UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY < c BECKTOLD SPrintlngiBookM'J'g; LEADING CASES SIMPLIFIED. A COLLECTION OP THB LEADING CASES OF THE COMMON LAW. BT JOHN D. LAWSON, Author of " Words and Phrases Judicially Constnied," " The Law of Usaries and Customs," " The Contracts of Common Carriers," etc., etc. SAN FRANCISCO: BANCROFT-WHITNEY COMPANY, Law Publishers and Law Booksellbbs, 1892. \^-^ Entered according to Act of Congress, in the year 1S82, by JOIIX D. LAWSON, In the OflQce of the Librarian of Congress, at "Washington. ^ .- /-/ 4 PREFACE. An endeavor has been made in the following pages to present the Leading Cases of the Common Law — the land- marks of the law of to-day in the States of the Union — in a clear, concise and semi-humorous style. While this book is more particularly intended for the law student, it is hoped that (if he can be induced to read it) the general reader will find it interesting, and it is promised that (if he cannot be prevented from reading it) the busy practitioner will find it both entertaining and profitable. In this little book I have aimed at these results : L To give the student a collection of the acknowledged leading cases of the common law. 2. To present these in a style which shaU arrest his attention, render it possible for him to acquire their principles readily, and fix those principles in his mind unincumbered by unimportant and sometimes unintelUgible facts. To this end only the really leading cases have been selected, and these, instead of being some fifty or sixty, num- ber in all over two hundred, and embrace nearly every branch of the common law of the land. To this end, also, correct- ness of statement has been adhered to, and humor has never been indulged in at the expense of truth. Therefore, this work differs essentiall}'- from a work like the " Comic Black- stone," in this, that while in that the principles of the law are parodied, here the facts, the result, the principles settled (iii) IV PREFACE. and the reasons given, are stated as they are found in Coke and Story and Kent, and to the same end I have arranged the cases in logical order, so that the law may be studied systematically and without confusing the many different points which they decide. In adopting the semi-humorous vein, I have tried to make the study of the law less dry to the student than, as a rule, it generally is. In bringing tlie following pages more particularly to the notice of the "student," I am keeping in mind the fact that one docs not cease to be a student by being admitted to the bar. It is an old saying that there is no rule without an excep- tion, and I believe that this maxim is nowhere better illustrated than it is by the rules of the common law. Many of these exceptions the student will find stated in the cases themselves, others of them again in the occasional notes to the cases. In conclusion, I desire to express my obligations to Mr. Shirley, the author of the English work, Leading Cases Made Easy, for the most of Smith's Leading Cases, which I have either rewritten or adapted, and also for several later ones. J. D. L. St. Louis, Mo., June, 1882. cokte:n^ts. PART I. — Formation of Contract. PAGE. Two Requisites to Contract, viz., Proposal and Assent — White V. Corlies ^ Bartholomew v. Jackson 2 Proposal Cannot be Retracted After Acceptance — Boston and Maine B. Co. v. Bartlett .... 3 Bidding at Auctions — Payne v. Cave ^ Proposer May Prescribe Time, Place and Form of Acceptance — Eliason v. Henshaw ^ Maclay v. Harvey ^ But not of Refusal — Felthouse v. Bindley 8 Offer must be Accepted within Reasonable Time — Loring v. City of Boston 9 Contracts by Post — Adams v. Lindsell ^^ Tayloe v. Merchants Fire Ins. Co 12 Household Fire Ins. Co. \. Grant 1* Uncertain Agreement does not make Contract — Sherman v. Kitsmiller 16 Zaleski v. Clark 18 Acceptance must be Identical with Offer — Jordan v. Norton 19 Acceptance of Altered Proposal — Borland v. Chiffey 20 Proposal to Unascertained Person — Williams v. Carwardine 22 (V) VI CONTEXTS. PACrE. Mistake as to Pkhsox Contracting — Boston Ice Co. v. Potter 23 Mistake as to Subject Matter — Kyle V. Kavanaugh 25 Kepresextations and Warranties — Behn V. Burness 26 PART II. — Consideration. A Consideration Necessary to Support a Contract — Bann v. Hughes 2S Adequacy op Consideration Immaterial — Bainbridge v. Firmstone 29 But Consideration jiust be Real — White V. Bluett 30 Forbearance to Sue a Sufficient Consideration — Hockenbury v. Meyers 32 PRO^^DED there is a Legal Cause of Action — Palfrey v. Portland, etc., B. Co 32 Promise to do what Party is Bound to do, Insufficient — Eeynolds v. Nugent 34 Cumber v. Wane 35 MoRAX Obligation Insufficient — Cook V. Bradley 3S Beaumont v. Beeve 37 Past Consideration — Bulkley v. Landon 38 Lampleigh v. Brathwait 39 PART III. — Parties. Contracts of Infants Voidable and Void — Fetrow v. Wiseman 41 Except for Necessaries — Peters v. Fleming 42 Hunt V. Peake 43 CONTENTS. VII PAGE. Husband and Wife — Manhy v. Scott 46 Montagu v. Benedict 46 Seaton v. Benedict 47 Debenham v. Mellon 47 CONTBACTS OF LUNATICS — Mitchell V. Kingman 60 Baxter v. Portsmouth 61 Krom V. Schoonmaker 62 Contracts of Corporations — Bank of Columbia v. Patterson 53 PART rV. — The Statute of Frauds. Promise to Answer for " Debt, Default, or Miscarriage " OF Another — Birkmyr v. Darnell 67 Promise " in Consideration of " Marriage — Short V. Stotts 69 "Interest in or Concerning Lands " — Crosby v. Wadsworth 69 Contracts " not to be Performed within a Year " — Peter v. Compton 60 Consideration must be Expressed — Wain V. Warlters 62 Promise to Answer for Debt, etc., op "Another " — Eastwood V. Kenyan 63 " Goods, Wares, and Merchandise " — Tisdale v. Harris 65 Goods not in Existence — Lee V. Griffin 66 Value of Goods — Baldey v. Parker 67 Acceptance and Receipt — Elmore v. Stone 68 Shindler v. Houston 70 Contract Contained in Several Documents — Boy dell v. Drummond 71 VIU CONTENTS. PART V. — "Written Contracts and Oral Evidence. rAGE. Oral Evidence not Admissible — Ooss V. Nugent 74 Pym V. Campbell 76 Latent Ambiguity may be Explained — Sargent v. Adams 77 But not '* Patent Ambiguity" — Aspden^s Estate 78 Supplementary Contract may be shown — Malpas V. London, etc., li. Co 79 Usages of Trade may be Shown — Cooper V. Kane 80 Soutier v. Kellerman 81 Usage must not Contradict Contract — Blackett V. Boyal Exchange Ass. Co 86 PART VI. — Illegal Contracts. Contracts to Prevent Competition — Qulick V. Ward 87 Agreements to Influence Officials — Tool Co. V. Norris 88 Contracts Impeding the Administration of Justice — Collins V. Blantem 89 Scott V. Avery 91 Contracts Violating Law — Cowan V. Milhourn 92 Contracts Violating Statutes — Pattee v. Greeley 93 Immoral Contracts — Pearce v. Brooks , , 96 Wagers — Good V. EllioU 96 Contracts in Restraint of Trade — Alger v. Thacher 98 Mitchel V. Beynolds 101 CONTENTS. IX PAGE. Contracts in Restraint of Marriage — Lowe V. Peers 102 Marriage Brokage Contracts — Crawford v. Bussell 103 Court will not aid Either Party — Holraan v. Johnson 106 Except where Illegal Purpose is not Completed — Spring Co. v. Knowlton 108 PART VII. — Performance of Contracts. Discharge by Act of Promisee — Peck V. United States 110 Discharge by Act of Law — Baily v. De Crespigny HI Impossibility of Performance — Taylor V. Caldwell 113 Impossibility by Act of God — Bobinson v. Davison H* Dewey v. Union School District 116 Renunciation Before Performance gives Right to Sue — Eochster v. De La Tour 117 Frost V. Knight 118 Construction of Contracts — Boe V. Tranmar 119 Breach of Promise of Marriage — Wrightman v. Coates 120 Atchinson v. Baker 121 Willard v. Stone 122 An Entire Contract cannot be Apportioned — Cutter V. Powell . . 123 Measure of Damages on Breach of Contract — Hadley v. Baxendale 125 Penalties and Liquidated Damages — Kemble v. Farren 126 Fraudulent Conveyances — Twyne's Case ......... 128 X CONTENTS. PAGE. Becovery of Moxey Paid under Mistake — Marriott v. Hampton 130 PART Vin.— Sales. When Sale Complete, Property Passes at Once — Tarling v. Baxter 132 Unless SomethixCx Remains to be done — Gihhs V. Benjamin 133 Warranties — Chandelor v. Lopus 134 Implkd Warranty of Quality of Goods — Jones V. Just .......•• 136 Warranty must be During Course of Sale — Hogins v. Plympton 138 PART IX. — Principal and Agent. Special Agent must Pursue Authority — Battij V. Carswell 139 Death of Principal Revokes Authority — Harper v. Little 140 Contracts -with Agents of Undisclosed Principals — Paterson v. Gandasequi 141 Thomson v. Davenport 143 Stone V. Wood 145 Set-Off Against Principal — George v. Clagett 146 Agent Exceeding Authority Liable in Contract — Collenv. Wright . • 148 Partnership Liability — Wangh v. Carver 150 Cox V. Hickman 161 PART X. — Negotiable Paper. The Requisites of a Promissory Note — Eelley v. Hemmingvoay 163 CONTENTS. XI PAGE. Title to Bank Notes — Miller v. Bace 154 Who 18 A " HoLDEK FOR Value " — Swift V. Tyson 155 Notice of Dishonor, when Necessary — Bickerdike v. Bollman 157 Unauthorized Alterations Vitiate the Instrument — Master v. Miller 158 Negligence in Drawing Check — Young v. Grote 160 Stoppage in Transitu — Lickbarrow v. Mason 161 Statute of Limitations — Whitcomb v. Whiting 163 PART XI. — Landlord and Tenant. Paying Rent for Destroyed Premises — Hallettv. Wylie 165 No Warranty as to Condition of Premises — Cleves V. Willoughby 166 Except it is a Furnished House — Smith V. Marrable 167 Effect on Tenant of Mortgage by Landlord — Keech v. Hall 169 Moss V. Gallimorc 170 Usages and Customs — Wigglesxnorth v. Dallison 171 Leases for more than Three Years — Bigge v. Bell 172 Clayton v Blakey 173 Agricultural Fixtures — Elwes V. Maioe 174 Covenants that " Run with the Land " — Spencer''s Case 178 Waiver of Condition in Lease — Dumpor^s Case 180 Xll CONTENTS. PAGE. Goods PumLECED from Distress for Rent — Simpson v. Hartopp 182 PART XII. —Insurance. Concealment of Material Facts — Carter v. Boehm 186 Fire Insurance — Customary Use of Prohibited Articles — Harper v. City Ins. Co 187 Who MAY Insure THE Life of Ajstother — Connecticut, etc., Ins. Co. v. Schaefer .... 189 , PART XIII. — Bailments. The Different Kinds of Bailments — Coggs V. Bernard 191 Liabilities of Inn-keepers — Cayle's Case 199 Berkshire Woollen Co. v. Proctor 200 Responsibility of Carrier of Passengers for Defective Vehicle — Ingalls v. Bills 202 Railroad Time-tables and Contracts — Denton v. G-reat Northern B. Co 204 Power of Carrier to Liivht Liability — Hollister v. Nowlen 205 Liability for Injury to Free Passenger — Philadelphia, etc., B. Co. v. Derby 207 Travelling on "Free Pass " with Conditions — Bailroad Co. v. Lockwood 209 Who Carrier may Refuse to Carry — Thurston v. Union Pacific B. Co 210 What is "Baggage " for which Carrier is Responsible — New York, etc., B. Co. v. Fraloff 212 PART XTV. — Negligence. Injury Resulting from Unintentional Accident — Broicn v. Kendall 215 CONTENTS. XIU PAGE. One must so use his Property as not to Injure his Neighbor's — Fletcher v. Bylands 216 Liability for Injuries by Animals — Ma'j V. Burdett 218 Selling Poison -vmn Harmless Label — Thomas v. Winchester 219 Eemoving Support of Land — Fanton v. Holland 220 Persons Coming ox Another's Premises — Indermaur v. Dames 221 Injuries from Non-repair of Buildings — Todd V. Flight 223 Kks iPSiE Loquitur — Presumption of Negligence from Accident — Byrne v. Boadle 224 Responsibility of Master for Wilful Acts of Servant — McManusw Crickett 225 Employer not Liable for Negligence of Independent Contractor — Silliard V . Bichardson 227 Liability of Master for Injury^ to Fellow-Servant — Priestley v. Foicler 229 Farwell v. Boston, etc., B. Co 231 Contributory Negligence — Butterfield \ . Forrester .233 Davies v. Mann 23'4 Imputed Negligence — ■ Bennett v. Neio Jersey B. Co 235 Contributory Negligence of Children — Lynch v. Nurdin 237 Contributory Negligence of Parent — ,Hartfield\.Bopcr 239 Proximate and Kemote Cause — Scott V. Shepherd 240 Fentv. Toledo, etc., B. Co 241 PART XV. — Miscellaneous Torts. Nuisances — St. Helen's Smelting Co. v. Tipping . . . .243 XIV CONTENTS. PAGE. False Rkpresentations — Pasley v. Freeman 245 Langridge v. Levy 248 Rights of Finders — Possession — Presumption — Armory v. Delamine 251 "Injury" Witiiot-t Damage — Ashbt/ V. mute 252 Damage Without " Injury " — Chasemore v. Bichards 253 Trespass — 77ie Six Carpenters^ Case 256 Powers of Sheriffs — Semayne^s Case 258 Actions Against Magistrates — Crepps V, Burden 261 Malicious Prosecution — Munns v. Dupont 262 Slander — Defamatory Words, when Actionable and when Not — Pollard V. Lyon 263 Lumby v. Allday 264 Damages in Actions of Tort — Vicars v. WilcocTcs 266 Lumley v. Oye 268 No Contribution between Defendants in Tort — Merryweather v. Nixan 269 PART XVI. —Evidence, Etc. Hearsay Evidence — Didshury v. Thomas 271 Declarations by Persons Since Deceased — Price V. Earl of Torrington 276 Declarations by Deceased Persons Against their In- terest — Higham v. Bidgway 277 Presumption of Death from Absence — Nepean v. Doe ' , . 278 CONTENTS. XV PAGE. E8TOPPBL3 — Duchess of Kingston's Case 279 Local and Transitory Actions — Mostyn v. Fabrigas ........ 283 0s» OF Highways — Pleading — Dovaston v. Payne 284 The Principal Maxims of the Law 2S7 Table ok Abbreviations 2D3 IKDBX oCI TABLE OF CASES. PAGE, Adams v. Lindsell . . . . . . .11 Alger V. Thacher . 98 Armory v. Delamirie . 251 Asliby V. "White . . 252 Aspden's Estate . . 78 Atchinson v. Baker . 121 Atherford v. Beard . 97 Ayre v. Craven . . 2G5 Baily -v. De Crespigny . Ill Bainbridge v. Firmstone . 29 Baldy v. Parker .... . 67 Bank of Colmnbia v. Patterson . . 53 Bartholomew v. Jackson . 2 Batty V. Carswell . 139 Baxter v. Portsmouth . . 51 Beaumont v. Reeve . 37 Behn v. Burness . 26 Bennett v. New Jersey R. Co. . 235 Berkshire Woollen Co. v. Proctor . 200 Bickerdike v, Bollman . 157 Birkmyr v. Darnell . 57 Blackett V. Royal Exchange Ass. Co. . 85 Borland v. Guffey . 20 Boston Ice Co. v. Potter . 23 Boston and Maine R, Co. v. Bartlett. . 3 Boulton V. Jones . 25 Box V. Jubb .... . 217 A (xvii) XVUl TABLE OF CASES. Boydell v. Dnimmond Brogdou V. Marriott Brown v. Edgiiigton Brown v. Kendall BrumnicU v. jMacpliorson Bulklcy V. Landon Bunn y. Riker Burgess v. Oray Butterlield v. Forrester Byrne v. Boadle Carter v. Boehm Cayle's Case Chandelor v. Lopus Chasemore v. Richards Clayton v. Blakey Clevcs V. Willoughby Coggs V. Bernard Collen V TVriglit Collins V. Blantern Collins V. Godefroy Connecticut, etc., Ins. Co. v. Schaefer Cook V. Bradley Cooper V Kane . Cornish v. Abington Cowan V. IMilbourn Cox V. Hickman Crosby v. Wads worth Crawford v. Russell Crease v. Barrett Crepps V. Durden Cumber v. Wane Cutter V. Powell Da Costa v. Jones Dalby v. India, etc. , Life Ass. Co. PAGE. . 71 . 97 . 137 . 215 . 181 . 38 . 97 . 228 . 233 . 224 . 186 . 199 . 134 . 2^ . 173 . 166 . 194 . 148 . 89 . 34 . 189 . 36 . 80 . 281 . 92 . 151 . 59 . 103 . 274 . 261 . 35 . 123 . 97 . 192 TABLE OF CASES, XIX Davies v. Mann . Debenham v. IMellon . Denton v. Great Northern R. Co Dewey v. Union School Dist. Dexter v. Spear . Didsbury v. Thomas Ditchburn v. Goldsmith Doe V. Bliss Dovaston v. Payne Duchess of Kingston's Case Dumpor's Case . Duncan v. Baker Dutton V. Gerrich Eastwood V. Kenyan Eliason v. Henshaw Ellis V. Sheffield Gas Consumers' Elmore v. Stone Elthani v. Kingsman Elwes V. IMawe . Evans v. Jones . Farwell v. Boston, etc Fclthouse V. Bindley Fent V. Toledo, etc., ] Fetrow v. "Wiseman Fish V. Kempton Fletchers v. Ry lands Frost V. Knight . George v. Clagett Gerst V. Jones . Gibbs V. Benjamin Gilbert v. Sykes Given v. Blann . Godsall v. Boldero , R. Co. i. Co. Co. PAGE. . 234 . 47 . 204 . 116 . 2G6 . 271 . 97 . 181 . 284 . 279 . 180 . 125 . 169 . 63 6 . 229 . 68 . 98 . 174 . 97 . 231 8 . 241 . 41 . 148 . 216 . 118 . 146 . 137 . 133 . 97 . 184 . 192 XX TABLE OF CASES. Good V. Elliott . Goss V. Nugent . Gulick V. Ward . Hadley v. Baxendale Hallett V. AVylie Harper v. City Ins. Co. Harper v. Little . Hartfield v. Roper Hartley v. Rice . Higham v. Ridgway Hill V. Kidd Hilliard v. Richardson Hochster v. De La Tour Hockenbury v. Meyers Hogins V. Plj'mpton . Hole V. Sitting Bourne R. Hollister v. Nowlen Holman v. Johnson Holt V. Clarencieux Hopkirk v. Page Iloskins V. Paul . Household Fire Ins. Co. 1 Hunt V. Peake . Indermaur v. Dames . Ingalls V. Bills . Jolly V. Rees Jones V. Bright . Jones i\ Just Jordan v. Norton Keech v. Hall . Kellcy V. lU'inmingway Kemble v. Farren Co. Grant PAGE. . 96 . 74 . 87 . 125 . 165 . 187 . 140 . 239 . 97 . 277 . 97 . 227 . 117 . 32 . 138 . 229 . 205 . 106 . 44 . 158 . 183 . 14 . 43 . 221 . 202 . 48 . 137 . 136 . 19 . 169 . 153 . 126 TABLE OF CASES. XXI Kirkstall Brewery Co. v. Furncss R. Co. Krom V. Schoonmaker Kyle V. Kavanaugh Lampleigh v. Brathwait Langridge v. Levy Lee V. Griffin Lickbarrow v. Mason Loffus V. Maw . Loring v. City of Boston Lowe V. Peers Lumby v. Allday Luinlc}^ V. G3^e . Lumley v. "Wagner Lynch v. Nurdin Maclay v. Harvey Malpas V. London & Manby v. Scott . Marriott v. Hampton Marzetti v. Williams Mason v. Chappell Master v. Miller May V. Burdett . Merry weather v. Nixan Miller v. Race Mitchel V. Reynolds Mitchell V. Kingman Mitchell V. Reed Montagu v. Benedict Moss V. Gallimore Mostyn v. Fabrigas Munns v. Dupont Murray v. Currie McManus v. Crickett Southwestern R. Co PAGE. . 275 . 62 . 25 . 39 . 248 . 66 . 161 . 282 . 9 . 102 . 264 . 268 . 268 . 237 . 7 . 79 . 45 . 130 . 255 . 137 . 158 . 218 . 269 o 154 . 101 . 50 . 282 . 46 . 170 . 283 . 262 . 228 . 225 XXII TABLE OF CASES. Nelson v. Liverpool Brewery Co. Nepean v. Doe . New York Central R. Co. v. Fraloff Nichols c. Mavsland Noe V. Gibson . Palfrey v. Portland, etc., R. Co. Panton v. IloUaud Pasloy V. Freeman Patcrson v. Gandasequi Pattee v. Greeley Payne v. Cave . Pearce v. Brooks Peck V. United States . Peter v. Compton Peters r. Fleming Philadelpliia, etc., R. Co. v. Derby Pollard V. Lyon . Price V. Earl ot Torrington Priestley v. Fowler Pyra V. Campbell Railroad Co. v. Lockwood Raun V. ITnglies . Reg V. Bliss Reynolds v. Nugent Rigge V. Bell Bobbins v, Chicago Robinson v. DaAdson Roe V. Tranmar . Rust V. Gott St. Helen's Smelting Co. v. Tipping Sargent v. Adams Scott V. Avery . Scott V. Shepherd PAGE. . 224 . 278 . 212 . 217 . 184 . 32 . 220 . 245 . 141 . 93 . 5 . 95 . IIQ . 60 . 42 . 207 . 263 . 276 . 229 . 7G . 209 . 2.Irs. Johnson a photograph, from which Zaleski made his cast. When it was FORMATION OF CONTRACT. 19 finished everybody said that it was a fine piece of work, besides being an accnrate representation of the de- ceased Clark. But Mrs. Chirk was not satisfied with it. When the sculptor asked her why, she coukl not give any reasons — it didn't satisfy ^er, that was all the satisfaction he coukl cfct. So he broujjht an action for the price she had agreed to pay, and he lost it. He had contracted to satisfy a woman — a widow, at that. This was something too uncertain for a court of law to attempt to define. If the sculptor had agreed to make a bust perfect in every respect, and one which the defendant ought to be satisfied with, the court miglit have interfered, for that question could be de- termined by the evidence of experts on the subject. But to undertake to determine that she was satisfied with it was a thing no one but herself could do. It was a very unwise agreement for the plaintift* to make, but he had only himself to blame for it. ACCEPTANCE MUST BE IDENTICAL WITH OFFER. JORDAX V. NORTON. [4 Mee. & W. 155.] Farmer Norton wrote to Farmer Jordan, otferi ng to buy a particular mare if the latter woukl warrant her 20 LEADING CASES SIMPLIFIED. '^sou7id and quiet in harness. ^^ Farmer Jordan wrote back warranting her ^'' sound and quiet in double har- ness,'^ but saying ho liacl never put her in single harness. The mare was taken to Norton's l)y an agent, who ex- ceeded liis authority (and whose act was ininiediatcly repudiated) and then — as the experienced reader will have foreseen — turned out to Ijc unsound. This was Farmer Jordan's action for the price of the mare, and the real question was whether or not there was a com- plete contract. This question was decided in the negative. " The correspondence," said Baron Parke, *' amounts altogether merely to this : that the defend- ant agrees to give twenty guineas for the mare, if there is a warranty of her being sound and quiet in harness generally, l)ut to that the plaintilT has not assented. The parties have never contracted in writing ad idetn.^^ It takes two to make a contract, and those two must have agreeing minds. That being so, an otfer must be assented to in the precise terms in which it is made. ACCEPTANCE OF ALTERED PROPOSAL. BORLAND V. GUFFEY. [1 Grant's Cas. 394.] The dramatis personoe of this case are four: (1) FuIIwood, an inn-keeper with more debts than he can rORMATION OF CONTRACT. 21 conveniently pay; (2) Borland, a prospective pur- chaser of FuUwood's inn ; (3) Guffey, a creditor of FuUwood's, and very anxious about his debt ; (4) Wil- liam Guffey, his son. Act I., Scene 1. Borland's House. — Enter William with a message from his father, that if Borhmd will not agree to see him paid he will attach FuUwood's property at the inn. To William, Borland replies that he will see his father's debt paid, provided he will not take out an attachment against FuUwood's property, and will likewise keep quiet and let no person know anything about it, Scen^ 2. — William returns from his errand and relates what Borland has said. Guffey, Sr., replies that that is sat- isfactory, but omits to send William back with a mes- saffe to Borland to that effect. Nevertheless, he refrains from attaching the property. Act II. — The whole scene is now in the Supreme Court. Borland didn't see him paid, and Guffey has sued him. But much to his disgust he is told that there was no contract, for it was essential that Borland should have been notified of his assent to the new terms in his proposal — the I'.ttle matter concerning keeping quiet. Exeunt omnes to slow music, Guffey minus his money. 22 LEADING CASES SIMPLIFIED. PROPOSAL TO UNASCERTAINED PERSON. \VILLIA3IS V. CAmVARI>IXE. [4 Barn. & Adol. G21; Langd. Cas. on Con. 12.] William Carwardine caused a hand-bill to be i)rinted and distributed which stated that whoever would give 8uch information as would lead to the discovery of the murderer of his brother, Walter, should receive twenty pounds. Soon after this advertisement was issued, Mary Ann Williams was badly beaten hy a man she was living with, and believing she had not long to live, and to ease her conscience, she gave infor- mation which led to the conviction of the man who had beaten her for the murder of Walter Carwardine. He was hanged, but she recovered and brought an ac- tion for the twenty pounds. The jury found that other motives than the offer of the reward had induced her to give the information. Nevertheless, all the judges of tlie King's Bench expressed the opinion that she was entitled to it. Denman C. J. : " The plaintiff l)y bav- ins: siven information which led to the conviction of the murderer of Walter Carwardine, has brought her- self within the terms of the advertisement, and there- fore is entitled to recover." LiTTLEDALE, J. "The advertisement amounts to a general promise to give a sum of money to any person who shall give information ■which might lead to the discovery of the ollender. The plaintiff gave that information." Parke, J. : *' There was a contract with any person who performed the condition mentioned in the advertisement." Pat- TisoN, J : " I am of the same opinion. We cannot go into the plaintiff's motives." rOEIVIATION" OF CONTRACT. 23 MISTAKE AS TO PERSON CONTRACTING. BOSTOX ICE C03IPAXY v. POTTER. [123 Mass. 28.] During the early part of the summer of 1873, the Boston Ice Company supplied ]Mr. Potter, of the Hub, with ice for his tea and claret, and for the household generally. For some reason or other — perhaps they gave him short weight or too much straw and dirt — he determined to try another ice man, and having heard favorable reports of the Citizens' Ice Company he made a contract with them. For al)out a year the wagons of the Citizens' Company drove up daily to the door of the Potter mansion, when one morning a wagon of the Boston Company appeared on the scene as of old. From that day forward the Citizens' wagons no longer came that way, but ice v/as regularly delivered to Mr. Potter's servants by the Boston Company. The reason for this change was that the latter company had bought out the former, ice wagons, horses, and every- thing including the privilege of supplying ice to the customers of the Citizens' Company. But of this Mr. Potter was sublimely ignorant, and when at the end of the season a bill was presented to him for ice, which had been consumed in his house during several months, and which had l)een supplied by the Boston Company, he refused to pay it. The company sued for the ac- count, but were unsuccessful. Mr Potter, it was held, had never expressed his assent to a contract for ice with the Boston Company, and there was no imi)lied 24 LEADING CASES SniPLIFIED. assent on his part from his rcccivins: and nsinij the ice. because he had no knowledge that it was I'lirnished by the phiintiff; but supposed that he was receiving it from the Citizens' Company. '* A party" said Endi- COTT, J., "has a right to select and determine Avith wliom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individ- ual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the suffi- ciency of his reasons for so doing cannot be inquired into. If the defendant before receiving the ice or dur- ing its delivery had received notice of the change, and that the Citizens Company could no longer perform its contract with him, it would then have been his un- doubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do because the plaintiff failed to in- form him of that "which he had a right to know. If he had received notice and continued to take the ice as delivered a contract would be implied. A case in England " the judge added, " was very like this. One Jones, who had been in the habit of dealing with Brockle- hurst, a pipe-hose manufacturer, sent him an order for fifty feet of leather hose. It happened that that very day Brocklchurst had been bought out by Boulton, his former foreman, who executed the order and sent the goods to Jones, witliout giving him notice that the groods "were supplied by Boulton and not by Brocklchurst. FORMATION OF CONTRACT. 25 The Court of Exchequer decided that Boulton could not maintain an action against Jones for their price." ^ MISTAKE AS TO SUBJECT MATTER. KYLE V. KAVANAUGH. [103 Mass. 35G.] Mr. Kyle agreed to sell, and Mr. Kavanaugh to buy, a lot of land on Prospect Street, in the town of Wal- tham. Now, it happened rather oddly that there were two Prospect Streets in Waltham, and when Mr. Kav- anaugh was taken round by Mr. Kyle to inspect the land he had bought, he found that it was on the other Pros- pect Street, and was not the land he had been thinking of at all. So Mr. Kavanaugh refused to take it, and in this he was sustained by the court, it being held that where one party was negotiating for one thing and the other selling another and different thing, and their minds did not agree as to the subject matter, there could be no contract by which either could be bound ; and this would be so where there was no fraud on either side — nothing more than a mistake. 1 Boulton V. Jones, 2 Hurl. & N. 564. 