unlawful Agreements." PARENT AND CHILD, undue influence, 248. child as parent's agent, 501. agreements in derogation of y arental relation, 305. PAROL CONTRACTS, defined, 48. classification, 47. PAROL EVIDENCE, see "Interpretation of Contract." interpretation of contract, 3SG-401. PARTIES TO CONTRACTS, see "Drunlien Persons"; "Infants"; "Insane Persons"; "Operation ol Contract." two parties necessary, 3, 5. signature, statute of frauds, 88, 90. showing as to, statute of frauds, 84. mistake as to identity of party, 199. must be definite, 4. INDEX. 683 [The figures refer to pages.] PARTIES TO CONTRACTS— Continued, joint and several liability, 379, 415. capacity to contract, in general, 45, 143. political status, states and United States, 144. foreign states and sovereigns, 146. aliens, 146. alien enemies, 147. convicts, 148. professional status, 149. Infants, 149-178. insane persons, 178-180. drunken persons, 186-188. married wonen, 188. corporations, 191. to appoint agent. 497. to act as agent, 497. limits of contractual relations, 347. imposing liability on third persons, 349. conferring rights on third persons, 351-359. assignment of rights and liabilities, 359-378. consent to alteration, 483. PARTNERSHIP, see "Agency." statute of frauds, 75, 98. avoidance of contract of, by infant, 165. agency of partners, 499. dissolution before acceptance of offer by, 37, PART PAYMENT, to take contract out of statute of frauds, 92, 104. in satisfaction of debt, 129-133. after limitations, 496. PART PERFORMANCE, see "Discharge of Contract" , "Quasi Contract" ; "Frauds, Statute of." PAST CONSIDERATION, discussed, 136. PATENTS FOR INVENTIONS, assignment, 64. monopolies under, 315. PAYMENT, see "Assignment of Contract." what constitutes, 434. by negotiable or nonnegotiable paper, 435. application of payments, 437. presumption of, 495. part payment in satisfaction of debt, 129-133. after limitations, 4Wk as taking contract out of statute of frauds, 92, 104. tender, 440. recovery of money paid for use of another, 533. on failure of consideration, 471. voluntary payments, 541. recovery of money received for use of another, 536. ^84 INDEX. [The figures refer to pages.] PENALTY, or liquidated damages, 411. distinguished from usury, 272. sale without license, 265. PENSIONS, assignment, 284. PERFORMANCE. see "Discharge of Contract" ; "Frauds. Statute of.'* suit for specific performance, 489. acceptance of contract by performance, 22-25. 39. part performance, 549, 552. PERILS OF THE SEA. effect, 428. PERJURY, contract to procure false testimony, 292. PHYSICIAN, power to contract, 149, 264. PLACE, of acceptance, 30. POLICE POWER, prohibiting unlawful agreements, 259. POLLICITATION, defined, 2L POSSESSION, effect under statute of frauds, 92. as evidence of delivery of deed, 55. POWERS, of attorney, 500. PREMIUM, offer of, legality, 277. PRESUMPTION, as to delivery of deed, 55. of consideration, 111. 112. of undue influence, 250. PRIEST AND PARISHIONER. undue influence, 249. PRINCIPAL AND AGENT. see "Agency." PRINCIPAL AND SURETY, see "Suretyship." PRIORITIES, between assignees, 370. PRIVILEGE, personal privilege to avoid contract, Infants, 162. insane persons, Ib-i. INDEX. 685 LTbe figures refer to pages.] PROMISE, dofinod, 9. essentials, 9, 10. as consideration for promise, 117. fraudulent, 2'2.j. new promise to pay debt after discbarge in bankruptcy, 140- after bar by limitations, 496. PROOF, see "Interpretation of Contract." PROPOSAL, see "Offer." PUBLIC POLICY, see "Unlawful Agreements." Q QUANTUM MERUIT, see "Quasi Contract," QUASI CONTRACT, in general, 8, 530. judgments, 494, 530. obligation imposed by statute, 531. money paid for the use of another, 533, money received for the use of another, 536. debts arising from tort, waiver of tort, 538. money obtained by fraud or duress, 540. liability of third persons, 541. money obtained without fraud or wrong, 541. voluntary payment, 541. money paid under mistake, 542. failure of consideration, 544. money paid under illegal agreement, 546. recovery for benefits conferred, quantum meruit, 547. liability for necessaries, 547, 159. forcing benefit upon another, 548. benefits rendered gratuitously, 549. goods wrongfully obtained, waiver of tort, 549. part performance of contract, 549. retaining benefits, .551. part performance of illegal contract, .552. part performance of unenforceable or void contract, 552. on rescission of contract, 553. agency quasi ex contractu, 499. part performance of contract within the statute of frauds, 95. liability of corporation, receipt of benefit under ultra vires contract, 192- 194. liability of infants, 151, 159. liability of insane persons, 181. liability of drunken person, 187. statute of frauds not applicable, 64. 68G INDEX. [The figures refer to pages.] R RAILROAD COMPANIES, unlawful agreements, 288. limiting liability for negligence, 319. RATIFICATION, see "Drunken Persons"; "Duress"; "Fraud"; "Infants"; "Insane Persons." consideration, 140. agency by, 502. after knowledge of fraud, 235. of contract of married woman, 141. of infant, 160. of insane person, 184-186. of drunken person, 186. of Sunday contract, 269. of alteration, 483. REALITY OF CONSENT, see "Duress"; "Fraud"; "Misrepresentation"; "Mistake"; "Undue Influence." In general, 195. RECOGNIZANCE, defined, 50. as a contract of record, 50. RECORDS, see "Contracts of Record." REFORMATION, of contract, 208. REFUSALS, agreement to keep proposal open, revocation, 33. consideration, mutuality, 119. RELEASE, see "Accord and Satisfaction"; "Composition with Creditors"; "Com- promise" ; "Discbarge of Contract" ; "Payment." on part payment, 129-133. of joint debtor, 381. as against joint creditor, 382. of right of action, 491. REMEDIES, see "Action"; "Agency"; "Duress"; "Equity"; "Fraud"; "Mistake"; "Quasi Contract." RENUNCIATION, see "Breach of Contract." REPRESENTATIONS, see "Fraud" ; "Misrepresentation." RESCISSION, see "Discharge of Contract"; "Drunken Persons"; "Duress"; "Fraud"; "Infants"; "Insane Persons"; "Mistake"; "Revocation"; "Undue Influence." INDEX. 687 [The figures refer to pages.] RESCISSION— Continued, on ground of fraud, 235. because of other's unlawful purpose, 332. recovery for part performance, 553. contract to rescind, not within statute of frauds, 98. RES JUDICATA, see "Judgment." RESTRAINT OF MARRIAGE, agreements unlawful, 302. RESTRAINT OF TRADE, validity of agreements, 305-312. consideration, GO. reasonableness, 305. unlimited as to space, 308. unlimited as to time, 309. sale of secret process, 311. monopolies, 312-318. RETURN OF CONSIDERATION, see "Consideration." REVIVAL, of debt discharged by bankruptcy, 140. of debt barred by limitations, 496. REVOCATION, of offer, 31-36. communication, 33. to the piiblic generally, 39. agreement to keep offer open, 33. of agency, 524. REWARD, offer of, 38. acceptance, 23, 39. revocation, 39. legality, 277. recovery by public oificer, 283. RIGHT OF WAY, statute of frauds, 76. s SALES, see "Conditions"; "Fraud"; "Frauds, Statute of; "Misrepresentation"; "Mistake"; "Quasi Contract"; "Warranty." SATISFACTION, see "Accord and Satisfaction" ; "Composition with Creditors" : "Compro- mise" ; "Discharge of Contract" ; "Payment" ; "Release." SEAL, see "Contract under Seal." defined, 52. necessity on deeds, 52. adding or effacing, 480. 688 INDEX. [The figures refer to pages.] SEAL^Continued. use of by corporation, 192. authority of agent under seal, 500. SEPAirATE ESTATE, of married woman, 190. SEPARATION AGREEMENTS, validity, 303. SERVICES, contract for, statute of frauds, 81. distinguished from sale, 99. gratuitous employment. 111. employment of infants, 264. specific performance of contract for, 490. discharge of contract for, 428, 429. by breach, 444. by renunciation, 444. by death or illness, 470. promise to pay for past services, 138. acceptance of contract by perforinance of, 24. acceptance of services performed, 41. SEVERABLE CONTRACTS, see "Divisible Contracts" ; "Indivisible Ooutracts." SEVERAL CONTRACTS, see "Operation of Contract." SICKNESS, discharge of contract by, 476. SIGNATURE, statute of frauds, 88, 90. SIMPLE CONTRACTS, classification, 47. defined, 48. interpretation, 388, 389. merger in contract under seal, 58. limitation of actions, 59. SPECIALTY, see "Contracts under Seal." defined, 51. SPECIFIC PERFORMANCE, in general, 489. contract with infant, 163. mistake, 208. SPENDTHRIFT, capacity to contract, 187. STATES, power to contract, 144. construction of contracts with, 145 actions by or against, 145. STATUTE OF FRAUDS, see "Frauds, Statute of." INDEX. 689 [The figures refer to pages.] STATUTE OF LIMITATIONS, see "Limitation of Actions." STOCK SPECULATION, see "Unlawful Agreements." STRIKES, see "Unlawful Agreements." SUBSCRIPTIONS, consideration, 118. joint or several liability, 415. SUBSIDIARY PROMISES, see "Conditions"; "Warranty." what are, 209, 457. breach, 457. SUBSTITUTED AGREEMENT, consideration, 127. as dischai'ge of contract, 420. SUIT, see "Action." SUNDAY LAWS, legality of contract, 265-270. SURETYSHIP, statute of frauds, 66. misrepresentation, 217. right of surety against principal, 384. contribution between cosureties, 384. SUSPENSORY CONDITIONS, in general, 459. T TELEGRAMS, as memoranda required by statute of frauds, 83b acceptance of contract by telegraph, 27. TELEGRAPH COMPANIES, limiting liability, 320. TENDER, what constitutes, 440. effect. 