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THOMAS & COMPANY, l.s.s-.'. • mmmim f KnteitMl arcovdiiiK to Act of Coiifrress, in tlio year ISSi, by JOHN" 1). T.AWSOX, Jnthconiccof the Librarian i.f t'ongruss, at Wasliington, rronK of Xi von-, Tones Printing Co. PKEFACE. I All cMuleiivor bus boon made in the following i)agt's to present the Loading 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 lie induced to read it) the general reader will And it interesting, and it is promised that (if he cannot be prevented from reading it) the busy practitioner will find it both entertaining and prolitable. In this little book I have aimed at these results : 1. To crive the student a collection of the acknowledged leading cas^s of the commcm law. 2. To present these in a style which shall arrest his atttmtion, render it possible for him to ac(iuire their piinciples readily, and fix those principles in his mind unincumbered l»y unimportant and sometimes unintelligible 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 essentially from a ^vork 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 (hi) J I IV rUEFACE. and the reasons given, are stated as tlR\v are found in Coke and Story and Kent, and to tlic same end I have arranged the cases in logical oi'der, so that tlie hnv may he studied systematically and without confusing the many different points which the}' 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 the following i)ages more particularly to the notice of the "student," I am keeping in mind the fact that one does not cease to be a student by Itcing admitted to the bar. It is an old saying that tliere is no rule without an excep- tion, and 1 believe that this maxim is nowhere lietter illustrated than it is by the rules of the common law. JMan}' 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, lor the most of Smith's Leading Cases, wliich I have either rewritten or adapted, and also for several later ones. J. I). L. St. Louis, Mo., June, 1882. co:n^texts. FOUM OF .PART I. — FoR.MATiox OF Contract. Two llKQUISITES TO COXTKACT, VIA., PROPOSAL AND ASSEXT White V. Coi'lic's Bartholomew v. Jackson .... PuoposAi, Cannot ni; Rkth acted Aktku Acceptance — Boston and Maine A*. Co. v. Bartlett BiDDiNO AT Auctions — raijne v. Gate PuoposKR May Puescuiue Time, Place and Acceptance — Eliason v. Ilcnshaio . . , . Maclay v. Harvey But not oe Refusal — Felthouse v. Bindley .... Offeu must he Accepted within Reasonahle Time Lorimj v. City oj Boston . . Contkacts uv Post — Adams v. Lindscll Tayloe v. Merchants Fire Ins. Co. . Household Fire las. Co. v. Grant . Uncektain Agreement does not make Contract iSherman v. Kitsmiller .... Zaleski v. Clark Acceptance must ke Identual with Offer — Jordan v. Norton Acceptance of Altered Proposai Borland v. Guffey Proposal to Unascertained Person — Williams v. Carwardine .... rA(jE. 1 2 3 5 r> 7 8 1) 11 12 U l(j 18 19 20 22 (V) VI CO NT K NTS. MiSTAKK AS TO PKliSON foMUACTINi; - Boston Ice Co. v. Potter . MisTAKK AS TO SraiKCT Mattkk — K'lle V. KavanaiKjh . RliPUIJSKNTATIOXS AM) WaKUANTIKS — liehn V. Burness I'A(.K. . 2:5 . 20 PART II. t'oN'SIDKUATION. A COXSIDEUATIOX NeCESSAKV lO Sll'I'OlM' A ("oNTKACT — liann v. IhKjhes 28 AOKQIACY ()!■' CoNSIDl'.ltATIOX I>rM ATKUIAL — Iio what Pakty is Boind to do, Insiifk ii;n r — Beijunhls \. Xiii/eiit ........ iH Climber v. Wane 35 Moral Ohi.igatiox Insli'iicikxt — Cook V. Brmlleij . . . . . . . . 3(! Beaumont v. Reeve .37 Past Coxsideratiox — Balkleij v. L.jidon 38 Lamplevjh v. Brathwait 39 PAKT III. — Papties. Contracts of Infants Voidaiji.i: axd Void- Fetrow v. Wiseman .... Except for Necessaries — Peters v. Flemin2 Pkomisk to Axswkk kou Dkht, ktc, ok "Axotiikk" — Eastwood V. Ken^/oii .03 " Goods, Wauks, axo Mkuciiaxdisk " — Tisdale v. Harris . . ..... G6 Goods xot ix Existkxck — Lee V. Griffin 36 Value ok Goods — Baldeij v. Parker . . . . . . . .07 Acceptaxck axd Rkceh'T — Elmore v. Stone ........ 08 Shindler v. Ihmston 70 CoXTKACT CoXTAIXED IX SeVEUAL DOCI'MEXTS — Boydell v. Drummond ....... 71 "3f viii CONTENTS. PART V. — WuiTTKN CoNTUACTs AND Ohal EvroENCF;. PAGE. Oral Evidkncr not Admissiiilk — Goss V. Nu(je)it .... Pijm V. Cainphcll .... L.VTKNT AMIUGt ITY MAY HK K.tl'I.AINKI) — Sargent v. Adams .... But not " Patknt Amukji itv" — Aspden's Estate .... SUPPLEMKXTVnY CONTRACT MAY IJK SHOWN — Malpas V. Luiulo)!, etc., li. Co. Usages of Tijadk may bk Shown — Cooper V. Knne .... Soutier V. Kellermua Usage must not Coxthapict Contkact — BlackeM v. Royal Exchange Ass. C;. 74 7G 77 78 80 «1 85. PART VI. — Ili,i:(jal Contuacts. Contracts to Prevent Co.mpetition — Gulick V. Ward .... Agreements to Influence Officials — Tool Co. V. Norris .... Contracts Impudino the Administration of CoUins V. Illanteni .... Scott V. Arenj Contracts Violatino Law — Cowan V. Milbourn .... Contracts Violating Statutes — Pattee v. Greeley .... Immoral Contracts — Pearce v. Brooks . . . . Wagers — Good V. Elliott .... Contracts in Restraint ov Trade — Alger V. Thacher .... Mitchel X. Beynolds .... Justice — 87 88 . 8!) . 91 . 02 . 9.'? . 95 . 9R . 98 . 101 CONTENTS. Ix tDENOF;. I'AGE. . 74 . 7G . 77 . 78 . 80 . «1 . 85 87 88 8!) 91 02 93 95 9fi 98 101 CONTUACTS IX RksTUAINT OK MaIIUIAGK — Loice V. Pecrx . MAIlHIACiK BliOKAOI-; CoXTUACTH — Cnucfui'd V. littssell COUKT Wri-I- NOT AID ElTIIKK PaUTY — Ilohnan v. Jnhnsun EXCKPT WIIKKK IlLKOAL P[TUrOSI': IS NOT (;().M1'I.I:TEI) — Spring Co. v. Knowlton PAOE. .. 102 . 103 . 10« . 108 TART VII. — Pfufoumance uf Contkacts. DiSCIIAUdK HY xVCT OK PKOMISKE — Feck V. United States , , 110 DisciiAiuiK BY Act ok La\v — Baibj y. Dc Crexpigny HI Impossiiumty ok Pkkkokmanck. — Ta'jlurw Caldwell 113 Impossiiumty' by Act ok God — Ii()bi)is(}n V. Darinon . . . . . . .114 Deweijv. Union School District . 11(» RkNUXCIATION BkFOKE PKHFOltMANCK (ilVKS RuillT TO Sui: — Ilochstcr V . De La Tour 117 Frosty. Kniijht 118 CoNSTiaCTION OK CoNTUACTM — Itoe V. Tranmar .119 Brkacii of Pi«omi8K ok Makkiagk — Wrif/htnutn v. Coatcs 120 Atrhinsan v. Baker . . . . . . . .121 Willard v. Stone 122 An Entirk Contract cannot, hk Apportionkd — Cutter y. Foicell 123 Mf,asi:rk, of Pamagks ox Brkach of Contract — Iladley v. Baxendalc 125 Pknaltiks axi> Liquidated Damages — Kcmble v. Farren , 12() Fraudulent Ooxvevances — Ti{iyne''s Case 128 X CONTE>' S. I'AGE. Recovery of Moxey Paid uxdek Mistaki: — Marriott v. Hampton ....... 130 PART VIII. —Sales. When Sale Complete, Pkoperty Passes at Oxce — Tarlincj v. Baxter 132 Unless S()metuix(i Remaixs to he doxe — Gihhs V. Benjamin ........ 133 Warranties — Chandelor v. Lopus ........ 134 iMPLtED WaURAXTY OE QUALITY OF GoODS — Jones V. Jnst ......... 136 Warranty must re Durixg Course ok Sale — Ilor/ins v. Phjmpton 138 PART IX. — Principal and A(;knt. Special Aoext .mist Pursue Authority — Batty V. Carswell 139 Death of Prixcipal Revokes .Vuthohitv — Harper \ . Little ,. . . 110 COXTRACTS WITH AOEXTS OF UmjISCLOSKD PltlXcn'ALS — ratersonx. Gandaxeqni . . . . . . .111 Thomson V. Davenport 143 Stone V. Wood 145 Set-Ofe Against Piuxcipal — Geortje v. Cbujett 140 Agent Exceedlng Authouitv Liarle in Coxirac r — ColJen V. Wright . • 148 Partnership I.iaiulitv — Wauyh v. Carver .150 Cox V. Hickman 151 PART X. — Negotiable 1'aper. The Requisites of a Promissory Note — Ke.lley v. Hemmingicaij 153 •| PAGE. . 130 . 132 , 133 . 13-1 . 13(1 . 138 CONTENTS. XI PAGE. Title to Bank Notes — MiUrr V. lidce ,154 Who is a " IIoLoi.it fou Vau-k " — Swift V. Tijsoh 155 NOTICK OK DiSIIOXOI!, WIIKN XlOCKSSAHY — Bkkordike v. Bulhunn 157 UxAUTiioi!i7.i:i> Altkuations Vitiate the Ixstrumext — Master v. Miller 158 Negligexce IX DiiAwixo Check — Young v. Grote lOO Stoppage i\ Tuaxsitu — Lickbarrow v. Mason IGl Statute of Limitatioxs — Whitcomb v. Whiting 103 PART XI. — Laxdlouo axd Texaxt. 13!) 140 111 J 13 145 i4t; 148 150 151 PaYIXO ReXT FOU 1)ESTI!0YK1) I'kemises — JIallctt V. Wijlie No Wahkaxty as to Coxditiox ok Phemises — Clcvcs V. IVilloitijhb'j .... Except it is a Fchxished House — Smith V. Marrablc EEEECT 0\ TeXAXT OI' M()I!T(!Al!E BY LAXin.OKD- Kecch V. I fall Moss V. Gallinwrc ..... USA(iES A.VI) CrsTOMS — Wigglesinorth v. Dallison . ... Leases eoi! moije thax Three Yeahs — li'igg.- V. Hell Claytun v Dlakey ACUICULTUIIAL FiXTI KES — Ehi'c.s V. Mawe, COVEXAXTS THAT " RlX WITH THE LaX1> " — Spenccr^s Case Waiveh oe Coxditiox ix Lease — Dumpor''s Case . 1G5 . IGG . 1G7 . 169 . 170 . 171 . 172 . 173 . 174 . 178 . 180 153 «.WM.Wi Xll CONTENTS. Goona Pkivilkgf.d fkom Distkkss v*ni Eknt Simpson v. J/artopp TAOK. . 182 PART XII. — Insuuance. CONCKALMKXT OK ^MaTKHIAL FaCTS — Carter v. Borhm 18(! FlKK IXSI'RAXCK — Cl'STOMAUY UsK o:' PlIOIIiniTKl) AkTK I.IIS — Harper V. City Ins. Co 1.S7 Who may Ixsure tiii: Liki: ok Axotiikij — Conneclicut, etc., Ins. Co. v. Sehaefer .... 189 PART X III. — Bailments. TlIK DiKKEltKXT KlXDS OK BaILMKXTS — CoyijH V. Bernard Liabilities ok Ixx-kekpeus — Cayle's Case Berkshire Woollen Co, v. Proctor . RKsroxsiniLiTY ok Cauuikk ok PASSKXciKus Koi{ 1)i:kk Vehicle — Ingalls v. I}(7^s Railroai> Time-tarles and Coxthacts — Denton v. Great Northern It. Co. . POWEK OK CAniUEIi TO LllMIT LlAlHLITV — Ilollistcr V. 2k'owlen Liability kok Ixjcuy to Free Passkxgeii — Fhiladelphia, etc., It, Co. v. Derhy . THAVELLIN(t OX " FUEE PaSS " WITH CoXDITIONS — Itailroad Co, v. Lockicood .... Who Caimueu may Refi'sk to Oahhv — Tlmrstonw Union Pacijic It, Co. , What is ''Bacgaoe " kok wiik^ii CAintiEu is Rksi-onsih Neic York, etc.. It. Co. v Fraloff . TIVE -i: — 11)4 1 ;•!» 200 202 204 205 207 L09 210 212 I'ART XIV. — Ni;(;Li(iENCE. Injury Resi'ltixc; kuom Unintentional Accidext Broicn v. Kendall >15 '« I'AriE. . 182 . i8(; rici.Ks — . 187 . 189 194 199 200 ■:rK( Tivi: ■iiiu.i; . 202 . 204 . 205 . 207 . 109 . 210 212 . 215 CONTENTS. XIU PAGE. oxk must so usk his puopekty as not to injure ims Neighhou's — Fletcher v. Itylnnds . 216 Liability rou Injui:iks ijy Animals — May y. JBiirdett 218 SicLLiNd Poison with Harmless Label — Thomas v. Winchester 219 Removing Support of Land — ranton v. Holland 220 Persons Coming ox Another's Premises — Indcnnanr v. Dames 221 Injuries erom Non-repair of Buildings — Todd V. Flight 223 Res Ips.e Loquitir — Presumption t>F, Negligence from Accident — Byrne v. Boadle . 224 Responsibility <>f ^Master foi: Wilful Acts of Servant — McMamis v. Crickctt 225 Employer not Liable for Negligence of Independent Contractor — Ililliard \ . Ilichardson . 227 Liability of Mastek for Injury to Pellow-Servant — Priestley v. Fowler 229 Farwell v. Boston, etc., li. Co 231 Contributory Negligence — Butterjleld v. Forrester 233 Davies v. Mann 234 Imputed Negligence — Bennett \. Nexo Jersey li. Co 235 Contributory Negligence ov Children — Lynch v. Nurdin ........ 237 Contributory Nfgligence of Parent — Uartjield y . lioper 239 Proximate and Remote Cause — Scott V. Shepherd 240 Fent V. Toledo, etc., Ji. Co 241 PART XA\ — Miscellaneous Touts. Nuisances — St. IIelen''s Smelting Co. v. Tipping .... 243 fl^wljl XIV CONTENTS. PAfiE. Falsi; RioniESENTATioxs — Paslcfj V. Freeman L'l5 Lamjridge v. Levy i'48 Rights or Fixokus — Posskssion — rijKst'.Mi'riov — Annorij v. Delamiric ....... 251 "Ix.ii'Kv" WiTiiorr Damagk — xishhtj V. White 252 Damage Without " In.iikv" — Chusemore v. Jlichards ....... 2,'ill Tkespass — The Six Carpenters^ Case 25(i PowEHs OK SiiEHirrs — Semai/ne^s Case ........ 258 AcTioxs Agaixst Magistrates — C repps \. Burden :;'(;i Maliciois Pkoskcutiox — Munns v. Dttpont 2(2 Sl.AXnEI! — I)EEAMVTf»i:Y WoUDS, MHEN ACTION Alil.K AND WHEX Not — Pollard V. Li/on 2ii;? Lnmb'j v. Alldaij 2(U Damages in Actioxs or Tout — Vicars v. Wilcaeks .... ... . '>iX Lumley v, Gye . 2i;s No COXTHIIUTIOV ni-.TWEEX DeKEX;)AMS in Tokt — Merryiocather v. Nixan ^[V.) PART XVI.— Evii.KNd., Kt.:. Hearsay EvmKxcK — Didsbnry v. Thomas ^71 Declakatioxs itv Persox.s Sixce Deceased — Price V. Earl of Torrimjton 27(; Declakatioxs »y Deceased Persons Against tiikir In- terest — Ilighamv.Iiidgway ^77 PRE.SUMrTIOX OF DkaTH FROM AllSEXCE — Nepean v. Doe <,-^ CONTENTS. l'A(iE. . 2 1 5 . i'48 . 251 ESTOPPKLS — Duchess of Iu)igston\'i Case Local axd Tkaxsitohy Actions — Jlosti/n V. Fdhrigas . USH OK lIlCiinVAYS — Pl.KADING — Dovaston v. P<(>jiie . XV PAGE. . 27!) . 283 . 284 . 2,)(i 258 . 2(11 • 2( 2 1", AND 2(1;? • 2(:i 2f;n • • 2(;,s 2!;;) 271 27C. TiiK Pkincipai, Maxims OK tiik Law Taiji.k. ok AnnuKviATioxs . Index . 287 , 293 . 301 III I.\- . 27«. i TABLE OF CASKS. i i i A(l;iins V. Lindsell Alger V. Thacher Armory v. Delainirie . Ashby V. White . AspdcMi's Estate . Atchinson v. Baker Atherford v. Beard Ayrc V. Craven . Baily v. Do Crespigny Bainbridge v. Firinstone Baldy v. I'arkt'r . Bank of Colaml)ia v. Patterson Bartholomew v. Jackson Ratty 0. Carswell Baxter v. Portsmoutli . Beaumont v. Reeve Behn v. Burness Bcm;ett ■«, New Jerse}^ R. Co. Berkshire Woollen Co. v. Proctor Bickerdike v. Bollman Birkmyr v. Darnell Blackett v. Royal Exchange Ass. ('( Borland v. Guffey Boston Ice Co. v. Potter Boston and ]\Iaine R. Co. v. Bartlett. Boulton I'. Jones Box V. Jubb PAGE. . 11 . 98 . 251 . 252 .• 78 . 121 . !)7 . 205 . Ill . 29 . G7 . 53 . 2 . 139 . 51 . 37 . 26 . 235 . 2U0 . 157 57 . 85 . 20 . 23 3 . 25 . 217 (xvii) ■'-■wppi xvm TAHLE OF CASES. PAGE. Boydell v. Drummoiid 71 Bro!2;(l(Mi V. Marriott .... . 97 Brown V. Edginijtoii .... . 137 Brown V. Kondall .... . 215 Brunnnell v. jMacpherson . 181 BnlUlcy v. Landon .... . 38 Buiin V. Riker ..... . 97 Burgess v. Hnxy .... . 228 Buttorfiold V. Forrester . 233 B3'rne v. Boadle .... . 224 Carter v. Boehra .... . 186 Ca3'le's Case . 199 Chaiidelor v. Lopus . . _ . . 134 Chascmore v. Richards . 253 Clayton v. Blakey .... . 173 Cleves V. Willoiighby . . 1G6 Coggs V. Bernard . 194 Collen V. Wright .... . 148 Collins V. Blantern . 89 Collins V. Godefroy .... . 34 Connecticut, etc., Ins. Co. r. Schaefci . 189 Cook V. Bradley . 36 Cooper Kane .... . 80 Cornish v. Al)ingtou . . 281 Cowan V. Milbourn . 92 Cox V. Hickman . 151 Crosby v. Wadsworth . . 59 Crawford v. Russell . . 103 Crease v. Barrett . 274 Crepps V. Durden . , . 261 Cumber v. Wane . 35 Cutter V. Powell . 123 Da Costa v. Jones . 97 Dalbv V. India, etc., Life Ass. Co. . 192 TABLE OF CASES. XIX I'AGE. . 71 . 97 . 137 . 215 . 181 . 38 . 97 . 228 . 233 . 224 . 186 . 199 . 134 . 253 . 173 . :G6 . 194 . 148 . 89 . 34 . 189 . 3G . 80 . 281 . 92 . 151 . 59 . 103 . 274 . 261 . 35 . 123 . 97 . 192 Davies v. Mann . Debenhani v. Mellon . Denton V. Great Northern K. Co Dcwi'y V. T'nion School Dist. Dexter v. Spear . Didsbiiry v. Thomas . Ditchburn v. Goldsmith Doe V. Bliss Dovaston v. Payne Duchess of Kingston's Ca .e Dnmpor's Case . Duncan v. Baker Dut^^on V. Gerrich . . Eastwood V. Kenyon . ICIiason v, Ilenshaw Kllis V. Shetlield Gas Consumers' Khnore v. Stone Eltham i'. Kingsman . Elwes V. Miiwc . Evans v. Jones . Farwell v. Boston, etc., R, Co. Fehhouse v. Bindley . Pent V. Toledo, etc., H. Co. Fetrow v. Wiseman Flsli V. Kempton Fletchers i'. IJylands . Frost V. Kniglit . George v. Clagett Gcrst V. Jones . Gil)bs V. Benjamin Gilbert v. Sykes Given v. Blann . Godsall V. Boldero Co. I'AGE. . 234 . 47 . 204 . 116 . 266 . 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 1 XX TAHLE OF CASES. I'AOK. Good r. Elliott . 96 Goss r. \ii<:c'nt ...••• . 74 Gulic'k V. Wanl . . 87 Hivdlcy V. BaxiMiihilr ..... . 12.5 Ilallett V. Wylie . 16o Ilarpir v. City Ins. (' ; . 187 Harper o. Little ....■• . 140 Ilartlii'ld r. Kopci' ..... . 239 Hartley v. Kico ...... . 97 Iligliam r. Ridgway ..... . 277 Hill V. Kidd ...... . 97 Hilliard v. Kichardsoii .... . 227 Hochster v. Do. La Tour .... . 117 Hockenbury r. IMeyors .... . 32 IJogiiis V. Plyinptou . . . . • . 1.38 Hole V. Sitting IJouriu' K. Co. . 229 Hollistor V. Nowlen ..... . 20.'> Holinan c. Johnson ..... . 106 Holt V. Claroncieux . 44 noi)kirk V. Page ..... . 1.58 Iloskins c. Paul ...... . 183 Housc'hokl Fire Ins. Co. v. (.Jrant . 14 Hunt V. Peake . 43 Inderinaur v. Dames ..... . 221 Ingalls V. Bills . 202 Jolly I'. Recs ...... . 48 Jones V. Bright . . . . . . . 137 Jones V. Just ...... . 133 Jordan v. Norton ..... . 19 Keech v. Hall ...... ■. 169 Kelley v. Ilenimingway . • . . 153 Kemble v. Farren ..... . 126 1 PAGE. 74 87 125 1()0 1H7 140 2.".!) 97 277 07 227 117 32 229 2 or) 100 4 1 ir)8 183 14 43 221 202 48 137 13G 19 1G9 la3 y. 126 s ■# TAIUJ: OF CASKS. 4 Kii'ksiiill I^cwiTv Ci). r. Fiiriu-ss K*. ( Ki'oiu /'. Scliooiiiiiiik'cr Ivvlo r. KavHiiaiiiili LiiiiipU'inIi /". HnttlnvMit L;in /'. Levy Lvo V. (Ji'illiii Li{!li'i';)C!n r. Doe . . 278 New York Centnxl K. Co. r. Kriiloff . 212 Nichols x\ IMarshnid . . 217 Noe V. Gibson .... . 184 Pulfrey r. Portliiiid, etc., \\. Co. . 32 ranton r. Ilollaiid . 220 Pasley v. Fivi'inaii . 245 Paterson v. Oaiidaseciiii . 141 Pat tee v. (Jreeley . 93 Payiu! V. Cave . . .5 Pearee v. Brooks [)-) Peck V. r lilted States . . 110 Peter /'. Coini)ton 60 Peters /•. Fleminji' . 42 Philadelphia, etc., R. Co. r. D.-rl 207 Pollard V. Lyon . 203 Price V. Earl ot Torriiigt:)i: 27G Priestley v. Fowler 229 Pyin V. Campbell 7G Railroad Co. r. Lockwood . 209 Rami V. Hughes , 28 Reg V. Eliss .... Reynolds r. Nugent . Rigge V. Bell .... 274 34 172 Robl)ins I'. Ciiicago . Robinson v. Davison . 229 J 14 Roe V. Trainnar .... 119 Rust V. Gott .... 97 St. Helen's Smelting Co. v. Tipping Sargent v. Adams .... 243 Scott V. Ave:y .... Scott V. Sliei)herd . 91 240 .j TAllLi: OF CASES. will VAdK. I'AflE. . 221 Si'Mtoii r. IJi'iK'dict . . . . . , 47 . 278 Soiiiiiyiio's Ciisi' ...... . 2r>8 . 212 Slicrmiin v. Kitsmillcr . . . . . 16 . 217 SliiiidltT V. Houston . . . . . . 70 . 184 Short V. Stotts ...... . 59 \ Simpson r. Iljirtopi) . . . . . . 182 . 32 Six CarpontiTs' Cmsc, 'I'lit! . . . . . 2.-)(; . 220 Smith ('. Miirrnble . . . . . . 108 . 24-) Smith V. Wilson . 83 . 141 Souticr V. Kt'llorman . . . . . . 81 . 0.'] Spencer's Cuso . 178 5 Sprinj^ Co. v. Knowlton . , . . . 108 . 0') SI ilk V. :\ryric'k ...... . 35 . 110 Stone V. Wood ..,,.. . 145 . 60 . 42 Swift V. Tyson . 155 . 207 Tiuling V. Biixter . . „ . . . 132 . 20;] Turry v. Asliton . . , . . . . 224 . 270 Tiiyloe V. ]Merfh:nits' Fire Ins. Co. . 12 . 229 Taylor v. Caldwell . 113 . 70 Thomas v. Winehester . . , . . 219 Thomson v. Da,venport . , . . 143 . 209 Thorogood /;. Bryan . , . . . . 236 . 28 Thurston v. Spratt . . . . . . 137 . 274 Thurston v. Union Pacitlcj R. Co. . 210 . 34 Tisdale v. Harris . , . , , - . . G5 . 172 Todd V. Flight ....,, . 223 . 229 Tool Co. V. Xorrls . . . . . . 88 . 114 . 119 Twyne's Case ....,„ . 128 . 97 Viears v. Wilcoeks . . . , . . 2G6 . 243 Viseher v. Yates . . . . . . 97 . 77 . 91 . 2^0 Wiiin ?'. AVarlters . , . . . AVaugh ('. Carver . . . . . . 62 . 150 XXI v TABLE OF CAUSES. AVliatinaii v. Pcnrsoii Wlioadon r. OMs Wliilcoiiili r. \Miitiiii'- White V. Bliu'tt . White V. C'orlics . WiooU'sworth r. Dallisor. WiU:n'(l V. Stone AViiliaiiis r. (';ii'\v!ir(hiie Williiunsoii /'. Siiiiimiiis Wriohtmaii r. ('oatrs . P.VOE. . \:V2 . ir.8 1 . 171 . 122 . 22 . I. '5 7 . 120 Ydiinu' V. (irote . ;c.o Zalcski r. V\i\v\: IM P.VdK. 227 i;52 ir.-") 30 1 171 122 22 i;57 ■20 LEADING CASES SIMPLIFIED. I. — Formation of Contract. 100 IS TWO REQUISITES TO CONTRACT, VIZ. POSAL AND ASSENT. PRO- ..« WHITE V. CORLIES. .1 [■to N. Y. 4G7.] White was a huildor, and Jorlies & Co. were mer- chants, all doing business in Now York City. The latter had talked to White about refitting their offices, which negotiations culminated in their sendinsr a note to him in these words : — *' Upon an agreement to finish the fitting up of of- fices 57 Broadway in two Aveeks from date, you can begin at once." Now, if White had known as much about the law as he did six years later, he wouUl scarcely have ])()Ught his lumber and commenced work without tellinl). But tiiis is just what he did ; and when Corlies & Co. the next day iki- 2 LKAI>IN'(J CASKS snil'LiriKD. ('..iintcniiMiidod the nvdcw tlioiv .seemed nothing for him to do but to brii)«:- ;iii action iigain.st thoni for brcjieh of contract. But Iuto he made a mistake again, for till' Court of Ai>i)("als of New Yoric decided that there was no oontraot to sustain an action. They said the rule of law was, tliat wlien an otler is made by one party to another when they are not together, the acceptance o{' it by tlie other must l)e made munifest to him. Until that is done there is no contract. True, White hail made up his mind to accept, for he l)ought the hunber and commenced work. But a mental deter- mination, not indicated by speech or put in course of indication l)y act to tlie other party, is not an accept- ance which will bind the other. BARTHOLOMEW v. JACKSOX. [20 Johns. L'S; 11 Am. Doc. 287.] liartholomew and Jackson wcrc^ fanners and neigh- bors. A stack of Bartiiolomew's wheat was in Jackson's tield, which Bartholomew had promised to reinovi; in time tor ,lacksoii to })repare thci ground for sowing. The time having arrived, Jackson scnit a message to T?.,..fi>,.i, ,...,.„. ,.ri.:,.i. „.,.., ,i..i;,„.,.,.,i f,> i.v, r.,..>;i„ ;,. i.:_. ine uiiie ii;i\iiii; anivcu, .jju'ksuu .s(!iil a ine.ss;i:ic lo Bartholomew, which was delivered to his family in his absence, requesting the inuneiliate removal of" the wheat as he wanted to burn the stubble. Bartholo- mew's sons sent l)ack Avoi'd that they woidd remove it the next morning. 15ut the ne.xt morning they did not appear, and so Jackson, having commenced to burn lotliiiiii; for I for brctich 3 aallv l)ountl. AVhen Jackson saw I]arthoh)mew's stack in danircr of ])urninii: :ind Avent to work to remove it, he imi)liedly made an offer to Bartlioh)mew to remove it for him, l)ut it was an offer which was uncommunicated to, and unacccj)ted by Bartlioh)niew, and therefore there was no contract on whicli Bartholomew could l)e held. PROPOSAL C^mxOT BE RETRACTED AFTER ACCEPTANCE. and neiii'h- 1 tiackson's remove in or sowinix. nessau(! to mily in his 'al of the Bartholo- dd remove •i" they did 3cd to burn BOSTOX AXI> MATXE R. CO. v. BARTLETT. [;( Ciish. •l-l\\ Liiuiitl. Cas. on Con. 10:5.] " We will sell you our land for $20,000 if you will take it within thirty days," wrote the defendants in this imi)ortant case, to the officers of the Boston and Maine llaih'oad Company. The officers of the cor- poration thought over the nialter for some time, and Hnally several days before the thirty days had expired, notiHed the defendants that they would accei)t the oiler, tendered them the $l>(),000, and asked them to wmm LEADING CASKS SIMPLIFIKD. ])iil their s!_n-ii;itur('s to ii cU-cmI of the luiid in proper form. Then the defeiidunts tried to l):ick ont of the nirroenient, but the Supreme Judicial Court of ^las- sachusotts .said it was loo hite to do that. " Thougli llie writiiii:- siiiiied ^)y the .lefenchints was but an otfer, and ail oll'er wliieh ini^-ht be revoked," said the court, " vet, while it remained in force and unrevoked, it was a continuino- offer durinf the seller by bringing down the hannner or calling out "gone" or "sold," wiiicli was not done here until the defendant had retracted his oiler. An auction is not ina[)tly called Jams pvenitentim (a place ^m^ 6 LEADING CASKS SnU'LiriEI). for Topontancc). Every l)i(l is notliing more thiin an ollVr, wliich is not biiuling till accepted. PROPOSER MAY PRESClilBE TIME, PLACE AND FORM OF ACCEPTANCE. ELIASON V. HENSHAAV. [4 Wlioiit. L'25.j E. & Co. ofFercd to l)uy tlour of II., the answer to be sent by the return of the wagon which carried the offer. H. sent u letter of acceptance, l)y mail, to another place, which was not the destination of tiie waijon, havinii: reason to l)elievc that his answer would in this way reach E. &Co. more speedily. The Sui)reine Court of the United State:; held that E. & Co. were not bound by the acceptance so sent. An acceptance, said Mr. Justice Washington, communicated at a place dif- ferent from that pointed out by E. & Co., and forming apart of their proposal, im[)osed no obligation l)indlng upon them, mdess they had acquiesced in it, whiidi they declined doing. It is no argument that an answer was received at another place. E. & Co. had a right to dictate the terms n[)on which they would purchase the flour; and, unless they were com[)lied with, they were not l)ound hy them. All their arrangements may have been made with a view to the circumstance of place. re thiin an ACE AND 1 ^1 FOJtMATION OF CONTRACT. and they were the only judges of its importance. There was, therefore, no contract concluded between these 23fU'ties. MACLAY V. HARVEY. iswcr to bo 1 the offer, ther i)Iace, on, haviiiijf I this way e Court of lot bound said ]\Ir. l)laoo dif- kI forniiiii; )ij l)indini; vhich they iiswer was a right to rt'hase the tiic}^ were 1 may have of 1)1 ace. [00 111. 525.] A merchant wanted a milliner. In a neio-hborins: town lived Miss Maclay, who was open to an engage- ment of this kind. The merchant hearins: of her, dis- patched a letter offering the situation, and asking for her answer by return mail. Directly she had read the letter, she sat down and wrote her acceptance on a postal card. But instead of putting this in the post- office herself, she gave it to a small boy to post for her, which small l)oy carried it in his pocket, with his j^eg- toi)s and nK?rl>les, for four davs before he posted it. Meanwhile the merchant had made other arranirements, so that when Miss Maclav reached his store accordins: to the terms of the card which had linijrered in the pocket of the small boy, she was notified that her services were not required. The Supreme Court of Illinois hold that she could not obtain any damages for the breach of a contract without proving a contract to commence with. She had proved a proposal which required that she should assent by return mail, and as she had not assented by return mail (the small boy being her agent in the matter), but by a mail four days- 8 LEADIXCr CASKS SIMIT IFIEl). later, slie hiul f:iil('; Langd. Cas. on Con. 09.] The citizen.s of Boston and vicinity, on the morning of May 27, 1837, read this advertisement in their newspapers. " $1,000 reward. The frequent and successful repe- tition of incendiary attempts, renders it necessary that the most vigorous (efforts should bo mado to prevent their recurrence. In addition to tlio other precautions the reward heretofore oifered is doubled. One thou- sand dollars Avill be paid by the city for the conviction of any person engaged in these nefarious practices. " Samuel A. Eliot, Mavor. "May 27, 1837." There had been a similar advertisement otfering $500 reward in the newspapers the day before, and both continued to api)oar for about a week, when they ceased. No notice of anv time durini; which thev 10 IJ'.ADIMi CASKS SI.MI'LIFIKI). wiiuM lie in force, nrofanyrovocatioii of llio oTer, was ever iiKid.' hy \\\v city Miilhorilios. In Jauuiirv, 1.S41, Ihc Annorv IIoiiso iiiid scvcimI o(1um- Imihliiijrs in Bos- ton were bui-ni down. Loring and another person, suspect inir who the incendiary Avas, eonelndctl to hunt liini up and romsgrovo is in Worccstjr- shire, Mr. Lindsell was iijnorant enouurh to address his envelo[)o to " Bronisgrove, Leicestershire," and in con- sequence of that mistake his letter reached its destina- tion several days late. Directly Adams & Co. did re- ceive it, thinking tho otfer a decidedly good one, they wrote off and accei)ted it. But in tho meantime ]Mr. Lindsell had infei-red from their silence that they did not want his wool, and the day before their letter reached him, but alter it had heen posted, had sold it to some one else. This action was brought for non-delivery of the Avool, and the defendaut contended that ho had a riuht to retract his otfer till notiticd of its acceptance, and urged that he could not be bound on his side till tho plaintids were on theirs. But the court said : " If that wore so, no contracit could ever bo com[)leted by the post. For if the defendants were not bound by their otfer, when accei)ted by the plaintitfs, till the answer was received, then the plaintitfs ought not to be bound 12 LKAUINO CAfSKS ^^IMl'LIFIEI). till litter Iht'v li;i„»,f .l..,r /(1,„ 01 * \ '^P.,,,l,v„ ,...i- ,1,....., .,...1 ,.,,...