26 LEADING CASES SIMrLIFIED. REPRESENTATIONS AND WARRANTIES. BEHN v. BUKXESS. [1 Best & S. 877; 3 Best & S. 751.] By a charter-party dated the 19th of Octo])er, 18G0, the phiintifF agreed as "owner of the good ship or vessel called the Martaban, of four hundred and twenty tons or thereabouts, now in the port of Am- sterdam," to proceed to Newport and there load a cargo of coals, which she should carry to Hong Kong. Unfortunately, the good ship, the Martaban, was not just then " in the port of Amsterdam," and did not arrive until the 23d. Wherefore, when she reached Newport, the defendant refused to load a cargo and repudiated the contract. The plaintiff then brought an action, and the question was whether the words " now in the port of Amsterdam " amounted to a warranty, the breach of which entitled the plaintiff to repudiate the contract, and the court decided that they did. " Properly speaking," said Williams, J., in giving judgment in the Exchequer Chamber, " a representation is a statement or assertion made by one party to the other before or at the time of the con- tract of some matter or circumstance relating to it. Though it is sometimes contained in the written in- strument, it is not an integral part of the contract, and consequently the contract is not broken, though the representation proves to be untrue ; nor (with the exception of the case of policies of insurance, at all FORMATION OF CONTRACT. 27 event?, 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 fraudulently, either by reason of its being made with a knowledge of its untruth, or by reason of its being made dishonestly, with a reck- less ignorance whether it was true or untrue. * * * But with respect to statements in a contract descrip- tive 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 in- tended 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 non-performance 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." ^ See Carter v. Boehm, post, p. 186. 28 LEADING CASES SIMPLIFIED. II. — CONSIDERATIOlSr. A CONSIDERATION NECESSARY TO SUPPORT A CONTRACT. RAJSTN^ V. HUGHES. [7 Term Rep. 350.] More than a hundred 3'^ears ago Mr. Raiin brought an action against IsabeHa Hughes on a promise which she had made to him to pay him a sum a little less than one thousand pounds, which he claimed to be due from the estate of which she was the administratrix. The Court of King's Bench, the Court of Exchequer Chamber, and finally the highest tribunal in England, the House of Lords, wrestled with the case for a long time, l)ut the upshot of it was that Mr. Rann was informed that he could not recover, as he had not shown any consideration, i.e., any benefit in money or anything else which the defendant had received for making the promise. "It is undoubtedly true," said Lord Chief Baron Skyxxer "that every man is by the law of nature bound to fulfil his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the perform- ance of an airreement made without sufficient consid- CONSIDERATION. 29 eration. Sucli agreement is nudum imctum ex quo non oritur actio,'' the Latin he quoted ])eiug an ancient maxim, which being done into English reads: "No cause of action arises from a bare promise." ADEQUACY OF CONSIDERATION IMMATERIAL. BAINBREDGE v. FIRMSTOXE. [8 Ad. & E. 743 ; Langd. Cas. on Con. 200.] Firmstone was worse than tlie man who would bor- row your umbrella on a rainy day and then forget to return it ; for Firmstone would not only not return it, but if you should remind him of the circumstance would tell you that if you wanted your umbrella you would have to hire the sheriff to get it for you. For this is exactly the way he served Bainbridge. The latter owned two boilers, and one day Firmstone came to him and told him that he would like to borrow those boilers, and take them over to his place and put them on his scales and see how much they weighed. Now, as Firmstone did not want to buy the boilers, or to use them in any other w:iy, this was rather an odd request. But Firmstone promising to return them in good order, Bainbridge, the accommodating neighbor that he was, let him have them. Sad to relate he broke 30 LEADING CASES SIIMPLIFIED. his promise, and when Bainbridge brought an actioii laughed in his sleeve, for he had read enough hiw to know that a contract without a consideration won't hold, and what consideration is there in giving one an opportunity to weigh boilers, argued he. But Lord Denman, C. J., thought the suit was "well enough. The defendant had some reason for wishing to weigh the boilers, and he could do so only by obtaining per- mission 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." And Pattison, J., thought so too. *' I suppose the defendant thought he had some benefit," said he, '* at any rate there is a detriment to the plaintiff" from his parting with the possession for even so short a time." So that merely "allowing to weigh" is a sufficient consideration for a promise. BUT CONSIDERATION MUST BE REAL. WHITE V. BLUETT. [23 L. J. (Exch.) 3G.] A son had been constantly complaining to his father that he did not give him as much money or the same advantages that he gave the rest of the family. CONSIDERATION. 31 Finally, one day, he proposed a treaty of peace. " If you won't ask me to pay that note of mhie, I won't bother you about these thhigs any more," said the son. "All right," replied the father, who, some time after, died, without destroying it or giving it up. When the executors came in, they found the note among his papers, and brought an action on it against the son, who pleaded liis father's promise, without avail. "Is an agreement," cried Baron Parke, with astonishment, "is an agreement by a father, in con- sideration that his son will not bore him, a binding contract? Fudge!" His lawyers tried to convince the other judges that it was, but with the same success. *' If such a plea as this could be supported," said Chief Baron Pollock, "the following would be a binding promise : A man might complain that another person used the public highway more than he ought to do ; and that other might say, ' Do not complain, and I will give you five pounds.' It is ridiculous to suppose that such promises could be binding. So, if the holder of a bill of exchange were suing the acceptor, and the acceptor were to complain that the holder had treated him badly, or that the bill ought never to have been circulated, and the holder were to say, ' Now, if you will not make any more complaints I will not sue you,' such a promise would be like that now set up. In reality there was no consideration whatever. The son had no right to complain, for the father might make what distribution of his property he liked, and the son's abstaining from doing what he had no right to do, can be no consideration," 32 LEADING CASES SIMPLIFIED. FORBEARANCE TO SUE A SUFFICIEXT CONSIDER A TION HOCIiENBUKY V. »IEYERS. [34 N. J. (L.) 31G.] Mrs. Meyers held John Ilockeiibury'snote for $1,000 "which was overdue and un[):iid, and she threatened to sue him unless he could find security. He, therefore, wrote to his brother Asa, tellini^ him the fix he was in, and to pacify the lady, Asa, who douljtless was a man of substance, put his name on the back of the note. Two years more passed without Mrs. Meyers seeing her money and then she lost all patience and did sue. *' You can't get anything out of me," chuckled Asa, *' because my jDromise was voluntary and without con- sideration." But the court gave judgment against him on the orround that forbearance to sue was enouirh to support a contract. PROVIDED THERE IS A LEGAL CAUSE OF ACTION. PAJLFREY V. PORTLAND, ETC., R. CO. [4 Allen, 65.] One of the glories of the common law was to cieny an action for damajres occasioned bv the death of a hu- COXSIDERATIOX. 33 man being. A very disagreeable personage, that figures in the law reports with great frequency, is the modern corporation, which, recognizing its lack of a body to be kiclced or a soul to be damned, gen- erally manages to crawl out of its obligations and evade its liabilities by the help of very technical and nnrio-hteous defenses. Between these two Mrs. Pal- frey came to grief, as was not strange. Her hnsband had been killed on a train belonging to the Port- land, Saco and Portsmouth Railroad Compain^ un- der circumstances of the most atrocious negligence on the part of the company. Its officers agreed to pay her fifty dollars a month dnring her life if she would not sue them. They carried out their agreement for four years, and then having discovered that there was no statute in Massachusetts or Maine allowing an action against u railroad for killing its passengers or its employees, they told her to go the — Avork-housc, for she had seen the last dollar of their money. When she sued them on their promise, they replied that it was without consideration and void, and the court v\'as obliged to give judgment in their favor, because, for- bearance to sue is a good consideration, only where there is a legal cause of action. 3 34 LEADING CASES SIMPLIFIED. PROMISE TO DO WHAT PARTY IS BOUND TO DO INSUFFICIENT. REY:N0LDS v. NUGENT. [25 Ind. 328.] There is nothing to show that Mr. Reynolds, of In- diana, ever distinguished himself in the late war, though at one tiine his services were certainly at a pre- mium. The township of Tobin offered him a hundred- dollar bounty if he would be one to fill their quota of the draft ; he accepted, signed the roll, and pocketed the money. But on his way with Nugent, the recruit- hig officer, to be mustered in, an agent from Evans- ville came along, offering $350 bounty for recruits, "If you want to keep me," said Reynolds, when he heard this, "you have got to come up to Evansville's offer." " ^ye will do it," said Nugent. Reynolds was satisfied, and went to the war. In 1865 he turns up again in a suit for the $250, which Nugent had not yet paid him. Hard to relate, this patriotic veteran was told by the court that there was no contract, be- cause there was no consideration. A promise to do what a person is bound to do by law is not, they said, a good consideration for another promise. If Rey- nolds had been a witness, subpoenaed to give his evi- dence in a lawsuit, and had refused to go unless he was paid extra, ^ or if he had been a sailor who had agreed for a certain sum to work a certain voyage, and ' Collins V. Godefroy, 1 Barn. & Adol. 949. CONSIDERATION. 35 "when half way through, he had refused to reef a sail until the captain promised him more pay,^ in neither of these cases could he have brought an action, for ho would have only promised to do what it was already his legal duty to do. And that was just what was the matter here. Nugent had promised him thc> $250 to do what he was already bound to do by his contract, and this was not a legal consideration for a contract. CUMBER V. WANE. [1 Stra. 42G; 1 Smith Ld. Cas. 439.] Wane owed Cumber some $75, and wondered how he should pay it. In a genial moment Cumber rejoiced his debtor's heart by telling him that if he paid $25 it would do. Wane thanked him, sat down quickly and wrote out his promissory note for that amount. But after a while Cumber repented of his generosity, and went to law for the whole amount. Wane pleaded that the plaintiff had agreed to accept $25 in full satis- faction of the debt of $75, and that he had paid the $25. This, though perfectly true, was not considered a satis- factory plea, and the unfortunate Wane was compelled to pay the remaining $50. The reason was that as Cumber was entitled to the $25 all the time, there was no consideration for his promise to relinquish the resi- » Stilk V. Myrick, 2 Camp. 317. 3n LEADING CASES SIMPLIFIED. tluc. Some philosopher has said that it is easy to bo ■wise after the fact. So thought "Wane, as he reflected, that if he had only said to ('unil)er, " I'll give you my note for $25, niid a pipeful of tobacco," or " Til pay you $25 ou account, and give you my old pocket-knife in satisfaction of the balance," there would have been a good contract with a good consideration. MORAL OBLIGATION INSUFFICIENT. COOK T. BRADLEY. [7 Conu. 57; 18 Am. Dec. 79.] Cook pere was poor ; Cook fils was rich. The father must have been very poor indeed, for he was obliged to get his necessary food and clothing from Bradley on credit. The son, hearing tiiat he already owed Bradley $60, which he could never pay, wrote to Bradley, tell- ing him that he considered the debt one that he (the son) was under an obligation to pay. By and by Cook Jils died, and Bradley endeavored to collect the amount from his estate. But he found this a very difficult matter. The court into which he brought the letter suggested first that it would be necessary for him to show some consideration for the promise. *< The goods I supplied the old man with were neces- CONSIDERATION. 37 sarics, and the son was legally ol)ligated to pay them." *' Not so," answered the court ; " a son is not bound by law to pay past expenditures of his parents." *'At any rate," replied Bradley, "he was under a moral o])ligation to support his father." *' Right you are," returned the court ; " but tha.t will not help you, for we cannot find a case in the books in which it has been held that a moral obligation is a sufficient con- sideration for an express promise. In fact there are a good many to the contrary, and we must give judg- ment against you," which they immediately proceeded to do. BEAUMONT T. REEVE. [8 Q. B. 483.] Henry Reeve seduced Caroline Beaumont. They lived together for about five years, when they resolved to separate. In consideration of the cohabitation. Reeve promised to pay her an annuity of £60 a year. But the seducer was also a liar, and this was an action for arrears. It was held, however, that there was no legal consideration for Reeve's promise, and the woman must do without the annuity. The student must clearly understand that it was not because the contract was illegal that it was held to be void, — there was no illegality about it, — but simply because there was not what the law counts a considera- tion for Air. Reeve's promise ; so that if the contract 38 LEADING CASES SIMPLIFIED. had heen under seal (where considerations are unneces- sary) it would have been binding on him. If, how- ever , future and not past cohabitation were the con- sideration, such a consideration would be illegal, and Would vitiate even the contract under seal. PAST CONSIDERATION. BULKLEY V. LAXDOX. [2 Conn. 404.] Bulkley, Someryndike & Co, brought an action against the representatives of the firm of Smith, Tay- lor & Co., of New York. In their declaration they alleged that the defendants, in consideration that the plaintiffs ivould indorse a note signed by a third per- son, promised that they, the defendants, would hold themselves liable in the same manner as though they had signed it with their names. The promise, which was in writing, when brought into court hardly bore out their statement, for it was in these words : — New York, August 27, 1814. Messrs. Bulkley, 8 ornery ndUce & Co. — Gentlemen : In consideration of your having in- dorsed the undermentioned notes drawn by David Tay- lor in your favor, Ave hereby hold ourselves accountable to you for them in the same manner as though said notes were drawn by us. Smith, Taylor & Co. CONSIDERATION. 39 Though tlic decision was made l)y the court on a question of pleading — which by the way is the mode in which most of the rulings on this point oc- curred — a very iin[)ortant princi[)lo in the law of con- sideration for contnicts was announced, though not for the first time, l)y any means. This principle is that a promise foundcul on a past consideration is not binding ; and though the plaintiffs had tried to make a good case by saying " loould indorse," the writing itself, which was the only evidence of the alleged con- tract, said having indorsed, — a mere difference in tenses, to be sure, but enough to put the j)laintiffs out of court. LA3IPLEIGH v. BRATHWAIT. [Hob 105; 1 Smith's Ld. Cas. 222.] Thomas Brathwait slew Patrick Mahume. But kings were kings then, and the murderer was for- tunate enough to have a friend at court. To this friend, then, he resorted in his need, and begged him, in the name of all that was charital)le, to go to the king, and intercede for his life. Touched by the appeal, this friend, — Lampleigh was his name, — consented to see what could be done, and " did by all the means he could and many days' labor do his endeavor to ol)tain the king's pardon for the said felony, viz., in riding and journeying at his own charges from London to Royston, when the king was there, and to London 40 LEADING CASES SIMrLIFIED. back, unci so to and from Nowinarkct to obtain pardon for the dofendaut for the said felony." After Lamp- leigh had taken all the journeys, and been put to all this trouble, Brathwait, as some slight recognition of his services, promised to give him £100. But the storm blew over ; Brathwait cheated the hangman ; and now proposed to cheat Lampleigh, too. In answer to Lampleigh's gentle reminder of the i)romise to give him £100, Brathwait replied very learnedly that no promise is binding unless it is founded on a sufficient consideration, and that what Lampleigh had done was a mere voluntary courtesy^ quite insufficient to sujjport apromise. " No," said Lampleigh, with much sounder learning, as the event proved, " it was not a mere vol- untary courtesy. You asked me to do it, and that asking saved it from being a mere voluntary courtesy, and made it a sufficient consideration to found a sub- sequent promise on." The court thought so, too. Services rendered in the past, however eminent, are not generally a sufficient consideration to support a promise. But a past consideration will support a promise, when it consists of services rendered by the plaintiff at the defendant's request. As this was exactly Lampleigh's case, he got his £100. Yet before he got it, he had to overcome another objection, which the ungrateful Brathwait interposed. " It doth not appear," said Brathwait, " that he did anything towards the obtaining of the pardon but rid- ing up and down and nothing when became there." But the court said that did not matter, for labor, though unsuccessful, may form a valuable considera- tion. PARTIES. 41 III. — Parties. CONTRACTS OF INFANTS VOIDABLE AND VOID. FETROW V. WISEMAN. [40 Ind. 148 ; Ewell on Dis. of luf . 22.] Siimuel Wiseman (his acts certainly belied bis name) took a promissory note, payable to himself, from Joseph Fetrow, with Joseph's son John as surety. John was at the time an infant — i.e., not yet twenty- one years of age. This was his first foolish proceed- ing. Being unable to make the amount out of the old man, his next move was to sue the youngster, but when John appeared in court he pleaded the " baby act." The court decided in the infant's favor, and the plaintiff went home a much wiser man. "The contracts of an infant," said the court, " are of three kinds : void, valid and voidable. An agreement which he makes, which is ille2:al because aijainst a statute or a rule of public policy, or a contract which he has no power to make at all, as appointing an agent or attorney in fact, is absolutely void. A. contract for necessaries, on the other hand, is as binding on the infant as if he were an adult. All other contracts made by an infant are 42 LEADING CASES SIMPLIFED. voidable only, and when he comes of age he may ratify them and become lial)le on them. This contract of suretyship was of the latter kind . John might disaffirm or ratify it at his option, and as he had taken the former course, he could not be made liable upon it." EXCEPT FOR NECESSARIES. PETERS V. FLEJ^UXG. [G Mee. & W. 42 ; Ewell on Dis. of Inf. 5G.] Mr. Fleming was one of those fast collegians whose efforts have contributed so liberally towards the set- tlement of the law of "necessaries" for infants. During his career at the University of Cambridge, and wdiile under age, he became indebted to a jeweller in the town for several articles of ornament which were supplied to him on tick. Fleming, ^jere who was a wealthy member of Parliment, and could easily have paid it if he had liked, wouldn't look at the bill when it was sent in ; if he had, this is what he would have seen : — £ s. d. A fine gold ring 1 8 A ring, engraved crest, etc .... 18 A short gold watch chain 2 2 A pair of pins 18 A ring 1 'o A ring 1 5 A ring repaired, new stone .... 036 8 6 PARTIES. 43 So the dealer brought an action against the young man himself when he became of age, and (the judge having left it to the jury to say whether tlie aili- cles were "necessaries" or not, and they having found that they were,) he got his money. But Mr. Fleming was not satisfied ; he desired the opinion of the Court of Exchequer on this interesting i)oint. He soon got it, and found it no more satisfactory than that of the jury, for the court agreed in every respect with the verdict. *' The true rule," said Parke, B., " I take to be this, that all such articles as are purely ornamental are not necessary and are to be rejected, because they cannot be requisite for anyone ; and for such matters, therefore, an infant cannot be made responsible. But, if they are not strictly of this discription, then the question arises, whether they were bought for the necessary use of the party in order to support himself pro perl ij in the degree, state and station of life in ivJtich he moved; if they were, for such articles the infant may be respon- sible." HUNT V. PEAKE. [5 Cow. 475; 15 Am. Dec. 475.] A half a century ago, in the State of New York, young Alexander Peake told pretty Polly Hunt that he would marry her. But he didn't do it, and so she sued him in an action for breach of promise of mar riage. "Was Alexander twenty-one years old when 44 LEADING CASES SIMPLIFIED. he Siiid he would marry you?" asked the court, and Polly Avas obliged to admit that he was not. TIumi the kind-hearted judge, with a savage name, had to tell her that he was sorry for her, but the law could not help her. For in the time when George II. was kino- of England there was a young lady of fifteen, who was told by the owner of the name (who was over twenty- one) that she should be INIrs. Ward Clarencieux.^ But ho was a gay deceiver, and married some one else, and she sent him a note by the sheriff that she con- siderIEL,i:,0]S^. [6 App. Cas. 24.] A prudent man was Mr. Mellon. He gave his wife an allowance of $260 a year for dresses and pin-money. 48 LEADING CASES SIMI'LIFIED. and also informed her that ho was not going to pay for any dry goods or millinery she might choose to buy on credit — she must get along on what she liad. In spite of this distinct prohibition, Mrs. ^Mellon favored a certain store-keeper, one Debenham, with substantial orders for dresses, etc., and he, by and hv, favored Mr. Mellon with a substantial Christni:is 1)111. This Mr. Mellon absohitely declined to have an3'lhiiig to do with, and litigation ensued. The store-keeper had not known that Mr. Mellon had expressly l'orl)i(hIen his wife to incur surreptitious debts, and the goods he had supplied were what the law calls " necessaries," so he felt confident of success. The judges, however, de- cided against him, and thus *' carried to its logical results the principle that the wife's authority to bind her hus- band is a mere question of agency." ^ Then the store- keeper (aided by his brother dry-goods dealers, and shoemakers, and jewellers, who were much alarmed at this announcement of the law) went to the great ex- pense of employing very eminent counsel, and taking the case to the House of Lords. But that tribunal, the hiijfhest in England, was of the same opinion as the judges below. " The fact," said Lord Black- BURX, " of a man living with his wife always adbrds evidence that he intrusts her with such authorities as are ordinarily given to a wife. In the ordinary case of the management of a household, the wife is t!ie manager, and, with such tradesmen as a butcher or a baker, she would have authority to pledge her hus- band's credit ; but even then I do not think the pre- sumption would arise, if the husband gave her the 1 Jolly V. Rces, 15 C. B. (x. s.) 028. TAKTIES. 49 means to procure the articles without credit. In the present case, however, your lordships have to d(!tcr- niine whether the wile hud a mandate to order clothes, which it would ho pro^xu" for her in her station of life to have, although the husl)and had forbidden her to pledge his credit, and had given her money to buy clothes * * * I am of o[)inion that there is noth- ing to authorize our holdiuix th:it the wife had author- ity to pledge her husband's credit. I agree that if he knew that she had got credit, and had allowed the tradesmen to suppose that he sanctioned the transac- tions with them, it might well be agreed that there was such evidence of authority, that ho could not revoke it Avithout giving notice of the revocation to all who had acted upon the faith of his sanction. The general rule would be that which I have stated ; but where an agent is clothed with an authority which is afterwards revoked, those who have dealt with him have a ri2:ht to sav, unless the revocation has been made known to them, that the principal is precluded from denying the continuance of that authority, in the continuance of which ho has induced them, as reason- alile persons, to believe. There have been many cases where a husband has sanctioned his credit l)eing thus pledged by his wife ; but there is no such case liere. I cannot agree that the cases have established that the fact of a wife living with her husband alone entitles tradesmen to [)resunie that the husband has. given an authority wliicli he is precluded from after- wards denying. I think that in such a case it is open to the husband to prove, if he can, that such an au- thority does not, in fact, exist, that being a question for the jurv. This is not the case of the withdrawal qL' 50 LEADING CASES SIMPLIFIED. an authority which has been once given ; but the ques- tion is, whether the appelhuits, who had never before dealt with either the wife or the husband, were entitled to assume that the authority was implied from the mere fact of cohabitation, and I do not think that the law gave them any right to do so." CONTRACTS OF LUNATICS. MITCHELL V. KTN^GMAN. [5 Pick. 431; Ewell on Dis. of Inf. 522.] Kingman was sued on a promissory note. "I ad- mit he made the note," said his counsel, when the case came to trial, "but if your honor will allow, I will show that at the time he signed it, and ever since, he has been an idiot, perfectly incapable of understanding what he was doing, and I think that, under these cir- cumstances, he ought not to be bound." Then up rose Mr. Mitchell's lawyer. " It seems to me," he replied, in a very confident tone, "that I have read in Blackstone that it is a maxim of the common law that no man of full age can be allowed by his own plea to stultify himself, and thereby avoid his own deed or contract; and, if I am not mistaken. Lord Coke makes a remark of a similar character." " You PARTIES. 51 nre right,'* said the judge, '*we cannot listen to such a i)lea. Judgment for the phiintiff." But on appeal the Supreme Court of Massachusetts reversed the case, saying that, though true it was that Bhickstone and Coke had so written, yet a more enlightened policy had established a better rule, and the law of England now was, and of America had always been, that a lunatic or insane person might avoid his con- tracts by showing that he was insane at the time they were made. BAXTER V. PORTSMOUTH. [7 Dow. & Ry. 614; 2 Car. & P. 178; 5 Bam. & Cress. 