440. TERMINATION OF CONTRACT, see "Agency" ; "Discharge of Contract." THIRD PERSONS, see "Operation of Contract." avoidance of contract as against, by infant, 175. by insane person, 185. by drunken person, 187. for want or failure of consideration, 111. for fraud, etc., 238. for mistake, 197. right to avoid contract with infant, 162. insane persons, 184. for duress, 245. ClarkCont.(2d Ed.) — 44 G90 INDEX. [The figures refer to pages.] THIRD PERSONS— Continued. liability for inducing breach of contract, 349. receipt of money or property by, implied contract, 541. TIME, of acceptance, 30. lapse of offer, 36. for performance of contract, 433. for avoidance of contract of infant, 1G4. of insane person, 184. of drunken person, 187. for mistake, 208. rules as to, time of essence, 408. TORT, see "Unlawful Agreements." distinguished from contract, 18. of married woman in connection with contracts, 189. of infant in connection with contract, 176. waiver and suit in assumpsit, 538, 549. TRADE SECRETS, sale of, 311. TRUSTS, not contract, 7. undue influence over cestui que trust, 249. u UNCERTAINTY, see "Certainty." UNDISCLOSED AGENCY, name of principal, 519. existence of principal, 521. UNDUE INFLUENCE, see "Duress" ; "Fraud." In general, 24G. effect, 246, 252. presumption from circumstances, 247. relationship of parties, 248. parental and quasi parental relation, 248. other family relations, 248. fiduciary relations, 249. other confidential relations, 249. continuance of presumption, 250. mental weakness, 251. personal influence absent, advantage taken of another's weakness and dis- tress, 251. UNENFORCEABLE, meaning of term, 10. UNITED STATES, power to contract, 144. actions by or against, 145. construction of contracts with, 145. INDEX. 691 [The figures refer to pages.] UNLAWFUL AGREEMENTS, in general, 254. classification, 255. agreements in violation of positive law, 255. breach of express rules of common law, 256. involving commission of crime, 256. to commit civil wrong, 25G. frauds on creditors, 257. fraud in connection with auction sales, 258. publication of libel, 250. breach of statute, powers of legislature, 259. the prohibition by statute, 2G0. mala in se and mala prohibita, 260. effect of penalty, 261. omission of penalty, 262. doing indirectly what cannot be done directly, 262. agreements prohibited but declared not void, 262. agreements simply void and unenforceable, 263. regulating trade, profession, or business, 263. necessity of license, 264. traffic in intoxicating liquors, 265. Sunday laws. 265. usury laws, 270. wagers and gambling transactions, 275. offer of premium or reward, 277. contracts of insurance, 275, 277. dealings in futures, 278. lotteries, 280. agreements contrary to public policy, in general, 281. tending to injure the public service, 282. traffic in public offices, 282. compensation of public officers, 283. assignment of salary or pension by officer, 284. lobbying contracts, 285. corruption of public administrative officers, 286. agreements by public or quasi public corporations, 288. agreements affecting the government, 289. agreements promotive of nonofficial corruption, 290. breach of public duty by private citizen, 290. impairing integrity of public elections, 290. perversion or obstruction of public justice, in general, 292. compounding crime, 293. reference to arbitration, 294. encouragement of litigation, champerty and maintenance, 296. agreements of immoral tendency, 300. agreements tending to fraud and breach of trust, in general, 301. by officer of corporation, 301. by agent, 301. in derogation of the marriage relation, 302. restraint of marriage, 302. marriage brocage, 302. separation agreements, 803. agreements to facilitate divorce, 304. other agreements, 304. • 692 INDEX. [The figures refer to pages.] UNLAWFUL AGREEMENTS— Continued. in derogation of parental relation, 305. restraint of trade, 305. consideration, seal, 60. reasonableness of restraint, 305. unlimited as to space, 308. unlimited as to time, 309. sale of secret process, 311. unlawful combinations, monopolies, trusts, etc., 312. "corners" in the market, 315. monopolies under patents, 315. combinations between laboi'ers, mechanics, etc., 316. combinations between employers, 318. exempting from liability for negligence, 318. effect of illegality, 321. agreements partly illegal, 321. , indivisible agreements, 322. divisible agreements, 324. direct object unlawful, but intention innocent, 325. mistake of law, 325. mistake or ignorance of fact, 326. direct object innocent, but intention unlawful, 327. the English rule, 327. the rule in America, 328. distinction where illegal act Is past, 331, note. unlawful intention on one side only, 331. promises to pay money due or to become due on illegal transactions, 332. distinction between "void" and "illegal," 332. negotiable instruments, 334. relief of party to unlawful agreement, 336. ex dolo malo non oritur actio, 336. locus poenitentiae, 338. par delictum, 340. rights of factors, brokers, and other agents, 341. recovery of money paid, 546. illegality distinguished from fraud, 259. * conflict of laws, 342. as to space, 342. as to time, change of law, 342. part performance, 552. UNLIQUIDATED CLAIM, consideration of discharge, 132. USAGE, see "Custom and Usage.* USURY, in general, 270. V VAGUENESS, see "Certainty." VARIANCE, between offer and acceptance, 27-29. lapse of offer, 36. INDEX 693 [The figures refer to pages.] VENDOR AND PURCHASER, see "Couditions"; "Fraud"; "Frauds, Statute of ; "Misrppresentatlon" ; "Mistake" ; "Warranty." VOID, see specific heads such as "Drunken Persons," "Infants," eta meaning of term, 10. distinction between "void" and "illegal," 332. VOIDABLE, see specific heads such as "Drunken Persons," "Infants," etc meaning of term, 10. w WAGERS, validity, 275-279. WAIVER, see "Discharge of Contract." of written contract, statute of frauds, 65. of statute of frauds. 96. of discharge from liability, 140. of breach, 4(JG. of tort, 538, 549. WAR, effect on contracts with aliens, 147. WARRANTY, distinguished from representation, 209 distinguished from condition, 209, 4G5. of authority by agent, 5 IS. WEIGHTS AND MEASURES, sales without use of approved weights or measures, 263. WILLS, as memorandum required by statute of frauds, 83. WITNESSES, agreements tending to induce perjury, 292. WRITTEN CONTRACTS, see "Frauds, Statute of." necessity for writing, 02-105. . deeds, 51. negotiable instruments, 03. assignment of patent or copyright, 64. acceptance of bill of exchange or order, 63. insurance, 63. acknowledgment of barred debt, 63. new promise by infant, 63. conveyances of land. 04. waiver, statute of frauds, 65. WEST FUBLISUI.NO CO., PUINTEUS AND gTKBKOTYPEBB, 8T. PAUL, MINN. The Hornbook Series Includes treatises on all the principal subjects of the law. The special features of these books are: 1. A succinct statement of the leading principles and rules of law, in numbered paragraphs running through the work, printed in black- letter. This gives a bird's-eye view of the whole subject, and serves admirably for a quick review and refreshing of the mind. 2. A more extended commentary following each paragraph, elucidating the principles, showing exceptions, application, relation of differ- ent principles, etc. This forms the text proper of the book. 3. Notes and authorities, given in footnotes. The cases cited are selected for their recognized authority and for their lateness. **The text-book which contains the bed-rock of the law and furnishes a ready lead to the cases is an indispensable working tool. This the Hornbooks furnish. They ought to be in every lawyer's office." — C. A. KoRBLY, Indianapolis, Ind. "To be able to turn to a full and clear presentation of a rule or principle is almost indispensable to a busy lawyer, and the Hornbook Series goes very far in giving just that help. " —Bishop, Bowen & Fleming, Des Moines, Iowa. Regular octavo law book size, bat published at $3.75 a volume postpaid. Bound in American Law Buckram. WEST PLBLISHING CO.. St. Paul. Minn. CH767a il) iZ^^ J^omfiooS ^ertee.) ^ ganbBooft of tpe San) of (Biffe mt> (Uo^ee, QBj Qprof. e^arfee Qf). Qtorton, THIRD EDITION: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. CiIiapteT I. OF NEGOTIABILITY SO FAR AS IT RE- LATES TO BILDS AND NOTES : Cover- ing the origin, purpose, and indicia of nego- tiability, distinction between negotiability and assignability, and payment by negotia- ble instrument. Chapter II. OP NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSEN- TIAL REQUISITES: Covering definition, form, and essentials, the order, the promise, specification of parties, capacity of parties, delivery, date, value received, and days of grace. Chapter IH. ACCEPTANCE OF BILLS OF EXCHANGE : Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT : Defining and explaining the various kinds of indorsements, and showing their requisites and effect. Chapter V. OF THE NATURE OF THE LIABILITIES OP THE PARTIES: Covering liability of maker, acceptor, drawer, indorser, rights and liabilities of accommodation and accommo- dated parties, estoppel and warranties, and damages for breach. Chapter VI. TRANSFER : Covering definition, validity, and various methods of transfer, and status ofj overdue paper. Chapter VII. DEFENSES