(,. *].„ I in w th Luo next day (the 21st) Tayloo sat down and wrote the agent a note, telling him to deposit the policy in the bank and enclosing him a check for the })reiniu'" rOKMATION or t;t'N I'HACT. 18 II that tlio ISSt'llttMl to Mu) clcfeiu]- iiijf, diiriiiu: tnivelling, (1 then tho it by tho tho iiocopt- iko of tho us against 'ill ooui'so S. CO. ro his resi- s appliod t') • roiisi(U'ra- 1 tho head [• 2(1, wroto nniiig him f tho coin- thov woiihl ho lottor, it d him, l)ut il wrote tho ilioy in tho premium. Tliis was rceeivod on tho ."ilst, but on the night of tho 2iM tho house was burned (h)\vn. Tho insuranoo com- pany refused to reeognizo ]\Ir. Tayloc's chiim, and the Supreme Court of the United States were ealled on to dooido whotlior Tayh)e's accei)laiu'0 was eoini)let(! on tho 21st, when ho posted his U'tter, or on tho 31st when the agent reeeived it. This, one ean nnderstand at a glaiioe, was a very imiiortant matter to Mr. Tayloe, tor if tho eourt saitl the 21st was tho time, then ho would i;et his insuraneo monev, otherwise not. The company contended that they had a right to with- draw their otfer at any time before notice of the acceptance reached them. But tho court decided in favor of Tayloe. An otl'or, thoy said, made through the niiiil, inii)liodly authorizes an answer to be sent in the same way, and the oiler cannot bo withdrawn unless the withdrawal reaches tho party to whom it is ad- dressed before his letter of renlv aiinouncinijf his accei)tanco has boon mailed. When Tayloe had mailed his letter of acceptance ho had done overvthiiig which the offer rocpiircd him to do. Upon any other view the pro])osal would amount to nothing and no contract would ever bo completed, as the acceptance would be but the adoption of the terms tendered, to bo in turn l)roposod by the ap})! leant to the company for their approval or rejection. u LEADINO CASKS SIMPLIFIED. IIOLSEH(>I.l> FIRE IXS. CO. v. GRAXT. [4 Kx. Div. 210.] Tlio insurance ngoiit, in Mr. Ttiyloo's case, received his letter after the house was l)urne(l down : and in Adams v. LimUcU, the iin[)ortant letter which Mr. Lindsell wrote about his wool, and which he mis- directed, (lid at last reach the wool-manufacturers, thoniih, so far as Mr. LiiulseH's interests woyg con- cerned, very much behind time. \\\ both of these cases, as we have just seen, the courts decided that the contract was concluded Avhen the letter went into the post-office, without regard to the time when it reached the person to whom it was addressed. But Mr. Grant waited for three years for his letter, which never came, — and it has jirobably not come yet ; still this did not make his case any ditlerent from Mr. Tayloe's or Mr. Lindsell's. Here is the way the trouble came about : ^Ir. Grant, who had some spare cash to invest in stock, Avrote to th(^ Household Fire Insurance Company (limited) asking them to allot him one hundred sjiares in the company. The secre- tary entered his name on the books, and replied l)y mail th the shares had been alloted as he desired. Mr. Grant never received this letter, and heard nothing further from the company until three years afterwards, when there came a notice that a matter of $.')()() or so was duo from him for assessments on his shares. Then Mr. Grant said that he didn't own any shares in the company ; that his application had never received an answer, and that there was therefore no contract. But the English Court of Ai)i)eal thouirht otherwise. FORMATION OF COXTUACT. 16 *' The contnict," sjiid Thesigeii, L. J., one of the leanied judges who delivered the judgment, '* is jictuailv made when the letter is posted. The uc- ecptor, in posting the letter, has, to use the lan- oiiaue of Lord Blackbukn, ' put it out of his con- trol, and done an extraneous act, which clenches the niaiter, and shows beyond all doubt that each side is bound.' How, then, can a casualty in the post, whether resulting in delay — which in commercial transactions is often as bad as no delivery — or iii non-delivery, unbind the parties or unmake the con- tract? To me it ap[)ears that, in practice, a con- tract complete upon the acceptance of an offer being j)osted, but liabh; to be put aii arties, so as to make the conse(iuences of misiake on the part of a mutual agent fall e(pially u[)on the shoulders of bot' . At the sanie time 1 am not prepared to admit that the implication in (piestion will lead to any great or general inconvenience or hardship. An otferer, if he chooses, may always make I i 1 16 LKAD1X(J CASES SIMPLIFIED. the formation of the contract which he proposes dependent upon the actnal oommnnictitiou to himself of the .'icceptiince. If he trusts to the post, he trusts to !i means of comnumiciition which, as a rule, does not fail, and if no answer to his offer is received by him, and the matter is of importance to liim, he can make inipiiries of the person to whom his offer was athlressed. On the other hand, if the contract is uot fmally eonckided, excei)t in the event of the accept- ance actually reaching- the offerer, the door would he opened to the perpetration of nuich fraud ; and, put- ting aside this consideration, considerable delay in commercial transactions — in which dispatch is as rule of the greatest consecpience — w-^nld be occasioned, for the acceptor would never be entirely safe in acting upon his accei)tance until he had received uotice that his letter of acceptance hare would, in the present case, bo nothing that even a court of chancery could decrees performance; of, for the promisor himself would not know what to convey, nor the promisee what to demand. If it had been a proniiso to give her one hundred pieces of silver, this would 1)C too vague to support an action, — for what [)iecesV fifty-cent pieces or dollars? of what denomination ? One hundred cows or sheep would be sufficiently certain, Ix'causo the in- tention would l)e that they should l)e at least of a middling quality ; but one hundred acres of land, witiiout location, without estimation of value, without relation to anything which could render it certain, does ap[)ear to me to be the most vauue of all promises ; 'i 4 •Ik 18 LEADlN(f CASKS 8IMPL1FEI). niul if tiMVcoiitrnct can bo void for its uncertainty, this must be. One liuuchcd acres on the Rocky Mountains or in the Conostoi^a Manor; one hundred acres in the Mountains of ILuiovcr Countv, Virirniia, or in the Conewauii'o ricii lands of Adams County ; one hundred acres of Georue Sherman's mansion i)lace, jit eiirhtv dollars pei acre, or one hundred acres of his barren lands at tive dollars? The promise is as boundless as the terrestrial globe. The party would lie at the morcj of the jury; there would be the same reason for ten thousand dollars damages as for ten cents. The court cannot enforce such an uncertain promise, and the defendant nnist have judirnient." ZALESKI V. CL.ARK. [U Coiin. 218.] Mrs. Johnson asked Mrs. Clark, a widow, if she would not like to have a bust of her dear departed. Mrs. Clark said she would, very much. Then Mrs. Johnson told her of a friend of hers, named Zaleski, who was a sculptor, and for Avhoni she was drummin"- up business, and who would do the thing in first-class style. She wouldn't run any risk, for she need not take the bust unless she was satisfied with it. So Mrs. Clark conclndi'd to perpetuate the features of lier hus- band in plaster, and gave Mrs. Johnson a photogra[)h, from which Zaleski made his cast. When it was •A i FORMATION OF CONTRACT. W ^1 1 liiiislu'tl everybody siiid that it was a fine piece of work, Ix'sidcs being an accnrate representation of the de- ceased Clark. But Mrs. Clarlc was not satisfied with it, "When the sculptor asked her why, she could not nive any reasons — it didn't satisfy her, that was all the satisfaction he could to Farmer Jordan, olTering to buy a particular mare if the latter would warrant her 20 LKADIXU CASKS SIMrLIFIKD. 'K^oHwl ami qnii't in harnes.'^/' Ynvnivv JorLiu wmle hack warrant iiiu- lit'i' ''■'^oiind and quiet in double har- ness," l)iit savin^ii- he had never put her in sinr/Ie luiniess. The mare was taken to Norton's hy an agent, who ex- ceeded his authority (und whoso act was iniDiediately repudiiitcd) and tlien — as the experienced reader will have foreseen — tunned )• ' 'o 1)0 unsound. This Avas Farmer Jordan's acta u ;;." price of the mare, and the red (jueslion was waoLue; or not thero was a coni- ])lete contract. This ';ne>^tion was decided in the neuative. " The corresi-ondv ce, ..id liaron PAifivK, "amounts altogether merely to this: ihat the defend- ant a<>-rees to give twentv auincas for the mare, if there is a warranty of her hi-ing sound and (piiet in harness jrenorallv, hut to that the plaintilf has not assented. The parties have never contracted in writing ad idem.'" It takestwo to make acontract, and those two must have agreeing minds. That being so, an olfer 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 personiB of this caso arc four: (1) Fullwood, an inn-keeper with more debts than lie can FORMATIOX OF CONTRACT. 21 couveiiloiitly pay; (2) Borliiiul, u prospective piir- cluisei' of Fiilhvood's imi ; (o) Giilley, a creditor of Fiillwood's, and very anxious about liis debt ; (4) Wil- liam Gudcy, his son. Act I., Scene 1. BorhimVs ILmsc. — Enter William with a message froiu his father, that if'Borhuid will not airi'ce to see him paid ho will attach Fullwood's property at the inn. To William, Borland replies that ho will see his father's dol)t paid, provided hcAvill not take out an attachment against Fullwood's property, and will llkeivise heep quiet and let no jjcrson know anythimj about it. Scene 2. — William return.^ from his errand and relates what Borland has said, (julley, Sr., replies that that is sat- isfactory, but omits to send AVilliam back with a mes- sage to Borland to that ellect. Nevertheless, he refrains Trom attaching the pro[)erty. Act II. — The whole scene is now in the Sui)renu! Court. Borland didn't see him paid, and Gulley 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 notitied of his assent to the new terms in his proposal — the I'.ttle matter concerning kec[)ing quiet. Exeunt onmes to slow music, GufTey minus his money. 9 Q9 LEADING CASES SIMl'LIFIEl). PROPOSAL TO rXAsCEPTAlKED PERSON. WILLIA3IS V. CAKWAKDIXi:. {\ Barn. & Adol. (ii'l; Lnn-td. Cas. on Con. 12.] Williiun Ciirw.-irdiue caused a hjuid-billto bo printed and distributed wliieh stated tliat whoever would give .sueli iufonnatiou as would lead to the discovery of the nuirdercr of his brother, AValter, should receive twenlv pounds. Soon after this advertisement was issued, Marv Ann Williams was l)adly beaten l)y a man she was livinir with, and ])elieving she had not \o\vs to live, and to ease her conscience, she iriive 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 olfer of the I'cward had in'duced her to oive the information. Nevertheless, all the iudires of the King's Bench ex[)ressed the opinion that she was entitled to it. Dexmax C. J. : " The plaintiti' l)y hav- injTj jfriven information Avliich led to the conviction of the murderer of Walter Carwardine, has bron<>-ht 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 otfender. The plaintiff gave that information." Pauke, J. : " There was a contract with any i)er.son who performed the condition mentioned in the advertisement." Pat- Tisox, J : "I am of the same opinion. Wo cannot go into the plaintiff's motives." FOiaiATlOX OF CONTRACT. 23 MISTAKE AS TO PEh'SOX CONTRACTING. BOSTOX ICE COMPAXY v. POTTER. [IL'.T Mass. 28.] During the early part of the suniiiier of 1878, the Boston loo Coniiiiiny supplied Mr. Potter, of the Hub, with ieo for his tea and claret , and for the household generally. For some reason or other — perha[)s they irave him short weight or too mueh straw and dirt — he determined to try another ice man, and having heard favorable rejjorts of the Citizens' Ico Company ho made a contract with them. For about 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 ap[)eared on the scene as of old. From that day forward the Citizens' wajjons no lonijer came that way, but ice vras reirularly 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 ^Nlr. Potter was sul)lim(!ly 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)con supplied by the Boston Comi)any, 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 implied r5 21 LKADIXO CASKS SIMPLiriKD. iissoiit on liis i):ir( iVoiii liis receiving iind using Iho loo, xM'Miisc he had no knowU'dgo that it was fiirnish(>(l l)y 1 the phiinlill'; l>ut siii)p()sed that he was receiving it from the C'ili/ens' Company. "A l):irty " said E\Di- coTT, J., "has a right to select and detennino with whom he will contract, and cannot have another person thrust upon him withont his consent. It may bo of im[)ortanee to him who performs the contract, as when lie contracts with another to paint a pietnr(>, or write a hook, or furnish articles of u particular kind, or when ho relies upon the character or ([ualities of an individ- ual, or has, a- tliis case, reasons whv ho does not wish to d'jal with a particular party. In all those cases, as he may contract with whom he pleases, the snfH- ciency of his reasons for so doing cannot be inquired into. If the defendant before receiving tlu^ ieo or dur- ing its delivery had received notice of the change, and that the Citizens Company couhl no longer perform its contract with him, "t would then have been his un- doubted riliht to have rescinded the contract and to decline to have it executed by the plaint ill', lint this he was unal)le to do because the plaintilf failed to in- form him of that which ho 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 judg(! added, " was very like this. Quo Jones, who had been in the habit of d(?aling with Brockle- hurst, a pipe-hose manufacturer, sent him an order for fifty feet of leather hose. It happened that that very day Brocklehurst had been l)ought out by Boulton, his former foreman, who executed the order and sent the goods to Jones, without irivini;- him notice that the <»-o()ds were supi)lied by Boulton and not bv Brocklehurst. FORMATION OK COXTKACT. 25 Tho Court of Kxc'licquor docldcd tliiit Boiiltoii could r.ot niaiiitaiu uii uctioii agaliist Jouos for tliolr [)riec."^ MISTAKE AS TO SUBJECT MATTER. KYI^E V. KAVAXAITGH. [103 Mass. i55(!.] ]Mr. Ka'Io agreed lo sell, and ^Ir. Kavaiiaugh to buy, a lot of land on Prospeot Street, in the town of AVal- tliiun. Jsow, it happened rather oddly that there were t^ro Pros[)eet Streets in Walt ham, and when Mr. Kav- aiiatiuii was taken round by ^Ir. 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 ^Ir. Kavanauiih refused to take it, and in this he was sustained by tho court, it beinu; held that wliere one i)artv was neirotiatin<>: for one tiiine: and the other selling anotlier and ditlerent thing, and their minds did not agree as to the subject matter, tlierc could l)e no contract by which either could be l)ound ; and tliis would be so where there was no fraud on either side — notliinii: more than a mistake. ) s ' Boiiltun r. Jones, 2 Hurl. & N. r)(J4. 26 LEADING CASK8 ^IMIT.IKIKT). HEruKSKS'i\ 1 TK >.v.s . ixn ]rAiiJUxriE,s. jjEiiv \. ijri{M-:ss. [1 Bestv<: S. H77; ;t Bi'st .<: S. 7.")1.] Bv a c'li!vrl(>r-p!irly (hiU'd tlio liUli of Ocfohcr, ISOO, tliu pliiiiiliir aiiTccd MS "owner of tlu> e a substantive part of the contract, it is to bo regarde(l as a warranty ; that is to sa^', a condition on the failure or iu)n-performanc(! of which the other party may, if ho is so minded, repudiate the contract hi fo(Oy and so bo relieved from performing his part of it, provided it has not been partially exeouted in his avor. ' Seo Carter v. Bouhm, post, p. lS(i. I 28 LEADING CASES SIMPLIFIED. IT. — C0XS1DERATI0X= A CONSIDERATION NECESSARY TO SUPPORT A CONTRACT. I.AXX V. HUGHES. [7 Tonii R(.p. ;!,"jO.] ^lorc than a hundred years airo Mr. Rami brought an action against Isahelhi Hughes on ii promise whieh she had made to him to pay him a sum a little less than one thousand [xxinds, whieh he claimed to be due from the estate of \vhi( h she was the administratrix. The Court of King's Bench, the Court of Ex('he(|uer Chamher, and finally the highest tribunal in England, the House of Lords, wrestled with the case for a long time, l)ut tlie u[)shot 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 mone}'' or .'Miything 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 enu:aijements. It is e(|uallv true that the law of this country sui)plies rio means, nor alfords any remedy, to compel the perforr,i- unce of an asxreement made without sufficient cons'd- CO:,'SIDE RATION 29 (■ration. Such agreement is nuduDi pricluiu e.cquo uon on'fur actio," the Ltitiii he quoted being an ancient maxim, which ])eing done into English reads: "No cause of action arises from a ])are i)roniisc." ADEQUACY OF COXSU >EHATIOX IMMATERIAL. BAIXI$!{Il)(iE V. FIK3ISTOXE. [8 Ad. & E. 7t:5; Laiiir.l. (":is. on Con. 20'.).] Firmstone was worse tlian the man who would l)or- row your nm])rella on a rainy day and then forget to return it : for Firmstone would not only not return it, but if you should remind hini of the circumstance Avould tell you that if you wanted your umbndla you would have to hire the sherilf to get it for you. For this is exactly the way he served Bainbridge. The latter owned two boilci's, and one day Firmstone came to him and tohl him that he would like to l)oi-r()W those boilers, and take them over to his place and put them on his scales and see how much tliev weiu^hed. Now, as Firmstone did not want to buy the I)oilcrs, or to use thcin in any other way, this was rather an odd request. But Firmstone promising to return them in ffood order, Bainl)ridLrc, the accommodatiuii: neiirhbor that h<' v/as, let him have them. Sad to relate he broke ,!,> I 30 LKADINCf CASES Sl.MrLIFIED. his ]iromis(\ iind when r>:iiii1)i'ulgo brought an iictioii Luighod ill Ills slccvi', for lie had read enough la^v to know that a contract without a consideration won't hold, and what consideration is there in giving one an oiiportuiiity to weigh boilers, argued he. But Lord Dkxmax, C. J., thouirlit the suit was "well enouijh. The defendant had some reason for wishing to weigh the boilers, and he could do so onl}' bv obtaining per- nnssion from tlu; plaintiif, v/hich he did obtain by promising to return them in good condition. "We need not inijuire what benetit he expected to derive. The i)l!iintiir niiirht have i^iven or refused leave." And Pattisox, J., thought so too. " I suppose the defendant thought he h:id some l)ene(it," said he, '* jit any rate there is a detriment to the plaintift' from his parting with the possession for even so short a time." So that merelv "allowing tcj weiirh " is a sufficient consideration for a promise. BUT CONSIDERATION MUST BE REAL. AVIIITE V. liT.I^ETT. [L'3 L. J. (Exch.) 3(5.] A son had been constantly complaining to his father that he did not givi; him ;is much inonev or the same advantages that he gave the rest of tlie familv. CONSIDKHATION. 31 FiiKillv", one day, ho proposed a treaty of peace. " If vou woii't ask mo to pay that note of mine, I won't l)()ther you about these thuigs any more," said the son. "All right," re[)liod the father, who, some time after, died, Avithout 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 his father's promise, without avail. " Is an agreement," cried Baron Parke, with astonishment, " is an airreement bv a father, in con- sidcration that his son will not bore him, a binding contract? Fudge!" His lawyers tried to convince theother judges that it was, but with the same success. " If such a plea as this could be supported," said Chief Baron Pollock, " the followini!; 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 sa}', ' Do not complain, and I will give you five pounds.' It is ridiculous to supi)ose that such promises could be binding. So, if the holder of a bill of exchange were suiniji; the aocc[)tor, and the a('ce[)t()r were to c()m[)lain 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 com[)laints I will not sue you,' such a promise vrould bo like that now set up. In reality there was no consideration whatever. The son had no right to com[)lain, 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 da, can be no consideration." CO :?3 It-: 32 LEADING CASES SIMPLIFIED. FORBEAUAXCE TO SUE A SVFFICIEXT COXSIDERAriOX. HOCIvi:XBUUY V. 3IEY'EUS. [:U X. J. (L.) 340.] Mrs. Movers hold Joliii Ilockoiiljiirv's note for $1 ,000 wliicli was ovordiie .'ind un[):iid, and she thrciitoned. to sue liiin unless Ik^ could lind soeuiity. lie, therefore, Avrote to his hrothor Asa, Iclliui;' hiui the fix ho was in, and to pacifv the lady, Asa, who doubtless was a man of suhstanoe, i)ut his naui(> on the l)ack of the not(>. Two 3'cars more passed williout Mrs. Meyers seeing her money and then sJic lost all paticuice and. did .sue. " You can't ii'et anvthiiiu' out of me," i-hiickled Asa, *' because my promise; was voluntary and without con- sideration."' But tile court gave jndj:nient against him on the ground that forbearance to sue was enouirh to support a contract. PROVIDED THERE IS A LE(fAL CAUSE OF ACTIOX. PALFREY V. I'ORTLAXI), ETC., R. CO. [4 Alien, .">.] One of the glories of the common law was to ciony an action for damages occasioned bv the death of a hu- CONSIDERATION. 33 niMii ])eiiio\ A very dis{igreoal)lc personage, thiit figures in the Isiw reports with grout fVe(|uency,is tlic modern corponition, which, recognizing its laclc of a body to bo kiclicd or a sou^ to bo damned, gen- erally manaires to crawl out of its oblii>;ationS and evade its liabilities l)y the help of very technical and unriuhteous defenses, rjtween these two Mrs. PmI- iVey came to grief, as was not stran<>e. Her husband had been killed on a train belonging to the Port- land, Saeo and Portsmouth Railroad Company, un- der circumstances of the most atrocious ne<>li' her life if she would not sue them. They carried out their agreement lor four years, and then having discovered that there was no statute in Massachusetts or ^Nlaine allowing an action aixainst a railroad for kiilini:' its passenircrs or its em[)l()V(H's, thev told her to go the — work-house, for slie had seen the last doUai of //k ir money. When she sued them on their promise, they rc[)lied that it was without consideration and void, and the court was ohlige(l to givi! judgment in their favor, because, for- bearance to sue is a good consideration, only where there is a Icfjal cause of action, •A s 3 3 34 LEADING CASES Si:\IPLIFIED. PROMISE TO DO WHAT PARTY IS BOUND TO DO INSUFFICIENT. REYXOLDS v. NUGEXT. [25 Iiul. 328.] There is nothing to show thiit Mr. Reynolds, of In- diana, ever distinguished himself in the lute war, though !it one time liis services were certainly at a })re- mium. The township of Tohin offered him a hundred- dolhir bounty if he would be one to till their <|uota of the draft; he accepted, signed tlie roll, and pocketed the money. But on his way with Nugent, the recruit- ing officer, to be mustered in, an agent from Evans- ville came along, offering $350 l)ounty for recruits. ♦' If you want to keep me," said Reynolds, Avhen he heard this, "you have got to come up to I^vansville's offer." " "We will do it," said Nugent. Reynolds was satisfied, and went to the war. In 18(15 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, bo- cause there wns 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 Rev- nolds had been a witness, sul)[)(iMiaed to give his evi- dence in a lawsuit, and bad 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. iHi). T COXSIDKRATION. 35 ■when half Avay through, he had refused to reef a sail until the captahi promised him more pay,^ iu neither of those cases could he have brought an action, for he would have only promised to do what it was already Ills loiral dutv to do. And that was iust what was the matter here. Nugent had promised him the $250 to do what he was already bound to do by his contract, and this was not a legal consideration for a contract. C3 CUIWBER V. AVAXE. [1 Stra. 42(); 1 Smith Ltl. Cas. -139.] AVane 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 $21) 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 plainlilf had agreed to accept $25 in full satis- faction of the debt of $75, and that he had paid the $25. This, though [)erfectly 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 wsis entitled to the $25 all the time, there was no consideration for his promise to relinquish the resi- >, ^"*:;! I ' Stilk y. Myrick, 2 Camp. 317. 3(1 LEADING CASES SIMPLIFIED. (Inc. Sonic philosophoi- luis said that it is easy to be wise after the tact. So thought Wane, as he rellectcd, that if he had only said to ranil)er, " I'll give you iny note for $2."), and a pipefnl of tol)acco," or " I'll pay vou $2.') on account, and give you my old pocket-knife in satisfaction of the l)alance," there would have been a irood contract with a good consideration. sa MORAL OBLi:;ATn)y JXSUFFIOIEXT. COOK V. HIIADLEI^. [7 Conn. 57; IS Am. Dec. 7".t.] Cook pero was poor ; Cookji/s was rich. The fathei- must have been very poor indeed, for he was obliged to «ot his necessarv'food and clothing from liradlevon credit. The son, hearini^ that ho alreadv owed liradlcv $()0, 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 anionnt from his estate. But he found this a very difficult matter. The court into which he broufendants, would hold themselves liable in the same manner as though they had signed it with their names. The })romise, which was in writing, when brought into court hardly l)ore out their statement, for it was in these words : — New York, August 27, 1814. Mesi^rs. Bulldei/, Somfryndike (C Co. — Gextlemen : In consideration of your Jiav'uig iu- dor.^ed the undermentioned notes drawn by David Tay- lor in your favor, we hereby hold ourselves accountal^lo to you for them iu the same manner as though said notes were drawn l)y us. SiMirii, Taylou & Co. COXSI DERATION. 