170; Ewell on Dis. of Inf. 632.] On various occasions between 1818 and 1823 the Earl of Portsmouth hired carriages and horses from the plaintiff, Mr. Baxter, or Bagster (there seems to be some difference as to what his real name was, but this is unimportant), and thereby incurred the bill for which this action was brought. It was proved that the plain- tiff had no reason to suppose the Earl to be of unsound mind ; and that the carriages, etc., were constantly used by him, and were suitable to his rank and station. This being so, the plaintiff's claim was not defeated by its having been found, in 1823, by a commission that the Earl "then was, and from the 1st of January, 1809, continually had been of unsound mind, not suf- ficient for the government of himself." Imposition or fraud, as a rule, said the court, were grounds for 52 LEADING CASES SniPLIFIED. vac:itin2: all contracts, and with respect to a person of unsound mind, if it can be proved that he has been defnmdcvl, or an undue advantage taken of his im- bccilitv, a court Avill not enforce his contracts. But where there is no imposition practised, and the goods supplied are suitable to his condition and degree, then the mere fact that he is of unsound mind and in- capal)le of making his own contracts will not deprive a person who has given him credit for such goods from Buins; in a court of law for their value. KROM V. SCHOOXjVIAKER.^ [3 Barb. 647; Ewcll on Dis. of Inf. 638.] A crazy fellow in Kochester, New York, who was all the more dangerous for the reason that he was a jus- tice of the peace, was possessed with the idea that Mr. Krom had been committing wholesale forgery, and so, one fine morning, he thought it his duty to issue a warrant for Krom's arrest, wherefore the latter was obru'-ed to spend a whole day in the custody of a con- stable. When he got out it was not long before there was an action for false imprisonment pending in the courts against Mr. Justice of the Peace, whose friends seeing the fix he was in, interposed the defense that he was insane at the time he issued a warrant. But the » This case properly belongs further on in the book, but is placed bare for convenience. PARTIES. 53 *« insanity dodge " had no show in this case. A luna- tic, the court said, cannot be punislied for crime, but, all the same, he may be sued for an injury done to another. An idiot or other insane person is not a free agent, capable of intelligent voluntary action, and, therefore, he cannot have any guilty intent, which is the very essence of crime. But a civil action to re- cover damages for an injury may be maintained against him, because in such a case the intent with which the act is done is not material. It must be borne in mind, however, that the measure of damages will generally be less in the case of a lunatic than where a sane man is sued for an injury, for the amount of damages is generally increased by a malicious motive in causing the injury. CONTRACTS OF CORPORATIONS, BAXK OF COLUMBIA v. PATTERSON. [7 Cranch, 299.] There was an old doctrine, that lingered in the courts for many ^^ears, to the effect that a corporation could make no contract except by its corporate seal, the reason given being^ as expressed by an old-time judge that they were " invisible, immortal, and had no souls," and, therefore, were incapable of manifesting 54 LEADING CASES SIMPLIFIED. their intention by any personal or oral discourse. Corporations had a glorious time of it on the strength of this ; they made uU sorts of contracts with all sorts of persons, by the word of mouth or the simple signa- ture of one of their officers or agents ; they looked on and saw the work being done for them, or the things delivered, and then when pay-day came around, they absolutely declined to fork over, and successfully shel- tered themselves behind the pitiful defence that the contracts of corporations are not binding unless made under their corporate seal. It is this sort of thing which has earned them the title of "bloated," and which has at the same time rendered them rather un- po})ular whenever they have been forced to come with their disputes before a jury. But it is a long lane which has no turning, and the whole fabric of c;)rpor- ate exemption and privilege received a tcrril)lo shock in the celebrated case which stands at the head of this paragraph. The facts of the case were very simple. Mr. Pat- terson was a builder ; the Bank of Columbia wanted a new building. A committee of the stockholders and Patterson made a contract, and he went on and put up the building. But when he asked for payment for his work, the Bank (though it had received the consider- ation), made a grand effort to keep the building, and at the same time not pay for it, by saying : "AVe never put our seal to the contract, and, therefore, you cannot hold us." But this sort of morals did not suit the Supreme Court of the United States, which court, thongli admitting that such was the law anciently, pro- ceeded by the hand of Mr. Justice Story to demolishit for all time. "The technical doctrine" said that PARTIES. 55 learned judge, " that a corporation could not contract except under its seal, or in other words, could not make a promise, must have been productive of great mischiefs. Indeed, as soon as the doctrine was estab- lished that its regularly ai)pointed agent could contract in their name without seal, it was impossible to sup- port it ; for otherwise, the party who trusted such con- tract would be without remedy against the corporation. Accordingly, it would seem to l)e a sound rule of law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are exjiress promises of the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises for the enforcement of which an action may w^ell lie." 56 LEADING CASES SIMPLIFIED. TV. — The Statute of Frauds. [The independent layman who endeavors to make his contracts without first consultini; his lawyer, will frequently regret that he had not been first instructed in the provisions of the Statute of Frauds. Long ago in the reign of that merry ruler, Charles II., a few of the fathers of the law in the English Parliament — Lord Hale among them — passed a statute which was entitled "An Act for pre- vention of Frauds and Perjuryes." Most laws endeavor to put a stop to the practices which they are designed to prevent, by assess- ing penalties and punishments upon the refractory individuals, who forget or refuse to keep them. Not so this law, which had for its object the removing of some of the temptations to fraud and per- jury, by preventing men, in the case of a large number of agree- ments, from swearing that they had or had not been entered into, unless there was some writing on the subject. Wliere one man said that another had promised to do a certain thing, by word of mouth, and the other denied it, it is obvious that even if one of them was not lying, such testimony was very uncertain and unsatis- factory for a judge to have to decide upon, and so that this kind of swearing should be discouraged, this learned Parliament passed the celebrated Statute of Frauds — an enactment which is in force in Great Britain to this day, and whose provisions have been copied into the statute books of almost all, if not all, the States of the Union. The original act has sixteen sections, the fourth and sixteenth being by far the most important. Tiiey read thus (the preamble in the quaint English of the time) : " For prevention of many fraudu- lent Practices which are commonly endeavored to be upheld by Perjury and Subornation of Perjury Bee it enacted that noe Action shall be brought " : — Si:CT. 4. On any promise by an executor or administrator to answer damages out of his own estate. On any promise to answer for the debt, default, or miscarriage of another person. On any agreement made in consideration of marriage. THE STATUTE OF FRAUDS. 57 On any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them. On any agreement not to be performed within a year from its making. Unless the agreement or some note or memorandum thereof shall be in writing, signed by the person to be charged or his agent. Section 16 enacts that no contract for the sale of any goods, wares, or merchandise for the price of £10 or more, shall be good unless the buyer : — (1.) Accepts part of the goods so sold, and actually receives the same; (2.) Or gives something in earnest to bind the bargain, or in part payment ; or (3.) Some note or memorandum in writing, of the bargain, is made and signed by the party to be charged, or his agent. As was to be expected, the courts were soon called upon to inter- pret the different provisions of this statute. In fact they have kept at it for two hundred years, and are by no means through yet. Indeed, one may say that they have just got a good start. The most important of the "leading cases" on these important statutory provisions, are the following ones : — ] PROMISE TO ANSWER FOR ''DEBT, DEFAULT, OR MISCARRIAGE" OF ANOTHER. BIRKMYR V. DARNT^LIi. [Salk. 27; 1 Smith's Ld. Cas. 371.] Liglitfinger wanted somebody to lend him a horse ; but who would lend Lightfinger a horse ? He was so suspicious a character that everybody he applied to remarked that he was very sorry, but that just at present lie was not in the livery business. At last he got the weak side of one Darnell, who had no horses himself, but knew some persons who had. To one of these persons, 58 LEADING CASES SIMPLIFIED. named Bliktnyr, Darnell went, and, with many expres- sions of conlidence, undertook to bo responsible for Lighttiiiger's brinixiiii^ safely back any horse that Birk- myr niiirht intrust hi in with. On the faith of this undertaking — a verbal one of course — Birkniyr let Light linger have one of the best horses in his stal)le, and that gentleman rode away ; and, as there were neither railroads nor telegraphs nor police in 1700, neither he nor the horse was ever heard of again. This being the state of the game, Birkm}^" played the only card that was left him : he sued Darnell. This card, however, did not prove the trump he antici- pated. He found to his cost that he ought to have taken DarnelTs promise in writing. The Statute of Frauds, as we have seen, says that a " promise to answer for the debt, default, or miscarriage of another person " must be in writing. Darnell had promised that if Liirht finder did not brins: back the horse, Birkmyr might look to him. This was precisely the kind of promise that the statute referred to — a promise where some one else is primarily liable. If John Smith takes his friend Jones to his tailor, and says, "Make this gentleman a pair of trousers, and if he doesn't pay you, 1 loill," Jones remains primarily liable, and Smith cannot be sued as surety unless his promise was i)nt in writing. But if Smith should say to the tailor, " ]Make this gentleman a paix'of trousers, and I ivill pay you,'' no writing would be required to make Smith liable. THE STATUTE OF FRAUDS. 59 PROMISE ''IN CONSIDERATION OF MARRIAGE." SHORT V. STOTTS. [58 lud., 29.] Samuel Short promised to marry Maggie Stotts, and when he went back on his word, Maggie sued him. Brought into court, Mr. Samuel, knowing that his promises had always been by word of mouth, set up the defence that Maggie could not hold him on his agreement until she had produced some writing of his to that effect, relying on the Statute of Frauds to help him out of the scrape. But here he did not succeed, as the court ruled that the statute applied only to agreements "in consideration of marriage," and not to agreements to marry. ''INTEREST IN OR CONCERNING LANDS. CROSBY V. WADSWORTH. [6 East, 602.] Farmer Wadsworth, of Claypole, in Lincolnshire, had a field of likely-looking grass, which Crosby, with an eye to hay, desired to purchase. Meeting casually 60 LEADING CASES SIMPLIFIED. one day in June, it was agreed between them that Crosby should have the grass for twenty guinea-^, only he was to have the trouble of mowing and making it into hay. On this understanding they 6e[)arated. But, two or three Aveeks afterwards, Wadsworth again happened to meet Crosby, and remarked pleasantly : ''By the way, I've decided not to let you have that grass of mine ; I don't think yoav figure is good enough;" and the same day he sold it to a Mr. Carver for twenty-five guineas, thus clearing a five- pound note by his diplomacy. Mr. Crosb}^ sued "Wadsworth for his breach of contract, but, unfortu- nately, took nothing by that, as it was held that the contract was one which had to do with the land, and therefore should have been in writing, as required by the fourth section of the Statute of Frauds. "I think," said Lord Ellenborough, "the agreement stated, conferring, as it professes to do, an exclusive right to the vesture of the land during a limited time and for given purposes, is a contract or sale of an interest in, or at least an interest concerning lands." CONTRACTS ''NOT TO BE PERFORMED WITHIN A TEAR." PETER V. COMPTOX. [Skin. 353; 1 Smith's Ld. Cas. 432.] Those who knew him best did not consider Mr. Peter a marrying man. Therefore, it was that Mr. THE STATUTE OF FRAUDS. 61 Comptou thought he had got decidedly on the right side of the bargain when, one evening, in casual con- versation across the walnuts and wine, this asfreement was come to : Peter to pay Compton a guinea down, in consideration that Compton would pay Peter a thousand guineas on his (Peter's) wedding day. Peter promptly paid down the guinea, and Compton pocketed it with a grin. Peter grinned, too. The next act opens with Peter's wedding day, two years being supposed to have elapsed. Brilliant dresses,- lovely bridesmaids, rosettes, church bells, and indigestible cake. But one is conspicuous l)y his absence. The reader can guess who. When Mr. Peter led Mrs. Peter away from the hymeneal altar, he sat down and wrote an extremely friendly little note to Compton, reminding him of that pleasant evening they spent together two years ago, and reqnesting the favor of a check for amount due, as per agreement Compton was considerably taken aback ; but, like a sensible man, went straight to his lawyer. That gen- tleman told him to set his mind at rest ; for, said he, in a certain statute, enacted of wise men lonoi- ao-o, it was provided that an " agreement that is not to be performed within the space of one year from the making thereof" should be in writing. '*And how," asked the man of law, complacently stroking his chin, "can they make out that this agreement was to be performed within the year, when this sly dog Peter doesn't get married till two years afterwards? Go home, my dear sir, and don't trouble yourself any more about it." Unfortunately for Compton, this rather plausible view of the law was not adopted by the judges, who 62 LEADING CASES SDITLIFIED. came to the conclusion that the chuise in the Statute of Frauds referred only to agreements which, in their terms, vrevQabsoIutelt/ incapable of performance ivithin the year, and required that such agreements only should be in writing. Now, this agreement between Peter and Compton was clearly not " incapable of perform- ance " within the year, for Peter might have got mar- ried the very next day. So that it was binding, though not in writinsr. CONS IDE RAT 10 2r IfUST BE EXPRESSED. WAIN V. WARL.TERS. [5 East., 10; 2 Smith's Ld. Cas. 280.] For Mr. Warlters the Statute of Frauds was decid- edly a fortunate enactment. He had a friend named Hall, who became indebted to Messrs. Wain & Co. to the extent of £5G, and with no particular means of payment. To extricate this friend from his difficulties Warlters sat down and wrote out the following collat- eral security : " Messrs. Wain and Co. : I will engage to pay you by half-past four this day £56 and expenses on bill that amount on Hall. " [Signed] Jonathan Warlters. «' No. 2, Cornhill, April 30, 1803." THE STATUTE OF FRAUDS. 63 Hall, of course, did not pay the money. So Wain & Co. sued Warlters on his pruarantee. But the docu- ment was held to be so much waste paper, as no con- sideration for Warltei'S^ promise to pay the £56 was expressed in it. The Statute of Frauds requires that the " agreement" shall be in writing, and as we have seen, the consideration is as much a part of the " agree- ment " as the promise. PE 03118 E TO ANSWER FOR DEBT, ETC., OF ''ANOTHER." EASTWOOD V. KENYON. [11 Ad. &E. 438.1 John Sutcliffe, beginning to feel that he was not the man he used to be, thought it was about time to make his will, and turn his attention to another and a better world. He left everything he had in the way of real property to his only daughter, and named his friend Eastwood executor. Bnt John Sutcliffe was not des- tined to die just yet ; and "mansions in the skies" were not the only estates to which he was busied in making his title clear. Before he died he had sold all the lands mentioned in his will, and bought other lands. Of those he made no will whatever, and when 64 LEADING CASES SIMPLIFIED. he tlied, as he did soon afterwards, they descended to his child as heiress at hiw. This young hidy, at the time of her father's death, was under age, and East- wood, on the strength of the now useless will (in those days a will did not speak from the time of the testator's death), and the fact that he was an old and dear friend of her father's, took on himself to act as her guardian. But Eastwood, with all his good intentions, was a poor man ; and, for the purpose of managing Miss Sutclifle's affairs, he found it necessary to borrow money. He borrowed £140 from a person named Blackburn, and gave him his promissory note for the amount. By and by Miss Sutcliffe did what all young heiresses, sooner or later, must do — she got married ; the for- tmiate individual being a Mr. Kenyon. Recognizing his claims to his gratitude, Kenyon promised Eastwood verbally that he would pay Blackburn the £140. But somehow or other, when the time came, small as the sum was, Kenyon could not bring himself to part with the money ; and finally this action had to be brought on his promise. Kenyon did not deny that he had made the promise. But ho raised two objections to the plaintiff's claim : — (1.) That his promise was one " to answer for the debt, default, or miscarriage of another person," and therefore (by the Statute of Frauds), should have been in writing. This point was overruled, for the judges said that the words in the statute contemplated the promise being made to the creditor, and had no reference when the promise was made, as here, to the debtor himself; it was a promise to answer for the debt of " another" which was required to be in writing. THE STATUTE OF FHAUDR. 65 Beaten from this position, Kenyon retreated to another. (2.) That there was no consideration for his prom- ise. And this point was decided in his favor, for a mere moral consideration, as we have seen, is not strong enough to snpporfc a promise. So Eastwood was £140 out of pocket by his executor- ship. " GOODS, WARES AND MERCHANDISE:' TISDALE V. HARRIS. [20 Pick. 9.] The plaintiff sued the defendant on a verbal con- tract by whicli the latter agreed to sell him two hun- dred shares of stocli owned by him in the Collins Manufacturing Company. The defendant had never delivered the stock, and hence this suit, in which he made the defence that it was a contract for the sale of " goods, wares and merchandise," and not being in writing he could not be bound. The plaintiff vigor- ously opposed this view of the case, but the court held it was a correct one. *' The court are of opinion," said Chief Justice Shaw, " that as well by its terms as by its general policy, stocks are fairly within, its oper- 66 LEADING CASES SIMPLIFIED. ation. The words 'goods' and 'merchandise' are both of very hirge signification. Bona as used in the civil law is almost as extensive as personal property itself, and in many respects it has nearly as large a signitication in tlie common law. The word ' merchan- dise,' also including in general objects of traffic and commerce, is broad enough to include stocks or shares in incorporated companies." GOODS NOT IN EXISTENCE. LEE V. GRIFFES^, [1 Best & S. 272.] Old Mrs. Pearson ordered two sets of artificial teeth of Mr. Lee, a dentist. The latter made them, but on the day before she was to call at the office to have them fitted the old lady died, and as her executor was already supplied by nature with an efficient array of grinders, the dentist was forced to sue for his bill, which amounted to $105. The executor set up the defence, that it was a contract for the sale of " goods, wares or merchandise," and should, therefore, have been in writing, as required by the Statute of Frauds, while the dentist contended that, on the contrary, it was work, labor, and materials for which he was suino;. THE STATUTE OF FRAUDS. 67 The executor's view was adopted hy the court, the rule being stated to be that, if the contract be such (haC when carried out it ivonld result in the mle of a chattel, it is a sale of goods, and not a contract for work and labor. VALUE OF GOODS. BALDEY v. PARKER. [2 Barn. & Cress. 37.] Mr. Parker has not paid an exorbitant price for fame. He went one day into a shop and bargained for a number of trifling articles, a separate price being agreed on for each, and no one article being priced so high as £10. The articles that Mr. Parker had decided to buy he marked with a pencil, or assisted in cutting from a larger bulk. Then he went home — he always did — to tea, desiring that an account of the whole ■Bhould be sent after him. This was done, and the sum Parker was asked to pay was £70, minus five per cent discount for ready money. This discount he quarrelled with, not considering it liberal enough, and when the goods were sent to him he refused to accept them. This was an action by the store-keeper against his recalcitrant customer, and the main question was 68 LEADING CASES SDIPLTFTED. whether the contract was one " for the sale of goods, wares, or nicrclumdises for the price of £10" within the 17th section of the Statute of Frauds, the honest store-keeper saying that it wasn't, and the other gen- tleman saying that it was. The question was decided in the affirmative, the contract having been an entire one, and "it being the intention of that statute," as HoLROYD, J,, said, "that where the contract, e?7Ae?' at the commencement or at the conclusion, amounted to or exceeded the value of £10, it should not bind luiless the requisites there mentioned were complied with. The danger," he added, " of false testimony is quite as great where the bargain is ultimately of the value of £10 as if it had been originally of that amomit," ACCEPTANCE AND RECEIPT, ELMORE V. STONE. [1 Tann. 458.] Elmore was a livery-stable keeper, and had a couple of horses for sale, for which he wanted £200. Stone admired the horses, but not the price. Finding, how- ever, he could not get them for less, he sent word he would take the horses, " but, as he had neither ser- vant nor stable, Mr. Elmore must keep them at livery for THE STATUTE OF FRAUDS. 69. him." In consequence of this message, Elmore re- moved the horses from his sale-stable into another stable, which he called his livery stable. In an action which he brought for the price, the question was whether such removal was a sufficient constructive delivery to take the case out of the Statute of Frauds, and it was held that it was, as Elmore from that time held the, horses, not as owner, but as any other livery-stable keeper might have done. Said Lord IVIansfield, who. delivered the judgment in this case: <' There are many cases of constructive delivery. A common case is that of goods at a wharf or in a w^arehouse, where the usual practice is that the key of the warehouse is de- livered or a note is given addressed to the wharfinger, who, in consequence, makes a new entry of the goods in the name of the vendee, although no transfer of the local situation, or actual possession, takes place. Thus in the present case, after the defendant had said that the horses must stand at livery, and the plaintitf had accepted the order, it made no ditference whether they stood at livery at the vendor's stable, or whether they had been taken away and put in some other stable. The plaintiff possessed them from that time, not as the owner of the horses, but as any other livery-stable keeper might have them to keep." ■J^D' LEADING CASES SniPLrFIED. SHLSTDLER v. HOUSTON. [1 Denlo, 48; 1 N. Y. 2C1.] Houston owned a lot of liimljer which was piUvT on a dock apart from other linnher there, and had l^cen previously measured and inspected. Shindler wanted to buy some lumber, and this particular lot being in view of both, Shindler offered a certain price per foot for it, whicli Houston accepted, saylnir, " The lumber is yours." Shindler then told Houston to get tlie in- spector's bill and take it to his agent and he would pay for it. He did so, but payment was refused. Hous- ton then brought an action for the price, but was un- successful, the court holding that there had been no sufficient "acceptance and receipt" of the goods to satisfy the statute. It Avas not denied that there might be a constructive acceptance of goods as in Elmore v. Stone^ but the court thought that in this case what was relied on as evidence of acceptance and receipt was nothing ])ut the acts and declarations of the par- ties during the course of the sale. There were no such subsequent acts, as constituted the open recogni- tion of an existing contract; nothing in short to show that Houston considered that the lumber was no longer his property. THE STATUTE OF FRAUDS. 71 CONTRACT CONTAINED IN SEVER^iL DOCU- MENTS. BOYDELL V. DRU3I3IOXD. [11 East, 142.] Towards the end of the last century Boydell & Co., a great pulilishing lirni in London, determined, with a view to the encouragement of literature and their own remuneration, to bring out a series of engravings of scenes in Shakspeare's plays ; and so they issued a prospectus and began A'igorously canvassing for sub- scribers. There were to be seventy-two engravings altogether, four of which were to constitute a number, and at least one number was to be published every year. " The proprietors, however, were confident that they should l)e able to produce two numbers in the course of every year." The price of each numl^er Avas three guineas. The student, whose /b?-i'e is arith- metic, will thus perceive that the whole series would not be completed for nine years, and that the total cost would be 54 guineas. Amongst other enthusias- tic, if not very appreciative, admirers of the great bard was a Mr. Drummond. He agreed to become a sub- scriber, and signed his name in a book bearing the title, " Shakspeare Subscribers, their Signatures." He even put his admiration of the dramatist to tlie still sever test of accepting and actually paying for one or two of the numbers. But his interest soon l)egan to languish, and at last it became necessary to sue 72 LEADING CASES SIMPLIFIED. liiiii (or not accepting the remainder of the engravings. In defence, Mr. Drummond availed himself of the Statute of Frauds. He said that the agreement he had entered into was one which, by its terms, was in- capable of performance within a year from the making, and, therefore, to bind him, should have been writing. The pu])lishcrs replied to this : — 1. That, Mr. Drummond having taken and paid for several numbers, there was a sufficient " performance " to satisfy the statute, if not Mr. Drummond' s con- science. 2. That, after all, the agreement was in writing, for the book in which Mr. Drummond had signed his name, coupled with the publishers' prospectus, consti- tuted a sufficient memorandum of agreement. It was held, however, — scarcely to the execution of justice and the maintenance of truth ; — 1. That part i^erformance would not do, for the word ^ ^ pei'/onnance" could not mean anything less than completion. 