AS AGAINST PURCHASER, FOR VALUE WITHOUT NOTICE : Cov- ering the subject generally and fully. Chapter VIIL THE PURCHASER FOR VALUE WITH- OUT NOTICE: Explaining who is. and] discussing consideration, good faith, rmtice,] overdue pai>er, presumption, and burden of proof, etc. Chapter IX. OP PRESENTMENT AND NOTICE OF DIS-, HONOR : Covering presentment for accept-] ance and for payment, dishonor, protest, no tice of dishonor, waiver, etc. CHECKS : to checks APPENDIX : 1 Law. Chapter X. Covering generally the law relp.tingJ The Negotiable Instrument 1 VOL. 553 PAGES S3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C64y-U (») it^ i&omfioofi ^erie0.) ♦ ♦ c£V ♦ ♦ 5 ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc., and remedies on breach of contract. CHAPTER XII. AGENCY: Covering the creation of the relation, its effect and determination, the capacity, rights, and liabilities of the parties, eta CHAPTER Xin. QUASI CONTRACT: Covering obligations cre- ated by law upon which an action ex contractu will lie without proof of contract in fact, in- cluding judgments, obligations imposed by statute, acts of parties, etc 1 VOL., 693 PAGES, $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (4) {t^ jpomfioofi ^eriee.) (^ ganbBooft of Common ^Satt) (pf easing* (gg (genjamtn 3. ^6il>tndn. 5EC0ND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OF ACTION : Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter H. KORMS OF ACTION (Continued): Covering trespass, trover, case, detinue, replevin, eject- ment, writ of entry, forcible entry and detain- er, etc. Cbapter HI. THE PARTIES TO ACTIONS : Covering actions in form ex contractu and ex delicto, and the consequences of misjoinder or nonjoinder of parties plaintiff or defendant. Chapter IV. THE PROCEEDINGS IN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc., the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action in general; form of declaration; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter VI. THE PRODUCTION OP THE ISSUE: Discuss- ing the rules, and covering the demurrer, the f)leadings, the traverse, forms of the general ssue and of the special traverse, protesta- tiona, exceptions, issues in fact and law, etc Chapter VIX. MATERIALITY IN PLEADING: Covering th« general rule, variance, limitation of traverse, etc. Chapter VIII. SINGLENESS OR UNITY IN PLEADING: COT- ering the rules in generai, duplicity, immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal effect conformance to precedent, commencement ana conclusion. Chapter XI. DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplasage, etc Chapter XH. MISCELLANEOUS RULES: Covering con formance to process, alleging damages and production of suit, (^rder of pleading, defense, plea In abatement, dilatory pleas, eta APPENDIX: Form*. This book embodies such of the rules and principles of Common-Law Pleading as are still recognired and applied in this country. A knowledge of the common-law system is of advantage, if indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. Author of Black's Law Dictionary, Tpcatlses on Judgments, TajL Titles, etc TABLE OF CONTENTS. Chapter I. i DEFINITIONS AND GENERAL PRINCIPLES: Considering the meaning of "Constitutional" and "Unconstitutional; " written and unwrit- ten constitutions, bills of rights, right of revo- . lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc Chapter IH. ESTABLISHMENT AND AMENDMENT OP CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Constitu- tiou and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OP CONSyiTUTIONS: Considering the office and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTMENTS OP GOVERN- MENT: Considering the division, limitations on the departments, political and judicial questions, etc. Chapter VI. THE FEDERAL EXECUTIVE: Considering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of office, veto power, pardoning and military power, and treaty-making povver ; vacancy in office^ the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc. Chapter VII. FEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc. Chapter VIII. THE POWERS OP CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. nrrERSTATB law, as determined by the Con- stitution: Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial proceedings, etc. Chapter X. BKPUBLICAN GQVEliNMENT GUARANTIED. Chapter XT. EXECUTIVE PO \N ER IN THE STATES. Chapter XII. JUDICIAL POWERS IN THE STATES: Con sidering the system of courts, judges, juris diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES: Con sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment ot laws, eto. Chapter XIV. THE POLICE POWER: Considering the police, power as vested in congress and in the states. and its scope and limitations. Chapter XV, THE POWER OF TAXATION: Considering the purposes of taxation, independence of Federal and State governments, limitations on power, taxation and representation, etc Chapter XVI. THE RIGHT OF EMINENT DOMAIN: Defini tion and nature of the power, constitulionai provisions, authority to exercise, public pur- pose, appropriation to new uses, etc Chapter XVIL MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of ms- nicipal corporations, etc. Chapter XVIII. CIVIL RIGHTS, AND THEIR PROTECTION BY THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, eta Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider ing citizenship, right of suffrage, freedom ol speech, right of assembly and petition, etc Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM INAL CASES: Considering trial by jury, rights of accused, jeopardy, ball, ex post facto laws, habeas corpus, etc Chapter XXI. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS: Considering the obligation and the impairment of the contract, povver cf legislature to contract, remedies on contracts, etc. Chapter XXH. RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, etc 1 VOL.. 740 PAGES. $3.75, DELIVERED. WEST PUBLISHING COMPANY, St. Paul, Minn. C1596 (^'^ (t0e f omBooft ^erice.) (gg (JXormdn ^tittx. TABLE OF CONTENTS. Chapter I. If ATURB AND DEFINITION OP EQUITY. Chapter II. PRINCIPLES DEFINING AND LnnTING JU- RISDICTION : Considering jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter III. THE MAXIMS OF EQUITY: Definition and classification of maxims; the enabling and re- ttrictive maxims. Chapter IV. THE DOCTRINES OF EQUITY: Considering estoppel, election, satisfaction, performance, and conversion. Chapter V. THE DOCTRINES OF EQUITY (Continued): Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc. Chapter VI. THE DOCTRINES OF EQUITY (Continued): Considering penalties and forfeitures, liqui- dated damages. Chapter VH. GROUNDS FOR EQUITABLE RELIEF: aidering accident, mistake, fraud, etc Con- Chapter VIII. PROPERTY IN EQUITY— TllUSTS: Covering definition, history, and classification of trusts, charitable trusts, duties and liabilities of trus- tees, remedies of cestui que trust, etc. Chapter IX. PROPERTY IN EQUITY — MORTGAGES, LIENS, AND ASSIGNMENTS. Chapter X. EQUITABLE REMEDIES : Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Continued): Cov- ering partition and settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (Continued): Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIII. EQUITABLE REMEDIES (Continued): Cov- ering injunctions, and considering' their juris- dictional principles, classes of cases wher«' remedy may be used, etc Chapter XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. Chapter XV. ANCILLARY REMEDIES : Covering discovery, bills to perpetuate testimony, interpleader, receivers, etc I VOL., 474 PAGES, $375. DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (7) it^ ^omBooft ^eriefi.) Cviminai (procedure. (^ut^r of a "^an^fioofi of Criminaf &at»," ani> a §ant)6ooS of Contracts." TABLE OF CONTENTS. Chapter I. JURISDICTION: Covering courts of criminal ju- risdiction and venue. Chapter H. APPREHENSION OP PERSONS AND PROP- ERTY : Covering arrest in general, warrants, extradition, searches and seizures of property, and taking property from prisoner. Chapter III. PRELIMINARY EXAMINATION, BA.rL. AND COMMITMENT : Covering right to release on bail, habeas corpus, the recognizance, release of sureties, etc. IV. Covering the indict- Chapter MODE OF ACCUSATION: ment and presentment, information, coroner's inquisition, time of prosecution, and nolle prosequi, etc Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of offense and descrip- tion of defendant. Chapter VI. PLEADING — THE ACCUSATION (Continued): Covering allegation of intent, knowledge, etc. ; technical terms; second or third offense, set- ting forth writings; description of property and persons ; ownership. Chapter VII. PLEADING— THE ACCUSATION (Continued): Covering statement of time and place. Chapter VIII.» PLEADING— THE ACCUSATION (Continued) i Covering indictments on statutes. Chapter IX. PLEADING— THE ACCUSATION (Continued) : Covering duplicity, joinder of counts and par- ties, election, conclusion of indictment, amend- ment, aider by verdict, etc. Chapter X. PLEADING AND PROOF: Covering varlanc and conviction of minor and higher offense. Chapter XI. MOTION TO QUASH: Covering also arraign- ment, demurrer, and pleas of defendant. Chapter XII. TRIAL AND VERDICT: Covering time and place of trial, custody and presence of defendant, bill of particulars, the