89 ThoUirli tlui docisloii was lUiuld by tlio court on a qiic'stion ot' i)lciuliug — which by tho Wiiy is the mode ill wliich most of tho nilinixs on this point oc- curred — ii very ini[;ortiiiit princi[)lo in th(> hiw of con- fsideration for contracts was announced, thouixh not for the first time, by any means. This princi[)le is that a promise founded on a pa.sf consideration is not binding; and tliough the piaintin's liad tried to make a uood case bv savinii; " irou/d ind;>rs(!," the writinfj itself, wliicli was the only evick'nce of tlie aUeged eon- tract, said liaviiuj indorsed, — a mcn^ dilfereneo in tenses, to bo sure, l)ut enough to put tlie plaintifls out of court. LA3U»I^EIGH V. BUATHWAIT. [Hob 105, 1 Smith'H Ld. Cas. 222.J Thomas Brathwait sUnv Patrick Mahuine. But kings wei'e kings then, and the murderer was for- tunate enough to have a friend at court. To this friend, tlien, he resorted in his need, and begged him, in tho name of all that was charitable, to go to the king, and intercede for his life. Touched by tho appeal, this friend, — Lanii)leigh was his name, — consented to see what could l)c done, and " did by all the means ho could and many days' labor do his endeavor to ()])tain the king's pardon for tlu^ said felony, viz., in riding and journeving at his own charires from London to Rovston, wiien the king was there, and to London I 40 LEADI\(f CASKS SIMI'MFIKD. flr!f luick, ainl so to and iVoiii Xcwiiiarkot to ()l»t;iiii pardon for (lie (Icfoiulaiit for the said fidoiiy." After Lamp- Iciiih had taken ail the joiiriieys, iiiul been put to all this lroiil)le, liralhwait, as some sh'^-ht recognition of liis services, i)roinise. But t!io storm l)U'\v over; Brathwait cheated the hang-man; and now i)r<)|)osed to cheat Lan)pK'';rh, too. In answer to Lanipieigh's gentle reminder of thi* promise to give him £100, r)i-;ith\vait reidied vety learnedly that no promise is hindinir unless it is founde 1 on a sutlieient consideration, and that what Lam[)leiuh had done w;is a mere vohiiUari/ courffs//^ quite insufHcient to support jipromise. " No,"' said Lam[)leigii, with much somider learninu', as the event proved, " it was not :i meri* vol- untary courtesy. Yau asked me to do it, and that iisking saved it from beini; a mere voluntary courtesy, and made it a sntHcient consideration to l"ound a sul>- secjuent promise on." The conrt thought so, too. Services rendered in tlu^ [)ast , however eminent, are not generally a sutlieient consideration to snpi)ort a promise. But a i)ast consideration will snppoi-t a promise, when it consists of services rendcu'cd by the plaintiff at the defendant's reijuest. As this was exactly Lampleigh's case, he got his £100. Yet before he got it, he had to overcome another objection, -which the urigratefid Brathwait interposed. "It doth not ap[)ear," siid l^i'athwait, " that he 'l." 'he court decided in the infant's favor, and the jilaintilf went home a juuch wiser man. "The contracts (•fan infant," said the court, " areof three kinds : void, valid and voidable. An aorcement which he makes, which is illegal Dccauso aijainst a statute or a rule of public j)()licy. or a contract which he has no power to make at all, as appointing an agent or attorney in fact, is absolutc^ly vi d., 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 I 42 LEADINO CASKS SIMPLirKD. voi(l:il)li' only, :iiic may ratify them ami become li:il)le on them. This contract of suretv.^hip was of the hitter kind. John might disatfirm or ratilV it at his option, and as he had taken the former course, he couhl not be made lial)le npon it." EXCEPT FOR XECESSARIES. PETERS V. FLE3IIXG. [d Meo. & W. \-l\ Ewoll on Dis. of luf. ijC.] Mr. Fh!mini»; was one of those fast collegians whoso efforts have contributed so liberally towards the set- tlement of the law of " necessaries " for infants. Durini; his career at the Universitv of Cambridii:e, and while under awcller in the town for several articles of oi-namen*: ^'hich were supplied to him on tick. Fleming, ^;e/'o who was a wealthy nunnbcr of Parlimcnt, and could easily hare paid it if he hid liked, wouldn't look at the liill when it was sent in ; if he had, this is what he would iiavo seen : — £ s. d. A fine gold ring 1 / in the degree, slate and station of life in which he movt'd; if they were, for such articles the infant may be respon- sil)lo." HUNT V. PEAKE. I [5 Cow. 475; 15 Am. Dec. 475.] A half a (UMitury ago, in the State of New York, young Alexander IVake told pretty Polly Hunt that ho would marry her. But ho didn't do it, and so she sued him in an action for broach of promise of mar riage. " AVas Alexander twenty-one years old when 44 LKADIXG CASKS Sl.MI'LIFIKI). he said lie would inarrv you?" asked the court, and Pollv Avas ol)li;:('d 1o admit that lie was not. Tlien the kind-hearted judire, with a savaire name, had to tell her that he was sorry for her, but Ihc law could not help her. For in the time? when Georiie II. was kinij of" England ther(> 'was a youui:: lady of tifteen, who Avas told l>v the owner of the name (w'.io was over twentA'- one) that slu; should he Mrs. Ward ClartMicieux.^ But he Avas a ^ay deceiver, and married some one else, and slie sent him a noh^ hy the sherilF that she con- sidei'cd it Avorth £!,(»( 10 to miss havin(1. ('as. 1(17.] Sir E(l\v:ir; female, who announced herself as Lady Scott, and the mistress of all slu; surve\» I Her riijfhts, howeyer, were very soon dis[)Uti'd. Tlu' baronet was a sensible pcM'son, and his pam[)er(Ml menials soon sent th(! old woman about her business. This action was brought by a merchant who, although Sir Edward had ex[)r(>ssly told him not to do so, had supplii'd Tiady Scott with silks and satins dui'inu' the time she was livinir away from her husband. The reader will scarcely be sur[)rised to hear that Mr. Manby did not obtain a satisfactoi'y settlement of his little bill, and Mduhij v. Scott is the chief authority for the prineii)le that the wife's contract does not bind the husband unless she act by his authority. CO •l 4(5 li:ai)I.\(; casks {^implifikd. 3IOXT A<;r V. 1$ENK1>TCT. [;{ Burn, .t Cri'ss. (.;il ; i' Smith's Ld. Ciis. 427.] Mr. Beiiodicl, (tlu' iiaiiu", as stiKloiits of Shakespeare will have siinnised, is a laiun^oiie) was a hanl-worUiiig lawyer who lived in a furnished house which he rented, and which wa.s ])y no means elc<2;ant in its a[)i)()inL- incnts. Indeed, he did not keep a man-servant, and these two facts were of importani'(! when he came to he sued 1)}' Mr. Montaixn, jeweller, who had sold Mrs. Benedict several hundrt'(l dollars worth of expensive jewelry without his knov/ledge. In an action by the jeweller auainst tlu; husband it was unanimously iield that the goods were not necessaries, and he could not be eom[)clled to pay lor them. M(»)if(nju v. liinwdlct lays down thi; law of hushaml and wife this far: If a man without any just cause, turns away his wife, he is bound by anv contract she maki's for necessaries suitable to Ihm* })osition and estate, and it is tlu; same if they live together and he docs not snp[)ly her with necessaries. Whi'u he himself provides ln'r with ne- cessaries, he is not liabhi on her contracts unh'ss he assents to tluMu, but his assent may be either express or implied. But the goods must be necessaries, and in this case they were dearly not, for Mrs. Benedict would have been in a better business if she had laid out the money for new furniture f(u- tlu; house instead of useless ornaments which would so ill corrosiK)nd with the old. P\RTILS. 47 SEATOX V. BENEDICT. [5 Bing. 28; 2 Smith's LU. Gas. 432.] ^Ir. and Mrs. Bcnodict reappoiir on the boards. After the little affair of the jewelry, tliej left the city and Avent to live in the couiitr3\ But even in the se- clusion of the peaceful hamlet where they settled Mrs. Benedict pursued her extravagant wavs. She became indebted to a local store-keeper for gloves, ribbons, muslins, laces, and silk stockings, and tinally the mer- chant sued the husl)and. The goods supplied were un(|uestional)ly necessaries, but then ]\Ir. Benedict had always duly furnished his wife with necessary apparel and knew nothing of her clandestine dealiuiis with Seaton ; and on this ground the plaintiff was disap- pointed in his expectations of getting i)aid. " It may bo hard." said Best,C. .!., " on a fashionable milliner that she is precluded from supplying a lady witliont previous in(|uiry into her authority. The court, how- ever, camiot enter into these little delicacies, Init must lav down a law that shall protect the husband from the extravaixance of his wife." :?3 1)EIJENHA>I V. 3IELLOX. [6 App. ('as. 24.] A prudent man was Mr. Mellon. He gave his wife an allowance of $2(50 a year for dresses and pin-money, 48 I,KAIH.\(f CASKS SIMl'Ml-IKI). and iilso iiiioniuMi her tli.it he was not ii'oini;' to pay for iiiiv (Irv ii'oods or inilliiun y she iniuht choose to ])U\ on credit — slie must _ii"i't aloiii; on what she had. In spile of this distinct i)rohihilion, Mrs. MeMou ravorc(l a certain store-keeper, omi Dehenhani, with snhstaiiti.d orders lor dresses, etc., and ho, by and by, i'avore(l Mr. Mi'Uon witli a substantial Cliristiuas bill. This Ml-. M(dlon absolutely declined to have an^'thinij^ to do with, and litipition ensued. The' store-kee[)er had not known that Mr. Mellon had expresslv forl)id(len his wife to incur surre[)titious del)ts, and the u^oods ho had supi)lied were what the law calls " necessaries," so he felt eontident of success. The judges, howovei', di'- cidcda. In the ordinary ease of tiie manag(Mnent of a household, the wW'o is tin; manager, ami, with such tradesmen as a butcher or a baker, she would have authoritv to nledirc! her bus- band's credit ; but even then I do not think the pre- sum[)ti()n would arise, if the husband gave her the ' Jolly r. IJc't's, 1,-) ('. IJ. (\. s.) C.L'S. PAUTIF.S. 49 means to procui'o the articles without erodit. Tii llio pi'eseiit c'as(^, however, yoiii* h)rdships have to ih'ter- r.iiiie whether the wile had a mandate to order eh)the: I am of opinion that there is noth- which it would he pro[)er for hov in her stiition of life lo have, although the hn.sl)and had forbidden her to lijediio his credit, and had iriven her monev to hnv clothes * * iiig to authorize our holdinii" that the wife had author- ity to pledire her husband's ci'edit. I au"ree that if lie knew that she iiad ijfot credit, and had allowed the tradesmen to suppose* that he sanctioned the transac- tions with them, it miirht well be aiireed that there was such evidence of authority, that he could not i-evoke it without uiviniT notice of the revocation to all who had actc'd u[)on tlu; faith of his sanction. The iicnci-al rule would be that which I have stated ; but where an au'cnt is clothed with an authoritv which is afterwards revoked, those who have dealt wi th h mi have a riuht to say, uidess the revocation has been made known to them, that the princii)al is i)recluded from denyinixthe continuance of that authority, in the continuance of which he has indnce(l them, as reason- able; persons, to believe. There have been nniny cases where a husband has sanctioned his credit being thus pledgeil by his wife ; but there is no such ease licre. I cannot agi'ee that the cases have (>stablished that the fact of a wife; living with her husband alone entitles tradesmen to [)resum(! that the iiusband has giveji an authority which In; is precluded tVom after- wards denying. I think that in such a case it is open to the husband to i)ro>'e, if he can, that such an au- thority does not, in fact, exist, that being a (piestion c5 for tl le jury This is not the case of the withdrawal of 50 LKADINO CASKS SIMl'LIFIED, nil authorily whic-h lius lun-n oiico givcMi ; but the ques- tion is, wlu'thcM- the appellants, who had never before dealt with either the wife or the husband, were entitled t') assume that the authority was iiui)lied from the mere fact of cohabitation, and I do not think that the law srave them any riirht to do so." CONTRACTS OF LUNATICS. 3IITCHELT^ V. KING3IAN. [5 Pick. t;U ; Ewell on Dis. of Inf. 5L'2.] Kingman Avas sued on a promissory note. *' I ad« mit he made the note/' said his counsel, when the ease came to trial, " but if your honor will allow, I will show that at the time he sionod it, and ever since, he has been an idiot, perfectly incajjable of understanding what he was doing, and 1 think that, under these cir- cumstances, he ought not to be bound." Then up rose Mr. Mitchell's lawver. "It seems to me," he replied, in a very confident tone, " that I have read in Blackstonc that it is a maxim of the conunon hiw that no man of full age can be allowed by his own i)lea to stultifv himself, and thereby avoid liis own deed or contract ; and, if I am not mistaken, Lord Coke makes a remark of a similar character." " You PAUTIES. 51 arc riglit," said tlio Jiidgo, " wc cumiot listen to such ji plea. Judirnient for the plaiiitill'." But on ii[)pejil the Supreme Court of Massachusetts reversed the ease, sayiii, coiitinnally had been of unsound mind, not suf- ficient for the government of himself." Imposition or fraud, as a rule, said the court, were ijrounds for Mi 52 r.KADlNfi (.\Si;S SIMI'MIII'.I). v:u';irm.!^' .'ill coiitrMi-ts, niiil willi icspcM-l to a person of unsound niiiiition praetise(], and the u'oods snp|)lied are siiitaltle to his {■oudilion and decree, then the mere fact that he is of unsound mind and in- c'apal)le of makinjj: his own contracts will not deprive a pei'sou who has uiven him credit for such goods from suinu" in a court of law for their value. KI{<)M V. S('II<)()\>IAKElf. |;l Harli. (;17; Kwcll on \)\>. nf Inf. (i;;s.J A crazy fellow in Rochester, \ew Vork, who was all the luoro dangerous foi- the reason that he was a jus- tice of the i)eaee, was [)()s, whose friends seeing the (ix lie was in, inter[ osci] the defenst; that ho was Insane at the time he issii.d a warrant. I'ut the ' This case properly he'loiiixs fiirtlicr on in tlic book, l)ut is placed here for couveuieuue. PARTI KS. 53 " iiisiuiity thxlgo " liiul no show i;i this ciisn. A limti- tic, tho court sjiid, cannot he ixniishcd tor crime, hut, ;ill th(! same, lie may he sue(l i'oi- an injury donii to another. An idiot or otiier insane pei'son is not a iVeo :iirent, cai)al)le of inteUii^enl voluntary action, and, therefore, he cannot have any ijfuiJty intent, wliich is the Teiy cssenc(! of ci'ime. But a civil action to re- cover damaires tor an injury m;iy he maintained M^iainst him, hecau^e in such a cas(! the intent with which the act is done is not material. It must be home in mind, however, that the measure of damaires will generally l)e less in the case of a lunatic than when; a sane man is sueil for an injury, for th(5 amount of damaires is , that lingered in the courts for many years, to the elfcct that a cor[)oration could make no contract excei)t hy its corporate seal, the reason iiiven heing, as ex[)ressed hy an old-time judire that they were? " invisible, immortal, and had no souls," and, therefore, were iucai)able of manifesting I 54 LKADIMi CASKS SIMI'LIKIKI). their intention by iHiy pciNonal (if or.il discourse. Corpor.'itioiis h:i(l ii urlorions time of it on tlu^ strength ofthi^ : thev in;ir un- popular whenever they have been forced to come witii their disputes before a jury. Hut it is a long lane which has no turning, and tli(5 wjiole fabric of c;)r[)or- fite exemption and privilege received a terril)lo shcxdc in the celebrated case which stands at the head of this })aragraph. The facts of the case were very simple. Mr. Pat- terson was a l)uilder ; the; Hank of Columbia wanted a new buildiui!;. A committee of the stockholders and Patterson made a contract, and he went on and put u[) the building. But when he asked for payment for his Avork, the Bank (thougii it had received the consider- ation), made a grand ellbrt to keep the building, and at the same time not pay for it, by saying : "We never put our seal to the contract, and, therefore, you cannot hold us." But tliis sort of morals did not suit the Su[)reme Court of the United States, which court, though admitting that such was the law ancientlv, pro- ceeded ])y the hand of Mr. Justice Stouy to demolishit for all time. "The technical doctrine" said that jm mm PAirriKS. 65 Icnnu'd jiul^c, " tlial ii corporation could not contract except under its seal, or in other words, could not inaivc a promise, must have been product iv(! of <^reat niiscliiels. Indeed, as soon as tiuj doclrinj; was estab- lisl'.ed that its rcL^darly ap[)ointe(l a>xeiit could contract Ml their minu! without seal, it was impossihle to su[)- port it ; lor otheiwise, the party who trustee a sound rido of law, that wherever a corporation is actini^ within the scope of th(^ le;jfitimate purposes of its institution, all j)arol contracts made by its authorized aijonts arc express promises of tln^ corporation ; and all duties im[)osed on them by law, and all benetits conferred at their re(pi(\st, raise implied promises for the euforccmciit of fj i i w hid I an action mav well lie f*s 5(j LEADING fA8i:S 8i PLIFIKD. IV. — TiiK Statute of Frauds. [The iiidcpciKleiiL layman who I'luK'avors to iiuiki' Lis (•onlnicts without llrst con:-iiltiii';- liis lawyer, will fr;ii'.U'iitly rc;;rc't th:it Iig hail not been tlrst instructed in tiu; provisions of tl-o' Statute of Frauds, l/fifx i>^'> in tlio reii;u of that incrry ruler, Charles II., a few of t!ie fatlu-rsof the law in tlie Eniilisli Parliament — Lord Halo amoiiij; tlieiii — passed a statute wiiich was entitled "An Act for pre- vention of Frauds and rerjurycs." Most laws endeavor to put a stop to the practices wiiicli tin y are designed to preveni, by assess- Inj; penalties and punisluncnts ui>onlln; refractory individuals, wlio forLTet or refuse to keep tlieni. Not so this law, v.Iiicli had for its ul)ject tlie rcniovin-j; of some of tlie temptations to fraud and per- jury, by prevent inii men, in the case of a larute number of agree- nienls, from swearin'j; tliai they had or had not beea entered into, unless tlie'-e was so;:!f writinij: on tlie subject. Where one; man said tiial anotlier liad i«romis(d to do a certain thin;,', by word of mouth, and tlie oilier denied il, it is obvious liiat even if o:ie of them was not lyinu;, such testimony was very tnicertain and iinsati' - factory for a jv.tlire to have to decide upon, an for LiiilitliiiiTcr's biTiiriiiir saffly hark any horse tlmt Birk- tiivr inii^ht nitni>t him witii. On the faifli of (his uiKh'rtakiiiL^ — a V('rl)al one of coiirso — Birkmyr lot Liuhtliiiu'or havi^ out' of tlio best horses in his stable, and that uentlenian rode away; and, as there were neither raih-oads nor teh'irra])hs nor poJi'o in 1700, ncilhci' '■ \vlier(! some one else is primarilv liable. If John Smith takes his friend .lonivs to his tailor, and says, "Make this iientlemun a pair of trousers, /oii/' no writing would l)e required to in:die Smith liable. '"^yWfwn??ieaPW?Bwrrr«;v«Tr — ^-^--^ ■ TIIK STATUTK OF FK'AUDS. 59 PROMISE '^IX COXSIDERATIOX OF MARRIAGE:' SHORT V. STOTTS. [:)8 lud., L'!).] Siimiu'l Slut. I i)r()inis('(l to iii.-utv Muuiriti Stott^;, and wlu'ii I. \ out back on his word, MaLrsiio sued liiin. ' Bi-oiii>iit into court, Mr. Samuel, knowini' that his pre 'lise-; had always been by word of mouth, set Ml) the J.jt( nco that Mao'iri*^ eould not hold him on 1 C7v_- his aurccmont until she had i)r( lured some writini; of his to that cfFect, relviiiuf on the Statute of Frauds to help him out of the scrajje. Rut here he diI\s for twenty .irniiH^-^, only he was to iiavc the t roiil)l(' of mowing «iiiit, two or tln-rc weeks al'ierwai'ds, ^Vadswortli again happened to nieet('rosl)y, and remarked plea.saiitly : "P.vlheway, I"ve thcided not to let yon have that •'rass ot mine; I don't tliink \'onr liiiiire is u'ood enouuh:"' and the same day h(! sohl it to a Mr. Carver lor twenty-live i^uineas, thns cK'aring a iive- ponnd note hy iiis diph)maey. .Mr. Crosby sned Wadsworth lor his brc'aeh of contiaet, bnl, unfortu- nately, took nothing by that, as it was held that tlu^ eontraet was oiu' whieli had to do willi the land, and thendort! should have been in writing, as re(juired ly the fourth seetion of the Statute of Frauds. " I think," said Lord KLLKXHOUoiiiii, "the agreement stated, conferring, as it professes to do, an excdusivo right to th(! vesture ol" the land during a limited time and for given purposes, is a contract or sale id' an interest in, (»r at least an interest eoneerninu' lands." Cell --idl verl wa.-l in llidl I'.-tl COXTRACTS " XOT TO IlK I'EHFOIiMKD WITIIIX A YEAH." TETEIt V. (;<>.>ii»roN. [Skill. :!:»:;: 1 Siiiitli's i.d. ('as. !:!•_'.] Those who knew him best did not consider Mr. Peter a marryiiiii- man. Theret'ore, it was that Mr. THE STATUTE OF FKAUDS. 01 ('(»mi)U)ii tliouulit li(! had uot defidcdiy on iho riijfht sido of tho Imrgaiii wlu'ii, oiio eviMiiii;:, in casual con- viM-salioii across' till! walnuts and wiiic, this ai^rt'cmcnt was coino to: Peter to pay Cwiinilon a, ijiiiiica down, in consideration that ('onipton would pay Peter a thousand guineas on his (Peter's) Widdi'ig day. Peter promptly paid down the uninea, and CoiU[)ton pocii"illiant dresf'cs, lovely I)ridesniaids, rosettes, church bells, and indigestible cake. But one is conspicuous bv his al)sence. T\\o. reader can giu'ss who. \\'1umi Mr. P(,'ter led .Mrs. Peter away from the hymeneal altar, he sat down and wroti* an e.\trenicly I'riendly little note to ( 'ompton, reminding him ot' that pleasant evening tliey spent together two yi'ars ago, and recpicsting the tavor of a check I'or amount due, as [)or agreement Complon was considerably taken altack ; but, like a sensil)le man, went sti'aiglit to his lawyer. That gen- tleman told him to set his mind at rest ; tor, said he, in a ceilain slat nt e, enaclcil of wise men long ago, it was provided that an -'agrei'ment that is not to be? performed within the spac(! of one year from tho making thereof" slionld bi' in writing. ".Vnd how," asked the man of law, complacently sti'oking his chin, "can they nnike out that this agreement was to Ix; pertbrmiMl within tiie year, when this sly dog l\'ter doesn't get married t'll two years aft(U'wai'ds V (Jo home, my dear sir, and don't trouble yourself any more al)out it ." Unfortunately for C^ompton, this i-ather plausible view of tln! law was not adoptetl by th(! juilges. who ''I % • (32 LEAUINO CASES SIMl'LiriED. oiinu' to the ooncliisioii that the chiuso in the Stiitutc of Fniiuls rclerri'd only to :igrocMnc>nts which, in their terms, wcvQ/ incapahle of pvrforniance v^ithia (Jic i/i'ar, and nMinired tha^ snch agreements only slionhl lie in writing. Now, tliis agreement between Peter am! Compton was rU^arly not " incapahh^ of perform- ance " within the year, for Peter might have got mar- ried the very next day. So that it was binding, thongh not in writiiiiT. 1 uicil '■'71 the see } mei CONS IDE IIATIOX mrST BE EXPRESSED. WAIX V. WARLTEBS. [5 East., 10; 2 Smitirs Ld. Cas. 280.] For Mr. Warhers the Statute of Frauds was decid- edly a fortnnate enactment. He had a friend named Hall, who becaint' indebted to Messrs. Wain &, Co. to the extent of £'>(), and with no [)articnlar m(>ans of payment. To extricates this lri<'nd from his dilficulties Warltei-s sat down and wrote out the following colbit- onil secmity : " Mkssus. Wain and (\). : I will engjige to pay you by half-past four this day £")(! and exi)en.se.s on bill that amount on Hall. " [Signed] fbjXATHA.v Waultehs. " No. 2, Cornhill, April ;}(), 1S();;." TUK STATUTK OF FIJAUDS. ()3 TLill, of nourso, did not piiy the money. So Wain cii ('■). sued Warlters on his liiianmtoe. lint the docn- iin'iit was hckl to bo so inneh waste [)ai)er, as no ron- xidevation for Warlters' j^romisp to pa;/ the i'oO was t.rj)rpsspd in it. The Statnte of Frauds re(jnires that tiie •' agreement" sh ill <>e in wi'iting, and as we have seen, the considpration is as much a [)art of the " agree- ment " as XXw promise. PROMISE TO ANSWER FOR DEBT, ETC., OF '-ANOTHER.'' I I EASTWOOn V. KENYON. [11 Ad. v*;- K. \\^s.^ John Sntclille, h.'ginning to feel that he was not the man he used to he, thought it was ahout time to make his Avili, aiid turn hi.-< attention to another and a hotter world. He left everything he had in the way of real j)ro[)erty to his only daughter, and named bis friend Eastwood cxecutoi-. But John Sutelitle was not des- tined to tlie just yet ; and "mansions in the skie.s " weix* not the only estates to which he was busied in makiuir his title clear. Before ho died ho had sold all th«> lands mentioned in his will, and bouirht other lands. Of those he made no will whatever, and when (51 LKADINU CASKS SIMl'LIl'lKD. I ^H he diod. as lie did soon al'lcrwartls, ihcy dt'si't'iided to h\< child as heiress at law. Tiiis young hidy, at the time ol" her lather's death, was underage, and East- wood, ou the strength ol'the now useless will (in those (lavs a will did not speak I'roui the time of the testator's death), and the faet that he was an old and di'ar friend of her father's, took on himself to aet as her guardian. lint Hast\s-ood, with all his good intentions, was a jjoor man : and, lor the purpose of managing Miss Sutelilli''s all'airs, he found it necessary to hoi'i'ow money. lie l)oi'ro\v(Ml £I 10 from a person naint'd Rlaekhurn, and gave him his promissory note for the amoinit. By and hy Miss Sutclille did what all young heiresses, sooner or later, must do — she got married ; the for- tunate individual heing a Mr. Kenyon. Recognizing his claims to his gratitude, Kenyon promised Eastwood verhally that he wouhl pay Hlackhnrn tlu! £l in. jini .somehow or other, when th(>time came, small as the sum was, Kenyon conhl not l)ring himself to pai't with the money; and linally this action had to he brought on his promise. Kenyon did not deny tiiat he had made the promise. But he raised two ohjeclions to the plaintilf's claim : (1.) That his promise was (me " to answer for the debt, def lull, or miscarriage of another pei'son,"' and therefore (l)y tlu^ Statute of Fi-aiids), shonld have been in writing. This |)oint was overruled, for the Judges said that the words in the stalntt^ contemplated tlu^ promise being made to the creditor, and had no reference when the promise was made, as here, to the di'btor himsidf ; it was a i)romise to answer for the debt of '" another" which was reipiiretl to be in writin<>'. isd m en THE STATUTE OF riJAl'DS. 65 Beaton from this position, Keiiyon retreated to another. (2.) That there was no eoiisltleration for liis prom- ise. And tliis point was deeided in his favor, for a mere nior.i.! eonsich'ration, as we liavo seen, is not strong enongh to snpport a promise. So Eastwood was £140 ont of pocket by his executor- ship. ' ' GOODS, \V. 1 Ii'ES . I .