2. That there being no means of connecting the Shakspeare subscribers' book with the prospectus, without oral evidence — no reference being made by the one to the other — they did not together consti- tute a sufficient memorandum. "If," said Le Blanc, J., "there had been anything in that book which had referred to the particular pros- pectus, that Avould have been sufficient; if the title to the book had been the same with that of the prospec- tus, it might, perhaps, have done ; but as the signa- ture now stands without reference of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any prospectus, and saying that it THE STATUTE OF FRAUDS. 73 was the prospectus exhibited in his shop at the time to which the signature rehited ; the case, therefore, falls directly within this branch of the Statute of Frauds." So Boy dell beat the publishers, and lived happily to the end of his days ; and his case remains the leading authority for the principle that, though a con- tract may be collected from several documents, those documents must be so connected in sense that oral evidence is unnecessary to show their connection — in other words, they must be left to speak for them- selves. It should also be remembered by the student, as an illustration of the clause in the fourth section of the Statute of Frauds, which says that an agree- ment not to be performed within a year must be in writinir.^ See ante, p. 60. 74 LEADING CASES SIMPLIFIED. y . — Written Coi^^teacts and Oral Evidence. OJ^AL EVIDENCE NOT AD^IISSIBLE. GOSS V. NUGEI«^T. [5 Barn. &. Adol. 58.] Lord Nugent agreed to buy of Mr. Goss several lots of lund for £450, and paid a deposit of £80, Mr. Goss undertaking to make a good title to all the lots. This agreement was, as the Statute of Frauds requires it to be, in writing. Soon afterwards Mr. Goss found that as to one of the lots he could not make a good title ; and of course Lord Nugent would then have been perfectly justified in crying off the bargain. Instead of doing so, he agreed orally to waive the necessity of a o-ood title being made as to that lot. Afterwards, however, his lordship seems to have altered his opinion as to the desirability of becoming the owner of the land, and he declined to pay the remainder of the purchase-money, relying on the objection to the title. In answer to that, Mr. Goss wished to prove that after Lord Nugent knew a])ont the defect of the title he agreed to waive it. This, however, was not alh)wed. WRITTEN CONTRACTS AND ORAL EVIDENCE. 75 So Lord Nugent recovered his deposit, and got the better of Mr. Goss. " By the general rules of the common law," said Denman, C. J., " if there l)e a con- tract which has been reduced into Avriting, verbal evidence is not allowed to be given of what passed between the parties, either before the written instru- ment was made, or during the time it was in a state of preparation, so as to add to, or subtract from, or in any manner to vary or qualify the written contract ; but after the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either alto- gether to waive, dissolve, or annul the former agree- ments, or in any manner to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement. And if the present contract was not subject to the control of any act of Parliament, we think that it would have been competent for the parties by word of mouth to dispense with requiring a good title to be made to the lot in question, and that the action might be maintained. * * * g^t we think the object of the Statute of Frauds was to exclude all oral evidence as to contracts for the sale of lands, and that any contract which is sought to be enforced must be proved by writing only." 76 LEADING CASES SIMPLIFIED. PYi>I V. CAMPBELL. [G El. & Bl. 370.] The defendants agreed to buy from John Pjm a three- eighth part of the benefits to accrue from an inven- tion of his. It was agreed that this purchase was only to be made if an engineer named Al)ernethie approved of the invention. They then made a written memorandum of the agreement, without putting down the condition about Mr. Abernethie's approval. Mr. Abernethie did not approve ; and the question was, whether the condition coukl be proved by oral evi- dence. In giving judgment that tlie evidence was admissible, Erle, C. J., said: "The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to show it was conditional ; and, if that had been so, it would have been wrono*. But I am of oiiinion that the evidence showed that in fact there was never any agreement at g|^_ » * * The distinction in point of law is that evidence to vary the terms of an agreement in Avriting is not admissible, but evidence to shoiu that there is not an agreement at all is admissible.'^ WRITTEN CONTRACTS AND ORAL EVIDENCE. 77 LATENT AMBIGUITY MAY BE EXPLAINED. SARGENT V. ADAMS. [3 Gray, 72.] The defendant entered into a written asireement to lease to the plaintiff the "Adams House," in Boston, for a term of ten years. The defendant had fitted up an old hostelry called the Lamb Tavern, as a hotel, and had christened it the "Adams House." The en- trance to the hotel was on Washington Street, and was numbered 371. The rest of the ground floor of the building was fitted up for stores, which were numbered 1, 2, 3, 4, and 5 Adams House. AVhenthe time came for the defendant to i3resent the plaintiff with the lease, the latter discovered that it did not include all these stores, but only one of them. He, therefore, refused to accept it, and In'ought an action to recover back a sum of money which he had advanced to the defendant under the agreement. It would, doubtless, have been hard for the defendant to have shown that he had complied with his agreement had the Supreme Court not allowed him to prove by parol that the agreement originally was that the lease should include only the hotel proper and one of the stores. "The court are of opinion, " said the distinguished Chief Justice Shaw, "that this constituted a case of latent ambig- uity, as that is understood and explained in this department of the law. * * * j^; fajig under that 78 LEADING CASES SIMPLIFIED. class of cases where the very general description adopted in a contract will apply to two distinct sub- jects, and so there is a latent ambiguity." BUT NOT " PATENT AMBIGUITY.'' ASPDEN'S ESTATE. [2 Wall. jr. 368.] Mr. Mathias Aspden, a wealthy and eccentric Amer- ican, died without issue, in London, in the year 1824. There w ere plenty of relatives to take care of his mone\', and as they could not agree on the division, a costly and lengthy litigation was the result. Matters were somewhat complicated by the fact that Mr. Asp- den left a will in which he devised his estate without further description to his " heir-at-law." Everyone of several nephews thought he exactly filled the bill, and one of them was particularly anxious to let the court hear evidence that his uncle always treated him the best, and thought more of him than of the others, in fact, considered him as his heir-at-law. But the court held that there was no latent ambiguity to ex- plain here ; if it was anything it w'as a patent ambig- uity and parol evidence was not admissil)le to explain that kind. " The difBculty presented in this will," WRITTEN CONTRACTS AND ORAL EVIDENCE. 79 said Mr. Justice Grier, " is not one arising upon a latent ambiguity, as where a testator bequeathes his estate to his nephew, John Smith, and has two or more nephews of that name. On the contrary, the testator has described a certain person, or a certain chiss of persons, as the objects of his bounty ; the description given cannot equally apply to two or more." SUPPLE3IENTAR Y CONTRACT MA Y BE SIIO WN. MAI.PAS V. LONDON & SOUTHTVESTERX R. CO. [L.R. 1 C. P. 336.] A cattle-dealer wanted to send some cattle from Guildford to Islington. They told him at Guildford Station that the beasts Avould be duly forwarded to King's Cross; but they inveigled him into signing a consignment note by which the cattle were directed to be taken to the Nine Elms Station, which was not so fiir as the cattle-dealer expected them to go. At this intermediate station they remained and sutFered injury from not being fed properly, etc. The company's point was that the consignment note was conclusive evidence of the terms of the contract, and, therefore, that they had never undertaken to carry further than the Nine Elms Station. But for the cattle-dealer it 80 LEADING CASES SIMPLIFIED . was successfully contended that the consignment note did not constitute a complete contract, and that parol evidence could be given of the conversation that had taken place between the plaintilF and the company's servants before the consignment note was signed. In regard to the company's argument that the writ- ten contract was conclusive evidence that the cattle were to be carried to Nine Elms and no farther, Eulk C. J., said : *' I think that it is not so, because it seems clear on the evidence that there may have been a con- tract to carry to Nine Elms, and an additional contract to carry the cattle on from thence to King's Cross. The parol evidence, therefore, does not vary or contra- dict the written document, but only makes an addition to it." USAGES OF TRADE MAY BE SHOWN. COOPER V. IvAXE. [19 Wend. 38G; Lawson, Us. & C. 339.] A property owner in the capital of the State of New York emploved a contractor to grade a lot so as to make it conform to a plan of the streets established I)y the city. The parties signed a written agreement, which provided that the contractor should excavate the lot and make the necessarv embankments within a certain WRITTEN CONTRACTS AND OKAL EVIDENCE. 81 time, for which the other, when the work was done, was to pay him $180. As the excavating went on the contractor piled the sand, which was taken out, on an adjoining lot, and as was not strange (for when the work was finished the sand taken out was worth at least $150), both parties claimed it. " It certainly loas mine," said the owner, " and our contract does not say that you are to have $180«u£Zthe sand for your work." But the contractor answered that it had always been understood in Albany that the material excavated be- longed to the excavator, and this was one reason why he had taken the contract so low. In the court, where the parties at last resorted, the contractor offered to give evidence of this custom, but the judge would not allow it and gave the sand to the owner of the prop- erty. But on appeal the Supreme Court thought this all wrong, and ordered the court below to permit the contractor to show such a usage, if he could. It was only fair to conclude, they said, that the parties contracted with reference to it. SOUTIER V. KELLER]>IAI^. [18 Mo. 509.] This somewhat novel case calls for a little arithmeti- cal calculation, Mr. Soutier, Avho was doubtless building a new house, ordered four thousand shingles of a lumber dealer, and paid for them, too. In due 82 LEADING CASES SIMrLIFIED. course of time the dealer's wagon came along, and dumped eight large packages of shingles down into Soulier's yard. " It strikes me that there has l)een something wrong in the count," said Soutier, when he saw the packages, " I guess I'll check them." He went to work and counted them all over, when lo ! there were only two thousand five hundred shingles all told. Tlien he hied his way to the lumber dealer's. ■ *'I paid you for four thousand shingles and you have sent me only two thousand live hundred," he vociferated. "How many bundles did you say you received?" calmly returned the lumber man. " Eight bundles," answered Soutier "but what has that to do with it ; I paid you for four thousand shingles, not for eight bundles." "Ah," rejoined the dealer, "but you know we never count them, we put them up in bun- dles of a certain size, and we call two bundles a thou- sand." "And if there are only seven hundred in the two bundles do you call them a thousand, then?" asked Soutier. " Oh, yes," responded the dealer. "If that's your arithmetic, it isn't mine," said Soutier, and he immediately brought suit for the ]5rice of the one thousand five hundred shingles he had not received. As very often happens, the first court thought the buyer was right and the seller wrong, while the second court thought just the opposite about the case. But unfortunately for Soutier, the second court was the Supreme Court, and so he lost his money. The Su[)reme Court said that usage was always admissible to explain the meaning of a con- tract. The court below could never have heard of the WRITTEN CONTRACTS AND ORAL EVIDENCE. 83 English Rabbit case,' or it never would have made such !i mistake. In that celebrated case, Mr. Smith leased from Mr. Wilson a rabbit warren, and cove- nanted that at the end of the term he would leave on the land at least ten thousand ral)bits, Wilson to pay him £()() a thousand for all he left. When the lease was up two persons were appointed to count the rab- bits, and they reported the number at nineteen thou- sand two hundred. But when Wilson came to settle he wanted to pay for only sixteen thousand rab])its, on the ground that " thousand," in that part of the coun- try, when applied to raljbits, meant twelve hundred, or a hundred dozen. Smith did not see it that way, and brought an action for nineteen thousand two hun- dred rabbits, at £(10 a thousand. But the court allowed Wilson to show that the custom of the coun- ti'y was jnst as he had contended ; and all the judges of the King's Bench agreed that this was correct law. Therefore, said the Supreme Court of Missouri in Souticr V. Kellerman, " the usage of a particular trade is evidence from which the intention and aoreement of parties may be implied ; and although it cannot con- trol an express contract made in such terms as to be entirely inconsistent with it, yet in express contracts the terms employed may have their true meaning and force best understood by reference to such usage. Evidence of such usage is admitted, not to vary the terms of an express contract, or to chanije the oblisra- tioii, but to determine the meaning and obligation of the contract as made. The usage must appear to be so ireneral and well established that kuowledsre of it ' Sraith v. Wilson, 3 Barn. & Adol. 728 ; Lawson, Us. & C. 335. 84 LEADING CASES SlilPLIFIED. may be presumed to exist among those dealing in the husiness to which it applies ; so that the contract of the parties may be taken to have been made with reference to it. In this country, many articles which are in terms sold by the bushel (a dry measure con- taining -eight gallons), are in fact sold by weight, the ])ushel being understood to mean a certain number of pounds, and the number of pounds differing in differ- ent articles — as salt, wheat, etc. When such custom becomes general and well established, so as to be known to the community, it is obvious that a contract for a given number of bushels must mean the bushel as ascertained by weight, whether, in fact, the number of pounds of the article sold would measure more or .less than the real bushel. In the ]3resent case there was evidence that a general custom prevailed in the lumber trade of estimating two packs of shingles of certain dimensions as a thousand shingles, without reference to the number of pieces in the pack. If such was the usage of the trade, so general and well established that those buying and selling might be presumed to deal in reference to it, there does not ap- pear to have been any such contract shown in this case as would prevent the usage from applying. The law commissioner seems to have thought that the defend- ant could not escape from liability, if the contract was at so much per thousand, unless there was an express a^^reement that two bundles should represent a thou- sand. This was an incorrect statement of the law in a case where evidence was given of a general usage, that a thousand shingles meant two packs of certain dimensions. Whether there was as full evidence of the usage given as ought to have been given, is not a WRITTEN CONTRACTS AND ORAL EVIDENCE. 85 question ui)oii which we pass ; but there was evidence of the usage, upon which the party was entitled to have the hiw differently declared, if the evidence proved the usage as general, well established and known so that contracts might be presumed to be made with reference to it. USAGE MUST NOT CONTRADICT CONTRACT. BLACKETT v. ROYAL EXCHANGE ASS. CO. [2 Cromp. & J. 2-t-t; Lawson, Us. & C. 413.] An insurance company made a policy, which by its terms, was expressed to be on " the ship (that is the bodv), tackle, apparel ordinance, munition, boat and other furniture of the ship called the Thames " from London to Calcutta. One stormy day during the voyage, a small boat, which was slung upon the outside of the sliip, on the quarter, was washed overboard and lost. The underwriters demurred to paying for this, and when they were sued wanted to show a usage of the trade that boats slung as this one was, were not protected by marine policies. But this they were not permitted to do. The evidence did not pretend to ex- plain any ambiguous words in the policy, or to intro- duce matter on which it was silent ; but it was at 86 LEADING CASES SIMPLIFIED. direct variance Avith the words of the policy, and in plain opposition to its language, for whereas the pol- icy imputed to be on the ship, and furniture, and apparel generally, the usage olfercd was to say that it was not on all the furniture and apparel, but upon only a part, excluding the boat. " Usage," said Lord Lyndhurst, in a pithy sentence since quoted by a thousand courts, ** Usage may l)e admissible to explain what is doubt- ful ; it is never admissible to contradict what is plain.'* ILLEGAL CONTRACTS. 87 YI. — Illegal Contracts. CONTRACTS TO PREVENT COMPETITION. GULICK V. WARD. [5 Halst. 87; 18 Am. Dec. 389.] There were sccamps with eyes set on the sweets of the post-office department, long before the days of Star Rontes. When James Monroe was President, Gulick and Ward were competitors for the contract to carry the mails between New York and Philadelphia, the Postmaster-general having, under authority of an act of Congress, advertised for proposals for this ser- vice. Gulick and Ward concluded that as both could not have it, there was no use cutting each other's throats in the endeavor to make the lowest bid, and so they made an agreement, which they drew up and sio;ned, that if Gulick would withdraw, and not make any offer nor induce any one else to compete, and Ward should get the contract, he should pay Gulick $1,000 for his magnanimity. The long and short of it was, that Gulick withdrew from the compe- tition, that Ward did get the contract and then, very ungenerously refused to hand over the $1,000. 88 LEADING CASES SHIPLIFIED. Giilick sued liiin, but without success. The court tokl him thtit courts of justice did not sit for the purpose of enforcing contracts against public policy, and his contract with Ward was decidedly one of that kidney. An arrangement which diminishes the num- ber of competitors, lessens the number of proposals, or induces anybody to abandon his intention of making an offer, is directly opi)oscd to the policy of the act of Congress which calls for bids upon the work. It de- feats the statute, for it destroys the competition and precludes the advantages which competition is in- tended to result in. And Gulick saw nothing of that thousand dollars, and lost the contract into the bar- gain, as his reward for making an illegal agreement. AGREEMENTS TO INFLUENCE OFFICIALS. TOOL. CO. V. NORRIS. [2 Wall. 45.] About the middle of 1861, when the United States government was purchasing arms on an extensive scale, an u])iquitous individual appeared at Washington, and after lobbying around with great energy for a few weeks, obtained a contract from the Secretary of War for twenty-tive thousand muskets of the Providence ILLEGAL CONTRACTS. 89 Tool Company, at twenty dollars each. Norris's exer- tions were dne to the fact that he had been employed by the tool company to get this contract from the government, they agreeing to pay him, in the event of his snccess, a very handsome compensation. But when the work was done a dispute arose })etween Norris and the tool company concerning the amount of compensation which he should receive, and the re- sult of it was that he had to bring an action against the company. The jury gave him a verdict for $13,500. But on appeal, the Supreme Court of the United States (after listening to an able argument by the counsel for the defendants), set the verdict aside, the court holding that Norris could recover nothing for his services, on the ground that all agreements for compensation for procuring favors or contracts from legislative bodies or government officers are against public policy and void.^ CONTRACTS UIPEDING THE ADMINISTRATION OF JUSTICE. COLLTXS V. BLAXTERX. [2 Wils. 341 ; 1 Smith's Ld. Cas. 490.] Amonorst other misdemeanants to be tried at the ^ If the student is in search of a counsel's argument to serve as a raoclcl for himself, he will find one in the brief of the counsel for the defendants in the Supreme Court as reported in this case. It is one of the best in the American Reports, its brevity being as con- spicuously noticeable as its learning and rhetoric. 90 LEADING CASKS SIMPLIFIED. Stafford Slimmer Assizes, 1765, were five persons chiirgcd with i)crjury. It happened, however, that their prosecutor, a Mr. Rudge, was not of that h)fty character which woukl prompt him scornfully to reject a brilxn The perjurers decided that he might be " got at," and they set to work accordingly. A friend of theirs, a disreputa})le surgeon named Collins, was persuaded to pay Iludge £350 to " square " him ; and, to indemnify Collins j the perjurers and another " pal," named Blantern, executed a bond for the pay- ment of £350. There would scarcely seem, however, to flourish among perjurers quite that chastity of honor Avhich is ascribed by some people to thieves in their dealings with one another : for when Collins hinted at the repayment of the money he had ad- vanced he "Nvas laughed at for his pains ; and when at last he sued on the bond, the perfidious crew success- fully pleaded that the consideration for the bond was illegal, and, although it did not appear on the face of the deed, vitiated it. Said Lord Chief Justice Wilmot, in memorable words, " You shall not stipulate for iniquity. All writers upon our law agree in this — no polluted hand shall touch the pure fountains of justice. Whoever is a i)arty to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again ; you shall not have a right of action when you come into a court of justice in this unclean manner to recover it back. Procul Olproculesteprofani!'^ ILLEGAL CONTRACTS. 91 SCOTT V. AVERY. [5 H. L. Cas. 811.] This was an action, by a gentleman whose good ship had sone to the bottom, asTJiinst a Newcastle Insurance Association, of which both plaintiff and defendants were members. The defendants relied on one of the rules of their association (which the plaintiff as a member had, of course, bound himself to observe), which pro- vided that no member should bring an action on a policy till certain persons, by way of being arbitrators, had ascertained the amount that ought to be paid. In answer to that objection, the plaintiff contended that an agreement which ousts the superior courts of their jurisdiction is illegal and void, and that the rule relied on by the defendants was of such a nature. This view, however, did not prevail. Judgment was given for the defendants on the ground that the contract did not oust the superior courts of their jurisdiction, but only rendered it a condition precedent to an action that the amount to be recovered should be first ascer- tained by the persons specified. The limitation to the rule that all contracts obstructing or interfering with the administration of the law are illegal and void, was concisely stated by Mr. Justice Coleridge, as follows : " If two parties enter into a contract, for the breach of which in any particular an action lies, they cannot make it a binding term that in such event no action shall be maintainable, but that the only remedy shall be by reference to arbitration. * * * The courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction which has 92 LEADING CASES SDirLIFIED. been considered :i right inalienal)lc, even by the con- current will of the parties. But nothing prevents par- ties from ascertaining and constituting, as they pk-asc, the cause of action which is to l^ecome the subject- matter of decision hy the courts. Covenanting [)arties may agree that, in case of an alleged breach, the dam- ages rendered shall be a sum fixed or a sum to be ascertained by A. B., or hy arbitrators, to be chosen in such and such a manner, and until this be done or the nonfeasance be satisfactorily accounted for, that no action shall bo maintainable for the breach." CONTRACTS VIOLATING LAW. COWAX V. MILBOURX. [L. R. 2Exch. 231.] Mr. Cowan was, in 1807, the secretary of the Liver- pool Secular Society, and the defendant the proprietor of some assembly-rooms in that town . Cowan engaged the rooms for a series of lectures to show that our Lord's character was defective, and His teaching eiTO- neous ; and that the Bible was no more inspired than any other book. At the time the defendant let the rooms he did not know the nature of the lectures to be delivered, and when he found out, his religious sensi- bilities were shocked, and he declined to comj^lote his ao-reement. The secularist now sued him for In-each ILLEGAL CONTRACTS. 93 of contract, but the court clocided that the purpose for which the phiiiitilV intended to use the rooms Avas illegal, and the contract, therefore, one which could not be enforced at law. " The question is," said Chief Baron Kelly, " whether one who has contracted to let rooms for a pur[)ose stated in general terms, and who afterwards discovers that they are to be used for the delivery of lectures in support of a proposi- tion which states, with respect to our Saviour and His teaching, that the first is defective and tlie sec- ond misleading, is nevertheless bound to permit his rooms to be used for that purpose in pursuance of that general contract. There is abundant authority for saying that Christianity is part and parcel of the law of the land, and that therefore to support and maintain publicly the proposition I have above men- tioned is a violation of the first principles of the law, and cannot be done without blasphemy. I, there- fore, do not hesitate to say that the defendant was not only entitled, but was called on and bound by the law, to refuse his sanction to this use of his rooms." CONTRACTS VIOLATING STATUTES. PATTEE V. GREET^EY. [13 Mete. 284.] Tt is enacted by statute in Massachusetts that " no person shall do any manner of labor, business or work, 94 LEADING CASES SIMPLIFIED. except only works of necessity and charity on the Lord's day." This being the state of the law, a coni)le of bakers drew np an agreement which, after reciting that one had pnrchased of the other certain bread rontcs, bonnd the other in the sum of $500 to quit these routes, and not thereafter to interfere with the eaters of bread thereon. To this they set their hands and seals, but even this solemnity did not pre- vent the defendant from doing just what he had coven- anted not to do. Then, when he was sued for the $500, he was mean enough to set np the defense that the l)ond had been executed and delivered on Sunday. And this l)cing proved, the court decided that it could not compel him to pay it, the plaintiff being unable to show that the execution on Sunday was a work of either "necessity" or "charity." "Was its execu- tion," said Chief Justice Shaw, " * any manner of labor, business, or work,' within the meaning of the statute? Certainly it was. The Legislature intended to prohibit secular business on the Lord's day, and did not confine the prohibition to manual labor, but ex- tended it to the making of bargains and all kinds of trafficking. The general principle that an action will not lie on a contract made in contravention of a stat- ute is well established." ILLEGAL CONTRACTS. 