counsel, judge and jury, arguments and instructions, etc. Chapter XIII. PROCEEDINGS AFTER VERDICT: Covering motion in arrest of judgment, sentence, new trial, writ of error, etc. Chapter XIV. EVIDENCE: Covering facts in issue, motive, res gesiae, other crimes, declarations, confes- sions, character, burden of proof, witnessea, etc. Chapter XV. HABEAS CORPUS. I VOL. 658 PACES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (8) Z^t JgornBooft ^eriec. ♦ ♦ ♦ qCV ♦ ♦ ♦ 5ant>6ooft of (pe t^^6oo^ of 5n(erna(ionaf j^aw. (^^ £:apf. 6bi»in J". (Eifenn, Acting Judge Advocate, United States Army. TABLE OF CONTENTS. INTRODUCTION. Covering the detinitioD, source, and nature of In- ternational Law. Cliapter I. PERSONS m INTERNATIONAL LAW: Cov- ering slates, their loss of identity, various unions of states, de facto states, belligerency and recog- nition thereof, and equality of states. Chapter II. THE COMMENCEMENT OF STATES— FUNDA- MENTAL RIGHTS AND DUTIES: Covering the commencement and recognition of new states, effect of change of sovereignty, the fun- damental right* and duties of states, etc. Chapter IIL TERRITORIAL PROPERTY OF A STATE: Covering modes of acquiring property, boun- daries, territorial waters, etc. Chapter IV. TERRITORIAL JURISDICTION: Covering ex- territoriality, sovei'eigns and diplomatic agents and their immunities, vessels, right of asylum, alienage, responsibility for mob violence, extra- dition, jurisdiction beyond state limits, etc. Chapter V. JURISDICTION ON THE HIGH SEAS AND UNOCCUPIED PLACES: Covering nature of jurisdiction, jurisdiction over merchant ships, piracy, privateers, letters of marque, slave trade, etc. Chapter VI. THE AGENTS OF A STATE IN INTERNA- TIONAL RELATIONS: Covering public diplo- matic agents and consuls, and matters relating to them. Chapter VII. INTERVENTION : Covering the subject gener- ally. Chapter VIII. NATIONALITY: Covering citizenship, allegi- ance, expatriation, naturalization, etc. TREATIES : Chapter IX. Covering the subject generally. Chapter X. AMICABLE SETTLEMENT OF DISPUTES: Covering mediation, arbitration, retorsion, re- prisals, embargo, pacific blockade, etc. Chapter XI. INTERNATIONAL RELATIONS IN WAR: Covering the subject of war generally, includ- ing the kinds, causes, and objects of war. Chapter XII. EFFECTS OF WAR— AS TO PERSONS: Cov- ering the relations of enemies, noncombatants, privateers, prisoners of war, and the subjects of ransom, parole, etc Chapter XIII. EFFECTS OF WAR — AS TO PROPERTY: Covering contributions, requisitions, foraging, booty, ransom, and other questions in regard to property. Chapter XIV. POSTLIMINIUM: The right and its limitations defined and explained. Chapter XV. MILITARY OCCUPATION: Covering the defi- nition, extent, and effeet of occupation, and the duties of an occupant. Chapter XVI. MEANS OF CARRYING ON HOSTILITIES: Covering the instruments an 1 means of war, spies, etc. Chapter XVII. ENEMY CHARACTER: Covering enemies gen- erally, domicile, house* of trade, property and transfer thereof, etc. Chapter XVIII. NON-HOSTILE RELATIONS: Covering com- mercia belli, flags of truce, passports, safe-con- ducts, truces or armistices, cartels, etc. Chapter XIX. TERMINATION OP WAR: Covering the meth- ods of termination, uti possidetis, treaties of peace, conquest, etc. Chapter XX. OF NEUTRALITY IN GENERAL: Neutrality defined and explained. Chapter XXI. THE LAW OF NEUTRALITY BETWEEN BEL- LIGERENT AND NEUTRAL STATES: Cov- ering the rights, duties, and liabilities of neutral states. Chapter XXII. CONTRABAND : Covering the subject generally. BLOCKADE: Chapter XXIII. Covering the subject generally. Chapter XXIV. VISIT AND SEARCH, AND RIGHT OF AN- GARY : Covering those subjects generally. APPENDIX. Giving in full, as in no other single work, the In- structions for the Government of Armies of the United States in the Field (Lieber) ; Papers Car- ried, or that Ought to be Carried, by Vessels in Evidence of their Nationality ; The Declaration of Paris; The Declaration of St. Petersburg; The Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Ar- mies in the Field; The Laws of War on Land, (Recommended for Adoption by the Institute of International Law at Oxford, Sept. 9, 1880) ; and The Brussels Conference. 1 VOLUME. 500 PAGES. $3.75. DELIVERED. WEST PUBLISHING CO., St. Paul. Minn. (10) (€5e gornBooft ^erlee.) tU Scitt) of €or(0. (gbwin ^. ^aggori, @.. (ttt., ££. (^., Professor of the Law of Torts in the Minnesota University Law School. TABLE OF CONTENTS PART I^IN GENEBAIi. Chapter I. GENERAL NATURE OF TORTS: Covering the law adjective and law substantive, distinctions between torts and crimes, common-law obliga- tions and remedies, how and why liability atr taches for torts, the mental element, connec- tion as cause, damnum and injuria, common- law, contract and statutory duties, etc. Chapter II. VARIATIONS IN THE NORMAL RIGHT TO TO SUE: Covering exemptions based on privilege of actor, as public acts of states, of judicial and executive officers, etc., and private acts authorized by statute or common law, variations based on status or conduct of plain- tiff, etc. Chapter III. LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS: Covering liability by con- cert in action or joint torts, and liability by relationship, as husband and wife, landlord and tenant, master and servant, partners, etc. Chapter IV. DISCHARGE AND LIMITATION OF LIABILI- ITY FOR TORTS: Covering discharge or limitation by voluntary act of party and by operation of law. Chapter V. REMEDIES: Covering statutory and common- law remedies, judicial and extrajudicial reme- dies, damages, etc. PART H.— SPECIFIC WRONGS. Chapter VI. WRONGS AFFECTING SAFETY AND FREE- DOM OF PERSONS: Covering false impris- onment, assault and battery, and the defenses, as justification and mitigation. Chapter VIT. INJURIES IN FAMILY RELATIONS: Cover- ing the family at common law, master and servant, parent and child, husband and wife. Chapter VIII. WRONGS AFFECTING REPUTATION: Cover- ing libel, slander, and slander of title, together with the defenses. Chapter IX. MALICIOUS WRONGS: Covering deceit, mali- cious prosecution, abuse of process, interfer- ence with contract, conspiracy, etc. Chapter X. WRONGS TO POSSESSION AND PROPERTY: Covering the nature of possession and its ob- jects, trespass, waste, conversion, etc Chapter XI. NUISANCE: Covering kinds of nuisance, as pub- lic, private, and mixed, continuing and legal- ized, parties to proceedings against, remedies, etc. Chapter XII. NEGLIGENCE: Covering the duty to exercise care, what is commensurate care, common-law, contract and statutory duties, damages, con- tributory negligence, etc. Chapter XIII. MASTER AND SEliVANT: Covering master's liability to servant for negligence, master's duty to servant, assumption of risk by serv- ant, various kinds of risks, fellow servants, vice principals, etc. Chapter XIV. COMMON CARRIERS; Covering the Bubject generally. 2 VOLS. 1.328 PAGES. $7.50. DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (1 ii ^0e l^omBooft ^eriee. @ ^anbBooS of ... . 4' ^Pe Construction 3n^er^>re^a^ion of anb «v U r^A|\/||=>D|ri I I Dl AOU- AUTHOR OF BLACK'S LAW DICTIONARY. AND TREA- DY n. V^MIVir'DClL-L.I- DI-AA^^rVf TISES ON CONSTITUTIONAL LAW. JUDGMENTS. ETC. TABLE OF CONTENTS. Chapter I. NATURE AND OFFICE OF INTERPRE- TATION: Covering definition of terms, ob- ject of interpretation, rules of construction, and office of judiciary. Chapter II. OONSTRUCTTION OF CONSTITUTIONS: Covering method and rules of construction, construction as a whole, common law and pre- vious legislation, retrospective operation, man- datory and directory provisions, preamble and titles, extraneous aids, schedule, stare decisis, etc. Chapter III. GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION: Covering literal and eq- uitable construction, scope and purpose of the act, casus omissus, implications in statutes, meaningless statutes, errors, misprints, svu^ plusage, interpolation of words, etc. Chapter IV. STATUTORY CONSTRUCTION; PRE- SUjVIPTIONS: Covering presumptions against exceeding limitations of legislative power, un- constitutionality, injustice, irrepealable laws, implied repeal of laws, etc., presumptions as to public policy, as to jurisdiction of courts, etc. Chapter V. STATUTORY CONSTRUCTION; WORDS AND PHRASES. Covering technical and popular meaning of words, commercial and trade, general and special, relative and qual- ifying, and pei-missive and mandatory tenus; conjunctive and disjunctive particles, adopted and re-enacted statutes, computation of time, etc. Chapter VI. INTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering construction as a whole, context, title, preamble, interpretation clause, etc. Chapter VII. EXTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering admissibility of ex- trinsic aids, statutes in pari materia, eon- temporary history, construction and usage, journals of legislature, opinions of legislators, etc Chapter VIII. INTERPRETATION WITH REFERENCE TO COMMON LAW: Covering statutes af- firming, supplementing, superseding or in derogation of, common law. Chapter IX. RETROSPECTIVE INTERPRETATION: Covering definition, constitutional considera- tions, vested rights, remedial statutes, and statutes regulating procedure. Chapter X. CONSTRUCTION OF PROVISOS, EXCEP- TIONS, AND SAVING CLAUSES: Oot- ering the subject generally. Chapter XI. STRICT AND LIBERAL CONSTRUCTION: Covering penal and remedial statutes, stat- utes against common right, against frauds, and of limitation, legislative grants, revenue and tax laws, etc. Chapter XII. MANDATORY ANT) DIRECTORY PROVI- SIONS: Definitions and rules covering the subject generally. Chapter XIII. AMENDATORY AJSID AMENDED ACTS: Covering construction of amendments and of statute as amended, identification of act to be amended, amendment by way of revision, etc Chapter XIV. CONSTRUCTION OF CODES AND RE- VISED STATUTES: Covering; construction as a whole, reference to original statutes, change of language, previous judicial construc- tion, etc. Chapter XV. DECLARATORY STATUTES: Covering defi- nition and construction in general. Chapter XVI. THE RULE OF STARE DECISIS AS AP- PLIED TO STATUTORY CONSTRUC- TION: Covering the general principle, re- versal of constniction, federal courts follow- ing state decisions, construction of statutes of otSer states, etc. Chapter XVTI. INTERPRETATION OF JUDICIAL DECI- SIONS AND THE DO(JTRINE OF PREC- EDENTS: Cotering the nature of prece- dents; dicta; stare decisis; the force of prece- dents as between different courts; the law of the case, etc. 1 VOLUME. 