\7> MERCIIAXDISE. ' ' TISnAI.K V. HAHRIS. [•-'0 rick. ;i.] Th(i phiintiir sned the (U'feiuhmt on a verbal con- tract hy wiiicii th(! lalt(>r airreecl to sell him two liun- (h'cd shares of stock owned by iiim in the ColHns Mannl'actnriiig C()mi)any. The (h'fenchmt had never delivered the stock, and hence this suit, in which ho made the (K'fence that it was a contract for tiio sale of " goods, wart's and merchandise," and not l)eing in writing he could not b(> bound. The [)laintilf vigor- ously op[)()S(>d this view of the case, but the court hold it was a correct one. " The court are of opinion," said Chief Justice Shaw, " that as well by its terms as by its general i)()licy, stocks are fairly within its oper- lie LKADINC CASKS SI.MPLI riFJ). iition. Thr words 'i^oods' jiiul » iiu-ivluimliso ' nrc hotli of very liirjro sijxiiiticjition. /ion't as incd in llio civil l:i\\' is almost as cxh'iisivc as personal i)ro[Mn-ty itself, and in many resix-ds it has nearly as larth of Mr. Lee, a dentist. The latti-r mad(> them, hut on the day before she was to call at tin; otlice to have them fitted the old lady died, and as her executor was already supplied by nature with an elllcient array ol' grinders, the dentist was forci'd to sue for his hill, which amounted to $105. The executor set up the defence, that it was a contract tor the sale of " goods, wares or mei-chandise," and shoidd, therefore, have been in writing, as reqinred by the Statute of Frauds, while the dentist contended that, on the contrary, it was work, labor, and materials for which he was suin<>\ THE STATITK OF lUAl DS. 67 ^=^ The oxcoutor's view wiis luloijtcd by tho court, llio luU^ hi'iiig stated to ho that, if the contract he such llnit ir/ioi mi't'ied out it inoiihl rcsn/f in f/te sttlc of a rhdHcl^ it is a sale of goods, and not a contract for work and hihoi-. VALUE or (iOODS. 3 BAT^1>EV V. IWIJKEIl. [L' IJarn. i!i C'russ. ;17.] Mr. Parker lias not paid an exorbitant pi'ico for fame, lie went one day into a sho[) and hargained for a nun»l)crof trifling articles, a separate i)rico being agreed on for each, and no one article bi'ini:; l)rice(l so hiijli as £10. The articles tlmt Mr. Parker had decided to l)ny he marked with a i)encil, or assisted in cutting iVoni a larger bulk. 'I'hen he went home — he always did — to tea, desirinij; that an aeconnt of the whole shonld be sent after him. This was done, and the sum Parki'r was asked to pay was £70, iulinis live pel' cent discoinit I'or ready mont'V. Tliis disi'oiuit he (jnarrelled with, not considering it liberal enough, and when tho ijfoods were sent to him he refused to accept them. This was an action by tho store-keeper against his recalcitrant customer, and the main ([uestion was •'V. e>. .^^..%% "^^ IMAGE EVALUATION TEST TARGET (MT-3) 7 / /. O u.. 1.0 I.I 2.0 It ■;£ 6" 1.8 11.25 ■ 1.4 i 1.6 V] <^ ^ //j. A V k Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7)6) 872-4503 4^ :* MP, .<$> 68 LEADIXCr CASES SIMPLIFIED. whether the eontnict \v:is one " for the sale of goods, wares, or inereh!in(li.ses for the priec of £10" within the 17th seetlon of the Statute of Frauds, the honest store-keeper raying that it wasn't, and the other gen- tleman saviiiij: that it was. The question was deeided in the affirmative', the contract having l)een an entire one, and " '^ being the intention of that statute," as HoLKOYO, J -aid, "• that where the contract, eltJicv at the cowmev-: :'i''-]if or at tJie conclusion, amounted to or exceeded lii' va'ue of £10, it should not hind unless the requisite? there mentioned were complied with. The danger," lie added, " of false testimony is quite as "i-reat where the bargain is ultimatelv of the value of £10 as if it had been oriuinallv of that amount." ACCEPTAXCE AXD RECEIPT. EL3IOKE V. STOXE. [1 Tiuin. -458.] Elmore was a livery-stabie kee|)er, and had a couple of horses for sale, for which he wai.t:.' £200. Stone admired the horses, but not the price. Finding, liow- ever, he could not get them for less, he sent word \u\ would take the h()rs(-s, " tmt, as he had neither ser- vant nor stal)ie, Mr. Elmore must keep them at livery for THE STATUTE OF FRAUDS. ()9 I him." In consequence of this message, Ehnore re- moved the horses from hissale-stiil)le into another stable, whii'li he calh'd liis livery stable. In an action which he brought for the price, the (juestion 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 liverj-stable kee{)er miuht have done. Said Lord ]\1axsfieli), who delivered the jiulgment in this case: "There are many cases of constructive delivery. A common case is that of goods at :i wharf or in a warehouse, wherci the usual pi-aetice is that the key of the warehouse is de- livered or a note is aivcn addressed to the whartinger, who, in consc(|uence, makes a new entry of the go'ids in the nanu^ of the vendee \ although no transfer of the local situation, or actual possessiou, takes place. Thus in thi^ [)rescnt case, after the defendant had said that the horses must stand at livery, and the piaintitf had acce[)ted the order, it made no diflerence whether they stood at livery at the vendor's stable, or whether they had been taken away and put in some other stable. The plaintilf possessed them from that time, not as the owner of the horses, but as any other livery-stable keeper might have them to keep." » * J1 m 70 LKADIXO CASKS SIMPLIFIED. SHIXDLEK V. IIOUSTOX. [1 Dcnio, -18; 1 X. Y. L'Cl.] IIoiislou owiumI ;i lot of lumUer which Wiis piled on !i (lock iij);irt from other liiiul)cr there, iiiul had been pi-eviously measured and inspected. Shindler wanted to l)nv some lumber, and this particular lot being in view of both, Shindler olTered a certain i)rico per foot for it, wliicli Houston accepted, sayini>', "The lumber is yours." Shindler then told Houston to get the in- spector's bill and take it to his agent and he would i)ay for it. II(^ did so, but paynuMit was refused. Hous- ton then brouglit an action Ibr the price, but was un- successful, the court holding that there had been no sutficient "acceptance and recei[)t" of the goods to satisfy the statute. It was not denied that there* might be Ji constructive acce[)tance of goods as in J'JJdiovc v. Stone, but the court tliought tliat in this case what was relied on as cviilencc of acceptance and rei'ei[)t was notliing bui the acts and declarations of the [)ar- ties during the course of tlu^ sal(\ There; were no such subse(juent 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. COXTRACT roXTAIXED IN SEVERAL DOCU- MENTS. Ih* BOYDELL V. l>RU3I3IOXD. > '^1 m [U East, Ul'.] Towards the end of the lust century Boydell &, Co., .1 grciit publishing tirni 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 vigoronsly canvassing for sub- scribers. Tiiere were to be seventv-two enijravinirs altogetluM', four of wliich were to constitute a lunnber, and at l(>ast one number ^\as to be pul)lished every year. " The [)roprietors, however, were; confident that they should be able to product? tM'o numbers in the course of ev<'ry year." The [)rice of each number was tliree guineas. The student, wliosoy?>r/e is arith- metic, will thus perceive that the whole series would not hv completed for niue years, and that the total cost woidd be r)4 guineas. Amongst <)ther enthusias- tic, if not vci-y ap[)reciative, admirers of the grtvit bard Avas a ]Mr. Drummond. He agreed to Ixu'ome a sub- scril)er, and signed his name in a book bearing the title, " Shaks[)eare Snl)scril)ers, their Signatures." He even put his admiration of he dramatist to the still sever test of accepting and actually i)aying for one or two of the numbers. P)Ut his interest soon beiran to languish, and at last it became necessary to sue 72 LEADIXCr CASES SIMrLiriED. him lor not aocoplinir the nMUiiiiKlor of the onirravinn^s. In defence, ^M". Dnunuiond availed himself of the Statute of Frauds, lie said that the agreement he liad entered into w:is one which, by its tcnns, wiis iii- ciipidde of performance within a year from the making-, and, therefore, to l)ind him, should have been writing. The publishers replied to this : — 1. That, :\rr. Drummond having taken and paid for several numbers, there was a sufHcient " performance! " to satisfy the statute, if not Mr. Drummonc' con- science. 2. Thai, after all, the agreement ioas in writing, for the book in v.liich Mr. Drummond had signe an illustration of tin clause in the fourth section of the Statute of Frauds, which says that an agree- ment not to be perfoiined within a year must ])e in writiuii'.' "**( "^'3 ..a ' Soe ante, p. ('>0. '1.,. ^ ^« N. ■ 74 LKADING CASKS SIMPLI'^'IED. y. — AVefttfa' Coxteacts axd Oeal EVIDEXCE. OJiAL EVIDEXCE XOT ADMISSIBLE. GOSS V. NUGENT. [,-) Barn. .<:. Adol. 58.] Lord Nupfont uirrocd to buy of ]\Ii'. Goss .sevoriii lots of land for £4y(), Jiiid paid a (lo[)osit of £>!(), i\Ir. (toss undortakiiiu: to make a ffood title to all \\\o. lots. This aiiTcemciit was, as the Statute of Frauds requires it to be, in n'ritin"ether to waive, dissolve, or annul the former agree- ments, or in any manner to add to, or subtract from, or vary or (]ualify 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 u[)on what will be thus left of tho 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 dis[)ense with requiring a good title to be made to the lot in question, and that the action might be maintained. * * * I3i,t ^vo thiidc the object of the Statute of Frauds was to exclude all oral evidence as to contracts for the sale of lands, and that anv contract which is sought to ])e enforced must I)e proved by writing only." 1 70 LKADIN'U CASKS SIMl'MFIED. PY3I V. CA3iriJEl^I^. [i; Ki. .^ HI. ;:70.] The clcfciulimts jiiri'ood to hiiytVom.Ioliii Pyin uthroc- oiirlith part of the beiicrits to iUHTiio from an inven- tion of his. It AViis aixreetl that tiiis piin;hase was only to be made if an en_ij:ineer named Abernetiiie approved of the invention. Tiicy then made a written memorim(him of the airreement, withont pnttinij down the condition abont ^Ir. Abernetliie's ap[)roval. Mr. Abernethie did )io(. api)r<)ve ; and the (pu^stion was, whether the condition couM be proved by oral evi- dence. In ijiving jiidirnieiit that the evidence was admissil)k', Erlk, C. J.', said: "The point made is that this is a written airreement, absolnte on the facie of it, and that evidence was admitted to show it was conditional ; and, if that had beiai so, it wonld have been wronir. Bnt I am of o[)inion that tiie evidence showed that in fact there was never any airreement at all. * * * Xhc distinction in i)()int of law is that evidence to vary the terms of an airreement in writinir is not admissible, bnt evidence to .skoiv that there is not an agreement at all is admifiniblc.'" WRITTKN CONTRACTS AND OUAL EVIDENCE. LATENT AMDiaUITY MAY BE EXPLAIXEJ). SARGENT V. ADAMS. [:$ Gray, 72. ] The defendiint entered into !i written agreement to lease to the phiintiir the "Adams House," in Boston, for a term of ten years. The defendant bad fitted up an old hostelry called the Laml) Tavern, as a hotel, and had christened it the "Adams House." The en- trance to the hotel was on Washiniiton Street, and was numbered 371. The rest of the liround floor of the buikling was fitted up for stores, which were numbered 1, 2, o, 4, and i) Adams House. When the time came for the defendant to [)rcsent the plaintiff with the biase, the latter discovered that it did not include all these stores, but only one of them. He, therefore, refused to accept it, and ])r()ught an action to recover back a sum of money Avhich be 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 oidy 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 latnit aml)ig- uity, as that is understood and explained in this department of the law. * * * \^ i\\\\^ under that 7.S LICADINO CASK8 SIMTLIFIKD. class of rjiscs where the very ^'cMicral description adopted ill !i ('oiitniet will npply to two distinct .sul)- ject.s, and so there is si latent and)ii:uily."' BUT NOT " PATENT AMBiarTTY ! . f ASPl-KN'S ESTATE. [1' Wall. jr. :i(;8.] Mr. Mathias Aspden, a wealthy and eccentric Amer- ican, died without issue, in London, in the year 1S24. There were plenty of relatives to take care of his money, and as they could not agree on the division, a costlv and lenirthv litilingt()n. They told him at Guildford Station th:it the beasts would be duly forwarded to Kinir's Cross ; but they inveiiiied him into siii'ninji' a consiijfnment note by which the cattle were directed to be taken to tlu^ Nine Hlms Station, whit;h was not so far as the cattle-dealer cx^jccted them to go. At this intermediate station they remained and suffered injury from not being f(!d 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 contondcd that the consignment note did not constitute ji complete contract, and that parol evidence could be uiveu of the conversation that had taken place between the plaintiff and the company's servants before the consignment note was signed. In rogni'd to the company's argument that the writ- ten contract was conclusive evidence that tlu> cattle were to be carried to Nine Elms and no farther, Eijlk 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 then(;e to King's Cross. The parol evidence, therefore, docs not vary or contra- dict the written document, but only makes an addition to it." USAGES OF TRADE MAI' BE SHOWN. COOPER V. KAXE. [1!) WoiKl. ;i8(;; Law.son, Us. & C. 33i).] A property owner in the capital of the State of New York emploved a contractor to oiade a lot so as to make it conform to a plan of the streets established by 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 COXTKACTS AND OKAL EVIDENCE. 81 time, for which the other, when the work was done, was to pay him $1S0. As the excavating went on the contractor piled the sand, which was taken out, on an ndioiniiii!; h)t, and as was not straiii^e (for when tlic work wa.5 finished the sand taken out was worth at least $150), both pai'ties claimed it. *' It certainly iras mine," said the owner, " and our contract docs not say that you are to have $180 (iiul the 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 ownci" of the prop- erty. But on ai)[)eal 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 oidy fair to conclude, they said, that the parties contracted v/ith reference to it. 80UTIER V. KELLEK3IAX. [IS Mo. 500.] This somewluit novel case calls for a little arithmeti- cal calculation. Mr. Soulier, Avho was doubtless l)uilding a new house, ordered four thousand shingles of a lumber dealer, and paid for them, too. In due 'J , 3 82 LEADIN(f rASf:S SI.AU'LIFIED. course of time the dealer's wagon eamc along, and dumped eiglit large packages of shingles down into Soutier's yard. "It strikes me that there lias been somethina- Avronir in the count," said Soutier, when he saw the p'ickages, " 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. Then he hied his wayto the lumber dealer's. " I paid vou for four thousand shinht and the seller Avronij, while the second court thought just the oi)i)()sito about the case. But unfortunately for Soutier, the second court was the Supreme Coui't, and .so ho lost his monc}'. The Supreme Court said that usage was always admissible to explain the meaning of a con- tract. The court below could never have heard of the WllITTEX CONTRACTS ANJJ) ORAL EVIDENCE. 83 English Riibbit Ciise,' or it never would have made such a. mistalve. lu tliiit celebrated case, Mr. Smith leased from Mr. Wilsou a rabbit warren, and cove- iiiintod that at the end of the term ho would leave on the land at least ten thousand ral)bits, Wilson to pay hiin £()0 a thousand for all he left. When the lease was up two persons v/ore appointed to count the rab- bits, and they reported the number at nineteen thou- sand two hundred. But when Wilson came to settle ho wanted to pay for only sixteen thousand rabbits, on the ground that " thousand," in that part of the coun- try, when ap[)ried to rabbits, meant twelve hundred, or a hundred dozen. Smith did not see it that way, and brought an action for nineteen thou:?and two hun- dred rabbits, at £C)0 a thousand. But the court allowccl Wilson to show that the custom of the coun- try was just as he had contended ; and all the judges of the Kinii's Bencli aa'reed that this was correct law. Tlierefore, said the Sui)reme Court of Missouri in Soutlpv V. KeUcrmaa, " the usage of a particular trade is evidence from which the intention and agreement of paities may be iin[)lied ; and although it cannot con- trol an ex[)ress contract made in such terms as to bo entirely inconsistent with it, yet in express contracts the terms employed may have their true meaning and force best understood bv reference to such usaire. Evidence of such usage is adnntted, not to vary the terms of an cxi)ress contract, or to chan"ation of the contract as made. The usage must appear to be so general and well established that knowled«re of it ""'C ■^'0 .•^3 ■■'I' !4 ' Smith V. Wilsou, 3 Barn. & Adol. 1'1S\ Lawsou, Us.&C. iW5. 84 LEADIXC^ CASKS SIMl'LIFIKD, may be presuincd t<» exist ainoiiir those dealing in the husinoss to "whieh it a[)i)lies ; so that the coiitraet of the parties ma}' be taken to liavc been made with reference to it. In this conntry, many articles which arc in terms sold by the l)nshel (a dry iiieasnre con- taininix •eiirht li'idlons), are in fact sold by weiiiht, the bushel beiiiij; understood to mean a certain numl)er of poinuls, and the number of pounds diffi'ring in diller- eut articles — as salt, wheat, etc. When such custom becomes general and Avell established, so as to be known to the community, it is obvious that a contract for a given n'umber of l)ushels must mean the bushel as ascertained l)y weight, whether, in fact, the number of pounds of the article sold would measure more or less than the real bushel. In the ])resent case tlun-e was evidence that a general custom prevailed in tlu; lumber trade of estimating two packs of shingles of certain dimensions as a thousand shingles, without reference to the number of i)ieces In the pack. If such was the usa<;e of tlu; trade, so <>"eneral and well established that those l)uving and *elHni>' mmht 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. Tin; 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 exjjress agreement that two bundles sliould re^jresent 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 shlnghvs meant two i)acks of certain dimensions. Whetluu' there was as full evidence of the usage given as ought to have ])een given, is not '.\ ■WRITTEN CONTRACTS AXD ORAL EVIDENCE. 85 question upon which wc i)iiss ; hut there was evidence of the usage, U[)on which the pui'ty wtis entitled to hiive the hiw dilFerently dechired, if the evidence proved the usage as general, Avcll established and known so that contracts might be presumed to l)e made Avitli reference to it. USAGE MUST NOT COXTRADICT CONTRACT. liLACKETT V. ROYAr^ EXCHANGE ASS. CO. •its [2 Cromp. & J. 244; Lawson, Us. & C. 413.] An insurance company made a policy, which by its terms, was expressed to be on " the ship (that is the l)ody), tackle, apparel ordinance, munition, boat and other furniture of the ship called the Thames" from London to Calcutta. One stormy day during the voA'age. a suiall ])oat, which was slung upon the outside of the ship, on tlie 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 C I SG LEADIXG CASF'.S SIMPLIFIED. direct variance with the words of the policy, and in phiin opposition to its hinguago, for whereas the pol- icy impntcd to be on the ship, and furniture, and apparel generally, the usage offered was to say that it was not on all the furniture and apparel, but upon only a part, excluding the boat. " Usage," said Lord Lyxdiiurst, 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 CO^TRACT8. 87 TI. — Illegal Coxtkacts. CONTRACTS TO PUEVEXT COMPETITION. tf GULICK V. AVARD. :^3 [5 Ilalst. S7; IS Am. Dec. ;38i).] Thoro wore sciunps with eyes .set on the sweets of the post-office (lepiii'tnient, long before the days of Star lionte.s. When James Monroe was President, Giilick 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 signed, that if Gnlick 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 vv'ithdrew from the compe- tition, that Ward did get the contract and then, very ungenerously refused to hand over the $1,000. 'K . 111'- 88 LEADING CASES SIMPLIFIED. Gulick sued him, but without success. The court tohi hini that courts of Justice did not sit for the purpose of cufori-ing contracts aj::ainst public policy, and his contract with "Ward was decidedly one of that kiducv. An arrangement which diminishes the num- ber of com[)etit()rs, lessens the number of i)roposals, or induces anvlxxlv to abandon his intention of inakinir un olfer, is directly opposed 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 tlu^ bar- gain, as his reward for making an illciral a()vernment officers are ai^ainst public policy and void.' COXTRACrS IMPEDIXC THE AIUnXISTIiATION OF JUSTICE. COLLIXS V. BLAXTERX. [2Wils. ;U1; 1 Smith's Lcl. Cas. 400.] AmoniTst other misdemeanants to be tried at the ' If the stiuk'ut is in search of a counsers argument to serve as a model for liimself, he will find one in tlie brief of the counsel for the defendants in tlie Supreme Court as reported in this case. It is one of the best in tlie American K^'ports, its brevity being as con- spicuously noticeable as its learning and rhetoric. i)(> i.KADlNO CASKS SIMI'LIFIKD. Staftortl Smnmer Assizes, 170"), were five persons charged with perjiirv. It h:ipi)eiiet1, however, that their prosecutor, a ^Ir. Kiulge, was not of that h)fty character which wouKl proni[)t him scornfiill}^ to reject a brihe. The perjurers decided that he might be " o-ot at," and they set to work accordingly. A friend of theirs, a disreputable surgeon named Collins, was persuaded to pay Rudge £350 to " square " him ; and, to indcnniify Collins, 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 which is ascril)ed 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 was laughed at for his pains ; and wdien at last he sued on the bond, the jjcrfidious 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 sti[)ulate for ini(piity. All writers upon our law agree in this — no polluted hand shall touch the pure fv)untains of justice. VViioeveris a l)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 Olproculesteprofanir'' ILLEGAL COXTKACTS. ill SCOTT V. AVERY. [.■) II. L, Ciis. 811.] This Wiis ail action, by a irciitleiiiaii whose uood j^liin had j^ono to tho bottom, airaiiist a Newcastle Insurance Association, of which both plaintiff and (lofeiulants wore niombers. The dcCendants relied on one of the rules of their jissociatioii (which the plaintilf as a niembcr had, of course, bound himself to observe), which pro- vided that no member should l)rin if the piirtics. But iiothiiiix i)rcvciits \r,u'. tics fVoin iisccrt.'iiiiiiiu" iiinl coii^^fitiitiiiir, :is tlicyi)le:is(\ {\n\ ciuisc of action which is to bitconic tho subjcct- matter of decision by^th(/coirrts.' Covenantinjj^ i)ai'ties may airrco^hat, in case of an aneir<';reement. The secularibt now sued him for breach I ii-ij:(j.\i. ( ontkac rs. 93- of ('onti'iU't , Itiit tilt' coui'l (K*i(l«' purpose for which the |)hiinlitr iiitfiukMl to usi; the rooms \v;is ilh'<:;!il, find the colli r:i(t , ihcrdoi-c, oiio \vhi<'h couhl not l)tv ciiforctMl at law. "The (|ucstion is,"' said Chief • Haroii Kr.1,1-^, "whether one wlio has contracted to let rooms for a purpose styted in i.^eneral terms, and who atterwards discoveis that they are to he nsed for the (hdiveiy of h'ctiireiS in support of a p'roi)osi- tion A\diieh states, with r''S[)ect to our Saviour and His leachiiiii, that thelirst is defective and tlu^ sec- ond misleading', is nevejM heless hound to i)erniit his. rooms to he used foi- that, [)ur|)()s(! in pursuance of that i^^'ueral conti'act. 'I'here is ahundant authorit\' for saying" that rhristianity is part and parcel of the law of the land, and that therefore to support and maintain pul)licly the [)roi)ositioii I have al)ove men- tioned is a violation of the tirst princi[)les of the law, and eaimot l>e tlom^ without l)las[)heiiiy. I, there- fore, do not hesital(^ to say that the delVnchint was not only entitled, hut was called on and hound hy the law, to refuse his sanction to this use of his rooms." CONTRACTS VTOLATTXG STATUTES. 1 f i' >:- I . \. ■ PATTEi: V. GREELEY. [Ill Mete. L'S4.] It is enacted hy statute in ^Massachusetts that " no person shall do any manner of lahor, business or work, 1)4 LEADING CASES SIMPLIFIKD. except onl}' -works of neeessit}^ aiul cliiirity on tlu! Lord's day." This being the state of the hiw, a couple of bakers drew up an agreement which, after reciting that one liad purchased of the other certain bread routes, bound the other in the sum of $500 to quit these routes, and not thereafter to interfere with the eaters of bread tliereon. To this they set their hands and seals, but even this solemnity did not ijrc- 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 uelivered on Sunday. And this being proved, the court decided that it could liot coini)el him to pay it, the plaintiff being unable to show that the execution on Sunday was a work of cither "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 l)usiness on the Lord's da}', and did not confine the prohibition to manual labor, but ex- tended it to the makini*' of barirains and all kinds of trafficking. The genei'al princi})lo that an action Avill not lie on a contract made in contravention of a stat- ute is well established." ^i»i ILLKGAL COXTUACTS. 05 IMMORAL COXTUACTS. PEAUCE V. KROOKS. [L. K 1 Exch. 21 4.] The plaintiffs were coaeli-buildcrs and the defendant, one of the demi-monde, had purchased a hronr to enable he: .o carry on her trade, as, for instance, shoes sold to a street wallier ; but that the tilings supplied, for which no action can be l)roijght on account of the immorality of the contract, must be not nierclv such as would be nccessarv or useful for ordinary purposes, and might also l)e applied to an immoral cue, but they must be such as would not be required at all except with that view. The jury l)rinir- iiig their knowledge of the world to bear upon tiie case, thereupon found u special verdict that the brougham was used by the defendant as part of her dis- play to attract men, and that the plaintitfs knew it was to be used for that purpose, which the judge thought ;;i 96 LEADIN'Cr CASES SIMPLIFIED. was a very proper one, as the inference that a prostitute (who swore that she conhl not read writing), reciuircd ail ornamental carriage for the purposes of her calling was as natural a one as that a medical man would want a hrougham for the puri)(>se of visiting his patients. The defendant therefore li:id a verdict which was af- firmed on appeal, all the judges l)eing 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 i)e used for that purpose, cannot re- cover the price of the thing so supplied. WAGERS. GOOD V. EL1.IOTT. I" [;! Term Ucp. C'.is.] Good, Elliott and Heath were discussing local mat- ters at the cross-roads, when Good ha[)pened to remark that that new wagon of David Coleman's Avas a beauty. "Coleman hasn't any wagon," said Elliott, " he sold it to Susannah T^'e long ago." " Nonsense," returned Good. "What will you bet?" said Elliott. "I'll bet you live guineas," said (iood, " that Susannah Tye has not bought Coleman's wagon." " I'll take it," replied Elliott. A forfeit was put up in Heath's hands. On iiiquiry it turned out that Elliott was mis- l if ILLEGAL CONTUACTS. 