25 IMMORAL CONTRACTS. PEARCE V. BROOKS. [L. R. 1 Exch. 214.] Tlic plaintiffs were coach-builders and the defendant, one of the demi-monde ^ had purchased a brougham from them on credit, with an agreement that she might return it before the end of the year on paying the price of its hire. She did return it, but without pay- ing aiivthiiig, and thoy brought an action for the price. On tlic trial there was evidence that one of the part- ners knew that the defendant was a prostitute, but no direct evidence that either of them knew that the brouirhain was intended to be used by her in her trade. Baron Bramwell instructed the jury that in one sense everything which was supplied to a prostitute is sup- plied to her to enal)le her to carry on her trade, as, for instance, shoes sold to a street walker ; but that the things supplied, for which no action can be brought on account of the immorality of the contract, must be not merely such as would be necessary or useful for ordinarv purposes, and might also be applied to an immoral one, but they must be such as would not be required at all except with that view. The jury bring- insj their knowledge of the world to bear upon the case, thereupon found a special verdict that the brougham was used by the defendant as part of her dis- play to attract men, and that the plaintiffs knew it was to be used for that purpose, which the judge thought 96 LEADING CASES SIMPLIFIED. was a very proper one, as the inference that a prostitute (who swore that she could not read writing), required an ornamental carriage for the purposes of her calling wqAas natural a one as that a medical man would want a brougham for the purpose of visiting his jiatients. The defendant therefore had a verdict which was af- firmed on appeal, all the judges l)eiiig of opinion that any person who contributes to the performance of an immoral act by supplying a thing with the knowledge that it is going to be used for that purpose, cannot re- cover the price of the thing so sui^plied. WAGERS. GOOD V. ELLIOTT. [3 Term Rep. 698.] Good, Elliott and Heath were discussing local mat- ters at the cross-roads, when Good happened to remark that that new wagon of David Coleman's was a beauty. " Coleman hasn't any wagon," said Elliott, " ho sold it to Susannah Tye long ago." " Nonsense," returned Good. 'MVhat will you bet?" said Elliott. "I'll bet you five guineas," said Good, '* that Susannah Tye has not l)()ught Coleman's wagon." " I'll take it," replied Elliott. A forfeit was put up in Heath's hands. On inquirj^ it turned out that Elliott was mis- ILLEGAL rONtKACtS. 97 t;ikon, :ni(l Ihat tlio Avauon was still Coleman's. But he "Would not \)i\y up, and (iood sued him. The ques- tion v/as -whetlu'r a wager was reeoveral)le at all, and the court decided that exce[)t where they are against public })olicy,^ or are indecent,'' or tend to injure the feelings of third [)arties,'^ wagers are not illegal ; l)ut if not paid, may bo recovered at law. 1 On this ground tht; following wagers have been declared void at common law : That one of the parties would not marry (because contracts in restraint of marriage are void, seepos^p. 102), Ilartlcyu. Eice, 10 East, 22; that a certain bird will win a cock-light (because it encourages cruelty), Brogden v. Marriott, 3 Bing. N. C. 8S ; as to the future amount of the ht^p duty (because it might expose to all the world the amount of the public revenue, and Parliament M'as the only proper place for the discussion of such matters), Atherford V. Beard, 2 Term Rep. CIO; as to the duration of the life of Napo- leon Bonaparte (because it gave one party an interest in keeping the king's enemy alive, and the other an interest in compassing his death by unlawful means), Gilbert v. Sykes, IG East, 150; as to whether a prisoner will be convicted on a criminal charge (because it gives one of the parties an interest in obstructing or corrupting the fountains of justice), Evans u. Jones, 5 Mee. & YV. 77; as to the result of an elec- tion (because it gives each party an interest in corrupting the vote or falsifying the count), Buuu v. Riker, 4 Johns. 420; s. c. 4 Am. Dec. 292; Vischer v. Yates, 11 Johns. 21 ; Rust?;. Gott, 9 Cow. 1C9; s. c. 18 Am. Dec. 497; Hill v. Kidd, 43 Cal. (;i5. '^ Thus a w-ager as to whether a certain person is a man or a woman, (Da Costa v. Jones, 2 Cowp. 729), or as to whether an un- married woman will have a child by a certain day (Ditchburn v. Goldsmith, 4 Camp. 152), is void. * So, as said in the principal case, a wager that a young lady who passes for twenty-three years of age is really tlurt3--three, or that she squints, or has a mole on her breast, would be void. In a later English case A. and B., two rival coach drivers, each bet the other his watch that Col. R. Avould go by his coach to an entertainment that evening. On an action being brought for the stake, Ab3ott, J., at the beginning of the argument, said: " I doubt whether this wager be legal. The effect of it would be to suliject a third party to great mconvenience by exposing liiai to tlie importunities of. the 98 LEADING CASES SIMPLIFIED. The student sliould remember to note another excep- tion, viz. : that the particular wager shall not be pro- hibited by statute. In their grandmotherly care for the morals of the citizen, the Legislatures of most of the States have made illegal a variety of wagers, and therefore such bets as come within these statutes will be void, although valid enough at common law. •CONTBAQTS IN RESTRAINT OF TRADE. ALGER V. THACHER. [19 rick. 51 ; 31 Am. Dec. 119.] Thacher, on selling Alger all his shares in the Boston Iron Company, agreed with him that he would not at anv time thereafter, in his own name or in the name of proprietors of those vehicles; any person who has walked through Piccadilly must be sensible that this is no small inconvenience." When the case came to a decision all the judges were of the same opinion. "A wager like the present," said Lord Ellenbokough, "that a gentleman should go by one of these conveyances rather than another, the decision of which 'would expose him to improper importunity and interruptions, and would al)ridge the exercise of his riglit of electing his own conveyance, certainly exposes him to some inconvenience. What has been said of the inconvenience subsisting in Piccadilly is applicable to this case, and arises from the same circumstances. This wager, then, being pregnant with these consequences to other parties, seems to me to be illegal." Eltham v. Kingsman, 1 Barn. & Aid. G83. ILLEGAL CONTRACTS. 99 another, conduct, carry on, use or employ the art, trade or occupation of an iron founder or caster, or be concGrncd, interested, employed or engaged, directly or indirectly, in any manner whatsoever, or under any pretense whatsoever, in the business of founding or casting of iron. Alger wanted the agreement to be iron-clad, and not content with ordinary writing, it was executed with all the formality of a seal. But when some years after he came into court to enforce this contract, the judges very calmly told him that it was no u>ie, for this was another of those contracts that are against public policy and void. The agreement excluded Tliacher everywhere and at all times from participating in the trade referred to. And then the court proceeded to point out to Alger several reasons ■why such agreements as this w^ere unreasonable, and could not be listened to for a moment. 1. They injure the parties making them, because the}^ diminish the means of procuring a livelihood and a com[)etency for their families. They tempt improvi- dent persons for the sake of present gain to deprive themselves of the power to make future acquisitions ; and expose them to imposition and oppression. Long ago in England, in Henry the Fifth's time, a poor ■weaver was bewailing the loss of some of his cloth, and d(H'laring that he would follow his trade no longer, when up comes a designing fellow who offers him a trifling sum not to weave any more. The weaver, ready for anything, accepts the money, signs a bond not to work at his trade again, and goes off to the tavern to enjoy himself. Next morning, forgetting all about his agreement of the day before, he gets out his loom to earn his dinner. Mephistophiles, hearing ^100 LEADING CASES SniPLIFIED. the noiso, pokes liis head tlironirh the windo^v and points to the bond. The weaver tells him to go to H idos TTith his bond ; he isn't going to starve, and ho knows no other trade but weaving. Mephistophiles, however, goes to court with his ])ond, with poor suc- cess as we shall see below. 2. They deprive the public of the services of men in the employments and capacities in which they may be most usefnl to the community as well as themselves. Dr. Skilful and Dr. Blunderer are surgeons. The former has all the practice until the latter pays him a handsome annuity not to take out his lancet again as lonir as he lives. It is obviously a good law which makes such an agreement null and void. 3, 4, and 5. They discourage industry and enter- prise ; diminish the products of ingenuity and skill, prevent competition, enhance prices, and expose the public to all the evils of monopoly. Thus, if all the gas companies in the United States were to induce Mr. Edison, by paying him a couple of millions of dollars, to promise under his hand and seal that he would never invent or erect, or manufacture another electric light in the United States, the bond would not prevent us from having our streets and houses lighted by electricity, invented and manufactured by ^Mr. Edison, if he should conclude to break his word, which in this instance it is to be hoped he would. And for these reasons Alger left the court-house without his money, a sadder and a wiser man. He minht have fared worse had he lived in the time of the Plantagenets, for when the judge to whom, by his lawyer, the fifteenth-century Mephistophiles sent his bond, read it over, he flow into a passion, using some ILLEGAL CONTRACTS. 101 very strong languauc in some very strange French, to the cftec-t that, " If the phiintiff was here he should go to prison, until he had paid a good round fine to the king for his pains, by God." ^ MITCHEL. V. REYNOLDS. [*; p. Wms. 181 ; 1 Smith's Ld. Cas. 508.] Leading eastwards from that sweet thoroughfare, Gray's Inn Road, London, is, or till quite recently was, a street called Liquorpond Street. In that street, something like two hundred years ago, there dwelt a prosperous baker. So prosperous was he that he baked himself a fortune, and retired on it into private life. But before retiring he sold his business to the plaintifl', and executed a bond in which he undertook not to carry on the business of a baker in the parish of St. Andrew^ Ilolborn., for Jive years, under a penalty of £50. The baker did not know his own mind. Retire- ment suited him little, and his fingers were everlastingly itching to be in the pudding. The end of it was that long before the five years were over he was baking awav as hard as ever, and in the aforesaid parish, too. ^ The rather vigorous judgment of Hull, J., in this case is thus reported: "A ma intent vous purres avec demurre sur ky que I'obligation est voide ce que le condition est encounter common ley etper Dieu se le plaintiff fuU icy il irra al prison tanque il ustfait fine au Eoy.''^ 102 LEADING CASES SOIPLIFIKD. Mitchcl now sued the perfidious baker ou the bond to recover the £50, and, what is more, he did recover it. Thouirh a contract in absolute restraint of trade, is not worth the paper it is written on, a contract in par- tial restraint of trade (that is where tlie trading is not to take phice within a certain area) may be irood. But even here there is another proviso, viz. : that the restraint must l)e reasonable, that is to sa}', it must not be greater tiian will ailbrd a fair protection to the benefited party. The contract of our (Vi(Mid, the baker, was very reasonable — £10 a year for five3'ear3 was a good deal of money in the seventeenth century, and five years was not more than an ordinary vacation. Besides this, there were other places than tills little parish where he could knead and bake to his heart's content, with no fear of interference. And so the agreement was perfectly legal. Thus, and much more to the same ettect, spake the court oi King's Bench. CONTRACTS IN RESTRAINT OF MARRIAGE. LOAVE V. PEERS. [4 Burr. 2225.] In the ardor of his affection and the hey-dey of his youth, Mr. Newsham Peers was fool enough to sign, seal and deliver a document to this purport : — ILLEGAL CONTRACTS. 103 " I do hereby [)r()ini.se Mrs. Catherine Lowe that I will not marry with any person besides herselC; if I do, I agree to pay to the said Catherine Lowe £1,000 within tiiree months next after I shall marry anyone else." Ten years passed away, and then the faithless swain married a girl that was not Catherine Lowe. The in- jured lady brougiit an action on the document, l)ut after learned argument it was resolved that it w^as void as being in restniint of marriage. According to the view of the judges — the only sensible one — Mr. Peers' promise had not been to marry M^'s. Lowe, as might seem at first sight to be the case, but he had promised not to mamj anybody except Mrs. Lowe : so that if that good widow from caprice, or otherwise re- fused to marry him, he would be compelled to live all his days the celibate and cheerless life of a bachelor. MARRIAGE BROKAOE CONTRACTS. CRAWFORD V. RUSSELL. [G2 Barb. 92.] Jeremiah Russell was a wealthy widower in Ulster County, New York. Christina Roe had her eyes on the old gentleman's wealth, and made \w her mind to 104 LEADING CASES SIMPLIFIED. have it ; but recogiiizinu: the adaire that two heads are better than one, she determined to take her friend Susan Crawford into the secret. Susan thought the idea a splendid one, but refused to move a hand unless she was to share the ducats. " I don't want the money now," said Susan, " but the old man can't live very lonir, and I will wait for my share till you are a rich young widow." So the two women set to work to draw up an agreement about the matter, and pres- ently they had signed and sealed a contract in these words ; " Susan sh;dl do all she can to aid a marriage between Jeremiah and Christina by her influence and services, and in consideration thereof, Christina faith- fullv agrees and promises that, in case she becomes the wife of .Jeremiah and outlives him, she will pay Susan for her services in this matter $2,000 in cash, and i)ur- chase for her a piano-forte and pay for educating her daughter Kate and give her a gold watch." Then they laid siege to old man Russell's heart. Su- san certainly did her duty. She never left off praising the virtues of dear Christina when he was around, she invited him to her house where the young lady would unexpectedly drop in, she provided refreshments for them, and when the widower began to yield to the charms of the lovely Christina, it was Susan that had to pay for all the wood and oil that was burned during the lonjr winter eveninixs that ho carried on his court- ing in the Crawford house. At last, in less than a year, the bait was hooked, and Christina became Mrs. Jere- miah Russell. Then as soon as the Avcdding feast was ovei-, Susan Crawford began to speculate on the date of ILLEGAL CONTRACTS. 105 the funeral. There she miscalculated very fur, for it was twenty years before Jeremiah got ready for the undertaker, but when he did die Christina was a very rich widow, and a very mean one, for she declined to pay her old friend anything. Susan brought an ac- tion, but it was no use. The court said that this was a marriage brokage contract, and void. True, the civil law allowed match-makers to receive compensa- tion ior their services, its policy appearing to be that all aid rendered in encouraging and establishing mar- riages w^as for the good of the nation and productive of public morality, inasmuch as it discouraged forni- cation, adultery, and concubinage; but the common biw looked at the thing in a different light. The lat- ter considered that the effect of such agencies was to encourage influences of a pernicious nature by pro- moting many unhappy marriages, causing the loss of the influence of parents over their children, holding out false and seductive hopes, by the self-interest of brok;igo agents — these were regarded as so corruptive in their tendency as to be adjudged wholly illegal and void. So Susan got nothing for her pains, not even the monc}^ she had laid out for food, and light, and fire, for the agreement being void, the claim for these fell wMth it. 10 G LEADING CASES SIMPLIFIED. COURT WILL NOT AID EITHER PARTY. HOLMAX V. JOHXSOX. [Cowp. 341.] Mr. Holmun was a tea merchant, doing business at Dunkirk, at wliich place he sold and delivered to John- son quite a large quanlity of the product of the Celes- tial Empire. When the time came for him to pay for it, Johnson neglected this little matter, and so Mr. Holman had to go across to England and sue him for the price. Here, Johnson pleaded that the tea had been bought bv him to be smuirj^led into Enirland ; that Mr. Ilohnan knew it, and the contract was, there- fore, void. Mr. Ilolman's counsel replied th:it it was not void, because there was notliing illegal in the con- tract when made, and he was not responsible for what rai<2:ht be done with the tea after it went out of his hands, and in addition he argued that, even if it was illegal, Johnson was as bad a sinner as Holman in the matter, and it "would be very wrong to let him take the tea and the price, too, as his share of tlie swag. The court decided that he was right on the first point, and therefore Johnson must pay, but that if the con- tract had been illegal, Holman Avould have received no aid from them. Lord Mansfield, who delivered the judgment, laid down the rules of law on this question, and the reasons on wdiich they are founded, with great clearness, in the following language: "The objection that a contract is immoral or illegal as l)etween plaintiff ILLEGAL CONTRACTS. 107 and defendant, sounds at all times very ill in the month of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded in gen- eral i)rinciples of policy which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I nniy so say. The principle of pul)lic policy is this : ex doJo maJo non ojnfur 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 positive law of this country, there the court says he has no right to be assisted. 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 plain- tiff and defendant were to change sides, and the de- fendant was to bring his action against the plaintiff, the hitter would then have the advantage of it, for where both are equally in fault, potior est conditio de- fendenfis." ' 1 No cause of action can grow ont of a questionable transaction. 2 " From a scaly dealing." 3 The one in possession has the " inside track." 108 LEADING CASES SIMPLIFIED. EXCEPT WHERE ILLEGAL PURPOSE IS NOT COMPLETED. SPRIXG CO. V. KNOWLTOX. [103 U. S. 49.] The officers of the Conp:ress and Empire Spring Com- pany, in New York, formed a nice little scheme for the benefit of themselves and other stockholders, viz. : to increase the stock to the amount of $200,000, every old stockholder to have a full-paid $100 share for $80. A paper was passed round among them, to the effect that whoever did not pay the whole of the $80 when called for by the company, would submit to forfeiting what he had paid. T'his was signed by the stock- holders, among them being Mr. Knowlton, vice-presi- dent of the company. Having taken more of the new stock than ho could carry, Knowlton was unable to pay more than twenty percent on it, and in pursuance of the agreement, his payments were forfeited. It is here important to note tliat this wliole scheme of in- creasing the stock in this way was in violation of the law of the State, and therefore illegal and void. A little while after, impressed either by fear of the law, or the unrighteousness of the affair, the compan}'^ con- cluded to abandon the whole thing, and refunded the money which had been paid for the new stock. But they made no effort to pay the forfeited sums, and so the executor of >.Ir. Knowlton, who had meantime died, ])roui>;ht an action in the Federal court to recover his money which had been forfeited in this way. ILLEGAL CONTRACTS. 109 The company set up the highly moral defence, that no trilnmal would aid a party to an illegal contract in get- ting his money back. But the court replied that every judge sat for just this thing, if it appeared tliat the contract had not been comi)leted when the aid was asked for. There was always time for repentance un- til the illegal affair was consummated. " It is as old as Comyns,"^ said Mr. Justice Woods, " that where money has been paid upon an illegal contract, it is a general rule that if the contract be executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid ; but if the contract continues executory, and the party paying the money be desirous of rescinding it, he may do so and recover back, by action, for money had and received." Luckily for the plaintiff, the company had weakened in its unlawful scheme, and ho must have his money. And the court gave judgment for the Ivnowlton estate for the sum asked, wliich by this time amounted to something over fourteen thousand dollars. 1 Sir John Comyns, Chief Baron of the Court of Exchequer, who about the year 1762 wrote a digest of the laws of England. 110 LEADING CASES SDIPLIFIED. YII. — Performance of Contracts. DISCHARGE BY ACT OF PROMISEE. PECK V. UNITED STATES. [102 U. S. G5.] Mr. Peck entered into a contract with the proper oflBcers of the United States to furnish and deliver a certain quantity of wood and hay at the military sta- tion at Tongue River by a certain day. All the par- ties intended that the hay should be taken from Big Meadows in the Yellowstone Valley, for there was to be found the only available grass for hundreds of miles. The time for the completion of the contract approaclied and as Mr. Peck seemed to be going too slow, and it was absolutely necessary that the station should have the hay, the government officers, fearing that he would not be able to carry out his contract, but not waiting till the time for its completion ex- pired, allowed other i)arties to go into the Big Mead- ows and cut the h:iy for them. Of course, Mr. Peck could not get the hay now, and so failed to carry out his contract. It was held, however, in the Supreme Court of the United States that he could not be made PERFORMANCE OF CONTRACTS. Ill to suffer for it, as it was not his fiiult. The supply of hay that he had dcpondod on had been taken away 1)y the United States through its agents. They had hin- dered and jireventcd him iVoni performing his part of the agreement ; and it was a sound principle of law that ho who prevents a thing being done shall not avail himself of the non-performance he has occa- sioned. DISCHARGE BY ACT OF LAW. BADLY V. DE CRESPIGNY. [L.R. 4 Q. B. 180.] People do not, as a rule, choose as eligible sites for residence purposes the land adjacent to a railroad depot. For this reason, the plaintiff in this case had certainly good cause to complain of the way he was treated. He had taken a lease of a house and grounds for eighty-nine years from a party with the ornamental name of De Crespigny, and desiring to be select in his surroundings, had taken a deed from that gentleman in which Mr. De Crespigny covenanted with the phiintift' " that neither he (De Crespigny) nor his heirs and assigns should or would during the term, permit to be built on the paddock fronting the prem- ises demised by the deed towards the north, any 112 LEADING CASES SIMPLIFIED. messuage or dwelliiig-house, coach-house or stable, or other erection, save and except suianaer or pleasure houses in private garden ground, and also a church or chapel at the eastern extroniiLy of the paddock." This was in 1840. Twentj^-five years rolled by when one day a crowd of workman appeared on the scone, and in a few weeks there arose on the sacred paddock opposite the plaintitT's residence, a building that was neither a summer-house, church nor chapel, but on the contrary, to quote the language of the plaintifT's declaration, " certain erections other than those in the deed excepted, to wit : a railway station with the ap- pentenances thereof, including water-closets and uri- nals." Of course this was more than he could stand, and he immediately repaired to his lawyer and com- menced an action against Mr. De Crespigny for breach of the covenant in the deed as to erections. The latter replied that Ae had not built the railway station ; it had been built by the London & Brighton Railway, which company had compulsorily purchased the pad- dock from him by virtue of this somewhat despotic power given to them by their charter. He diAJLE. [9Exch. 341.] Hadley & Co. were owners of a steam-mill at Glou- cester. It happened that the shaft of the engine l)roke, and they gave it to the defendant, a carrier, to take to an engineer at Green^ach to servo as a pattern for a new one; the defendant's clerk beinj? informed that the mill was stopped, and that the shaft must be deliv- ered immediately. But through the nefrliirence of the defendant the shaft was not delivered promptly, and in consequence Hadley & Co. did not get the new shaft until several days after they otherwise would have done, the mill in the meantime remaining silent and idle, to the pecuniary loss of the proprietors. For the loss of the profits which they would have made if the new shaft had come to them when they expected it, Hadley & Co. brought an action, and the que8tion was whether the damages were too remote. The court held that if the carrier had been made aware that partial unfulfllment of the contract. Thus, in a recent case where D. hired B. to work for him for seven months at $15 per month, and B. -worked only flfty-nine days and then quit without any good excuse, it was, nevertheless, held that B. might recover from D. the sum that his flfty-nine days' worli was worth, deducting the damage to D. from his breach of contract. Duncan v. Baker, 21 Kas. 99. 126 LEADING CASES SIMPLIFIED. a loss of profits would result from delay on his part, lie would have been answerable. But it did not ap- pear that he knew that the want of the shaft was the only thing which was keeping the mill idle, and there- fore ho could not be lia])le for the loss of profits. Hadleij V. Baxendale is justly regarded as the lead- ing case on the subject of damages arising from a breach of contract. It lays down the three following rules : 1. Damages Avhich may fairly be considered as nat- urally arising from the breach of contract, according to the usual course of things, are recoverable. 