509 PAGES. S3. 75. DELIVERED. WEST PUBLISHING CO., - C776 (12) St. Paul. Minn. (^^e l^ornfiooft ^ertee.) (^ 5anb6ooft of Q0aifmen(0 am Cavvicva. TABLE OF CONTENTS. Chapter I. IN trENERAL: Covering definition and gen- eral principles common to all bailments; classification of bailments. Chapter II. BAILMENTS FOR SOLE BENEFIT OP BAILOR: Covering depositum and man- datum, creation, rights and liabilities of parties, termination, etc. Chapter III. BAILMENTS FOR BAILEE'S SOLE BEN- EFIT: Commodatum. creation, rights and liabilities of parties, termination, etc. Chapter IV. BAILMENTS FOR MUTUAL BENEFIT- PLEDGES: Covering definition of pledge, creation, title of pledgor, rights and liabil- ities of parties before and after default, ter- mination, etc. Chapter V. BAILMENTS FOR MUTUAL BENEFIT— HIKINGr: Locatio or hiring defined: estab- lishment of relation; rights and liabilities of parties; hiring of things for use: hire of labor and services; warehousemen; wharf- ingers; safe-deiK)sit companies; factors, etc.; termination of relation, etc Chapter VT. INNKEEPERS: Innkeeper defined; who are guests; commencement of relation: duty to receive guest: liability for guests' goods; lien; termination of relation; liability as ordinary bailee, etc. Chapter VII. CARRIERS OF GOODS: Common carriers, essential characteristics; when liability at- taches; discrimination; compensation; lien: liability as insurers and as ordinary bailees: carriers of live stock; carriers of baggnire; contracts and notices limiting liability; ter- mination of lialiility: eonneotiiig carriers, etc.; post-office department; private car- riers. Chapter VIII. CARRIERS OF PASSEN(;ERS: Who are passengers; when liability attaches; duty to accept passengers; furnishing equal ac- commodations: tiekct as evidence ^oo^ of Cpe San) of ©amage^; Author of "Bailments and Carriers." TABLE OF CONTENTS. CHAPTER I. DEFTNTTTONS AND GENERAL PRINCTPLKS : Definition, nature and theory Of damagea; wrong and damage; analysis of legal wrongs; elaasiflcation of damages. CHAPTER EL (•OMINAi, DAMAGES: DefinlUon &nd general na- ture. CHAPTER m. COMPENSATORY DAMAGES: Definition; proxi- mate and remote consequences; direct and con- sequential losses; avoidable consequences; cer- tainty of damages; profits; entirety of demand; past and future losses; elements of compensa- tion; aggravation and mitigation of damagea; reduction of loss; injuries to limited interests, etc CHAPTER IV. BONDS, LIQUIDATED DAMAGES AND ALTERNA- TIVE CONTRACTS: Covrring tlie subject gen- erally. CHAPTER V. INTEREST: Definition; as a debt and as damagea; interest on liquidated and unliquidated de- mands; on overdue paper, — contract and stat- ute rate; compound Interest; etc. CHAPTER VI. VALUE: Definition; how estimated; market value; pretlum affectionls; value peculiar to owner; time and place of assessment; highest Interme- diate value; etc. CHAPTER VII. EXEMPLARY DAMAGES: In general; when re- coverable; liability of principal for act of agent; etc CHAPTER Vm. PLEADING AND PRACTICE: Allegation of dam- age, the ad damrmm, form of statement, prov- ince of court and jury, etc. CHAPTER IX. BREACH OP CONTRACTS FOR SALE OP GOODS: Damages in action by seller for non-acceptance and non-payment; damages in action by buyer for non-delivery, breach of warranty, and as for conversion. CHAPTER X. DAMAGES m ACTIONS AGAINST CARRIER: Carriers of goods, — refusal to transport, non- delivery. Injury In transit, delay, consequential damages; carriers of passengers, — injuries to passenger exemplary damages, mental suHering, delay, wrongful ejection, etc CHAPTER XI. DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES: Actions by sender and by receiv- er; proximate and certain, remote and specula- tive damages; notice of purpose and importance of message; cipher messages; avoidable conse- quences; exemplary damages; etc CHAPTER XH. DAMAGES FOR DEATH BY WRONGFUL ACT: Pecuniary losses; mental sufferins: exemnlary damages; Injury to deceased; medical and fu- neral expenses; meaning of pecuniary, — care and support, prospective git is and inheritances; In- terest as damages; discretion of jury; nominal damages, etc CHAPTER Xm. WRONGS AFFECTJNG REAL PROPERTY: Dam- ages for detention of real property; trespass; nuisance; waste; contract to sell real property, — breach by vendor or vendee; breach of cove- nants, etc CHAPTER XrV. BREACH OF MARRIAGE PROMISE: In general, compensatory damages, exemplary damages, etc 1 VOL 476 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. Cllll (15) It^i i&c»mfiooS ^eries.) (^ ganbBooft of ^pe £an) of (Keaf (properfg* Q5g (Edrf J). J5o;)ftm ®. (g., feE. (gX. TABLE OF CONTENTS. Chapter I. WHAT IS REAL, PROPERTY: Real and pt'isuual property, fixtures, equitable conver- sion, personal interests in land. Chapter II. TENURE AND SEISIN. Chapter HI. ESTATES AS TO QUANTITY— FEB SIM- PLE: Classification of estates, freehold, fee-simple, creation, right of user and aliena- tion. Chapter IV. ESTATES AS TO QUANTITY (Continued)— ESTATES TAIL: Classes, origin, crea- tion, incidents, duration, tenant in tail aft- er possibility of issue extinct, estates tail in the United States, quasi entaiL Chapter V. ESTATES AS TO QUANTITY (Continued)— CONVENTIONAL LIFE ESTATES: Life estates, creation, conventional life es- tates, incidents, estates per autre vie. Chapter VI. ESTATES AS TO QUANTITY (Continued)— LEGAL LIFE ESTATES: Estate during coverture, curtesy, dower, homestead, fed- eral homestead act. Chapter VH. ESTATES AS TO QUANTITY (Contlnned)— LESS THAN FREEHOLD: Estates for years, letting land on shares, tenancies at will, tenancies from year to year, letting of lodgings, tenancies at sufferance, licenses. Chapter VIII. ESTATES AS TO QUALITY ON CONDI- TION—ON LIMITATION: Estates on condition, estates on limitation, base fees. Chapter IX. ESTATES AS TO QUALITY (Continued)— MORTGAGES: Parties, nature, form, rijihts and liabilities of mortgagor and mort- gagee, assignment of the equity of redemp- tion, assignment of the mortgage, priority of mortgages and other conveyances, regis- tration, discharge of a mortgage. Chapter Z. EQUITABLE ESTATES: Statute of nrnu, classification of trusts, — express, implied, resulting, constructive,- incident* of equita- ble estates, charitable trusts. Chapter XI. ESTATES AS TO TIME OF ENJOYMENT —FUTURE ESTATES: Reversions, possi- bilities of reverter, remainders, rule in Shel- ley's Case, future uses, springing uses, shifting uses, executory devises, incidents of future estates. Chapter XH. ESTATES AS TO NUMBER OF OWNERS ^JOINT ESTATES: Joint tenancies, ten- ancies in common, estates in coparcenary, estates in entirety, estates in partnership, incidents of joint estates, partitioa. Chapter XIII. INCORPOREAL HEREDITAMENTS: Easements, creation, classification, inci- dents, destruction, rights of way, highways, light and air, lateral and subjacent sup- port, party walls, easements in water, prof- its a prendre, rents, franchises. Chapter XIV. LEGAL CAPACITY TO HOLD AND CON- VEY REALTY: Infants, persona of un- sound mind, married women, aliens, corpo- rations. Chapter XV. RESTRAINTS ON ALIENATION: Re- straints imposed by law, restraints in favor of creditors, restraints imposed in creation of estate. Chapter XVI. TITLE: Acquisition of title by state and pri- vate persons, grant from state, conveyan- ces, common-law convevances, conveyances under statute of uses, modern statutory con- veyances, registered titles, requisites of deeds; covenants for title, seisin, against incumbrances, warranty, further assurance; estoppel, adverse possession, accretion, de- vise, descent, judicial process; conveyances under licenses, under duress; tax title*, em- inent domain. 