97 tiikoii, :um1 tliiit the wiigou was still ColciiKiii's. But lie Avould not pay up, and (rood sued him. The (pies- tion Avas wheliier a waiter was i'ec()V^eral)le at all, and the court decided that except where they are against l)ui)iic polic}',^ or are indecent,' or tend to injui-e the feeliniis of third i)arties,'' waii'crs are not illeiial ; hut it" not paid, may be recovered at law. ' Oil this iiroiiiiil the following Wiigers liiivr Ix'cii declared void at comniou law : That one of the parties would not marry (because contracts in restraint of marriage are void, siivpast]). lOi'), Hartley r. Kice, 10 East, 22; that a certain bird will win a ctjck-light (because it encourages cruelty), lirogdeii v. ^Marriott, JJ I5ing. X. C. SS ; as to the future amount of the hop duty (because it might expose to all the world the amount of the public revenue, and Parliament was the only proi)er place for the discussion of such matters), Alherford V. Beard, -' Term Kep. (ilo; as to the duration of the life of Napo- leon IJonaparte (i)eeausi' it gave one party an interest in keeping the king's enemy alive, and theotlier an interest in compassing his death by unlawful means), (Jilbert c. Sykes, k; East, l."0; as to whether a ju'isoner will be convicted on a criminal chiirge (because it gives one of the parties an interest in obstructing or corrui)ting the fountains of justice), Evans r.,Iones, 5 ]\Iee. & W. 77; as to the result of an elec- tion (because it gives each party an interest in corrupting the vote or falsifying the count), IJuiin v. Hiker, 4 .lolms. 4l'i!; s. c. -4 Ain. I)ec.2'.)L*; Vischer c. Yates, U Johns. 21 ; liust c. Gott, » Cow. 1(J'J; .s. r. IS Am. Dec. t'.)7;-IIill c. Kidd, 4;i ("al. Clo. ■^ Thus a wager as to whether a certain person is a man or a •woman, (Da Costa r. Jones, 2 Cowp. 720), or as to whether an un- married woman will have a child by a certain day (Ditchburii r. Gohlsmith, 4 Camp. ir»2), is voitl. ■' So, as said in llie principal case, a wager that a j'oung lady who passes for twenty-three years of age is really thirty-three, or that she sfpiints, or lias a mole on her breast, would be void. In a later Knglish case A. and J5., two rival coach drivers, each bet tlio other his watch that Col. H. would go by his coach to an entertainment that evening. t)n an action being brought for the stake, Aiuiott, .!., at the beginning of the argument, .said : " I doubt whether this wager be legal. The effect of it would be to subject a third party to great inconvenience by exposing him to the importunities of tlie 98 LEADING CASES SDirLIFIED. The stuclent should ivmcinher to note iinothcr excep- tion, viz. : that the particular wager shall not be pro- hibited by statute. In their irrancbnothorly care for the morals of tlie citizen, the Legislatures of most of the States have made illegal a variety of Avagers, and therefore such bets as come within these statutes will be void, although valid enough at common law. COSTIiACTS ly RESTRAINT OF TRADE. AHiElt V. THACHKU. [Ill rick. :A\ ;U Am. Dec. UK.] Thacher, on seHin.' M for ti)ese reasons Ali^er left the court-hou^e v--' ;". *^ lis money, u sadder and a wiser man. He nn-lii. h.ive fared worse had he lived in the time of the Phmtagenets, for when the Judge to whom, by liis hiwyer, the fifteenth-century Mephistophiles sent his bond, read it over, he tlew into a passion, using soi.ic ILLEGAL CONTRACTS. 101 very strong langnaoc in some very strange French, to the effect that, " If the phiintltFwas hero he should go to ])rison, until he hail paiil a good round tine to the king for his pains, by God." ' 31TTCHETj v. REYXOI^DS. [<; r. Wins. 181 ; 1 Smith's U\. Ct\s. .".08.] Lcadiiiir eastwards from that sweet thorouohfare, Gray's Inn Road, London, is, or till quite recently was, a street called Liquorpond Street. In that street, soniethini; like two hundi'cd years asfo, there dwelt a prosperous baker. So prosi)erous was he that he baked himself a fortune, and retired on it into private life. But before retiring he sold his business to the plaintiir, and executed a bond in which he undertook not to carry on the ])usiness of a baker in the parish of Sf. Andrei/:, Ilolhorn, for Jive yearn, under a penalty of £50. The baker did not know his own mind. Ketire- ment suited him little, and his lingers were everlastingly itching to l)e in the pudding. The end of it was that louix !)efore the five vears were over he was bakinii" away as hard as ever, and in the aforesaid parish, too. ' The ratlicr vigorous judjiment of IItll, J., in this case is thus reportcHl : " .\ inii intent vons pnrres avec deinnrre snr ley <|ue I'oblisation est voide ce (lue lo condition est encounter eonnnou ley ct per Dieu se le plaintiff fait ici/ il irra al pnsuii tanque il ittii,, Mitchel now sued the perfidious baker on the bond to recover the £50, and, what is more, lie did recover it. Though a contract in ahmhtte restraint of trade, is not worth the paper it is written on, a contract in par- tial restraint of trade (tliat is where the tradiuii; is not to take place within a cei'tain area) may be good. But even here there is another proviso, viz. : that the restraint nmst be reasonable, that is to say, it must not be greater than will ailbrd a fair protection to the benefited party. The contract of our friend, the baker, was very reasonable — £10 a year for five years 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 this little parish where he could knead and bake to his heart's content, with no fear of interference. And so the agreement was i)erfe('tly legal. Thus, and much more to the same etiect, spake the court oi King's Bench. CONTRACTS IX IlESTPAINT OF MARIUAGE. LOWE V. PEERS. H Burr. L>1'25.] In the ardor of liis 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 promise Mrs. Ciitheriiic Lowe that I will not niiirry Nvitii iiiiy person l)esides hersi-ir; if I do, I agree to pay to the said Catherine Lowe £1,000. within three months next after I shall marry anyone else." Ten yenrs passed away, and then the faithless swain married a girl that was not Catherine Lowe. The in- jured lady brought an action on the doeument, but after learned argument it was resolved that it was void as being in restraint of marriage. According to the view of the judges — the only sensible one — Mr. Peers' promise had not been to many Mrs. Lowe, as might seem at tirst sight to be the case, but he had promised not to marry ant/hod y except Mrs. Lowe : so that if tiiat good widow from cajjrice, or otherwise re- fused to marry him, he would be compelled to live all his days the celibate and cheerless life of a bachelor. K MARRIAGE BROKAGE CONTRACTS. s; CRAWFOUl> V. RUSSELL. [('.2 Barb. 1)2.] Jeremiah Russell was a wealthy widower in Ulster County, New York. Christina Koe had her eyes on the old irentleman's wealth, and made up her mind to 104 LEADlN'an to yield to the charms of the lovely Christina, it was Susan that had to i)ay for all the wood and oil that was burned during the lonij winter eveninos that he carried on his court- ing in the Crawford house. At last, in less than a year, the bait Avas hooked, and Christina became Mrs. Jere- miah Russell. Then as soon as the wedding feast was over, Susan Crawford began to speculate on the date of TLLR(}AT- CONTIIACTS. 105 the I'lMicrnl. Thorc sho iniscMlciiliited very l';ir, Cor it \v;is Iwciit V years before? Jeremiuli got ready for the uiidei'faUer, l»tit wlieii ho did die Cliristiiia was a very rich widow, and a veiy mean one, for she deelined to p.iv her ohl friend anvthinjx. Susan brouiilit an ae- tion, hut it was no use. The court said that this was a marriage brokago coiitract, and void. True, the civil huv aih)wcd match-makers to receive compensa- tion for their services, its policy ap[)earing to be tluit all aid rendered in encourajiiiiii- and cstablishiui; mar- riages was for the good of the nation and productive of public morality, inasmuch as it discouraged forni- cation, adultery, and concubinage; but the common law looked at the thing in ji dillerent light. The lat- ter considered that the cllect of such auencics was to enco\irage influences of a pernicious nature b}'^ pro- moting many unha[)py marriages, causing the loss of the inlluence of parents over their children, holding out false and seductive ho[)es, by the self-interest of l)rokaa had l)ccn bouiiht l»v lilm to be snuiiiu'h'd into England; tliat INIr. Ilolnian knew it, and tlio contract was, there- fore, void. jNIr. Ilolnian's counsel replied that it was not void, because there was nothing illeir'i iu t!ic con- tract when made, and he was not res[)on,->iM for what might be done with the tea after it w tst, out of his hands, and in addition he argued that, even if it was illegal, dohnson was as l)ad a sinner as Ilolman in the matter, and it Avould be very wrong to let him take the tea and the price, too, as his share of the swag. The court decided that he was right on the first point, and therefore Johnson must })ay, but that if tho con- tract had been illciral, Ilolman would have received no aid from them. Lord IMansfikld, who delivered the judgment, laid down the rules of law on this question, and the reasons on which thev are founded, with ijfreat clearness, iu the following lauiruaiie : "The obiection that a contract is inunoral or illegal as between plaintiff __ ir.LKOAL COXTIIACTS. 107 and di^ftMuliiMt, sounds at all tiinos very ill in the mouth ofllic dcfiMidant. It i.s not t'nv his sake, however, that the objection is over allowed, hut it is founded in g<'n- oral pi'ineii)]es of policy which the (h'f'endaut has the advantage of, contrary to the real Justice, iu between him and tin; |)laintill', by accident, if I may so say. The principle ot'})ubli(! policy is this : e.v dofo malonon orllnr acfio.^ No court will lend its aid to a man wiio founds his cause of action ujjon an immoral oi" an illegal act. If from tho plaintilV's own stating, or otherwise, the cause of action a[)pears to arise ex turpi cansa,^ or th(^ ti'ansgression of a positive law of this conntiw, there tho court savs he has no riirht to be assisted. It is upon that ground the court j^oes ; not for the sake of the defendant, but l)ecause they will not lend their aid to such a plaintiff. So if the phi"n- tilf and defendant were to change sides, and the de- fendant Avas to bring his action against the })laintiff, the latter would then have tho advantage of it, for where l)oth are equally in i'auh, jj'^ti or est conditio de- fendentisr'' * N ) ciuise of action can firow o>it of a (luestionable transaction. '^ " From a sca'y dealiiii;." ^ Tiie one in possession lias tlie <' inside tracli." :.5 1. ' 108 LEADING CASES SIMri.IFIED. EXCEPT WTIEEE ILLEGAL PURPOSE IS NOT COMPLETED. •"•w SPRING CO. V. KXOWLTOX. [lo;^ u. s. 4',).] The officers of the Conirress ;iik1 Empire Spring Com- panv, in New York, formed a nice little scliome for the benetit of themselves and other stockholders, viz. : to increase the stock to the amonnt of $200,000, every old stockholder to have a full-paid $100 share for $.S0. A paper was passed round among them, to the eU'i'ct that whoever did not pay the whole of the $S0 when called for by the company, would submit to forfeiting "what he had i)aid. This was signed by the stock- holders, among them being Mr. Knowlton, vice-presi- dent of the company. Having taken more of tiio now stock than ho could carry, Knowlton was unable to pay more than twimty per cent on it, and in pursuance of the agreement, his payments were forfeited. It is here important to note that this ^\ hole scheme of in- creasinj the stock in this wav was in violation of the law of the State, and therefore illeiral and void. A little while after, ini'jressed eitlier by fear of the law, or the unrighteousness of the affair, the company con- cluded to abandon the wholt; thing, and refunded tiie money which had been })aid for the new stock. But they inade no effort to i)ay the forfeited sunjs, and so the executor of Mr. Knowlton, who had meantime died, brouirht an r.ction in the Federal court to recover his money which had been forfeited i-u this way. ILLEGAL CONTRACTS. 109 Tlic compuuy set up the liiuhly moral defence, that no trihunal would a'd a party to an illegal contract in get- ling his inoiuiy back. But the court replied that every judge sat for just this thing, if it a[)peared that the contract had not been c()ni[)lcted when the aid was asked for. There was always time for repentance un- til the illegal all'air was consummated. '• It is as old as C'omyns," ' said ]\Ir. Justice Woods, " that where money has been paid upon an illegal contract, it is a general ruh^ that if the contract l)e executed, and both parties are in pari delicto, neither of them can recover from the other llic^ money so paid ; but if the contract continues executory, and the party paying the money l)e desirous of reseinding it, he mav do so and recover back, by action, for money had and received." Luckily for the plaintilf, the company had weakened in its unlawful scheme, and he must have his money. And the court gave judgment for the Know^lton estate for the sum asked, which by this time amo.uiited to something over fourteen thousand dollars. ' Sir John Comyns, Ciiicf Baron of the Court of Exchequer, who about the vear 17<12 wrote a di-'est of the laws of Euijlaud. :.? \u ' 4 no LEADING CASES S13IFLIFIED. yil. — Perpormaxce op Contracts. DISCHARGE BY ACT OF PROMISEE. PECK V. UNITED STATES. •<»3i [102 U. S. 05.] Mr. Peck entered into a contract with tlie proper officers of the United States to fnrnish and deliver a certain qnantity of wood an>U). Twenty-tivo years rolled by when one day a crowd of workman appeared on the scene, and in a few weeks there arose on the sacred paddoclc op[)osite the plaintiti"s residence, a building that was neither a sinnmer-house, church nor chapid, i)ut on the contrary, to (piote the language of the plaintilfs declaration, " certain erections other than those in the deed excepted, to wit : a railway station \vith the ap- pentenances thereof, including water-closets and uri- nals." Of course this was nu)re than he could stand, and he Immediately repaired to his lawyer and com- menced an action against Mr. De Crespigny for breach of (ho covenant in the deed as to erections. The latter re[)lied that Z*^' had not built the railway station ; it had l)een built by the London & Brighton Railway, which company had compulsorily [)urchased the })ad- dock from him by virtue of this somewhat despotic power given to them \)y their charter. He did not want to part "with this property in that way, and was as nuich incensed al)out it as the plaintiff, but the law compelled him and he could not help himself. The Court of Queen's Bench, after lu^aring Mr. De Cres- pigny's plea, decided that it was a good defence, and that the plaintilF could not recover anything. It was a case of an agreement rendered impossible by law and for failure to perform it there could be no liability. "The substantial (juestion," said the court, " is whether the defendant is discharged from his covenant by the subsequent act of parliament which put it out of his rEllFOUMAXCr. OF CONTIIACTS. 113 power to do so. Wo tire of opinion that he is so tlis- chiirged, on the prineii)Ui expressed in the maxim, lex non co(jPt ad hnjjos.slbifia/' ^ IMPOSSIBILITY OF PERFORMANCE. TAYLOR V. CAi^DWELL. [;? Best & S. .S2(;.] In 18()1, Mr. Cahhvell agreed to let Mr. Taylor have the Surre}'^ Gardens and Mnsic Hall for four specified summer nigiits, on which Mr. Taylor proi)osed to en- tertain the British i)uhlic with hands, ballets, acquatic s[)orts, fire-works, and other festivities. Unfortun- ately, before these summer nights arrived, Mr. Cald- welTs premises were destroyed by an accidental fire. Mr. Taylor had l)een i)ut to great exi)enso in jn-eparing for his entertainment, and he submitted that, as the contract was an absolute one, Mr. Caldwell must pay damages for the breach. It was held, however, that the parties nmst be taken to have contracted on the basis of the contiimed existence of the premises, and, as they had been burnt down without the fault of either party, both })arties were excused. The law ap[)licab!e to such cases was thus summed in) by BLACKuruN, J. : " Then; seems to be no doubt that where there is w j)ositive contract to do a thing ' The liiw docs not compel a iiiaii to perform impossibilities. •*3ii; lU LEADIXG CA=ES SIMPLIKIEl). not ill itself unlawful, the contractor must porforni it or pajMlaniauos for not doing it, although in conse- quence of unforeseen accidents, the performance of his contract has become niu^xpectedly l)urthensome, or even iini)ossihJe. I>ut this rule is only ap[)lii'al>lc where the conti-.M't is positive and absolute, and not subject to m . i-btion, either express or im[)lic(l ; and there arc a...i, ,, Itics which establish the princii)le that where, f'om the nature of the contract, it appears that the ])artios n '-t 1 • the beufinning have known that it coidd not be fultiUcd, unless when the time for the fultilment of the contract arrived, some particular specified thing continued to exist, so that, when en- tering into the contract, they must have contemi)latcd sucli continuin<>; existence as the foundation of what "was to be done, there in the absence of any exjjress or implied warranty that the thing shall exist, the con- tract is not to l)e construed as a [)ositive contract, but as subject to an im[)lied condition that the parties shall be excused, in case, l)efore breach, performance beconies impossible, from the perishing of the thing without default of the contractor." i Uf POSSIBILITY BY ACT OF GOD. KOIMNSOX V. DAVISOX. [L. K. (1 Kxch. L'l;;).] An eminent jiianist, known professionally as Miss Arabella Goddard, was the wife of the defendant in PEUFOIIMAXCK OF COXTIt ACTS. ii; this caso, ^Iv. Davison. Mr. Robinson, whoso l)nsi- ncss was that of a concert nianau'cr, made a contract with Mr. Davison that his wife shonhl perform at a concert on the niijht of the 14th of Jannary, 1871, for a certain sum of monov. The former o-ot cverv- thiiiij ready for the performance, but on the morning of the 14th, instead of Mrs. Davison, there came a letter from her, sayinii" tiiat she was too ill to attend the concert, and incU)sing a medical certitlcate to that elfect. 'Phis did not suit Mr. Robinson, at all, and so he bronirht an action for the l)reacli of the contract, l^ut all the court held that the sickness, if real, was a oood excuse. " This is a contract," said Baron BKA.'\r- WKLL, "to perform a service which no d(>i)uty could [K'rform, and which, in case of death, could not be performed by the executors of the deceased; and I am of opinion that, by virtue of the tcuMUs of the oriuinal barirain, incapacity either of body, or mind, in the performer, without default on his or her })art, is an excuse for non-performance. Of course, the par- ties miirht expressly contract that incapacity should not excuse, and thus preclude the condition of health from beiiiu annexed to their agreement. Here they have not done so, and as they have been silent on that point, the contract must, in my judgment, be taken to have been conditional, and not absolute." Baron Ci.EASHY was of the same opinion. Said he: "This is a contract that a lady should perform as a pianist ; that is, should undertake ;■, duty requiring a high degree of skill and taste, and one which, if not per- formed pro[)erly, can hardly be said to have been per- formed at all. It is, moreover, ii duty which could not be done by a deputy, but only by the lady herself, IIG LEADIN(f CASrvS M.MI'MIIKD. and that being so, I think that disabilitv^ or inr.ipacity caused by tlie act of God excuses the? defendant. The whole contract l)et\vcon tlie ])arties was based upon the assumption by both tliat the performer wouhl continue hving and in sufficient health to play on the day named. This was really the very foundation of the promise, and vvhen the foundation fails the promise built on it must fail also." DEAVEY V. UXIOX SCHOOL DISTRICT. I- •-31;: ' [43 Mich. 480.] The school directors of a town i i Michigan hired a teacher for ten months ;it a salary of $130 a month. He had no more than entered on his duties, 1)eforo the small-pox broke out in the neighborhood, and raged to such a ffreat extent that the directors did the onlv proper thing under such circumstances — they closed the school until the epidemic had abated, which was something like three months. At the end of that time the school was re-opened. The schoolmaster went back to his work, and also [)resented a little bill to the board, for the amount of his salary duriiiijc his enforced vacation. But the directors replied (there was most likely a lawyer on the board) : " The act of God made it impossible for us to keep the school open, and the law books say that the act of God will excuse the faih lire to carry out a contract." The schoolmaster said PERrOIJMANCE OF CONTRACTS. 117 ho Avould SCO about tlisit, :ui(l striiiu'htway sued the directors. The defeiidiint's hiw, tlie court siiid, was sound, but, for ministers ofpublicin.struct ion, their mis- use of words was horrible. It was hot " inip()ssi])le " to keep the school open at such a time ; it was simply *' daui^crous." The act was not one of absolute neees- sity, but of strong exi)ediency. Therefore, they did not come within their own definition, and the school- master must have his monev. .:'.3 ■ * BENUXCIATIOX BEFOUE PERFOIUIAXCE DUE GIVES niaiir to sue. HOCHSTKIt V. I)i: T.A TOUR. [2 El. & HI. t;78.] Mr. De La Tour, meditating a tour on the continent, enj^aired llochster as his courier at £10 a month, the service to commence on June 1st. Before that dav came, however, Mr. De La Tour altered his mind, and told llochster he should not want him. AVithout wasting words or letting the grass grow under his feet, and before June 1st, Hochster issued his writ in an action for breach of contract. For De La Tour it was arirued that Hochster should have waited till Juno 1st before briuirinir his action, for that the contract could not be considered to be broken till then. It was held, 118 LKA1)IN(} CASKS SIMI'LIFIKD. however, that the eoiitnict li:ul Ix'cii siiffieieiilly l)r()l an act on a future day, there is a rehition constituted Ix'tween the parties in the mean- time l)y the contract, and they impliedly promise tlnit in the meantime neither will do anything to the prejudice of till" other incf)nsistent with that relation. As an ex ■ ann)le,a man and a woman eniraixed to nKirrv,ar(! afTi- nnced to one another duringtheperifxl between the time of th(> engagement and the celebration of the marriage. In this very case of traveller and courier, fromtlio day of hirini; to the davthe emplovment was to bcirin, thev were engaged to each other; and it seems to be a l)r(>ach of an implied contract if either of theiu re- nounces his euiraiijement." ^iSii' I-/ •'•,1' "••Si.' FROST V. KXIGHT. [L. H. 7 Kxch. 114.] i\Ir. Knight promised his sweetheart that, though he could not marry her at once, he would do so the moment his father died. Soon after he repented of his promise, and in the lifetime of his father, told her frankly that he took back what ho had said, and Would never marry her. Instantly, without waiting for the old gentleman's death, she went to law and recovered, too. "The promisee," said Chief Justice PKIU'OK.MANCK Ol' CONTHACTS. 11J> CocKiuruN, " hiis ill! inchoiitc right to the port'onnunco of the l):irg!iin, wlilch becoines compli'to whoii tho time for [X'l-roriuiuu'o arrives. In tlie nu'untiiiK^ ho hus a right to have tho eoiitract ke[)t open as a sub- sisting and ellective eontraot. Its unimpaired and un- inipeaehed efHeaey may be>essential to his interests." COXSTJtUCTIOX OF CONTHACTS. ROK V. TUAX3IAR. rWilU's CliL'; L' Smith's Ld. ('as. 44-4.] A deed bade fair to beeome void altogether as pur- porting to grant a freehold hi futuro — a thing which the law does not allow. It was saved, however, from tliis untimely fate by tho merciful construction that, though void as what it purported to be, it might yet avail as a covenant to stand seised, tho court citing the maxim, beiiirfue faciewlce sunt i titer pretatlones chartanim, lit res magis va/eat qiiam pereat, which means that instruments ought to be construed leniently with all allowances for the ignorance of people who are not lawyers, in order that, if possible, tho transaction may be supported. 120 LEADING CASKS SIMrLIFIKD. nnEAriT or rffn}rrsr: or maruiage. •"J WUIGIIT>IA\ V. COATKS. [1j Mass. I ; s Am. Doc. 77.] Miss Miiria Wright miin compliiiiK'd th:it .losliua Coiitcs had brokoii his proiniso to make her Mrs. Coatcs, and had married somebody else. For this she asked dainajres in a Massachusetts court. There was no ex- press promise on Joshua's part, hut there were a num- ber of nice letters, which she produced in court, all written b\ him, in which he called jier his dear IMaria, and besides, had he not taken her to siuiiiuLj-school tor two years, and always si)ent at least two other eveniuirs a week in her company? Joshua's lawyer, hoAvever, was not satistied. In the Hrst [)lace ho object- ed that actions of this kind ou'jlit to be diseouracjed by the courts, who should refuse to listen to complaints of this chiiracter, and this objection beinij^ overruled (for said the court, "Wo can conceivo of no more suitable ground of ap[)li('ation to the tribunals of jus- tice for compensation, than that of a violated promise to enter into a contract on the faithful performance of which the interest of all civilized countries so essen- tially depends "), he fell ])ack on the further objection that, as Maria had not shown an express promise by Joshua, she could not succeed. But here ho was over- ruled again. " That young peo})lo of dillerent sexes," said Chief Justice Parkku, " instead of having their mututd engagement inferred from a course of devoted PKni'Oini.\\( K OF CONTKACTS. 121 attention, .'uul appiu'cntly exclusive attaclnnonl, wliicli is now tho coninioii evidonco, should ho obliged, Ixd'ore tlioy considered llieinselves Ixu.'.il. to I'all witnesses or (ixecnte instruments under lianproaching nup- tial l)liss. But before the ha[)py day came, she was disgusted to find — so she said — that her lover had an abscess on his breast ; and immediately the fever loft her. She vowed she would never link herself to a putrid mass of corrupting humanity. Mr. Atchinson ])r()Ught an action for breach of i)romiso, and tho trial elicited some valuable remarks from Lord Kkxyon : *' If tho condition of tho parties is changed after the 122 LEADING CASES SIMPLiriP:D. time of milking the contract, it is ;i good cause for either party to break off the connection LortI Maxs- FiELD lias held that if, after a man has made a contract of niarriaue, the Avoman's character turns out to be different from what he had reason to think it was, he may refuse to marry her without being liable to an ac- tion, and whether the infirmity is bodily or mental, the reason is the same ; it would be most mischievous to compel parties to marry who can never live happily together." A A WILLARD V. STONE. [7 Cow. 22; 17 Am. Dec. 496.] Miss Willard had the same kind of trouble with Mr. Stone that Maria Wrightmau had with Joshua Coates. AVlieu she got him into court he did not deny that he had promised to marry her ; but, said he, '■' AVhen I gov back from a journey out West, everybody said tiiat a fellow l)y the name of Frink had cut me out wliiie I was awav, and this was the reason I broke oft' the en- gairement." " We cannot list(>n to evidence like that," the <'ourt replied, " for Miss Willard was not respon- sible for whatever Danu» Rumor might say." " But ouixlit I not to l)e allowvj.l to prove that after our engage- ment was l)rok('n off she used to take long walks at night with Frink, and was often guilty of very gross and mdecent familiarities with him." " Certainly," said the court, " evidence of what kind of a character the I'ERrORMAXCE OF CONTRACTS. 