2. Damages, not arising naturally, but from circum- stances peculiar to the special case, are not recover- able unless the special circumstances are known to the person who has broken the contract. 3. Where the special circumstances are known to the person who breaks, and the damage complained of flows naturally from the breach of, the contract under those special circumstances, such special damage is recoverable. PENALTIES AND LIQUIDATED DAMAGES. KEIUBLE V. FARREN. [GBins. 141.] Courts are very averse to enforcing exorbitaiU: agreements as to damages which parties sometimes in- PERFORMANCE OF CONTRACTS. 127 troduce into their contracts for a violation of their pro- viijions. Something more than half a century ago an actor and a manager sat down and made an agreement. The actor on hi.s part undertook to act as principal comedian at the manager's theatre (Covent Garden) for four seasons, and in all things to conform to the regulations of the theatre ; while the manager agreed to pay the actor £3 65 Sd. a night, and to allow him a benefit once every season. And the agreement con- tained the clause, " that if either of the parties should neglect or refuse to fulfil the said agreement, or any part therenf, or any stipulation therein contained, such party should pay to the other the sura of £1,000, to which sum it was thereby agreed that the damages sustained by any such omission, neglect or refusal should amount ; and which sum was thereby declared by the said parties to be liquidated and ascertained damages, and not a j^enaJty or penal sum, or in the nature thereof.'" For some reason or other — it does not matter what — during the second season the actor refused to act, and the manager now went to law to recover the whole £1,000 mentioned in the agreement, although he was quite prepared to admit that he had not sustained damage to a greater extent than £750. The mtmager, however, did not succeed. '* That a very large sum," saidTiNDALL, C. J., "should become immediately payable in consequence of the non-pay- ment of a very small sum, and that the former should not ])e considered a penalty, appears to be a contradic- tion 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 re- 128 LEADiya cases sijiplified. lieve, by directing juries to assess the real damages Bustained b}'- the breach of the agreement." And so the manager had to be content with £750. FRAUDULENT CONVEYANCES. TWYXE'S CASE. [3 Coke, 80; 1 Smith's Ld.Cas. 33.] A farmer named Pierce got deeply into debt ; and amongst his creditors were two persons named Twyne and Grasper ; to the former he owed £400, and to the latter £200. After repeatedly dnnning the farmer in vain, Grasper decided to go to law for his money, and had a writ issued. As soon as Pierce heard of this, he took the other creditor, Twyne, into his confidence, and in satisfaction of the debt of £400 made a secret conveyance to him of everything he had. In spite of this deed, however, — in pursuance of the nefarious arrangement between them, — Pierce continued in possession just as if he had never made it. He sold some of the goods, sheared and marked some of the sheep, and in every Avay acted as if he vrcre the mon- arch of all ho surveyed, and Twyne had nothing to do with it. Meanwhile Grasper went on quietly with his action, got judgment, and consequently the assistance of the sheriff of Southampton, who appeared one day at PERFOR31ANCE OF CONTRACTS. 129 the homestead with the intention of carr3Mng off in Mr. Grasper's interest whatever he might ehancc to find there. This proceeding Twyne, who suddenly ap- peared on the scene, strongly ol)jected to, for, said he, " everything on tiiis farm ])elongs to me^ not to Pierce," and in proof of his assertion, he produced the deed of convej'ance. The question then was whether this deed of convey- ance was void within the meaning of an act of Parlia- ment called the 13th Elizabeth (from l)eing passed in the thirteenth year of the reign of that public-spirited queen), which provided that all gifts and conveyances, whether of lands or chattels, made for the purpose of de- lavino; or dcfraudin<>- creditors, shall be void as airainst such creditors unless made upon a valuable consideration and bona fide to some person not having notice of the fraud. It was pretty clear that Farmer Pierce's gift was for a valuable consideration ; but it was not bona fide, and therefore it was within the statute, said the court, for the following six reasons : 1. It was impossible that anybody could really be so generous as Farmer Pierce had proposed to be. He had given away everything he had in the world, even down to the boots he was wearing. Such self- denial coidd only be the cloak of fraud. 2. In spite of his r.pparent liberality Farmer Pierce did not let one of the things go, but '* con- tinued in possession, and by reason thereof he traded and trafficked with others and defrauded and deceived them." 3. The conveyance was made in secret. This- was a very suspicious circumstance. If there was uos- 130 LEADING CASES SIMPLIFIED. fraud why was there so much mystery about it ? Why was not it done openly ? 4. It was made when Grasper liad ah-eady com- menced an action and evidently meant lousiness. 5. There was a trust between the parties, and *• trust is the cover of fraud." 6. The deed alleged that the gift was made "hon- estly, truly and bona fide,'' and that was a very sus- picious circumstance in itself. RECOVERY OF MONEY PAID UNDER MISTAKE. ]MARRIOTT V. HA3IPTOX. [7 Term Rep. 269; 2 Smith's Ld. Cas. 393.] This case should impress the student with the wis- dom of taking care of the receipt on those rare occa- sions when he pays his tailor's bill. Hampton, possibly, was not a tailor ; but he was no doubt a tradesman of some sort, and in the course of his trade sold goods to Marriott. These Marriott duly paid for and obtained a receipt. But, instead of carefully put- ting it where he could find it if he wanted it, he jmt it where he could not find it . By-and-by Hampton , — re- lying, it may be, on his knowledge of Marriott's care- PERFORMANCE OF CONTRACTS. 131 Ipps jyentlemanly h:il)its, — soiit in his bill riirain with the luv of a h)ng-sufferini^ and ill-used creditor. Mar- riott had a distinct rccollcftiou of having paid for the trousers, and said so. IIani[)ton, however, challenged him to show paper, and though Marriott looked high and low for the document, it could not be found, and, as Iiami)ton brought an action, he was obliged to pay over again. But it came to pass that after a while the missing recei[)t turned up, and Marriott carried it in triumph to Hampton's shop. "Yes," said that respectable tradcsniaii, " it seems right enough, I own ; but cx'cuse me if I say that I have got the money, and I intend to stick to it." Marriott now went to law to force hira to repay the money, but the student will be grieved to hear that his efforts were not crowned with the suc- cess he deserved. Interest reipuhlicce id sit finis litium. It is the interest of the state that litigation should cease, is an old maxim of the law ; and all the judges agre<'d that law suits must stop somewhere. Said Lord Kenyon, C. J. : "If this action could be maintained I know not what cause of action could ever be at rest. After a recovery by process of law there must be an end of litigation, otherwise there would be no security for any person." ^ 1 So, if a man pays over money with a full knowledge of tho facts, but mistaking the law of tlie case, he cannot recover it back. A sea captain once on a time made a blunder of this sort. He had broniht home in his ship a large quantity of treasure, a part of ■which he gave to a certain admiral under whose convoy he had sailed, not at all in a spirit of gratitude, but believing that he was bound by law to pay it. By-and-by he discovered that the law did not compel him to do anything of the kind, and he brought an ac- tion to get it back, but did not succeed. But if the mistake is one 132 LEADING CASES SIMPLIFIED. yill. — Sales. WHEN SALE COMPLETE, PROPERTY PASSES AT ONCE. TARLING V. BAXTER. [6 Barn. & Cress. 3G0.] On January 4, 1825, it was in writing agreed be- tween Mr. Baxter, and Mr. Tarling, that the former should sell to the latter a stack of hay, then standing in his field, at the price of £145. Payment was to bo made on February 4th, but the stack was to be allowed to remain where it was till May-day. It was not to be cut till paid for. This was held to be an immediate, not a prospective, sale, so that when on January 20th the stack was accidentally burnt down, the loss fell on Tarling, the buyer. *' The rule of law," said Bayley, J., *'is that where there is an immediate sale, and of fact it is different. Mr. Wheadon found out to liis gratification that this was so, after a passage at law with Mr. Olds. The foi-mer had bought a lot of wheat of Olds, the quantity beingestimated by the size of another pile which both supposed to contain a certain num- ber of bushels, but which subsequently was discovered to contain only that number of half bushels. This being a mistake of fact, Mr. Wheadon succeeded in recovering the excess payment. Wheadon fa. Olds, 20 Wend. 175. SALES. 133 nothing remains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee, and then all the consequences re- sulting from the vesting of the property follow, one of which is that, if it be destroyed, the loss falls on the vendee." UliLESS SOME Til IXG REMAINS TO BE DONE. GIBBS V. BEXJAMEf. [45 Vt. 124.] On the edge of Mr. Gibbs' farm, on Lake Champlain, there was a quantity of wood cut and piled, which Mr. Benjamin agreed to purchase at $3.50 a cord. It was }nirt of the contract that the parties should meet and ascertain the quantity. This they did a day or two later, but they had scarcely commenced the meas- urino" 'hefore thoy disagreed on the method of doing it. This issue grew into a controversy which was not set- tled when a flood came along and carried the whole of the wood into the lake. Then Gibbs sued Benjamin for the price, claiming that the latter having previously bought the wood must stand the loss. But the court decided that tlie property had never passed to Bejamin tind that he was, therefore, not liable for the price. " The principle is well settled, and uniform in all the 134 LEADING CASES SIMPLIFIED. cases," said Eedfield, J., " that when anything re- mains to be done by either or both parties, ])i'ecedent to the delivery, the title docs not pass. And so in- flexible is the rule that when the property has been delivered, if anything remains to ])e done by the terms of the contract before the sale is complete, the prop- erty still remains in the vendor. The contract must be executed to effect a completed sale, and nothing fur- ther to bo done to ascertain the quality, quantity, or value of the property. Tlie general rule in relation to the sale of personal property is, that if anything re- mains to be done by the seller before delivery, no property passes to the vendee, even as betvv'ccn the parties. This rule of law, applied to the facts as re- ported in this ease, retains the property in the wood in the plaintifT, and leaves the contract executory and as a sale incomplete." WARR^INTIES. CHAXDELOR v. LOPUS. [2 Cro. 2; 1 Smith's Ld. Cas. 238.] In the da3^s when superstition was rife — for it was half a century before Sir Matthew Hale began to burn witches — it was generally thought that a bezoar stone BALES. 135 w:\s ii charm against most of the ills of life ; and such stones accordinirlv brought big prices. Mr. Lopus had a pardonal)lo desire to bo exempt from as iiiaiiy of the ills of life us possible, and went to Chandelor's shop — Chandelor was a jeweller — and paid £100 for a stone that the tradesman distinctly told him was a bezoar. Mr. Lopus went away a happy man, but after a short time, finding ho was not so free from the ills of life as ho expected to be, his suspicions were aroused. He made inquiries, and discovered that his fancied treasure was not a bezoar at all, and was decidedly fitter for mending the highway than for curing auA'body's neuralgia. Under these circumstances, Lopus went to law with the jeweller who had sold him the stone. But he failed, for he was unable to give satisfactory answers to two questions which the judges put to him, viz. : — 1. Did Ckandelor warrant this stone to be a bezoar? <'No," replied Lopus, gloomily, "I can't say he exactly warranted it. But he certainly said it was a hezoarJ' "Very likely," said the court, "but saying isn't warranting. You cannot recover in contract." 2. Did Ohandelor, when he told you that it ivas a bezoar, know that it ivas not? " How on earth can I tell," replied Lopus, " what the man knew, or did not know? " " Then," said the court, " neither can you recover in tort." The probabilities are, that if Lopus had been a liti- gant of to-day, he would have succeeded on both points. He would have hit the jeweller in contract because " every affirmation at the time of the sale of 13(3 LEADING CASES SIMPLIFIED. a personal chattel is a loarranty if it appears to have been intended as such," and Chandelor's assertion that the stone was a bezoar would, no doubt, be con- sidered sufficient. He would have succeeded in tort^ because the fact that the defendant was a jeweller would be damning evidence that he knew one stone from another. IMPLIED WARRANTY OF QUALITY OF GOODS. JONES V. JUST. [L. R. 3 Q. B. 197.] Jones & Co., Liverpool merchants, agreed to buy from Mr. Just, a London inercliant, a number of bales of manila-hcmp, which were expected to arrive in some ships from Singapore. The hemp did arrive, but, when it was examined, it was found to be so much damaged that it would not pass in the market as ma- nila-hemp ; and Jones & Co., who had paid the price before the ships arrived, had to sell it at seventy-five per cent of the price which similar hemp would have realized if undamaged. This was an action by them airainst the seller, who was admitted to have acted quite innocently in the matter, to recover the differ- ence ; and it was held that he must pay it, on the ground that in every contract to supply goods of a SALES. 137 specified description, which the buyer has no oppor- tunity of inspecting, the goods must not only corre- spond to the spccitiod description, but must also be saleable or merchantable under that description. The maxim caveat emptor (the buyer must look out for himself) generally applies as to the quality of goods sold, and unless there is au express warranty there is no warranty at all. But a warranty is implied in the following cases : — 1 . AVhen goods are sold by a trader for a particular purpose of which he is well aware, — e.g., copper for sheathing a ship,i or a rope for hoisting goods,^ or fertilizing manure for a farm ,^ or boxes for packing tobacco in, ^ there is an implied warranty on his part that they shall be reasonably fit for the purpose for which they are bought. 2. AVhen the contract is to furnish manufactured floods they must be of a merchantable quality. 3. In the case of a sale by sample there is an im- plied undertaking that the sample is fairly taken from the bulk. 4. The custom of a particular trade may require a warranty where none is expressly given. ^ 5. On the sale of chattels there is an implied war- ranty of title ; i.e., that they are the property of the purchaser.* * Jones V. Bright; 5 Bing. 633. 2 Brown v. Edgington, 2 Mac. & G. 279. 3 Mason v. Cbappell, 15 Gratt. 672. * Gerst V. Jones, 10 Cent. L. J. 150. * Lawson, Us. & C, sect. 158. "Thurston v. Spratt, 32 Me. 202; Williamson v. Simmons, 34 Ala. 691. 138 LEADIXU CASES SIMI'LIFIED. WABBANTT MUST BE DURING COURSE OF SALE. HOGIXS V. PLYIMPTON. [11 Pick. 07.] The plaintiff purchased of the defendaut a quantity of wine in bottles. After the sale was consummated, and the defendant had received payment in negotiable paper, ho wrote out a memorandum of the sale, which he sent to the plaintiff. In this the wine was described as " good fine wine." But when the plaintff camo to open the bottles, he found that it was anything but "good fine wnne," — in short, it was very bad sour wine. Then the plaintiff brought an action alleging that the description of the liquor in the memorandum of sale was a warranty that it was good fine wine. But the court held that.it was not necessary to decide whether this was so or not, for the reason that the strongest kind of a warranty, if made after the sale is completed, is invalid. To support a warranty not given in the course of the sale, there must be a new consideration ; for the consideration given for the goods is exhausted hy their transfer without a warranty, and there is nothing to support a subsequent warranty. PRINCIPAL AND AGENT. 139 IX. — Pkes^cipal A^^) Agent. SPECIAL AGENT MUST PURSUE AUTHORITY. BATTY V. CARSWELL. [2 Johns. 48; 1 Xva. Ld. Cas. 653.] Mr. Abner Carswell, at the solicitation of his brother, who wimted to raise some money, told his agent that he might sign his (Abner's) name to a note for $250, payable in six months. A few days after, the brother and the agent got together, and the agent signed Abner's name to a note for $250, payable in sixty days. The brother gave this note to a creditor. "When it fell dne, Abner refused to pay it, and the creditor sued him, but without success, the court deciding that as this was a special authority to do a particular thing in a particuhir way, the principal was not liable for the act of the agent in executing his power in a different way. 140 LEADING CASES SIMPLIFIED. DEATH OF PRINCIPAL REVOKES AUTIIORTIY. HARPEIl v. LITTLE. [2 Me, 14; 11 Am. Dec. 1.] In March, 1811, Mr. AVilliani Jackson, who resided iu Mexico, gave a power of attorney under seal to Har- per, authorizing him to sell his real estate in Portland, Maine. On the 8th of January, 1814, Harper, as Jackson's agent, sold the property to Little and received and pocketed the purchase-money. Between these two dates there had been a little misunderstand- m AOKNT, 145 agent, sue liini or his jir'mcipal at your pleasure. It is necessary, however, that you should make your election between thcni within a reasonable time. 3. "Where you deal with a man who is known to be an agent, but whoso pi-incipal is undisclosed, you may, on giving evidence that he is himself principal, sue him ; otherwise, you must sue his principal. 4. If a person signs a contract in his own name without disclosing the fact that he is only an agent, he \s prima facie to l)o deemed the person responsible ; and, on action being brou2:ht aijainst him on the con- tract, be cannot turn round and shuffle olf his lial)ility by saying that ho was only somebody else's agent. Parol evidence to prove such a thing would not be ad- mitted, and if he gets out of the scrape at all, it will be because it is quite clear from the rest of the docu- ment that he did not mean to bind himself personall3\ And, indeed (as we shall see in the next case), the person who has signed a contract in his own name raav still be liable, althougli \\\ the body of the contract he has expressly declared himself to be an agent. STOXE V. WOOD. [7 Cow. 453; 17 Am. Dec. 52!).] Captain Stone, part owner and master of the good ship George, and Timo N. Wood entered into a con- tract under seal, the provisions of which are not rele- 146 LEADING CASES SIMPLIFIED. vant to this history. It is enough to s:iy that the contract dGscril)ed Wood " as agent of J. & R. Ray- mond," and referred to him throughout " as agent," closing with an agreement by Wood " as agent," to l^ay a certain sum to the captain on certain conditions. These conditions being performed, the captain sued for the money, to which Wood replied that J. & R. Raymond were the persons to whom he ought to look. But the captain did not see it in this light, and neither did the Supreme Court of New York. They said that an agent signing a contract in his own name is person- ally bound thereon, even though he is descril)ed in it as an agent. The words *' as agent," are a mere de- scription of the person. SET-OFF AGAINST PRINCIPAL. GEORGE V. CLAGETT. [7 Term Rep. 359; 2 Smith's Ld. Cas. 185.] Messrs. Rich &Heapy carried on business in woollen cloths. For the purposes of their riches heaping they not only carried on business on their own account, l)ut acted also as factors for other people. A factor, it should be remarked, differs from an ordinar>^ agent in having the possession of the goods of liis principal which he sells. As Rich & Ileapy carried on all their business at the same warehouse, it would not be ob- PRINCIPAL AND AGENT. 147 vious when they were acting as prnicipals and when as agents. At the titno of our story, Messrs. Rieh & Henpy lia[)penod to have in tiieir possession as factors a largo quantity of goods belonging to Mr. George, a clothier of Frome, which goods were in their ware- house along with goods belonging to themselves. It happened just then that Messrs. Clagett were in want of such goods. They held a bill of exchange for £1200, accepted by Rich & Heapy, and as they saw no particular likelihood of getting paid, they thought it wouhl not be a bad phm to buy goods from them on credit, and deduct the amount of the bill from the pur- chase-money. In pursuance of this plan, Messrs. Rich & Ileapy sold them a quantity of goods ; making out a bill of parcels for the whole in their own names, and Messrs. Cln2:ett fullv believed that thev were dealing with pi'incii)als. Messrs. Rich & Heapy took the ffoods out of one wneral mass in their warehouse, so that a large portion of them reatly belonged to the clothier of Frome, the unfortunate Mr. George. This was an action l)y that gentleman against Messrs. Clngett for the price of the portion of the goods Avhich belonged to him, and which he said Messrs. Rich & Ileapy had sold as his agents. Messrs. Clag- ett said they did not know that Rich & Heapy were his jiixents or anybody else's aijents, and claimed to have the same right of set-off (that is to say, of de- ducting the above-mentioned del)t) which they would have had against Messrs. Rich & Heapy. In this con- tention thev were successful.^ ' " In all those cases of set-off," says an eminent jndjce in a later case, " t'.ie law endoa'-ors to meet the real honesty and justice oi. the case. Where goods are placed in the hands of a fact(>r foi 148 LEADING CASES SIMPLIFIED. AGENT EXCEEDING AUTHORITY LIABLE IN CO:^TRACT. COLLEX V. AVKIGHT. [7 El. & Bl. 301 ; 8 Id. G47.] Mr. "Wright was the hind agent of a gentleman named Dunn Gardner, and as such made an agree- ment with a Mr. Collen for the lease to hiin for twelve and a-half years of a farm of Dunn Gardner's. On the strength of this agreement Collen entered on the enjoyment of the farm ; but he soon found that there was a serious difficulty in the way. Mr. Dunn Gard- ner refused to execute any such lease, saying tli;it he had never authorized Mr. "Wright to agree for a lease for so long a term ; and this proved to be the f:ict. The disappointed farmer brought an action against the executors of the agent who had led him wrong, and the main question was whether "W^right's assuming to act as Dunn Gardner's agent to grant the lease sale, and are sold by him under circumstances that are calculated to induce, and do induce, a purchaser to believe that he is dealiug with his own floods, the principal is not permitted afterwards to turn round and tell the vendee that the character he himself has allowed llie factor to assume did not really belong to him. The purchaser may have bought for tlie express purpose of setting off the price of the goods against a debt due to him from the seller." These words put the rule and its reason very clearly. "But the case is different where the purchaser has notice at the time tliat the seller is acting merely as the agent of another. In that case, there would be no honesty in allowing the purchaser to set off a bad debt at the expense of the principal." Fish v. Kempton, 7 C. B. PRINCIPAL AND AGKNT. 149 amounted to a contract on his part that he had such authority. This was the view adopted, so that Wright's executors became liable to CoUen. "lam of ()[)inion," said Willks, J., delivering the judgment of the Court of Exche(|ucr Chaniboi-, "that a person who incbiccs another to contract with him as the agent of a third party, by an unqualified assertion of his being authorized to act as such agent, is answerable to the person who so contracts, for any damages which he niav sustain by reason of the assertion of authority being untrue. This i.s not the case of a bare misstate- ment by a person not bound by any duty to give in- forination. The fact that the professed agent honestly thinks that he has authority affects the moral charac- ter of his act ; l)ut iiis moral innocence, so far as the person v.- horn ho has induced to contract is concerned, in no way aids such person or alleviates the inconveni- ence and damage which he sustains. The obligation arising in such a case is well expressed by saying that a pci'son professing to contract as agent for another impliedly, if not expressly, undertakes to or promises the person who enters into such contract upon the faith of the professed agent being duly authorized, that tlio anthority which he professes to have does in point of fact exist. The fact of entering into the transaction with the professed agent as such is good consideration for the promise." 150 LEADING CASES SIMPLIFIED. PARTNERSHIP LIABILITY. WAUGH V. CAKVER. [2 H. Black. 235; 1 Smith's Lcl. Cas. 9C8.] In Fcbruarv, 1790, Enismiis Carver and William Carver, ship-agents, of Southampton, of the one part, and Archibald Griesler, ship-agent, of Plymouth, of the other i)art, entered into a rather wide-awake agree- ment for their mutual benefit. By the terms of this ao-reemont Giesler was to remove from Plymouth and settle at Cowes. There he was to establish a house on his own account, which the Carvers were to puff. Giesler, on the other hand, was to endeavor to per- suade all the ship-masters putting into Portsmouth to employ the Carvers. Arrangements were made for sharing in certain proportions the profits of their re- spective commissions, and the discount on the bills of tradesmen en)i)loycd by them in repairing the ships consigned to them. It was also expressly provided that neither of the parties to the agreement should be answeral)le for the acts or losses of the other, but each for his own. Accordingly, Giesler left Plymouth and came to Cowes, and in the course of carrying on his business there he incurred a certain dcl)t to the plain- tiff in this action, who now sought to make the Car- vers liable on the ground that the agreement made them partners with Giesler and responsible for his debts. It was held, in spite of the clause providing that PRINCIPAL, AXD AORNT. 151 each should be responsible for his own losses, that the agrocincnt did make the Carvers partners, for: — 1. He who takes the profits of a partnership must of necessity be ni.ide liable for the losses. (1 he stiideiil, however, must h>ok at the next case before taking this proposition for gospel.) 