1 VOL. 689 PAGES. $3.76, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C1191a (IG) I (g §anb6oo6 of C^e Batt? of (persona ani ©omeaftc ^datiom, TABLE OF PART I. BUSBAND AND WIFH. Chapter I. MARRIAGE: Covering definition and essen- tials; capacity of parties; reality of cfjn- eent; formalities in celebration: annul- ment and avoidance; validating acta; con- flict of laws, etc. Chapter H. PERSONS OF THE SPOUSES AS AF- FECTED BY COVERTURE: Ooverinf rights inter se; crimes and torts of married women; crimes aud torts as between hu»- band and wife; torts against married wo- men; actions for alienation of affections; crim. con., etc. Chapter III. RIGHTS IN PROPERTY AS AFFECTED BY COVERTURE: Covering wife's earn- ings; wife's choses in action and in posses- sion; wife's chattels real; administration of wife's estate; equitable and statutory separate estate; community property; cur- tesy; dower; estates by the entirety, etc. Chapter IV. CONTRACTS, CONVEYANCES, ETC., AND QUASI-CONTRACTUAL OBLI- GATIONS: Covering, inter alia, husband's liability for wife's necessaries, antenuptial debts, and funeral expenses; wife as a sole trader; wife as husband's ei^ent; convey- ances, sales, and gifts by the wife, etc. Chapter V. WIFE'S EQUITABLE AND STATUTORY SEPARATE ESTATE: Covering their nature; jus disponendi; power to charge by contract, etc. Chapter VI. ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS: Covering the subject generally, Including marriage as a consid- eration; the statute of frauds; validity against creditors and purchasers, etc. Chapter VII. SEPARATION AND DIVORCE: Covering agreements for separation; jurisdiction to grant divorce; grounds for divorce; de- fenses in actions for divorce; legislative di- Torce, etc. PART II. PARENT AND CHILD. Chapter VIII. LEGITIMACY, ILLEGITIMACY, AND ADOPTION: Covering legitimacy of chil- dren; adoption of children; status of illegiti- mate children. CONTENTS. Chapter IX. DUTIES AND LIABILITIES OF PAR- ENTS: Maintenance, protection, and edu- cation of child; allowance out of child's estate; child as parent's agent; parent's lia- bility for crimes and torts ©f cnild, etc. Chapter Z. RIGHTS OF PARENTS AND OF CHII, DREN: Right to custody; service and earnings of child; correct'.on of child; emancipation of children; action by parent for injuries to child; gifts, contracts, and conveyances between; advancements; duty to eupiK)rt parent; domicile of cliild, etc PART ILL GUARDIAN AND WARD. Chapter XI. GUARDIANS DEFINED — SELECTION AND APPOINTMENT: Covering natural guardians; testamentary guardians; statu- tory guardians; guardians by estoppel; guardians of insane persons; guardians ad litem, etc. Chapter XH. RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS: Right to custody and serv ices of ward; maintenance of ward) change of ward's domicile; management of ward's estate; foreign guardians; inventory and accounts; compensation of guardian) trans- actions between guardian and ward, etc. Chapter XIH. TERMINATION OF GUARDIANSHIP - ENFORCING GUARDIAN'S LIABILI- TY: Covering the subject generally. PART IV. INFANTS. PERSONS NON OOMPOTB8 MENTIS, AND ALIENS. Chapter XTV. INFANTS: Covering contracts of infants. In- cluding ratification and disaffirmance; lia- bilities for necessaries, etc.; capacity to hold office, to make a will, and as witness- es; liability for torts and crimes; infanta as parties to actions, etc. Chapter XV. PERSONS NON COMPOTBS MENTIS AND ALIENS: Covering insane and drunken persons, their contracts, their lia- bility for torts and crimes and testament- ary capacity, etc. PART V. MASTER AND SERVANT. Chapter XVI. CREATION AND TERMINATION OF RE- LATION: Remedies for breach of con- tract; rights and duties and liabilities inter se and as to third persons, eta. C1248 1 VOLUME. 589 PAGES. $3.76, DELIVERED. WEST PUBLISHING COMPANY, ST. PAUL, MINN. (17) (3n t^e l^ornfioofi ^eneej SeW V" . (B;ectt^ot0 anb (^bminie^ra^ore By Simon Grcenleaf groswell, ^?Lt°^t°Sa;^^'^rt;^^^"*' TABLE OF CONTENTS. Part I.— DEFrNITIONS AND DIVISION OF SUBJECT. Chapter I. DEFINITIONS AND DIVISION OF SUBJECT: Ex- ecutors and admlnlstratorB defined; analysis of book. Part II.— APPOINTMENT AND QUALIFICATIONS. Chapter II. APPOINTMENT IN COURT: Necessity of adminis- tration; necessity of appointment by court; ju- risdiction; conclusiveness of decrees of probate courts, etc Chapter HI. PLACE AND TIME OF APPOINTMENT AND REQ- UISITES THEREFOR: Place of appointment; property necessary to give jurisdiction; time limit for application. Chapter IV. WHO MAT CLAIM APPOINTMENT A3 EXECU- TOR: Desig;natlon in will; appointment by dele- gation; executor of executor; non-assignability of office. Chapter V. WHO MAT CLAIM THE RIGHT TO ADMINISTER: Principle -which governs the right; order of pre- cedenc«; creditors; preferences among kindred, etc. Chapter VI. DISQUALIFICATIONS FOR THE OFFICE OP EX- ECUTOR OR ADMINISTRATOR: Infants, mar- ried women. Idiots, lunatics, convicts, corpora- tions; poverty and insolvency; absolute and dis- cretionary incompetency, etc. Chapter VII. ACCEPTANCE OR RENUNCIATION: Implied renunciation. Express or Chapter VIII. FROCEEDINQS FOR APPOINTMENT OF EXECU- TORS AND ADMINISTRATORS: In general. Chapter IX. SPECIAL KINDS OF ADMINISTRATIONS: Admin- istration cum testamento annexo; de bonis non; during minority; pendente lite; public adminis- trator; executor de son tort, etc Chapter X. FOREIGN AND INTERSTATE ADMINISTRATION: Validity of foreign wills; territorial limit of va- lidity of letters; principal and ancillary adminis- tration; conflict of laws; comity, etc Chapter XI. JOINT EXECUTORS AND ADMINISTRATORS: Na- ture of estate; rights, powers and liabilities; rem- edies between, etc. Chapter XIL ADMINISTRATION BONDS: Corerin* the mbject generally. I Vol. 696 Pages. i3-75. Net, Delivered. CI 395 Part III.— POWERS AND DUTIES. Chapter XIII. INVENTORT— APPRAISEMENT— NOTICE OF AP- POINTMENT: Covering the subject generally. Chapter XIV. ASSETS OF THE ESTATE: What are assets; fix- tures; emblements; animals; ownership at time or death, etc. Chapter XV. MANAGEMENT OF THE ESTATE: Rights and lia- bilities of executors or administrators; collection and Investment of assets, taxation, etc Chapter XVI. SALES AND CONVEYANCES OF PERSONAL OR REAL ASSETS: Covering sales in general, sales of land to pay debts, power to mortgage, etc. Chapter XVII. PATMENT OF DEBTS AND ALLOWANCES— IN- SOLVENT ESTATES: Covering priority of debts, widow's allowance, expenses of funeral and last illness, costs of administration; presentation and allowance of claims. Insolvent estates, etc. Chapter XVIIL PATMENT OP LEGACIES: Legacies subordinate to debts; ademption and abatement of legacies; priority between legacies and contingent, future or unknown debts; payment of legacies. Interest, etc Chapter XIX. DISTRIBUTION OF INTESTATE ESTATES: Order, time and mode of distribution; rights of husband, widow and next of kin, right of presentation, payment of distributive share, etc. Chapter XX. ADMINISTRATION ACCOUNTS: Time and manner of accounting, charges and allowances In account; commissions and compensation, etc Part IV.— TERMINATION OF OFFICE. Chapter XXI. REVOCATION OF LETTERS— REMOVAL— RESIG- NATION: Covering the subject generally. Part v.— REMEDIES. Chapter XXII. ACTIONS BT EXECUTORS AND ADMINISTRA- TORS: Power to sue before probate or grant of letters; survival of actions; actions In personal and representative capacity, etc. Chapter XXIII. ACTIONS AGAINST EXECUTORS AND ADMIN- ISTRATORS: Survival of actions; particular lia- bilities; attachment and garnishment; judgments, executions and other proceedings; order of liablU Ity of assets; suits on bonds, etc. Chapter XXIV. STATUTE OF LIMITATIONS— SET-OFF: General and special statute of limitations, set-off, etc Chapter XXV. BJVIDBNCE AND COSTS: Coverln» the lubject generally. me$t Publi$bind €0., $t. Paul, minn. (18) (g l^anbBooa of Sfe Bai» of ^riM^e Corf>ora(iott0. By Wn. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." SECOND EDITION: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chapter I. OP THE! NATURE OF A CORPORATION: Definition and creation; limited powers; attri- butes and incidents; corporation as a person, citizen, etc. ; kinds of corporations, etc. Chapter II. CREATION AND CITIZENSHIP OP CORPO- RATIONS: Covering the subject genei'ally, in- cluding power to create; general and special laws; ratification of claim to corporate exist- ence; agreement between corporation and state — acceptance of charter; agreement between corporators and corporation ; [)uri lose of incorpo- raiion; corporate name, residence, and citizen- ship of corporation; extension of charter; proof of corporate existence, etc. Chapter III. EFFECT OF IRREGULAR INCORPORATION: Corporations de facto; estoppel to deny corpo- rate existence; liability of stockholders as part- ners. Chapter IV. RELATION BETWEEN CORPORATION AND ITS PROMOTERS: Liability for expenses and services of promoters; liability on contract by promoti^rs; liability of promoters to corporation and stockholders, etc. Chapter V. POWERS AND LIABILITIES OF CORPORA- TIONS: Express and implied powers; con- struction of charter ; power to bold realty ; con- tracts and convej'ances, etc. Chapter VI. POWERS AND LIABILITIES OF CORPORA- TION S (Continued) t The doctrine of ultra vires. Chapter VII. POWERS AND LIABILITIES OF CORPORA- TIONS (Continued): Responsibility for torts and crimes; contempt of court. Chapter VIII. THE CORPORATION AND THE STATE: Charter as a contract; police power of the state; power of eminent domain; repeal and amend- ment of charter ; taxation of corporation. Chapter IX. DISSOLUTION OF CORPORATIONS: How ef- fected; equity jurisdiction; efiect of dissolu- tion, etc. Chapter X. MEMBERSHIP IN CORPORATIONS: Capital stock and capital; nature of corporate shares; certificates of stock ; subscripti(jns to stock; re- lease and discharge of subscriber, etc., covering the subject generally. Chapter XI. MEMBERSHIP IN CORPORATIONS (Contin- ued): Right to inspect books and papers; right to vote; profits and dividends; increase of cap- ital; preferred stock ; watered and bonus stock; action by stockholders for injuries to corpora- tion ; expulsion of members, etc. Chapter XII. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Covering transfer of shares. Chapter XIII. MANAGEMENT OF CORPORATIONS— OFFI- CERS AND AGENTS: Powers of majority of stockholders; by-laws; stockholders' meetings; election and appointment of (■Iticers and agents: powers and liabilities of offloeis and agents; re- moval of officers and agents, etc., covering the subject generally. Chapter XIV. RIGHTS AND REMEDIES OF CREDITORS: Relation between creditors and the corporation, covering, inter alia, property subject to execu- tion; assets as a trust fund for creditors; fraud ulcnt conveyances; assignment for benefit of creditors; preferences; dissolution, injunction, and receivers; relation between creditors and stocklioltiers, coverin'^, inter alia, statutory lia- bility of stockholders; contribution between stockholders, etc. ; relation between creditors and officers, covering preferences to officers who are creditors; statutory liability of officers. Chapter XV. FOREIGN CORPORATIONS: Covering the sub- ject generally. APPENDIX. The logical conception of a corporation. 1 Volume. 721 pages. $3. 75. net, delivered. West Publishing Co , St. Paul, Minn. C1479a (19) Z^ J^ornBooft ^enes. @ 35^ni)6oo6 of SJe EatD of ^ar^nerepij) (gg n3?iffiam (Beorge, TABLE OF CONTENTS. Chapter I. 1 DEFINITION AND ESTABLISHMENT OF RELATION: What constitutes a partner- ship; tests of intention ; sharing profits; pro- moters of corporations; defective corpora- tion; delectus personarum; subpartnerships ; holding out, etc. Chapter H. KINDS OF PARTNERSHIPS AND PART- NERS: Classification of partnerships and partners; universal, general, and special part- nerships; limited partnerships; joint-stock companies; mining partnerships; trading and nontrading partnerships, etc. Chapter HI. CHARACTERISTIC FEATURES OF PARTNERSHIPS: Legal and mercantile ■ view of a firm; partnership name; partner- ship property; partnership capital; shares in partnerships, etc. Chapter IV. IMPLIED RIGHTS AND LIABILITIES IN- TER SE: Participation in management; rights and powers of majority; duty to ex- ercise care, skill, and good faith; right to compete with firm; compensation for serv- ices; interest on balances; partner's lien; ^vision of profits, etc Chapter V. ARTICLES OF PARTNERSHIP: Purpose and effect; rules of construction; usual clauses in articles, etc.; covering the subject generally. Chapter VI. RIGHTS AND LIABILITIES AS TO THIRD PERSONS: Express and implied authority of partner to bind firm; particu- lar powers; liability of partners to third persons; incoming partners; assumption of debts; rights in firm and separate property. etc Chapter VH. ACTIONS BEa^WEEN PARTNERS: Action on partnership claim or liability, at law, in equity, or under the code; actions between firms with a common member; actions on individual obligations; equitable actions in general; accounting and dissolution; spe- cific performance; injunction; receiyere, etc. Chapter VIH. ACTIONS BETWEEN PARTNERS AND THIRD PlRSONS: Parties in actions by and against partners; effect of changes in firm; disqualification of one partner to sue; action in firm name, etc. Chapter IX. DISSOLUTION: Causes of dissolution; part- nerships for a definite and indefinite time; causes subject to stipulation ; causes not sub- ject to stipulation; causes for which a court will decree a dissolution; consequences of dissolution as to third persons and as to partners. Chapter X. LIMITED PARTNERSHIPS: Covering the subject exhaustively, including, inter alia, definition and establishment of relation; general and special members; certificate; contribution of general and special partners; name; sign; rights and liabilities; with- drawal, alteration, and interference; insol- vency; termination of relation; change from limited to general liability; actions, etc Chapter XI. .TOINT-STOCK COMPANIES: Definition and nature; transfer of shares; powers of mem- bers and ofiicers; rights and liabilities; ac- tions, etc. I Volume, 6i6 pages. $3.75, net, delivered. West Publishing Co , St. Paul, Minn. CU71 W (3n Hi J^orngooft ^eriee.) (g l^anbBooK of (Bc\uit^ (pfeabing. Anthor o( " Shipman's Coramon-Law Pleading.' TABLE OF CONTENTS. Cliapter I. EQUITY PLEADING IN GENERAL: Cov- ermg nature and Bcope of pleadings in eq- uity Olvapter H. PARTIES: Giving general rules, and covering classification of parties as necessary, proper but not indispensable, formal, and parties with separable interests; parties complain- ant and respondent; joinder, etc CliapteT m. PROCEEDINGS IN AN EQUITABLE SUIT: Indicating the steps usually tiiken and the method of procedure, as the bill, appearance, proceedings on default; th« modes of defense, by disclaimer, demurrer, plea, or answer; the replication; interlocu- tory proceedings, as amendment, injunc- tions, production of documents, interven- tion: the evidence, hearing, and decree; th« •onection, reversal, or enforcement of de- crees, ete. Chapter IV. BILLS IN EQUITY: Oovering deflnWon and classification, and discussing original bills, and bills not original, with a summary of the general roles oovering the bill, etc Chapter V. THE DISCLAIMER: Definition, nature, and use. Chapter VI. DEMURRER: Definition; form of demurrer, and grounds therefor; orders stistaining or overruling demurrer, etc Chapter VH. THE PLEA: Definition, natura, and office of pleas, grounds for pleas, their form, support- ing answers, etc. Chapter VilL THE ANSWER: Nature and office, Bub.-rtance ami effect, of the answer, and the character- istics thereof. Chapter IX. THE REPLICATION. 644 PAGES. $3.75, NET, DELIVERED. WEST PUBLISHINQ CO., St. Paul, Minn. CI680 ^21^ it^c j[gorn6ooft ^ericB. ) ^ ganbBooft of t^c Saw of (Bviunu. QBj 3o6n 3*8 (JtlcQKefOtj, (^. (St., &£. (g., Author of "Common-Law Pleading," etc TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY: Definitions; origin, place and function of the law of evidence, etc. CHAPTER II. JUDICIAL NOTICE: The doctrine in general; facts which may or must be noticed. CHAPTER III. QUESTIONS OF LAW AND QUESTIONS OF FACT: Definitions; province of court and jury. CHAPTER IV. BURDEN OF PROOF: Burden of proof never shifts; burden of proceeding may shift; ver- dict, etc. CHAPTER V. PRESUMPTIONS: Presumptions as rules of law; prima facie, conclusive, spurious, and conflicting presumptions. CHAPTER VI. AD^SIISSIONS: Direct and indirect admissions; admissibUity; civil and criminal cases; ef- fect of admission, etc. CHAPTER VII. CONFESSIONS: Defined; voluntary or under influence; may be explained; evidence there- from, etc. CHAPTER VIII. MATTERS EXCLUDED AS UNIMPOR- TANT. OR AS MISLEADING, THOUGH LOGICALLY RELEVANT: Logical and le- gal relevancy, rule excluding; classification of matter; proof of diverse matters consid- ered. CHAPTER IX. CHARACTER: General rule; when material; how proved, etc. CHAPTER X. OPINION EVIDENCE: Matter of opinion dis- tinguished from matter of fact; general rule, exceptions: matters forming subject of ex- pert opinion, etc. CHAPTER XI. HEARSAY: General ru!e; exceptions; real and appaient; cl.tsses of statements admit- ted because of the diflBculty of other proof. CHAPTER XII. WITNESSES: Rules excluding witnesses; per- sons excluded; privilege distinguished from disqualification; privileged persons. CHAPTER XIII. EXAMINATION OF WITNESSES: Ordinary method; refreshing memory; direct and cross examination; leading questions; im- peaching witness, etc. CHAPTER XIV. WRITINGS: B^st evidence rule; production of documents; authentication of documents; proof of handwriting; evidence affecting the contents of documents, etc. CHAPTER XV. DEMURRERS TO EVIDENCE: Definition; when joinder compelled; final form, etc. 1 vol. 480 pages. $3.75, net, delivered. WEST PUBLISHING CO., St. Paul, Minn. C1837 (22) iZ^c J5^rtt6ooft ^erie0.) (^ ganb6ooft of tf}^oo^ of (gj (RoBert (m. Jgug^ee, (^X. ®. TABLE OF CONTENTS. The Origin and History of ttie Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Sub- ject Matter. General Avei*age and Marine Insurance. Bottomry and Respondentia ; and Liens for Supplies, Repairs, and Other Necessaries. Stevedores' Contracts, Canal Tolls, and Toiw- age Contracts. Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected by the Harter Act of February 13, 1893. Admiralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels. Special Oircum- Btancea, and General Precautions. Damages in Collision Cases. Vessel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Liabilitv Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting' Inland Waters. (3) The Dividing Lines between the High Seas and Coast Waters. (4) The Lake Rules. (ft) The Mississippi Valley Rules. (6) The Act of March 3, lSi>U, as to Ob- structing Channels. 8. The Limited Liability Acts, Including: (1) The Act of March 3, 1851, as Amended. (2) The Act of June 2G. 1884 4. Section 941, Rev. St., as Amended, Regulat- ing Bonding of Vessels. 