123 female complaining is, is always admissil)le in actionb of this kind. The ohjeet of those actions is not merely a compensati(ni for the immediate injury received, but damages for loss of reputation. This, of course, must depend on her general character both before and after the l)reacli of promise." And ]\Iiss Willard, on account of these little indiscretions, lost her case. ■ 3 ^.V ENTIRE CONTRACT CANNOT TIONED. BE APPOR- CUTTER V. POWELL. [G ToriA lU'p. IJi'O: '1 Smith's Ld. Cas. 18.] The defendant liad a ship which was a])out to sail from »Tamaica to England, and wanted a second-mate. In answer to an advertisement a suitable person pre- sented himself in the shape of ]Mr. T. Cutter, and the defendant gave him a note to this effect : — " Ten daA's after the ship. Governor Parry, myself master, arrives at Liverjjool I promise to pay to Mr. T. Cutter tlie sum of 30 guineas, [)rovided he proceeds, continues, and does his duty as second-mate in the said ship from hence to the port of Liverpool." The ship set sail on July 31st, and arrived at Liver- pool on October 11th. But life is very uncertam ; 124 LEADING CASKS SIMPLIFIKD. !"■■" '•31,, .. and on the voyaue Mr. T. Cutter exclKinirod the bil- lows of time for the haven of eternity. He had gon • on l)0!ird on July 31st, and had performed his duty faithfully and well up to the time of his death, whieh oceurred on September 20tli, — that is to say, when more than two-thirds of the passage were aecom- jjlished. If on these faets the unso|)histi('ated but thoughtful student were asked wiiether jNIr. T. Cutte. > family would l)e entitled to see anything of the 30 guineas, the probaliilities are that he would reply, " Certainly ; thev might not be able to get the "wlioh; 30 guineas, biit I supi)ose they would get something for the man's serviee froiU'July 31st to the tiux; of his d(>ath." In this oi)ini()U the unso[)hisli('ated but thoughtful stu- dent would 1)0 wrong. " In this ease," said one of the judges, " the agreement is eonelusive ; the defen- dant only engaged to pay the intestate on condition of his continuiuiT to do his dutv on board durinii; the whole voyage, and the latter was to bo entitled either to 30 guineas or nothing ; for sueh was the agreement between the parties." Said another of the judg(>s : ' This is a written contract and it speaks for itself. And as it is entire, and as the defendant's promise de- pends on a condition precedent to bo pert'ormed by the other party, the condition nnist bo performed before the other party is entitled to receive anything under it.-'i ' TIic cdurtH at ilit; present day seem to rejiard the rule in Cutter V. Powell as a lianl one, and rather favor ixTiniltinLC the party who has not wholly completed thu entire contract to recover for what ho has done (especially where the otlier party retains the bcnellt), less the dama;:e sustained by the latter by reason of the PERFOUMANCE OF CONTRACTS. 125 MEASUBE OF DAMAGES ON BREACH OF coy TRACT. HAI>T^EY V. I?AXEXr>AI.E. [9 Exch. 3-11. J Hiulley & Co. were owners of ji steam-mill Jit Glou- cester. It happened that the shaft of the engine broke, and they gave it to the defendant, a carrier, to take to an engineer at Green wieh to serve as a pattern for a new one ; the defendant's clerk being informed that the mill was stopped, and that the shaft must be deliv- ered immediately. But through the negligence of the defendant the shaft was not delivered promptly, and in conseciuence Hadley & Co. did Jiot get the new shaft until several days idler 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 i)rofits which they would h;i ve made if the new shaft had come to them when they ex[)ected it, Iladley & Co. l)rought an action, and the question was whether the damages were too remote. The court held that i' the carrier had been made aware that n'5 ■ 3 partial UiifuKUment of tho contract. Thus, in a recent case where I), hired 15. to work for him for seven months at §15 per month, and H. woiked only llfty-nine days and then (piit without any {lood excuse, it was, nevertheless, held that 13. niitrht recover from D. the sum tliat his fifty-nino days' work was worth, deducting the damafre to D. from his breach of contract. Duncan v. Baker, 21 Kas. !»!), 4 1 ji 12G LEADING CASES SIMPLIFIED. fo,t' "511''. '-3' I.' a loss of profits would result IVoni delay on his p:irt, ho would have beeu answonihlo. But it did not a[)- pear that he knew that the want of the shaft Avas the only tiiinij which was keei)inii' the mill idle, and there- fore he could not he liable for the loss of i)rorits. Iladleii V. Baxendale is justly ror's iiitcivst wliatcwr ho might c'h.'inco to find tluTo. This proceeding Twvne, who snddenly :ip- l)o:u'ed on tlu; scene, sti'ongly objected to, for, suid lie, " everything on tiiis fiinn l)elon«>-.s to rue, not to Pierce," mid in [)ro()f of his assertion, he produced the deed of conveyance. The qnestioii then wa.s whether this deed of convey- ance was void within the meaning of an act of Parlia- ment called the l.'lth Klizaheth (from being passed in the thirteenth year of the reign of thai, [)ublic-spirited queen), which [)rovi(led that all gifts and conveyances, whether of lands or chattels, made for the purpose of de- laviui:: <>i" defrauding creditors, shall be void as aLrainst such creditors unless made ui)on;i valual)]ec<)nsi(lerati()n and bona Ji (If 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 Jiilc, and Iherelore it was within the statute, said the court, for tlie following six reasons : 1. It was impossil)le that anybody could really 1)0 so generous as Farmer Pierce had i)ro[)osed to be. lie had given awav evervthing he had in the world, even down to tin; boots he was wearing. Such self- denial could oidy be the cloak of fraud. 2. In spite of his ap[)arent liberality Farmer Pierce did not let one of the thinu's no, but " con- tinned in i)os.session, and by reason thereof he traded and IratKcked with others and defrauded and deceived them." 3. The conveyauco was made in secret. This WHS a very suspicious circumstance. If there was no s i ffm 130 LEADIXO CASKS SIMPLIFIED. fraud why was there so much mystery about it? Why was not it done o[)enly? 4. It was made wlieu (rrasper had already com- menced an aotioii and evidently meant l)usine.ss, 5. There was a trust between the parties, and ** trust is the cover of fraud." (). The deed alleged that the gift was made "hon- estly, truly and hona Ji(h','' and that was a very sus- pici(His circumstance in itself. liECOVEUY OF MOXEY PAID UNDER MISTAKE. 3LVr^KIOTT V. HA3IPTOX. [7 Terin Kep. 2(!;) ; 2 Smith's Ld. C:is. 3!)3.] This case should impress the student with the wis- dom of taking care of the recei[)t 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, ho put it where he could not find it. By-and-by Hampton, — re- lying, it may be, on his knowledge of Marriott's care- w I'EUFOHMAXCK OF CONTILVCTS. 131 loss pfciitlenianly hiil)its, — scMit in his bill iiiruin with tho air of a loiij^-siifroring and ill-nsed creditor. Mar- riott had a distinct recollection of having paid for the trousers, and stiid so. ILun[)ton, however, challenged him to show pa[)er, and though Marriott looked high and low for the document, it could not be found, and, as IIami)ton bronght an action, he was obliged to pay over ana in. v.. But it came to pass that after a while the missing receipt turned up, and ^larriott carried it in trium[)h to Hampton's shop. "Yes," said that respectal)lo tradesman, " it seems rii>ht cn()U2;h, I own ; 1)ut excuse me if r sa}' that I have got the mone}', and I intend to stick to it." ^Marriott now went to law to force him to re[)ay the money, but the student will bo grieved to hear that his elVorts were not crowned with tho suc- cess he deserved. Interest reipuhUcce xt sit finis Jifitim. It is tho interest of tho state that litigation should cease, is an old maxim of tho law ; and all the judges agreed that law suits lunst stop somewhere. Said Lord Kewox, C. J. : " If this action could bo maintained I know not what cause of action could ever bo 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." ^ ' So, if ii man pays ovoi- money with a full knowleds^e of the facts, bnt mistaking the law of the case, he cannot recover it back. A sea captain once on a time made a blunder of this sort. He had brought home in his ship a larjie quantity of treasure, a part of which he jxave to a certain admiral under whose convoy he had sailed, not at all in a spirit of gratitude, bnt believing that he was bound by law to pay it. By-and-by lie 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 cue 1 ir,2 LEAUIMJ CASKS snil'LIFIKD. yriT. — Salks. WIIEX SALE COMPLETE, PI?OPERTY FA^.SES AT OXCE. TAI{l.f\>c, C'lX's.s. olio.] On January 4, 1S2"), it was in writiiisr airrocd bo- twccn ^Ir. Baxter, and Mr. Tarlinu', that tlio lornier should sell to the latter a stack of hay, then standing in his field, at the ])ri('o of I'll-"). Payment Avas to be made on Fehruar}' 4tli,l)Ut the stack \vas to be allowed to remain where it was till ]May-day. It was not to ])c cut till paid for. This was held to be an immediate, not a prospective, sale, so that Avhen on January 20th the stack was accidentally l)urnt down, the loss fell on Tarlini;, the bu^'er. " The rule of law," said Bayley, J., <' is that where there is an immediate sale, and of fact it is different. Mr. Wlioadon found out to liis firatillcation tliiit tliis was .so, after a i)assau;(; at law with Mr. Olds. Tlie former hadl)oui;litalotof wheat of Olds, the (iuautltyl»eiu,L; estimated by the size of another pile whieh l)oth supposed to eontain a certain num bcr of bushels, but whieh sul)se(|Ui'ntly was diseovered to eontam only that number of half l)uslu!ls. This beiu^a mistalic of fact, Mr. Wheadon succeeded in recoyerinjj the excess payment. Wlieadou V. Olds, 20 Wend. 175. NALKS. 133 nothiiii; voniiilns to be doiio by tlin vendor as between him luul tho vendee, tlie i)r()[)erty in the tiling .sold vests in tlio vendee, and llien all tlio consequences re- sulting iVoni the vesting of the pr()[)erty follow, one of which is that, if it be destroyed, the loss falls on the vendee." UXLESS SOMETIIIXa REMAINS TO BE DONE. 3 GIBBS V. BENJAMIN. [■l.-> Vt. 1J4.] On the edge of Mr. Giljbs' farm, on Lake Champlain, there was a quantity of wood cut and piled, which Mr. Benjamin agreed to purchase at $3.r)() a cord. It was part of the contract that the parties should meet and ascertain the quantity. Tliis they ditl a day or two later, but thev had scareelv commenced the meas- urinir 1)efore thev disa<;reed ou tho method of doinii:; it. This issue grew into a controversv "vvhich was not set- tled when a Hood came along and carried the whole of the Avood into the lake. Tlu-n Gil)bs sued Benjamin for the price, claiming that tho latter having previously bought the wood must stand tho loss. But tho court decided that tho property had never passed to Bejanun and that he was, therefore, not liable for the i)rice. " The prin.cipie is well settled, and uniform in all the 184 LKADINO CASKS SIMPLiri KD . oasos," stiid Hkdfikld, .1., " that when anything re- mains to be done hy eitlier or hotii parties, preeedent to tlio delivery, tlu! titl(^ does not pass. And so hi- lU'xihle is tlie rule that wlien the property has been (h'hvered, if anvt liinu: remains to l)e (h)ne l»v the terms of the contraet before the sale is eomplete, the prop- erty still remains in tho vendor. The contract must ho exrcufc'l to ellect a completed sale, and nothing fur- ther to be done to ascertain the (jiiality, (juantily, or value of the pi-oju-rty. The ireneral ruh' in relation to the sale of jjersonal property is, that if anything re- mains to be done b^ the seller belbro delivery, no property passes to the vendee, ev(Mi as between the [)arties. This rnh;. of law, applied to llu^ facts as re- ported in this case, retains tln^ pi'oix'i'ty in the wood in the plaintill", and leaves the contract executory and as a sale incomplete." WAlillAyTTES. CHANDEI.OR v. T.OPUS. [-' Ciu. 2; 1 Smith's U\. Cas. 2;i8,] In the days 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 .SALKS. 135 wiis ii eliiirm Jiiiraiiist most of tin; ills of lifo; mikI siu^h stones ii('('()r(liiii;jy l)roiiirht l>i_u' prices. ]Mr. L()[)us liiid ii j)iir(]()n!il>l(.! (losiro to Ix! t'xcmpt from mh many of the ills of lifo as possililc, inid went to Ciiaiidi'lor's slioj) — Cli!iii(U'Ior was a jeweller — and paid £100 for a stono that tlu; tradesman distinctly told him was a hezoar. Mi". Lopns went away u hai)py man, l»nt after a short titne, findinLj he was not so free iVom the ills ji»l' life as lu! ex[)eeted to l)(>, his suspitiions were aroused. Ho made inquiries, and discovered that his fancied treasure was not a hezoar at all, and was decidedly fitter for inendini:" tlu! hiirliway than for curini; anvl)od\ 's neural<>:ia. Undei" these eireumstances, Loi)us went to law with the jeweller who liad sold him the stone. But ho failed, lor ho was unalih; to ji'ivo satisfactory answers to two questions which tho jud«i('s put to him, viz. : — 1 . Did Cliiindclor wwniwv Ihln slonc (o he a Ix'zoar? "No," repliecl Lopus, gloomily, "I can't say ho exactly warranted it. But he eortaiidy f ships from SinL:a[)ore. 'I'he hemp did arrive, but, Avhen it was examined, it was found to ho so nnieli damnucd that it. woidd not pass in tho market as ma- nila-hemp ; and flones & (^o., who had [)aid tlu; price before the ships :irrive;l, had to sell it at seventy-five per cent of tiii! [)ric(! which similar hemp would have realized if undanniwd. This was an action by them against the seller, who was admitted to have act'^l quite innocently in the matter, to recover tho dill'er- ence ; and it was held that ho must pay it, on tho ground that in every contract to supply goods of u SALES. 137 specified description, wiiieli the buyer has no o[){)or- tiuiity of inspecting, the goods must not only eorre- s[)ond to tlio .«peci(ied descri[)tion, but must also bo Sideabb" or merchantable unib'rthat description. Tlie maxim caveat cniptor (the buyer must look out for himself) generally applies as to the quality of goods .sold, and uidess there is an express warranty thei(! is no warranty at all. But a warranty is impllid in th(^ followiuii; cases : — 1. When li'oods are sold bv a trader for a particular pur})osc of which he is well aware, — e.ij., co[)per for sheathing a shi|),' or a ropo for hoisting goods, ^ or fertilizini; manure i'or a farm,' or boxes for ))ackin2: tobacco in,^ there is an implied warranty on his part that tluy shall be reasonably tit for the i)ur[)ose for which they are bought. '2. AVhen the contract is to furnish manufactured iroods thev must bo of a nu'rchantaI)l(^ nualitv. ?>. In the case of a sale by sampler there is an ini- ])lie. ^ Mason ; . (liappi'll, I.") Gnitt. tu'l. * Gt'i-st f. Jones, lOCVnt. L..I. loO. ■'■' Tiiiwsoii, Us. i^ ('., ^(•(•t. l.'iS. "■ Tliursion r. Kpriitt, ;i-' Me. '-'02; Williamson v. Simmons, 34 Ala. C!)l. 3 t # • l^J.S . M:Al')IN(t CASKS SIMl'I.iriKI). WAJiJiAXTY MUST HE I)1'1UX(; COUltSE OF SALE. HOGIXS V. l»I.V>lPTOX. •■ft >' H [11 rick. '.17. ] Tln' pl.'iiiitiir i)uicli:is('(l of llii' (lofi'mluiit ;i qiKinlity of wiiio in l><)ttlc's. Al'tcr the s'.i\q was coiisimiiniitcd, and tlu! iK-rcndant had r(H'(>iv('d payment in ii{'u()tial)l(^ paper, ho wrote out a nieinoranchun of the: sah", which he sent to the phiintill". In liiis tlic wine was (h'scrihcd as '"good line wine.*" lint when the j)hiintir eaine to open the bottles, \n\ found that it was anvthiuii" hnl "good tinc! wine,'" — in short, it was very had sour wine. 'I'hen the plaint ilf hi'onghi an action aUeging that the d hv their transfer without a warranty, and there is nothing to support a suhsecpient warranty. PUIN'<;il'AL AND AGENT*. 139 IX.- PrJXCIPAL AND AgEXT. SPECIAL AGENT MUST PURSUE AUTJIOIUTY. liATTV V. CAKSWEI.L. [L' Johns. 4.S: 1 Am. \a\. C'as. d.-;;;.] '3 Mr. AI)iior Car.swoll, at tlio solioitiitioii of his brother, who Avantol to raise some money, told his aueiit that lie mii^ht siu'ii his (Al)iier's) name to a note lor $2r)0, pni/aJtJe in six ntoitf/is. A lew days after, the brother and th(^ aufciit liot toirethor, and the agent signed Abiier's uauu) to a note for $2^)0, payable in ,s/xf>/ /s. The brother gavc! tl is note to a ereditor. "When it fell due, Al)ner refused to pay it, and the creditor sued him, but without success, the court deciding that as this was a s[)e('ial authority to do a particuhir thing in a })articul!ir way, the priiicii)al was not liable for the act of the agent iu executing his power iu a different WHY. 140 LKADINd CASKS SIMPLIKIKD. DEATH OF PIUXCIPAL REVOKES AUTITOnTTY. HAIlPKIl V. I.ITTI^E. [•2 Me. 14; 11 Am. Dfc. 1.] Ill March, ISll, Mr. "Williaiu J.icksoii, who ivsidod in ^Ic'xico, iiavo a [)()\V(M" of attorney under seal to Har- per, aiitlioriziiiiji: him to sell his real estate in Portland, ]Maiiie. On the en these two dates there had heen a little niisnniU'rstand- \ug hetwi^en the Unite(l States and (ireat Britain, Avhich had interrui)ted intercourse hetween ]\Iaine and foreign countries, and, consequcMitly, it was some time after the sale had heeii consummated that it heeanui known to the parties in Portland that Mr. Jackson had departed this life on the eiii'hteenth day of Aujiust, 1813. His executors failing to obtain tin; pnrchase-moui'V from Harper, l)ronght an action to recover the pro[)- erty, and were suv-cessi'ul under tlu; rule of law tiiat the death of the princii)al causes an instantaneous revo- cation of the authority of tin? i)rincipal.' * "A few illiistriitioiis," siiys the writer of ;i forcible Jirticlt! on this sul)ject, iJiiblislu'il a f(!W j'ears a;j:o (see (i (^ent. L. J. 38;?), " will servo to show how tcclmieal and artillcial are the reasons which have iK'cn considered snllicient to justify the rule that no valid act can he done by an airent actiun for a deceased person, thou;j;h no notice of the death of tiie iJrincipal lias reached the i)arties at the time of the transaction. •* Suppose A., wlio lives In Milwaukee, does the followinji acts on the Jlrst day of May : — " I. Executes his promissory note to 15., due one year after date. •' II. Executes his last will and testament in proper form, l)y the PUINCII'AL AM) AGENT. 141 CONTRACTS WITH AGENTS OF UNDISCLOSED PRINCIPALS. l»ATKItS<)\ V. GAXI) VSKQUI. [l."> Kast, •;•.'; L' Sinitli's \A. <':is. ;U',i.] Giind.'isefiui, a respectable and eiitin'})risin2^ Spanish iiu'rehaiil, made up liis mind that tlu; foreign market <'()iild do with some silks and satiiis. Ho accordinfrly set sail I'oi' Eniilaiid, aiid, on rcacliiiig London, went to Larrazabal &:, Co., certain aiiients in the city, and commissioned them to hnv a (luantitv of ^ioods lor tiTiiis of wiiicli liis luopcrty is left mainly lo stranjicrs, and bis natural lirii's, tlioimh ili'siTvlii;;, arc left with l)ii( u pittance. "III. (lives ('. and 1)., who are his a;reiits at New York, each written anthority to purchase certain jroods in his iianu-. •' < )u .May lid he writes to ('. not to i)ny any j^oods. The next day, May .".rd, \. is accidentally killed. " Let ns see iiow far tiie law respects liis wishes and compels his representatives to fulfil thi- ohlitrations he has incurred. <»l' course his reiireseiitatives must pay the note, though iiiven \\\ liis iKtuw, and therefore the promisi- of a dead man. In this case the law im- plies an agreement on his i)avt that his representatives shall be hound hy liis contra*-!, and gives effect fo that agreement. His wishes as set forth in the will are respected and enforced by the law, though lliey are tin' wishes of a di-atl man, a man who can no longer act, and tliongh they do great iujustice to those who sliould rightfully enjoy his property. "On May ;!rd, ('. and I), receive .\.'s letler>, written May 1st, and each purchases goods according to his iustriictions, (.). pur- chasing Immediately before, and 1). iuimediately after the death of A. Kach agent ships the goods b'onght by him to Milwaukee, consigned lo .\. The goods are snbseiiuently destroyd on the roail by the ' act of God.' The parties ol whom the goods were ? 142 LEADIXa CASES ISIMl'LIFIED. hiin. huYV. & Co. (lifo is too short to vopcat tlio whole name) proceeded to execute the coiniuissioii, and iiskod Patrson than his agents, who shortly af"terwai(ls went to financial smash. Paterson was not disposed to he content with the fraction of his deht, which, a> a credito'' in l)ank- • r' purchased taluying for liiinself. He said he had received an oriU'r to ])nrcliase some ijood.s for some customers in Seothmd, hut /m (fid iiof mention tlieirna me , {\\\(\ the Davenports did not ask for it. They sokl about £:?()<) worth of goods and dc^bited McKune, though they knew perfcH'tly Avell he was only an agent. Then McKune faiU'd without having l)aid Davenport & Co. This was an action by Davenpoi't & Co. against ^IcKnne's ])rincipals, Thomson & Co., who denieij their liabilitv on the iiround that Davenport *.*c Co. had debited ^NIcKune, and could, th(>reforo, look only to him for payment. This view, however, was not adopted by the court, and Thomson & Co. wei-e nia(h' to iiiiy, tlu^ principle being that, as the name of the real buyer had not been disclosed to them by the agent, the sellers had had no opportunity of writing him down as theii' debtor. The chief rules on this subject are — 1. ^Vhere vou contract with a man whom you know to be an agent, and you know also who his principal is, but, in spite of such knowledge, you give credit to the agent, and to him alone, you are bound by such election, and can not afterwards sue the principal. 2. AVliere you deal with a man who appears to be a pruicipal, you may, on discovering that he is only an ritlNCIl'AL AM) A(H:.\T. 145 agent, sno liini or lils principal at your plciisurc. It is necessary, however, that you should make your election between them within a reasonable time. 3. Where 3'ou deal with a man who is known to bo an agent, but whose principal is undisclosed, you may, on giving evidence that he is himself i)rincii)al, sue him ; otherwise, you must sue his princii)al. 4. If a person siijns a contnict in his own name without disclosing the fact that ho is only an agent, ]\{) is prima f((cie to ha decMUed the piM'son res[)onsil)le ; and, on action bcini!; brouuht airainst hiiu on the con- tract, he cannot tui-n i-ound and shutHe olf his liability bv savinii" that lu; was onlv somebodv else's aijent. Parol evidence to ])rove such a thing would not be ad- mitted, and if he gets out of the (»(!ra[)e at all, it will be because it is quite clear from the rest of the docu- meiU- that he did not mean to bind himself personall3\ And, indeed (as w(! shall see in the next case), the person who has signed a contract in his own name may still bo liable, although in the Ixxly of the contract ho has expressly declared himself to be an agent. .•3 STOXK v. AVOOD. [7 Cow. t.V'.; 17 Am. Dec. .-.I'll.] 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- 13 14U LKAUINU CAS^K.S t^l.Ml'LIlli;i>, vant to this Iiistoi-y. It Is enough to s:iy tli;it the COiilract cU'sc'l'ilx'd Wood " ;is ilj^ciit of ,1. Si Iv. K.'iV- nioiul,"' aiul rcleri'tHl to him tlii'oiiirhout "as agent,** ch)sing with ail agreemeiit by Wood "as agent," to pay a certain sum to the captain on c(!i'lain conditions. These conditions hcing [xTJoi'ined, the captain sned for the money, to wliich ^^'ood i'ei)lied that J. & Iv. Raymond were the persons to whom ho ought to h)ok. But the cai)tain did not see it in tliis liglit, and neither did the Su[)reme Court of New York. They said that an agent signing a contract in liis own name; is pc'-son- ally hound thereon, even though lie is (h'scrihed in it as an airent. 'iMu; words " as auent,** are a mere de- scription of the jjcrson. » SET-OFF AGAIXST PlilNCIPAL. •*■■ OEOHCJK A. ci.A(;ett. [7 Term He]). ;•.:>".»; L' Sniitli'sLil. C'as. 1S5.] Messrs. Kicli & TIeapy cari"ie(l on business in woollen ch)ths. For \\h\ purposes of tlieir riches heaping they not only carried on business on their own account, l)ut acted also as factors for other peopl(\ A factor, it should be remarked, dill'ers from an ordinary agcMit in having the possession of the goods of his i)rincipal which he sells. As Kich & Ileapy carried on all their business at the same warehouse, it would not be ob- I'UINCirAL AM) A(ii:\T. 147 vious when they wore acting as principals and Avlion as airojits. At the lime of f)ur story, Messrs. Rich & Ilcain' ha[)p(MU'(l to liavo In their possession as factors a large (luantitv of i^oods helonsjin;^ to Mr. Georue, a clothier of Fi'onie, wliich goods were in their ware- house along with ijoods belonixin*/ to tlioniselves. It happened Just thou thiit Messrs. Clagett were in want of such goods. Tliev held a hill of exchanije for £1200, aeoei)ted by Rich & ileapy, and as they saw no particular liki-lihood of getting i)aid, they thought it would not bo a bad plan to buy goods from them on credit, and deduct the amount of the bill from the pur- chase-money. In pursuan<'e of this plan, Messrs. Rieli &, rieap}^ sold them a (piantity of goods ; making out a bill of j)arc(>ls for the whole in their own names, and Messrs. Clat HI. .'501 i S Id. (-47.] Mr. Wriirlit was tlu^ laml !IL' executors of tiio*airi!nt who had h-d him wronn", am! the n ain (juesticin was whether Wright's assuminu- to act as Dmm (Jardner's airent to ixrant the lease sale, and arc sold by liiiu imdiT (•irt'iim^tanccs that arc calculatcMl to induce, and do indiicc, a |)nrclias( r to bi'licvt; tliat he l>i dcalin;^ with his own fioods, t!io principal is not pormlttcd afterwards to turn round and tell the vendee tliat tlie cliaracter he ld:n.