2. He who lends his name to a partnership becomes, as against all the rest of the world, a partner. COX V. HIC30IAX. [8 n. L. Cas. 2G8.] Messrs. Smith & Co., iron-merchants, becoming in- solvent, a deed of arrangement was executed between them and their creditors. By this deed Smith & Co. assigned all their property to five trustees to carry on the business under the name of the Stanton Iron Com- pany. The trustees were to manage the works as they thought fit, and to execute all contracts and instru- ments in carrying on the business. Amongst the creditors were two gentlemen who afterwards blos- somed into the defendants in this action. They sub- scribed and executed the deed, and were both named as trustees. One of them never acted at all ; the other acted for six weeks and then resigned. The other trustees, however, did jix't, and did the best they could for the business. In the carrving on of the business the plaintilf supplied the company with a quantity of iron-ore, and one of the trustees accepted 152 LEADING CASKS 8IMrLIFIED. bills of exchange in the name of the company for the price of it. The question was whether the trustees were agents for the defendants to accept the bills, and it was held that they were not; on the ground that the persons for whose benefit the business was carried on were not the creditors, but Messrs. Smith & Co. The real test of partnership lial)ility, the judge's said, was not partici- pation in the profits, but whether the trade was carried on by persons acting as the agents of the persons soujrht to be made liable.^ 1 Persons may be partners as rei^ards the world at lar£?e, al- thou^li thej' are not partners as between themselves. If a man holds himself out as a partner he is liable to a person who, for that reason, gives credit to the Arm. If it were not so, there would be even more imposition in business transactions than there already is. The law does not pi-escribe any particular acts which shall con- stitute a "holding out: " evidence may be given of anything the defendant has done which would induce others to believe that he was a partner, such acts having the effect of an estoppel by con- duct. As to the other point of these cases, it was for a long time thought that if it could be proved that the defendant shared the profits he was thereby proved to be a partner. The effect of the case of Cox v. Hickman is to destroy this doctrine; and the law now is that, though community in tlie profits is strong evidence of partnership, it is not conclusive evidence. There must always be an examination into the intention of the contracting parties. NEGOTIABLE PAPER. 153 X. — Negotiable Paper. THE REQUISITES OF A PROMISSORY NOTE. ItELLEY V. HEMMIXGWAY. [13 111. 11 ; Big. Ld. Cas. Bills & Notes 10.] HemmingWcay sued David Kelley on the following instrument : — " Castletox, April, 27, 1844. " Due Henry D. Kelley, $53 when he is twenty-one years old, with interest. ' ' David Kelley . ' ' Which Henry D. Kelley had assigned to him hy an indorsement in writing. The defendant pleaded that this was not a promissory note, which was a very vital question, because, if it were not a promissory note it was not assignable by indorsement, and Hemming- way had no right to l)ring an action on it in his own name. The court held the plea good, on the ground that to constitute a promissory note the money must be payable certainly, and not dependent on any con- tingency either as to event, the fund out of which pay- ment is to be made, or the parties by or to whom payment is to be made. A promise to pay a sum of 154 LEADING CASES BIMPLIFIED. money Avlicn a particular person is married is not a promissory note — he may never be married. So of a promise to pay when a particuhir shi[) rc'turns IVom sea — it may never return. Here the payment was to be made wlien Henry attained his majority, but that was an event that might never ha[)pen ; it was not cer- tain, but simply contingent on his living tliat long. The fact that he did live till he was twenty-one made no dillcrence. It was not a good promissory note when made, and it could not become so ex post facto. If the event was sure to take place it would not have mattei-ed how long a time elapsed. Therefore, if the instrument had been payable at Henry's death, it would have been a good promissory note, for if there is one thing that is certain it is death. TITLE TO BANK NOTES. MILLER V. RACE. [1 Burr. 452; 1 Smith's Ld. Cas. 697.] On a dark December night about the middle of the last century, the mail from London to the west was attacked by highwaymen. l\\ reply to the usual question, most of the passengers meekly remarked that, on the whole, tiiey valued their lives more than their money, and the knights of the road got away NEGOTIABLE PArKR. 155 with a fair bagful. Amongst other things taken was a ])ank-note for £21 10s., which a Mr. Fiiuicy, of London, was sending down by the general post to a client in Oxfordshire. The next day the news of the disaster reached the ears of Mr. Finney, who rushed off in wild haste to the bank and stopped payment of the note. Not many days after the plaintiff, who had come by the note quite honcstl3% and had given value for it, presented it at the bank ; but Mr. Race, one of the bank clerks, not only refused to cash it, but even to hand it back. Miller, therefore, sued him. When the case came before the Court of King's Bench, the defendant's counsel made such an ingenious argument that, though Chief Justice ^Mansfifld had no doubt that Mr. Miller ought to recover, he thought it proper to look into the case, and deferred rendering judgment for a week. But at the end of the week the ingenious lawyer was floored. The court was unanimously of opinion that property in a bank-note passes like cash by delivery, and a party taking one bona fide and for value, is entitled to retain it as against a person from whom it has been stolen. WHO IS A ''HOLDER FOR VALUE.'' SWIFT V. TYSOX. [IG Pet. 1 ; Big. Lrt. Cas. Bills & Notes, 486.] Swift held Norton & Keith's note. They on the other lumd had a bill of exchange accepted l)y Tyson, 156 LEADING CASES SIMl'LIFIED. and with this they paid their note to Swift. It is doubtful if Tyson Avould ever have been compelled to pay the amount of this bill to Norton & Keith, for they had induced him to accept it by a lot of false and. fraudulent representations about some lands in Maine, to which they had no title ; but Swift knew nothinsr, about those frauds, and he took the bill of exchange before it was due. But this did not console Tyson, who when Swift sued him on it, pleaded the rascality of Norton & Keith. But the Supreme Court of the United States decided the case for the plaintiff. '* There is no doubt," said Judge Story, in one of the ablest judgments of that great jurist, " that a bona fide holder of a negotiable instrument for a valuable consideration without any notice of facts w^hich im- peach its validity as between the antecedent parties, if he takes it under an indorsement made before the same becomes due, holds the title unaffected by these facts and may recover thereon, although as between the antecedent parties the transaction may be without any legal validity. This is a doctrine so long and so well estal)lished, and so essential to the security of ne- gotiai)le paper that it is laid up among the fundamen- tals of the law, and requires no authority or reasoning to l)e now brought in its support." The question then was whether a pre-existing debt was a sutBcient consideration to shut out the equities of the original parties under this rule. The court held that it was, and that Swift's title was not aHected by what had taken place between Tyson and Norton & Keith. ^ It is necessary to say here that the qnestLon decided in this case is one of those questions upon which entirely contrary views NEGOTIABLE PAPER. 157 NOTICE OF DTS HONOR, WHEN NECESSARY. BICItEllDIKE V. BOLL]>IAX. [1 Terra Rep. 405; 2 Smith's Ld. Cas. 54.] The bottom facts of this case, (the iiarnitivo of which is too complicated to be worth detailing) are as fol- lows : Spendfast being hard up for money, ;iud know- mg the weak good-nature of his friend Lighthcad, asks him to accept a bill of exchange for him, nssnring him that he wnll never be called on to pay it, and that it is really only a formalit3^ Lighthead consents, and though he gets no consideration whatever for it, accepts a l)ill drawn on him by Spendfast. The bill finally gets into the hands of Thriftman as holder, and he presents it to Lighthead for payment. Lighthead, of course, dishonors the bill, and uses strong language. Such being the state of the parties, Bicherdike v. Boll- man decides that Thriftman, the holder, can sue Spendfast, the drawer, without having previously given him notice that Light head, the acceptor, has dishonored the bill, the reason being that the drawer never had any effects in the hands of the drawee, and therefore could not lose any tiling by notice not being are held by different courts. In New York and a few States which follow the New York rule, Swift v Tyson is not regardcil as correct law on what constitutes a holding for value, while in the Federal courts, and in most of the State courts, the doctrine of Swift v. Tyson is affirmed and followed. See Big. Ld. Cas. Bills & Notes, 497, et seq. 158 LEADING CASES SIMPLIFIED . given Mm. " The l:iw requires notice to be given," said BuLLER, J., " for this reason, viz. : because it is presumed that the bill is drawn on account of the drawee's having effects of the drawer in his hands; and if the latter has notice that the bill is not ac- cepted or not paid, he may withdraw them immedi- atelv. But if he have no effects in the other's hands then he cannot be injured for want of notice." Bickerdihe v. Bollman is still recognized both in America and England as the leading case on this sub- ject. Later adjudications, however, without attempting to overrule it, do not nnike the right to notice depend upon the fact that the drawee had at the maturity of the bill, funds in his hands of the drawer, adequate to its payment. On the contrary the criterion is : had the drawer reasonable grounds to expect that the bill would be honored ? ^ XmAUTHORIZED ALTERATIONS VITIATE THE INSTRUMENT. IMASTER V. MELLER. [4 Term Rep. 320; 2 H. Black. 140; 1 Smith's Ld. Cas. 935.] We are not in a position to state whether the Mr. Miller who was defendant in this action was the same 1 SeeHopkirk v. Page, 2 Brock. 20; Big. Ld. Cas. Bill & Notes, 110. NEGOTIABLE PAPER. 159 Mr. Milieu- who took tlio bank-note from tlio robber, and liad a [)as.sa, 1788, PcH'l & Co., of Manchester, drew a ])ill for £1,000 on INIiller, payable three months after date to Wilkinson & Cooke. This bill they deliyercd to Wil- kinson & Ca)okc, and Miller afterwards accepted it. Wilkinson & Cooke then indorsed it for value to the pl:iinti!T. r>nt, before doing so, they quietly made one or two litth^ alterations, Avith the object of ini[)roying the document. March 2(Uli, they changed into March 20th ; and they stuck June 23rd at the top to indicate that the bill would become due on that day. These alterations, 1)eing to accelerate payment and unauthor- ized, were hehl to vitiate the instrument. " When it is admitted," said Chief Justice Eyre, " that the altera- tion of a deed would vitiate it, the point seems to me to be concluded. * * * If courts of justice were not to insist on bills being strictly and faithfully kept, alterations in them highly dangerous might take place, such as the addition of a cipher in a bill for £100, by which the sum might be changed to £1,000, and the holder having failed in attemptingto recoverthe £1,000, misrht afterwards take his chance of recovering the £100 as the bill originally stood. But such a proceed- ing would be intolerable." IGO LEADING CASES SIMPLIFIED. NEGLIGENCE IN DBA WING CHECK. YOUNG V. GROTE. [4 Bing. 253.] Mr. Young was a rash but liberal liusl)an(l. When he went away from homo he used to leave bhuik checks siirned for Mrs. Young to fill up according to her ne- cessilics. On one of these occasions she re(iucsted her husband's clerk to fill out a check for the sum of £50 and 2s. The clerk did so, writing the " fifty" with a small letter in the middle of the line, and put- tino- the figures 50, 2s a good distance to the right of the printed £. He showed it to her, and she told him to ffo and draw the money from the bank. He went ; but he stopped long enough on his way to in- sert at the beginning of the lino in which the word *' fifty " was written, the words '< three hundred and " and he deftly placed the figure 3 between the £, and the 50. He had now a check for £350 2s, which the bank ])aid without suspicion, and £300 of which he pocketed. Then Mr. Young tried to throw the loss on the bank ])ut he did not succeed, for this was the judg- ment of the court: *« A banker who pays a forged check is in general bound to pay the amount again to his customer, because ho pays without authority, and it is his duty to be acquainted with his customer's hand- writing. * * * Yet if it bo the fault of the cus- tomer that the banker pays more than he ought, he cannot be called on to pay again. * * * Here the XECOTIAHLH TAPER. 101 bliimc was all on oik; .side, and Youno; must sufTor for his own negligence." Chief Justice Bkst suggested two maxims which, if Mr Young had only known in time, would have saved him a good many hundred dollars. First, always Avrite your checks well to the left side ; second, never let your wife have anything to do with your check book. STOPPAGE IX TRANSITU. LICKBARIIOW V. MASOX. [2 Term Eep. C3; 1 Smith's Ld. Cas. 849.] The originator of this litigation was one Freeman, ofEotterdam, who had the audacity to become bank- rupt and confound the transactions of a great manv honest people. The dramatis j)ersonce are somewhat numerous, but the student will probably find the fol- lowing account reasonably clear and correct. Freeman sent an order to Messrs. Turings, of Mid- dleburg, to ship a quantity of corn to Liverpool. This order Messrs. Turings were rash enough to execute ; for they then considered Freeman to be, if not " the richest merchant in Eotterdam," at all events, a safe and sol- vent person. On July 22, 178G, Messrs. Turings put the corn on board the ship Endeavour, whereof the- 162 LEADING CASES SIMPLIFIED. muster was a Mr. Holmes. It is the duty of a master when he sets out on a voyage like this to sign bills of lading, by way of acknowledging that he has got the goods on }>oard. Holmes signed four of these bills of lading (usually, it may bo remarked, only three are signed) ; and of the four, one he pocketed, two were indorsed in blank by Turings & Co. and sent to Free- man with an invoice of the goods shipped, and the fourth was retained by Messrs. Turings. The sound ship, Endeavour, had not set sail very long when tidings came to the ears of the Turuigs that Freeman had become bankrupt. Rising to the occa- sion, they immediately sent off the bill of lading that remained in their custody to Messrs. Mason & Co., of Liverpool, with a special indorsement to deliver the corn to them for Messrs. Turings' benefit. Pursuant to this special indorsement Mr. Holmes, when he ar- rived !it Liverpool, delivered his cargo to the Masons. Li the meantime, however, and before he became bankrupt. Freeman had sent his two bills of lading to Messrs. Lickbarrow duly negotiated for a valuable consideration. Messrs. Lickbarrow, therefore, were anything but pleased to find that Mason & Co. had got hold of the corn, and they brought this action to try and make them give it up. In this they were success- ful. Judgment was given for the plaintiffs, on the ground that Sibona Jide assignment of the bills of lad- in"^ defeats the vendor's right to stop in transitu} I The first rule laid down in this case is to this effect : — When a man becomes bankrupt his goods are divided amongst his creditors, nobody getting the full amount that is due to him, but everybody getting a proportion of it. Thus, the person who has ■most recently been rash enough to intrust the trader wiiii guuds on NEGOTIABLE PAPER. 163 STATUTE OF LIMITATIONS. WHITCOMB V. WHITING. [Dougl. G52; 1 Smith's Ld. Cas. 703.] Whiting and Jones made a joint and several promis- sory note, which in the course of time camo into the hands of the plahitilf. Eight or ten 3'ears after the day on which it was made, the plaintiff sued Whiting, wlio had h)ng ago forgotten his little undertakinff. credit is the most to be pitied, for what was 5-esterday all his own, Is to-day part of the general fund from which each creditor derives the proportion of Ids debt. To prevent this injustice of one man's goods being used to pay another man's debts, tlie doctrine of stoppage in transitu is introduced. Therefore, although the vendor has sent off his goods, and parted with the property in them, to the vendee on a credit sale, he may, nevertheless, on hearing of that gentle- man's bankruptcy or general inability to pay his debts, stop the goods and retake possession of them at any time while they are on their journey to him, and have not come into his actual possession. The riglit to stop is personal to the vendor or consignor. It cannot, for example, be exercised by a surety for the price of the goods. But the vendor may, at any time before the transitns has ended, ratify the act of a stranger who stops the goods. The great ques- tion i'.i most stoppage in transitu cases is, was the journey at an end or not? The goods are on the journey as long as they are in the hands of the carrier as such; but the carrier may hold them as bailee for t'.ie vendee, as when the latter pays him a rent for warehous- ing t'.iein. Tlie second rule in this case is, that if, while the goods are in transitu, the vendee indorses the bill of lading (as Freeman did) to a person wlio takes it in the ordinary way of business and in per- fect good faith, the vendor's right to stop is at an end. Shirley Ld. Cas. 8G, 164 LEADING CASES SIMrLIFIED. "Yes," said Whiting, "that certainly must be my signature, and, now you come to mention it, I do re- member sonietliing about a promissory note. But, you see, the date of that note is more than six years ago; so I have the law on you." "That's all very fine, Mr. Whiting," replied the holder with a chuckle, " but you may be interested to learn that Mr. Jones, the gentleman whose name is with yours on this l)it of paper, has paid interest on it within the last six years ; and, if I'm not pretty well mistaken, that takes it out of the statute as against you as well as against him.'^ And so it proved. " Payment by one," said Lord Mansfield, C. J., " is payment for all, the one acting virtually as agent for the rest, and in the same manner an admission by one is an admission by all." " The defendant," said Willbs, J., " has had the advantage of the partial payment, and therefore must be bound by it." In expUuuition of this last remark it may be suggested that probably all the ten years Jones was punctually paying the interest, so that Whitcomb had no desire to enforce payment of the principal. Then Jones suddenly foundered in the ocean of insolvency, and it became necessary to see whether the other joint contractor was any good. liANDLOUD AND TENANT. 165 XI. — La^odloed a^td Tenant. PAYING BENT FOE DESTROYED PREMISES. ILVLLETT v. AVYLLE. [3 Jolms. 4-i ; 3 Am. Dec. 457.] Mr. Hullett leased a house from Mr. Wylie for the term of four years. The lease provided that the rent should 1)0 paid quarterly, and that the tenant should pay all taxes and assessments and keep the inside of the house in good order. Mr. Hallett took up his abode in his new quarters, and was very well satisfied until one day in Doeomber, barely nine months after he had taken possession, the house was burned down, and he had to rent another one. The landlord waited a year, and then sued Mr. Hallett for four quarters' rent, to which that gentleman replied that he had paid his rent promptly as long as the house stood, but he would be blest if he would pay rent after that time. " No house, no rent," was his motto. This certainly appeared just, but AVylie, who was something of a Scrooge, went to law about it, and, we regret to say, was successful. The court gave the tenant their sym- pathy and the landlord his money. *' This is a hard case upon the defendant," they said. IGC LKADING CASES SIMPLIFIED. <' aiul if the court could, consistently with settled and established principles, relieve him against the pa}'raent of the rent in question, we should most willingly do it. But it can not be done without overturning a series of decisions to which this court is bound to conform. We sit here '-jus dare,' not 'jus facere.'^ We think it may safely be said that there is not a case in the books where the destruction of the demised premises by fire has been held to excuse the tenant from the payment of the rent on an express covenant ; but in every case where a defence on that ground has been attempted, it has failed. The law on this point has, in one of the bite cases in England, l)cen considered so fully established that the court would not even hear an argument respecting it." INIoiiAL : When 3^ou sign a lease of a house, don't forget to have it provide that, in case the building is burned down, or rendered uninhabitable, the rent shall cease to bo payable. NO WARRANTY AS TO CONDITION OF PREMISES. CLEYES V. WILLOUGHBY. [7 Hill, 83.] The dwelling No. 3, Linden Row, Brooklyn, was for rent, and Mr. Cleves, who was hunting for a house, ' "To announce the law, not to manufacture it." LANBI.OKI) AND TENANT. 1G7 len '-cd it for five years at a yearly rent of $300, pay- able quarterh'. He was in such a hurry to get them that he "was not particular to cxamiue the premises. After the lea.se was siirned and he was prepared to ir.ove in, he found that it was not what ono would wish for a residence. The house was in horri- bly bad repair, the cistern leak(ul, the cellars were filthy and f;)ul — in fact it was not a place to take a fam- ily into at all. Mr. Cleves suggested to the hindlord that, unless he would repair and clean it up, he would not move in. This t!;o hindlord refused to do, so Mr. Clevos rented and occupied another house. At the end of three months there came a bill for a quar- ter's rent of No. 3, Linden Row, which Mr. Cleves, very n.iturally, refused to pay. Then the case came into court, and ]\Ir. Cleves' only plea was that the house was unfit for occupation. But the court re- fused to listen to it. They held that there was no im- plied warranty on the part of the lessor of a dwelling- house, that it is fit for habitation. " It is quite unnecessary," said Beardsley, J., "to look at the common-law doctrine as to implied covenants and war- ranties, or its modification by statute. That doctrine has reference to the title and not to the quality or con- dition of the property. The maxim caveat emptor (let the purchaser beware) applies to the transfer of all propcrt}'', real, personal and mixed, and the purchaser takes the risk of its quality and condition, unless he protects himself by an express agreement on the sub- ject." 168 LEADING CASES SOIPLIFIED. EXCEPT IT IS A FURNISHED HOUSE. SMITH V. ]>IAKKABLE. [11 Mee. &W. 5.] Brighton is a fiisliionable English watering-place, and Sir Thomas IMarrablc, who wished to spend the season there with his family, rented a furnished house of Ml-. John Smith, for a certain term. The student will note that it was a famished house he rented. On the IGth of September the Marrable family moved in. Three days later Mrs. John Smith received the following billet : — " 5 Brunswick Place, September 19, 1842. *' Lady Marral)le informs Mrs. Smith that it is her de- termination to leave the house in Brunswick Place as soon as she can take another, paying a week's rent, as all the bedrooms occupied but one are so infested with bugs that it is impossible to remain." The landlord sent a man to drive the bugs out, but there were too many for him and the family did leave as threatened. This was Mr. John Smith's action for the rent under his agreement with Sir Thomas. The jury having found that the bugs were the real cause of the moving out, the Court of Exchequer decided that they did the proper thing and Mr. John Smith was defeated. " A man who lets a ready furnished house," said Lord Abinger, C. J., " docs so under the implied condition or obligation — call it what you LANDLORD AND TENANT. 109 will — that the house is in a fit state to be inhabited. Suppose, instead of the particular nuisance which existed in this case, the tenant discovered the fact, unknown, perhaps, to the landlord, that lodgers had previously quitted the house in consequence of having ascertained that a person had recently died in it of plague or scarlet fever, would not the law imply that he ought not to stay in it? I entertain no doubt what- ever on the subject, and think the defendant Avas fully justified in leaving these premises as he did ; indeed, I only wonder that he remained so long, and gave the landlord so much opportunity of remedying the evil." ^ EFFECT ON TENANT OF MORTGAGE BY LAND- LORD. KEECH V. HALL. [1 Dougl. 21; 1 Smith's Ld. Cas. 65-t.] The owner of a warehouse in the city of London, moitjiaircd it to Mr. Keech, but remained in posses- sion . Soon afterwards, without saying a word to Keech on the subject, he leased it for seven years to Hall. 1 The principle of this case was expressly aflarraed in tho late case of Wilson v. Finch Ilatton, 2 Exch. Div. 336, where the tenant of a furnished house was held to be justified in leaving on account of defective drainage. And see Button r. Gerrich, 9 Cush. 80. 170 LEADING CASES SIMPLIl-IED. Keooh was very iiulignaiit at this. He said the mort- gagor had exceeded his rights, having no ])usiness to do siicli a thing -without consulting him, and that Hall was no better than a trespasser, and couhl be ejected without notice. And the judges coincided with his view of the matter. At first sight the tender-hearted student may think this a little rough on Hall ; but it is not really so ; for if the man had taken the trouble to make proper inquiry he would soon have discovered that the person he was dealing with was only a mort- gagor, and therefore that it would be a risky thing to take a lease from him. MOSS v. GALLIMORE. [1 Dougl. 279; 1 Smith's Ld. Cas. G89.] Mr. Harrison began the year 1772 by letting a house to Moss for twenty years at the rent of £40 a year. Times were bad with Mr. Harrison, and in i\Iay of the same 3'ear he mortgaged the property to a Mrs. Galli- more, a nice old lady, who wanted eligilde security for the little fortune which her late husband had left her. Moss was not in the least affected b}^ this mort- gage of the reversion. He went on quietly living in the house, and paid Harrison his rent pretty regularly up to November, 1778, when he was £28 behindhand. At that time, Harrison, having sunk deeper and deeper into the mire, became bankrupt, being at the LANDLORD AND TENANT. 171 time indebted to Mrs. Gallimore for interest on the mortgage in a sum greater than £28. Mrs. Gallimore gave Moss notice of her being mortgagee ,and told him to pay to her the £28 which he unqnestional)ly owed to somebody. Moss showed no di.s[)osition to yield to this demand, and finally the old lady made a raid upon his chairs, tables, grandfather's clocks, etc. This dis- traint Moss considered a trespass, and brought this action accordingly. It was held, however, that the worthy Mrs. Gallimore was quite justified in distrain- ing, for a mortgagee, after giving notice of the mort- gage to a tenant in possession under a lease prior to the mortgage, is entitled to the rent in arrear at the time of the notice as well as to what accrues after- wards, and he may distrain for it after such notice. USAGES AND CUSTOMS. WIGGLES WORTH v. DAL.LISOX. [Dougl. 