5. Statutes Regulating Evidence in the Federal Courts. 6. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. 1 volums, 503 Pages. $375 delivered. WEST PUBLISHING C0.,5t. Paul. Minn C8663 (35) 'C6e j5ot«8 oft ^ttite.) (^ ganb6ooft of t?)t &aix> of (principaf anb Jlgent Author of Death by Wrongful Act, Law of Sales, etc TABLE OF CONTENTS. Part I. IN GENERAIi. Chap. L Introductory — Definitions. II. Creation of the Eelation of Principal and Agent — Appointment III. Same (continued) — Ratification. IV. What Acts Can be Done by Agent — Illegality — Capacity of Parties — Joint Principals and Agents. V. Delegation by Agent — Subagenta. VI. Termination of the Relatioa. VIL Construction of Authority. Part II. RIGHTS AND LIABrLITIES BET^WEEN PRINCIPAL AND THIRD PERSON. VIII. Liability of Principal to Third Person — Contract. IX. Same (continued). X. Admissions by Agent — Notice to Agent. XI. Liability of Principal to Third Person — Torts and Crimes. XII. Liability of Third Person to Principal. Part ni. RIGHTS AND LIABILITIES BET'WEEN AGENT AND THIRD PER- SON. XIIT. Liability of Agent to Third Person (Including parties to contracta), XIV. Uabillty of Third Person to Agent Part IV. RIGHTS AND LIABILITIES BET'WEEN PRINCIPAL AND AGENT. XV. Duties of Agent to Principal. XVI. Duties of Principal to Agent Appendix. WEST PUBLISHING CO., St. Paul, Hinn (26) ♦!♦»> V it Tr Tf y? y? yy yy yy ^ I >^ xv yy ^ *'• 5:5J XX tpe Ean> of (XOiffe. By GEORGE E. GARDNER, yy X i ?? Professor in the Boston University Law School ?? ?? IN THE HORNBOOK SERIES. $3.75 DELIVERED. 4? ♦i*y yt ♦!♦•? yy ♦? TABLE OF CONTENTS. yt YX Chap. y*t' I. History of Wills — Introduction. a 2. Form of Wills. X$I 3. Nuncupative, Holographic, Conditional Wills. !C*I 4. Agreements to Make Wills, and Wills Resulting from Agreement. 't**t' 5- Who may be a Testator. \'i* 6. Restraint upon Power of Testamentary Disposition — Who may vy •{|*t* be Beneficiaries — What may be Disposed of by Will, 'XX 7- Mistake, Fraud, and Undue Influence, <•♦:♦ yy :C»I 8. Execution of Wills. X% 9- Revocation and Republication of Wills. •H* 10. Conflict of Laws. ►i«»> ♦H* II. Probate of Wills. fX 12. Actions for the Construction of Wills. !C^t 13. Construction of Wills — Controlling Principles. ?•*• 14. Construction — Description of Subject-Matter. 'fk ^5- Construction — Description of Beneficiary. ♦k< 16. Construction — Nature and Duration of Interests. yX 17. Construction — 'Vested and Contingent Interests — Remainders — y,t, ' X»l* Executory Devises. *0 18. Construction — Conditions, *:*! 19. Construction — ^Testamentary Trusts and Powers. ?*:* 20. Legacies — General — Specific — Demonstrative — Cumulative •j«)* — Lapsed and Void — Abatement — Ademption — Advancements. |:tJ* 21. Legacies Charged upon Land or Other Property. t% 22. Payment of the Testator's Debts. ►!»y 23. Election. y ?•»; 24. Rights of Beneficiaries not Previously Discussed. »♦«♦• ^** .,- (t^e jgornBooft ^ertee.) Federal Jurisdiction and Procedure By ROBE.RT M. HUGHES, of the Norfolk Bar; author of " Hughes on Admiralty," and lecturer at the George Washington University Law School. TABLE OF CONTENTS. 1. 2. 3. 4, Introduction — What It Comprehends, The District Court — Its Criminal Juris- diction and Practice. Same — Continued. The District Court — Criminal Jurisdiction — Miscellaneous Jurisdiction. 5. The District Court — Bankruptcy. 6-7-8. Same — Continued. 9. The District Court — Miscellaneous Juris- diction. 10. The Circuit Court — Original Jurisdiction. 11-12. Same— Continued. 13. The Circuit Court — Jurisdiction by Re- moval. 1 4-15. Same — Continued. 16. 17. 18. 19. 20. 21. 22. The Circuit Court — Jurisdiction by Re- moval — Original Jurisdiction of the Su- preme Court — Other Minor Courts of Original Jurisdiction. Procedure in the Ordinary Federal Courts of Original Jurisdiction — Courts of Law. Procedure in the Ordinary Federal Courts of Original Jurisdiction — Courts of Equity. Same — Continued. Appellate Jurisdiction — The Circuit Court of Appeals. Appellate Jurisdiction — The Supreme Court. Procedure on Error and Appeal. The U. S. Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an Appendix. 1 volume, 634 pages. $3.75 delivered. West Publishing Co., C.5774 St. Paul, Minn (28) tmrnm* Jn ti}t ^oxnioo^ ^txm* public Corporation 8 By HENRY H. INGERSOLL, LL. Z>., Dean of the University of Tennessee School of La* £f PART I. QUASI CORPORATIONS. Chap. I. Nature, Creation, Classification. II. Quasi Corporations — Liabilities, EHe- ments. Counties, Property, etc III. Same — Continued. IV. Same — Continued. PART II. MUNICIPAL CORPORATIONS. V. Municipal Corporations. VI. Their Creation — How — By what Bodies — Subject to what Restric- tions, etc. VII. Their Alteration and Dissolution. VIII. The Charter. IX. Legislative Control. X. Proceedings and Ordinances. XI. Officers, Agrents, and Employes. XII. Contracts. XIII. Improvements. XIV. Police Powers and Regulations. XV. Streets, Sewers, Parks, and Public Buildings. XVI. Torts. XVII. Debts, Funds, Expenses, and Admin- istration. XVIII. Taxation, XIX. Actions. PART III. QTTASI PUBLIC CORPORATIONS. XX. Quasi Public Corporations. XXI. Railroads. XXII. Electric Companies. XXIII. Water and Gas Companies. XXIV. Other Quasi Public Corporations. 738 Pages. $3.75 delivered. Cdest publishing Co., St. paul, jVIinn. C476-1 (29) (3n tge JgornBooa ^eriea.) A Handbook on the Law of INSURANCE, By WILLIAM RE^YNOLDS VANCE, Professor of Law in the George Washington University. The principal object of this treatise is to give a consistent statement of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of insurance. Special attention has been given to the construction of tl e standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover, — Historical and Introductory. Nature and Requisites of Con- tract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties — Con- cealment. Consent of the Parties — War- ranties. Agents and Their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and Liability Insurance. Appendix. 1 volume, 683 pages. $3.75 delivered. WEST PUBLISHING CO.,St. Paul, Minn C41:m\h (80) Principles and Precedents The following letter expresses so pithily the pre: ent tendencies in the use of law books that we gf{" My print it in full. S. B. POUND, ROSOOE POUND. ATTORNEYS AT LAW. Rooms 125, 126, 127, Burr Block. Lincoln, Neb., November 6th, 1896. West Publishing Co. , St. Paul, Minn. Gentlemen: I regard the plan of your Hornbook Series as a very happy one. The tendency has been very marked for some years to make text books little more than unvvieldy digests. Such text books are soon obsolete, and the expense of new editions is large. The rapid development of digest making cannot fail to result in superseding the text-book digest by the digest pure and simple. With your Century Digest when ii appears, and the Annuals, there will be no need for the ordinary text book. But for this very reason there will be, and there now is, a greater need for such books as those of the Hornbook Series. For au- thorities and cases in point we must go to the digests; but in order to be sure that we are right before we go ahead, we must have some ideas as to what we are to look for. I have found several of the Hornbooks of great use for this purpose. You are also to be congratulated upon the writers whom you have chosen to do the work. Several who bid fair to take very high rank among legal authors have made their first appearance as contributors to the series. While lawyers have been debating how to reform official reporting, you have made the decisions of all our courts accessible to the pro- fession at comparatively slight expense. While critics are deploring the degeneration of text books, as they deem it, you are again coming to our assistance by providing text books that combine scientific treat- ment with practical usefulness. The profession require the former as well as the latter, but in a busy age the latter is an imperative necessity. Yours very truly, ROSCOE POUND. CI 299 ' ^^^' '''The ideal legal text-book of to-day is not so much one that enables the busy lawyer to find authorities — the digests and encyclope- dias do this — as one that refreshes his mind on the fundamental principles of law that underlie his case. * * * The Hornbook Se- ries offers the practitioner a most convenient opportunity to quickly review the main- springs of the law having relation to the subject in his mind at any particular time." — Central Law Journal. 1 •*, **Too much cannot be said in commen- dation of that feature peculiar to the Hornbook Series, to wit, concisely stat- ing the leading principles in black-letter type. It not only furnishes the lawyer with the most convenient method of quick- ly reviewing the general principles of a subject, but it tends to insure careful and accurate statement on the part of the au- thor." — Virginia Law Register, C4829a V-*T->.^ m DEC UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below O ii^wsi \^Vvt.\'^V^^^ ^A\ i 6 1951 /'^ f94l Form L-y-2(l;;i-8,'37 Iir cm iTuf R«i pr^ AA 000 570 293 *t myy^m -■.v.v, ' • • • • .1 « .'. ■ ■ ' • > >^^>:■^^^^v>y^^v:-; hH V ft« / • * ■/*■,■■.•>'•'». • *t • ^ • ♦ V • '. ■, , . . " ■ '■ '»"•*•• ' ' " '^ •••^lAwwV!: ^iiii,V;^^XijS:^^