-eif has allowed tlie factor to assume did not really belong to him. The purchaser may have boujifht for the express purpose of settinj; off the price of the yoods against a debt due to him from tiie seller." These words put the rule and its reason very clearly. "Rut the case is different where tlie purchaser has notice' at the time that the seller is aetin;; merely as the aiient of anotlier. In tliat case, there would be no honesty in alhnviiii^ the purchaser to set off a bad debt at the expense of tiie iirincipal." Fish r. Kemj)ton, 7 C. ]J. rUlNCIl'AI. AM) AOINT 149 aiuouiitod to II contract on liis part that lii> had such aiilhoiit y. I'his was tlic view a(h)|)l('(l, so that Wriu'ht's excciitoi's hccaino liahh! to Colh-n. " I am of opinion," said \\*iM-r.s, J., (U-livcrini; 1 he Judiinicnt of the Court of KxiduMpicr ChandxT, "that a [)('i'soii who iiidnccs anothci" to contrac't with him as tho airciit of a tiiird party, l>y an nncjntdificcl assertion of liis being anthorizcd to act as snch aixent, is answerable to tho person mIio so contracts, for any danniges which ho may sustain by reason of the asscnlion of authority x'inii; untrue. This is not tho oaso of a bare misstate- ment by a person not bound by any duty to irivo \\\- lornnition, Tht; fad that tiie professed agent honestly tliiidvs that he has authority all'ect.s the moral charac- ter of his net ; l>nt his moral innoeonce, so far as the person wlioin he has induced to contract is concei'iied, in no way aids such person or alleviates the inconvi'iii- enc(! and damaiio which he sustains. Tho objiiratioii arising in such a case is w(dl expressed by saying that a person [)i'ofessing to contract as agent for another im[)lie(ljy, if not exi)i'essly, undertakes to or promises tho person who enters into siudi contract u[)oii tho faith of the professed agi'ut being duly authorized, that tho authority which In; professes to have does in point of fact exist. Tho fact of entering into tho transaction with tho professed agent as such is good consideration for tho promise." •■'3 I ■ 150 LKADINO t SKS SIMPLIFIKD. f PAR TXEliSlIIP LIABILITY. WAKill V. CARVER. [1' II. Mliick. •-';!."); 1 Smith's Ld. Cp.s. itCS.] * • . .•V m In Fchniarv, 171>n. Enisiniis Carver and William Carver, ship-aircnts, of Southampton, of the one i)art, and Archibald (l-icslcr, ship-agent , of Plymouth, of the other part, entered into a rather wide-awake agreo- nient for their mutual h.enetit. Rv tiie terms of this agi'eeinent; Ciiesler was to remove from Plymouth and settle ut Cowes. There he was to establish a house on his own aeeoniit, which the Carvers were to jMifr. Ciiesler, on the other hantl, was to endeavor to per- suade all llie shi[)-iu.Hti'rs putting into Portsmouth to emi)loy the Ci'ivers. Arrangements wei'o made for sharini; in eertaiii proportions the jjrolits of their rc- speetlve commissions, and the discount on tln^ hills of tradesmen employed by them in repairing the ships consigned to them. It was -Uso expressly provided that neither of th<^ parties to the agi'(>ement shoul-A bo answeiable for the acts or losses of the other, but each for hi.'i own. Accordingly, (liesler left Plymouth and came to Cowes. and in tiie course of carrvins})onsible for liis debt.s. It was held, in spite y)( the clause providing that mi ^ amus M— PRIXCIPAL AXO A(}ENT. 151 each should ho responsible for his own losses, th:it the agreement did niuke the Ctirvers partners, for: — 1. lie who takes the proHts of a partnership must of necessity he made liable for the losses. (The student, however, must look at the next case before taking this [)roposition for gos[)el.) 2. lie who hmds his name to a partnership becomes, as against all the rest of the worhl, a partner. •-§ COX V. IIICK3IAN. [S II. L. Cas. '-'(IS.] Messrs. Smitii iSc Co., ir* merchants, becoming in- solvent, a deed of arrangement was executed between them and their creditors. By this deed Smith & Co. assigned all their pro[)erty to five trustees to carry on the business under the name of the Stantoi* Iron Con?- pany. The trustees were to manage the works as they thouidit fit, and to execute all contracts and instru- ments in carrying on the business. Amongst the creditors were two j^entlemen who afterwards bios- somed into the defendants in this action. They sub- scribed .iud 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 JU't, and did the best Hiey could for the business. In tlie carrving on of the business the plaintitf supplied the comi)any with a quantity of iron-ore, and one of the trustees accepted l'>2 ii:\i)i.\(; (Asis si.Mi'i.ii'iiM). liills of oxcliimir*' ill til*' name of the cotnpMiiy lor \\\o j)i'ici' of it . Tlio (luc'stioii was wlictluT flic tru.stccs wci'c niifcMits for liio (Icft'iKlaiils to accept tin; Mils, and it was hch] tluit tlicy were )i<)f ; on tlio rsoiis souu'ht to he made liahle.' mfi ' Persons in;iy jx- p;irtni'rs iis rcijiinls tlio worlil at lariit;, al- tluMifjh tlii-y are not partners as bctwiHii thonisclves. If a man holds himself out as a partner he is Hal)le to a person wlio, for that reason, ;iivi's credit to the (Irni. If it were not so. there would be even more imposition in l)nsiness transactions than tliero already Is. Tlie law does not prescribe any particular acts which shall con- stitute a'Mioldiui: out: " evidence m.iy ;;e ;;iveu of auythintr tlie defendant has done wlil'h would induce others lo bilicNc iliat lie WHS a partner, such acts havlnij; the effect of an estoppel by con- duct. As to the other point of those cases, it was for a loiiij time thoujiht that if it could be proved that the defendant sliand the projil.i hi' was thereby proved to be a partner. The effect of the case of Cox v. Ilicliman is to destroy tins doctrine; and the l.iw now is that, tl.oULih connnuuity in the profits is strnn;/ evidence of partnershiii, it is not r(;i\i(l Kdlcv oii the I'ollowiiis; iiisliiiiiiciit " Castletov, April, 27. ISU. " Due lli'lil"\' I). K('llf\', >.");> wiici; he is ( went \-()il0 yciiirs old, wiili iiit('i'«'st. " l).Mii> Kklf^ky. Wliicli Ilciirv I). Ki'll(>v li:ul .'issjfiicd to him hv a n indoi'sc'iiu'iit in writing. Tlu' duloiulaiil [)U':uk'd tiiat tl lis was not a proiiiissory note \v hid 1 was a Aorv vi tal question, hccauso, if it wci'c not a i)!'otnissor\'" note it was not as.siuMiahlc l>y indor. '-nKMit, and lli'inminir- way had no ni:;lit to I»rinii an action on it in his own name. The coiiit held the plea :-.s:ii£&ftaaff(*fcMir:.]*>*K^'',:v ./ ,i* ■; ,jii'jil^»jttVl!ftu*t:CT-.^tfc-jv»cw%'K«-7..r.«>j ablest judgments of that great jurist, "that a hoitti fide holder of a negotiable instiaunent for a valuable consideration without any notice of facts which ini- })each its validity as Ix'tween the antecedent i)ariies, if he takes it under an indorsement made before tlic same becomes due, liohN the title unall'ecte(l by these facts and may recover thereon, although as between the antecedent [)arties tli<> transaction may be without any legal validity. This is :i doctiMue so long and so well established, and so essential to the secui'ity of ne- gotiaI)le paper that it is luiil uj) among the t'undaiucn- tals of the law, and reipiiics no authority or reasoning to be now brought in its suppoi't." The (picstioii then was whether a j)re-e.\istiug t was a sufficient consideration to shut out the e«piitics of tin; original parties uiKh'r this rule. TIk; coui-t ludd that it was, und that Swift's title was noi aHectccl by wjjat had taken place between Tvson and Norton &, Keitii.' It is necessary to say lu-re that tlie question diciiled in this case is one of tliose (luestions iipoii wliicii entirely contniiy views SS,r*«Sfc;.. •'-^ft'^^^itH^j v„jKr«ajLi£! NEOOTIABLK rAl'KIt. 1')? ynriCT'J OF DTsnOXOIi, WHEN XECESSARY. IU(IKi: V. HOI.l.MAX. [1 Term Kcp. K).")-, L' Smitli's \a\. Cii- 'A.] TIic Itottoiii facls of this cuso, (the narrative of which is too coinplicatiMl to he worth (li'tailiiiu ) iirc as I'ol- h)\vs: SpiMuhast heiiig hard up toi" luoiirv, and kiiow- inuf the weak ui^od-nat lire ot" his tViciid Liu'lithoad, a>ks him 1) .".cccpt a hill oi\xfliaiii:'(> for him, assiiniij^ him thai ho will never l>i^ called on to pay it, and that it is re;ii'y only a formality. Li^ihthead consents, and though ho iii'ls no consi(l(>ration whatever for it, acce[)ts a hill drawn on him hy S[». iidfast. The bill finally yets into tlu; hands of 'I'lirift man as holder, and he presents it to Lighthead for payment, l^^iiihthead, of cours(>, dishonors the hill, and uses strouLT lanuuaLi'o. Such l)i'ing the stuto of the parties, Dickcrdikc v. BoU- himi decides that Thrittman, the holder, can sue Spendfast, the drawer, without havinji' previously 'liven hin\ notice that Lighthead, tlui acce[)tor, has dishonored the bill, the reason beinii" that the drawer never had any ellects in the hands of the drawee, and ther(>f;)re couJtl not Josr a)i>/f///')ii/ hi/ iiofice not being § are liold l)y differeiii courts. In Now York aiul ;i fow Slates whicli follow tlio New York rule, Swift v Tysou is not rciiarded us correct 1 iw on wliiit constitutes a hoI(lin;i for value, while in the Federal courts, a. 1(1 in most of the State courts, the doctrine of Swift v. Tyson is adiruied and followed. See Big. Ld. C'as. Bills & Notes, 4!*", lit SCq. 158 LEA1)IX(} CAfSK.S S1M''LIFIE1>. given. Ji!m. •' The l;i\v requires notieo to bo gl^en," Siiid Bri.LKK, J., " for this reason, viz. : beeause it is I)rcsunie(l tliat the bill is drawn on account ol" tlie drawee's havinir eU'ects of the drawer in Iiis hands; and if the latter has notice that the bill is not ac- cepted or not paid, lie may withdraw them immedi- ately. But if he have no ell'ects in the other's luiuds then ho cannot be injured for want of notice." Bickerdil-e v. BoUnnin is still riM'oirnized both in America and Kniilan'! as the leadinuj case on tliis sub- ject. Later adjudications, however, without attenii)tiiii>- to overrule it, do not make the right to notice de[)end upon the fact that the drawee had at the niatui'hy of the bill, funds in his hands of the drawei", ade.juatc to its payment. On the contrary the criterion is : had the drawer reasoiuthle grounds to expect that the bill would be honored ? ^ UNAUTHORIZED ALTEllATIOXS VITIATE THE INSTliUMEXT. MASTER V. MILLER. [4 '':'c'rin Rop.ML'O: l.' H. Hhick. 140: 1 Smith's Ld. Cas. i)35.] We are not in a position to state whether the Mr. Miller who was defendant in this action was the same 110. > See Hopkirk v. Page, 2 Brock. 20; Big. Ld.Cas. Bill & Notes, \ NEGOTIABLK PAl'EK. yj Mr. Miller who took the bjiiik-note from the robl)or, :iiul had a pass!i<;o of arms with Mr. liaoo, of the bank of England. If so, ho is oiio of Iho most fortunate liti- gants of whom there is any record. In the former case, it will be rememb(M-ed, ho was a plaintiff, suing on u stolen bank-note. lie now appears in the hum- bler ca[)aeity of delendant, having accepted a l)ill of exchange, and resisting [)aym(!nt, on the ground that it has been altered since acce[)tance. It isn't tiie same bill, ho sjivs, and ho won't have anvthini'- to do with it. Tho history of tho transaction is this. On March 2(), 17.SH, Pc(d & Co., of Manchester, drew a bill for £1,000 on Miller, payable three months after date to Wilkinson & Cooke. This bill they delivered to Wil- kinson & Cooke, and Miller afl'.-rwards at^ce^jted it. Wilkinson & Cooke then imlorsed it for value to the plaiutitf. I)Ut, befoVe doing so, they quietly made one or two little alterations, with the object of im[)roving the document. March 2(!th, tlu-y changed into March 20th ; and they stuck June 2ord at tho top to indicate that the bill would become due on that day. Tliese alterations, being to accelerate [)aynient and unauthor- ized, were held to vitiate the instrument. " When it is admitted," said Chief Justice P^yui:, -' that tho altera- tion of a deed would vitiate it, the point seems to me to be concluded. * * * jf courts of justi"e were not to insist on bills being strictly and faithfully ke[)t, alterations in them highly dangerous might take i)lace, such as the addition of a cipher in a l)ili for £100, by which the sum miirht l>e chanixed to £1,000, and the holder having failed in attempting to recover the £1,000, miirht afterwards take his chance of recoverin< SI M I'M 11 1.l ) . XKOLKiEXci: IS' nuAwixa chuck. voi:\li l>ui lilxTul hu>l);iii.it U's. ( )ii one ol' llic>i' o('c:i->io:H she r.''|iicst(Ml lu'i* liiishaiid's clerk lo till out ;i check toi" the simi ot' .£r)(li Mild 'J>. 'I'Ik' clerk did -o, writiiiLC t hti *• lll't y " with !i small letter in the middle (d" tlie line, and })ut- tint.*: the .">0 2>, which the bank paid witliont suspicion, and i^lJOO of which he j)()ckete(l. Then Mr. Voniii,^ tried to throw tho h)ss on the hank hiit he (hd not siicccicd, for this wasthejudi;- eiit ol" the coiiil : •'' A l)anker who pjiys a forged in check IS in Li'cncral ooniid to pav the amount airaiii to liis customer, hecanse h(! p.iys without antliority, Jind it is his duty to he ac(iuainte(l with his customer's liand- wntinir. Yet if it 1)(? tlie fault of the; cus- tomer that the hanker p;iys moro than ho ouirht, ho lied cannot i)ocalle(t on to [)aya;j:aiu. Hero tho ir M:»i(>ri.\Mi.i; i'\ri:i!. ICl lil;mu' was ;ill on one side, and Young must >ntrcr for liis own ncuTiLTcnco." Cliicl' Justice Bkst snj:':j,i'sti'(l 1 wo ujaxiuis wliicli, it' Mi" Young had only known in tinic, would Iiavo saved hini a good many liundi'cd iloilai's. I'Mrst, always write your checks well to the left side : second, never let your wife ha\X' an\thing lo do with \()ur checdv book. ■§ STOPPAdK IX TUAXSJTU. LICKnAltKOW V. 31ASOX. [L'Tcnii Iv'cp. <;:•.; 1 Siiiitirs l.d. Cas. flii.] 'I'he orii:inalor of tliis litiiration was one Freeman, of liotterdam, who had the iiuihicity to hecomo bank- rupt and confound tlu^ transactuuis of a groat many honest [)eo))le. The tlra iinilh persoiue are somewhat nuuu'i-ous, but the student will probably liiul tlie fol- lowing account reascMiably clear and correct. Freeman sent an orch-r to Messrs. Turiugs, of Mid- dleburg, to shii) a (piautity of corn to Liverpool. This order Messrs. Turiugs were rash enough to execute ; for liiey theu ( ousidered Freeman to be, if not " the richest merchant in Rotterdam," at all events, :i safe and sol- vent person. On July 22, 17S(), ^Messrs. Tnrings put the corn on board the ship Endeavour, whereof the 11 M IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I Ik 150 1^ IM 1^ IS 20 U& 1.8 IL25 i 1.4 i 1.6 V ^ /2 *: Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716) 872-4503 1G2 LEADIXG CASES SIMPLIFIED. ill .5;:*, i I master was a ]Mi\ Holmes. It is the duty of a master when he sets out on a voyage like this to sign hills of ladnig, by way of acknowledging that he has got the goods on board. 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 blaidc by Turings & Co. and sent to Free- m:iu with an invoice of the goods shipped, and the .;:rth Avas retained by ^lessrs. Turings. The sound ship. Endeavour, had not set sail very Jonuf when tidinufs came to the ears of the Turmus that Freeman had ])oeonie ])ankrupt. Rising to the occa- sion, they innnediately sent olF the bill of lading that remained in their custody to Messrs. ^Nlason & Co., of Liverpool, Avith a special indorsement to deliver the corn to them for Messrs. Turings' l)enefit. Pursuant to this special indorsement Mr. noiines, when he ar- rived at Liveri)()()l, delivered his cargo to the Masons. In the meantime, however, and bel'ore he became bankrupt. Freeman had sent his two bills of lading to Messrs. Lickbarrow dulv neirotiated for a valuat)l(> consideration. Messrs. Lickbari'ow, therefore, Ave;'v> anvthini; but i)leased to find that Mason & Co. had ""ot hold of the corn, and they brought this action to try and make them give it up. In this they were success- ful. Judgment Avas given for the plaintiffs, on the ground that {xhona fide assiu:nment of the bills of lad- ing defeats the vendor's right to stop in transitu.^ ' TIr- Urst rule laid down in tliis case is to tliis effect: — When a man l)ecoines banlvi-upt his goods"arc divided amongst his creditors, nobody jietting tlie full amount tiiat 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 with goods tni NEGOTIABLE TAPEIl. 163 STATUTE OF LIMITATIONS. AVHITCOMH V. WHITIXG. [Dougl. r)52; 1 Smith's Lil. Cas. 703.] Whiting iiiul Jones niiulo ;i joint {uul several promis- sory note, which in the course of time ciimo into the hands of the pliiintill". Eight or ten years after the clay on which it Avas made, the plaintiff sued Whiting, who had long aijo forgotten his little undertakini;. credit is tiie most to ))e pitied, for wliat v\;s yesterday all Ids own, is to-day part of tlie general fund from wliieli eacli creditor derives tlie proportion of ins debt. To prevent tins injustice of one man's goods l)eing used to pay anotlier man's debts, tlie doctrine of stoppage in trmisitn is nitrodnced. Therefore, altliough tlie vendor has sent off Ins 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. Hut the vendor may, at any time before the transitus has ended, ratify the act of a stranger who stofis the goods. The great ques- tion ill most t-toppaijn in trnnnUn cases is, was tlie journey at an end or not? The goods are on the jonrncn as long as they are in the hands of the carrier as such; but the carrier may hold them as bailee for the vendee, as when the latter pays him a rent for warehous- ing them. The 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 who takes it in the ordinary v, ay of business and in per- fect good faith, the vendor's right to stop is at an end. Siiirley Ld. Cas. 8G, ■:3 H m «ll 1G4 LEADING CASES SIMPLIFIED. "Yes," siiid AVhiting, " th:it certainly must be my si<'-ii!itur«, and, now you come to mentiou it, I do re- member sometbing about a promissory note. But, 3'ou see, tbe date of tliat note is more tliaii six years a;i:s simi-i-ikied. *' and if the court eoukl, consistently with settled and est:il)lishe(l principles, relieve liini against the payment of the rent in question, \vg should most willingly do it. But it can not be done without overturning a series of decisions td which this court is bound to conform. Wo sit here \jus dare,' not '■Jus facevo."^ Wo think it may safely be said that there is not Ji ease in the hooks where the destruction of the demised premises by fire has been held to excuse tiio tenant from the payment of the rent on an e> ress covenant ; but in every case where a del'ence on Jiiat ground has been attempted, it has failed. The law on this point has, in one of the late cases in England, been ctmsidered so fully established that the court would not evon hear an argument respecting it." Moral : ^V^hen you sign a lease of a house, don't forget to htive it provide that, in case the building is burned down, or rendered uninhabitable, the rent shall cease to be payable. NO WARnA:^TY AS TO COXDITTON OF PREMISES. CLEVES V. Wir^LOl OHBY. [7 Hill, s;!.] The dwelling No. 3. Linden Itow, Brooklyn, was for rent, and Mr. Cleves, who was hunting for a house, ' "To annoimcc the huv, uotlo manufacture it." LANDI.OUD AND TENANT. 167 leased it for tivc years jit a 3'oarh'- rent of $300, pay- al)le (iiiarterly. IIo was in such a Imri'v to get tliein that he Avas not i)arti('uhir to exaiuiue the premises. Al'ter tlie lease was signed and he was prepared to move in, he found tliat it was not Avhat one would wish for a residence. The house Avas in horri- l)ly bad re[)air, the cisteru leakcnl, the cellars were filthy and foul — in fact it Avas not a i)lace to take a 1am- ily into at all. ]\Ir. Cleves suggested to the hmdlord that, unless he would repair and clean it u[), ho would not move in. This tlie landlord refused to do, so ]\Ir. Cleves rented and occui)ied another house. At the end of thrc^e montlis there came u bill for a quar- ter's rent of No. 3, Linden Row, Avhich Mi. Cleves, verv niiturallv, refusetl to i)aA\ Then the case came into court, and Mr. Cleves' only plea Avas that the house Avas unlit for occupation. But the court re- fused to listen to it. They held that tlicie Avas no im- plied Avarranty on the part of the lessor of a dwelling- house, that it is fit for habitation. " It is quite unnecessary," said Beakdslkv, J., " to look at the connnon-law doctrine as to implied covenants and Avar- 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 bcAvare) applies to the transler of all property, 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." 3 If; 8 I.KADIN'O CASES i^IMI'LIFlEO . EXCEPT IT IS A FU UN I SUED HOUSE. S3TITH V. 3IAKRABLE. Ill* illf : W [11 Mee. & W. 5.] Briijrlitoii is a faslilouiiblc Eiiijlish watcrin<>:-i')lacG, and Sir Thomas ^Nlarrahle, who Avishod to spend tlic season there with his family, rented a furnished house of Mr. John Snlitii, ior a eertain term. Tlie student will note that it was a fav)iis!i''d house he rented. On the KUh of Se[)teml)er the j\Iarra])le family moved in. Tiireo days later xMrs. John Smith reeeived the tbllowini'' l)illet : — " 5 Rhttxswicic Place, September 19, 1842. '^ Lady ]Marral)le informs ]\Irs Smith that it is her de- termination to leave tl'? house in Brunswick Place as soon as she can take anotiier, paying a week's rent, as all the l)edrooms occupied but one are so infested with buI\(} (WSKS MMI'MI'IKI). li iininediiitciv, lio sowed his Held wi'Ji coi'ii. In doiiii; wli.'it iniirlit seem iil lirst siirlit ti i:is!i mikI iMipi-ovidcnt !U't, Mr. Wiijglosworlh w:i.s rclyiii;^ on a certain local cnstoin, wliicli entitled an ontjioinj^ tonanl of lanaso hy deed, and no mention made therein of any custom. TlKM-oiirt, however, de- cided in favor of tin; custom, Ijord Mansfimm) remark- ingthat, while it was just and roasonaUlo and for the de- bcnetit of agriculture tliJt ho who sows sliall reaj), it did not alter or conti'adict tho agreement in the h'aso, but only sui)cradded a I'ight. LEASES FOR MORE Til AX THREE YEARSA m KIGGE V. IJELL. [5 Term Kf|'- t'h - Sinilh's Ld. Cas. 177. J Bv parol merelv, lliiiire let a farm in Yorkshire to ' Our friend, the Statute of Francis, eoines to tlie front again to regulate deal in;is inland as well as in "goods, Avares, and nierelian- dise." By the first section of that important law, it was enaete^l that (with the exception of leases for a term not exceeding three years) all leases of lands, tenements and hereditaments not put in writing and signed by tho parties or their agents, should have only the lorco and effect of leases at will. LANDLOItl) AM) TKNANT. 178 Hell for soveii years, iuul Boll ciitorcd jiiid paid ront. IJut tlio tonant tlid not j.tivo satij^faciion, and liiuijo do- Icnuiiiod to in't rid of liiiii. Viv the tonus of tlio airroiuiuMil IV-Jl was to jjfo nut at C!!andloinas ; hut IJigrro'.s view was, as tho leas;', Ixmiu; for inoro than lliroo years, and yet iu)t in wiitiii^ii", as tli*^ Slatulo of Fi-iiiids recjuiroij, ofjorato ' iiicroly as a tenancy at will, ho conhl make tho man (j 'it wlien ho i)h'ased, and Avas not l)(>nnd by tho tonus they liad agixvd on. In tliis view he lonnd himself mist al;en, for it was held, that " tlioni;h tho agreement ho void hy the Statute of Frauds as to tho ihirat/on of i\w lease, it Diu.'it iTt/uJa(e the terms on wliich the tcndunj shU^'ikIh l\i olJici- rf'spects, as to tho rent, tho time of tho year when tho tenant is to quit," etc. CLAY lOX V. IJI.AKEY. [8 Torni Krp.li; '2 Smitirs Ld. ('as. Iso.] Also l)y parol merely, Mr. dayton let Blakey some land for twentv-one years, and l^lnkey entered and paid i"ent. Two or three years afterwards his land- lord gave him notice to quit, and, as lie treated such notice with supreme eontemi)t, sued him for double ront for holding over. To this claim Blakey raised the somewhat cool defence that (I)y virtue of sect. 1 of the Statute of Frauds, which directs that any lease for more than three years, not reduced into writing, shall 4 i^ 174 L/ \DIN(} CASES SI.MPLIFIKD. operate only as a tenancy at will) be was only a ten- ant at will, and onght to have been so described in the plaintiff'^ declaration. It was held, however, that >/Blakey 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 siffht, rather extraordin- ary. The Statute of Frauds distinctly says, that all leases by parol for more than three years, shall bo ten- ancies at Avill only. The decision intervenes and says : *'No, they shall bo yearly tenancies," thus puttingthe tenant in abettor position than the statute left hiiu in. The accepted explanation is that tho statute's inten- tion was that the estate should be an estate at will to begin icith, but that when once created, it should be liable, like any other estate at avIU, to be changed into a tenancy from year to year by payment of rent, or anything showing an intention to create a yearly teu- ancy. But if there were uo circumstances showing such intention, the estate would remain an estate at will. AGIUCULTUUAL FIXTURES. Ill ET^W ES V. MAWE. [3 East, 38; 2 Smith's Ltl.Cas. 228.] ToAvard the close of the last century, Elwes let a farm at Bigby in Lincolnshire to INIawe for twenty-one LANDLORD AND TKNANT. 175 11- 10 It t, h years ; and during his tenancy Mawe conceived and carried out various improvements for the more profita- ble occupation of the land. He built a beast-house, a carpenter's-house, and a pigeon-house, among other things. By-and-by the twenty-one years came to an cPid, and the time came for 3,Li\ve to go. A few daj's before leaving, he set his laborers to work to pull down the l)east-house, and the carpenter's-house, and the pigoou-house and Avhatever else he had erected, and carted them all away, leaving the premises in just the sauie nude condition they were when he entered. When Ehves heard of this he was very angry. He said Mawe had no right whatever to take away fixtures, it was ilat burglary and so on, and finally he brought an action for waste. There was 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 ^Nlawe's counsel argued that, considering the cai)ital farming required uow-a-daA's, and the elaborate implements employed in the cultivation of the land, airriculture was overv bit as nmch a trade as clock-making or iron-monirerinir. Moreover, they produced authorities which showed that hot-houses, posts, sheds, colliery-engines, and the like, had in various cases been held to be rem()val)le by tenants as being trade erections ; and they defied the plaintirt'to show the difference between such things and the tilings the defendant had set up. All this was very plausible, but the judges came to the conclusion that Mawe had no riiilit to remove his erections. They said it would be a " dangerous hmovation " to cnll agriculti"''e a trade, and that the hot-houses and i7(; LKADIN(! CASKS SIMl'I.lI'IKI). a the other erections the deleiidaiit made so nuieh of, were all more or less connected wilh trade. An aiionyinous modern poet has, iu ijlowinix liexa- meters, described the great trial wherein : — Elwes, the shrewd, was plaintiff, and Mawo, tlie thrifty, defendant, Muwo was lessee from Elwes of hauls in tlie connty of Lincoln, Messuage, ont-houses, stables and barn, in the jjarish of Uigby; Mavve, the thrifty, looked round him and scanned those premises wisely, Full six ycmrs he scanned them, beholding the farm's occupation 'Minislied in nse and wortli for want of convenient buildin'^s : Therefore he laid to his hand, and setup those convenient buildings. All at his own expense, a carpenter's-shop and a beast-house, Houses of fuel and carts, and a pump-house, of brick and mortar, Founded fast in the ground, and tiled, and of brick were the pillars. So he possessed his farm, and I'ejoiced in his useful buildiiigs, He and all men and all beasts of the field in the parish of IJigby. 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 ^Nlawc, the thrifty, bespeak his 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, 1 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 t)ie parish of Uigby, Stand t!iere after my time, and be left a possesion to Klwes : Nay, but I surely will move their foundations, digging around them, Raze their walls and their stuff, the goodly liricks 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 his heart had coun- selled. I, A ft- Ilii LANDLORD AND TENANT. 