201; 1 Smith's Ld. Cas. 900; Lawson, Us. & C. 169.] Wigglesworth was, as his bucolic name alone might show, a farmer. By lease dated March 2, 1753, one of the Dallison family let him have a field in Lincolnshire for twenty-one years. In the last year of his tenancy, though he knew that he had to give up the land almost 172 LEADING CASES SIMPLIFIED. iminediiitely, he sowed his field with corn. In doing what might seem at first sight a rash and improvident act, Mr. Wigglesworth was relying on a certain local custom, which entitled an outgoing tenant of lands to his way-going crop, that is, to the corn left standing and growing at the expiration of the lease. Dallison's answer to tliis claim was that, if any such custom existed at all, it had no application to the present case where the terms between landlord and tenant had beea carefully drawn up in a lease by deed, and no mention made therein of any custom. The court, however, de- cided in favor of the custom, Lord Mansfield remark- in^thal , while it was just and reasonable and for the de- benefit of agriculture thut he who sows shall reap, it did not alter or contradict the agreement in the lease, but only superadded a right. LEASES FOR MORE THAN THREE YEARS .^ RIGGE V. BELL. [5 Term Eep. 471; 2 Smith's Ld. Cas. 177. J By parol merely, Rigge let a farm in Yorkshire to 1 Our friend, the Statute of Frauds, comes to the front again to regulate dealings inland as well as in "goods, wares, and merchan- dise." By the first section of tliat important law, it was enacted that (with the exception of leases for a term not exceeding three years) all leases of lauds, tenements and hereditaments not put in writing and signed by the parties or their agents, should have only the force and effect of leases at will. LANDLORD AND TENANT. 173 Bell for seven years, and Bell entered and paid rent. But the tenant did not give satisfaction, and Rigge de- termined to get rid of him. By the terms of the agreement Bell was to go out at Candlemas ; but Riggc's view was, as the lease, being for more than three years, and yet not in writing, as the Statute of Frauds required, operated merely as a tenancy at will, ho could make the man quit when he pleased, and was not bound by the terms they had agreed on. In this view ho found himself mistaken, for it was held, that " though the agreement bo void by the Statute of Frauds as to the duralion of the lease, it must vprjiilate the terms on lohich the tenancy subsists in other respects j as to the rent, the time of the year when the tenant is to quit," etc. CLAYTOK V. BLAKEY. [8 Term Rep. 3; 2 Smith's Ld. Cas. ISO.] Also by parol merely, Mr. Clayton let Blakey some land for twenty-one years, and Blakey entered and paid rent. Two or three j^ears afterwards his land- lord gave him notice to quit, and, as ho treated such notice with supreme contempt, sued him for double rent for holding over. To this claim Blakey raised the somewhat cool defence that (by virtue of sect. 1 of the Statute of Frauds, which directs that any lease for more than three years, not reduced into writing, shall 174 LEADING CASES SIMPLIFIED. operate only Jis a tenancy at will) he was only a ten- ant at will, and onght to have been so described in the plaintiff's declaration. It was held, however, that Blakcy was not a tenant at will, but a yearly tenant, and therefore the plaintiff's pleading was good enough to hit him. This decision seems, at first sight, rather extraordin- ary. The Statute of Frauds distinctly says, that all leases by parol for more than three years, shall be ten- ancies at will only. The decision intervenes and says : *' No, they shall be yearly tenancies," thus putting the tenant in abetter position than the statute left him in. The accepted explanation is that the statute's inten- tion was that the estate should be an estate at will to begin with, but that when once created, it should be liable, like any other estate at will, to be changed into a tenancy from year to year by payment of rent, or anything showing an intention to create a yearly ten- ancy. But if there were no circumstances showing such intention, the estate would remain an estate at will. AGRICULTURAL FIXTURES. EL WES V. ]\IATVE. [3 East, 38 ; 2 Smith's Ld. Cas. 228.] Toward the close of the last century, Elwes let a farm at Bigby in Lincolnshire to Mawe for twenty-one LANDLORD AND TKNANT. 175 years ; and during liis tenancy Mawo conceived and carried out various improvements for the more profita- ble occupation of the land. He built a beast-liouse, a carpenter's-house, and a pigeon-house, among other things. By-and-by tlio twenty-one years came to an end, and the time came for ?Ia\ve to go. A few days before leaving, he set his laborers to work to pull down the beast-house, and the cai-penter's-housc, and the pigeon-house and whatever else ho had erected, and carted them all away, leaving the premises in just the same nude condition they were when be entered. When Elwcs heard of this he was very angry. He said Mawo had no right whatever to take away fixtures, it was flat burglary and so on, and finally he brought an action for waste. There Avas no doubt that by the old common law whatever a lessee annexed to the freehold during his term, unless it was a trade fixture, became the landlord's when he left, but Mawe's counsel argued that, considering the capital farming required now-a-days, and the elal)orate implements em[)loyed in the cultivation of the land, agriculture was every bit as much a trade as clock-making or iron-mongering. Moreover, they produced authorities which showed that hot-houses, posts, sheds, colliery-engines, and the like, had in various cases been held to be removable l)y tenants as being trade erections ; and they defied the plaintilFto show the difference between such things and the things the defendant had set up. AH this was very plausible, but the judges came to the conclusion that Mawe had no right to remove his erections. Th{;y said it would be a " dangerous innovation " to call agriculture a trade, and that the hot-houses and 17G LEADING CASES SIMPLIFIED. the otlier erections the dcfeiulaiit made so much of, were all more or less connectoel with trade. An anonymous modern poet has, in glowing hexa- meters, described the great trial wherein : — Elwes, the shrewd, was plaintiff, and Mawe, the thrifty, defendant, Mawe was lessee from Elwes of lands in the county of Lincoln, Messuage, out-houses, stables and barn, in the parish of Blghy ; Mawe, the thrifty, looked round him and scanned those premises wisely, Full six years he scanned them, beholding the farm's occupation 'Minished in use and worth for want of convenient buildiuL^s : Therefore he laid to his hand, and setup those convenient buildings, All at his own expense, a carpenter's-shop and a bcast-housc, Houses of fuel and carts, and a pump-house, of brick and niort;ir. Founded fa.st in the ground, and tiled, and of brick were the pillars. So he possessed his farm, and rejoiced in his useful buildi:ifTs, He and all men and all beasts of the field in the parish of Blgby. Time, which men count by moons, but the gods by terms and vaca- tions, Stood not nor halted the while, and the lease drew nigh to its ending. Therefore, did Mawe, the thrifty, bespeak liis own heart and take counsel. This way and that revolving the cost and the gain, and the chances Weighing, and thus at the last to himself did his heart make answer : "Lo, now, I leave these lands, and shall be to this farm as a stranger ; Soothly it little shall profit me then if the houses I builded All at mine own expense, the carpenter' s-shop and the beast-house, Houses of fuel and carts, and the pump-house, of brick and mortar, Joy to all men and all beasts of the field in the parish of Bigby, Stand there after my time, and be left a possesion to Elwes : Nay, but I surely will move their foundations, digging around them, Baze their walls and their stuff, the goodly bricks and the mortar, Keep for a gain to myself and leave the land as I found it." So then in all things he did in such wise as liis lieart had coun- selled, LANDLORD AND TENANT. 177 Razed those walls, and moved the foundations, digging around them, Carted away the stuff lor liimself, the ])ricks and the mortar. Elwes, the shrewd, sat aloft and beheld from his height of rever- sion These things wrouglit, and, beholding, his anger was kindled within him, Auger that moved him to deeds of might ami to Lincoln assizes. There he declared agaiasc Mawe for his injured estate in reversion, Claiming the buildiugs his own, their destruction a waste and a trespass. Great was the case and the point too grave for Lincoln assizes ; After a verdict for Elwes, the case was reserved for the full court. There Avhcre the king's own pleas were before his justices liolden, Counsel for Elwes and Mawe stood forth and strove with examples, Showing what things in old time were esteemed ingrown to the freehold, Rooted past lawful removal, what kept their movable nature, Much they debated of wainscot and window, of furnace and oven. Vats of the dyer and cider-mills and boilers and salt pans; Also, not least, a new thing, fire-engine, a blessing to coal mines. Twice in two terms they strove and the court considered its judg- ment. Judgment which afterwards, well advised, the chief justice de- livered, Stated the case and the question and spoke their considered opinion ; No right had the defendant, they held, to remove these buildings. Wisely he showed how the general rule bids cleave to the freehold Things by the tenant onco fixed, and explained the divers exceptions Suffered in favor of trade, the furnace, the vats, and the boilers. Also the new fire-engines, the cider- mills and t'.ie salt-pans ; Ever in favor of trade, such exceptions, no mention of farming; Further to stretch the exception to mere agricultural buildings. Not for a certain trade, were great and rash innovation. Wherefore Elwes, the shrewd, maintained his cause and his verdict Had great worship of all men there, and went homeward rejoicing, Bearing the postea, goodly-engrossed, the prize of the battle. ^ ' Leading Cases Done into English. By an Apprentice of Lincoln's lun. London, 187(). 12 178 LEADING CASES SIMrLIFIED. COVENAI^TS THAT ''RUN WITH THE LAND." SPEXCER'S CASE. [5 Coke, Ki; 1 Smith's Ld. Cas. IIG.] In the days of Qucoii Elizabeth there lived a gentle- man named Spencer, who, wise in his generation, married a woman with money. Thus erected into a landed pro[)rietor, he let a house and ""rounds to a meinher ot" the great family of Smith for a term of twenty-one years, and in the indenture Smith coven- anted to l)i;ild a brick wall on the lands let to him. Belbrc very long Mr. Smith got tired of his residence, ■and assigned the demised premises to a Mr. Jones without having made the least attempt at buildmg the brick wall. But Jones could not live there either, and he, in his turn, passed on the place to Clark. Meanwliile nobody had built the wall, and Spencer called on Clark to do it. " I'll see 3'ou — ," replied Clark, in the most forcible Saxon of the period ; " I've nothing to do with it ; I never undertook to build any brick walls." " Well, l)ut," said Spencer, "Smith did ; and 3'ou stand in his shoes." Argument, how- ever, was useless, and S[)enccr went to law. The judges had quite " a day " over this brick wall. *'And, after many arguments at the l)ar, the case was excellently argued and debated by the justices at the bench, * * * jn^j many ditrerenccs were taken and agreed concerning express covenants and cove- LANDLORD AND TENANT. 179 Hants in law, nnd which of them Avould run witli the land, and which of them are collateral and do not iro Avith the land, and where the assignee shall be bound without naminir him, and whore not; and where he shall not bo bound, aUhonuh he be expressly named, and where not." They decided in the end that Clark was not l)()niid to build the Avail, Smith not havinir covenanted f )r his assigns, l)ut only for himself as to a sul)jcct-mattcr not in existence at the time of the covenant, and they laid down the law on this subject very clearly to this effect : — A covenant " runs with the land " when either the liability to perform it, or the right to take advantage of it, passes to the assignee of the land. Some cove- nants run with the land, some do not, thus ; — 1. Suppose the lessee Avho makes the covenant omits all mention of his assigns, and the deed speaks only of himself. In that event — a. If the covenant has to do with sometJiing not in existence at the time the lease is made the assignee is not bound. This was precisely Spencer's case; the brick wall was " not in existence at the time the lease was in:ide," and has probably not been built yet. J). But if the covenant has to do something which t5 %7i existence at the time the lease is made, and is part of the demised lands, then the assignee is bound. If, forexam])le, Smith had covenanted to repair the house during the term, Clark would have been liable to per- form that covenant. The house was in existence at the tiuie the lease was made, and it was of course part of the demised lands. 2. Now sup[)ose the lessee Avho makes the covenant covenants for his assigns as well as for himself. 180 LEADING CASKS SIMrLTFIED. a. The assignee is of course liable in case 6 of 1, A mild exercise of a fortiori reasoning will show that this is so. If an assignee is bound Avhen he is not named, much more is he bound when he is named. b. But the assignee is also ])()und in case a of 1, provided that what is to be done is to be done on the demised premises. Clark, for instance, would have had to build the wall if Smith had covenanted for his assigns. c. The assiijnee is not lia])le when the lessee's covenant is collatei'al to the lands demised. If the lessee covenanted to build a crematory in the next county, very well, let him do it, there is no great harm in a crematory. But such a covenant would not bind his assigns even if the lease said so, for it would have nothinsr to do with the land demised. WAIVER OF CONDITION IN LEASE. DUIVEPOK'S CASE. [3 Coke, 119; 1 Smith's Ld. Cas. 85.] In the tenth year of the reign of Queen Elizabeth the college of Corpus Christi, Oxford, made a lease for years of certain land to a Mr. Bolde, exacting from him a covenant that he would not alien the property LANDLORD AND TENANT. 181 to anybody else without tlie college's consent. Three years afterwards the college, by deed, gave him permission to alien to anybody he pleased, and sooji afterwards Bolde availed himself of this permis- sion and assigned the term to one Tubb. Tubb, after a brief enjoyment of this world's goods, made his will devising the lands to his son, and went over to the majoritv. The son entered, and also died, but in- testate, and administration was granted to a person who assigned the term to the defendant Symms. Tlicreupon the wrath of the president and scholars of the college of Corpus Christi, in the University of Ox- ford, was kindled. Bolde had covenanted with them not to assign without leave, and such a covenant, they said, should have been observed by wiioever held the lands. Therefore, they entered for the broken condi- tion, and leased to Dumpor for twenty-one years. Duiupor entered, l)nt Symms re-entered, and for doing so Dumpor now brought this action of trespass against him, the college spectator of the tempest from the safe shore. Dumpor did not succeed : the case was de- cided against him on the ground, that " if the lessors dispen:50 with one alienation, they thereby dispense Avith all alienations after." " ' Dumpor' s case ' always struck me as extraordi- nary," said Lord Eldox in 1807, " but," he added rather regretfully, " it is the law of the land." ^ " The profession have always wondered at Dumpor's case," said Chief Justice Mansfield in 1812, " but it has been law so many centuries that we cannot now re- vc-rso it." ^ Nevertheless, it remained the law of Eug- * Brummell v. Macphcrson, 14 Ves. 173. ^ Doe V. Bliss, i Tauut. 73(3. 182 LEADING CASES SIMPLIFIKD. land until 18G0, when Parliament knocked it on the head by enacting that " every such license should, unless otherwise expressed, extend only to the permis- sion actually given." Dumpor's easels not, however, to 1)0 neglected by the American student, as it has been recognized and followed in this country in many subsequent cases early and late.^ GOODS FlilVILEGED FEO.V DISTEESS FOB RENT. SIMPSON V. HARTOPP. [Willos, 512; 1 Smith's Ld. Cas. 527.] John Armstrong was a stocking- weaver, and rented a small cottage of the defendant Harto[)p. Early in 1741 he hired a stocking-frame from the plaintilfSimp- son, at so much a week, for the purposes of his trade. About the end of the year, as tenants will do, he got behindhand with his rent, and Hartopp, as landlords will do, distrained on him. There was not much for the bailiifs when they came; indeed, so little that there was not enough to satisfy the rent in arrear without can-ying off Simpson's stocking-frame. This was done, although " the said John Armstrong's ap- 1 See Taylor's L. & T., sect. 28G; notes to 1 Smith's Ld. Cas. LANDLOIJD AND TKNANT. 183 proiitico was then weaving a stocking on the said frame." Wiien he heard of this, the anger of Simp- son Avas kindled, and he brought an action of trover for the stocking-frame, and succeeded in getting it restored to him ; for a hindh)rd has no business to dis- train on Avhat is actually in use at the time. The genei-al rule is, that ail personal chattels found on the premises, whether the goods of the tenant or somel)ody else, can be distrained for rent. iSimpsonv. Hartopp introduces us to the exceptions : — I. Some things are abmlutely privileged fro!n dis- tress ; under no circumstances can they be taken. Such things are — 1. Things in the personal use of a man (because the law does not wish to encourage breaches of the peace), as the hatchet with which a man is working, the clothes he is wearing, or the horse he is riding. 2. Fixtures (because damage would be done to the freehold in tearing them away). 3. Thinf]i:s sent to the tenant to be wrought on in the way of his calling ; this exemption is for the sake of trade ; no one would like his boots to be at the mercy of his col)blcr's landlord whenever they required mending. So a horse sent to a farrier's shop cannot be distrained for the rent of the shop, nor yarn sent to a -weaver's, nor cloth to a tailor's,^ nor sacks of corn sent to a mill to be ground, or a market to be sold. 4. Goods delivered to a common carrier or other person to be conveyed for hire. 5. Perishable goods (because such articles cimnot be restored in statu quo ante distraint ; they soon be- 1 Hoskins v. Paul, 4 Ilalst. 110. 184 LEADING CASKS SIMPLIFIED. come corrupt and uneatable) ; and therefore if I am behind in my rent, ray landlord camiot carry oflf my bread, and fruit, and milk.^ 6. Wild animals {feroe naturce, as the law-books call them) ; because no one has any valuable property in them. Dogs were once considered ferce naturce — one judge went so far as to call them vermin — but they are not now, and when an animal, naturally wild, has discarded its rouijh manners and settled down to play the humbler role of domestic pet — a tame fox or a dancing bear, for instance — it may be distrained as much as a horse or a donkey. 7. Goods in the custody of the law ; because already taken in execution, and because a court will not brook interference with property in its custody.'^ 8. Everything in the houses of ambassadors or other public ministers of a foreign state is by the law of nations exempt, l)eing considered out of the jurisdic- tion of the country.^ II. Certain other things are privileged conditionally. They can be taken, but only when there are not suffi- cient other goods on the premises to satisfy the land- lord's claim. Such things are — 1. The instruments of a man's trade ; e.g.^ a work- man's pickaxe, a doctor's stethoscope, a lawyer's "Leading Cases," or a stocking-weaver's frame. It would be contrary to public policy to take the means whereby a man lives. Of course, if the lawyer were actually reading his law-book, or the doctor using his surgical instrument, such things would be absolutely 1 Given v. Blann, 3 Blackf. 64. "^ Noe V. Gibson, 7 Paige, 513. ^ Taylor's L. & T., sect. 596. LANDLORD AND TENANT. 185 privileged, as being in their personal use ; so that there would be no necessity to make thera out to be conditionally privileged. 2. Beasts of the plough, and sheep.^ HI. By a variety of statutes in the different States (which the student must consult for himself) other exemptions from distress are made in addition to those at common law. Among these are the necessary tools of a mechanic, household goods to a certain value, and other articles. 1 Taylor's L. & T., sect. 5^7. 186 LEADING CASES SIMrLlFIED. XII. — Insuhance. CONCEALMENT OF MATERIAL FACTS. CARTER V. BOEHM. [3 Burr. 1!)05; 1 Smith's Ld. Cas. G18.] The <2:()veriior of Fort Marlborou2;h, in the Island of Sumatra, in the East Indies, came to the conclusion that there was considenilde danger of his fort being captured. He wisely, therefore, wrote to his brother in England, and asked him to get the fort insured for a year. The brother accordingly went to Boehni & Co., and that eminent firm insured Fort Marlborough against cai)tnre by " a foreign enemy " between Octo- ber l()th, 1759, and October IGth, 17G0. In April, 1760, the fort was captured by the French, and this action was brought to recover the insurance money. The insurers declined to pay, on the ground that cer- tain material facts contained in two letters whicli the jrovernor had written to his brother in September, 1759, had been concealed from them. In those letters the governor spoke of the weakness of his fort, and the probability of the French attacking it. "The question," said Lord Ellenbokough, in delivering the INSURANCE. 187 judgment of the court, " must always ])e whether there was under all the ch'cum.stance.s, at the time the policy was underwritten, a fair representation or a conceal- ment, fraudulent if designed, or though not designed, varying materially the object of the policy and chang- ing the risk undertaken to be run." Therefore, it appearing that the fort was little more than a factory, being merely intended for defence against the natives, 80 that its weakness was an immaterial fact as regarded the French, while the probability of their attacking it was a question which a person in England was in a better position to determine than the governor him- self, Boehm & Co. were ordered to pay up. FIEE INSURANCE — CUSTOM ART USE OF PRO- HIBITED ARTICLES. HARPER V. CITY IXS. CO. [1 Bosw. 520; 22 N. Y. 4-il ; Lawson, Us. & C. 157.] Everybody knows the great printing and publishing house of Harper & Brothers, New York. Many will also remember that about thirty years ago this exten- sive establishment was almost entirely destroyed by fire. Though the Harper's Avere well insured the com- panies did not pay up without some law suits. There 188 LEADING CASES SIMPLIFIED. was one policy for $10,000 in the City lusunuice Com- pany of New York which covered books and l)()ok materials, stereotype plates, paper, etc., contained in the premises and privileged " for a printing office and bindery." Called on, after the fire, to settle, the oflBcers of the company drew the Messrs. Harper's at- tention to one of those numerous conditions which, printed in the smallest of type and in the most out of the way place, every insurance policy contains. This condition was in these words : " The company shall not be liable for loss or damage by fire occasioned by cam- phene or other imilannnable THpiid." Now, as the fire had originated through tiie carelessness of a printer in dropping a lighted paper into a pan of fluid camphcne which he mistook for water, it looked like a desper- ate case for the firm. But they, like prudent men, straightway went to see a "good lawyer." They consulted William M. Evarts, and he advised them to bring an action on the policy, which they did. On the trial a number of witnesses testified thatcamphene was necessary for fine printing, for the purpose of cleansing the rollers of the machines. On this ground the com- pany were ordered to pay up, the principle being that where a certain trade or business is insured, the insurer is presumed to consent that all its customary incidents shall be allowed, though the policy does not permit it and may even, by its printed conditions, forbid it. By insuring the plaintiff's stock with the privilege of a printing office and book bindery, said the court, the use of such materials, including camphene, as were necessary in that business was allowed; otherwise the contract was a delusion and a snare. INSURANCE. 189 WHO MAT INSURE THE LIFE OF ANOTHER. COXXECTICUT, ETC., INS. CO. v. SCHAEFER. [94 U.S. 457.] Georsre .ind Frances had l)ceii married a few rears when an insurance agent appeared on the scene, and soon demonstrated what a good thhig it Avould he for them to take out a policy in his company on their joint lives, so that if he died she would have $5,000 to comfort her for her loss, and vic.e versa. But after thcv had got the policy the course of true love ran an^^thing but smooth. The end of it was that in two short years the judge was called on to cut the hymeneal knot — George and Frances were divorced. Then George married a Frances II. and Frances niar- ried a George II. By-and-by George I. died, and Francis I., when she heard the news, unlocked the bureau drawer, took out the policy, and concluded to open a bank account that afternoon, after she had called at the insurance-office for her money. The insurance manao;er sat in his counting-house counting out his money. He chuckled to himself as he read over the long list of innocents who had handed over their money for his company to keep. He smiled as he thought how the bum[) of confidence had been developed in some people, when, enter Frances. The manager pleasantly handed her a chair, mistaking her for an applicant for insurance ; but when she produced the old polic}^ on the life of her 190 LEADING CASES SIMPLIFIED. first George, his smile departed ; and his h)olc changed to one of blank astonishment, as she asked him if he would be jrood enough to write her a check for the amount, in order that she might get it in the bank be- fore three o'clock. " Pay 3'ou to-day? " he gasped. " You must be crazy, madam ; I never heard of such a thing. You quite take my breath away, I assure you." " Well, 1 am sorry if I have made a mistake, but docs not the policy say that you Avill pay me the money ' at his death ? ' and you know very well that he has been dead nearly a week." " I admit," an- swered the manager, " that it says < at his death,' but it really means nothing of the kind. You see, before we can pay you we have to find out whether the man is dead, what he died of, whether the answers he gave about the lives of his grandfathers and grandmothers and uncles and aunts were all correct. Of course, we know that he is dead, but not officially, madam, not officially. All this will take a long time, for I have the best reason for believing that we can establish, by correspondence with parties in Germany, that his maternal granduncle was sixty-nine years and eleven months old when he died, while, according to our de- ceased friend's statement, he should have been seventy. If this is so, it Avas a misrepresentalion, which, of course, releases us from liability, to say nothing of a report which one of our agents brings that an old acquaintance remembers his falling from a tree when bird's-nesting while a boy — another important fact which he concealed from us. Come back in a couple of years, madam, and we will then be in a position to say whether we will pay you or not." " Swindler," cried Frances, "I'll send my husband to talk to you." INSURANCE. 191" '