177 Razed those walls, and moved the foundations, diu^;inm around them, Carted away the stuff for himself, the bricks and the mortar. Elwes, tlie shrewd, sat aloft and beheld from). a height of rever- sion These things wrought, and, beholding, his anger was kindled within him. Anger that moved him to deeds of raiglit and to Lincoln assizes. Tliere he declared against Mawe for his injured estate in reversion, Claiming the buildings 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 where the king's own pleas were before his juscices holden, 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 del)ated 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, lire-engine, a blessing to coal mines. Twice in two terms tliey strove and the court considered its J Ig- nient. Judgment which afterwards, well advised, the chief justice de- livered. Stated the case and the (luestion and spoke their considered opmion; Xo right had the defendant, they held, to remove these buildings, Wi>ely he showed how tlie general rule bids cleave to the freehold Things by the tenant once llxed, and explained the divers exceptions Suffered m f.ivor of trade, the furnace, the vats, and the boilers, Also tlie new fire-engines, the cider- m' 'Is and tlie salt-pans; Ever in favor (.i trade such cxcepticns, no mention of farming; Further to stretcli the exception to mere agricultural buildings, Not for a certain trade, were great and rash innovation. Wherefore IClwes, the shrewd, maintained his cause and his verdict, Had great worsliip of a!l men there, and wont homeward rejoicing, Bearing tiie postea, goodly-engrossed, the prize of the battle.' 5s ' Leading Uaces Done hito Englisli. IJy an Appreutico of Linoohi's Iniu Loudon, ISTiJ. .13 s'! 178 LEADING CA8i:S SDIPLIFIED. cove:s-ants that '• uvn with the LAXU/' ifl € • ' f II SPEXCEirS CASK. [5 Coke, n;: 1 Smith's Ld. Ciis. llC.] In the days of Queen Eliz:il)cth there liv^cd a gentle- man named Spencer, who, wise in his generation, married a woman with mon<'y. Tiius erected into a huided proi)rietor, he k't a house and grounds lo a nieniher of the great fan.ily of Smitli for a term of twenty-one years, and in the indenture Smitli coven- anted to l)i:ihl a l)riek wall on the huids let to him. Before very long ]Mr. Smitli got tired of his residence, and assigned the demised premises to a JNIr. Jones without having made the least atteini)t at l)uildmg the brick wall. But Jones could not live there either, and he, in his turn, passed on the [)lace to Clark, ^leanwhile nobody had built tiie wall, and S[)encer called on Clark to do it. " I'll see you — ," replied Clark, in the most forc:!)le Saxon of the [)eriod ; "I've nothing to do with it; I n.ver undertook to huild any brick walls." " "Well, l)Ul,*" said S[)encer, "Smith did; and you stand in his shoes.** Argument, how- ever, was useless, and Si)encer went to hiw. The judges had (luite " a day" over this brick wall. *'And, after many arguments at the bar, tlui case was excellently argued and debated by the justices at the bench, * * * .md many diU'crences were taken and agreed concerning express covenants and cove- LANDLORD AND TENANT. 179 nauts in law, and which of them wonlcl rnn with the land, and which of them are collateral and do not 2,0 Avitli the land, and where the assiirneo shall bo bound without namini^ him, and where not ; and where he shall not be bound, although he be expressly named, and where not." Tliev decided in the end that Clark was 7iot bound to build the Avail, ISniith not having covenanted for his assigns, hni only for ht'nisf'Jf as to a subject-matter not in existence at the time of the covenant, and they laid s the covenant omits all mention of his assigns, and the deed s[)eaks only of himsejl". In that event — a. If the covenant has to do with KonietJiliig not in existence at the time the lease is made the assignee is not bound. This was precisely Spencer's case; tlie bi'ick wall was '• not in existence at the time tiie lease was made,"' and has [)robably not been built yet. h. But if the cov(Miant has to do something whicli As* in existence at the time the lease is made, and is ])(irt of tlie demised lands, then the assignee is bound. If, f(>rexaini)U', Sinitli had covenanted to rei)air the house during the term, Clark would have been liable to [)vv- forni that covenant. The house Avas in existence at the time the lease Avas made, and it Avas of course part of the demised lands. 2. Now sup[)ose the lessee Avho makes the covenant covenants for his assigns as Avell as for himself. '5 3 il it*-'!' ':;}■'■ I' 180 LKAUIXG CASKS SIMPLIFIKI). P.5 >. C' «. The assigiioo is of coui-se liiihlc in case b of 1. A niiltl oxorciso of a fortiori reasoning will show that this is so. If an assignee is 1)oimkI when he is not named, mueh more is he bound when he is named. b. But the assignee is also bound in ease a of 1, jarovided that what is to l)e done is to l)e done on the demised i)reinises. Clark, for instance, would have had to build the wall if Smith had covenanted for his assigns. c. The assiirnee is not liable wdien the lessee's covenant is colhiteral to the lands dr.nised. 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 cremator^^ But such a covenant Avould uot bind his assigns even if the lease said so, for it would have iiothiui]: to do with the land demised. WAIVER OF COXDITIOX IX LE ' ■" E DU3IPOU'S CASE. [3 Coke, 11!); 1 Smith's Ld. Cas. 85.] In the tenth year of the reign of Queen Elizul)eth the college of Cor[)us 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 LANDLOUU AND TKXANT. 181 to iinjbody else without the eolleue's consent. Three years aftorwardsj the collei>e, by deed, nave him permission to alien to anybody ho pleased, and soon afterwards liolde availed himself of this permis- sion and assigned tin; 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 majority. The son entered, and also died, but in- testate, and administration was granted to a person who assigned the term to the defendant Symms. Thereupon the v tath ()f the i)resident and scholars of the college of Coipus Christi, in the University of Ox- foi'd, was kindled. Bolde had covenanted with them not to assign without leave, and such a covenant, they said, should have been observed by whoever held the lands. Therefore, they entered for the broken condi- tion, and leased to Dumpor for twenty-one years. Dumpor entered, l>ut 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. Duni[)()r did not succeed : the case was de- cided against him on the ground, that " if the lessors dispense with one alienation, they thereby dispense with all alienations after." " ' Duuipor'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 Mvxstikld in 1812, " but it has been law so many centuries that v, o cannot now re- verse it." ■ Nevertheless, it remained the law of Eng- 1 m ' Brir.ir.iv.'ll r. Macphcrsou, 14 Ves. 173. •^ Doe V. Bliss, 4 Tiiuut. 7;3(). fmm ^mm ■I '5 '"i 182 I-EAi)iN(f CASKS SI.All'LlI' IKD. land until 18(10, when Piirliamcnt knocked it on the head by enacting that " every such licuMiso should, unless otiierwiso expressed, extend oidy to the permis- sion actualh' <>iven." Duin[)or's case is not, however, to be neglected l)y the American student, as it has been recognized and followed in tliis country in many subsequent cases early and late.^ GOODS PRIVILEGED FROM DISTRESS RENT. FOR SIMPSOX V. HARTOPP. [Willes, 512; 1 Smith's Ld. Cas. 5l'7.] John Armstrong was a stocking-weaver, and rented a small cottage of the defendant IIartoi)p. Early in 1741 ho hired a stocking-frame from the plaintilf Simp- son, at so much a week, for the purposes of his trade. About the end of the year, as tenants will do, ho got behindhand with liis rent, and Flartopp, as landlords will do, distrained on him. There was not much for the bailiffs when they came ; indeed, so little that there was not enough to satisfy the rent in arrear without carrying off Simpson's stocking-frame. This was done, although " the said John Armstrong's ap- 1 Sue Taylor's L. & T., sect. 28(1; notes to 1 Smith's Lcl. Cas. 88. LANDLORD AND TKNANT. 183 pi'onti('(? \v;i8 then weaving ii stocking i,.i the said fViune." Wiien he heard of this, the anger of Simp- son was 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 1)usiness to dis- train on what is actuaJhj in use at the time. '^'he general rule is, that ail personal chattels found on the premises, whether the goods of the tenant or somebody else, can bo distrained for rent. Simpson v. Hartopp introduces us to the exceptions : — I. Some things are ahuolutely privileged from dis- tress ; under no circumstances can they be taken. Such things are — 1. Things in the personal use of a man (because the liiw does not wish to encourage breaches of the peace), as the hatchet with which a man is working, the clothes he is wearinsr, oi" the horse he is ridinjr. 2. Fixtures (because damage would be done to the freehold in tearing them away). 3. Thiniis 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 cobl)lor''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 Avoaver'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 (l^ecause such articles cannot be restored in statu quo ante distraint ; they soon be- s ' Hoskius V. Paul, 4 Halst. 110. 184 LK.\I)IX(} CASKS SIMl'LIFIKI). I < come corrupt and iiiu'iiliihlc) ; ami tlu'rcfori! if I ani behind in inv rent, niv landlord cannot carry oil' mv bread, and I'ruil, and niilk.^ H. Wild animals {fenv, nattwoiy as the law-books call them) ; because no one has any valuable [)roperty in them. Dogs were once considered fcnc naluv(i>, — one judire went so far as to call them vermin — but thcv are not now, and when an animal, ntiturally wild, has discarded its rouu'ii manners and settled down 1) play the humbler rule of domestic pet — a tame fox oi- 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 i)ro[)crty 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, being considered out of the jurisdic- tion of the country.' II. Certain other things are privileged conditionally. They can be taken, but only when there arc not suffi- cient other goods on the premises to satisfy the land- lord's claim. Such things are — 1. The instrumeuts of a man's trade ; ^^f/.,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 Avhereby 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 ahsohttehj ' Given r. Blann, 3 Blackf. h against eapture l)y " a foreign enemy " l)etsv'een Octo- l)er 10th, 1759, and Oetober lOth, 17(10. In April, 17(50, the fort was captured by the French, and this action was brouglit to recover the insurance money. The insurers declined to i)ay, on tiie ground that cer- tain material facts contained in two letters whicii the governor had written to his brother in Sei)tembcr, 1759, had been concealed from them. In those letters the governor si)oke of the weakness of his fort, and the probability of the French attacking it. "The question," said Lord Ellenborougii, in delivering the •^X INSUUANTK. 187 judu'iiu'iit of the coui'l, " must ill ways ho wliothcr tlicrc Wiis uikUt all tlio ciivimistaiK'cs, jit tlio limo liui policy Wiis undcrwi'itton, a. fair rcpivsciitatioii or a coiu't'al- iiu'iil, fVaudulciit If (k'sigiuul, or tIioiii;Ii not dcslgiuMl, varvinu; inatoriallv tlio object of tlio poliov and cliaiiLi- iiig the risk undortakon to 1)0 run." Thoroforc, it appearing that tlio fort was little nioro than a factory, h(!ing merely intended for derence against tlu; natives, so that it.s weakness was an iimnaterial fact as regarded tlu^ French, while the prohiibilitv of their attackiiiir it was a question which a person in J^ngland was in a Ix'tter i)osition to determine than tho governor him- self, Boehm & Co. were ordered to pay up. .■:j I Flli/-: INSUHAXCE — CUSTOM ARY USE OF PRO- II IB IT ED ARTICLES. HARPER V. CITY IXS. CO. [1 Bosw. 520; L>2 N. Y. 441; Lawsoii, Us. & C. 157.] Evervbodv knows the ffrcat nrintinir and publishinsT house of Harper & Brothers, New York. Many will also remember that about thirty years ixno this exten- sive establishment was almost entirely destroA'ed by fire. Though the Harper's Avere well insured the com- panies did not pay up without some law suits. There '*l ii 188 LEADI\(! CASKS SniI'LlFIK'). m Jlj m ■'■\ was one j)()liey for $10,000 in the City Iiisiir;iiico Com- paiiv of New York wliicli coverod hooks und hook materials, stereotyi)o plates, paper, cte., contained in the premises and privileged " for a printini^ office and hindcry." Called on, after the fire, to settle, the oflScers 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 he liahlc for loss or damau'c hy fire occasioned hy cain- pheno av other imfiainnial)le licjuid." Now, as the fire had oriu'inated through the carelessness of a i)rinter in dropping a lighted paper into a pan of fluid cam[)heiie 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 " i^ood lawyer." Thev consulted William M. Evai'ls, and he advised them to hring an action on the ijolicv, which thev did. On the trial a numher of witnesses testified thatcain[)hene was necessary for fine printing, for the pur[)()so of cle:inslng the rollers of the machines. On this <>round the com- pany were ordered to pay up, the princi[)Ie hcing that where a certain trade or business is insured, the insurer is presumed to consent that all its customary incidents shall he allowed, though the policy (h)es not [)eiinit it and may even, hy its [)rinted conditions, forhid it. Wy insuring the plaintiff's stock with the privilege of a printing office and l)()ok binderv, said the court, the use of such materials, including cainphene, as were necessary in that business was allowed ; otherwise the contra:jt was a delusion and a snare. INSUUANCK. 189 WHO MAY INSURE THE LIFE OF ANOTHER, CONNECTICUT, ETC., INS. CO. v. SCHAEFER. [ii4 U. S. 457.] Goorije and Frances had been inarriod a few vears when an insnranee airent ajipeared on the .scene, and .soon denion.strated what a irood thlnij it wonld be 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 vice versa. But after they had got the policy the course of true love ran anvthiuii" l)ut 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 Georire married a Frances II. and Frances mar- ried a Georixe II. Bv-and-bv Geor<>e I. died, and Francis I., when she heard the news, uidocked 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 manager sat in his counting-house counting out his money. He chuckled to himself as ho read over tiio long list of innocents who had handed over their money for his company to keep. He smiled as he thought how the bumj) of confidence had been developed in some people, when, enter Frances. The manager pleasantly handed her a chair, mistaking her for an a[)plicant for insurance ; but when she produced the old policy on tlie life of her 190 LEADIXU CASES SIMPLIFIED. 'Hi <■ rlllj i: ! first Georire, liis smile (loi)iirtetl ; and his look chaiiiied to one of hlauk astonislnnent, as she asked liiin if ho would be irood enoui^h to write her a chock for the amount, in order that she might uet it in the bank be- fore three o'clock. "Pay you to-day? " Ik^ uaspcd. " You must bo crazy, mnihun ; I never hoard of such ji thin"-. You quite take inv breath awav, 1 assure you." " "Well, [ am sorry if I have made a mistake, l>ut does not the policy say that 3'ou will i)ay nio the money ' at his death?' and you know very well that he has l)eou dead nearly a week." " I admit," an- swered the manairer, " that it savs ' at his death,' but it realh^ means nothing of the kind. You st^e, l)ef()ro we can pay 3'ou Ave have to find out whether the man is dead, what lie died of, whether the answers he i>ave about the lives of his grandfathers and grandmothers and uncles and aunts wore all correct. Of course, we know that he is dead, but not officially, madam, not ofiiciallv. All this will take a long time, for I have the l)est reason for believing that wo can establish, by correspondence with parties in Germany, that his maternal grandunchi was sixtv-nino years and eleven months old when ho died, while, according to our do- ceased friend's statement, ho should have \wi^\\ seventy. If this is so, it was a misrei)rosentalion, which, of course, releases us from liability, to say nothini; of a report which one of onr agents ])rings that an old acquaintance remembers his falling from a tree when l)ird's-nesting while a l)oy — another im[)ortant fact which he concealed from us. Come back in a couple of 3'ears, nuulam, and wo will then be in a [jositiou to say whether we will pay you or not." " Swindler," cried Frances, " I'll send my husband to talk to you." 1^•SUKANCE. 191 "Culm yourself, madjiin," returned the manager; "you can not mean that you have secured another husband in a week." Then Frances tokl the iiiana:ettinij!; his money from either Pitt livin00 from the comp;inv he made a verv bio- one, indeed. The English judges never liked that decision ; so when, fifty years after, one Mr. Dalby sued on a policy on the life of the Duke of Cambridge,'^ the Court of Exchequer Chamber unanimously overruled Boldero's ca^e. A man cannot take out an insurance on the life of a total stranger, for the insurance is only valid when he has some interest in the life of the party whom he insures. Any reas ..able ex[)ectati()n 1 Godsiill r. BoUloro, East, 72; L' Smith's Ld. Cas. 'J!>2. ■'■ Dalby v. India, etc., Life Ass. Co. 15 C. U. ;J(;5; 2 Smith's Ld. Cas. 298. INSUItANCF. 193 of pecuniary benefit or adviintagc from the continued life of another creates a sufficient insnra))le interest in such life. Thus, a man has an insurable interest in his own life, ami in that of his wife and children, a woman in that of her husband, a child in the life of his parent, or a creditor in the life of his del)tor. A con- tract of life insurance is not like that of fire insurance, or marine insurance, a contract of indomnlt}'^ merely, (this is where Ellknbououoh blundered), but it en- litU's th'^ -"surcd to recover the whole amount Avithout reference to what his real loss is. All that is necessary- is that he should have had an insurable interest at the time the poJici/ was taken out. The cessation of this interest does not atfect the case at all. Frances clearly had an insurable interest at the time the policy was taken out — for George and she were then man and wife — and the subsequent divorce and re-marriage did not alter the case. So she got her money after waiting five years. But then beneficiaries under life insurance policies have generally to wait longer than that, and usually consider themselves very lucky if they ever get auy- thinir at all. 13 'is ••:3 19^ LEADING CASES SIMPLIFI Kl). V' mi ^ri I! I :i ^ XIII. BxULMEXTS. THE DIFFERENT KiyDS OF BAILMENTS. COGGS V. BERXARD. [Ld. Raym. !)0i>; 1 Smith's Lil. Cas. 284.] Coirffs wanted several hoijslieads of brandy removed from one cellar to another. Instead of emplo3'ing a regular porter to do the job, he accepted the gratui- tous services of his friend, Bernard, who said he would move them safely and securely. But the amateur did his work so clumsily that one of the casks was staved, and the street streamed with u'ood old brandv. Coirus was anirrv, t.nd notwithstandinijj Bernard was to re- ceive nothing for his trouble, successfully mantained an action against him for tlie spilt liquor. This is one of the most celebrated cases ever decided by a court, for the elaborate judgment of Chief Justice Holt contains the first exhaustive and methodical ex- position of the law of bailments. A bailment is the delivery of a thing in trust for some special purpose, the person who delivers it being called the bailor, and the person to Avhom it is delivered the bailee. Lord Holt divides bailments into six kinds — depositu7)i, IJIII liAlLMENTS. 19^ mandatum, commodafum, vadium, locatio rei, unci locatlo operis faciendi. These may also lie clussifiell :• (1) For the benefit of the baUor iiloiie ; (2) fur the ])eiu'fit of the bailee alone ; (3) for the mutual benefit of the bailor and bailee. 1. Under the first head come depositum and man- dalum. (a.) Depositum — the delivery of goods to be taken care q/'for the bailor without the bailee receiving any- thing for his trouble: e.fj., I a.sk my friend Brown to hold iny watch while I am playing a game of base-ball. Brown is responsible only for gross negligence. If he takes a moderate amount of care of my -watch, he will not be oblio-ed to give me a new one if it is stolen, or lost, or broken. But, on the other hand, if he has been jxrosslv nei ])ir/non accep- tuiii) — the contract of pawn. We will hope the stu- dent is not fi'e(juently the ])ailor here. The benefit being mutual, the degree of diligence re- quire<| of the bailee is " ordiuarv." If in spile of due diligence the chattel is lost while in the pawnee's keei)iug, he may still sue the pawnor for the amount of his debt. The elfect of the coutract of pawn is not (like that of a mortgage of i)ersonalty) to pass the })roperty in the chattel to the bailee ; nor, on the other hand, is .it (like that of a lieu) merely to give liiui a hostage, but it gives him such a special prop- erty in tl.'e thing pawned as enables him, if the pawnor makes default, to sell it and pay himself; the sur[)lus being, of course, handed back to the pawnor. As a rule, the pawnee may not make use of the thing bailed to him. If, however, it is au article which cannot bo the worse for the user, — jewellery, for :3 10« LEADINti CASKS SIMI ..II IKI). ill instiinee, — ho nuiy ; but in such !i cjiso ho wouhl l)o rcsj)()ii.sil)lo for tho h)s.s, however it h;i[)i)(!ii('(l. Alorc- over, if the piiwii bo of such a nature that the pawnee is put to expense to keep it, e.g., if it 1)0 a horse or ii cow, the pawnee may make use of it, — riding' th(^ liorse or milking the cow — as a reeompcuise for the cost of maintenance. (/>.) Lorxttlo rel — the every-day contract ol' the hiring of ii^oocls. This being a mutual benefit l)ailincnt, the decree of noijliijence for which the hirer is an-^werabie is ordiii- ury. I hire a horse and buggy from a liv(My-keo[)er, and durin<; the course of niv drive, the buiriry is run into and smashed, or the horse runs away and tears everything to pieces. Tho law does not make me pa}-- tho livery-man for the damage, if I have us(>d ordinary care in driving, that is, if I have driven his horse as I would my own. (c.) Locatlo oppvis faciendl — when the bailee is to bestow labor on or about the thing l)ailod, and to be paid for such labor. Generally speaking, the rule a;^ to care in this case is tho same as in vadium or locatio rei. I give my coat to a tailor to be mendeil or my watch to a jewclU'r fir the same pur[)ose. They must use ordinary care in doing it, and of course if their occupation implies skill they must use it, as in case 1 {It.) But wIkmi a bailee of this kind is a person exercising a public emjiloy- ment — a common-carrier or an inn-keo[)or, he is re- quired to exercise much greater circums[)ection. l\\ fact, the law makes him an insurer of my goods, ex- cept where the loss arisqs from the act of God or the public enemy. HAILMKNT.'"!. 199 LIABILITIES OF IXS^ KEEPERS. CAYT.E'S CASE. [8Coke, :{2; 1 Smith's Lil. (las. Ilt4.] Alatodti'iivollorji-uiiiod his timelv iim.aiid disinoiiiit- m'uest does not deliver his floods to the inn-keeper to keep, nor acquaint him with them, yet, if they be carried away or stolen, the inn-keeper is liable. 5. The inn-keeper requires his guest to put his goods in a certain place under lock and key, and then he will warrant them, otherwise not; the guest lets them lie !§ 200 LE.M)IN(} CASKS SIMI'LiriKI). r. i i44 in ill! outer pluco where thev aw taken :i\vav. Tlu- I. « » inn-Uecper slnill not be diarized. 6. The inn-keeper's liuhilily extend- to all niov iMc Sfoods. 7. If the ijiiest's servant, or he wlio conies wilh him, or he whom he desires to he lodiicd wilh him, stc^iis or carries away his i;-oods, the inn-keei)er shall not he charu'cd. S. II" the tziic>t l>c hcalcn at the inn, the inn-kecpcr shall not answer I'or it. BEIIKSIIIIIE AVOOLLEX CO. v. PROCTOR. [TCiisii. n:.] Russell, the airent oi the Berkshire Woollen C!om- pany» "vvent to Boston to attend to a law->; with several witnesses that he had hrouijht alonir with him. L;iw-snits, as some people know, cost money, and Russell, therefoi'o, h(>sides spare chanjjfe, had a package containing $'»()() in his trunk. He hud been at the hotel about three weeks, when ho discov- ered that a thief had come into his room, picked the lock of his trunk and de[)arted with the shekels. The Woollen Conii)any did not like to h)se good money in this way, and they immediately instituted a suit against the landlord for the amount. jNIine host made several defences. Among other thinjjs he said that as Russell H.ML.MKXTM. 201 w.'is goiiiir to 1)(> ill Boston Mcvin'iil wocks, lio li.-id miido ji ^pt'cinl iiiirccMU'iit with iiim to hoard liiiii tit so miicli a week. " This in;i(lu him u l)o;u'(h'i'," he, iiri^iiod, " iiiid MM iiui-koopcr is only an insurer of th« property of ' U'Ui'sts.' " l»nl llie coui't hchl tliiit a Iravclh'r wlio puts up at an inn, and is received as a u'uesl, docs not cease to he a iriiesl from llie fact that lu! makes ail aiirccment with tlie inn-kee[)er for tlu; i)i'icn of liis hoard hy the week. P>eaten from this [josition, h(! saitl tliat he was quite; willing to stand liahlo for the [)rop- ertv of his iruests, hut that ho thought ho ouirht not to pav for what tliev earri*^d with them l)elonnMni»* to othei- [)eo[)Ie. l>ut the court told him that it was an old principle of law, tli.it if a servant is rohhcd of his master's money or i»oods, the latt(!r may maintain an action against the inn-kcopcr in Avhoso house tho loss was sustained. These were two knock-downs for tho i)laintifr, l)ut the diifeiKhint camo up smiling for a third and final round, "At any ra<'3,"' ho said, "I am only liahlo for such sums of money as my guests ai'o ohli<2:ed to carry for tlieir necessary trayeHin<>; ex- ])onscs." " Xo," answered tho court, "you are wrong again. The res[)onsil)ility of the inn-kecpor extends to all tho moval)le goods and chattels and moneys of his guest which are phu'cd within tho inn." Tho landlord could fight no longer ; he threw up the sponge and paid the judgment. :^. ^sS^^'iSS:»t% ;* t ^ aK j. : . * M r . K i i^1 ■^'^'■^^^ i^ ■t:<-' 202 LEADING CASES SIMPLIFIED. RESPOXSIBILITY <>F CAR HIE R OF PASSEXGEli^ FOR DEFECTIVE VEHICLE. IXGAT^LS V. l?rLLS. [D .M,etc. 1 ; Thonip. Ld. Ctis. Carr. Pass. 111'.] Ml*. Iiiir;ill.s was iuiotheruiilortuuato tniveller. hid- ing on tho top of a coach which carried pas^enjj^ers between Camhridge and Boston, he was .surprised to liear the axlo crack, to see one of tho hind wheels come off and to feel tho vehicle settle down on one side. Without waiting for anvthing more, he made a jump to tho pavement, but not being able to laud with the ability of a trapeze performer, ho broke his arm. A broken arm is no loko and Mr. In